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- Title
FORGING COMPLETE JUSTICE: EQUITABLE RELIEF IN ENVIRONMENTAL ENFORCEMENT.
- Authors
Colangelo, Sara A.
- Abstract
Fifty years after the rise of modern environmental law and its robust enforcement regime, there persists a disproportionate distribution of environmental burdens in the United States. Many underserved communities suffer from legacy pollution, siting of undesirable land uses, failing infrastructure, and attendant epidemiological and ecological harms. The environmental justice movement responds to these inequities and is receiving unprecedented focus in the Biden Administration. Communities, politicians, and attorneys are crafting legal and policy mechanisms to achieve environmental justice goals. However, there are presently tools that advocates can and should deploy in service of complete justice in environmental enforcement. This Article advances a type of non-statutory, equitable relief called mitigation to provide redress to communities harmed by violations of environmental laws. Mitigation is restorative relief: it offsets or remedies harm from past violations of law. Some federal environmental statutes explicitly require cleanup of illegal pollution following a finding of liability. Some do not, including the two most commonly enforced environmental statutes, the Clean Air Act and the Clean Water Act. When statutes do not contain such a command, equity fills the gap. The principles of equity assist enforcers in securing the status quo ante for places and people impacted by illicit pollution. Indeed, in aiming to offset harm from environmental violations, the United States included mitigation in enforcement cases for decades, until the Trump Administration. Trump appointees at the Department of Justice authored policy memoranda curtailing tools for redressing environmental harm, including mitigation. While career officials rescinded those memoranda under the Biden administration, the arguments will no doubt resurface. Further, three recent Supreme Court cases have also reinvigorated debate over the scope of non-statutory equitable remedies that may be ordered for violations of federal law. Mitigation, however, remains largely unaddressed by scholars. This Article provides legal and prescriptive arguments regarding mitigation as equitable relief. It offers an analysis of why mitigation is a remedy courts can award under their inherent equitable authority when it is not provided for explicitly in a statute. The Article then identifies how and why mitigation should be used more broadly in enforcement matters in robust consultation with communities harmed by illicit pollution to serve goals of corrective and restorative justice. This Article is framed in the language of two foundational cases on equitable remedies, Porter v. Warner Holding Co. and Mitchell v. Robert De Mario Jewelry, Inc., which speak of equitable relief enabling the achievement of "complete justice." This Article posits that complete justice in the environmental enforcement context demands more than an order to come into compliance and a civil penalty sent to the Treasury. It demands restorative relief. Otherwise, unauthorized pollution from violations of laws that do not specifically provide for remediation goes unabated. The expanded use of mitigation in settlements and litigation will provide concrete redress for harms in communities suffering environmental injustices.
- Subjects
ENVIRONMENTAL law; ENVIRONMENTAL justice; EQUITABLE remedies (Law); POLLUTION; CORRECTIVE justice; RESTORATIVE justice; CLEAN Air Act (U.S.); CLEAN Water Act of 1977 (U.S.)
- Publication
Harvard Environmental Law Review, 2022, Vol 46, Issue 2, p315
- ISSN
0147-8257
- Publication type
Article