Changing the Nature of Federal Enforcement of Environmental Laws

Charles Openchowski

Editors' Summary: When the federal government filed a Clean Water Act enforcement action in 1981 against a real estate developer for unauthorized filling activities on Chincoteague Island, Virginia, the government could not have realized that it had set in motion litigation that would change how federal environmental laws are enforced. Five years later, however, the developer's claim that he was entitled to a jury trial eventually reached the Supreme Court. In Tull v. United States, the Court ruled that the Seventh Amendment guarantees a jury trial in Clean Water Act enforcement actions for civil penalties. This Article examines the case and its implications for federal enforcement of environmental laws. The author explores the expanded role that administrative penalties will likely play after Tull and the potential of alternative dispute resolution techniques to resolve environmental controversies.

Mr. Openchowski is an attorney in the Office of General Counsel, United States Environmental Protection Agency. The views expressed in this Article are those of the author and do not necessarily represent the views of any federal agency.

[17 ELR 10304]

In enacting legislation to carry out an ambitious environmental agenda, Congress has provided for a wide array of enforcement mechanisms. The Clean Water Act is no exception to this pattern, allowing the government to address statutory violations by seeking equitable relief, civil penalties, and criminal remedies.¹ Complaints filed in government enforcement actions have frequently requested both equitable relief and civil penalties.

The Supreme Court has now changed the established equation for such environmental enforcement efforts. In a recent decision, Tull v. United States,² the Court held that the Seventh Amendment requires a jury trial in cases where the government seeks a civil penalty under the Clean Water Act. The decision has potentially wide-ranging implications for the nature and direction of future enforcement efforts, particularly when read in conjunction with recent amendments to certain environmental statutes.

After an examination of the Tull case, this Article will explore the emphasis likely to be placed on administrative penalty provisions in the future, and the potential applicability of alternative dispute resolution techniques to environmental controversies.

The History of Tull

The Tull case arose from numerous violations of § 404 of the Clean Water Act and § 10 of the Rivers and Harbors Act of 1899.³ Under the Clean Water Act, it is unlawful to discharge dredged or fill material into waters of the United States without first obtaining a Corps of Engineers permit.⁴ Section 10 of the 1899 Rivers and Harbors Act prohibits unpermitted activities obstructing or modifying the course, condition, or capacity of navigable waters.⁵

Between 1975 and 1981, Tull was responsible for numerous unauthorized filling activities involving over one million square feet of land in and around Chincoteague, Virginia.⁶ Three wetland areas (Ocean Breeze mobile home sites, Mire Pond Properties, and Eel Creek) were filled in connection with residential development, primarily in the form of mobile home lots.⁷ In addition, Tull partially filled in a navigable channel (Fowling Gut Extended), built [17 ELR 10305] by the United States in 1963 to facilitate and encourage local boat traffic.⁸

In response to Tull's illegal activities, the Corps issued an administrative cease and desist order, which went unheeded.⁹ In 1981, the government filed an enforcement action under § 309 of the Clean Water Act to address these statutory violations.¹⁰ The complaint sought injunctive relief under both statutes, as well as civil penalties under the Clean Water Act.¹¹

At trial, Tull did not contest the fact that he had filled in the wetlands without a permit.¹² However, he claimed that the areas he worked in were not within the regulatory jurisdiction of the Corps.¹³ Tull raised several affirmative defenses, and also requested a jury trial.¹⁴

Adopting the approach taken by other federal district courts in previous Clean Water Act enforcement cases, the judge denied Tull's request for a jury trial.¹⁵ During the 15-day trial that followed, the government presented a large volume of evidence, including testimony from 12 expert witnesses, to substantiate its claim that the areas filled by Tull were wetlands subject to regulatory jurisdiction.¹⁶ The district court found that the government's scientific data concerning soils, vegetation, and hydrology clearly established that the sites at issue were covered by the Corps regulatory definition.¹⁷ Furthermore, the court rejected Tull's arguments that the Corps' actions amounted to a regulatory taking,¹⁸ that the Corps' regulations were unconstitutionally vague,¹⁹ and that the government should be equitably estopped from pursuing its enforcement action.²⁰

Finding that "[i]t would be inequitable for this Court to allow the defendant to benefit from the commission of an unlawful act," the judge ordered partial restoration and imposed civil penalties amounting to $75,000 for the unauthorized filling at the three wetland sites (Ocean Breeze, Mire Pond, and Eel Creek).²¹ With respect to the filling of Fowling Gut Extended, the Court determined:

Equity dictates that the defendant either pay a stiff civil penalty or make appropriate restoration for permanently depriving the United States government and its people of a navigable waterway capable of supporting both commercial navigation and pleasure boating.²²

