The federal Clean Water Act (CWA) allows a citizen to sue to enforce the CWA’s prohibition against discharging water pollutants without a National Pollutant Discharge Elimination System (NPDES) permit. Congress allows for citizen enforcement suits as a way to ensure regulatory agencies do their job.
Recently, the U.S. Court of Appeals for the Ninth Circuit bolstered citizens’ abilities to enforce the Clean Water Act. In California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., the U.S. appeals court reversed a lower court’s dismissal of a citizen suit brought by the California Sportfishing Protection Alliance. The group accused a local junkyard operation, Chico Scrap Metal, of violating the Clean Water Act by contaminating stormwater runoff and polluting local waterways.
Chico is a California scrap metal recycling operation. In 2008, the company pleaded guilty to 14 misdemeanor environmental violations and had to pay for cleanup costs and penalties. Two years later, when the California Sportfishing Protection Alliance sued the company for violating the CWA, the company relied on their previous pleas to argue the suit could not move forward because they had already been “diligently prosecuted.”
You see, the CWA bars citizen enforcement suits when the state “has commenced and is diligently prosecuting a … criminal action in [state court] to require compliance with [the CWA].” 33 U.S.C. § 1365(b)(1)(b). United States District Judge Garland Burrell ruled the 2008 pleas constituted “diligent prosecution” so as to bar CSPA’s suit.
The U.S. Court of Appeals for the Ninth Circuit disagreed. Writing the Opinion for the panel of three judges, Judge Susan Graber held there had been no claims yet concerning the company’s management of its storm water. The earlier proceedings aimed to enforce only laws other than the CWA. Thus, the Ninth Circuit found the state had not commenced any action in court “to require compliance” with the storm water permit nor had the state commenced any administrative penalty action comparable to one under the CWA.
The Ninth Circuit reasoned “[a]lthough the 2008 consent orders notif[ied] Defendants that they ‘may be liable for penalties’ in the future if they fail to comply with the terms of those orders, the state did not actually assess any penalties in the orders themselves.Thus, even if the cited provision […] might be ‘comparable’ to [the CWA…], Defendants’ potential liability under the consent orders” does not bar the citizen enforcement suit. 2013 U.S. App. LEXIS 14777 at *23-24.
The Ninth Circuit reversed and remanded the decision of the lower district court.
- California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc., No. 11-16959, 2013 WL 3779974, 2013 U.S. App. LEXIS 14777 (July 22, 2013). Available online at http://cdn.ca9.uscourts.gov/datastore/opinions/2013/07/22/11-16959.pdf.
- Mica Rosenberg, “Citizen suit over water pollution can move forward in California,” 7/24/13 REUTERS LEGAL 11:01:51 (July 24, 2013)