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Tenth Circuit Limits Preclusive Effect of Administrative Enforcement Under the Clean Water Act

Richard Davis and Rowan Seidel
Beveridge & Diamond, P.C., November 30, 2005

The U.S. Court of Appeals for the Tenth Circuit has split with two other federal Courts of Appeals to hold that a private citizens may pursue claims for equitable relief under the Clean Water Act’s citizen suit provisions (33 U.S.C. § 1365(a) (2000)) even where a state is simultaneously engaged in an administrative enforcement action involving the same violations.  Specifically, in Paper, Allied-Industrial Chemical and Energy Workers International Union v. Continental Carbon Co., 10th Cir., No. 03-6243, Nov. 8, 2005, the Tenth Circuit addressed the question of whether the jurisdictional bar contained at 33 U.S.C. § 1319(g)(6)(A)(ii) precludes citizens suits seeking both civil penalties and equitable remedies.  The district court had determined that the provision bars only civil penalty relief.  The Tenth Circuit affirmed. 

The Court of Appeals began its analysis by comparing the authority to bring citizen suits with the limitation on those suits articulated in 33 U.S.C. § 1319(g).  Whereas the authority to file citizens enforcement actions runs to all “civil actions,” 33 U.S.C. § 1365(a), the administrative preclusion contained in 33 U.S.C. § 1319(g) extends only to “civil penalty actions.”  On the basis of that difference in language, the Court concluded that “while § 1365 grants jurisdiction over all types of civil remedies, the limitation in § 1319 only strips jurisdiction with regard to the district court’s ability to impose civil penalties.”

In addition to its reading of the plain language of the statute, the Court also found support for its ruling in the legislative history of § 1319(g), which it characterized as acknowledging that administrative preclusion is limited to cases seeking civil penalties as their remedy.  Moreover, at a practical level, the Court was satisfied that the limitation of the § 1319(g) preclusion to penalty claims would produce rational results.   While duplicative penalties imposed in parallel proceedings would be difficult to avoid without the preclusion, the Court expressed confidence that agencies and courts could fashion consistent injunctive relief even if they were acting simultaneously in administrative and judicial fora.

In summary the Court stated that “[b]ecause the results reached by the court below (1) is grounded in the statutory language, (2) reflects the legislative history, and (3) leads to a rational result ... we hold that 33 U.S.C. § 1319(g)(6)(A)(ii), where it applies, bars only civil penalty claims and not claims requesting declaratory or injunctive relief.”

The Tenth Circuit’s decision is important for at least two reasons.  First, it places the Tenth Circuit at odds with the First and the Eighth Circuits, both of which have held that the exclusionary provision of § 1319 applies to injunctive and declaratory relief  as well as civil penalty relief.  See Ark. Wildlife Fed’n v. ICI Americas, Inc., 29 F.3d 376, 383 (8th Cir. 1994); N. & S. Rivers Watershed Ass’n, Inc. v. Town of Scituate, 949 F.2d 552, 558 (1st Cir. 1991).  This split among the Circuits may entice the Supreme Court to grant certiorari in Continental Carbon or in some later case.

Second, the basis for the defense tactic of welcoming administrative enforcement to prevent citizen suits is now gone -- at least in the Tenth Circuit.  The defense bar will need to recalibrate its strategic thinking on this important question.  From the private plaintiff’s perspective, the value of an enforcement action that can seek only injunctive relief, as well as the likelihood of recovering attorney’s fees in such an action, will doubtless become subjects of intense debate.

If you would like to discuss the implications of the Continental Carbon case in greater detail, or believe that this new opinion may have an impact on a pending matter in which you are involved, you can reach Richard Davis at (202) 789-6025 (, or Rowan Seidel at (202) 789-6039 (




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