Recognizing that most of the lots at this site had been sold to third parties, the district court gave Tull the option of paying a $250,000 penalty instead of incurring the estimated $700,000 cost of repurchasing the lots and restoring the site.²³

Tull appealed to the Fourth Circuit Court of Appeals. A divided panel upheld the district court decision in all respects.²⁴ In what was to become the most significant portion of the opinion, the majority rejected Tull's argument that the Seventh Amendment of the Constitution entitled him to a jury trial.²⁵ In so doing, the court disagreed with a Second Circuit decision that an action brought by the United States to collect a statutory penalty for violations of the Federal Trade Commission Act invoked the right to a jury trial.²⁶

The Fourth Circuit determined that the district court had fashioned a "package" of civil penalties and equitable relief designed to achieve "several goals, including environmental preservation and fairness to third party property buyers as well as deterrence."²⁷ Finding that the imposition of civil penalties in Tull "intertwine[d] with the imposition of traditional equitable relief,"²⁸ the Fourth Circuit relied on Supreme Court decisions which held that the Seventh Amendment did not apply where "recovery of money damages is an incident to [nonlegal] relief even though damages might have been recovered in an action at law."²⁹ Furthermore, the Fourth Circuit noted that "[t]he Supreme Court has not gone 'so far as to say that any award of monetary relief must necessarily be legal [as opposed to equitable] relief' for purposes of determining the right to a jury trial."³⁰

The dissent, however, pointed out that the Supreme Court had previously ruled that government enforcement actions may require a jury trial where "the statute creates legal rights and remedies" enforceable in an action for damages in the ordinary courts of law.³¹ The judge characterized the civil penalty imposed on Tull as a remedy "typically found in a court of law" which served to deprive him of money for a "breach of civil law."³² Since the government sought a legal remedy that was distinct from the [17 ELR 10306] equitable relief also requested, the dissent concluded that a jury trial was in order.³³ Armed with a strong dissent, Tull appealed once more.

The Supreme Court Decision in Tull

The United States Supreme Court granted Tull's petition for certiorari in order to resolve the conflict between circuits regarding the correct interpretation of the Seventh Amendment.³⁴ On April 28, 1987, the Court reversed the Fourth Circuit on this issue, and remanded the case.³⁵

As with its earlier decisions construing the Seventh Amendment, the Supreme Court analyzed a contemporary statutory provision in the context of a constitutional framework established two hundred years ago. The key to this inquiry centered on determining whether enforcement actions seeking civil penalties under the Clean Water Act fall within the ambit of "Suits at common law, where the value in controversy shall exceed twenty dollars."³⁶

The Court discussed the nature of the enforcement action, as well as the remedy sought by the government. Under the first portion of its analysis, it examined eighteenth-century comparisons presented by Tull and the government and concluded that "both the public nuisance action and the action in debt are appropriate analogies to the instant action."³⁷ Thus, the type of relief involved in this instance became the deciding factor.

Interpreting legislative history of the Clean Water Act, the Court focused on the fact that civil penalties under that statute were designed to punish and deter violators. While disgorgement of profits and other equitable principles were to be part of the formula district court judges followed for determining the appropriate amount of the penalty, retribution was the primary concern.³⁸ As the Court noted on two occasions in its opinion, that retribution in this case could amount to nearly $23 million in civil penalties.³⁹

As a result, the Court concluded that since "the nature of the relief authorized by subsection 1319(d) was traditionally available only in a court of law, the petitioner in this present action is entitled to a jury trial on demand."⁴⁰ The majority opinion, however, only provided for a jury trial on the substantive issue of whether Tull's actions constituted violations of the Clean Water Act. Over the dissent of two Justices, the Court held that the Seventh Amendment does not require a jury trial with regard to the actual assessment of the civil penalty.⁴¹ Thus, despite the concerns raised by Tull that the amount of monetary relief at stake requires the protection of a jury rather than a single judge, the Tull ruling keeps the responsibility for determining the proper amount of the penalty within the discretionary power of trial judges.⁴²

Environmental Enforcement After Tull

The Supreme Court decision in Tull is significant in a number of ways. First, by directly addressing issues previously discussed as dictum in earlier decisions, it serves to clarify ambiguities concerning the extent to which the Seventh Amendment applies to federal statutes containing provisions for civil penalties.⁴³ Second, it continues an established trend by the Court to expand the scope of actions covered by the protections contained in the Seventh Amendment.⁴⁴ Finally, the interpretation of the Seventh Amendment in the context of the Clean Water Act not only has direct ramifications on government efforts to secure compliance with that law, but may also affect enforcement actions under a number of other environmental protection statutes.

