CWA. Hernandez claimed that for many years during the Esso's operation of the station, several underground oil tanks leaked their contents into the surrounding soil and groundwater, with some of the contamination migrating beyond. After a long string of litigation involving the Puerto Rico Environmental Quality Board (ESQ) and a number of plans by which Esso was meant to regulate and repair the damage it had done, the ESQ was eventually barred from bringing any further investigations against the Defendant. Upon commencing drilling operations in accordance with plans for repair and mitigation, a great deal of noxious odor was released, a number of local citizens were harmed and required medical treatment as result, and they thus commenced the action here. Esso motioned to dismiss on grounds of preclusion. The court held that ESQ's previous proceedings did not preclude the citizen suit, and that triable issues of fact existed with regard to their various claims.
Raritan Baykeeper, Inc. v. NL Indus., 2010 WL 2079749 (D.N.J. 2010)
Raritan Baykeeper, Inc. brought a citizen suit against the manufacturer of titanium dioxide pigments, NL Industries, seeking remediation of contaminated sediments in a river located adjacent to a site formerly owned by the manufacturer. NL Industries moved to dismiss on grounds of abstention. The court held that while they could adequately decide the issues presented, in order to avoid interference with state action, in the interest of consistency at the state level, and because the New Jersey Department of Environmental Protection were in the process of getting involved anyway, it was best for the matter to be referred to them for resolution.
4. Standing & Mootness Kopacz c. Hopkinsville Surface and Storm Water Util., 2010 WL 1979369 (W.D. Ky. 2010)
Hopkinsville Surface and Storm Water Utility was engaged in a construction project located adjacent to the property of the Kopaczs. Kopacz alleged that point source discharges of sediment containing storm water runoff occurred from the site without Hopkinsville having obtained the necessary discharge permits. However, Kopacz was concurrently engaged in state court litigation of these matters, and as such Hopkinsville here sought to dismiss the federal claims, or in the alternative, to stay the proceedings pending the state court litigation. The court held that abstention was not proper with regard to the Kopacz's CWA based claims, yet granted the motion to dismiss because they failed to show alleged injury in fact, and thus had no standing in the matter.
Louisiana Envtl. Action Network v. Sun Drilling Products Corp., 2010 WL 2342381 (E.D. La. 2010)
A Louisiana environmental watch dog nonprofit, Louisiana Environmental Action Network (LEAN), brought a citizen suit against a chemical manufacturer, Sun Drilling Products Corporation, alleging that as a by-product of its manufacturing process they had released waste water containing certain regulated chemicals into the Mississippi River, in violation of the CWA, and a compliance order issued by Louisiana Department of Environmental Quality (LDEQ). Sun Drilling moved to dismiss for lack of jurisdiction. The court first held that the state had not commenced diligent prosecution against Sun Drilling at the time LEAN filed notice of intent to sue. Furthermore, the court held that because it had been established through sufficient evidence, as well as a concession to as much during oral argument, that Sun Drilling had continued to pollute at the time of the hearing, LEAN's claims were unequivocally not moot.
See also, Black Warrior Riverkeeper Inc. v. Cherokee Mining LLC, 67 ERC 1865 (11th Cir. 2008) (state administrative action not bar citizen suit where action commenced within 120 days of filing); Center for Biological Diversity v. Marina Point Development Co., 67 ERC 1289 (9th Cir. 2008); Piney Run Preservation Association v. County Commissioners of Carroll County, 66 ERC 1353 (4th Cir. 2008) (no CWA citizen suit in face of state consent decree constituting diligent action); Paper, Allied-Industrial Chemical and Energy Workers International Union v. Continental Carbon Co., 61 ERC 1457 (10th Cir. 2005) (finding Oklahoma law “comparable” to CWA in barring citizen suit for injunctive relief, but finding CWA does not bar civil penalties); Friends of Milwaukee's Rivers v. Milwaukee Metropolitan Sewerage District, 59 ERC 1263 (7th Cir. 2004) (finding no diligent prosecution); Karr v. Hefner, 64 ERC 1481 (10th Cir. 2007) (state diligent civil enforcement precludes property owners' CWA citizen suit); Friends of Milwaukee's Rivers v. Milwaukee Metropolitan Sewerage District, 68 ERC 1615 (7th Cir. 2009) (upholding dismissal of CWA citizen suit, finding subsequent enforcement action does not establish lack of diligence for prior action).
5. Sovereign Immunity West Virginia Highlands Conservancy, Inc. v. Huffman, 651 F. Supp. 2d 512 (S.D. W. Va. 2009)
West Virginia Highlands Conservancy, Inc. brought a citizen suit against Secretary of West Virginia Department of Environmental Protection concerning the discharge of acid mine drainage. The court held that said discharge was a pollutant and a point source that, under the control of the WVDEP, was running off into jurisdictional waters without the proper permit. The Secretary asserted that they were immune from such claims under the 11th Amendment. However, the court held that the Ex Parte Young exception applied here, so the Conservancy was not barred from bringing suit, and the court thus granted the Conservancy's motion for summary judgment.
