BOSTON – In a 27-page opinion released last Thursday, the full “en banc” panel of the U.S. Court of Appeals for the First Circuit made it easier for Americans to sue to stop ongoing violations of the Clean Water Act. In response to an appeal of a recent water pollution case in Massachusetts, Blackstone Headwaters Coalition, Inc. v. Gallo Builders, et al., the First Circuit reversed its own previous decision, which had thwarted similar efforts in the past.
“For three decades, the existence of prior administrative enforcement actions by government agencies has prevented citizens in New England from filing lawsuits seeking court orders to stop illegal water pollution,” explained John Rumpler, Clean Water Program Senior Director for Environment America. “The Blackstone case is a very recent example of how the court’s 1991 Scituate ruling had left citizens virtually powerless to stop many ongoing violations.”
The overturned decision, North and South Rivers Watershed Association v. Town of Scituate, focused on a provision of the Clean Water Act stating that citizens may not bring a “civil penalty action” to address violations that have already been the subject of an administrative penalty levied by the state or the federal Environmental Protection Agency. Citing “policy considerations,” however, the ruling in Scituate added the court’s own interpretation of this preclusion, which was much broader than the language Congress used in the statute. The court determined that if the government was pursuing the matter administratively, citizen plaintiffs could neither seek civil penalties for, nor seek a court order (an injunction) to stop, ongoing illegal pollution.
But last week, the First Circuit used the opportunity presented by the Blackstone Headwaters Coalition case to revisit this analysis. Blackstone Headwaters Coalition, a nonprofit environmental organization, alleged that the developers of a construction site were illegally discharging pollutants into a tributary of the Blackstone River. These violations continued despite an administrative order issued against the defendants by the Massachusetts Department of Environmental Protection. U.S. District Court Judge Timothy Hillman nonetheless granted summary judgment in favor of the defendants in 2019, citing Scituate.
Attorneys from the National Environmental Law Center (NELC) submitted an amicus curiae (“friend of the court”) brief on behalf of Environment America and its state affiliates in support of Blackstone’s appeal to the First Circuit, arguing that the Scituate opinion “contravenes the plain language and legislative history of the statute and should be reversed.”
After a three-judge First Circuit panel relied on Scituate in affirming Judge Hillman’s decision, Blackstone’s attorney James Vander Salm successfully petitioned the First Circuit to take the extraordinary step of reconsidering Scituate en banc. NELC and Environment America submitted a second amicus brief in support of this request. The U.S. Department of Justice and the office of Massachusetts Attorney General Maura Healey also joined in, each submitting a friend of the court brief urging that Scituate be overturned.
The April 28 en banc opinion, authored by Chief Judge David J. Barron, holds that Scituate “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” of the Clean Water Act.
“We expect that this well-reasoned opinion will have a positive impact on Clean Water Act compliance in New England and throughout the country,” added NELC attorney and amicus brief co-author Matthew Donohue.
The decision revives Blackstone Headwaters Coalition’s claim for injunctive relief. Now, the case has been remanded back to the district court for further review.
Environment America and its state affiliates, including Environmental Maine, Environment Massachusetts, and Environment Rhode Island, are citizen-based, non-profit, non-partisan environmental advocacy organizations that promote clean air, clean water, and open space protection.
National Environmental Law Center is a Boston-based, non-profit that represents citizen groups across the country in actions to enforce the nation’s environmental laws.