During the 1970s, Congress began enacting a great deal of environmental protection legislation. Like the Clean Water Act, many of these laws provide for civil penalties as a form of relief the government can pursue for statutory violations. A representative list includes the Comprehensive Environmental Response, Compensation, and Liability Act (better known as Superfund),⁴⁵ the Resource Conservation and Recovery Act (RCRA),⁴⁶ the Clean Air Act,⁴⁷ the Toxic Substances Control Act,⁴⁸ and the Endangered Species Act.⁴⁹

The Supreme Court's decision in Tull appears to mandate jury trials for enforcement actions seeking civil penalties under these statutes. This development could represent a major change in the way enforcement efforts are pursued and resolved. To begin with, violators may end up paying more for statutory infringements. It can be expected that the government will more vigorously pursue purely equitable relief in the form of restoration orders and injunctions, since this avenue avoids the litigation burdens associated with jury trials. Ironically, in the Tull case, the district court recognized that intervening transfer of title to innocent third parties had made full restoration of Fowling Gut Extended an extremely expensive proposition, and gave the defendant the option to pay a civil penalty totaling less than half the projected cost of restoration. [17 ELR 10307] That option may no longer be available, ultimately leaving some violators with more expensive cleanup bills.

Secondly, the government will no doubt think twice before pursuing civil penalties in many situations.⁵⁰ Rather than routinely adding a request for such relief in complaints filed to address violations, the Department of Justice and local United States Attorneys will have to weigh the odds that a jury trial will be requested and consider the increased expense incurred by one. The significantly greater preparation time and cost may discourage the pursuit of civil penalties in more marginal enforcement actions; it also may lead to no enforcement action being taken at all where an injunction is ineffective or restoration is inappropriate.⁵¹ In addition, the government may decide against seeking a civil penalty in some cases, since proceeding with a jury trial most likely will make a timely response to environmental violations more difficult to achieve. Another deterrent may be the possibility of juries providing more erratic results and undesirable precedents in cases seeking compliance with federal environmental laws. The government's litigation strategy undoubtedly will take into consideration the fact that trying cases before a jury, instead of having a judge review an agency administrative record under Administrative Procedure Act standards, tends to be a more subjective process where nonlegal factors and influence can produce surprising verdicts.

Thirdly, the Tull decision may give state enforcement a more important role to play. A major premise built into many federal environmental protection laws is that states should assume primary responsibility for achieving many of the goals and policies established by Congress. State implementation plans under the Clean Air Act, as well as state water quality standards and permitting responsibilities under the Clean Water Act, are just two examples of this framework for joint federal and state roles. A large number of states have implemented legislation and programs to carry out their responsibilities under these statutes.

The Supreme Court has held that even though the Fourteenth Amendment subjects state laws to federal equal protection and due process requirements, the right to a jury trial under the Seventh Amendment does not apply to state court proceedings.⁵² Thus, depending on individual state constitutions and laws, a jury trial may or may not be required in cases where the state seeks civil penalties for violations of environmental laws passed to implement or augment federal legislation. Despite the diversity of state laws and the fact that not every state has joined the federal-state partnership in this arena, state enforcement actions seeking civil penalties may increasingly supplement federal enforcement efforts in the future.

Finally, and perhaps most significantly, the Supreme Court's ruling in Tull may shift the emphasis for assessment of civil penalties away from the courts and into administrative proceedings. In this vein, the Tull opinion must be read in the context of an earlier Supreme Court decision, and in light of recent amendments to several federal environmental protection statutes.

The Administrative Penalty Option

In Atlas Roofing Co. v. Occupational Safety and Health Review Commission,⁵³ the Supreme Court construed remedial provisions contained in the Occupational Safety and Health Act of 1970. The remedies Congress created in that legislation included civil penalties that could be imposed on employers maintaining unsafe working conditions. The statute established a framework for obtaining fines of up to $10,000, the amount to be determined through extensive administrative agency proceedings within the Department of Labor.⁵⁴ These proceedings included an evidentiary hearing before an administrative law judge and the possibility of appeal before the full Occupational Safety and Health Review Commission.⁵⁵ The assessment or nonpayment of a fine could be reviewed by the courts.⁵⁶ Significantly, though, once the government filed an action to collect unpaid fines, "neither the fact of the violation nor the propriety of the penalty assessed may be retried."⁵⁷

In Atlas, the Department of Labor had assessed fines for violations of mandatory safety standards.⁵⁸ After exhausting their administrative appeals, the petitioners filed suit challenging the constitutionality of the Act. They argued that the creation of a new cause of action, under which a federal agency could impose civil penalties through administrative proceedings without a jury trial, violated the Seventh Amendment. The Supreme Court, in a unanimous decision, upheld the constitutionality of the statute and its underlying statutory scheme.⁵⁹

