The U.S. Department of Justice recently issued a new policy on limiting federal civil enforcement penalty actions under the Clean Water Act when a state is already enforcing. The Assistant Attorney General for the Environment and Natural Resources Division concluded at pages 6-7:

“Accordingly, I have come to the conclusion that – – as a matter of enforcement discretion – – civil enforcement actions seeking penalties under the CWA will henceforward be strongly disfavored if a state has already initiated or concluded its own civil or administrative proceeding for penalties under an analogous state law arising from the same operative facts.”

Our environmental group has not seen much overfiling by the current Administration on state enforcement actions, although we have had a Clean Air Act case in which EPA inspected a west coast facility for Clean Air Act (Title V) violations and has indicated that it may pursue enforcement, where the state was the delegated agency although was not currently enforcing. So it remains to be seen whether this policy will change much in terms of current DOJ/EPA practice. The policy does seem to fall in line with the Administration’s effort to limit environmental enforcement.