5-6.000
THE ENVIRONMENTAL DEFENSE
SECTION
5-6.001 Establishment
5-6.100 Area of Responsibility -- Generally
5-6.111 Responsibility -- Defense of Actions
Directed Against the United States, Its Agencies, and Officials
5-6.112 Responsibility -- Cases Brought on
Behalf of the United States
5-6.120 Overlapping Section Case Responsibility
5-6.121 Responsibility for Cases With New Issues
or an Altered Character
5-6.130 Statutes Administered
5-6.200 Organization in General
5-6.220 General Duties of Staff Attorneys
5-6.300 Supervision and Handling of
Environmental Defense Section Cases -- Requests for Instructions
5-6.302 Supervision and Handling of
Environmental Defense Section Cases -- Assignment of Case Responsibility
5-6.310 Authority of United States Attorneys to
Initiate Actions Without Prior Authorization, i.e., Direct Referral Cases
5-6.311 Notification to Environmental Defense
Section of Intention to File Actions
5-6.312 Transmittal of Papers to Environmental
Defense Section and Client Agencies
5-6.313 Authority to Handle Direct Referral
Cases Does Not Extend to Appeals
5-6.321 Actions Not Subject to Direct Referral
to United States Attorneys -- Prior Authorization Needed to Institute Action
5-6.510 General
5-6.520 Preparing Responsive Pleadings in
Actions Directed Against the United States, Its Agencies or Officials
5-6.521 Temporary Restraining Orders and
Preliminary Injunctions
5-6.522 Lis Pendens and the Recording of
Judgments
5-6.530 Suits Against the United States, Federal
Agencies or Officials
5-6.531 Suits Against the United States --
Generally
5-6.532 Direct Review in the Courts of Appeals
5-6.533 Citizens' Suits
5-6.600 Settlement and Dismissal -- Generally
5-6.611 Transmittal of Settlement Offers
The Environmental Defense Section was created on July 1, 1981, as part
of a Division reorganization. The predecessor section, the Pollution Control
Section, was abolished on that date.
The Environmental Defense Section defends, and supports and coordinates
the defense of, all civil cases, matters and proceedings arising under the
statutes enumerated in USAM 5-6.130 (all of which
statutes are concerned with the regulation and abatement of sources of pollution
or with the protection of the natural environment). The Environmental Defense
Section also prosecutes, and supports the prosecution of, civil matters arising
under Sections 10 and 13 of the River and Harbor Act of 1899 and Sections 301 and
404 of the Clean Water Act. The Section also engages in certain other affirmative
litigation.
The Environmental Defense Section has Departmental responsibility for
defending actions brought against the Administrator of the Environmental
Protection Agency, and his or her subordinate officials, and against the
Secretary of the Army, the Chief of Engineers of the United States Army, and
their subordinate officials, challenging administrative actions which those
officials have taken or failed to take under the statutes set forth in USAM 5-6.130. Such actions may take the form of (a)
challenges to regulations promulgated by these officials, (b) challenges to the
propriety of the issuance or denial of permits, (c) assertions that actions
required by law have not been taken, (d) challenges to measures taken or not
taken with regard to enforcement of the statutes listed in USAM 5-6.130, and (e) any other defensive matters
relating to the agencies' activities under the statutes listed in US
AM 5-6.130.
Additionally, the Environmental Defense Section has Departmental
responsibility for litigation directed against any other federal agency or
official alleged to have violated any duties under the statutes listed in USAM 5-6.130 and also for litigation directed at
federal installations, properties, and activities charged with violating
applicable discharge or emissions limitations, or other federal, state or local
pollution laws.
The Environmental Defense Section also has responsibility for civil
actions initiated on behalf of the United States to enforce the provisions of
Sections 10 and 13 of the River and Harbor Act of 1899 and Sections 301 and 404
of the Clean Water Act, relating to unlawful filling or other unauthorized
activities undertaken in waters of the United States. As a matter of policy and
practice, these civil prosecutions are initiated only at the request of the
Administrator of the Environmental Protection Agency or Chief of Engineers of the
United States Army.
Whenever apparent violations of the above-mentioned statutes are
brought to the attention of the Department of Justice by persons or agencies
other than those with statutory enforcement responsibilities, the Department
forwards reports of these apparent violations to cognizant enforcement officials
for evaluation and referral for legal proceedings, if appropriate.
Forwarding reports of suspected violations to the appropriate agencies
affords them an opportunity to resolve matters administratively. It also
minimizes the government's vulnerability to a number of technical, procedural and
equitable defenses. On occasion, however, an action under Section 10 or Section
13 of the River and Harbor Act may be initiated by the Environmental Defense
Section or United States Attorneys, at their own instance. All such actions
require the approval of the Assistant Attorney General, Environment and Natural
Resources Division.
