Engineering harmony between state and federal enforcement power
"The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other."
- Justice Anthony Kennedy
The U.S. Supreme Court's landmark December 12th ruling in Bush v. Gore reiterated the longstanding and indisputable concept that we live in a nation of "dual sovereigns" where both the federal government and states play important roles. The 2000 presidential election contest, however, was not the only place where important battles have been waged recently over whether state or federal courts have the final say in resolving legal issues, whether a ruling by one binds the other, and whether it is possible to comply with state and federal mandates simultaneously. These same federalism concerns have been at the forefront of the national environmental debate since the 1999 Harmon Industries hazardous waste case was decided in Missouri. As in the presidential election contest, the few courts that have ruled on these types of "environmental federalism" issues since Harmon have been very sympathetic to the federal perspective. A review of this trend shows that it may be futile and unwise to try to co
nvince courts that an "either/or" choice must be made between compliance with U.S. Environmental Protection Agency (EPA) and state requirements.
Harmon case escalates the federalism battle
In Harmon Industries Inc. v. Browner, 191 F.3d 894 (8th Cir. 1999), the Eighth Circuit federal appeals court in St. Louis concluded that EPA cannot "overfile" or duplicate a state's hazardous waste enforcement action unless the state "fails to act" or EPA takes the drastic step of entirely withdrawing the state's authorization to implement and enforce its hazardous waste program pursuant to the Resource Conservation and Recovery Act (RCRA). Although EPA continues to disagree with the Eighth Circuit's analysis, it decided not to seek review of the ruling in the U.S. Supreme Court. The ruling, therefore, remains binding upon federal hazardous waste cases in the Eighth Circuit states of Missouri, North Dakota, South Dakota, Minnesota, Nebraska and Arkansas.
Despite the hopes of many regulated entities that other courts would adopt the Eighth Circuit's approach, the impact of the Harmon ruling has been similar to the impact of the Y2K computer bug - lots of hype, but basically a dud. |
Courts are not buying Harmon arguments
In the months following Harmon, the ruling has become a prominent feature of discussion at environmental conferences, in environmental editorials (see Environmental Protection, March 2000, at 8), in legal commentaries (see Environmental Enforcement Becomes Federalism's Hazardous Battleground, 31 BNA Environment Reporter. 896, May 5, 2000), and in legal briefs filed in courts across the nation.
Despite the hopes of many regulated entities that other courts would adopt the Eighth Circuit's approach, the impact of the Harmon ruling has been similar to the impact of the Y2K computer bug - lots of hype, but basically a dud. Every federal court that has been asked to extend Harmon's rationale to other statutes has declined to do so. These courts uniformly have concluded that other federal environmental laws such as the Clean Water Act and Clean Air Act are worded sufficiently different from RCRA to make Harmon inapplicable (see U.S. v. LTV Steel Co., 118 F. Supp. 2d 827 (Sept. 20, 2000); U.S. v. City of Youngstown, 109 F. Supp. 2d 739 (June 28, 2000); Citizens Legal Environmental Action Network, Inc. v. Premium Standard Farms, Inc., 2000 U.S. Dist. LEXIS 1990 (Feb. 23, 2000)).
Power Engineering rejects Harmon
Only two courts since Harmon have decided these issues in a federal hazardous waste case, and both have forcefully rejected the Harmon court's analysis as incorrect. The leading case thus far is U.S. v. Power Engineering Co., No 97-B-1654. In an order issued on November 24, 2000, the U.S. District Court for the District of Colorado ruled that EPA has the authority to bring a RCRA enforcement action against companies like Power Engineering even if a state with an authorized hazardous waste program has taken an enforcement action against the same violator.
The only court since Harmon to decide these issues in a federal hazardous waste case has forcefully rejected the Harmon court's analysis as incorrect. |
At issue in the Power Engineering case was whether the company is required by RCRA to secure financial assurances to fund the closure and post-closure cleanup costs at its Denver, Colo. facility. The federalism issues arose because the state has an authorized hazardous waste program and had taken a RCRA enforcement action against the company, although not for the financial assurance violations that were the focus of EPA's action. Citing Harmon, the company argued that the federal government does not have the authority under RCRA to enforce federal laws where the state already has concluded an action, an uncommon practice that many people refer to as "overfiling."