6. Attorney Fees American Canoe Ass'n Inc. v. City of Louisa, 683 F. Supp. 2d 480 (E.D. Ky. 2010)
After winning partial summary judgment against the defendant city in a citizen suit the American Canoe Association (ACA) moved for attorney fees and expenses. The district court granted the motion, holding that because the ACA prevailed substantially in their preceding suit, compensation for attorney fees and expenses is proper under the CWA. Furthermore, they held that the appropriate rate for determining the level of compensation was that of an hourly rate for a Kentucky law-firm, since there was no non-local council retained. Finally, they held that a 25% reduction of the overall lodestar calculation was appropriate based on factors of accounting and reasonableness, but that separate from the reduced amount granted, compensation would be made for costs associated with electronic legal research.
George v. Reisdorf Bros., 696 F. Supp. 2d 333 (W.D.N.Y. 2010)
George, a landowner, brought a suit against the operator of a fertilizer distribution plant, Reisdorf Brothers, alleging, amongst other things, violations of the CWA as result of the discharging of pollutants on to their property. Both parties cross-moved for summary judgment. The court held that due to weak evidentiary offerings, the plaintiff failed to raise a triable issue of fact as to whether Reisdorf discharged pollutants into waters of the United States, and furthermore as to whether Reisdorf improperly disposed of a solid or hazardous waste. Thus, George's claims under both the CWA were dismissed. However, the court did refuse to award attorney fees to the Reisdorf Brothers, noting that while the asserted claims could not proceed to trial, they were not baseless.
Ctr. For Biological Diversity v. Marina Point Dev. Co, 560 F.3d 903 (9th Cir. 2009)
The Center for Biological Diversity (CBD), a non-profit corporation, brought a citizen suit, alleging violations of the CWA on the part of land developers, Marina Point Development Company, in their encroachment upon nesting areas of the bald eagle. The court below held in favor of the CBD, awarding them attorney's fees, and finding Marina Point in contempt. Here, the court reversed, holding that (in addition to mootness on the basis of an ESA issue) because the CBD failed to provide proper notice of suit under the CWA, the district court did not have jurisdiction in the matter. Yet the court also held that where the CBD has already obtained direct benefit prior to the mootness of the case, attorney fees are still proper, and where a claim only becomes moot on appeal, the appellate court has no jurisdiction to question the lower court's decision on the merits. As such, the judgment, and awarded attorney's fees for the CWA claim were vacated, the contempt order was reversed, and the case was remanded with instruction to determine what portion of the attorney fees stemmed from the ESA issue, and reenter judgment on that portion only.
Fitzgibbons v. Cook and Thorburn Drainage Dist., 2009 WL 2170364 (W.D. Mich. 2009)
Here, Thorburn Drainage District filed a motion for attorney fees after an unsuccessful citizen suit was brought against them by Fitzgibbons, and ultimately dismissed. The court held that even though the citizen suit was dismissed on the basis of insufficient pre-suit notice, the potential merits of the suit were not so obviously insufficient as to render it frivolous, unreasonable, or groundless. As such, attorney fees could not be granted to the Thorburn under the CWA, or general considerations of fee shifting.
Saint John's Organic Farm v. Gem County Mosquito Abatement Dist., 574 F.3d 1054 (9th Cir. 2009)
Saint John's Organic Farm brought this citizen suit against the Gem County Mosquito Abatement District, alleging that the district's discharges of pesticides directly into the waters of the United States without a NPDES permit violated the CWA. After the parties settled the suit, the Organic Farm moved for attorney fees and costs. The lower court denied. Here, on appeal, the court found that while the Organic Farm was a prevailing party, his settlement with the district could preclude him from being awarded attorney fees and costs. They remanded the case to the lower court with an instruction to deny the awards only if they find “special circumstances,” a finding of which would be an admittedly rare occurrence.
See also, St. John's Organic Farm v. Gem County Mosquito Abatement District, 69 ERC 1129 (9th Cir. 2009) (remanding denial of attorney fees because plaintiff obtained judicial order that materially altered relationship *472 with defendant and achieved actual relief on the merits); Sierra Club v. Hamilton County Board of County Commissioners, 65 ERC 1449 (6th Cir. 2007) (upholding attorney fees because, while citizen group not signatory to settlement agreement, it significantly impacted result); American Canoe Association Inc. v. Murphy Farms Inc., 60 ERC 1822 (4th Cir. 2005) (upholding award of attorneys' fees); Sierra Club v. Little Rock, 57 ERC 1714 (8th Cir. 2003) (no attorney fees due to lack of award of requested relief); Sierra Club v. Cripple Creek and Victor Gold Mining Co., 64 ERC 1698 (D. Colo. 2006) (plaintiffs environmental groups liable for more than $300,000 in attorney fees because they pursued factually unsupportable claims).
B. Substantive 1. TMDL/Listing Center for Biological Diversity v. EPA
Plaintiffs and EPA recently settled a claim alleging that EPA had failed to take into account sufficiently the effects of climate change in approving a state ‘list’ of water-quality impaired segments under the CWA. (W.D. Wash. March 11, 2010). The Center alleged that EPA had failed to recognize the impacts of ocean acidification on the state's coastal waters where the pH level had fallen more than .2 units, thus causing the waters to be in violation of the state's water quality standards. Plaintiffs alleged that this drop in pH was due to carbon dioxide emissions, which are absorbed into the oceans and contribute to enhanced acidification, affecting the ability of certain marine animals, like corals, pteropods, and other species of phytoplankton, to build the protective shells and skeletons. EPA has agreed to seek comments on the best methods for states to determine the effects of ocean acidification, and how to monitor the situation.
