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Fifth Circuit Holds that Diligent Prosecution Bar in Clean Water Act Citizen Suit Provision is Not Jurisdictional

In the second appellate case within the past year addressing the “diligent prosecution” bar under environmental citizen suit provisions, the Fifth Circuit Court of Appeals held last week that the Clean Water Act’s bar on citizen suits when governmental enforcement action is underway is not jurisdictional – reversing the dismissal of a citizen suit at the Rule 12(b)(6) stage, and remanding the case for further proceedings before the district court.

In Louisiana Environmental Action Network v. City of Baton Rouge, No. 11-30549 (5th Cir. April 17, 2012), a local environmental group called LEAN filed a citizen suit against the City of Baton Rouge and the Parish of East Baton Rouge alleging violations of the Clean Water Act at three wastewater treatment plants owned and operated by the City and Parish.  The defendants promptly moved to dismiss the suit under the Clean Water Act’s diligent prosecution bar in 33 U.S.C. § 1365(b)(1)(B), citing to a consent decree that they entered into with EPA in 2002 to address violation of effluent limitations at the three plants (a consent decree that, by the way, LEAN never commented on or challenged).  The 2002 consent decree, though entered eight years prior to LEAN’s suit, was the subject of ongoing compliance, requiring the defendants to implement what the Fifth Circuit described as “extensive, physical remedial measures according to applicable schedules,” requiring full compliance with their permitted effluent limitations by January 2015, and imposing less stringent limitations in the interim. 

The district court granted the defendants’ motion to dismiss, but not quite for the reason you would expect.  Rather than address whether the ongoing enforcement of the 2002 consent decree was the type of “diligent prosecution” that would preclude LEAN’s citizen suit, the district court held that the defendants’ compliance with the consent decree addressed LEAN’s grievances, and therefore rendered LEAN’s suit moot.  Further, while LEAN asserted that the defendants were not complying with the 2002 consent decree, the district court found that LEAN should “take up the matter … with EPA, as the EPA has the power to enforce the consent decree.”

On LEAN’s appeal of the district court’s ruling, the Fifth Circuit had little trouble addressing the mootness issue.  Mootness, the court explained, concerns whether there are any circumstances subsequent to the filing of suit that eliminate any actual controversy between the parties, destroying the justiciability of the plaintiff’s claims.  As neither party argued that any circumstances subsequent to the filing of LEAN’s lawsuit rendered the matter moot, the court held that the district court improperly dismissed the lawsuit on the basis of mootness.  

The Fifth Circuit then took on the question left unresolved by the district court – whether LEAN’s suit was barred under the Clean Water Act’s diligent prosecution bar, an issue that first required a determination as to whether the bar operated as a jurisdictional limitation on the ability to bring suit.  Drawing upon recent Supreme Court guidance on the topic, the Fifth Circuit held that the Clean Water Act’s diligent prosecution bar is not jurisdictional because Congress did not clearly mandate that it be so:  the provision does not speak in jurisdictional terms; it is located in a separate subsection than the Clean Water Act’s jurisdictional grant; and it is located in the same section as the 60-day notice provision for citizen suits, “a typical ‘claim-processing rule.’”

So what did this ruling mean for LEAN’s suit, and what might it mean for other future cases?  Well, as for LEAN, after spending a significant amount of time on the jurisdictional issue, the court took no position on whether the diligent prosecution bar, now appropriately characterized as a non-jurisdictional rule, actually precludes LEAN’s citizen suit, remanding the matter to the district court to decide the issue in the first instance.  The Fifth Circuit’s articulation of why the jurisdictional question matters, however, may be instructive as to how the motion to dismiss is ultimately resolved, and what the decision might mean for future cases.  As the Fifth Circuit explained, when a rule goes to the subject matter jurisdiction of the court, the court is not obligated to accept the allegations in the plaintiffs’ complaint as true, and in fact, may review the evidence and resolve the dispute on its own.  On the other hand, if a rule is non-jurisdictional, then a plaintiff on a motion to dismiss is protected by the safeguards of Rule 12(b)(6):  the district court is required to accept all well-pleaded facts in the complaint as true, and view the facts in the light most favorable to the plaintiff.  

In light of these practical differences, it would not be unexpected for the district court in LEAN to deny the defendants’ motion to dismiss on remand.  LEAN alleged in its complaint, and apparently has at least some documentary evidence to support it, of ongoing violations not only of the defendants’ permit limitations, but of the interim limitations required under the 2002 consent decree.  Accepting these allegations as true, the district court may agree with LEAN that, at a minimum, the issue of whether EPA is diligently prosecuting the 2002 consent decree is a fact-intensive question that can only be answered after the proper development of a record.

As for future cases, there are a couple of points to make.  First, the Fifth Circuit’s ruling that the diligent prosecution bar in the Clean Water Act is non-jurisdictional comes on the heels of a 2011 decision out of the Seventh Circuit, which held that the diligent prosecution provision of RCRA is, likewise, non-jurisdictional.  Given that most federal environmental citizen suit provisions, like those in the Clean Water Act and RCRA, are modeled after the Clean Air Act citizen suit language, we may find other courts arriving at this same conclusion under other environmental statutes.  Second, because of the practical consequences that flow from a conclusion that the diligent prosecution bar is not jurisdictional, as emphasized by the Supreme Court in recent years, we may see courts more favorably inclined to deny a Rule 12(b) motion to dismiss on diligent prosecution grounds, even where there is a judicial consent decree with an ongoing compliance period.