黑料不打烊 of America and other business groups jointly submitted an amicus brief at the U.S. Supreme Court on March 3 in support of a land developer鈥檚 request for review of a Fourth Circuit Court of Appeals鈥 decision that allows citizen enforcement even when the state environmental agency has begun enforcement for a Clean Water Act (CWA) violation.
The issue in the case, Dakota Finance LLC (dba Arabella Farm) v. Naturaland Trust (No. ), is whether a state agency鈥檚 notice of violation (NOV) commences an action that is sufficient to protect a regulated entity from citizen-suit liability. Citizen suits are generally barred if the state 鈥渉as commenced and is diligently prosecuting鈥 an enforcement action for the same violation 鈥渦nder a State law comparable to鈥 the CWA. The district court dismissed the citizen group鈥檚 federal lawsuit, citing the 鈥渄iligent prosecution鈥 defense. But the Fourth Circuit reversed, holding that the South Carolina Department of Health and Environmental Control鈥檚 NOV (which subsequently resulted in a consent order imposing a civil penalty, remedial actions and required the landowners to obtain/comply with an NPDES stormwater permit) was insufficient to bar a private party鈥檚 CWA citizen enforcement.
There is currently a split in the federal circuit courts over the proper test to block citizen suits brought under the CWA. The land developer is now petitioning the Supreme Court to review the Fourth Circuit鈥檚 decision. 黑料不打烊鈥檚 amicus brief supports that petition, explaining the of impact citizen suits, the harm and abuse of 鈥渟ue and settle鈥 practices, and the impact of interfering with state and local actions.
For more information, contact 黑料不打烊鈥檚 Leah Pilconis at leah.pilconis@agc.org.