2020 Environmental Real Estate Issues

In response to a citizen’s suit under the Clean Water Act (CWA), the defendants obtained dismissal from the district (trial level) court, because the state agency had issued an administrative order for the same violations. In Blackstone Headwaters Coalition v. Gallo Builders, the1st Circuit issued an en banc opinion that the citizen’s suit could proceed to the extent the citizen group was requesting only declaratory or injunctive relief but not civil penalties for the violations.

No Suit if EPA or the State Is Enforcing
While the CWA allows citizens to sue for ongoing CWA violations, it does not allow a citizen to bring a “civil penalty action” if EPA or a state under comparable state law is diligently prosecuting an action or has issued a final order regarding the same alleged violations.

Earlier Opinion Overruled
A three-judge panel upheld the dismissal, based on an earlier 1st Circuit opinion that determined the CWA’s prohibition of a citizen’s “civil penalty action” also prohibited a suit only for injunctive relief. However, all 1st Circuit’s judges, using the seldom used “en banc” procedure, reconsidered the case, overruled its earlier opinion, and reversed the district court’s dismissal. Interestingly, the en banc opinion was unanimous; the judges that had initially upheld the dismissal (no doubt due to the earlier opinion) were willing to overrule the earlier opinion in an en banc proceeding.

Circuit Split
Although this case announced the law in the 1st Circuit, the Court noted that at least one other circuit agrees with the earlier opinion and forbids all suits if EPA or a state is diligently prosecuting an action or has issued a final order. The split in the circuits may increase the chance the US Supreme Court considers the issue.

To see the Court’s opinion http://media.ca1.uscourts.gov/pdf.opinions/19-2095P2-01A.pdf