EPA Memorandum Expands Headquarters Role in Enforcement Referrals to DOJ
Earlier in the year we
posted blogs discussing policy changes at EPA and DOJ that signaled changes
in federal enforcement and a
rethinking of the use of third-party payments. EPA has since announced
another enforcement-related procedure that could signal a major change in the
way EPA conducts enforcement. In March of this year the EPA Assistant
Administrator for Enforcement Susan Bodine issued Interim Procedures for Providing Early Notice of Civil Judicial
Referrals (U.S. EPA, March 23, 2018). Under these interim procedures, the
EPA regional case teams are to brief the Regional Administrator on cases to be
referred to DOJ, and to copy the Assistant Administrator with these briefing
materials. If requested by the Assistant Administrator, the regions are
directed to send the referral to the EPA Assistant Administrator prior to
sending the referral to DOJ.
While this announced
procedure may not appear significant on its face, it does alter a system that
goes back 30 years. To understand the significance, a little background is
helpful. To pursue cases judicially, EPA must refer cases to DOJ. This referral
procedure is governed by a memorandum of understanding first negotiated between
the two agencies decades ago. This memorandum was important, as it laid to rest
a period of bureaucratic squabbling that occurred for many years regarding the
handling of judicial enforcement and effectively ended EPA’s efforts to
transfer litigating authority for environmental cases from DOJ to EPA.
Initially referrals were routed from the EPA regions to EPA headquarters, and
then to DOJ. In December of 1983, the Reagan EPA began a process that allowed
cases to be directly referred from the EPA regions to DOJ. This direct referral
process was expanded in 1988 (Expansion
of Direct Referral of Cases to the Department of Justice (U.S. EPA January
14, 1988)), and this has been the procedure through the intervening years.
The recently announced
procedure does not directly overturn the 1988 procedure, and it only obliquely
implies that headquarters review and sign-off is required prior to a referral
to DOJ. Its stated purpose is to enhance management of judicial cases, reduce
the time to correct violations, and to facilitate coordination with DOJ
management on issues where necessary. Nonetheless, the procedure looks to
establish another potential layer of review for a civil judicial docket that
has been steadily declining over the past several years. The likely result of
this policy is a longer lead time for the reduced number of judicial referrals.
In addition, this new procedure may incline the EPA regions to pursue
administrative rather than judicial enforcement for violations, to avoid the
possible delay that headquarters review might entail.