Other affirmative litigation undertaken on behalf of the agencies
responsible for administering the statutes listed in USAM 5-6.130 and on behalf of agency clients having
facilities subject to federal, state and local pollution control laws are
initiated upon referral of the proposed action by the client agency to the
Section Chief, Environmental Defense Section.
While the Environmental Defense Section is responsible for defensive
actions involving the statutes listed in USAM
5-6.130 cases arise from time to time involving several different claims and
defenses, only some of which lie within the cognizance of the Environmental
Defense Section. The Chiefs of the appropriate Sections within the Environment
and Natural Resources Division will decide between or among themselves concerning
the primary assignment of such cases within the Division. The Section having
primary responsibility for the case also has the responsibility to coordinate
with the appropriate Section within the Division on all matters within said
Section's jurisdiction. This should be accomplished by furnishing copies of
pertinent pleadings and memoranda to said Section. Whenever possible, the
Division attorney with the primary responsibility for the case will notify the
United States Attorney of the identity of the attorney in any other Se
ction who may be contacted with respect to matters within the expertise of that
Section.
Occasionally, issues involving statutes within the Environmental
Defense Section's cognizance may be injected into existing litigation by way of
amendment or supplemental pleadings, etc. In such events, United States
Attorneys should notify the Chief of the Environmental Defense Section so that
the Section can properly perform its responsibilities.
On rare occasions, the fundamental character of existing litigation may
change such that issues within the cognizance of the Environmental Defense
Section become the dominant issues. In such situations, the Environmental
Defense Section staff attorney with advisory responsibility for the case shall
notify the Section Chief who may request a transfer of Section responsibility if
he/she deems it appropriate. If such issues become dominant in a case where the
United States Attorney has primary responsibility, he may make a written request
to the Assistant Attorney General, Environment and Natural Resources Division,
to have the case transferred to the Environmental Defense Section.
On occasion private plaintiffs may assert federal common law nuisance
claims as a basis for relief against the United States, its agencies and
officers. Any such case should immediately be brought to the attention of the
Chief, Environmental Defense Section.
The Environmental Defense Section is responsible for conducting
defensive and certain other litigation as described in USAM 5-6.100, 5-6.111 and 5-6.112, arising under the
following statutes:
- Sections 10 and 13 of the River and Harbor Act of 1899, 33 U.S.C.
§§ 403, 407;
- The Clean Water Act (Federal Water Pollution Control Act, as amended), 33
U.S.C. § 1251 et seq. (except for in rem actions against vessels,
which are supervised by the Admiralty and Shipping Section of the Civil
Division);
- The Toxic Substances Control Act of 1976, 15 U.S.C. § 2601 et
seq.;
- The Safe Drinking Water Act of 1974, 42 U.S.C. § 300f et seq.;
- The Clean Air Act, 42 U.S.C. § 7401 et seq.;
- The Noise Control Act of 1972, 42 U.S.C. § 4901 et seq.;
- The Uranium Mill Tailings Radiation Control Act, 42 U.S.C. § 7133 et
seq.;
- The Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136
et seq.;
- The Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et
seq. (also called the "Solid Waste Act").
- The Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. § 9601 et seq. (also called "Superfund Act");
- Marine Protection, Research and Sanctuaries Act, 33 U.S.C. § 1401 et
seq. ("Ocean Dumping Act").
The Section is administered by a Chief, a Deputy Chief, and seven
Assistant Chiefs. Four Assistant Chiefs are primarily responsible for district
court litigation, while one Assistant Chief is primarily responsible for
appellate court litigation. In addition, there is one Assistant Chief for Policy
and Legislation, and one Assistant Chief for Administration and training. The
work of the Section is assigned among staff attorneys according to experience and
workload. Generally speaking, all staff attorneys are involved to some extent
with every aspect of the Section's work and there are no specific units or other
organizational subdivisions. General information relating to the Section or
cases within its supervision may be obtained by calling the Chief, Deputy Chief,
or Assistant Chiefs at (202) 514-2219. Information on a specific case should be
requested from the staff attorney assigned to that case. Where the staff
attorney's name is unknown, the case management specialist o
f the Section (202) 514-3255 will furnish that information.
