A millennial update on procedural issues in environmental litigation.

Dear Editorial Staff:

I. INTRODUCTION

Regular readers of "Clear the Air" have probably noticed the absence in Environmental Law's Volumes 28 and 29 of my annual contributions, which over the preceding haft-decade had emphasized the application of Federal Rules of Civil Procedure (FRCP) 8,(1) covering pleading, and 11,(2) governing sanctions, in environmental litigation.(3) My most recent installment (1997) evaluated the enforcement in environmental cases of the 1993 amendment to FRCP 26(a)(1),(4) which prescribes automatic or mandatory prediscovery disclosure, and the possibility that this provision might effectively require plaintiffs to plead with particularity.(5) The 1997 edition concomitantly alerted environmental plaintiffs and attorneys to the apparent expiration of the Civil Justice Reform Act of 1990 (CJRA),(6) which required all ninety-four federal district courts to implement local procedures for decreasing cost and delay in civil lawsuits.(7) My silence on this issue in Volumes 28 and 29 reflected the nearly complete dearth of new information involving these areas to report.. Nevertheless, several recent developments that could affect plaintiffs and lawyers who file environmental cases warrant a millennial update on procedural issues implicating environmental litigation.

II. FEDERAL RULES 8 AND 11

In Issue I of 1992's Environmental Law, I speculated that judicial application and party invocation of FRCP 8 and 11 could be detrimentally affecting individuals, their interests, and the counsel who represent them when pursuing environmental litigation.(8) Therefore, I requested that plaintiffs and attorneys who had experience with these procedural provisions contact me.(9) In 1993 I reported that no parties or lawyers had expressed concerns that the application of the two rules had disadvantaged them.(10)

To the extent that this complete silence has accurately reflected treatment of these provisions in informal practice, it has probably also reflected treatment in formal practice. Approximately a dozen appellate and district courts have mandated that plaintiffs plead with particularity in Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)(11) litigation,(12) but none of the plaintiffs were public interest litigants. A comparatively small number of judges have found that environmental plaintiffs or lawyers have contravened FRCP 11, but no court levied substantial sanctions on the parties or attorneys.(13) Judges and parties have rarely invoked this rule in environmental cases.(14) This stands in striking contrast to the application of FRCP 11's 1983 amendment in civil rights litigation.(15)

In 1994 I predicted that then-current developments would additionally decrease the possibility that courts might apply the two federal rules in ways that could adversely affect environmental plaintiffs and their counsel.(16) I proposed that judges construe the United States Supreme Court's 1993 opinion in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit(17) as prohibiting the imposition of heightened pleading in environmental cases,(18) I concomitantly contended that the major 1993 revision of FRCP 11(19) should limit the incentives to employ the stricture, thereby generally reducing reliance on the rule, specifically in environmental litigation.(20)

The prognostication I participated in during the mid-1990s has generally proven to be accurate. A comparatively small and declining number of defendants have asked judges to require stringent pleading in environmental cases. Practically every court has rejected these litigants' requests to impose elevated pleading requirements.(21) Moreover, formal invocation of FRCP 11 has been relatively limited in environmental lawsuits, as it has in most other forms of litigation.(22) However, it is difficult to determine conclusively whether reliance on the sanctions stricture, particularly through informal invocation, has in fact substantially decreased.

III. FEDERAL RULE 26(A)(1)

In 1995 I evaluated whether the 1993 revision of FRCP 26(a)(1),23 which prescribed automatic or mandatory prediscovery and disclosure, would effectively impose stringent pleading in environmental cases.(24) The 1993 amendment mandates that parties, prior to beginning formal discovery, reveal information that is "relevant to disputed facts alleged with particularity in the pleadings."(25) Litigants and judges might have interpreted this language to require elevated pleading because plaintiffs who filed very specific complaints would have been able to claim that they were entitled to considerably more material. This concern has apparently not materialized. The principal reason may be that plaintiffs who regularly pursue environmental litigation were already inclined to plead with some particularity.

