On July 27, 2020, U.S. Division of Justice (DOJ) Assistant Lawyer Basic (AAG) Jeffrey Bossert Clark issued a memorandum setting forth limitations to federal civil enforcement discretion regarding sure Clear Water Act (CWA) issues involving prior state proceedings (CWA Memo).
Particularly, the CWA Memo makes clear that DOJ disfavors federal civil enforcement if an motion has already been initiated or concluded by a state and any federal motion which may in any other case be thought of would come up from the identical operative information. Whereas the steerage doesn’t alter the statutory enforcement authority of the federal authorities, it supplies clear course on using DOJ CWA enforcement discretion in potential state overfiling conditions.
This improvement affords the regulated neighborhood larger reassurance that federal overfiling will proceed to be uncommon. The CWA Memo doesn’t tackle the separate difficulty of federal oversight of allowing actions delegated underneath the CWA or different main federal statutes. Such oversight is anticipated to stay sturdy.
The CWA Memo is according to the U.S. Environmental Safety Company (EPA)’s 2019 steerage, Enhancing Efficient Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work. In tandem, these DOJ and EPA pronouncements underscore the present Administration’s coverage of offering vital deference to states approved to implement the CWA’s applications underneath its cooperative federalism framework.
The CWA Memo’s Directive
The CWA Memo cites federalism rules to assist DOJ’s new coverage, noting that Congress expressly precluded federal CWA civil enforcement actions subsequent to state administrative motion in just a few particular circumstances. Though Congress didn’t present the same specific bar on federal enforcement motion in different circumstances, DOJ has concluded that Congress meant the federal authorities to take an expansive view of the vary of circumstances during which the federal authorities usually mustn’t over-file.
For instance, the CWA Memo highlights how, in CWA subsection 309(g)(6), Congress dictated that the federal authorities can’t convey a civil enforcement motion after a state has initiated administrative proceedings just like federal administrative proceedings. DOJ notes that this CWA provision is silent as to state judicial proceedings, and advances the place that the federal authorities ought to chorus from overfiling within the absence of an final result in a state court docket case that the federal authorities views as clearly misguided underneath the CWA. CWA Memo, pp. 5-6 (“Surprisingly, nonetheless, nothing within the CWA affords comparable preclusive impact to state judicial enforcement actions, despite the fact that such civil judicial enforcement actions will inherently embody extra sturdy processes to guard the rights of defendants than the § 309(g)-referenced state administrative proceedings.”).
Because of this, DOJ’s coverage is to keep away from federal “piling on” high of state enforcement actions. That is according to different coverage statements from DOJ made within the Justice Handbook and the “Petite Coverage” (named after Petite v. United States, 361 U.S. 529 (1960)), each of which debate the train of discretion when bringing subsequent federal enforcement actions.
Below the CWA Memo, DOJ will use a set of standards to judge whether or not it ought to convey federal civil CWA actions subsequent to state enforcement. Particularly, if a state has already begun or concluded a civil enforcement motion for penalties underneath analogous state regulation for a similar conduct, no federal civil judicial enforcement is permitted with out pre-approval from the AAG.
Pre-approval to proceed with federal enforcement motion could also be granted based mostly on any of six particular components, in addition to a catch-all:
The end result of the prior state enforcement motion would quantity to an unfair windfall to the would-be defendant;
The State is just not diligently prosecuting an initiated civil enforcement motion;
The State makes a written request for the federal authorities to pursue separate motion, citing a foundation for the request, that, in mild of all circumstances, DOJ concludes wouldn’t quantity to unfair “piling on”;
The State has been unable to gather its penalty and makes a written request for federal help;
A federal motion is critical to guard an necessary federal curiosity that the state motion won’t adequately tackle;
The federal motion would search solely applicable injunctive reduction to fill a discernible hole within the prior state reduction; or
There are different distinctive circumstances justifying federal involvement.
Lastly, within the occasion a state introduced a civil motion however the penalties sought had been denied by a state court docket, the AAG will disfavor granting pre-approval of a associated federal civil enforcement motion, though exceptions could also be allowed. The CWA Memo additionally clarifies that the detailed components will not be meant for use mechanically, however that every case must be thought of by itself deserves.
Implications of the Directive
The CWA Memo seems to verify the long-standing observe of the federal authorities to pursue overfiling in solely a restricted set of enforcement circumstances. State and federal companies typically companion to convey a case as co-plaintiffs, and in some circumstances the CWA requires state involvement in an enforcement motion. E.g., 33 U.S.C. § 1319(e) (states should be joined as events in any civil enforcement motion towards a municipality). In observe, states have been and can stay within the lead for many enforcement actions taken underneath delegated applications just like the CWA’s NPDES (Nationwide Air pollution Discharge Elimination System) allow regime.
To the extent there was the kind of duplicative enforcement described within the CWA Memo, DOJ’s written pronouncement is welcome information. We anticipate DOJ will difficulty further coverage supplies on the scope of federal regulatory and enforcement discretion. For instance, the CWA Memo signifies DOJ plans to difficulty a coverage assertion concerning reliance on legislative historical past to increase or justify enhanced interpretations of federal environmental legal guidelines. General, the CWA Memo seems to be a part of a collection of coverage pronouncements by the Trump Administration to bolster its emphasis on the precept of cooperative federalism in federal environmental legal guidelines.