See also, Conservation Law Foundation v. EPA. (D. Mass August 2010) (asking EPA to account for climate change when determining the total maximum daily loads for nitrogen in the bays around Cape Cod).
2. Permits/Jurisdiction Peconic Baykeeper, Inc. v. Suffolk County, 600 F.3d 180 (2d Cir. 2010)
An environmental group brought a citizen suit against Suffolk County, and their vector control division (collectively the “County”). They alleged that by discharging dredged spoils, pollutants from ditches and culverts, and other materials, and spraying pesticides into U.S. waters without a NPDES permit, the County was in violation of the CWA. The lower court held for the County, and the Baykeeper appealed. The court here chose to vacate the district court's holding that the county's spraying activities complied with FIFRA, holding that because the County may have sprayed pesticides above certain forbidden bodies of water the issue must be remanded for further review. Additionally, the court here held that the County's spraying activities constituted point sources, thus reversing the lower court's decision to the contrary. However, the court here did agree that the County's maintenance related dredging activities did not necessitate an NPDES permit, and were thus not in violation of the CWA.
Northwest Environmental Defense Center (NEDC) brought an action against Oregon officials, and timber companies, alleging that they by discharging storm water from point sources into a system of ditches alongside logging roads, and eventually into streams located in a state forest without NPDES permits they were in violation of the CWA. The lower court dismissed the action, holding that the discharges were exempt from permit requirements under the Silvicultural Rule, which excluded logging operations from being required to obtain NPDES permits for water discharge. NEDC appealed, and the court held that the system of water discharge measures is not exempt from the definition of point source discharge under either the original Silvicultural Rule, or the revised 1976 version. Furthermore, they held that such a system was not exempt from the permitting process under the EPA's 1987 amendments to the CWA. Thus, the court concluded overall that storm water runoff from logging roads that is collected by, and then discharged from, a system of ditches, culverts, and channels, is a point source discharge for which an NPDES permit is required.
Ogeechee-Canoochee Riverkeeper, Inc. v. T.C. Logging, Inc., 2009 WL 2390851 (S.D. Ga. 2009)
Ogeechee-Canoochee Riverkeeper, Inc. brought a citizen suit alleging that T.C. Logging, Inc.'s logging operations violated the CWA by discharging dredged fill materials into jurisdictional wetlands without a permit. The Defendant moved for dismissal on issues of standing. The court held that despite the fact that the T.C. Logging is actively engaged in the process of obtaining an after-the-fact permit, the court is still able to redress the Riverkeeper's claims, and the case is not moot. Furthermore, on the basis that the T.C. Logging's discharges did not qualify for the silvicultural exemption to permit requirements, and that it was undisputed that T.C. Logging did in fact discharge said fill material into jurisdictional wetlands without the required permit, the court granted a motion of summary judgment on behalf of the Riverkeeper on the issues of standing, and the liability of T.C. Logging.
See Also, Northern California River Watch v. Healdsburg, 62 ERC 2089 (9th Cir. 2006) (jurisdiction in CWA citizen suit to enforce failure to obtain permit); Environmental Conservation Organization v. Dallas, 66 ERC 2000 (5th Cir. 2008) (government consent decree addressing plaintiffs' claims moots CWA citizen suit). Greenfield Mills Inc. v. Indiana Department of Natural Resources, 58 ERC 1033 (7th Cir. 2004) (jurisdiction to hear claim for lack of 404 permit prior to “maintenance” dredging); Peconic Baykeeper Inc. v. Suffolk, 68 ERC 2072 (E.D.N.Y. 2008) (aerial spraying of pesticides not actionable as CWA citizen suit); Sierra Club v. Honolulu City, 68 ERC 1592 (D. Haw. 2008) (liability for permit violations); Puget Soundkeeper Alliance v. Tacoma Metals Inc., 68 ERC 1208 (W.D. Wash. 2008) (liability for failure to report and prevent discharge of spilled cutting oils, but not for failure to maintain SPPP); Alliance to Save the Mattaponi v. Army Department, 65 ERC 1889 (D.D.C. 2007) (CWA citizen suit provision not bar challenge EPA failure to veto CWA 404 permit); Humboldt Baykeeper v. Union Pacific Railroad Co., 65 ERC 1828 (N.D. Cal. 2007) (no CWA citizen suit to enforce state administrative order).
3. Post-Judgment Issues a. Penalties
Sierra Club v. City of Colorado Springs, 2009 WL 2588696 (D. Colo. 2009)
The Sierra Club brought suit against the City of Colorado Springs and alleged violations under the CWA in response to fifty-four events involving their discharge of wastewater, chlorine, and reclaimed water in violation of their NPDES permit. The court found that due to issues of inadequate notice, good faith mitigation, and preclusive administrative action by the CDPHE, only twenty-three claims could be considered for all forms of relief, and twelve could be considered for equitable relief only. The court determined that it would apply the guidelines for imposing civil fines laid out in 33 U.S.C. § 1365(d), as well as standards imposed by the CDPHE. Using those rubrics, the court determined that based on the severity, duration, and size of discharges, only seven of the claims were proper for civil penalties. The fines levied for each would fall between $1,000 and $10,000, with the amount decreed based upon the aforementioned criteria. In total they amounted to $35,500 in penalties to be paid to the U.S. Treasury. Furthermore, the court chose to deny injunctive relief, which would impose tighter court monitored restrictions on the City's operations, in lieu of a stay, giving the CDPHE room to diligently enforce its permits and orders.
