Clean Water Act Citizen Suits: Defense Litigation and Settlement Strategies

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

Recording of a 90-minute CLE webinar with Q&A


Conducted on Thursday, March 14, 2019

Recorded event now available

or call 1-800-926-7926
Program Materials

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

Description

The CWA provides authority directly to citizens to bring civil actions to enforce compliance with the CWA (including permits issued pursuant to the Act) when they believe governmental agencies have not taken timely action against parties for alleged violations. With budgetary constraints, some federal and state regulators have supported citizen suits to alleviate the government's enforcement burdens and to allow local residents to remedy environmental issues that are not being prioritized by government agencies. Conversely, some industry stakeholders have raised concern about the citizen suit provisions of the CWA being abused due to the pursuit of minor environmental infractions in an effort to generate attorneys’ fees (which can be awarded in a successful citizen suit action).

The breadth of future citizen suits may grow as the result of recent rulings on groundwater and surface water interaction under the CWA. Some of these court decisions have expanded the CWA's jurisdictional reach to regulate 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, the U.S. Supreme Court has granted a writ of certiorari to resolve the disagreement between the circuits over the jurisdictional reach of the CWA. 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.

READ MORE

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

Boer, J. Tom
J. Tom Boer

Partner
Hunton Andrews Kurth

Mr. Boer’s experience at the EPA and DOJ provide him with a firsthand perspective into how the government pursues...  |  Read More

Brown, Samuel
Samuel L. Brown

Partner
Hunton Andrews Kurth

A former U.S. EPA lawyer, Mr. Brown brings deep knowledge and practical experience to his clients’ environmental...  |  Read More

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

Other Formats
— Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include program handouts. To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video

$297

Download

$297