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# 5-6.000 - Environmental Defense Section

5-6.001 | Establishment
5-6.100 | Area of Responsibility—Generally
5-6.111 | Responsibility—Defense of Actions Directed Against the United States, Its Agencies, and Officials
5-6.112 | Responsibility—Cases Brought on Behalf of the United States
5-6.121 | Responsibility for Cases With New Issues or an Altered Character
5-6.130 | Categories of Litigation
5-6.200 | Organization in General
5-6.300 | Supervision and Handling of Environmental Defense Section Cases—Requests for Instructions
5-6.302 | Supervision and Handling of Environmental Defense Section Cases—Assignment of Case Responsibility
5-6.310 | Authority of United States Attorneys to Initiate Actions Without Prior Authorization, i.e., Direct Referral Cases
5-6.311 | Notification to Environmental Defense Section of Intention to File Actions
5-6.312 | Transmittal of Papers to Environmental Defense Section and Client Agencies
5-6.313 | Authority to Handle Direct Referral Cases Does Not Extend to Appeals
5-6.321 | Actions Not Subject to Direct Referral to United States Attorneys—Prior Authorization Needed to Institute Action
5-6.510 | General
5-6.520 | Preparing Responsive Pleadings in Actions Directed Against the United States, Its Agencies or Officials
5-6.521 | Temporary Restraining Orders and Preliminary Injunctions
5-6.522 | Lis Pendens and the Recording of Judgments
5-6.531 | Suits Against the United States—Generally
5-6.532 | Direct Review in the Courts of Appeals
5-6.533 | Citizen Suits
5-6.600 | Settlement and Dismissal—Generally
5-6.611 | Transmittal of Settlement Offers

## 5-6.001 - Establishment

The Environmental Defense Section was created on July 1, 1981, as part of a Division reorganization. The predecessor section, the Pollution Control Section, was abolished on that date.

## 5-6.100 Area of Responsibility—Generally

The Environmental Defense Section defends, and supports and coordinates the defense of, all civil cases, matters and proceedings arising under the statutes enumerated in JM 5-6.130 (all of which statutes are concerned with the regulation and abatement of sources of pollution or with the protection of the natural environment), including cases authorized by those statutes for direct review in appellate court. The Environmental Defense Section also supports and pursues civil enforcement actions under Sections 10 and 13 of the Rivers and Harbors Act of 1899 and Sections 301 and 404 of the Clean Water Act. The Section also engages in certain other affirmative litigation closely related to its defensive practice.

[cited in JM 5-6.130]

[Updated April 2018]

## 5-6.111 - Responsibility—Defense of Actions Directed Against the United States, Its Agencies, and Officials

The Environmental Defense Section has Departmental responsibility for defending actions brought against the Administrator of the Environmental Protection Agency, and his or her subordinate officials, and against the Secretary of the Army, the Chief of Engineers of the United States Army, and their subordinate officials, challenging administrative actions which those officials have taken or failed to take under the statutes set forth in JM 5-6.130. Such actions may take the form of (a) challenges to regulations promulgated by these officials, (b) challenges to the propriety of the issuance or denial of permits, (c) assertions that actions required by law have not been taken, (d) challenges to measures taken or not taken with regard to administration or enforcement of the statutes listed in JM 5-6.130, and (e) any other defensive matters relating to the agencies' activities under the statutes listed in JM 5-6.130.

Additionally, the Environmental Defense Section has Departmental responsibility for litigation directed against any other federal agency or official alleged to have violated any duties under the statutes listed in JM 5-6.130; litigation directed at federal installations, properties, and activities charged with violating applicable discharge or emissions limitations, or other federal, state or local pollution laws; and suits or claims alleging that a federal agency is a liable party under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601.

[cited in JM 5-6.531]

[Updated April 2018]

## 5-6.112 - Responsibility—Cases Brought on Behalf of the United States

The Environmental Defense Section also has responsibility for civil actions initiated on behalf of the United States to enforce the provisions of Sections 10 and 13 of the Rivers and Harbors Act of 1899 and Sections 301 and 404 of the Clean Water Act, relating to unlawful filling or other unauthorized activities undertaken in waters of the United States. As a matter of policy and practice, these civil enforcement actions are initiated only at the request of the Administrator of the Environmental Protection Agency or Chief of Engineers of the United States Army.

Whenever apparent violations of the above-mentioned statutes are brought to the attention of the Department of Justice by persons or agencies other than those with statutory enforcement responsibilities, the Department forwards reports of these apparent violations to agency enforcement officials for evaluation and referral for legal proceedings, if appropriate.

Forwarding reports of suspected violations to the appropriate agencies affords them an opportunity to resolve matters administratively. It also minimizes the government's vulnerability to a number of technical, procedural and equitable defenses. On occasion, however, an action under Section 10 or Section 13 of the Rivers and Harbors Act may be initiated by the Environmental Defense Section or United States Attorneys, at their own instance. All such actions require the approval of the Assistant Attorney General, Environment and Natural Resources Division.

