BOSTON—NELC attorneys have long believed that a 1991 decision by the U.S. Court of Appeals for the First Circuit, North and South Rivers Association v. Town of Scituate, misconstrued a critical provision of the Clean Water Act. For three decades, the Scituate decision has stood as an obstacle to the role of citizen suit enforcement of environmental laws intended by Congress.
On Sept. 26, the judges of the First Circuit called for a full court review of the Scituate opinion. The order came in a current Clean Water Act case, Blackstone Headwaters Association v. Gallo Builders, in which NELC attorneys filed an amicus curiae (friend of the court) brief urging the judges to take this step.
The provision of the Act in question prohibits the federal Environmental Protection Agency (EPA) 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 in Scituate that this provision bars citizen suits even where the government has 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 or other injunctive relief.
In the Blackstone case, the district court dismissed a citizen suit seeking to stop ongoing pollution of a river and wetlands area. Citing the Scituate opinion, the district judge ruled that the citizen group’s claims for an injunction were barred because the state had previously issued an administrative compliance order and imposed an $8,000 penalty. In April, a three-judge panel of the First Circuit upheld this ruling.
In so doing, however, the panel—citing NELC’s amicus brief—acknowledged the disconnect between the Scituate opinion and both the plain language of the Clean Water Act and the legislative history leading up to the passage of that language by Congress. Nonetheless, the judges concluded, “as a panel, we are bound by Scituate,” since it is the law of the First Circuit.
Thereafter, the plaintiff in the Blackstone case petitioned for what is called an “en banc” rehearing—a reconsideration of the Scituate question before all of the judges of the First Circuit. After calling for an amicus brief from the EPA, which also supported rehearing, the panel put the issue to the full First Circuit. A majority voted to hear the case, and the petition for rehearing was granted on the issue of whether a state administrative action bars a citizen suit for an injunction to stop ongoing illegal pollution.
A negative answer to this question would overrule Scituate and would restore a portion of the Clean Water Act’s enforcement arsenal to its rightful position. Because Scituate was the first circuit court decision to interpret this provision, it has had an influential effect nationally—and its reversal would therefore have a similarly powerful impact.