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 Environment Rhode Island. Therein, NELC attorneys argue that the Scituate opinion “contravenes the plain language and legislative history of the statute and should be reversed.”

The district court initially granted summary judgment against the citizen plaintiff in Blackstone, citing the Scituate case. After a three-judge First Circuit panel relied on Scituate to affirm the district court’s decision, counsel for the citizen plaintiff successfully petitioned the First Circuit to take the extraordinary step of reconsidering Scituate en banc. NELC and Environmental America submitted a second amicus brief in support of the request, along with the U.S. Department of Justice and the office of Massachusetts Attorney General Maura Healey.

In April 2022, the First Circuit issued its en banc opinion. Authored by Chief Judge David J. Barron, the opinion holds the 1991 case “construed…the limitation on citizen suits too broadly,” and confirms that the initiation of a government administrative action does not preclude “a citizen suit for declaratory and prospective injunctive relief to redress ongoing violations.”

This long-sought decision strengthens Clean Water Act citizen suits in New England and throughout the country.