• Mark Ryan

DOJ Issues New CWA Enforcement Memo

DOJ yesterday issued a memo stating that it would no longer overfile against defendants who have already been sued by a state unless several restrictive conditions are met. The memo repeatedly refers to "piling on" defendants, and makes several references to cooperative federalism and states' rights, which is interesting given that it recently promulgated a new 401 cert. rule restricting states' rights. The memo, which is dated July 27, 2020, is entitled, "Civil Enforcement Discretion in Certain Clean Water Act Matters Involving Prior State Proceedings."

I've seen a lot of DOJ memos over the years, and this one is odd. It starts by quoting Trump about how our nation's waters are the cleanest they have ever been "by far." It then goes on for pages about Congressional intent, cooperative federalism and deference to the states. Interestingly, it notes that Congress did not provide for preclusion of subsequent federal enforcement when states file civil judicial actions (CWA section 309(g) specifically exempts EPA administrative actions where the state has already filed an administrative action), but then concludes that Congress intended for DOJ to not overfile.

The effect of this memo, I think, will be to encourage defendants to work out deals with the states to bar subsequent federal action. States typically recover much smaller penalties than the feds and often ask for less injunctive relief. The memo allows for follow-up federal cases if the state penalty "would amount to an unfair windfall to the would-be defendant," but I suspect this DOJ would view that to be a pretty low bar.

One final note on this memo. Most states do relatively little enforcement, and most of their cases are administrative, not civil judicial. Since this memo applies only to the preclusive effect of state civil judicial cases, it may not come into play very often. On the other hand, states may start negotiating more of these case in response to requests from defendants who want to shut out the feds.

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