What a difference 31 years makes. In 1991 the U.S. Court of Appeals for the First Circuit found it “inconceivable” that the federal Clean Water Act’s (CWA’s) bar on citizen suits extended only to civil-penalty actions and not declaratory and injunctive actions, finding that the ban applied to all three. North and South Rivers Watershed Ass’n v. Scituate, 949 F.2nd 552, 558 (1st Cir. 1991), reviewing CWA section 309(g)/33 USC §1319(g)(6). On April 26, 2022, the same circuit not only conceived it, but made it so, finding that alleged violators are no longer shielded by the CWA’s bar on citizen suits seeking declaratory and injunctive relief, even when a state has commenced and is diligently prosecuting enforcement under state law. The Blackstone Headwaters Coalition, Inc. v. Gallo Builders, Inc. et al., case no. 19-2095 (1st Cir. Court of Appeals, April 26, 2022). The circuit’s about-face has potentially significant implications for governmental enforcement actions under the CWA.
The Blackstone decision arose from a 2016 CWA lawsuit by the environmental nonprofit Blackstone Headwaters Coalition (Blackstone) against the developers and builders of a large apartment complex in Worcester, Massachusetts, for alleged pollution of the Blackstone River by silt-laden stormwater runoff from inadequate erosion and sediment controls.
Three years prior to Blackstone’s lawsuit, in 2013, the Massachusetts Department of Environmental Protection (MassDEP) had addressed the runoff by issuing a Unilateral Administrative Order (UAO) for violations of the Massachusetts Wetlands Protection Act (MWPA), Mass. Gen. Laws, Ch. 131, § 40. That UAO was ultimately settled by way of an Administrative Consent Order with Penalty (Consent Order) requiring a monetary payment and various remedial actions.
Shortly after the Consent Order was issued, Blackstone filed suit, contending that discharges were continuing despite the Consent Order, and sought penalties; a declaration that the defendants were violating the CWA; and an injunction prohibiting further violations, requiring restoration of polluted wetlands and waters, and requiring that defendants report future stormwater issues to the EPA and to Blackstone.
Blackstone brought its suit pursuant to the CWA’s citizen-suit provision at 33 U.S.C. § 1365(a)(1), which authorizes "any citizen" to "commence a civil action on his own behalf" against "any person . . . who is alleged to be in violation of . . . an effluent standard or limitation under" the CWA. 33 U.S.C. § 1365(a)(1). That same section, however, sets forth that such civil actions may not be brought under certain circumstances, including those set forth in section 1319(g)(6), which specifies that the following “shall not be the subject of a civil penalty action”: actions for which the federal government “has commenced and is diligently prosecuting an action under this subsection;” actions for which “a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection;” or actions for which the federal or state government “has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law.” 33 U.S.C. § 1319(g)(6)(A).
In summary judgment motions, the Blackstone defendants contended that, with respect to the above limitations, MassDEP's enforcement actions constituted "diligent prosecution" under state law "comparable" to the CWA for the "same violations" alleged by Blackstone, such that Blackstone should be banned from pursuing its suit. Blackstone countered that MassDEP's enforcement actions did not constitute "diligent prosecution," that the MWPA was not, unlike the Massachusetts Clean Water Act, a state law "comparable" to the CWA, and that the CWA only applied to “civil penalty actions,” not injunctive/declaratory relief. The district court found for the defendants. In doing so, it relied on the Scituate case precedent.
The appeals court, however, revisited the Scituate decision, holding that the summary judgment ruling against Blackstone should be reversed as to its holdings on declaratory and injunctive relief because the limitation in 33 U.S.C. §1319(g)(6)(A) applies only to a citizen suit for civil penalties, not other types of relief. The appeals court did agree with the district court that MassDEP conducted diligent prosecution (finding that it did so through its UAO, Consent Order, and related inspections), and questioned the MWPA’s comparability to the federal CWA.
The Scituate court had based its decision upholding the citizen-suit ban on several considerations. That appeals panel found that “[t]he primary function of the provision for citizen suits is to enable private parties to assist in enforcement efforts where Federal and State authorities appear unwilling to act.” Scituate, 949 F.2nd at 555. In other words, the court concluded that any citizen suit should be supplemental to governmental enforcement. “[W]hen it appears that governmental action under either the Federal or comparable State Clean Water Acts begins and is diligently prosecuted, the need for citizen's suits vanishes.” Id. To find otherwise, the appeals court reasoned, would mean that citizen’s suits could undermine government enforcement efforts. Id. at 556. Further, “it would be absurd” to find that the ban on civilian actions only extends to penalties, since that result would “lead to deferring to the primary enforcement responsibility of the government only where a penalty is sought . . . , as if the policy considerations limiting civilian suits were only applicable within that context.” Id. at 558. Additionally, “[d]uplicative enforcement actions add little or nothing to compliance actions already underway, but do divert State resources away from remedying violations in order to focus on the duplicative effort.” Id. at 556.
The Blackstone court, however, was persuaded to narrow the citizen-suit ban to only those actions seeking monetary penalties by referring to the explicit language of the statute, which speaks only to “civil penalty” actions, not injunctive/declaratory relief. In doing so, the court emphasized legislative history (which the Scituate court had eschewed). The court quoted references in the history suggesting that agencies could intervene in citizen suits or bring their own judicial actions. The court also looked to a 2005 Tenth Circuit case that made clear that “[t]he governing principle behind [the CWA’s citizen-suit ban] is to avoid duplicative monetary penalties for the same violation . . . [but that provision] does not apply to equitable relief.” The court noted no evidence that Congress planned to extend the bar farther.
So, what does the narrowing of the citizen-suit ban mean for the regulators and the regulated? Time will tell, but, as the Scituate court had considered, it could negatively impact government enforcement efforts. If the threat of a citizen suit hangs over the regulated community, why would a regulated entity or individual want to settle an administrative action? And why would government, with its typically limited resources, bother pursuing violations that could be upended by citizen suits, which themselves might require extensive government resources to address? Suddenly, actions which, if pursued administratively, could have been satisfactorily resolved in relatively short order, now could be extended by litigation for years.