IV. PROPOSED CHANGES IN THE FEDERAL DISCOVERY RULES

Those who file environmental lawsuits should be aware that the Judicial Conference of the United States, the policy-making arm of the federal courts, has suggested that the United States Supreme Court formally propose amendments to the FRCPs that would govern discovery and automatic disclosure.(26) Several aspects of the recommended changes that pertain to automatic disclosure and more generally to discovery warrant explication.

Two important features of the suggested modifications deserve elaboration. First, the requirements that govern what must be disclosed would be more lenient than under the 1993 amendment.(27) This means that environmental plaintiffs would have to disclose less information under the recommended modification. Second, the new proposal will apply to all ninety-four federal district courts.(28) This contrasts with the 1993 revision, which permits districts to "opt out" by adopting local variations of the federal requirements or by rejecting them altogether.(29)

The Judicial Conference has suggested changes in the language that would cover automatic disclosure and make automatic disclosure somewhat less stringent for several important reasons. Critics of the 1993 amendment have charged that it 1) is too strict; 2) has eroded the traditional adversary system; 3) has imposed another, unnecessary layer of discovery; 4) raises ethical concerns, such as conflicts between attorneys and their clients; and 5) is unclear about precisely what must be disclosed and, therefore, fosters unwarranted and costly satellite litigation over interpretation of the rule's language.(30) Those responsible for rule amendment have, therefore, recommended that the federal disclosure strictures apply in all ninety-four federal districts, principally because they believe that the opt-out provision balkanizes the already fragmented state of federal civil procedure.(31)

Environmental plaintiffs and attorneys may also want to evaluate the proposed changes in discovery provisions other than automatic disclosure. A suggestion to narrow the scope of discovery allowed in FRCP 34(b)(32) might be of interest to these parties and lawyers. For a number of years, litigants have been able to discover material that is "relevant to the subject matter involved in the pending action."(33) The recommended modification would limit the scope of discovery to information that is "relevant to the claim or defense."(34) Parties would be able to secure material that is relevant to the subject matter only on motion and a showing of good cause.(35) The purported purpose of the change is to restrict discovery and prevent "fishing expeditions" by limiting litigants to discovery that involves only issues that they raise in the pleadings.

The proposed alteration could disadvantage certain plaintiffs and attorneys bringing environmental litigation in several ways.(36) The parties and lawyers might need relatively expansive discovery to prove their cases. Correspondingly, they might encounter difficulty pleading with particularity, and thus, experience an inability to obtain much information because they lack access to relevant material at the time they file their complaints. The phrasing of claims or responses could concomitantly lead plaintiffs to include in their pleadings broader allegations than can be supported by the information they have. While this would allow plaintiffs to receive more discovery, it would also expose them to motions to dismiss and motions for FRCP 11 sanctions. Moreover, the parties and lawyers may lack the requisite resources to prepare motions and make showings of good cause when they attempt to secure information under the narrower suggested criterion.

The suggested modification might not necessarily represent significant improvement. The recommended change might fall to restrict the quantity of discovery because it would simultaneously substitute a new standard for the "subject matter" criterion, which has acquired a comparatively clear meaning, and with which judges, attorneys, and parties are familiar. This alteration would accordingly promote a considerable amount of satellite litigation over the new wording's construction and the scope of discovery and would ultimately impose additional unnecessary expense and delay, particularly during the initial stages of implementation.

Those who participate in environmental litigation will want to track the progress of the Judicial Conference modification recommendations governing discovery throughout the remainder of the revision process. If the Supreme Court decides to formally propose the amendments in the spring of 2000, as expected, Congress would have seven months to consider the recommended revisions? If Congress does not act, the proposed amendments would take effect in December 2000.

