Neal McAliley Interviewed in Inside EPA: “Ruling Deepens Circuit Split on CWA Notice Requirement for Jurisdiction”

Neal McAliley was interviewed in an Inside EPA article titled “Ruling Deepens Circuit Split on CWA Notice Requirement for Jurisdiction.” The article discusses a recent Second Circuit ruling that courts lack jurisdiction to review claims alleging citizens may have provided inadequate notice when filing Clean Water Act (CWA) citizen suits, deepening a circuit split that could open the door to Supreme Court review.

“In general, it’s a more forgiving standard to the plaintiffs for the details of the notice that they have to provide under the Clean Water Act in advance in order to bring a citizen suit. So, that’s sort of the big picture statement about this case,” said McAliley. “I don’t think that it marks a major change in the law … in general in this area because these things are sort of fact specific.”

McAliley added that this does expand a circuit split. “A split in the circuits is one of the standard bases for the Supreme Court to grant certiorari in a case … so, is it possible that this case could increase the chance the Supreme Court will look at this precise issue? It’s possible.”

He added, “I think in general the significance of this case overall is just that it's a little bit more lenient to plaintiffs about what facts they have to allege in their notice in order for it to be deemed sufficient notice to bring the citizen suit. I’m not saying it's not an important decision, but its importance is going to be more for people to practice in the Second Circuit, rather than for Clean Water Act law on its own as an overall matter,” he added.

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