The US Environmental Protection Agency (“EPA”) recently finalized its long-anticipated National Enforcement and Compliance Initiatives (“NECIs”) for fiscal years 2024 through 2027, naming six “priority areas” on which EPA’s Office of Enforcement and Compliance Assurance (“OECA”) will focus its enforcement efforts and direct additional resources. In his first significant action since being confirmed by the Senate on July 20, 2023, OECA Assistant Administrator David Uhlmann issued a memorandum on August 17, 2023 to the EPA Regional Administrators, advising of the six NECIs. He stated that over the next four years EPA will “address the most significant public health and environmental challenges, protect vulnerable and overburdened communities, and promote greater compliance with our environmental laws.”Continue Reading EPA Announces Its Final National Enforcement and Compliance Initiatives for FY2024-2027

A recent decision by the Eleventh Circuit could provide guidance to defendants seeking to resolve government enforcement actions and obtain protection from future environmental citizen suits.
Continue Reading Looking for Protection from Future Environmental Citizen Suits? The Eleventh Circuit Provides Guidance

A recent Fourth Circuit decision narrowly construed the state administrative enforcement bar to the Clean Water Act citizen suit, allowing a citizen suit seeking civil penalties to proceed despite the fact the state had already issued a notice of violation for the same alleged conduct.
Continue Reading Fourth Circuit Ruling Narrowly Construes Administrative Enforcement Bar to Clean Water Act Citizen Suit

A recent federal district court decision shows how a consent decree can provide protection to responsible parties under CERCLA by precluding later-filed tort claims seeking additional relief or different remedial action.
Continue Reading Federal Court Finds Tort Claims Preempted by CERCLA Consent Decree

Last week, in Residents of Gordon Plaza, Inc. v. Cantrell, the Fifth Circuit denied a petition for rehearing en banc of a recent decision affirming the dismissal of a Resource Conservation and Recovery Act (RCRA) citizen suit. The key issue in the underlying appeal, 25 F.4th 288 (5th Cir. 2022), was whether certain maintenance activities qualify as a “removal” action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court affirmed that the maintenance activities do indeed constitute a “removal action.” Therefore, the suit was barred under 42 U.S.C. § 6972(b)(2)(B)(iv), which precludes RCRA citizen suits where a “responsible party is diligently conducting a removal action” pursuant to a CERCLA consent decree with EPA.
Continue Reading Fifth Circuit Endorses Broad Reading of “Removal” Under CERCLA To Bar RCRA Citizen Suit

Recent federal court decisions continue to show that Article III standing can be a formidable defense to environmental citizen suits, particularly following the Supreme Court’s decision Spokeo v. Robins, 578 U.S. 330 (2016).
Continue Reading Article III Standing Still Proving to be a Formidable Defense to Environmental Citizen Suits

In Southern Appalachian Mountain Stewards et al. v. Red River Coal Co., Inc., 2021 WL 1182464 (4th Cir. Mar. 30, 2021), a unanimous Fourth Circuit panel recently affirmed a district court holding that an operator cannot be held liable under the Surface Mining Control and Reclamation Act (Surface Mining Act) for a discharge that is otherwise shielded from liability by the Clean Water Act (CWA).  The court’s opinion expressly relied on the Sixth Circuit’s decision in Sierra Club v. ICG Hazard, LLC, 781 F.3d 281 (6th Cir. 2015), which reached the same conclusion.
Continue Reading Fourth Circuit Holds that Mine Not Liable Under Surface Mining Act When CWA Permit Shield Applies