In late July, the Environment and Natural Resources Division (“ENRD”) of the Department of Justice released a memo setting forth the Division’s policy for handling enforcement of civil Clean Water Act matters when a State has previously instituted a civil penalty proceeding under an analogous state law arising from the same operative facts.  The policy reflects a cooperative federalism theme, which follows the current U.S. EPA’s commitment to work cooperatively with states and to acknowledge, respect, and promote the critical role they play in implementing the Federal environmental laws.

As the memo explains, ENRD will strongly disfavor commencing a civil enforcement action seeking penalties under the Clean Water Act if a State has already initiated or concluded its own civil or administrative proceeding for penalties under an analogous state law arising from the same operative facts. In determining whether to bring such an action, the ENRD will consider the following factors:

(a) Going forward, if, prior to any federal civil penalty action, a State has already initiated or concluded a civil enforcement action for penalties under an analogous state law for the same conduct, no federal civil judicial enforcement matter may be pursued without [ENRD’s] prior written approval;

(b) Pre-approval requests should be made in the form of a privileged memorandum submitted to the ENRD front office through the normal chain of command (i.e., through the appropriate Assistant Chief, Chief, and Deputy Assistant Attorney General);

(c) Approval will be granted only if:

(1) Standing on the prior state enforcement action would amount to an unfair windfall to the would-be defendant;

(2) The State is not diligently prosecuting an initiated civil enforcement action;

(3) The State has requested in writing, citing reasons for doing so, that the federal government pursue a separate enforcement action and that request, in light of all circumstances, would not amount to unfair “piling-on”;

(4) The State has been unable to collect its penalty and asks in writing for federal assistance;

(5) A federal action is necessary to protect an important federal interest not adequately addressed already or to be addressed by the state action;

(6) The federal action would seek only appropriate injunctive relief to fill a discernible gap in the prior state relief; or

(7) There are other exceptional circumstances justifying federal involvement; and

(d) Requests to pursue a subsequent enforcement action where the State sought a penalty and the relevant tribunal denied that request will ordinarily be disfavored, though exceptions may be granted with [ENRD] authorization.

ENRD points out that the “purpose of these checks is to ensure that federal involvement is limited to instances where it is actually necessary and proportional.”  The policy would not apply in a case where the proposed ENRD action would seek relief based on new conduct post-dating the state proceeding.  In addition, the policy applies to civil matters only – not criminal.

A copy of the July 27, 2020 memo is available here.

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