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May 5, 2022

05 May 2022

First Circuit Holds State Administrative Enforcement Does Not Bar a Subsequent Clean Water Act Citizen Suit for Injunctive Relief

On April 28, 2022, the U.S. Court of Appeals for the First Circuit, sitting en banc, considered in Blackstone Headwaters Coalition, Inc. v. Gallo Builders, Inc. et al. whether a state consent order settling claims under a state analogue to the federal Clean Water Act (CWA) barred a subsequent citizen suit brought under the CWA seeking injunctive and declaratory relief arising out of the same alleged discharges. Over 30 years before, in North and South Rivers Watershed Ass’n v. Town of Scituate, the First Circuit held that CWA enforcement barred subsequent citizen suits arising out of the same alleged violations, regardless of the type of relief sought. In Blackstone, the en banc First Circuit overruled Scituate and held that the prior state consent order bars only citizen suits seeking civil penalties. (more…)

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