Recently, the Environmental Integrity Project issued report that used a review of federal records to document a significant decline in environmental enforcement during the first six months of the Trump Administration. Is there a commitment to environmental enforcement in the Trump Administration? The number of criminal investigators at the USEPA is at about three-fourths of what Congress has statutorily mandated. While it is too early to tell make any real conclusions regarding federal enforcement, there are mechanisms for private party enforcement under federal environmental laws. In other words, just because there are fewer criminal investigators, industry should not get too comfortable.
The perceived lack of enforcement by the federal government may just provide the added incentive for private, non-governmental organizations to intensify enforcement efforts under the citizen suit provisions of federal environmental statutes. While the concept of “standing” is a hurdle (and always has been), it is not an insurmountable hurdle. The major environmental statutes allow private party enforcement, including the CWA, the CAA, the RCRA, the SDWA and the TSCA. And there are few limitations on who can pursue a citizen suit. Notice is required to the government and prospective defendants of the alleged violations before filing the citizen suit. In the absence of government enforcement, the citizen suit may proceed and may also allow the recovery of attorney fees.
When faced with a citizen’s suit, industry needs to be prepared to test the adequacy of citizen suit complaint.
More later.
As always, please feel free to contact me at walter.james@jamespllc.com.
WDJiii