To reach its decision, the Court reviewed a number of its earlier Seventh Amendment cases. In particular, it drew on NLRB v. Jones & Laughlin Steel Corp.,⁶⁰ a case brought under the National Labor Relations Act. There, the Court had found no Seventh Amendment right to a jury trial when Congress turned over the factfinding function to an administrative tribunal in investigating unfair labor practices and ordering reinstatement and payment of lost wages. Extending the rationale presented in Jones & Laughlin, that the Seventh Amendment did not establish juries as the exclusive factfinding mechanism in civil cases, the Court in Atlas came to the following conclusion:

In sum, the cases discussed above stand clearly for the proposition that when Congress creates new statutory "public rights," it may assign their adjudication to an administrative agency with which a jury trial would be incompatible, without violating the Seventh Amendment's injunction that jury trial is to be "preserved" in "suits at common law." Congress is not required by the Seventh Amendment to choke the already crowded federal courts with new types of litigation or prevented from committing some new types of litigation to administrative agencies with special competence in the relevant field. This is the case even if the Seventh Amendment would have required a jury where the [17 ELR 10308] adjudication of those rights is assigned to a federal court of law instead of an administrative agency.⁶¹

The Supreme Court was clearly leaving the door open for an expanded role to be played directly by administrative agencies in government enforcement actions. The decision in Tull now makes the task of realizing the potential of Atlas a more immediate concern. As it turns out, Congress has already been at work.

Two major environmental protection statutes reauthorized during the past year, the Clean Water Act and the Safe Drinking Water Act, reflect the positions taken by the Supreme Court in Tull and Atlas. The most direct connection was made by Congress in amending § 309 of the Clean Water Act.⁶² Expanding and strengthening the statutory enforcement mechanism, § 314 of the Water Quality Act of 1987 added an extensive subparagraph outlining new administrative penalties.

The new provision mirrors a similar one contained in the Superfund Amendments and Reauthorization Act of 1986 (SARA).⁶³ Both statutes now establish a two-tiered system (Class I and Class II) for addressing violations by civil penalties assessed through administrative proceedings.⁶⁴ Notice and opportunity for a hearing are required in either case to comply with due process concerns; more serious violations potentially leading to larger fines (Class II) are to be conducted according to the formal adjudicatory procedures contained in the Administrative Procedure Act.⁶⁵ Existing Environmental Protection Agency regulations governing assessment of civil penalties under other environmental statutes already set out procedures for such adjudicatory proceedings, and with relatively minor modifications can be adapted to these new Class II violations.⁶⁶ With regard to procedures for Class I violations, however, new regulations will be necessary. The challenge facing Class I procedures will be how to strike the proper balance between more streamlined, informal procedures than those mandated for Class II violations, and the need to comply with due process guarantees.⁶⁷

Despite similarities in the administrative penalty provisions, however, the Water Quality Act and SARA differ in one major respect that is crucial in the context of Tull and Atlas. SARA provides that the government may file an action in federal district court to collect an unpaid civil penalty assessed by EPA. In such an action, "the court shall have authority to review the violation and the assessment of the civil penalty on the record."⁶⁸ The Water Quality Act, on the other hand, provides that in a collection action filed by the government, "the validity, amount, and appropriateness of such penalty shall not be subject to review."⁶⁹

The language in the Water Quality Act clearly is designed to conform with the guidelines set forth in the Atlas case. It confers to the administrative agency the responsibility for investigating and determining the underlying facts of a violation, to ensure that a civil penalty is a valid and correct enforcement measure under the circumstances. Having expressly given the factfinding function to the administrative agency, Congress made a conscious decision to eliminate the Seventh Amendment jury trial right in these situations.

Congress also included similar language in amending the Safe Drinking Water Act last year.⁷⁰ There, following nonpayment of a civil penalty of up to $25,000 per day assessed by EPA for a violation of a regulation, schedule, or other requirement concerning a public water system, the government may initiate an action to collect the fine. However, "the validity and appropriateness of the final order imposing the civil penalty shall not be subject to review."⁷¹

At this point, given the new provisions of the Water Quality Act and the Safe Drinking Water Act amendments, it is not clear whether the language in SARA pertaining to the scope of judicial review is sufficiently forceful to satisfy the standards of Atlas. A number of other environmental statutes limiting review of civil penalty assessments to the administrative record fall into the same category, such as the Endangered Species Act.⁷²

Others, such as RCRA, are silent on the subject.⁷³ One statute that falls into the latter category, the Clean Air Act, comes up for congressional review this year. With the Tull decision in place, Congress will have to decide if it wants to continue the trend established by the Water Quality Act and the Safe Drinking Water Act amendments.

