The Trump administration ushered in a strong political wind with focused attempts to roll back environmental regulations from the Obama administration, including several regulations impacting segments of the oil, gas and coal industries. To date, the Trump administration has taken steps to review or revise regulations such as the Clean Power Plan, the Clean Water Rule and methane rules for the oil and gas industry. It also forecasts plans to reduce funding for enforcement actions and restructuring Environmental Protection Agency (EPA) regional offices.
As a result, the industry might be tempted to relax or postpone environmental compliance activities, especially those that might be new or expensive.
Succumbing to this temptation is risky and could prove more costly in the long run.
One potential risk is an increased frequency of citizen suits. Many major federal environmental statutes contain provisions allowing private citizens or groups to sue alleged violators of those statutes. Citizen suits typically increase in periods of decreased government enforcement, and the current political climate, combined with increased funding for environmental advocacy organizations, creates the perfect storm for a higher than usual citizen suit effort.
Here are a few thoughts about citizen suits as we approach the end of the Trump administration’s first year.
Lawsuits Beget Lawsuits
First, citizen suits can result in judgments or settlements, and success on either front creates roadmaps for new citizen suits elsewhere. The “sue and settle” lawsuits against the Obama administration, while not a new strategy, proved highly successful because the administration was seen as a willing participant in the litigation. These suits resulted in consent decrees that altered the scope of rulemaking procedures otherwise required under the Administrative Procedure Act (APA) and judicially achieved regulatory objectives that would have proved difficult to achieve administratively.
Ease of Access to Information
Second, citizen scientists now have access to a variety of tools to investigate and identify instances when a violation may have occurred. Such tools include infrared cameras to capture potential air emission violations, handheld air monitoring equipment, water sampling kits and drones equipped with high-resolution cameras.
Even the data industry submits to environmental agencies is more accessible. The EPA and several state agencies publish compliance data for public review on their webpages. See, for example, the EPA’s Enforcement and Compliance History Online (ECHO) database at echo.epa.gov. The EPA’s Next Generation Compliance initiative changes the way the industry provides compliance reporting, making electronic reporting the rule and paper submissions the exception (See “Next Generation Compliance at epa.gov).
Post-NOI Strategy
Third, citizen suit statutes require notice to any defendant prior to filing the suit. Depending on the statute involved, the Notice of Intent to Suit, or the NOI letter, must be delivered a minimum of 60 or 90 days before filing the lawsuit. Once a company receives an NOI, it should contact an environmental attorney to discuss strategy. Strategic items to consider are: can the alleged violation be easily remedied; should the company inquire about entering into a consent decree with a regulatory agency; or, should the company engage the noticing party to explore alternatives to litigation.
‘Diligent Prosecution’
Fourth, maintaining environmental compliance programs and a relationship with state and federal agencies positions a company for a strong defense in a citizen suit. One viable defense to citizen suits is “diligent prosecution” by the responsible agency. If adequately shown, the court can dismiss the case altogether. One example is the 2007 suit, Karr v. Hefner. There, the EPA filed its enforcement action moments before the citizens filed an amended citizen suit. The appellate court upheld dismissal because of the EPA’s diligent prosecution.
Never Ignore a NOI
The bottom line is, should your company find itself the recipient of an NOI letter, the decision to ignore it is always wrong.
Despite the apparent roll back of hefty regulatory programs from the Obama administration, the fossil fuel industry should nevertheless maintain compliance programs, stay current on permit renewals and stay informed about actual regulatory revisions. The political winds will surely shift and blow in different directions as subsequent administrations revise regulatory and enforcement priorities to their liking. Staying current with corporate compliance programs will position a company to be able to nimbly adapt to changing regulations and respond to citizen suits.
The foregoing should not be understood as, or considered a substitute for, legal advice. For specific inquiries, please contact Sullenger, or another licensed attorney.