Other affirmative litigation undertaken on behalf of agency clients having facilities subject to federal, state and local pollution control laws are initiated upon referral of the proposed action by the client agency to the Section Chief, Environmental Defense Section.

[Updated April 2018]

## 5-6.121 - Responsibility for Cases With New Issues or an Altered Character

Occasionally, issues involving statutes within the Environmental Defense Section's purview may be injected into existing litigation by way of amendment or supplemental pleadings, etc. In such events, United States Attorneys should notify the Chief of the Environmental Defense Section so that the Section can properly perform its responsibilities.

On rare occasions, the fundamental character of existing litigation may change such that issues within the purview of the Environmental Defense Section become the dominant issues. In such situations, the Environmental Defense Section staff attorney with advisory responsibility for the case shall notify the Section Chief who may request a transfer of responsibility if he/she deems it appropriate. If such issues become dominant in a case where the United States Attorney has primary responsibility, he may make a written request to the Assistant Attorney General, Environment and Natural Resources Division, to have the case transferred to the Environmental Defense Section.

[Updated April 2018]

## 5-6.130 - Statutes Administered

The Environmental Defense Section is responsible for conducting defensive and certain other litigation as described in JM 5-6.100, 5-6.111 and 5-6.112, arising under the following statutes:

1. Sections 10 and 13 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 403, 407;
2. The Clean Water Act (Federal Water Pollution Control Act, as amended), 33 U.S.C. § 1251 (except for in rem actions against vessels, which are supervised by the Admiralty and Shipping Section of the Civil Division);
3. The Toxic Substances Control Act of 1976, 15 U.S.C. § 2601;
4. The Safe Drinking Water Act of 1974, 42 U.S.C. § 300f;
5. The Clean Air Act, 42 U.S.C. § 7401;
6. The Noise Control Act of 1972, 42 U.S.C. § 4901;
7. The Uranium Mill Tailings Radiation Control Act, 42 U.S.C. § 7133;
8. The Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136;
9. The Resource Conservation and Recovery Act, 42 U.S.C. § 6901 (also called the "Solid Waste Disposal Act");
10. The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601;
11. The Marine Protection, Research and Sanctuaries Act, 33 U.S.C. § 1401 ("Ocean Dumping Act");
12. The Oil Pollution Act, 33 U.S.C. § 2701;
13. The Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11001; and
14. Provisions of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §301, administered by the Environmental Protection Agency.

[cited in JM 5-6.100; JM 5-6.111; JM 5-6.112; JM 5-6.120; JM 5-6.532; JM 5-6.600; JM 5-7.300]
[Updated May 2018]

## 5-6.200 - Organization in General

The Section is administered by a Chief, a Deputy Chief, and Assistant Chiefs. Several Assistant Chiefs are primarily responsible for supervising district court litigation, while an Assistant Chief (assisted by Senior Counsels for Appellate Matters) is primarily responsible for supervising appellate court litigation. In addition, an Assistant Chief is responsible for administration and training. The work of the Section is assigned among staff attorneys according to experience and workload. Generally speaking, the Section’s staff attorneys are organized into litigating groups by geographic region, but they are all involved to some extent with every aspect of the Section's work and there are no organizational subdivisions by subject matter. General information relating to the Section or cases within its supervision may be obtained by calling the Chief, Deputy Chief, or Assistant Chiefs, at (202) 514-2219 or by emailing them. Information on a specific case should be requested from the staff attorney assigned to that case. Where the staff attorney's name is unknown, the systems support specialist of the Section (202) 616-8042 will furnish that information.

[Updated April 2018]

## 5-6.300 - Supervision and Handling of Environmental Defense Section Cases—Requests for Instructions

All requests for instructions and guidance relating to the defense or prosecution of actions under the jurisdiction of the Environmental Defense Section shall be referred to the Chief of the Environmental Defense Section of the Environment and Natural Resources Division of the Department of Justice, Washington, D.C. 20530, by telephone at (202) 514-2219 or by email.

[cited in JM 5-6.220]

[Updated April 2018]

## 5-6.302 - Supervision and Handling of Environmental Defense Section Cases—Assignment of Case Responsibility

Responsibility for the handling of cases under the supervision of the Environmental Defense Section is assigned by the Chief of the Section under the provisions of JM 5-1.323 through 5-1.325.