In general, the following are the more significant duties of staff
attorneys assigned to the Environmental Defense Section; (a) to handle cases
authorized by statutes for direct review in appellate court; (b) to handle
environmental litigation in district courts in cases of major significance when
directed by the Assistant Attorney General, Environment and Natural Resources
Division, pursuant to the policies set forth in USAM
5-6.300, et seq.;0610 (c) to offer advice, policy guidance and trial
assistance in environmental cases in the district court where the United States
Attorney or designated assistant has primary responsibility for the litigation;
and (e) to assume advisory responsibility with respect to environmental issues
in cases falling within the cognizance of other Sections of the Environment and
Natural Resources Division.
All requests for instructions and guidance relating to the defense or
prosecution of actions under the jurisdiction of the Environmental Defense
Section shall be referred to the Chief of the Environmental Defense Section of
the Environment and Natural Resources Division of the Department of Justice,
Washington, D.C. 20530, (202) 514-2219.
Responsibility for the handling of cases under the supervision of the
Environmental Defense Section is assigned by the Chief of the Section under the
provisions of USAM 5-1.323 through 5-1.325.
At present, the Assistant Attorney General, Environment and Natural
Resources Division, has delegated to the United States Attorneys the authority
to act, without prior authorization from the Environment and Natural Resources
Division, on behalf of any other department or agency in response to a direct
request in writing from an authorized field officer of the department or agency
concerned, in the following environmental cases under the supervision of the
Environmental Defense Section and Enforcement Section in certain cases:
Civil enforcement actions involving the dredging or filling or
alteration of the navigable waters of the United States and their tributaries in
violation of Sections 10 and 13 of the River Harbor Act of March 13, 1899 (33
U.S.C. §§ 403, 407), and in violation of Sections 301 and 404 of the
Clean Water Act, 33 U.S.C. §§ 1311, 1344. This authority is, however,
revocable on a case by case basis where, in the opinion of the Assistant Attorney
General, important or novel issues of law or policy are involved.
Generally speaking, direct referral cases are of a routine nature and
involve statutes whose interpretation is relatively well-settled. Departmental
policies on cases authorized for direct referral, however, are not necessarily
related to policies on case responsibility allocation. The former have been
formulated in cooperation with enforcement agencies to afford them an opportunity
for headquarters review of enforcement action falling within unsettled areas of
the law.
Prior to filing a civil complaint in a case authorized for direct
referral, the Chief, Environmental Defense Section, shall be notified of the
proposed action, and shall be furnished with a copy of the written request from
the authorized field officer for initiation of the action.
One copy of each letter prepared or received by a United States
Attorney in a direct referral case, as well as one copy of each pleading and
paper filed by any party or by the court, shall be promptly forwarded to the
Environmental Defense Section, and two copies shall be forwarded to the local
officer of the referring agency (the local officer forwards one copy to his/her
agency in Washington, D.C.).
The authorization to handle direct referral cases under the provisions
of USAM 5-6.310 extends to district court
proceedings only. Responsibility for appellate proceedings in all such cases
remains in the Division's Appellate Section. See USAM 5-8.300 et seq. Accordingly, appeals
in all such cases are governed by the procedures in USAM Title 2, Appeals.
Except for cases not requiring prior authorization as stated in
USAM 5-6.310 no case under the supervision of the
Environmental Defense Section may be initiated by a United States Attorney
without the prior authorization of the Assistant Attorney General, who shall sign
the complaint prior to its being filed (see USAM 5-1.302). Additionally, United States
Attorneys may not initiate upon direct referral cases arising under the statutes
listed in USAM 5-6.310 where relief sought is
monetary damages or civil penalties in excess of the United States Attorneys'
settlement authority.
No defensive matters may be handled by the United States Attorneys on
direct referral.
In cases under the supervision of this section not authorized for
direct referral, in which the United States Attorney wishes to file an action in
the name of the United States, a request for such authority shall be sent to the
Assistant Attorney General, Environment and Natural Resources Division, attention
Chief, Environmental Defense Section. Responsibility for handling such cases
will be determined in accordance with the policies set forth in USAM 5-1.322 through
5-1.325.
The general instructions set forth in USAM
5-1.000 et seq., with respect to the handling of litigation under
the jurisdiction of the Environment and Natural Resources Division apply to
litigation within the cognizance of the Environmental Defense Section.
Whenever an action is initiated against an agency or official of the
United States, the underlying factual material required for the preparation of
responsive pleadings is forwarded from the headquarters of the concerned agency
to the Assistant Attorney General, Environment and Natural Resources Division,
by way of a litigation report. Except in unusual circumstances, agencies are
required to forward a litigation report well in advance of the sixty (60) day
deadline for responsive pleadings specified by Rule 12(a). If the United States
Attorney has been given primary litigation responsibility, the Environmental
Defense Section will request the client agency to forward a copy of the
litigation report to the United States Attorney concurrently with its transmittal
to the Assistant Attorney General.
