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.