V. THE CIVIL JUSTICE REFORM ACT OF 1990

In a 1996 "Clear the Air" column, I stated that implementation of the Civil Justice Reform Act was apparently having very few adverse effects on environmental plaintiffs and attorneys.(38) The legislation mandated that all ninety-four federal district courts comprehensively evaluate their circumstances and promulgate and apply measures to reduce expense and delay.(39) I also analyzed a 1995 environmental judicial opinion that construed the legislation as empowering district courts to implement local requirements that are inconsistent with the Federal Rules of Civil Procedure and perhaps with acts of Congress.(40) However, the presiding judge refused to apply a settlement offer stricture, adopted by the United States District Court for the Eastern District of Texas pursuant to the 1990 statute, because it conflicted with FRCP 68.(41) The judge found that the local requirement might disadvantage parties who pursue citizen suits, and therefore, it violated substantive congressional policy expressed in environmental legislation.(42) More recently, the Fifth Circuit invalidated a provision that the Eastern District of Texas had included in it's Civil Justice Expense and Delay Reduction Plan(43) because the Fifth Circuit found that the CJRA does not authorize districts to prescribe inconsistent local procedures that permit fee shifting.(44)

In the 1997 "Clear the Air" installment, I admonished environmental plaintiffs and counsel to remember that Congress would apparently decide during that year whether the CJRA should expire or continue to apply.(45) The legislation suggested that Congress was to make this determination by December 1, 1997(46); however, Congress has reached no affirmative decision.(47) Lawmakers did enact a measure that indefinitely extended certain reporting requirements that Congress included in the 1990 statute, but they were otherwise silent about whether the legislation actually expired in 1997.(48) Based on the statute's legislative history and congressional inaction during 1997, the more plausible reading of the 1990 CJRA is that the 1990 enactment in fact expired. It is, however, possible to construct a plausible argument that the legislation continues to apply.(49) Moreover, some federal districts may not have abrogated local procedures they adopted pursuant to the CJRA or abolished CJRA Advisory Groups that the courts established under the statute.(50) If the legislation actually expired in 1997, the districts lack the authority to continue applying local procedures prescribed pursuant to the CJRA. The only way that environmental plaintiffs and counsel can be certain whether local procedures adopted under the enactment still apply is to consult the specific district's local requirements.

VI. CONCLUSION

As we approach the new millenium, environmental plaintiffs and lawyers must be aware of numerous applicable developments in federal civil procedure. Although parties and their lawyers must remember that each provision could be invoked to their detriment, it now seems that FRCP 8 and 11 are presenting relatively few problems. Automatic disclosure under the 1993 amendment of FRCP 26(a)(1) has apparently posed relatively little difficulty. Nonetheless, plaintiffs and counsel should monitor the ongoing efforts to revise this provision, as well as the numerous other federal rules that govern discovery, because these amendments might significantly affect their pursuit of environmental actions. Environmental litigants and attorneys must also ascertain whether those federal districts in which they litigate continue to apply local procedures prescribed pursuant to the Civil Justice Reform Act.

Sincerely,

Carl Tobias(*) Professor of Law William S. Boyd School of Law University of Nevada, Las Vegas 

* I wish to thank Peggy Sanner for valuable suggestions and Eleanor Davison for processing this piece.

(1) FED. R. CIV. P. 8.

(2) FED. R. CIV. P. 11.

(3) See Carl Tobias, An Update On Pleadings, Sanctions, and Civil Justice Reform in Environmental Cases, 27 ENVTL. L. 319 (1997) [hereinafter Tobias, 1997 Letter]; Carl Tobias, An Update on Pleadings and Sanctions in Environmental Cases, 26 ENVTL. L. 449 (1996) [hereinafter Tobias, 1996 Letter]; Carl Tobias, Pleadings and Sanctions in Environmental Cases, 25 ENVTL. L. 253 (1995) [hereinafter Tobias, 1995 Letter]; Carl Tobias, FRCP Rule 8 and Rule 11 Sanctions in Environmental Cases, 24 ENVTL. L. 317 (1994) [hereinafter Tobias, 1994 Letter]; Carl Tobias, The Need for Environmental Plaintiffs to be Aware of Procedural Pitfalls, 23 ENVTL. L. 381 (1993) [hereinafter Tobias, 1993 Letter]; Carl Tobias, Procedural Issues in Environmental Litigation, 22 ENVTL. L. 412 (1992) [hereinafter Tobias, 1992 Letter].

(4) 1993 Amendment, FED. R. CIV. P. 26(a)(1), reprinted in 146 F.R.D. 401,431-32 (1993).

