A Classic Distinction Between Legal Remedies and Equitable Remedies:  1st Circuit Overturns Decades-Old Precedent On Citizen Enforcement of Clean Water Act

The First Circuit recently overturned a thirty-one year old decision on citizen enforcement of the Clean Water Act (CWA).  The now-overruled decision is North and South Rivers Watershed Ass’n v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991), in which the court held that citizen enforcement of the CWA was barred when a party has already settled the alleged violations with the state.  Notably, Scituate did not distinguish between the type of relief sought – whether the action demanded legal relief or equitable relief. 

Blackstone Headwaters Coal, Inc. v. Gallo Builders, Inc. gave citizens the green light to pursue actions seeking equitable relief, even when the defendant had already settled the alleged violations with the state.  In Blackstone, a non-profit environmental organization brought suit against four defendant-developers after they had already faced penalties from the state for violations of the CWA.  Years prior, MassDEP issued a Unilateral Enforcement Order against the defendants for several violations of the CWA.  These violations related to the construction of a large residential development in Worcester known as the Arboretum Village.  In response to the order, the defendants entered into an Administrative Consent Order with Penalty with MassDEP and paid an $8,000 administrative penalty and undertook remedial actions at the site.  Years later, the citizens group filed suit against the defendants for those same violations seeking (i) a declaratory judgment that the defendants were in violation of the CWA, and (ii) an injunction prohibiting further violations of the CWA.  Relying on Scituate, the defendants claimed the suit was statutorily precluded by 33 U.S.C. s. 1319(g)(6)(A), which bars “civil penalty action[s]” initiated via a citizen suit. 

Notwithstanding the holding in Scituate—which if honored would have provided a victory for the defendants—the First Circuit clarified when citizen enforcement actions of the CWA are permissible.  Looking to the legislative history, the court noted that the limitation on “civil penalty actions” does not apply to an action seeking other forms of relief, such as an injunction or declaratory judgment.  The First Circuit also looked to a decision by the Tenth Circuit in Paper, Allied-Industrial v. Continental, 428 F.3d 1285 (10th Cir. 2005), which reasoned that the governing principle behind the bar on “civil penalty actions” is to “avoid duplicative monetary penalties for the same violation.”  Equitable remedies do not run astray of this principle and, accordingly, are not barred by the statute. 

About Erik McHale

Erik is an associate in the Mirick O'Connell’s Real Estate and Environmental Law Group and the Public and Municipal Law Group. Erik represents buyers and sellers in all types of real estate transactions. He also represents both commercial landlords and tenants in lease negotiations.
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