Clean Water Act Citizen Suits: Defense Litigation and Settlement Strategies

Navigating Notice, Standing and Jurisdiction; Interpleading Third Parties Under the CWA

A live 90-minute CLE webinar with interactive Q&A


Thursday, March 14, 2019

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, February 22, 2019

or call 1-800-926-7926

This CLE webinar will provide guidance on procedural and strategic challenges for counsel defending citizen suits under the Clean Water Act (CWA). The panel will explain recent case law developments that impact citizen suits and provide strategies to manage your clients' risks when facing citizen suits, including innovative approaches for cost-effective settlement of claims.

Description

The CWA provides an avenue for citizens to enforce environmental laws and permits when they believe governmental agencies haven't taken timely action against parties regulated under environmental laws. With budgetary constraints, federal and state regulators often support citizen suits to alleviate the government's enforcement burdens.

Additionally, recent rulings on groundwater and surface water interaction under the CWA have apparently expanded the CWA's jurisdictional reach. While the EPA's position is that the CWA leaves groundwater regulation and nonpoint-source pollution control to the states, some litigants have successfully argued that the CWA regulates discharges of pollutants to groundwater that ultimately reach waters of the United States. Cases involving such claims have multiplied in recent years, and in 2018 the Fourth, Sixth, and Ninth U.S. Circuit Courts of Appeal reached different conclusions on this issue. In turn, this jurisdictional issue is now the subject of pending petitions for certiorari in the U.S. Supreme Court. Whether and how the Court rules on this issue will substantially impact the outer limits of CWA liability.

Given these evolving risks, strategic efforts to encourage settlement become increasingly important. Some parties have interpleaded third parties into CWA citizen suits as a potential defense to encourage cost-sharing and settlement, among other reasons. Indeed, statutory fee-shifting provisions that allow prevailing plaintiffs to recover their costs and attorney fees can make these cases very expensive for the losing defendant, which is why savvy counsel should always consider the benefits of strategic settlement.

Listen as our panel examines citizen suits under the CWA, focusing on defenses and strategies for litigating and settling these matters. The panel will discuss recent case law developments and provide best practices to minimize the risks of being hit with a citizen suit.

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Outline

  1. Defenses
    1. Challenges to:
      1. Notice
      2. Standing
      3. Jurisdiction
    2. Interpleading third parties into CWA citizen suits
    3. NPDES permit shield defense
    4. Others
  2. CWA regulation of discharges to groundwater and recent cases
  3. Litigation options
  4. Settlement strategies
    1. Typical settlement terms
    2. Injunction settlement terms
    3. Payment settlement terms
    4. Settlement tips and best practices

Benefits

The panel will review these and other key issues:

  • Court-tested litigation defense tactics to prevail on notice and standing in CWA citizen suits
  • Effective jurisdictional arguments relying on and differentiating between recent EPA actions and court rulings
  • Preemption of CWA citizen suits through state or federal agency settlements
  • How the CWA handles groundwater/surface water interaction
  • Effective settlement strategies

Faculty

Herman, Sean
Sean G. Herman

Atty
Hanson Bridgett

Mr. Herman is a counselor and litigator focused upon the practice of environmental law. He assists clients in achieving...  |  Read More

Metcalf, Nathan
Nathan A. Metcalf

Partner
Hanson Bridgett

Mr. Metcalf has over a decade of experience in environmental law and water law. He advises clients on water rights...  |  Read More

Additional faculty
to be announced.

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