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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
5-6.120 Overlapping Section Case Responsibility
5-6.121 Responsibility for Cases With New Issues or an Altered Character
5-6.130 Statutes Administered
5-6.200 Organization in General
5-6.220 General Duties of Staff Attorneys
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
5-6.530 Suits Against the United States, Federal Agencies or Officials
5-6.531 Suits Against the United States——Generally
5-6.532 Direct Review in the Courts of Appeals
5-6.533 Citizens' 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 USAM 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). The Environmental Defense Section also prosecutes, and supports the prosecution of, civil matters arising under Sections 10 and 13 of the River and Harbor Act of 1899 and Sections 301 and 404 of the Clean Water Act. The Section also engages in certain other affirmative litigation.

[cited in USAM 5-6.130]


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 USAM 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 enforcement of the statutes listed in USAM 5-6.130, and (e) any other defensive matters relating to the agencies' activities under the statutes listed in USAM 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 USAM 5-6.130 and also for litigation directed at federal installations, properties, and activities charged with violating applicable discharge or emissions limitations, or other federal, state or local pollution laws.

[cited in USAM 5-6.531]


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 River and Harbor 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 prosecutions 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 cognizant 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 River and Harbor 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 the agencies responsible for administering the statutes listed in USAM 5-6.130 and 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.


5-6.120 - Overlapping Section Case Responsibility

While the Environmental Defense Section is responsible for defensive actions involving the statutes listed in USAM 5-6.130 cases arise from time to time involving several different claims and defenses, only some of which lie within the cognizance of the Environmental Defense Section. The Chiefs of the appropriate Sections within the Environment and Natural Resources Division will decide between or among themselves concerning the primary assignment of such cases within the Division. The Section having primary responsibility for the case also has the responsibility to coordinate with the appropriate Section within the Division on all matters within said Section's jurisdiction. This should be accomplished by furnishing copies of pertinent pleadings and memoranda to said Section. Whenever possible, the Division attorney with the primary responsibility for the case will notify the United States Attorney of the identity of the attorney in any other Section who may be contacted with respect to matters within the expertise of that Section.

[cited in USAM 5-6.531]


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

Occasionally, issues involving statutes within the Environmental Defense Section's cognizance 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 cognizance 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 Section 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.

On occasion private plaintiffs may assert federal common law nuisance claims as a basis for relief against the United States, its agencies and officers. Any such case should immediately be brought to the attention of the Chief, Environmental Defense Section.


5-6.130 - Statutes Administered

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

  1. Sections 10 and 13 of the River and Harbor 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 et seq. (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 et seq.;
  4. The Safe Drinking Water Act of 1974, 42 U.S.C. § 300f et seq.;
  5. The Clean Air Act, 42 U.S.C. § 7401 et seq.;
  6. The Noise Control Act of 1972, 42 U.S.C. § 4901 et seq.;
  7. The Uranium Mill Tailings Radiation Control Act, 42 U.S.C. § 7133 et seq.;
  8. The Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq.;
  9. The Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (also called the "Solid Waste Act").
  10. The Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (also called "Superfund Act");
  11. Marine Protection, Research and Sanctuaries Act, 33 U.S.C. § 1401 et seq. ("Ocean Dumping Act").

[cited in USAM 5-6.100; USAM 5-6.111; USAM 5-6.112; USAM 5-6.120; USAM 5-6.532; USAM 5-6.600; USAM 5-7.300]


5-6.200 - Organization in General

The Section is administered by a Chief, a Deputy Chief, and seven Assistant Chiefs. Four Assistant Chiefs are primarily responsible for district court litigation, while one Assistant Chief is primarily responsible for appellate court litigation. In addition, there is one Assistant Chief for Policy and Legislation, and one Assistant Chief for Administration and training. The work of the Section is assigned among staff attorneys according to experience and workload. Generally speaking, all staff attorneys are involved to some extent with every aspect of the Section's work and there are no specific units or other organizational subdivisions. 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. 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 case management specialist of the Section (202) 514-3255 will furnish that information.


