32 F.4th 99
1st Cir.2022Background
- In 2013 MassDEP issued a Unilateral Administrative Order to Arboretum Village for silt-laden runoff at a Worcester construction site; the matter settled in an Administrative Consent Order with Penalty (ACOP) requiring remediation and an $8,000 penalty.
- Blackstone Headwaters (an environmental nonprofit) sued in 2016 under the Clean Water Act (33 U.S.C. § 1365), alleging permit violations and seeking declaratory relief, prospective injunctive relief, and civil penalties (Counts I and II).
- The district court granted summary judgment to defendants on both counts, concluding MassDEP was diligently prosecuting a comparable state-law enforcement action and, under precedent, that § 1319(g)(6)(A) barred Blackstone’s citizen suit.
- A panel of this Court affirmed based on North & South Rivers Watershed Ass’n v. Town of Scituate (1st Cir. 1991), which read § 1319(g)(6)(A) to bar all citizen suits under § 1365 when the statutory prerequisites are met.
- The en banc Court granted rehearing, reconsidered Scituate, and held § 1319(g)(6)(A) bars only citizen suits seeking civil penalties — not suits seeking declaratory or prospective injunctive relief; it affirmed the summary judgment as to civil penalties (Count II) but reversed as to injunctive/declaratory relief (and reversed dismissal of Count I per the earlier panel reasoning).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1319(g)(6)(A) bars citizen suits seeking declaratory or prospective injunctive relief for ongoing CWA violations | §1319(g)(6)(A) bars only "civil penalty actions"; declaratory/injunctive suits are equitable and not penalties, so they remain available | Under Scituate and policy reasons, the bar should extend to all §1365 citizen suits to avoid duplicative enforcement and protect government primacy | Court holds §1319(g)(6)(A) bars only citizen suits seeking civil penalties; declaratory and prospective injunctive relief are not barred |
| Proper reading of the phrase "civil penalty action" in §1319(g)(6)(A) (text, structure, legislative history) | „Civil penalty" traditionally denotes money punishment; legislative history and statutory structure show Congress limited the bar to civil-penalty proceedings | Policy and Gwaltney reasoning support a broader reading to prevent supplanting governmental enforcement | Court adopts textual/structural interpretation: "civil penalty action" is narrow; Scituate's broad reading was incorrect; absurdity canon not applicable here |
| Application to Blackstone's Count II (effect of MassDEP action) — are civil penalties and other relief precluded? | Even if MassDEP enforcement exists, injunctive/declaratory relief should be available to Blackstone; civil penalties may be barred if prerequisites met | MassDEP diligently prosecuted under a comparable state law, so citizen suit for same violations is precluded (per §1319(g)(6)(A)) | Court affirms that civil-penalty relief on Count II is barred (MassDEP action met prerequisites) but reverses grant of summary judgment as to declaratory and injunctive relief (those may proceed) |
Key Cases Cited
- North & South Rivers Watershed Ass'n v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991) (panel decision interpreting §1319(g)(6)(A) to bar all §1365 citizen suits; overruled on scope question)
- Blackstone Headwaters Coal., Inc. v. Gallo Builders, Inc., 995 F.3d 274 (1st Cir. 2021) (panel opinion affirming summary judgment as to Count II; later vacated and its civil-penalty reasoning adopted)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (defines scope of §1365 citizen suits as requiring ongoing violations)
- Tull v. United States, 481 U.S. 412 (1987) (distinguishes civil penalties from equitable remedies)
- Paper, Allied-Indus., Chem. & Energy Workers Int'l Union v. Cont'l Carbon Co., 428 F.3d 1285 (10th Cir. 2005) (rejects Scituate and holds §1319(g)(6)(A) does not bar injunctive/declaratory citizen suits)
- Ark. Wildlife Fed'n v. ICI Americas, Inc., 29 F.3d 376 (8th Cir. 1994) (adopted outcome similar to Scituate but did not rely on the absurdity canon)
- Crowe v. Bolduc, 365 F.3d 86 (1st Cir. 2004) (discusses prospective application of changed precedent)