Law proposed by a member of Congress (“Bill”)

If bill is approved by House and Senate, goes to POTUS

POTUS: sign,veto, pocket veto

If signed becomes an “Act of Congress”

Act is standardized in language by the House (the “statute”) and published in the US Code (USC)

Law may be intentionally or unintentionally vague or ambiguous◦ Example: speed limit on a given street; tuition at PSU

But law will be specific about what agency is responsible

Most environmental laws delegated to US EPA

Clean Water Act: Section 404 dredging permits issued by US Army Corps of Engineers, with the assistance and coordination of EPA

Congress: via the act gives general guidelines or specific goals◦ Example: CWA: “All navigable US waters should

be fishable and swimmable”

Agency: produces specific, detailed RULES that translate the mandates of the act into everyday requirements

1. Proposal of rule by agency

2. Published in the Federal Register for public review

3. Comment Period: 30/60/90 days of public review and testimony; also internal review

4. Revision of rules based on comments

5. Final promulgation by publication in the Code of Federal Regulations (CFR)

http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR

“Primacy”: Federalism in Action[“First or foremost”]

Federal EPA sets the general regulatory framework and in many cases the exact rules

States may write some or most of the actual regulations as long as they meet or exceed the federal standards

States assume the prime responsibility for enforcement

States normally are in charge of enforcement most actions, with federal oversight

US EPA does enforcement for very large or multi-state cases, often in conjunction with state agencies

The Carrot

Policy documents: “should do” Guidance documents: “how to”

Policy: statements outlining official positions or procedures

Guidance: detailed instructions on how to implement requirements or regulations

Voluntary compliance The normal and most common situation

Civil suits and penalties: Agreements, settlements, and fines

For ongoing noncompliance, with or without intent

Criminal action: Fines, jail time

For serious noncompliance with intent; cases involving threat to human health or life

Voluntary

◦ Compliance with regulations is expected of everyone (like income taxes).

◦ “Strict liability”: Doing it makes you guilty. Ignorance of the regulations is no defense.

◦ Assistance is offered (“carrots”) Grants to local governments etc. Policy and guidance documents

◦ “Forgiveness” for voluntary discovery

Oregon rules are typical:

Penalties may be reduced (up to 100%) if violator discovers the violation and voluntarily reports it.

Does not apply if the “discovery” came from monitoring you were required to do anyway.

Never applies to toxic discharge to waterways.

Civil Action

◦ Agency identifies noncompliance

◦ Gives notice to responsible party

◦ If no adequate response, suit is filed in court May settle out of court

May go to trial, usually by federal judge/magistrate

May then reach an in-court settlement or else a court order from magistrate or judge

An agency fails to identify a problem or act on a known problem

An aggrieved party with legal standing in the matter files suit◦ For example, Northwest Environmental Advocates,

Friends of the Coast Fork, Gifford Pinchot Task Force

State agency and other regulators are named as defendants; i.e., outside party sues the agency (not the polluter(s) directly).

Case settles or is decided by a court

The decision directs the agency on what to do to resolve the problem (issues an order or injunction)

Agency then goes after the responsible parties for actions and compensation (if possible)

Standing

Complaint

Damage

Relief Sought

Financial relief

◦ Compensatory damages

◦ Punitive damages

Injunctive relief

A legal document in which plaintiff explains some injury or damage caused by defendant and lays out a claim for relief.

◦ E.g., a group sues state for not enforcing a pollution law which is damaging a river or a water supply.

Relief is the specific remedy sought by the plaintiff.

Money damages: Plaintiff seeks cash from the defendant. Typical in personal or class-action suits.

◦ Compensatory damages: “Pay me for what it cost me to deal with this.”

◦ Punitive damages: “Make them pay a lot more than that just to teach them and everyone else a lesson.”

Plaintiff wants the judge to order action by the plaintiff.

Requested where money is not enough or is not the solution. Typical in most environmental case brought by agencies or outside groups.

What if defendant does not comply with the order?◦ Civil penalties like fines◦ Criminal penalties like fines or imprisonment◦ Contempt of court charges

A case is commonly settled in or out of court.

Out of Court: Parties agree in private to a mutually satisfactory outcome. Case dismissed.

In Court: Parties work out a solution but then get a court enforcement order after a “joint stipulation.”

A prevalent management philosophy or practice that concealed or condoned environmental violations; or

Knowing involvement in or deliberate ignorance of the violations by responsible corporate officials or managers; or

Substantial harm to human health or the environment.

Intent or a “knowing violation”.Oregon DEQ’s definition is pretty typical:

EPA’s criminal enforcement program pursues individual and corporate defendants who have committed serious environmental crimes

EPA's criminal enforcement program established 1982

Granted full law enforcement authority by Congress 1988.

200 fully authorized federal law enforcement agents. These EPA Special Agents can pack heat.

70 forensic scientists and technicians.

45 criminal offense attorneys

http://www2.epa.gov/enforcement/2014-major-criminal-cases

http://echo.epa.gov

www.youtube.com/watch?v=fAJlHxyapa0