5-6.220 - General Duties of Staff Attorneys

In general, the following are the more significant duties of staff attorneys assigned to the Environmental Defense Section; (a) to handle cases authorized by statutes for direct review in appellate court; (b) to handle environmental litigation in district courts in cases of major significance when directed by the Assistant Attorney General, Environment and Natural Resources Division, pursuant to the policies set forth in USAM 5-6.300, et seq.;0610 (c) to offer advice, policy guidance and trial assistance in environmental cases in the district court where the United States Attorney or designated assistant has primary responsibility for the litigation; and (e) to assume advisory responsibility with respect to environmental issues in cases falling within the cognizance of other Sections of the Environment and Natural Resources Division.


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, (202) 514-2219.

[cited in USAM 5-6.220]


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 USAM 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

At present, 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 any other department or agency in response to a direct request in writing from an authorized field officer of the department or agency concerned, in the following environmental cases under the supervision of the Environmental Defense Section and Enforcement Section in certain cases:

Civil enforcement actions involving the dredging or filling or alteration of the navigable waters of the United States and their tributaries in violation of Sections 10 and 13 of the River Harbor Act of March 13, 1899 (33 U.S.C. §§ 403, 407), and in violation of Sections 301 and 404 of the Clean Water Act, 33 U.S.C. §§ 1311, 1344. This authority is, however, revocable on a case by case basis where, in the opinion of the Assistant Attorney General, important or novel issues of law or policy are involved.

Generally speaking, direct referral cases are of a routine nature and involve statutes whose interpretation is relatively well-settled. Departmental policies on cases authorized for direct referral, however, are not necessarily related to policies on case responsibility allocation. The former have been formulated in cooperation with enforcement agencies to afford them an opportunity for headquarters review of enforcement action falling within unsettled areas of the law.

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


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 Chief, Environmental Defense Section, shall be notified of the proposed action, and shall be furnished with a copy of the written request from the authorized field officer for initiation of the action.


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

One copy of each letter prepared or received by a United States Attorney in a direct referral case, as well as one copy of each pleading and paper filed by any party or by the court, shall be promptly forwarded to the Environmental Defense Section, 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.).


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 USAM 5-6.310 extends to district court proceedings only. Responsibility for appellate proceedings in all such cases remains in the Division's Appellate Section. USAM 5-8.300 et seq. Accordingly, appeals in all such cases are governed by the procedures in USAM Title 2, Appeals.


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 USAM 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 sign the complaint prior to its being filed (see USAM 5-1.302). Additionally, United States Attorneys may not initiate upon direct referral cases arising under the statutes listed in USAM 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 USAM 5-1.322 through 5-1.325.


5-6.510 - General

The general instructions set forth in USAM 5-1.000 et seq., with respect to the handling of litigation under the jurisdiction of the Environment and Natural Resources Division apply to litigation within the cognizance 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 pendency of actions in which they may be a party or otherwise have an interest. The 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.


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.


5-6.522 - Lis Pendens and the Recording of Judgments

In civil prosecutions under Sections 10 and 13 of the River and Harbor 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 prosecution under these statutes 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 judgment should be recorded in accordance with the requirements of local law and the provisions of 28 U.S.C. § 1962 et seq.


5-6.530 - Suits Against the United States, Federal Agencies or Officials

Sections 5-6.531 through 5-6.533 discuss suits against the United States, federal agencies or officials.

[updated March 2001]


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 cognizance of the Environmental Defense Section. If it appears that the Environmental Defense Section will have responsibility for the case (see USAM 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 USAM 5-6.120.


5-6.532 - Direct Review in the Courts of Appeals

Most of the statutes listed in USAM 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.


5-6.533 - Citizens' Suits

The Clean Air Act, the Clean Water Act, the Marine Protection, Research and Sanctuaries Act, the Noise Control 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. Citizens' suits must be analyzed carefully to determine the relief sought in the case, and the United States Attorney should promptly seek instructions from the Chief, Environmental Defense Section, as to the handling of the case.


5-6.600 - Settlement and Dismissal—Generally

United States Attorneys are not authorized to settle or dismiss any case arising under any of the statutes listed in USAM 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.

[cited in USAM 5-8.600]


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 June 2, 2015