There are, however, inherent delays in the customary procedure for
transmitting litigation reports. Service of the complaint may be upon the agency
headquarters in Washington, D.C., and it may be some time before the local agency
field office is aware of the pendency of the action. To minimize potential
delays, the United States Attorney should immediately advise local agency field
offices and the Chief, Environmental Defense Section, of the pendency of actions
in which they may be a party or otherwise have an interest. The field offices
should be provided with copies of the complaint and related documents as soon as
possible so that they can initiate the preparation of a litigation report.
Occasionally, an action directed against an agency or official of the
United States will involve a motion for temporary restraining order or
preliminary injunction or otherwise require that action be taken on behalf of the
United States well before any responsive pleadings are due. In such cases the
United States Attorney should immediately notify the Chief of the Environmental
Defense Section (telephone (202) 514-2219). If memoranda, affidavits or other
responses must be filed prior to the agency's preparation of a litigation report,
the United States Attorney should clear all legal and factual positions with the
Environmental Defense Section prior to advancing them formally on behalf of the
United States. It is the responsibility of the Environmental Defense Section to
coordinate such positions with the agency headquarters in Washington, D.C.
In civil prosecutions under Sections 10 and 13 of the River and Harbor
Act and Sections 301 and 404 of the Clean Water Act seeking prohibitory or
mandatory injunctive relief, complications may arise if the ownership of the
property in question changes hands during the pendency of the action. Where
there is a threat of transfer of ownership, the United States Attorney should
consider filing a notice of the pendency of the action, or lis pendens. The
steps necessary for the filing of such a notice are determined by the law of the
particular state (see 28 U.S.C. § 1964).
On occasion, the final judgment in a civil prosecution under these
statutes may, in effect, place a permanent burden on the property which was
subject to the unauthorized activities. In order to protect the future interests
of the United States, the judgment should be recorded in accordance with the
requirements of local law and the provisions of 28 U.S.C. § 1962 et
seq.
Sections 5-6.531 through 5-6.533 discuss suits against the United
States, federal agencies or officials.
Upon notification that an action has been initiated against the United
States, its agencies or officials, the United States Attorney should examine the
complaint and supporting documents to ascertain whether the action will involve
issues within the cognizance of the Environmental Defense Section. If it appears
that the Environmental Defense Section will have responsibility for the case
(see USAM 5-6.112), the United States
Attorney should promptly send a copy of the complaint and supporting documents
to the Chief of the Environmental Defense Section.
If the case does not appear to be the primary responsibility of the
Environmental Defense Section but appears that the Section may have advisory
responsibilities, the Section Chief should be notified pursuant to USAM 5-6.120.
Most of the statutes listed in USAM
5-6.130 authorize direct review in the appellate courts of various actions
taken by the Administrator of the Environmental Protection Agency, as well as
certain other federal officials; all cases involving such petitions for review
that are served upon a United States Attorney should be promptly forwarded to the
Chief of the Environmental Defense Section.
The Clean Air Act, the Clean Water Act, the Marine Protection, Research
and Sanctuaries Act, the Noise Control Act, and several of the other Acts also
authorize citizen suits in the United States district courts against various
persons, including federal officials. Normally, a period of notice is required
before such an action may be instituted. Citizens' suits must be analyzed
carefully to determine the relief sought in the case, and the United States
Attorney should promptly seek instructions from the Chief, Environmental Defense
Section, as to the handling of the case.
United States Attorneys are not authorized to settle or dismiss any
case arising under any of the statutes listed in USAM
5-6.130. Any offer to settle or dismiss any such suit must be directed to
the Chief of the Environmental Defense Section, who will take final action, or
if the matter is not within the scope of his/her delegated authority, will
forward the offer, with his/her own recommendation, to the Deputy Assistant
Attorney General, who, in turn, will either act upon the offer, or, if necessary,
refer the matter to the Assistant Attorney General. Offers to settle or
compromise in direct referral cases, when transmitted to the Environmental
Defense Section, should be accompanied by the recommendation of the referring
client agency.
Any offer to settle or dismiss an action shall be transmitted to the
Chief of the Environmental Defense Section for referral to the Assistant Attorney
General and for such other action as may be directed by regulation. Such offers
should be accompanied by the written comments and recommendation of the referring
client agency. In emergency situations, such as with settlement offers received
during trial, settlement offers dealing exclusively with monetary damages or
penalties may be communicated to the Chief of the Environmental Defense Section
by telephone.
| March 2001
| USAM Chapter 5-6
|