An update on pleading, sanctions and civil justice reform in environmental cases.

Dear Editorial Staff:

Since 1992, in the initial issue of each volume of Environmental Law,(1) I have evaluated the application of Federal Rule of Civil Procedure 8 governing pleading, and Federal Rule of Civil Procedure 11 covering sanctions in environmental litigation. In 1992, I speculated that the two Rules might disadvantage environmental plaintiffs, and I asked that plaintiffs who had experience with these procedures contact me.(2) In 1993, I reported that no plaintiffs had contacted me to voice concerns that the enforcement of these provisions had adversely affected them.(3)

Insofar as this silence was an accurate reflection of informal experience under Rules 8 and 11, it apparently resembled formal experience with pleading and sanctions. Some ten courts have required that plaintiffs plead with specificity in Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) suits;(4) however, none of these plaintiffs was a public interest litigant. Relatively few courts have found environmental plaintiffs to be in violation of Rule 11, and no judge has imposed substantial sanctions on the parties.(5) Courts and litigants have infrequently invoked Rule 11 in environmental lawsuits,(6) especially in contrast to civil rights cases.(7)

In 1994, I suggested that recent developments regarding Rules 8 and 11 would further reduce the likelihood that judges would enforce the Rules in ways that could disadvantage environmental plaintiffs. I recommended that courts interpret the 1993 Supreme Court decision in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit(8) as proscribing the imposition of elevated pleading in environmental litigation.(9) I correspondingly asserted that the 1993 Amendment of Rule 11(10) should reduce the incentives to invoke the provision while decreasing its use in all lawsuits, including environmental cases.(11)

The predictions that I made have generally remained accurate. A decreasing and relatively tiny number of defendants have requested that courts impose stringent pleading in environmental suits, and virtually all of the few judges who have been asked to do so have rejected elevated pleading.(12) There has apparently been minimal formal Rule 11 activity in environmental litigation, although it is difficult to ascertain definitively whether the provision's invocation has declined.

During 1995, I examined the possibility that the 1993 Amendment of Rule 26(a)(1), which provides for automatic, or mandatory prediscovery disclosure, might essentially impose heightened pleading.(13) The revised provision requires that litigants, before commencing formal discovery, exchange information "relevant to disputed facts alleged with particularity in the pleadings."(14) This phrasing, therefore, could effectively require stricter pleading because plaintiffs who plead more specifically can acquire additional information. It is still easy to determine whether Rule 26(a)(1) is detrimentally affecting environmental plaintiffs, although the effects to date appear limited. An explanation for this may be that environmental plaintiffs in numerous cases now plead with considerable particularity.

During 1996, I reported that the effectuation of the Civil Justice Reform Act of 1990 (CJRA)(15) appeared to have had little impact on environmental plaintiffs.(16) That statute required each of the federal district courts to implement cost and delay reduction procedures.(17) I also alerted plaintiffs to a recent environmental opinion that interpreted the legislation.(18) The court ruled that the statute authorized districts to prescribe procedures that conflict with the Federal Rules of Civil Procedure.(19) The court, however, did not apply a settlement offer provision that it had instituted under CJRA and that contravened Rule 68 because the local stricture could have discouraged plaintiffs who bring citizen suits and, thus, conflicted with congressional policy in substantive environmental statutes.(20)

Environmental plaintiffs must remember that during 1997, Congress is scheduled to decide whether the CJRA should continue to apply. The statute requires Congress to reach that determination by December 1.(21) If Congress concludes that the legislation should expire, the ninety-four districts that have adopted local requirements under the CJRA must discontinue those procedures' application. Environmental plaintiffs should remember to monitor these congressional and local developments in 1997.

In sum, Federal Rules 8 and 11 appear to be posing comparatively little difficulty for environmental plaintiffs and environmental lawyers. Rule 26(a)(1) seems to be presenting a few problems; however, plaintiffs and their attorneys should track the provision. Plaintiffs and counsel who file environmental litigation should also keep in mind local procedures prescribed under the CJRA that might adversely affect them, while they should remember that Congress is scheduled to resolve the statute's future and follow that legislative action this year.

Sincerely, Carl Tobias Professor of Law University of Montana

(1) Carl Tobias, An Update on Pleadings and Sanctions in Environmental Cases, 26 Envtl. L. 449 (1996) [hereinafter 1996 Letter]; Carl Tobias, FRCP Rule 8 and Rule 11 Sanctions, 25 Envtl. L. 253 (1995) [hereinafter 1995 Letter]; Carl Tobias, Pleadings and Sanctions in Environmental Cases, 24 Envtl. L. 317 (1994) [hereinafter 1994 Letter]; Carl Tobias, The Need for Environmental Plaintiffs to Be Aware of Procedural Pitfalls, 23 Envtl. L. 381 (1993) [hereinafter 1998 Letter]; Carl Tobias, Procedural Issues in Environmental Litigation, 22 Envtl. L. 412 (1992) [hereinafter 1992 Letter].

(2) 1992 Letter, supra note 1, at 415.

(3) 1998 Letter, supra note 1, at 381.

(4) 42 U.S.C. [subsections] 9601-9675 (1994). The leading case is Cash Energy, Inc. v. Weiner, 768 F. Supp. 892 (D. Mass. 1991); 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).

(5) Carl Tobias, Environmental Litigation and Rule 11, 33 Wm. & Mary L. Rev. 429, 43440 (1992).

(6) Id. at 434-35.

(7) Id. See generally Carl Tobias, Rule 11 and Civil Rights Litigation, 37 Buff. L. Rev. 485 (1989) (discussing confusion surrounding the 1983 amendment of Rule 11); Carl Tobias, Rule 11 Recalibrated in Civil Rights Cases, 36 Vill. L. Rev. 105 (1991) (discussing improved use of Rule 11 in civil litigation).

(8) 507 U.S. 163 (1993)

(9) 1994 Letter, supra note 1, at 318-19. (10) 1993 Amendment, Fed. R. Civ. P. 11, reprinted in 146 F.R.D. 401, 419-24 (1993).

(11) 1994 Letter, supra note 1, at 319.

(12) See, e.g., Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417 (7th Cir. 1994) (holding plaintiff's 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).

(13) 1995 Letter, supra note 1, at 254.

(14) 1993 Amendment, Fed. R. Civ. P. 26(a)(1), reprinted in 146 F.R.D. 401, 421-32 (1993).

(15) 28 U.S.C. [subsections] 471482 (1994).

(16) 1996 Letter, supra note 1, at 450.

(17) Carl Tobias, Improving the 1988 and 1990 Judicial Improvements Acts, 46 Stan. L. Rev. 1589, 1617 (1994).

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

(19) Id. at 936-39.

(20) Id. at 939-40.

(21) Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5096 (codified at 42 U.S.C. [sections] 471 (1994)).