In the wake of the Supreme Court's decision in Tull, and in light of congressional encouragement, one can expect to see increased emphasis placed on administrative penalty procedures in government enforcement efforts. For many cases, these procedures will be dispositive of statutory violations. For others, they will add an extra layer in the process of obtaining compliance. At a minimum, that layer should increase the accountability of agencies by generating more extensive administrative records. In addition, under certain statutes like the Clean Water Act, it may streamline judicial review later in the process.

[17 ELR 10309]

The Alternative Dispute Resolution Option

Even with greater numbers of environmental violations subject to direct administrative agency enforcement procedures, some cases will remain more susceptible to resolution through litigation. For instance, the government may wish to file suit in situations where restoration or other equitable relief is appropriate, either independently or in conjunction with penalties assessed through the administrative penalty procedure.⁷⁴ In other cases where more expeditious resolution is needed or where no administrative penalty procedure is provided for, the government may still decide to file suit seeking civil penalties, even though this course of action could entail a jury trial. In any event, litigation will continue to be utilized as an important tool in the government's enforcement arsenal.

For this reason, the possibilities of using alternative dispute resolution (ADR) techniques should be seriously explored as environmental litigation becomes increasingly complex and costly, and as enforcement options multiply. Briefly, ADR represents an alternative approach to expensive and time-consuming litigation, focusing on finding common ground for parties with different interests and goals.⁷⁵ Because environmental controversies are frequently characterized by numerous, diverse points of view, ADR is ideally suited to provide a framework for addressing many violations of environmental laws. It emphasizes the positive aspects of reaching a mutually acceptable compromise, rather than settling differences in an adverserial manner. In so doing, ADR facilitates satisfactory allocation of scarce environmental resources before conflicting demands mature into unauthorized activities necessitating enforcement actions.

Alternate dispute resolution is an umbrella phrase that encompasses a continuum of techniques. The four most distinguishable groups within this continuum are collaborative problem solving/conciliation, formal negotiation, mediation, and arbitration. Collaborative problem solving and negotiation are generally more anticipatory in nature, in that they attempt to prevent conflicts. They are effective in situations involving numerous parties and issues, where a dialogue can be established early enough in the decisionmaking process to create alternatives addressing the parties' concerns. The key to this approach is to initiate a dialogue before positions harden and clashes become inevitable.

Mediation and arbitration are closer to traditional advocacy methods, and often closely resemble judicial procedures. They usually come into play after conflicts have arisen, and sometimes are utilized even after a case has been initiated in court. These two ADR methods tend to be most effective in situations involving a small number of disputants with clearly defined issues.

Many environmental conflicts arise from disagreements over values. Litigation generally focuses on the factual or procedural elements of a problem, using fairly rigid, formal procedures. While litigation may deal with the effects of a problem, it does not necessarily address the real causes and underlying conflicts in values. The keys to ADR's success are its flexibility and its focus on dealing directly with conflicting values through "interest based bargaining."

Interest based bargaining is premised on the fact that each party has multiple values and interests that can be composed of substantive, procedural, and psychological elements. These interests can be combined in a variety of ways, any of which may provide satisfactory solutions. Satisfying the interests of all involved parties can maximize the gains for all, so that the process can expand alternatives by developing different and better combinations of interests during the process. In essence, interest based bargaining seeks to create "win-win" solutions, based on the assumption that parties to a dispute can find a solution that adequately serves each other's needs and values. In this way, ADR theoretically unlocks the creative potential of conflict resolution.

To date, references to ADR in federal agency regulations have been scant.⁷⁶ The Department of Justice has endorsed the concept of ADR "to reduce the number of cases that must endure the expense of trial."⁷⁷ The National Oceanic and Atmospheric Administration has indicated its support of ADR in resolving differences concerning federal consistency requirements under the Coastal Zone Management Act.⁷⁸ In addition, the Administrative Conference of the United States Agency has mentioned ADR in the context of negotiating hazardous waste cleanups under Superfund, where typically there are a number of parties with diverse interests.⁷⁹

In this regard, Congress has provided specific encouragement by adding a new section in CERCLA dealing with federal government settlements for Superfund response actions.⁸⁰ The purpose of the section, enacted last year as part of SARA, is to facilitate agreements that will "expedite effective remedial actions and minimize litigation."⁸¹ The new provision lays out a detailed mechanism for obtaining extensive participation by members of the public with an interest at stake, as well as potentially responsible parties who may have contributed to the situation requiring a cleanup action. Such settlements, which are clearly [17 ELR 10310] designed to provide an alternative to contemplated enforcement actions, envision widespread involvement by interested parties and negotiation principles characteristic of ADR. If successfully utilized by all parties, this new section should effectively reduce costly and time-consuming litigation of Superfund issues, while promoting the public interest in securing timely, thorough cleanups of dangerously contaminated waste sites.

