Cooperative Federalism: A Central Concept of Environmental Law

Courtesy of Assistant Attorney General John Cruden for the Environment and Natural Resources Division

The Environment and Natural Resources Division (ENRD) actively promotes joint state-federal environmental enforcement, which underlies the whole nature of cooperative federalism, a concept central to the structure of our environmental laws.  By teaming up with state partners in both enforcement and defensive cases, we combine sovereigns, reduce costs and obtain more comprehensive results.  We also collaborate regularly with state officials on a wide variety of training opportunities.  What follows are but a few highlights of state-federal cooperation during the second quarter of 2016.

In late April, ENRD and the California Department of Toxic Substances Control announced that a group of 66 companies had agreed to clean up contaminated groundwater at the Omega Chemical Corporation Superfund Site in Whittier, California, which is across the street from a residential neighborhood and within one mile of several schools.  The site was a refrigerant and solvent recycling, reformulation and treatment facility that operated from about 1976 to 1991 and involved a number of parties.  The settlement requires the companies to spend an estimated $70 million to install wells and operate a groundwater treatment system that will clean up the underground water.  The defendants will also reimburse the Environmental Protection Agency and the California Department of Toxic Substances Control for their costs incurred in past cleanup actions at the site.  An additional 171 parties that have either sent waste to the site or operated in the area and contributed to the contamination also agreed to fund a portion of the work.  The drought in California has underscored the importance of protecting the groundwater resources by cleaning up the affected aquifer and this settlement will make excellent progress toward that goal, as well as put additional systems in place to monitor and evaluate the level of contamination, which will guide future work at the site.

On May 9, we partnered with the state of Minnesota to settle various claims arising from the Southern Minnesota Beet Sugar Cooperative’s violations of its wastewater discharge permit at its processing facility in Renville, Minnesota.  If approved by the court, the consent decree will require the defendant to pay a civil penalty of $1 million, to be split equally with the state, for its violations of the Clean Water Act.  It will also require the defendant to spend at least $5 million in additional actions addressing wastewater treatment plant performance and wastewater storage issues and pay nearly $50,000 in restitution to the state for the associated fish kill.

These cases help advance the ENRD priority of cooperative federalism in environmental enforcement, which is critical to fulfilling ENRD’s mission.  But our cooperation with states does not end with environmental enforcement; we also partnered with states in defensive cases during the most recent quarter.

For example, at the invitation of the state of Nevada, we participated as a party in a state court action challenging the Nevada State Engineer’s highly favorable decision to limit future groundwater withdrawals in the vicinity of Devil’s Hole National Monument and Ash Meadows National Wildlife Refuge.  The State Engineer’s decision was predicated, in part, on the need to protect federal reserved water rights in these areas.  The court ultimately upheld the State Engineer’s actions, which were supported by evidence presented by the National Park Service.

In another defensive case, ENRD partnered with the state of North Carolina to defend the jointly prepared environmental analysis of a proposed tollway near Charlotte, North Carolina, from a challenge under the National Environmental Policy Act (NEPA).  On June 9, the U.S. Court of Appeals for the Fourth Circuit affirmed the federal district court’s ruling that the agencies’ supplemental environmental analysis met NEPA’s requirements.  Counsel for the federal and state agencies prepared a joint brief in the appeal and shared time at oral argument. The Fourth Circuit issued a decision concluding that the district court’s reasoning was correct.

Finally, ENRD continues to develop and enhance relationships with our state counterparts by participating in several forums designed to share experiences and expertise.  For example, ENRD representatives gathered in May with state investigators and environmental enforcement attorneys from around the country at the annual meeting of the Regional Environmental Enforcement Associations.  In addition, key members of the division shared expertise at a meeting intended to foster cooperation between the U.S. Fish and Wildlife Service and state wildlife managers and taught wildlife criminal investigators representing seventeen states at a course presented by the Wildlife Investigators’ Covert Academy.

These opportunities further enhance our ability to achieve ENRD’s mission on behalf of the American people and I look forward to continuing partnerships with our state and local government counterparts.