Clean Water Act Citizen Suits: Defense Litigation and Settlement Strategies

Description

The CWA provides authority to citizens to sue to enforce compliance with the CWA (including issuing permits) when they believe governmental agencies have not taken timely or sufficient action on alleged violations. With tight budgets, some federal and state regulators support citizen suits to alleviate the government's enforcement burdens and allow residents to remedy environmental issues.

Conversely, some industry stakeholders have raised concern about abuse of the citizen suit provisions due to suits over minor environmental infractions to generate attorneys' fees (which can be demanded in settlement or awarded in a successful citizen suit action).

The breadth of future citizen suits may grow due to recent rulings on groundwater and surface water interaction under the CWA. Some court decisions expand the CWA's jurisdictional reach to regulate discharges of pollutants to groundwater that reach the waters of the U.S.

Strategic efforts to encourage settlement have 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. Statutory fee-shifting provisions allow prevailing plaintiffs to recover their costs and attorney fees, which can result in costly damages, which is why savvy counsel should always consider the benefits of strategic settlement.

Listen as our panel examines the most recent 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 and effectively resolve such suits if they arise.