Lake Burton Civic Ass'n v. Williams, 2009 WL 973553 (N.D. Ga. 2009)
Lake Burton Civic Association and Williams entered into a settlement agreement whereby William agreed to allow a neutral party to conduct various tests in order to determine the effect had on water located near one of their construction sites. Lake Burton Civic Association brought a motion to enforce that agreement when Williams refused to allow further testing beyond the initial round, claiming that the settlement document limited their responsibility regarding the type of pollutant material to be tested for. The court granted Lake Burton's motion, ordering that the Williams must allow further testing, and comply with any recommendations made by the neutral testing party in response.
C. Hybrids: Clean Water Act and Other Environmental Statutes 1. Procedural a. Notice Requirements
Ecological Rights Foundation v. Pacific Gas and Elec. Co., 2010 WL 1881595 (N.D. Cal. 2010)
Ecological Rights Foundation (ERF), a non-profit organization that focuses on ameliorating toxic pollution, brought suit against Pacific Gas and Electric Company (PG&E) alleging that its wooden utility poles are leaching the chemical pentachlorophenal into public waterways in violation of the CWA and RCRA. PG&E filed a Motion to Dismiss First Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(1). PG&E's motion was denied because the court found that ERF properly provided notice under both acts by broadly alleging which utility poles were leaching the chemical. Notice does not need to describe every detail of every violation; but rather provide enough information that the defendant can identify and correct the problem. Furthermore, the court found that exclusion of other parties who may own the poles also did not warrant dismissal of the suit, and the suit was not prematurely filed before the requisite waiting periods of the acts.
Arc Ecology v. United States Maritime Administration, 2010 WL 235065 (E.D. Cal 2010)
The court lacked citizen suit jurisdiction over Ac Ecology's, an environmental group, suit against the United States Maritime Administration for violating the open dumping prohibition of RCRA. The Environmental Protection Agency (EPA) did not intend for the surface water criteria promulgated under the RCRA to authorize citizen suits for open dumping practices. RCRA regulations were designed to eliminate double liability under the CWA and RCRA. The pollution issues in this case were covered by the CWA. Washington Envtl. Council v. Mount Baker-Snoqualmie Nat'l Forest, 2009 WL 1543452 (W.D. Wash. 2009) The court held that an environmental group could not bring a CWA citizen suit claim against the federal government rooted in the discharge of hazardous substances from abandoned national forest mining sites into jurisdictional waters. Despite the government's concession of the violations, the citizen suit was precluded by ongoing removal actions initiated by the EPA, and in accordance with CERCLA.
c. Attorney Fees
Simsbury-Avon Preservation Soc., LLC v. Metacon Gun Club, Inc., 2010 WL 1286812 (D. Conn. 2010)
In 2004 the Simsbury-Avon Preservation Society, LLC and six of its members brought a five-count complaint against Metacon Gun Club under the Resource Conservation and Recovery Act and the Clean Water Act. In a total of four rulings, the last of which addressed an intervening change in the law, the Court dismissed one RCRA claim and granted Defendant summary judgment on the remaining four. The Second Circuit affirmed the summary judgment, and Defendant has moved for attorney and expert witness fees under the RCRA and CWA attorney-fee provisions. Its motions were denied because Plaintiffs' claims were not frivolous, unreasonable, or without foundation at the outset of the litigation and were not unreasonably litigated thereafter.
Cordiano and a citizen group brought a claim against Metacon Gun Club, alleging that by discharging spent lead casings on a privately owned shooting range, they were operating a hazardous waste disposal facility, and polluting navigable waters via nearby soil and wetland point sources in violation of the CWA. The lower court granted summary judgment in favor of the gun club, and the court here affirmed, holding that the accumulation of spent lead casings through disposal does not constitute solid waste, or pose an imminent and substantial endangerment to health or environment. As such, they are not required to obtain a permit for the disposal of such waste under RCRA. The court further held that there was no evidence that the gun club discharged any pollutants into jurisdictional wetlands, and as such no NPDES permit is required of them.
II. Clean Air Act Citizens are authorized to enforce compliance with emission limitations or standards and orders issues by either the EPA Administrator or a State under the Clean Air Act. 42 USC §7604. Proper notice of the alleged violation must be given to the alleged violator, State, and EPA sixty days before filing suit. The citizens bringing the suit must be adversely affected by the violation, and a suit may be barred if enforcement actions have already been commenced by the State or the EPA. Remedies vary from injunctions and penalties *475 to attorney fees. Below is a recap of developments, other than those regarding climate change, covered elsewhere in this program.
A. Procedural Concerned Citizens Around Murphy v. Murphy Oil USA, Inc., 686 F. Supp. 2d 663 (E.D. La. 2010)
Concerned Citizens Around Murphy (CCAM), a non-profit organization, brought action against Murphy Oil USA, Inc. on behalf of its members under the citizen suit provision of the Clean Air Act (CAA), alleging the oil company repeatedly violated hourly and yearly emission limitations set by the Louisiana Department of Environmental Quality (LDEQ). CCAM also alleged that Murphy failed to properly maintain certain pollution control devices, and that those violations endangered the health and impaired the quality of life of its members who lived or owned property near the oil company's refinery. Both parties moved for partial summary judgment. The District Court held that the organization had standing under the CAA, but that fact issues existed as to whether certain emissions met regulatory requirements of malfunction defense. Article III's standing requirements were met because: (1) CCAM's members showed that they used and enjoyed their yards and neighborhood less because of odors emanating from the company's refinery; (2) the members traced the pollution they smelled to the company because the odors grew stronger when they got closer to the refinery; and (3) civil penalties would redress the organization's injuries to the extent that they encouraged the company to discontinue current violations and deter it from committing future ones. Moreover, CCAM sought to protect interests germane to its purpose as an organization.
