Last week, the First Circuit Court of Appeals ruled that a person who enters into an administrative settlement with a state is immune from citizen suits seeking civil penalties, but not immune from suits for declaratory or injunctive relief. I don’t think that the decision would even have been newsworthy, if it hadn’t required that the Court overrule its 1991 decision in North and South Rivers Watershed Ass’n v. Scituate.

The real question is what the panel in Scituate was thinking, because, in world where we’re all used to criticizing Congress’s incomprehensible drafting, the statutory language at issue here might be the least ambiguous in the entire environmental canon. Here’s the relevant language, as selected, and with the emphasis supplied, by the Court:

Section 1319(g)(6)(A) is headed, “Limitation on actions under other sections.” It provides as follows:

Action taken by the Administrator or the Secretary, as the case may be, under this subsection shall not affect or limit the Administrator’s or Secretary’s authority to enforce any provision of this chapter; except that any violation –

(i) with respect to which the Administrator or the Secretary has commenced and is diligently prosecuting an action under this subsection,

(ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection, or

(iii) for which the Administrator, the Secretary, or the State has issued a final order not subject to further judicial review and the violator has paid a penalty assessed under this subsection, or such comparable State law, as the case may be,

shall not be the subject of a civil penalty action under subsection(d) of this section or section 1321(b) of this title or section 1365 of this title.

For some reason, Court felt it necessary to provide an extensive analysis of this text, including a discussion of the legislative history. I believe that this is what might be called a “belt and suspenders” argument, because all that was really necessary to was underline the three words “civil penalty action” at the end of the quote. Simply put, if Congress had meant to preclude actions for declaratory judgment and injunction, it could have simply said “an action”, rather than “a civil penalty action.”

I very much sympathize with those who dislike the decision. It’s undoubtedly bad policy. It discourages agencies from resolving these matters through their administrative authority. It discourages the regulated community from entering into administrative settlements. It’s another example of poor drafting in our environmental statutes.

But’s it’s not so absurd that a Court can simply rewrite the statute to make it better. Unfortunately, given that Congress is patently incapable of doing its job, rewriting the CWA to fix this problem is still the responsibility of Congress.

Good luck with that.