October 01, 2002

New Environmental Enforcement Procedures

3 min

A number of recent developments in the Federal government will have a profound effect on the manner in which many environmental cases will be handled in the future. Among those developments are:

  • On February 5, President Clinton signed Executive Order No. 12988, mandating reforms for civil cases to which the government is a party. Government attorneys must now consider whether each case is suitable for use of an alternative dispute resolution (ADR) technique, and if so, to propose using such technique(s) to the opposing parties. This obligation is on-going during the life of the case.
  • Attorney General Reno has established an office at the Department of Justice to promote and oversee the development and use of ADR by the government. That office is now training government trial attorneys in the various types of ADR, and developing criteria for the selection of cases that may be particularly well-suited for application of ADR techniques. Those criteria will be issued to the public soon.
  • The U.S. Environmental Protection Agency has also established an ADR office to encourage the use of those techniques by EPA and its regulated community. EPA, which has been experimenting with ADR pilot programs for several years, is now one of the most advanced of the major federal agencies in the use of those procedures.
  • The budget cuts to which EPA has been and will continue to be subjected will impair its ability to conduct enforcement as in the past, and will drive the use of less resource-intensive and less time- consuming ADR procedures for many of the more “routine” cases.
  • Any reauthorization of Superfund is likely to include mandatory arbitration of allocation of responsibility. These developments are particularly significant to companies who may be the object of a government environmental enforcement action. In the past, defendants in environmental cases have proposed the use of mediation or arbitration to the government, but have been met with institutional and bureaucratic resistance. With these developments, that resistance should soften, if not change to an attitude of willingness to consider the nomination of a case for ADR by private parties.

    The use of ADR procedures — long used in many other fields — is rapidly gaining acceptance in the environmental area. Many groups of potentially responsible parties at Superfund sites are already turning to mediators to assist in achieving allocation agreements. This trend that will undoubtedly accelerate in the future as corporate counsel seek ways to resolve their environmental problems more cost-effectively.

    Environmental cases are particularly well-suited for the use of mediation, arbitration, fact-finding, mini-trials or other ADR procedures. These cases are factually complex and highly technical, or both, but many of the threshold legal issues have now been resolved, resulting in less need for judicial involvement. Properly used, ADR can resolve many such cases more quickly, with less expense and stress, than through formal litigation.

    Venable’s Alternative Dispute Resolution Practice Group includes an attorney who has represented the U.S. EPA and a state environmental agency as well as numerous industrial clients, has served as a judge, and who brings a balanced perspective as a third- party neutral to the resolution of disputes.