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ARTICLE · 08 JULY 2021

Following First Circuit Panel's Decision, Does EPA Even Matter Anymore?

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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The Conservation Law Foundation will continue its Clean Water Act and RCRA citizen suit against Exxon Mobil alleging violations of those federal laws at Exxon Mobil's Everett facility if a decision yesterday by a three judge ...

United StatesEnvironment
Jeffrey Porter
Jeffrey Porter
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The Conservation Law Foundation will continue its Clean Water Act and RCRA citizen suit against Exxon Mobil alleging violations of those federal laws at Exxon Mobil's Everett facility if a decision yesterday by a three judge panel of the First Circuit stands.

While it is hard to get worked up about that specific outcome, the panel's decision is further evidence that it may be federal courts, not the Environmental Protection Agency, that could dominate the application of the Clean Water Act which is most certainly not what Congress intended.

Exxon Mobil had been operating under an expired NPDES permit since 2014.  CLF sued in 2016.  The District Court stayed the case in 2020 on the ground that EPA's pending (at that time for six years) permitting decision could resolve CLF's claims.  The District Court's impassioned but unsuccessful effort to engage EPA regarding its permitting intentions were well publicized at the time.  The District Court specified a

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