(5) Tobias, 1997 Letter, supra note 3, at 320.

(6) 28 U.S.C. [subsections] 471-482 (1994).

(7) See Tobias, 1997 Letter, supra note 3, at 320-21.

(8) Tobias, 1992 Letter, supra note 3, at 414-15.

(9) See id. at 415.

(10) Tobias, 1993 Letter, supra note 3, at 381.

(11) 42 U.S.C. [subsections] 9601-9675 (1994 & Supp. III 1997).

(12) The leading case is Cash Energy, Inc. v. Weiner, 768 F. Supp. 892, 900 (D. Mass. 1991). For examples of other CERCLA cases requiring pleading with particularity, see Vascon Properties, Inc. v. Mobile Oil Co., 866 F.2d 1149, 1154 (9th Cir. 1989) (imposing an elevated pleading requirement by stating that a "claimant must allege at least one type of 'response' cost cognizable under CERCLA [in order] to make out a prima facie case"); McGregor v. Industrial Excess Landfill, 856 F.2d 39, 42 (6th Cir. 1988) (holding that elevated pleading was required in that plaintiffs must specifically allege "either the costs they incurred ... or the actions they took in response to the allegedly hazardous conditions"). See also Carl Tobias, Elevated Pleading in Environmental Litigation, 27 U.C. DAvis L. REv. 357 (1994) (examining the origins and development of the elevated pleading requirement in civil rights and environmental cases).

(13) Carl Tobias, Environmental Litigation and Rule 11, 33 WM. & MARY L. REV. 429, 434-40 (1992).

(14) Id. at 434-35.

(15) Id. See generally Carl Tobias, Rule 11 and Civil Rights Litigation, 37 Burr. L. REv. 485 (1989) (discussing Rule 11's application in civil rights cases) [hereinafter Tobias, Civil Rights Litigation]; Carl Tobias, Rule 11 Recalibrated in Civil Rights Cases, 36 VILL. L. REv. 105 (1991) (same).

(16) Tobias, 1994 Letter, supra note 3, 'at 318-19.

(17) 507 U.S. 163 (1993).

(18) Tobias, 1994 Letter, supra note 3, at 318-19.

(19) 1993 Amendment, FED. 1t. CIV. P. 11, reprinted in 146 F.R.D. 401,419-24 (1993).

(20) Tobias, 1994 Letter, supra note 3, at 319.

(21) See, e.g., Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 421 (7th Cir. 1994) (holding plaintiffs complaint adequately asserted liability under CERCLA); Barmet Aluminum Corp. v. Doug Brantley & Sons, 914 F. Supp. 159, 164-66 (W.D. Ky. 1995) (denying defendant's motion to dismiss CERCLA action).

(22) See JOHN SHAPARD ET AL., FED. JUDICIAL CTR., REPORT OF A SURVEY CONCERNING RULE 11,FEDERAL RULES oF CIVIL PROCEDURE (1995); Laura Duncan, Sanctions Litigation Declining, A.B.A.J., Mar. 1995, at 12, 12.

(23) 146 F.R.D. 401, 431-32 (1993).

(24) Tobias, 1995 Letter, supra note 3, at 254.

(25) 146 F.R.D. at 431-32.

(26) See Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Proposed Amendments to the Federal Rules of Civil Procedure, 181 F.R.D. 18 (1998). See generally Carl Tobias, Discovery Reform Redux, 31 CONN. L. REV. 1433 (1999) (discussing the proposed discovery amendments).

(27) Compare FED. R. CTV. P. 26(a)(1) (1998) (requiring certain prediscovery disclosure), with Proposed Amendment to Federal Rule of Civil Procedure 26(a)(1), 181 F.R.D. at 57-58 (requiring substantially less prediscovery disclosure). See also Tobias, supra note 26, at 1435-41 (discussing the various proposals for revising the 1993 automatic disclosure rules).

(28) See 181 F.R.D. at 57.

