This week, the First Circuit Court of Appeals decided to rehear en banc the argument of a Massachusetts-based NGO that a 2014 Massachusetts Department of Environmental Protection Administrative Consent Order did not preempt a 2016 Citizen Suit under the Clean Water Act.

This spring I wrote about a three judge panel's denial of this NGO's appeal based on longstanding First Circuit precedent that "the great volume of enforcement actions are intended to be brought by the State, and citizens suits are proper only if the Federal, State and local agencies fail to exercise their enforcement responsibility."  See From Maui to Guam to Worcester, MA - Another Clean Water Act Citizen Suit Continues (April 27, 2021).

Not so fast say Chief Judge Jeffrey R. Howard and Judges Sandra L. Lynch, O. Rogeriee Thompson, William J. Kayatta, Jr., and David J. Barron  in vacating this spring's judgment and ordering a hearing on whether an Administrative Consent Order preempts a suit seeking declaratory or injunctive relief (and of course attorneys' fees) but not penalties.

This is the second time this year that the First Circuit has disregarded an Environmental Regulator's decision making.  See Following First Circuit Panel's Decision, Does EPA Even Matter Anymore?

We should all be concerned that the outcome of this case could be another step in the marginalization of Federal and State Regulators and their duly authorized interpretations of Federal and State laws.   Approaching the 50th anniversary of the Clean Water Act, we are saddled with what Judges have concluded is an ambiguous statute and no regulations implementing that statute that the Environmental Protection Agency is willing to enforce.  While EPA attempts to rectify that, again, Citizens and Judges required to have no technical expertise whatsoever fill the void on case by case basis.

Regardless of what you think the reach of the Clean Water Act should be, that shouldn't be okay with you.  We should have discernable laws and regulations that apply the same way to everyone.  And they should be administered by professionals with the requisite expertise and resources to do so.   Hopefully the First Circuit will continue to recognize this fundamental principle.