• 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.

If you would like to receive email notifications of new blogposts, go to the signup button above, leave your email, and you'll be alerted to updates.

54 views0 comments

Recent Posts

See All

The Maui RTC

The EPA's Maui Guidance, which was finalized at the bleeding end of the Trump administration (see my blogpost from two days ago), has published in the Federal Register. See attachment FR notice below.

The Proposed Mens Rea Regs Never Went Final

In my Dec. 11 blogpost, I discussed the proposed new regulations to amend the EPA regulations used to approve state programs under 402 and 404. The public comment period ended last week, giving EPA a

EPA Finalizes the Maui Guidance

EPA quietly finalized the Maui Guidance this past week. I suspect the outgoing EPA administration was just too busy finalizing last-minute rules, policies and guidances to do more than the minimum. Th

© 2016 by Ryan & Kuehler PLLC.

  • Facebook Basic Black
  • LinkedIn Basic Black
  • Twitter Basic Black