AGC 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’s request for review of a Fourth Circuit Court of Appeals’ 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. 21-1517), is whether a state agency’s 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 “has commenced and is diligently prosecuting” an enforcement action for the same violation “under a State law comparable to” the CWA. The district court dismissed the citizen group’s federal lawsuit, citing the “diligent prosecution” defense. But the Fourth Circuit reversed, holding that the South Carolina Department of Health and Environmental Control’s 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’s 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’s decision. AGC’s amicus brief supports that petition, explaining the of impact citizen suits, the harm and abuse of “sue and settle” practices, and the impact of interfering with state and local actions.
For more information, contact AGC’s Leah Pilconis at leah.pilconis@agc.org.