First Circuit Overrules Precedent By Holding That Administrative Enforcement Does Not Bar CWA Citizens Suit
Can plaintiffs in a citizen suit piggyback on existing governmental enforcement action and enforce the same alleged violation under the Clean Water Act (“CWA”)? Yes, as long as the citizen suit does not seek civil penalties, according to the First Circuit in The Blackstone Headwaters Coalition, Inc. v. Gallo Builders, No. 19-2095, __ F. 4th __ (1st Cir. 2022). The First Circuit, sitting en banc, held that under the CWA, administrative enforcement action by the government precludes only a citizen’s “civil penalty action,” which the Court interpreted to mean an action seeking civil penalties. A citizen suit seeking other forms of relief, i.e. injunctive or declaratory, however, could proceed notwithstanding the government’s action.