Ryan Whaley Coldiron Shandy

What happened:  The Eleventh Circuit decided a major case taking away a potential defense for companies and other defendants seeking to block a Clean Water Act (CWA) citizen suit.  Essentially, the Court held that a defendant cannot prevent a citizen suit from proceeding by getting the state regulatory agency to take an administrative or civil enforcement action that might result in a lighter penalty.  If a citizen provides notice of intent to sue under the CWA before any enforcement action has been taken, and files suit within 120 days after the notice of intent to sue, the citizen suit can proceed even if the state takes enforcement action after the notice of intent to sue.

Rationale:  Citizens are required to give a 60-day notice of intent to sue before filing a CWA citizen suit.  Separate provisions in the CWA bar citizen suits when EPA or a state agency has commenced and is diligently prosecuting an enforcement action against a polluter.  The bar contains exceptions language, but defendants typically argue that language only lifts the bar with regard to enforcement by EPA.  The Eleventh Circuit rejected this contention, ruling that the exceptions language applies to both EPA and state enforcement actions based on its plain and ordinary meaning, and that the citizen suit bar is lifted when notice of intent to sue is given before either an EPA or state enforcement action (and the citizen suit is then timely filed).  The Court also found that its interpretation was consistent with Congress's intent to avoid placing obstacles in the way of citizen suits and maximizing the lmiited resources of EPA, states, and citizens as enforcers and guardians of the Nation's waterways. 

Consequences:  This ruling will likely encourage more CWA citizen suits because defendants will not be able to block these suits  by entering into consent orders with state regulators to resolve the violations which led to the citizens' notice of intent to sue.  

Example:  Company fails to comply with stormwater permit and the muddy run-off impacts landowners downstream.  Landowners properly issue 60-day notice of intent to sue before any state enforcement action is taken.  Landowners can maintain suit even if state then takes enforcement action (provided landowners sue within 120 days of notice of intent to sue).

Case:  Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 548 F.3rd 986 (11th Cir. 2008) (rehearing en banc denied).