The answer to the question is yes, as long as the federal citizen suit does not seek civil penalties. This according to the First Circuit Court of Appeals decision, issued April 28, 2022, in the case of Blackstone Headwaters Coalition, Inc. v. Gallo Builders, No. 19-2095, 32 F. 4th 99 (1st Cir. 2022).
Civil penalties are court-ordered money sanctions. Previously, the conventional wisdom was that EPA or state enforcement of any kind against the same violator for the same violation could entirely preclude a federal water pollution suit filed by citizens, seeking any type of relief.
Indeed, a common tactic of choice of companies targeted by citizen suits has been to quickly arrange some form of EPA or state administrative enforcement, and then agree to comply. Sometimes this agency enforcement might be tough and strong, other times token and weak.
Until recently, then, EPA or state enforcement usually has been regarded as a complete defense to a citizen suit. Courts have declined to order permanent injunctive relief, for example, where the defendant had made a persuasive showing that it was complying with orders issued as a result of a federal or state administrative enforcement action and that the defendant's compliance yielded improvement in the environmental conditions of concern.
Against this background, the First Circuit, sitting en banc in the Blackstone case, ruled that under the CWA, administrative enforcement action by the government results in preclusion only a citizen’s “civil penalty action.”
The Court of Appeals interpreted this term in the CWA to mean only a court suit seeking civil monetary penalties. A federal citizen suit seeking other (non-monetary) forms of relief, such as equitable relief like a prospective injunction or declaratory judgment, therefore, may proceed notwithstanding the government’s action.
The Blackstone case arose as a result of stormwater discharges from defendants’ development project in Worcester, MA. The Massachusetts Department of Environmental Protection (MassDEP) had entered into an administrative settlement with the main defendant in the form of an Administrative Consent Order with Penalty (ACOP).
The MassDEP ACOP required the defendant to pay an $8,000 civil penalty, to undertake certain remedial measures at the site, and to pay additional stipulated penalties if there were further discharges of turbid stormwater from the site.
About three years later, the Blackstone plaintiff organization filed a citizen suit under the CWA against several defendants involved in the construction site. This suit sought civil penalties as well as declaratory and injunctive relief against alleged continued stormwater discharges.
The Blackstone defendants argued that the citizen suit was precluded by Section 1319(g)(6)(A) of the CWA because the violations were subject to an ongoing “diligent prosecution” by MassDEP under its ACOP. Their defense relied on the First Circuit’s earlier decision in the case of North & South Rivers Watershed Ass’n v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991).
That preclusion of suit defense by “diligent prosecution” refers to language in the CWA. In the language of the CWA, the Blackstone defendants defended on the ground that the MassDEP's administrative “enforcement action” constituted a "diligent prosecution" under a state law "comparable" to the CWA for the "same violations" alleged in the citizen suit.
As context, we briefly note that a federal citizen suit is totally precluded by EPA or state litigation—that is actually a civil suit or criminal prosecution. The court cases call that the “broadest preclusion.” A "narrower preclusion” exists, they say, when the federal or state agency does something less than judicial enforcement, such as here in Blackstone.
We have to note that in the Scituate case, over 30 years ago, a First Circuit panel had ruled that the limitation on citizen suits established by Section 1319(g)(6)(A) precludes a citizen suit which seeks to obtain declaratory or prospective injunctive relief for a violation of the CWA.
The First Circuit in Scituate had reasoned that duplicative enforcement actions, one by the government and one by citizens, would be inconsistent with the CWA’s statutory scheme entrusting the government with primary enforcement authority.
In the first appeal phase of the Blackstone case, indeed, a panel of the First Circuit agreed with the defendants and relied on Scituate to affirm the federal District Court's grant of summary judgment against the citizen organization.
In an interesting twist, the full First Circuit Court of Appeals, upon request, then revisited and reconsidered its decision in Scituate, decided it was wrongly decided back then, and vacated its own panel opinion in the pending case.
The Court of Appeals ruled that the limitation set forth in Section 1319(g)(6)(A) bars only a citizen suit that seeks to impose a civil penalty for an ongoing violation of the CWA and does not bar a citizen suit for declaratory and prospective injunction relief to redress an ongoing violation of the CWA.
The practical implications are important. The CWA and several other federal environmental statutes contain citizen suit provisions. These simplify standing for private persons by eliminating the “injury in fact” part of the test of standing.
These citizen suit provisions effectively make private plaintiffs “little attorneys general” seeking the same, similar or different remedies (or often more extensive or stricter remedies) as the federal and state air, water, wetlands, sewage, drinking water, solid waste, and hazardous waste agencies.
Citizen suits are usually filed in the absence of any government enforcement. Overall, the courts have recognized the benefits of citizens being empowered to sue environmental violators.
Citizen suits are regarded as an important supplement to government enforcement of the CWA, given that the government has only limited resources to bring its own enforcement actions.
Here in the First Circuit, EPA and MassDEP cannot be everywhere and know everything. Now citizen plaintiffs can seek civil money penalties if the EPA and MassDEP have not.
