North and South Rivers Watershed Ass’n v. Town of Scituate, a 1991 case with nationwide precedential value, misconstrued a provision of the Clean Water Act that prohibits the federal Environmental Protection Agency and citizen suit plaintiffs from seeking court-imposed penalties for violations that have already been the subject of a diligently prosecuted administrative penalty. The First Circuit ruled that this provision bars citizen suits even where the government sought no penalties, and ruled further that administrative actions bar all aspects of a citizen suit— even where the defendant continues to violate the Act and the citizen plaintiff seeks court-ordered pollution reduction.

When the issue resurfaced before the First Circuit in another Massachusetts water pollution case, Blackstone Headwaters Association v. Gallo Builders, NELC submitted an amicus brief on behalf of Environment America, Environment Massachusetts, Environment Maine, and Environmenta Rhode Island. Therein, NELC attorneys argue that the Scituate opinion “contravenes the plain language and legislative history of the statute and should be reversed.”