Almost two years to the day after the United States Supreme Court's decision in Maui v. Hawaii Wildlife Fund, the First Circuit Court of Appeals rendered its decision in The Blackstone Headwaters Coalition v. Gallo Builders.  Both opinions interpreting the Federal Clean Water Act were authored by legal giants and both make compete sense except in the real world.

In Maui, in an attempt to address the millions of property owners who don’t have a federal permit authorizing their discharges of "pollutants" to groundwater, Supreme Court Justice Breyer shared the Court’s expectation that District Court Judges would “exercise their discretion mindful, as we are, of the complexities inherent in the context of indirect discharges through groundwater, so as to calibrate the Act’s penalties when, for example, a party could reasonably have thought that a permit was not required.”

But Justice Breyer didn’t explain how would-be defendants were to pay the hundreds of thousands of dollars in legal fees to get to the ends of now viable cases at which time Judges would "exercise their discretion", let alone also pay the attorneys' fees of those who sued them as authorized by the Clean Water Act.

Now the First Circuit has abandoned what had been the law of the First Circuit (and apparently is still the law of the Eighth Circuit) in holding that a settlement of Clean Water Act claims by the Government does not preclude a subsequent citizen suit for injunctive relief (and, of course, attorneys' fees).

Chief Judge Barron, writing for the Court, says we shouldn't worry about this because, quoting a 1993 New York District Court decision, "[a] court which entertains a citizen action for injunctive relief can manage the action so as to ensure . . . that the [defendant] will not be whipsawed by multiple actions."

Like Justice Breyer, Chief Judge Barron doesn't seem to have accounted for the punitive costs of the defense necessary to have a District Court Judge exercise her discretion.

And so, as I told Inside EPA water guru Lara Beaven when she was writing the article linked below, Maui and Blackstone Headwaters will mean many more citizen suits with many more would-be defendants settling what may or may not be meritorious claims because they can't afford to defend themselves.  I don't see that either the Maui Court or the Blackstone Headwaters Court accounted for that real world reality.

Perhaps, since the real world, and our understanding of it, has changed quite a bit since the Clean Water Act became law over the President's objection fifty years ago, Congress might take another look at how our Governments can do a better job of accomplishing the Act's purposes and what the appropriate role is for citizen suits in that real world.