by Gabrielle E. Thompson, Ankur K. Tohan; K&L Gates LLP 21 November 2019 On Wednesday, November 6, 2019, the U.S. Supreme Court heard oral argument in County of Maui, Hawai´i v. Hawai´i Wildlife Fund,[1] a case that considers whether the Clean Water Act (“CWA”) applies to discharges of pollutants from point sources into groundwater that eventually flows into navigable waters. The Supreme Court’s consideration of that question comes at a time when there is disagreement between the U.S. Environmental Protection Agency (“EPA”) and federal courts about whether such discharges are regulated by the CWA. In April, EPA released guidance that interpreted the CWA as categorically excluding the release of pollutants to groundwater from regulation under the CWA.[2] EPA’s interpretation, however, runs counter to last year’s Ninth Circuit’s decision in Hawai’i Wildlife Fund v. County of Maui,[3] which held that certain discharges of pollutants to groundwater are subject to CWA regulation. That decision is now on review in the Supreme Court in County of Maui. The Supreme Court’s decision in County of Maui has the potential to have far-reaching impacts on the scope of the CWA.[4] (more…)

By Ann Zwick, Freeborn & Peters on November 7, 2019

The U.S. Department of Justice (DOJ) is in the midst of a comprehensive policy review regarding the use of Supplemental Environmental Projects (SEPs) in settlements of environmental enforcement actions. This review could potentially have far-reaching implications for companies that seek to settle such actions brought by either the federal government, or in the case of a citizen suit, a non-governmental organization (NGO). It remains to be seen if the ongoing SEP policy review will result in additional limits on the use of SEPs in settlement, thus limiting the flexibility in achieving penalty mitigation that has been a hallmark of environmental enforcement case resolutions for nearly three decades.

 

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