As this National Law Review (NLR) article details, the U.S. Department of Justice (DOJ) recently issued a memo reiterating that the federal government strongly disfavors separate federal agency action seeking penalties under the Clean Water Act (CWA) when a state has already initiated its own enforcement action against a regulated entity. According to the NLR article, the DOJ memo is apparently one in a series of policy pronouncements from the Trump Administration emphasizing cooperative federalism in the context of environmental laws. While the practice of federal “overfilling” (meaning when the federal government takes its own enforcement action on top of an existing state action) is already rare, the DOJ memo gives companies that are already facing state level enforcement even greater certainty that, except in very limited circumstances addressed in the memo, states will have the final word in such penalty actions. It is important to note that the memo applies only to civil enforcement proceedings, not proceedings seeking criminal penalties.
Please contact Michelle DeVoe at michelle@devoe-law.com with any questions.