No single ADR technique can possibly solve all problems relating to securing compliance with environmental statutes, or alleviate the necessity of obtaining judicial review for the more difficult issues. Based on prior experience in environmental and other areas of law, however, ADR can reduce the number of cases that needlessly take the route of litigation. As a direct consequence, it is also more likely that the cases that do end up in litigation are in fact the ones that should be there in the first place. This potential should accelerate the development of a more prominent role for ADR in the environmental field.

Conclusion

Because some federal environmental laws are more enforcement intensive than others, the Supreme Court ruling in Tull will have an uneven impact on government efforts taken in response to statutory violations. Certainly, the possibility of jury trials for civil penalty cases will be a major factor in selecting and pursuing appropriate remedies. To some extent, however, actions placing a greater emphasis on administrative agency proceedings have altered the enforcement scheme for some statutes in a manner that should compensate for any such impact.

The decision in Tull should provide a stronger impetus to expand the greater administrative role provided in the Water Quality Act into other environmental laws. At the same time, ADR and other innovative approaches designed to secure compliance with environmental protection measures will become even more critical in an era of increasing enforcement costs and fewer resources.

1. See Clean Water Act § 309, 33 U.S.C. § 1319.

2. Tull v. United States, 481 U.S. __, 17 ELR 20667 (1987).

3. Id. at 1.

4. Clean Water Act §§ 401, 404, 33 U.S.C. §§ 1311, 1344.

5. 33 U.S.C. § 403. Both the Clean Water Act and the 1899 Rivers and Harbors Act refer to "navigable waters" in delineating regulatory jurisdiction. Under the Rivers and Harbors Act, the term is more limited in scope, comprised of those waters that are subject to tidal influence or use in interstate commerce. See 33 C.F.R. § 329. The Clean Water Act, however, defines "navigable waters" as "waters of the United States, including the territorial seas." Clean Water Act § 502(7), 33 U.S.C. § 1362(7). The courts have construed this definition expansively, based on Congress' expressed intent to extend jurisdiction under the Act to the furthest reaches of the Commerce Clause. See United States v. Riverside Bayview Homes, 474 U.S. __, 106 S. Ct. 455, 16 ELR 20086 (1985); International Paper Company v. Ouellette, 481 U.S. __, 107 S. Ct. 805, 808, 17 ELR 20327, 20330 (1987) ("… the Act applies to virtually all surface water in the country.").

6. Tull, supra note 2, 17 ELR at 20668. The government also filed other enforcement actions to address similar statutory violations by Tull. See United States v. Tull, 615 F. Supp. 610, 625 (E.D. Va. 1983).

7. Tull, 615 F. Supp. at 613-20.

8. Id. at 621. The district court noted that the landowners, predecessors in title to Tull, were fully compensated by the United States when this project was constructed.

9. Id. at 615.

10. Id. at 612.

11. Id. at 626. While Clean Water Act § 309 provides for both equitable remedies and civil penalties, the Rivers and Harbors Act has no provision for civil penalties. See 33 U.S.C. § 411.

12. United States v. Tull, 769 F.2d 182, 184, 15 ELR 21061 (4th Cir. 1985).

13. Id.

14. Id. 769 F.2d at 185-87, 15 ELR 21063-64.

15. See United States v. Atlantic Richfield Co., 429 F. Supp. 830, 7 ELR 20635 (E.D. Pa. 1977); United States v. Lambert, 13 ELR 20489 (M.D. Fla. Mar. 28, 1983).

16. The court also took the unusual step of appointing its own expert to assist in reviewing the Corps jurisdictional determination. Tull, supra note 12, 769 F.2d at 184, 15 ELR at 21062.

17. Tull, supra note 6, at 618-20. The three-parameter approach considered by the Corps in making its jurisdictional determination (i.e., hydrology, vegetation, and soils) originates in the Corps definition of wetlands, found at 33 C.F.R. § 323.2(a)(2).

