The Biden administration is signaling an increased focus on environmental enforcement, especially in the context of environmental justice (EJ), but legal experts say Clean Water Act (CWA) citizen suits are likely to play an even bigger role in shaping the scope of the water law and determining where and how discharge permits are required. The CWA is always evolving, and most of that evolution has occurred through citizen suits, said Samuel Brown, a former EPA attorney who is now a partner with Hunton Andrews Kurth, during a recent virtual environmental law conference held by the American Law Institute-Continuing Legal Education. "Creativity knows no bounds when it comes to citizen suits," Brown said. Brown predicted enforcement in the Biden administration will be "more and different" than during the Trump administration but noted that "enforcement is the lowest hanging fruit" when it comes to changing policy. He suggested that the recent changes California made to its EJ mapping tool, CalEnviroScreen, "could foreshadow what you're going to see at the federal level." And he commented that the Justice Department is once again allowing the use of supplemental environmental projects (SEPs) in settlements. "Most everyone likes SEPs because they help get over the hurdle to settlement," he said.
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