(29) See FED. R. CIV. P. 26(a)(1); see also DONNA STEINTRA, FED. JUDICIAL CTR., IMPLEMENTATION OF DISCLOSURE IN UNITED STATES DISTRICT COURTS WITH SPECIFIC ATTENTION TO COURTS' RESPONSES TO SELECTED AMENDMENTS TO FEDERAL RULE or CIVIL PROCEDURE 26 (1998), reprinted in 182 F.R.D. 304 (1998) (summarizing various district court responses to the opt out provisions).

(30) See, e.g., Griffin B. Bell et al., Automatic Disclosure in Discovery--The Rush to Reform, 27 GA. L. REV. 1, 28-32 (1992) (discussing how the automatic disclosure rule would actually increase cost and delay to litigants); Amendments to Federal Rules of Civil Procedure, 146 F.R.D. 401,512 (1993) (Scalia, J., dissenting).

(31) See Paul V. Niemeyer, Here We Go Again: Are The Federal Discovery Rules Really in Need of Amendment?, 39 B.C.L. REV. 517, 519 (1998) (finding that "experimentation undertaken pursuant to the Civil Justice Reform Act and the 1993 rules amendments has resulted in a balkanization of discovery rules such that discovery procedures among the ninety-four districts of the country are diverse"); Thomas E. Willging et al., An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B.C.L. REV. 525, 541 (1998) (claiming that "nonuniformity in the discovery rules--and in the disclosure rules in particular--is a serious problem and should be resolved").

(32) FED. R. CIV. P. 34(b).

(33) FED. R. CIV. P. 26(b)(1).

(34) Proposed Amendment to Federal Rule of Civil Procedure 26(b)(1), 181 F.R.D. at 64.

(35) See id. at 65.

(36) Tobias, supra note 26, at 1438.

(37) See 28 U.S.C. 8 2074(a) (1994).

(38) Tobias, 1996 Letter, supra note 3, at 450.

(39) Carl Tobias, Improving the 1998 and 1990 Judicial Improvements Acts, 46 STAN. L. REV. 1589, 1617 (1994).

(40) See Friends of the Earth v. Chevron Chem. Co., 885 F. Supp. 934 (E.D. Tex. 1995) (holding that the offer of judgment provision of the Civil Justice Expense and Delay Reduction Plan for the Eastern District of Texas, adopted pursuant to the CJRA, is inapplicable to citizen suits under the Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997)).

(41) FED. R. CIV. P. 68.

(42) Friends of the Earth, 885 F. Supp. at 936-40.

(43) UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, CIVIL JUSTICE EXPENSE AND DELAY REDUCTION PLAN art. 6, [sections] 9 (1997).

(44) Ashland Chem. Inc. v. Barco Inc., 123 F.3d 261, 268 (5th Cir. 1997). See generally Lauren Robel, Fractured Procedure: The Civil Justice Reform Act of 1990, 46 STAN. L. REV. 1447 (1994) (discussing whether the CJRA is a broad delegation of rulemaking authority to local courts or a limitation thereof).

(45) Tobias, 1997 Letter, supra note 3, at 321.

(46) Judicial Improvements Act of 1990, Pub. L. No. 101-650, [sections] 105, 104 Stat. 5096, 5097 (codified as amended at 28 U.S.C. [sections] 471 (1994 & Supp. III 1997)).

(47) See Carl Tobias, Did the Civil Justice Reform Act of 1990 Actually Expire?, 31 U. MICH. J.L. REF. 887, 888 (1998).

(48) See Act of Oct. 6, 1997, Pub. L. No. 105-53, [sections] 2, 111 Stat 1173, 1175 (codified as amended at 28 U.S.C. [sections] 471 (1994 & Supp. III 1997)).

(49) See Tobias, supra note 47, at 894-95; see also Patrick E. Longan, Congress, the Courts, and the Long Range Plan, 46 AM. U. L. REV. 625, 664-65 n.261 (1997) (stating that "Congress should amend the CJRA to include a more meaningful "sunset" provision, and it should bind itself for future legislation at least to refer proposed rule changes to some or all of the Rules Enabling Act process").

(50) See Tobias, supra note 47, at 895-96; see also Longan, supra note 49, at 665 (concluding the sunset provisions are not strong enough; they merely allows districts to cease operating under their plans).