The court in Power Engineering noted that EPA's action did not duplicate the state's actions, but it nevertheless ratified EPA's ability to overfile a state enforcement action. In ruling for EPA, Chief Judge Lewis T. Babcock rejected Power Engineering's reliance on the Harmon ruling, stating unambiguously that, "With all due respect, I conclude that the Harmon decision incorrectly interprets the RCRA." No hanging, dimpled, or pregnant chads here - the court in Power Engineering cast a clear vote against the Harmon court's flawed logic.
EPA argued that the court in Harmon disregarded the plain language of RCRA, which gives EPA broad authority to pursue RCRA enforcement actions in states with authorized programs. EPA also argued that Harmon misread RCRA's mandate when it concluded that authorized states act "in lieu of" the federal program and that any action by the state has the "same force and effect" as action by the EPA. The court in Harmon said that these two phrases are evidence that Congress intended an authorized state program to "supplant the federal hazardous waste program in all respects, including enforcement."
In sharply criticizing the Harmon interpretation of these phrases, Judge Babcock wrote, "I find no evidence that Congress intended such an outcome." The plain meaning of the "in lieu of" language is that authorized state regulations supplant the federally issued regulations, not that state enforcement supplants federal enforcement. In other words, the "in lieu of" language addresses what is enforced, not who enforces, according to Judge Babcock.
No hanging, dimpled, or pregnant chads here - the court in Power Engineering cast a clear vote against the Harmon court's flawed logic. |
Also, the judge's ruling concludes that the "same force and effect" language refers to permits, not enforcement, and merely ensures that regulated entities generally do not need both federal and state permits for the same activity. Without the "same force and effect" language, there may be doubt as to whether companies with state, but not federal, permits are operating lawfully.
Judge Babcock also adopted EPA's longstanding view that state enforcement action does not bar federal action under common law principles of res judicata (a Latin phrase meaning the matter is already decided) because EPA was not formally a party to the state lawsuit and did not exercise substantial control over the state's case. In Harmon, the court relied upon res judicata as a secondary justification for barring EPA's enforcement action, but the court in Power Engineering squarely repudiated that approach.
Harmon defenses fail to take off in criminal context
The only other RCRA case since Harmon to decide these federalism issues is a recent criminal case involving allegations of hazardous waste mishandling by employees of Rockwell International's Rocketdyne Division in Simi Valley, Calif. (U.S. v. Flanagan et al., No. ED CR 99-423-RT). On December 15, 2000, the federal district court in Riverside, Calif., denied the three Rocketdyne defendants' motion to dismiss the federal indictment under which they were charged. In the ruling, Judge Robert J. Timlin concluded that Harmon, a civil enforcement case, does not apply in part because the Rocketdyne matter is a criminal prosecution.
Judge Timlin also declined to follow Harmon based on his observation that, unlike Missouri in the Harmon case, California had not taken any enforcement action. In addition, consistent with the Power Engineering ruling, Judge Timlin adopted a narrow reading of RCRA's "in lieu of" language, implicitly repudiating Harmon and reaffirming the role of federal enforcement in authorized states. This triumph, less than one month after the Power Engineering ruling, launched the federal government comfortably into 2001 on a trajectory that is guided by solid legal support for a continued federal presence in the environmental enforcement sphere.
EPA defends state enforcement authority
While last year saw EPA strongly rebounding from the Harmon decision, the loser thus far, ironically, has been the cause of state enforcement. The only court in the nation to extend Harmon's flawed analysis to other cases has been a state court in Virginia. On January 5, 2000, a Virginia trial court dismissed the Commonwealth of Virginia's water enforcement claims against Smithfield Foods because the allegations were similar to federal claims that EPA already had prevailed on in the Fourth Circuit federal appeals court. The Virginia court relied on the Harmon ruling and concluded that the state claims were barred by principles of res judicata.