See Also, Sierra Club v. Franklin County Power of Illinois LLC, 67 ERC 2063 (7th Cir. 2008) (upholding standing to bring citizen suit challenging PSD permit violations); NRDC v. EPA, 63 ERC 1203 (D.C. Cir. 2006) (upholding standing to challenge EPA CAA rule Environmental group has associational standing to challenge Clean Air Act rule promulgated by EPA implementing critical use exemptions on production and consumption of methyl bromide.); BCCA Appeal Group v. EPA, 57 ERC 1257 (5th Cir. 2003) (upholding industry group's standing to challenge EPA approval of Texas SIP); Cambrians for Thoughtful Development v. Didion Milling Inc., 67 ERC 1326 (W.D. Wis. 2008) (no standing due to lack of ongoing violations); Sierra Club v. Wisconsin Department of Administration, 66 ERC 1717 (W.D. Wis. 2007) (upholding standing due to proximity to power plant and adverse effect on aesthetic and recreational values).
B. Substantive Natural Resources Defense Council v. South Coast Air Quality Management District, 694 F.Supp.2d 1092 (C. D. Cal. 2010)
The Natural Resources Defense Council (NRDC) challenged an air quality management district's “offset” requirements of the “new source review” program for “nonattainment” regions. The NRDC sought declaratory judgment and a preliminary injunction. The District moved to dismiss. The District Court held that review of contents of state implementation plan (SIP) for nonattainment area could not be made in context of CAA citizen suit in district court. Thus, the first cause of action failed to state a claim. The district court also lacked jurisdiction because § 173(c) could only be enforced against the EPA in the Ninth Circuit pursuant to § 307(b)(1) of the Act. The EPA specifically approved the district's use of the credits previously, so any challenge to that should have been brought against EPA in the Ninth Circuit earlier. In the absence of any enforceable EPA-approved SIP requirements, the second claim for relief was dismissed under Fed R. Civ. P. 12(b)(6) for failure to state a claim. There was no provision for an internal offset tracking system in the Clean Air Act, EPA's regulations or the EPA-approved SIP, so the third and fourth causes of action were also dismissed.
Sierra Club v. Korleski, 716 F. Supp. 2d 699 (S.D. Ohio 2010)
The Sierra Club filed a motion for reconsideration and reversal of an interlocutory order denying the Ohio EPA's motion for partial summary judgment. The Sierra Club had previously alleged that the Ohio EPA adoption and enforcement of a best available technology exemption, which contained less stringent requirements than Ohio's State Implementation Plan (SIP), violated the Clean Air Act. In that instance the court held that citizen suits were authorized against a state or local government only as polluters who violated an emission standard, not as regulators who failed to enforce an emission standard. The Sierra Club's motion to reconsider was granted because the court held that it was required by the decision by the U.S. Court of Appeals for the Sixth Circuit in United States v. Ohio Department of Highway Safety to hold that citizens' suits were proper against the state when it failed to enforce an SIP emission standard or limitation.
Sierra Club v. Otter Tail Power Co., 615 F.3d 1008 (8th Cir. S.D. 2010)
On appeal the Sierra Club alleged that the Otter Tail Power Company (OTPC) violated the CAA by failing to obtain Prevention of Significant Deterioration (PSD) program permits before commencing certain plant modifications. Also the Sierra Club argued that violations of the CAA continued by operating without PSD permits and without abiding by best available control technology (BACT) emission limits and by operating in violation of New Source Performance Standards (NSPS) limits. The court of appeals held that the Sierra Club's PSD claims were time-barred, as the claims accrued upon commencement of the modifications. Construction or modification of a facility without a PSD permit and BACT is prohibited but there is not an ongoing duty to obtain a permit, so there was no ongoing obligation that could have given rise to a timely claim. The concurrent remedy doctrine barred equitable relief sought by the Sierra Club. The district court's judgment was affirmed.
La. Envtl. Action Network v. Jackson, 685 F. Supp. 2d 43 (D.D.C. 2010)
The Louisiana Environmental Action Network (LEAN), an environmental group, brought action against administrator of the Environmental Protection Agency (EPA) and secretary of the Louisiana Department of Environmental Quality, alleging violations of the federal Clean Air Act (CAA). After secretary moved to dismiss for failure to state a claim and lack of supplemental jurisdiction, LEAN moved to dismiss the secretary without prejudice and for leave to amend. The District Court held that LEAN's motion to withdraw its claims against the secretary would be treated as notice of voluntary dismissal rather than a motion to dismiss. Motions granted in part and denied in part.
