Academic journal article Environmental Law

Separate but Equal: Double Jeopardy and Environmental Enforcement Actions

Academic journal article Environmental Law

Separate but Equal: Double Jeopardy and Environmental Enforcement Actions

Article excerpt


Criminal enforcement of environmental laws has skyrocketed in the past several years, and those involved in the field of environmental enforcement believe this trend will continue because criminal sanctions represent the "most compelling tool" in environmental enforcement.(1) While the states occupy the first line in environmental enforcement,(2) over the past several years federal environmental enforcement actions, and in particular federal criminal enforcement actions, have steadily increased.(3) Given the complexity of environmental law and the overlapping authority of the federal and state governments in environmental enforcement, issues have arisen over the respective roles of federal and state environmental enforcement agencies. One issue touches upon a cornerstone of American criminal jurisprudence--the double jeopardy prohibition of the Fifth Amendment. Does a federal enforcement action following or concurrent with a state enforcement action for the same violation (or a state enforcement action following a federal action) transgress the Fifth Amendment's prohibition of double jeopardy?

This Comment argues that in the context of criminal environmental enforcement, the answer is yes. Part II begins with an overview of the permit programs under two of the major federal pollution prevention and control statutes, the Clean Air Act (CAA) and Clean Water Act (CWA). As a result of states' delegated authority under the CAA and CWA to administer and enforce their own state permit programs, a system of cooperative federalism has resulted. Part II also presents two hypotheticals which illustrate how subsequent enforcement actions can be brought against permit holders under the CAA permit program or the National Pollutant Discharge Elimination System (NPDES) program of the CWA. Part III summarizes the law of double jeopardy and the dual sovereignty exception. Part IV analyzes the double jeopardy implications of subsequent environmental enforcement actions and discusses the inapplicability of the dual sovereignty exception given that state and federal environmental authorities derive their prosecutorial power from the same source--state regulations and state-issued permits. Using the presented hypotheticals, the Comment contends that in the environmental context, the cooperative federalism system of enforcement violates the double jeopardy prohibition and falls outside of the dual sovereignty exception. Part V concludes with a proposed solution of a separate interests approach to the problem of concurrent enforcement authority in environmental law.


A. Delegated Programs Under the CWA and CAA

Prior to the 1970s and the enactment of major federal pollution prevention and control acts such as the Clean Water Act and the Clean Air Act, environmental enforcement was primarily the province of states and localities.(4) Prior to the middle of the twentieth century, environmental law was itself primarily based on the common law rather than on statutory or regulatory schemes.(5) During the 1960s and 1970s, environmental law was federalized through the promulgation of national effluent limitations and air quality standards enacted under new federal environmental laws aimed at pollution prevention and control on a national level.(6)

Although both the CWA and CAA place pollution prevention and control in the federal forum, both Acts contain provisions which retain and rely upon the states' involvement in environmental protection and enforcement efforts. The Acts provide the states with the option of implementing, administering, and enforcing their own pollution control programs. For example, under the CWA, a state may take over the National Pollutant Discharge Elimination System (NPDES) permit program from the Environmental Protection Agency (EPA) upon showing adequate authority to issue and enforce permits meeting all the applicable CWA requirements. …

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