BOSTON – On March 3, NELC filed an amicus curiae (friend of the court) brief with the First Circuit Court of Appeals, asking that court to reverse a decades- old decision that restricts citizen enforcement of the Clean Water Act far more severely than Congress intended.
That decision, North and South Rivers Watershed Ass’n v. Town of Scituate, from 1991, 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.
This latter issue is now before the First Circuit again in another Massachusetts water pollution case, Blackstone Headwaters Association v. Gallo Builders. In this case, the citizen group plaintiff alleges that the defendant has been unlawfully discharging high levels of suspended solids into a tributary of the Blackstone River for over a decade. The Massachusetts Department of Environmental Protection had issued an administrative order against the defendant in 2014, and the citizen group filed suit to enforce the Clean Water Act in 2016, alleging that the pollution violations were continuing despite the state’s order. Nonetheless, citing the First Circuit’s Scituate decision, U.S. District Court Judge Timothy Hillman dismissed the suit in 2018.
The citizen group filed an appeal with the First Circuit. On behalf of Environment America, Environment Massachusetts, Environment Maine, and Environment Rhode Island, NELC submitted an amicus brief in support of the citizens.
The brief, authored by NELC attorneys Chuck Caldart and Matt Donohue, argues that the Scituate opinion “contravenes the plain language and legislative history of the statute and should be reversed.” The Clean Water Act, the brief explains, prohibits duplicate penalties for the same violations, but does not allow administrative orders to bar citizen suits seeking to compel compliance with the statute.
In Scituate, the First Circuit ruled that allowing citizen suits to go forward in the face of government administrative orders would be “undesirable” and “absurd,” and the court thus refused to follow the “literal” language of the statute. In so doing, the NELC brief argues, the court improperly substituted its own view of appropriate public policy for the policies chosen by Congress. “It is abundantly clear,” the brief argues, “that the plain language of [the Clean Water Act] does not lead to ‘absurd’ or ‘irrational’ results,” but rather “embodies the sensible and effective enforcement scheme envisioned by Congress”—one that favors “compliance and deterrence.”