McEvoy v. IEI Barge Servs., 622 F.3d 671 (7th Cir. Ill. 2010)
Neighbors who were adversely affected by coal dust filed action under Clean Air Act against polluter to enforce two Illinois environmental regulations that allegedly had been violated. The United States District Court for the Northern District of Illinois dismissed the action and the Neighbors appealed. The Court of Appeals held that the CAA permitted citizen enforcement of standards found in state implementation plan (SIP), even if those standards were not repeated in a permit. But the Illinois environmental regulation entitled, “Prohibition of Air Pollution,” was not specific enough for judicial enforcement under the CAA citizen enforcement provision; and on issue of first impression, Illinois environmental regulation referring to fugitive particulate matter “that is visible by an observer looking generally toward the zenith at a point beyond the property line of the source” was not specific enough for judicial enforcement under CAA citizen enforcement provision.
See also, National Parks & Conservation Association v. TVA, 65 ERC 1417 (11th Cir. 2007) (alleged violations of preconstruction permit NSR requirements no longer ongoing); National Parks Conservation Association v. TVA, 63 ERC 2025 (6th Cir. 2007) (upholding CAA citizen suit for failure to apply BACT and obtain construction permit for major modification); Grand Canyon Trust v. Tucson Electric Power Co., 59 ERC 1161 (9th Cir. 2004) (laches not bar CAA citizen suit due to lack of prejudice). St. Bernard Citizens for Environmental Quality Inc. v. Chalmette Refining L.L.C., 66 ERC 1118 (E.D. La. 2007) (finding certain CAA citizen suit barred by res judicata following refinery's entry of consent decree with federal and state environmental agencies, but upholding jurisdiction for violations not addressed); Ass'n of Irritated Residents v. Fred Schakel Dairy, 67 ERC 1369 (E.D. Cal. 2008) (upholding CAA citizen suit for failure comply with MACT for HAPs emissions); Hell's Kitchen Neighborhood Ass'n v. New York City, 66 ERC 1525 (S.D.N.Y. 2007) (finding CAA citizen suit not barred by res judicata insofar as New York does not give preclusive effect to cases dismissed due to mootness).
III. Comprehensive Environmental Response, Compensation and Liability Act Under Section 310 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) a citizen may bring suit against an alleged violator of the act, or against the EPA or Agency for Toxic Substances and Disease Registry for failing to perform a non-discretionary duty. Citizen suits can be used to compel cleanup of hazardous waste sites, require additional clean, or to challenge the chosen method of cleanup. Civil penalties and attorney's fees are authorized remedies under the act.
A. Procedural 1. Notice Tyco Thermal Controls v. Redwood Industrials, 2010 WL 1526471 (N.D. Cal. 2010)
The district court held there was no pre-suit notice prerequisite to the exercise of subject matter jurisdiction over a property owner's claims under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). The property owner's private right of action for remediation costs under Section 9607 of CERCLA was distinct from the injunctive and declaratory relief available under Section 9659(a), and property owner's complaint did not make any reference to Section 9659. The notice requirements of Section 9659(d) applied only to Section 9659(a) claims.
2. Jurisdiction See Davis v. EPA, 63 ERC 1309 (10th Cir. 2006) (upholding jurisdiction to hear CERCLA mandatory duty claims against EPA); Pakootas v. Teck Cominco Metals Ltd., 62 ERC 1705 (9th Cir. 2006) (affirming citizen suit against Canadian company for failing to comply with agency order to study contamination in United States caused by migrating waste from Canadian smelter facility, finding personal and subject matter jurisdiction, and extraterritorial application); Frey v. EPA, 60 ERC 1097 (7th Cir. 2005) (upholding jurisdiction to hear some CERCLA citizen suit claims for failure to perform nondiscretionary and other duties at PCB contaminated site, but dismissing nine other claims as falling outside of CERCLA's citizen suit provision); Moses Lake v. U.S., 62 ERC 1373 (E.D. Wash. 2005) (upholding city's CERCLA citizen suit challenging EPA cleanup plan under section 120 as not subject to section 113's jurisdictional review bar); Moraine Properties LLC v. Ethyl Corp., 68 ERC 1922 (S.D. Ohio 2008); Pinoleville Pomo Nation v. Ukiah Auto Dismantlers, 66 ERC 1646 (N.D. Cal. 2007); Envirowatch Inc. v. Hawaii Department of Health, 65 ERC 2019 (D. Haw. 2007); Nadist LLC v. Doe Run Resources Corp., 64 ERC 2053 (E.D. Mo. 2007); Hackensack Riverkeeper Inc. v. Delaware Ostego Corp., 63 ERC 2136 (D.N.J. 2006); Sierra Club v. EPA, 68 ERC 1228 (N.D. Cal. 2008) (CERCLA's venue provision, “may be brought,” does not require action to be brought in district court in DC, upholding case filed in district court in California).
3. Standing See Byford v. EPA, 67 ERC 1849 (N.D. Okla. 2008) (no standing due to lack of allegation of proximity or imminent harm from CERCLA site); Sierra Club v. Tyson Foods Inc., 58 ERC 1076 (W.D. Ky. 2003) (upholding standing to bring CERCLA citizen suit for failing to report releases of ammonia from chicken farm); Maine People's Alliance v. Mallinckrodt Inc., 63 ERC 1737 (1st Cir. 2006) (upholding standing in RCRA citizen suit); Parker v. Scrap Metal Processors Inc., 59 ERC 1353 (11th Cir. 2004) (same); Covington v. Jefferson, 57 ERC 2066 (9th Cir. 2004) (same); Kersenbrock v. Stoneman Cattle Co., 65 ERC 2016 (D. Kan. 2007) (same).
