Feds to limit water pollution enforcement where states have taken action

The federal government will not pursue civil enforcement actions in Clean Water Act (CWA) matters where states have already taken action, according to a new Justice Department memo. 

“Civil enforcement actions seeking penalties under the CWA will henceforth 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,” says the internal memo from Assistant Attorney General Jeffrey Bossert Clark.

Now, federal lawyers will only be able to pursue civil enforcement actions in such cases with Clark’s “prior written approval.”

Clark wrote in the Monday memo that this will be done to avoid “piling on” and to ensure that federalism and due process are respected. 

The policy does not apply to criminal cases. 

Eric Schaeffer, who formerly served as the director of EPA’s Office of Civil Enforcement, said he fears the new policy will shield bad actors from facing greater penalties.

“None of the state agencies have the kind of penalty authority that…the Department of Justice would have if it brought a case,” said Schaeffer, who now leads the Environmental Integrity Project. “If the feds are pursuing you than your liability is greater than if the state is pursuing you.”

He also said that the policy is “unnecessary” given how few federal enforcement cases there are in the first place, saying it’s about several dozen annually. 

The Monday memo was first reported by Bloomberg. 

It comes amid a broader push from the Trump administration to deregulate, including an executive order signed by the president urging federal agencies to cut regulations that could hinder economic development.