5-6.001
Establishment
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.
5-6.100
Area of ResponsibilityGenerally
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.
[cited in USAM 5-6.130]
5-6.111
ResponsibilityDefense of Actions Directed
Against the United States, Its Agencies, and Officials
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 USAM 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.
[cited in USAM 5-6.531]
5-6.112
ResponsibilityCases Brought on Behalf of the United States
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.
5-6.120
Overlapping Section Case Responsibility
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 Section who may be contacted with
respect to matters within the expertise of that Section.
[cited in USAM 5-6.531]
5-6.121
Responsibility for Cases With New Issues or an
Altered Character
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.
5-6.130
Statutes Administered
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").
[cited in USAM 5-6.100;
USAM 5-6.111;
USAM 5-6.112;
USAM 5-6.120;
USAM 5-6.532;
USAM 5-6.600;
USAM 5-7.300]
5-6.200
Organization in General
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 of the Section
(202) 514-3255 will furnish that information.
5-6.220
General Duties of Staff Attorneys
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.
5-6.300
Supervision and Handling of Environmental
Defense
Section CasesRequests for Instructions
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.
[cited in USAM 5-6.220]
5-6.302
Supervision and Handling of Environmental
Defense
Section CasesAssignment of Case Responsibility
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.
5-6.310
Authority of United States Attorneys to
Initiate
Actions Without Prior Authorization, i.e., Direct Referral Cases
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.
[cited in USAM 5-6.313;
USAM 5-6.321]
5-6.311
Notification to Environmental Defense Section
of
Intention to File Actions
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.
5-6.312
Transmittal of Papers to Environmental Defense
Section and Client Agencies
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.).
5-6.313
Authority to Handle Direct Referral Cases Does Not Extend to Appeals
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. USAM 5-8.300 et seq.
Accordingly, appeals in all such cases are governed by the procedures in
USAM Title 2, Appeals.
5-6.321
Actions Not Subject to Direct Referral to United States
AttorneysPrior Authorization Needed to Institute Action
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.
5-6.510
General
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.
5-6.520
Preparing Responsive Pleadings in Actions
Directed Against the United States, Its Agencies or Officials
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.
5-6.521
Temporary Restraining Orders and Preliminary
Injunctions
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.
5-6.522
Lis Pendens and the Recording of Judgments
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.
5-6.530
Suits Against the United States, Federal
Agencies
or Officials
Sections 5-6.531 through 5-6.533 discuss suits against the United
States, federal agencies or officials.
[updated March 2001]
5-6.531
Suits Against the United StatesGenerally
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.
5-6.532
Direct Review in the Courts of Appeals
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.
5-6.533
Citizens' Suits
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.
5-6.600
Settlement and DismissalGenerally
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.
[cited in USAM 5-8.600]
5-6.611
Transmittal of Settlement Offers
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.
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