In the United States, it has been necessary to establish specialised environmental trial attorneys and prosecutors, and specialised environmental administrative tribunals, to handle different types of violations of environmental laws. Both measures have contributed significantly to achieving results that are in accordance with law and fair (correct, proportionate, and consistent) in the most complex and serious environmental cases that are handled at the national level throughout a vast and diverse nation. For pollution control, the U.S. Environmental Protection Agency (USEPA) encourages and supports the 50 State Governments to adopt the same measures. Many States have done so within the parallel State court and administrative systems where most (many more than half of all) environmental violations are handled.
The U.S. national court system handles all criminal cases and those civil enforcement cases – generally the biggest and most complex – that are not handled administratively or by States. To assist the national judges, who are generalists considering every type of case, it has been necessary for the U.S. Government to develop specialised units of trial attorneys who are experts in environmental offenses, both criminal and civil. Located within the U.S. Department of Justice (DOJ), these environmental trial attorneys have proven highly effective. They receive cases investigated by EPA inspectors and police, and then assist national prosecutors located in district offices throughout the United States to present and prosecute the cases, which are often highly technical. These trials are before judges, and often are also before juries. The DOJ environmental attorneys travel as necessary to be present personally in court in most cases. When appeals are taken from decisions reached in trials, DOJ’s specialised environmental attorneys are involved at the higher, appellate levels in the judicial process where they argue.
Most (about 85 percent of all) violations of national pollution-control requirements in the United States are not handled in the national court system, but are resolved before administrative courts. In the U.S. experience, it has proven quick and efficient in most instances to avoid over-reliance on the crowded national courts, with have more elaborate procedures. Accordingly, USEPA has developed a core of Administrative Law Judges (ALJs), specialised experts in environmental law, who have proven highly effective. They handle most pollution-control offenses, including those that can be resolved by the assessment of administrative civil penalties (which can be very large), permit suspension or revocation, and some other forms of limited relief. Specialised USEPA attorneys present these often highly technical cases to such specialised judges in administrative trials throughout the country, and when necessary to an administrative Environmental Appeals Board (EAB). If the defendant contests the decision of the EAB, the defendant may appeal to a national court.
Administrative courts cannot impose criminal penalties or the full range of orders available to a judge in the national court system. When USEPA enforcement authorities determine that administrative courts are — or are likely to be — inappropriate or ineffective, the case is referred to DOJ’s environmental trial attorneys for resolution in the national court system.
Other U.S. agencies that enforce natural resource laws have their own administrative processes and administrative law judges.
For more information on DOJ’s environmental attorneys, see http://www.usdoj.gov/enrd/. For more information on USEPA’s administrative law judges and environmental appeals board, see http://www.epa.gov/oalj/ and http://www.epa.gov/eab/, respectively. See also the case study on “Vertical Designation of Enforcement Responsibilities for Enforcing Pollution-Control Laws in the United States” following Guideline 41(a)
(i).