While last year saw EPA strongly rebounding from the Harmon decision, the loser thus far, ironically, has been the cause of state enforcement. |
Rather than cheer about this "reverse-Harmon" result or sit on the sideline and hope that the state court's ruling gets reversed on appeal, the federal government actively supported Virginia's efforts to restore its authority to independently enforce its water laws regardless whether EPA already concluded an enforcement action involving similar violations. On October 3, 2000, the U.S. Department of Justice (DOJ), on behalf of EPA, filed an amicus curiae (i.e., friend-of-the-court) brief in the Supreme Court of Virginia. The brief supports Virginia's appeal and asserts that states and the federal government are separate sovereigns each entitled to enforce their own laws. Citing U.S. Supreme Court case law that has been reaffirmed for the past 150 years, the DOJ brief noted that "Every citizen of the United States is also a citizen of a State or territory" and "may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either." A ruling by
the Supreme Court of Virginia is expected in 2001.
The future of state-federal enforcement relations
Although every post-Harmon court ruling has favored the federal enforcement role, this trend could change in short order. On the legal front, EPA's victory in the Power Engineering case likely will be tested in the Tenth Circuit federal appeals court in Denver. A loss for EPA in that court would shift the momentum dramatically, while a victory for EPA could create an inconsistency amongst the federal appeals courts and provide a potential opportunity for the U.S. Supreme Court to get involved.
In the political realm, the Republican presidential campaign strongly recommended a shift in power from the federal government to states. Although it would be imprudent to speculate about whether the campaign's federalism ideas will influence environmental enforcement policy nationally, it is worth noting that Texas was the only state in the nation to file a legal brief in the Harmon litigation supporting the company's arguments.
Five states representing nearly 60 million citizens supported EPA's arguments in Harmon, at least in part because all such states had long ago entered into Memoranda of Agreement (MOAs) with EPA acknowledging the federal government's unconstrained ability to enforce RCRA where the state's action is not timely or appropriate and EPA first notifies the state. Texas also entered into such an MOA, but it nevertheless urged the Eighth Circuit federal appeals court to affirm what it viewed as the "balanced, sensible judgment" of the lower court's ruling that had barred EPA from enforcing in Harmon. Texas got its wish, but the failure of Harmon thus far to be helpful in expanding states' rights (and indeed to harm such efforts, at least temporarily, in the Smithfield case) should temper the Harmon "victory" with a sense of wariness.
Even though federal enforcement authority has not been diminished since Harmon, EPA is neither gloating nor overreaching in asserting its federal role. As evidenced by the Agency's vigorous support for Virginia's enforcement authority in the Smithfield case, EPA has no interest in supplanting state authority. Its longstanding national policy is designed to give states the first opportunity to enforce under their authorized programs, and EPA usually works very cooperatively with states on enforcement matters. Despite widespread myths to the contrary, EPA overfiles only in extremely rare circumstances. In such cases, it does so when necessary to protect human health and the environment, to appropriately address a major repeat violator, and/or to recover a significant economic benefit. Federal action can be very helpful in deterring recalcitrant behavior, preserving a level economic playing field for law-abiding competitors, and protecting states that enforce the requirements of federal law from
being undercut by states that do not.
This approach generally has worked very well over many years and is familiar to states and the EPA. Recent court rulings like those in Power Engineering and Smithfield should help to convince proponents of a weakened federal or state role that the environment and public health are best served when the states and the federal government are able to work in concert, rather than to the exclusion of one another. Occasionally, there may be a certain amount of tension between the differing interests and capabilities of states and the federal government. There is no reason to believe, however, that our 225-year-old system of dual sovereignty will, or should, disappear anytime soon. So, rather than trying to disarm or weaken one sovereign, let us get on with the task at hand. Our nation's citizens demand clean air and clean water, and they do not care as much as the politicians about who gets credit for getting the job done.
This article appeared in the February 2001 issue of Environmental Protection, Vol. 12, No. 2, on page 14.
This article originally appeared in the 02/01/2001 issue of Environmental Protection.