ELR Citation: ELR 21007
No(s). R-85-09 (D. Md. Aug 12, 1985)

The court holds that the federal government may seek an injunction and penalties against an alleged violator of the Clean Air Act even though the violations were addressed in a state agency consent order. The court declines to invoke the Colorado River doctrine to abstain from the dispute. The court reviews the caselaw governing abstention in favor of concurrent proceedings and notes that a federal court should not a abstain unless the parallel litigation will provide an adequate vehicle for resolution of the issues between the federal court parties. In this case, there is no pending litigation in which the federal government could press its claims. The federal government has a right to press its claims for civil penalties in federal court, and this right is independent of the state's state-law right to seek penalties for violation of state standards. The caselaw does not support invoking this sort of abstention to further general notions of federalism. And nothing in the Clean Air Act gives states the power to nullify federal enforcement. The court rejects defendant's argument that a decision of the chief legal officer of the Environmental Protection Agency (EPA) that a state enforcement action precluded EPA action is applicable, because that decision did not involve the Colorado River doctrine and came under the Resource Conservation and Recovery Act (RCRA), which allows states to operate RCRA programs in lieu of federal programs. The court notes it may take the state order into account when fashioning its own relief, and that dual state-federal regulation does not necessarily lead to unfairness.

Counsel for Plaintiff
Glenda G. Gordon, Ass't U.S. Attorney
8th Fl., 101 W. Lombard St., Baltimore MD 21201
(301) 922-4822

Counsel for Defendant
Charles Lettow
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700

Joseph S. Kaufman
Melnicove, Kaufman, Weiner & Smouse
Charles Center South, 36 S. Charles St., Baltimore MD 21201-3060
(301) 332-8500