## 5-6.310 - Authority of United States Attorneys to Initiate Actions Without Prior Authorization, i.e., Direct Referral Cases

Pursuant to ENRD Directive No. 2016-04, the Assistant Attorney General, Environment and Natural Resources Division, has delegated to the United States Attorneys the authority to act, without prior authorization from the Environment and Natural Resources Division, on behalf of the Secretary of the Army, acting through the Corps of Engineers, in response to a direct request in writing from an authorized field officer of the Corps of Engineers, certain civil enforcement actions under the Clean Water Act and Rivers and Harbors Act under the supervision of the Environmental Defense Section. Such direct referral cases are subject to the general directives, limitations and procedures specified in ENRD Directive No. 2016-04.

This authority is, however, revocable on a case-by-case basis where, in the opinion of the Assistant Attorney General, new or unusual issues of law or policy, or issues of national significance, are involved, including issues related to jurisdiction. Generally speaking, direct referral cases are of a routine nature and involve statutory provisions whose interpretation is well-settled.

[cited in JM 5-6.313; JM 5-6.321]

[Updated April 2018]

## 5-6.311 - Notification to Environmental Defense Section of Intention to File Actions

Prior to filing a civil complaint in a case authorized for direct referral, the United States Attorney shall notify the Chief, Environmental Defense Section, of the proposed action, and shall furnish a copy of the litigation report and written request from the authorized field officer for initiation of the action in accordance with ENRD Directive No. 2016-04.

[Updated April 2018]

## 5-6.312 - Transmittal of Papers to Environmental Defense Section and Client Agencies

One copy of each pleading and paper filed by any party or by the court, shall promptly be forwarded to the Environmental Defense Section in accordance with ENRD Directive No. 2016-04, and two copies shall be forwarded to the local officer of the referring agency (the local officer forwards one copy to his/her agency in Washington, D.C.).

[Updated April 2018]

## 5-6.313 - Authority to Handle Direct Referral Cases Does Not Extend to Appeals

The authorization to handle direct referral cases under the provisions of JM 5-6.310 extends to district court proceedings only. Responsibility for appellate proceedings in all such cases remains in the Division's Appellate Section. JM 5-8.100, 5-8.300, 5-8.320. Accordingly, appeals in all such cases are governed by the procedures in JM Title 2, Appeals.

[Updated April 2018]

## 5-6.321 - Actions Not Subject to Direct Referral to United States Attorneys—Prior Authorization Needed to Institute Action

Except for cases not requiring prior authorization as stated in JM 5-6.310, no case under the supervision of the Environmental Defense Section may be initiated by a United States Attorney without the prior authorization of the Assistant Attorney General, who shall approve the complaint prior to its being filed (see JM 5-1.302, ENRD Directive No. 2016-04). Additionally, United States Attorneys may not initiate direct referral cases arising under the statutes listed in JM 5-6.310 where relief sought is monetary damages or civil penalties in excess of the United States Attorneys' settlement authority.

No defensive matters may be handled by the United States Attorneys on direct referral.

In cases under the supervision of this Section not authorized for direct referral, in which the United States Attorney wishes to file an action in the name of the United States, a request for such authority shall be sent to the Assistant Attorney General, Environment and Natural Resources Division, attention Chief, Environmental Defense Section. Responsibility for handling such cases will be determined in accordance with the policies set forth in JM 5-1.322 through 5-1.325. See ENRD Directive No. 2016-04.

[Updated April 2018]

## 5-6.510 - General

The general instructions set forth in JM 5-1.000, with respect to the handling of litigation under the jurisdiction of the Environment and Natural Resources Division apply to litigation within the purview of the Environmental Defense Section.

## 5-6.520 - Preparing Responsive Pleadings in Actions Directed Against the United States, Its Agencies or Officials

Whenever an action is initiated against an agency or official of the United States, the underlying factual material required for the preparation of responsive pleadings is forwarded from the headquarters of the concerned agency to the Assistant Attorney General, Environment and Natural Resources Division, by way of a litigation report. Except in unusual circumstances, agencies are required to forward a litigation report well in advance of the sixty (60) day deadline for responsive pleadings specified by Rule 12(a). If the United States Attorney has been given primary litigation responsibility, the Environmental Defense Section will request the client agency to forward a copy of the litigation report to the United States Attorney concurrently with its transmittal to the Assistant Attorney General.

There are, however, inherent delays in the customary procedure for transmitting litigation reports. Service of the complaint may be upon the agency headquarters in Washington, D.C., and it may be some time before the local agency field office is aware of the pendency of the action. To minimize potential delays, the United States Attorney should immediately advise local agency field offices and the Chief, Environmental Defense Section, of the filing or service of a complaint under one of the statutes listed in JM 5-6.130 in which they may be a party or otherwise have an interest. The agency field offices should be provided with copies of the complaint and related documents as soon as possible so that they can initiate the preparation of a litigation report.