4. Attorney Fees See Citizens Against Pollution v. Ohio Power Co., 65 ERC 1374 (S.D. Ohio 2007) (upholding award of $876,895.83 in attorneys' fees, 68,451.61 in expert witness fees, $63,788.23 in court costs, and interest to partially “prevailing party.”); Waukesha v. PDQ Food Stores Inc., 65 ERC 1357 (E.D. Wis. 2007) (no attorney fees due to lack of judicial order; catalyst theory not apply).
B. Substantive Chitayat v. Vanderbilt Assocs., 702 F. Supp. 2d 69 (E.D.N.Y. 2010)
Property owner Chitayat brought action under CERCLA seeking recovery of cleanup costs and contribution from former corporate owner of the property, Vanderbilt Associates, and one of its general partners. The partner commenced two third-party actions against other partners and a neighboring property owner. Vanderbilt Associates and third-party defendants moved for summary judgment against Chitayat. The District Court held that Chitayat was not entitled to recover costs it expended in reimbursing state for clean-up costs but that he was entitled to seek contribution under CERCLA. Also the three-year limitations period applied under the statute and the contribution action was untimely. Summary judgment was granted.
City of Colton v. Am. Promotional Events, Inc.-West, 614 F.3d 998 (9th Cir. Cal. 2010)
The City of Colton sued numerous entities that had engaged in industrial activities in groundwater basin, seeking to recover response costs and contribution, under CERCLA, for release of perchlorate contamination in water supply, and asserting claim for declaratory relief as to liability for future costs under Declaratory Judgment Act. The United States District Court for the Central District of California granted defendants summary judgment and the City appealed. The Court of Appeals held that past response costs were not recoverable; the claim for declaratory judgment was ripe, the appeal was not moot, and court had subject matter jurisdiction over declaratory relief claim. However, in matter of first impression, CERCLA declaratory relief as to future response costs is unavailable absent recoverable past costs. Summary judgment for the defendants affirmed.
IV. Resource Conservation and Recovery Act The Resource Conservation and Recovery Act (RCRA) allows for citizen enforcement under 42 U.S.C. 6972(a)(1)(B). This provision provides that a citizen can bring suit against any person who has contributed to or is contributing to the storage, treatment, transportation, or disposal of any solid or hazardous waste. RCRA generally requires a sixty to ninety day notice before commencing an action, depending on the type of claim and the jurisdiction. Injunctive relief and an award of attorney's fees are available under the provision. Under RCRA, citizens may sue owners or operators of disposal facilities that may present an imminent and substantial endangerment to the environment. [FN16] An endangerment that is “imminent” is not necessarily one precipitating immediate harm. [FN17] Rather, a harm that may not be realized for some time may form the basis for “imminent” endangerment. [FN18] An endangerment that is “substantial” need not quantify the risk of harm. [FN19] Instead, some reasonable cause for concern regarding risk of exposure may for the basis for a “substantial” endangerment claim. [FN20]
A. Procedural 1. Notice Kfd Enterprises v. City Of Eureka, 2010 WL 1779907 (N.D. Cal. 2010)
A property owner gave insufficient pre-lawsuit notice to an environmental remediation company under the RCRA. The notice failed to provide facts as to the nature of the company's activities that were alleged to have violated the RCRA or a range of dates for the activities.
Frontier Recovery v. Lane County, 2010 WL 2555800 (D. Or. 2010)
Frontier Recovery, the owner of a former landfill, brought a citizen suit against Lane County under RCRA to recover clean up costs. Frontier Recovery also sought contribution and indemnity. The County filed a motion for summary judgment. The District Court held that an Oregon solid waste permit, which predated RCRA's enactment, did not become effective pursuant to the statue. Frontier Recovery had satisfied the notice requirements for a suit alleging imminent and substantial endangerment to health and the environment. Summary judgment was precluded because of factual issues on Frontier Recovery's status as a potentially responsible party. Also, Frontier Recovery was not entitled to indemnity. The County's motion was granted in part and denied in part.
See also, Rennie v. T & L Oil Inc., 66 ERC 1754 (N.D. Okla. 2007) (finding property owner failed to provide 60 days' notice prior to filing claim); Innis Arden Golf Club v. Pitney Bowes Inc., 66 ERC 1435 (D. Conn. 2007) (60 day notice requirement does not apply to section 107 cost recovery actions); Building and Construction Trades Council of Buffalo, New York and Vicinity v. Downtown Development Inc., 62 ERC 1385 (2d Cir. 2006) (failure to provide notice, not “hybrid” claims dispensing need for notice); Covington v. Jefferson, 57 ERC 2066 (9th Cir. 2004) (claims of mishandling hazardous wastes not subject to notice requirement). Affholter v. Franklin County Water District, 68 ERC 1977 (E.D. Cal. 2008) (dismissing RCRA citizen suit, holding notice requirement “strictly construed”). Accord, Hackensack Riverkeeper Inc. v. Delaware Ostego Corp., 65 ERC 1328 (D.N.J. 2007) (failure to provide notice of source of alleged contamination in RCRA citizen suit).