18. Tull, supra note 6, at 623. The court determined that this claim was premature, since Tull had never applied for, and been refused, a Corps permit for the activities at issue in this case. It is interesting to note that on the day the district court decision in Tull was entered, the same judge issued a ruling in 1902 Atlantic Limited v. Hudson, 574 F. Supp. 1381, 14 ELR 20023 (E.D. Va. 1983), in which he held that the Corps denial of the plaintiff's permit application under § 404 of the Clean Water Act for filling in connection with development of an industrial park amounted to a taking of property without just compensation. The government did not appeal the propriety of this holding, which appears to ignore the Tucker Act provision vesting exclusive jurisdiction for taking claims exceeding $10,000 in the U.S. Claims Court. See 28 U.S.C. § 1491.

19. Tull, supra note 6, at 624.

20. Id. at 625.

21. Id. at 626.

22. Id. at 627.

23. Tull, supra note 2, 17 ELR at 20668.

24. Tull, supra note 12.

25. Id. 769 F.2d at 186, 15 ELR at 21063.

26. See United States v. J.B. Williams Co., 498 F.2d 414 (2d Cir. 1974).

27. Tull, supra note 12, 769 F.2d at 187, 15 ELR at 21064.

28. Id.

29. Id., citing the Supreme Court Opinion in Atlas Roofing Co. v. Occupational Safety and Health Review Commission, 430 U.S. 442 (1977).

30. Tull, supra note 12, 769 F.2d at 187, 15 ELR at 21064, citing the Supreme Court Opinion in Curtis v. Loether, 415 U.S. 189 (1974).

31. Tull, supra note 12, 769 F.2d at 192, 15 ELR at 21066, citing the Supreme Court Opinion in Curtis v. Loether, supra note 30.

32. Tull, supra note 12, 769 F.2d at 193, 15 ELR at 21067.

33. Id. 769 F.2d at 194, 15 ELR at 21067.

34. Tull v. United States, 106 S. Ct. 2244 (1986).

35. Tull, supra note 2. The Supreme Court also granted the petition for certiorari in M.C.C. of Florida, Inc. v. United States, 772 F.2d 1501, 15 ELR 21091 (11th Cir. 1985), a case where the Eleventh Circuit Court of Appeals also denied the petitioner's request for a jury trial in the context of a Clean Water Act enforcement action. On May 4, 1987, the Supreme Court vacated the judgment in that case and remanded it to the Court of Appeals for decision in light of the Tull Opinion. 55 U.S.L.W. 3745 (May 4, 1987).

36. The Seventh Amendment provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of common law."

37. Tull, supra note 2, 17 ELR at 20669.

38. Id. at 20670.

39. Id. at 20668 and 20669. That figure is based on the maximum amount of $10,000 per day per violation provided under § 309 of the Act. As a practical matter, however, the government does not receive the maximum civil penalty available under the Act, even though it usually requests the full amount when filing an enforcement action. In fact, at the time the district court issued its decision in Tull, the civil penalties assessed in that case were among the highest ever awarded in a Clean Water Act enforcement action.

40. Id. at 20670.

41. Id. at 20671. In this regard, the Court noted that the legislative history of the Clean Water Act showed that trial judges were "to perform the highly discretionary calculations necessary to award civil penalties after liability is found."

42. Id. See also Reply Brief for Petitioner at pages 6-7.

43. Tull, supra note 2, 17 ELR at 20668.

44. See, e.g., Curtis v. Loether, supra note 30; Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959); Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962).

45. 42 U.S.C. §§ 9601-9657, ELR STAT. 44001.

46. 42 U.S.C. §§ 6901-6991i, ELR STAT RCRA 001.

47. 42 U.S.C. §§ 7401-7642, ELR STAT. 42201.

48. 15 U.S.C. §§ 2601-2654, ELR STAT. 41335.

49. 16 U.S.C. §§ 1531-1543, ELR STAT. 41825.

50. It should be noted that the Supreme Court appears to have left the door open for the government to seek monetary damages and restitution "as an adjunct to injunctive relief" without incurring the jury trial requirement, as long as civil penalties are not specifically requested. See Tull, supra note 2, 17 ELR at 20671.

51. Courts may scrutinize proposed equitable relief to ensure that it is cost effective, achievable, and fair. See discussion in M.C.C. of Florida, supra note 35, 772 F.2d at 1507, 15 ELR at 21093.

52. Minneapolis & St. L. R.R. v. Bombolis, 241 U.S. 211 (1916). The Supreme Court recently declined to review this issue in O'Connor v. Nevada, 507 F. Supp. 546, aff'd, 686 F.2d 749, cert. denied, 459 U.S. 1071 (1982).

53. Atlas, supra note 29.

54. Id. at 446.

55. Id. at 446-47.

56. Id. at 447.

57. Id.

58. Id.

59. The ruling was 8-0; Justice Blackmun did not take part in the decision.

60. 301 U.S. 1 (1936).

