From Maui to Guam to Worcester, MA -- Another Clean Water Act Citizen Suit Continues

Yesterday while the Supreme Court was hearing oral argument from lawyers for Guam and the United States regarding whether a 2004 Federal Clean Water Act consent decree affected Guam's ability to bring a 2017 CERCLA contribution action, a panel of the First Circuit Court of Appeals was issuing its opinion concluding that a 2014 Massachusetts DEP administrative consent order under the Massachusetts Clean Waters Act preempted a 2016 citizen suit under the Federal Clean Water Act.

As quoted below, the lawsuit lives on against two individual defendants and one of their entities because they weren't parties to the applicable consent order or general  permit coverage though another entity they controlled was.

For me, the most important part of the opinion is that part which endorses First Circuit precedent that the "great volume of enforcement actions are intended to be brought by the State, and citizen suits are proper only if the Federal, State, and local agencies fail to exercise their enforcement responsibility."  Despite that principle, and having affirmed the District Court's conclusion that the Commonwealth of Massachusetts had discharged its enforcement responsibility here, this particular five year old citizen suit lives on.  Expect more, just as the Supreme Court invited a year ago in its Maui decision.

Back to Guam, and reasonable expectation of settling parties, at least in the First Circuit, it remains incumbent on counsel to negotiate the broadest possible scope of any settlement, and to make sure that all of one's clients are covered.