EPA's "Compliance First" Directive Creates Pathway For Preemption Of Citizen Suits

On December 5, 2025, the U.S. Environmental Protection Agency's (EPA) Office of Enforcement and Compliance Assurance (OECA) published an internal memorandum formally adopting a new "compliance first" enforcement approach for all OECA staff. The memorandum directs EPA personnel to prioritize compliance and the timely resolution of matters rather than engage in protracted investigations and disputes. Among the various directives contained in the memorandum is language specifically targeting "citizen suit litigation" or lawsuits initiated by private parties against potentially responsible parties for violations of environmental statutes. These private causes of action are established by federal statutes such as the Clean Water Act, Clean Air Act, Resource Conservation and Recovery Act, and Comprehensive Environmental Response, Compensation, and Liability Act, as well as state statutes such as New Jersey's Environmental Rights Act.

In order to initiate suit under these statutes, the private party must first send to the responsible party a Notice of Intent to Sue, which, in most instances, provides the responsible party 60 days to become compliant or otherwise be faced with an enforcement lawsuit. Citizen suits can be barred if the government is "diligently prosecuting" the alleged violation, usually meaning the EPA has started its own case, judicial or administrative, for those specific issues.

The EPA's new memorandum stipulates that EPA decision making "must consider stakeholder impacts" and that EPA "must act swiftly to limit actions from third parties who, through citizen suit litigation, unfairly impact policy through abusive litigation tactics." Due to the preclusive nature of agency enforcement actions, industry professionals are reading this language to suggest that potentially responsible parties who receive notices of intent to sue from third party citizens should approach the administration to negotiate a deal thus preventing any subsequent filing of a legal action based on the notice of intent.

This reading dovetails with the language of the "compliance first" memorandum which offers various strategies to achieve early resolution of violations. Although EPA has long held that "compliance first" is the approach of the agency, the memorandum offers specific guidance to agency employees on how to better foster compliance first initiatives. Primarily, the memorandum encourages staff to leverage compliance assistance tools such as proactive outreach and voluntary self-compliance measures like self-audits and self-reporting. This initiative focuses on the early identification of potential violations by responsible parties rather than a reactionary approach once EPA has itself identified a potential violation. The memorandum additionally directs employees to coordinate with state partners to ensure consistency in enforcement activities and to foster channels of communication with all interested parties to create clarity with respect to required compliance. Historically, regulated entities have raised concerns regarding interpretation and application of environmental statutes. This memorandum attempts to remedy such inconsistencies through a "best reading" policy wherein EPA will base all findings of violation upon a clear and unambiguous reading of the relevant statute and regulation. In emphasizing these policies, the memorandum rejects traditional enforcement postures that employ lengthy negotiations or broad remedies in favor of early engagement and voluntary correction to achieve faster and more effective environmental outcomes.

Notably, the author of the memorandum, Acting Assistant Administrator of OECA, Craig Pritzlaff, had worked on similar initiatives while employed at the Texas Commission on Environmental Quality (TCEQ) as Director of the Office of Compliance and Enforcement. In 2020 TCEQ initiated a temporary "Find It and Fix It" program to facilitate air quality compliance for companies operating in the Permian Basin. The Find It and Fix It program allowed the TCEQ to exercise enforcement discretion to potentially responsible parties who voluntarily reported and timely addressed non-compliance with air quality and air permitting requirements. The Find It and Fix It program was a more targeted version of Texas' preexisting Audit Act which is a statutory framework providing responsible parties immunity from administrative and civil enforcement penalties under any state environmental, health, and safety requirement if the participant meets the requirements of the Audit Act which include, similar to EPA's memorandum, voluntary self-auditing and disclosure of environmental violations. The Audit Act, which has been in effect since 1995, has been described by proponents as a beneficial tool leading to the disclosure and remediation of what might otherwise be undetected environment issues. Conversely, detractors argue the Audit Act provides a get-out-of-jail-free card to violators by way of the limited immunity provided by the Act.

While the full effect of EPA's new agency direction has yet to be felt, entities currently subject to enforcement and those anticipating new enforcement cases may wish to reevaluate how they approach EPA. Entities already in compliance with or unsure of their compliance status with applicable environmental laws may benefit from approaching EPA to discuss whether their current practices remain in compliance with such laws under EPA's new "best reading" policy and subsequently self-report if applicable. Similarly, entities with pending enforcement cases or those with upcoming compliance deadlines, may seek to initiate contact with EPA in order to discuss early case resolution or otherwise attempt to more expediently resolve pending violations. For further insights into the regulatory impacts of this policy shift or assistance responding to a Notice of Intent Sue contact the environmental attorneys at Duane Morris LLP.

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