In the South Carolina countryside, a dispute over “citizen suits” under the Clean Water Act

Petitions of the week

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

The Clean Water Act allows private actors to sue someone for polluting a water system. But the act prevents these so-called citizen suits if the government is already enforcing the law. This week, we highlight cert petitions that ask the court to consider, among other things, what level of state action is required to preclude citizen suits under the CWA.

Ken and Sharon Smith wanted to form a private vineyard, orchard, and wedding barn in Pickens County, South Carolina. They named their venue Arabella Farm. In 2017, they began clearing 20 acres of land near two streams and a river tributary. Believing that the construction fell under an agricultural exemption to the CWA, the Smiths proceeded without a water-pollution permit.

South Carolina regulators learned of the work in 2019 and issued Arabella a cease-and-desist order, followed by a notice alleging possible violation of the CWA and scheduling a private hearing. Shortly after, environmental groups Naturaland Trust and Trout Unlimited sued Arabella in federal court under the act’s citizen-suit provision. A month after the groups filed suit, the state imposed a $6,000 fine and ordered Arabella to submit plans to remedy any environmental damage and get a pollution permit for future work.

The district court dismissed the environmental groups’ lawsuit, but the U.S. Court of Appeals for the 4th Circuit reinstated it. The CWA bars citizen suits when a state “has commenced and is diligently prosecuting an action under” state law comparable to the federal regulatory scheme. The state only triggered this diligent-prosecution bar, the 4th Circuit concluded, when it imposed the fine and permit order against Arabella and opened the matter up to both public notice and judicial review – after the groups had filed suit.

In Dakota Finance LLC v. Naturaland Trust, the Smiths (who purchased part of the land to form Arabella Farm under the LLC) ask the justices to clarify what threshold of state regulation precludes citizen suits under the CWA. They argue that state regulators issuing notice of a hearing over whether Arabella’s construction was unlawful clearly “commenced” an “action” to enforce the act. To rule otherwise would dismantle the structure of cooperative federalism Congress built into the CWA, they contend, demoting the primary role played by states in helping to protect the nation’s waters in favor of a mechanism intended solely as a back-up.

A list of this week’s featured petitions is below:

Chevron USA, Inc. v. Plaquemines Parish, Louisiana
22-715
Issues: (1) Whether a private entity is “acting under” a federal officer for purposes of removal under 28 U.S.C. § 1442 when federal officials, through orders and regulations, direct the entity’s production of a product the government requires to respond to a national emergency; and (2) whether, in assessing federal-officer removal Section 1442, both the district court and the court of appeals must accept as true all facts alleged by the removing party and draw all reasonable inferences in its favor.

Dakota Finance LLC v. Naturaland Trust
22-720
Issue: What the proper test is for determining whether the “diligent prosecution bar” under 33 U.S.C. § 1319(g)(6)(A)(ii) precludes citizen suits brought under 33 U.S.C. § 1365(a).

Wilkey v. Klaver
22-728
Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit defined a clearly established right for purposes of qualified immunity at too high a level of generality when it determined that officers “may not detain a driver for longer than necessary to complete a traffic stop simply because they want to investigate other crimes;” and (2) whether the 6th Circuit erred in holding that petitioners are not entitled to qualified immunity by not citing a case with comparable facts.