[Updated April 2018]

## 5-6.521 - Temporary Restraining Orders and Preliminary Injunctions

Occasionally, an action directed against an agency or official of the United States will involve a motion for temporary restraining order or preliminary injunction or otherwise require that action be taken on behalf of the United States well before any responsive pleadings are due. In such cases the United States Attorney should immediately notify the Chief of the Environmental Defense Section (telephone (202) 514-2219). If memoranda, affidavits or other responses must be filed prior to the agency's preparation of a litigation report, the United States Attorney should clear all legal and factual positions with the Environmental Defense Section prior to advancing them formally on behalf of the United States. It is the responsibility of the Environmental Defense Section to coordinate such positions with the agency headquarters in Washington, D.C.

[Updated April 2018]

## 5-6.522 - Lis Pendens and the Recording of Judgments

In civil enforcement actions under Sections 10 and 13 of the Rivers and Harbors Act and Sections 301 and 404 of the Clean Water Act seeking prohibitory or mandatory injunctive relief, complications may arise if the ownership of the property in question changes hands during the pendency of the action. Where there is a threat of transfer of ownership, the United States Attorney should consider filing a notice of the pendency of the action, or lis pendens. The steps necessary for the filing of such a notice are determined by the law of the particular state (see 28 U.S.C. § 1964).

On occasion, the final judgment in a civil enforcement action under these statutes, including a consent decree, may, in effect, place a permanent burden on the property which was subject to the unauthorized activities. In order to protect the future interests of the United States, the United States Attorney should consider recording the judgment in accordance with applicable law.

[Updated April 2018]

## 5-6.531 - Suits Against the United States—Generally

Upon notification that an action has been initiated against the United States, its agencies or officials, the United States Attorney should examine the complaint and supporting documents to ascertain whether the action will involve issues within the purview of the Environmental Defense Section. If it appears that the Environmental Defense Section will have responsibility for the case (see JM 5-6.112), the United States Attorney should promptly send a copy of the complaint and supporting documents to the Chief of the Environmental Defense Section.

If the case does not appear to be the primary responsibility of the Environmental Defense Section but appears that the Section may have advisory responsibilities, the Section Chief should be notified pursuant to JM 5-6.120.

[Updated April 2018]

## 5-6.532 - Direct Review in the Courts of Appeals

Many of the statutes listed in JM 5-6.130 authorize direct review in the appellate courts of various actions taken by the Administrator of the Environmental Protection Agency, as well as certain other federal officials; all cases involving such petitions for review that are served upon a United States Attorney should be promptly forwarded to the Chief of the Environmental Defense Section.

[Updated April 2018]

## 5-6.533 - Citizens' Suits

The Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act, Safe Drinking Water Act, Comprehensive Environmental Response, Compensation, and Liability Act, and several of the other Acts also authorize citizen suits in the United States district courts against various persons, including federal officials. Normally, a period of notice is required before such an action may be instituted. Citizen suits against the United States, federal agencies, or federal agency officials must be analyzed carefully to determine the relief sought in the case, and the United States Attorney should promptly forward any such notice or complaint to the Chief, Environmental Defense Section.

[Updated April 2018]

## 5-6.600 - Settlement and Dismissal—Generally

Except as authorized by and in accordance with ENRD Directive No. 2016-04 (with respect to directly referred or delegated cases under the Rivers and Harbors Act and section 404 of the Clean Water Act, see section II.D.2, and certain CERCLA contribution actions, see section II.D.4), United States Attorneys are not authorized to settle or dismiss any case arising under any of the statutes listed in JM 5-6.130. Any offer to settle or dismiss any such suit must be directed to the Chief of the Environmental Defense Section, who will take final action, or if the matter is not within the scope of his/her delegated authority, will forward the offer, with his/her own recommendation, to the Deputy Assistant Attorney General, who, in turn, will either act upon the offer, or, if necessary, refer the matter to the Assistant Attorney General. Offers to settle or compromise in direct referral cases, when transmitted to the Environmental Defense Section, should be accompanied by the recommendation of the referring client agency.

Consent judgments in certain actions, after being approved by the Assistant Attorney General, may be required to be lodged with the court and made available for public comment prior to their entry pursuant to statute, Department regulation (see 28 C.F.R. § 50.7) or Division policy. See also JM 5-12.620 (Environmental Enforcement Section Public Notice Policy). United States Attorneys should coordinate with the Environmental Defense Section if such requirements apply by contacting either the staff attorney assigned to the case or the relevant Assistant Chief of the Section.

[cited in JM 5-8.600]

[Updated May 2018]

## 5-6.611 - Transmittal of Settlement Offers

Any offer to settle or dismiss an action shall be transmitted to the Chief of the Environmental Defense Section for referral to the Assistant Attorney General and for such other action as may be directed by regulation. Such offers should be accompanied by the written comments and recommendation of the referring client agency. In emergency situations, such as with settlement offers received during trial, settlement offers dealing exclusively with monetary damages or penalties may be communicated to the Chief of the Environmental Defense Section by telephone.

[Updated April 2018]

Updated September 19, 2018