61. Atlas, supra note 29, at 455. The Supreme Court described litigation involving "public rights" earlier in the opinion, at page 450, as "cases in which the Government sues in its sovereign capacity to enforce public rights created by statutes within the power of Congress to enact."

62. Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7 (Feb. 4, 1987). See Liebesman & Laws, The Water Quality Act of 1987 — A Major Step in Assuring the Quality of the Nation's Waters, 17 ELR 10311 (Aug. 1987).

63. Pub. L. No. 99-499, 100 Stat. 1633 (Oct. 17, 1986). See Atkeson et al., An Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 16 ELR 10360 (Dec. 1986).

64. See § 314 of the Water Quality Act of 1987, supra note 62. See also CERCLA § 109, 42 U.S.C. § 9609, ELR STAT. 44031.

65. 5 U.S.C. § 554, ELR STAT. ADMIN. PROC. 001.

66. See 40 C.F.R. § 22.

67. EPA has projected issuance of proposed regulations to implement the Water Quality Act's administrative penalty provisions by mid-summer.

68. CERCLA § 109(a)(4), 42 U.S.C. § 9609(a)(4). It is interesting to note that Congress expressly provided a collection remedy for nonpayment of Class I violations, but did not mention such recourse for nonpayment of Class II violations, even though the penalty amounts should be more significant in the latter category.

69. Section 314(g)(9) of the Water Quality Act, supra note 62. This language is identical to that contained in the enforcement provisions of the Toxic Substances Control Act, 15 U.S.C. § 2615, ELR STAT. 41346.

70. Pub. L. No. 99-339, 100 Stat. 647 (June 19, 1986). See Gray, The Safe Drinking Water Act Amendments of 1986: Now a Tougher Act to Follow, 16 ELR 10338 (Nov. 1986).

71. SDWA § 1414(g)(3)(D), 42 U.S.C. § 300g-3(g)(3)(D), ELR STAT. 41105.

72. Endangered Species Act § 11(a)(1), 16 U.S.C. § 1540(a)(1), ELR STAT. 41832:5. Another statute like this is the Federal Insecticide, Fungicide, and Rodenticide Act. FIFRA § 14, 7 U.S.C. § 136l, ELR STAT. 42317. Interestingly, FIFRA expressly provides for a jury trial in certain circumstances. FIFRA § 13, 7 U.S.C. § 136k, ELR STAT. 42316.

73. This category also includes the Ocean Dumping Act, 33 U.S.C. § 1415, and the Marine Mammal Protection Act, MMPA § 105, 16 U.S.C. § 1375, ELR STAT. 41820.

74. Section 314(g)(6)(A) of the Water Quality Act, supra note 62.

75. This summary of ADR is drawn from several sources. For a more indepth treatment of alternative dispute resolution, refer to R. FISHER & W. URY, GETTING TO YES (1981); L. BACON & M. WHEELER, ENVIRONMENTAL DISPUTE RESOLUTION (1984); T. SULLIVAN, RESOLVING DEVELOPMENT DISPUTES THROUGH NEGOTIATIONS (1984); C. MOORE, THE MEDIATION PROCESS (1986); F. JARDT, WIN-WIN NEGOTIATIONS (1985). See also The Private Assumption of Previously Public Responsibilities: The Expanding Role of Private Institutions in Public Environmental Decisionmaking, A.B.A. STANDING COMM. ON ENVTL. LAW (1987), reprinted at 17 ELR 10237 (July 1987).

76. Even though agencies have not institutionalized ADR for environmental controversies through formal rulemaking, some have experimented with ADR on an ad hoc basis. The Corps of Engineers, for example, has used ADR techniques to achieve consensus among numerous parties with varied interests when issuing general permits under § 404(e) of the Clean Water Act. In one case, the Corps used ADR techniques to reconcile different positions advanced by development interests, local and state authorities, and environmental groups in issuing a general permit for future development of Sanibel Island, Florida. The Corps also used ADR in achieving consensus for general permit conditions for placement of oil and gas drilling platforms in coastal areas of Louisiana.

77. 50 Fed. Reg. 40524 (Oct. 4, 1985).

78. 50 Fed. Reg. 3788 (Jan. 28, 1985).

79. 49 Fed. Reg. 14411 (Apr. 11, 1984).

80. CERCLA § 122, 42 U.S.C. § 9622, ELR STAT. 44058.

81. CERCLA § 122(a), 42 U.S.C. § 9622(a), ELR STAT. 44058. Interestingly, Congress also provided that "[a] decision of the President to use or not to use the procedures in this section is not subject to judicial review." Id.