2. Jurisdiction Sullins v. Exxon/Mobil Corp., 2010 WL 1980218 (N. D. Cal 2010)
This case is based on the allegations that, during the time Defendant ExxonMobil Corporation owned the real property now owned by the Sullins, underground storage tanks leaked, contaminating the property and ExxonMobil refused to contribute to the cost of remediating the property. ExxonMobil moved to dismiss Sullins' action for failure to state a claim under the act. The motion was granted in part because Sullins' failed to show how ExxonMobil would continue to pollute the property, as the company had not owned the property since 1972. The motion was denied in part because Sullins had alleged sufficient facts to show the contamination poses an imminent harm to the environment.
Interfaith Cmty. Org., Inc. v. PPG Indus., 702 F. Supp. 2d 295 (D.N.J. 2010)
Interfaith Community Organization, Inc., and environmental group, brought action under RCRA alleging that former operator of chrome production facility, PPG Industries, contributed to chromium waste that could present imminent and substantial endangerment to health or environment. Operator moved for summary judgment or for abstention. The District Court held that the action was not rendered moot as result of consent judgment between operator and state environmental agency. Furthermore, the Colorado River abstention was not warranted nor was the Burford abstention. The doctrine of primary jurisdiction did not the preclude action, and the action was not improper collateral attack. PPG Industries' motion denied.
Green Valley Corp. v. Caldo Oil Co., 2010 WL 2348636 (N.D. Cal. 2010)
Green Valley Corporation filed suit pursuant to RCRA, and various California state laws, seeking injunctive relief, declaratory relief, and damages related to the investigation and remediation of alleged soil and groundwater contamination. Green Valley alleged that Caldo Oil Company are liable for the abatement of the contamination and the costs of investigation and remediation, which were incurred in response to releases or threatened releases of petroleum products at or near a location currently owned by Plaintiff. The Oil Company moved to dismiss the complaint for lack of subject matter jurisdiction. The motion was denied because the Oil Company failed to show that the petroleum exception in RCRA barred Plaintiff's claims.
3. Complaint Grace Christian Fellowship v. KJG Investments Inc., 2010 WL 1905006 (E.D.Wis.,2010) Grace Christian Fellowship (Fellowship) filed this action against KJG Investments Inc. under the citizen suit provision of RCRA. The Fellowship also asserted state law claims of continuing trespass, nuisance, and negligence. The Fellowship moved to file a second amended complaint after three years of litigation and considerable amounts of time and money spent by KJG Investments Inc. trying to resolve the case. Under the circumstances, the Fellowship has unduly delayed the filing of its motion to file a second amended complaint. If the court were to allow the filing of the second amended complaint, at this stage of the case KJG Investments would suffer undue prejudice. The Fellowship's motion was denied.
4. Standing Premier Associates, Inc. v. EXL Polymers, Inc., 2010 WL 2838497 (N.D.Ga. 2010)
Premier Associates, Inc., which was leasing property from EXL Polymers, Inc., potential liability in a suit brought against it by EXL Polymers, Inc. for violations of RCRA could not be considered an injury under that act and thus, lessee had no standing to bring a citizen-suit. Premier Associates did not claim it was injured by EXL Polymers conduct regarding the environmental conditions on the leased premises rather the claim was for contribution to the RCRA violations. However, whether EXL Polymers was partially responsible for RCRA violations had no bearing on whether lessee had standing to bring a citizen-suit against the lessor.
5. Abstention Adkins v. Will, 2010 WL 1652953 (N. D. Ind. 2010)
Adkins' federal action and two Indiana Department of Environmental Management (IDEM) actions in a state court were parallel proceedings, and therefore abstention for a federal district court was appropriate. Abstention was proper because both the citizen-plaintiffs in the federal action and the IDEM plaintiff in the state actions sought the same interests of the removal of solid wastes from a company site and injunction of the company's further handling of solid waste at the site. Furthermore, the state cases and the federal case arose of the same facts and all three actions were predicated upon the company's alleged history of operating a wood recycling facility in violation of Indiana's solid waste regulations.
Natural Resources Defense Council, Inc. v. County of Dickson, TN, 2010 WL 1408797 (M. D. Tenn. 2010)
The NRDC brought suit against the County of Dickson, TN, for the abatement of a contaminated land fill. The County moved to dismiss the action, but the motion was denied because the Court held that the NRDC were not barred to bring suit by a commissioner's order in that the order was not from the EPA administrator. The NRDC have proper standing to bring the action, and the circumstances in this action did not fit into the extremely narrow and extraordinary class of cases subject to Burford abstention.
B. Substantive 1. Liability/Indemnification Gulf Coast Asphalt Co., L.L.C. v. Chevron U.S.A., Inc., 2010 WL 3489941 (S.D. Ala. 2010)
Gulf Coast Asphalt Company, L.L.C. (“GCAC”) brought a lawsuit against Chevron U.S.A., Inc. (“Chevron”) under RCRA seeking injunctive and other relief from Chevron to clean up illegally buried crude oil gallons from a former refinery and storage area, alleging that Chevron was a past owner of the storage site who contributed to the disposal of solid waste which presents an imminent and substantial endangerment to human health or the environment. In October 2009, Chevron filed a third-party complaint against Trifinery, Inc. (“Trifinery”) seeking contractual indemnification from and against the claims made by Gulf Coast. Trifinery counterclaimed against Chevron for fraud and misrepresentation, promissory fraud, and breach of contract. This court adopted a report and recommendation dismissing all of Trifinery's counterclaims against Chevron. Chevron's motion for summary judgment was granted.
Voggenthaler v. Maryland Square, LLC, 2010 WL 2947296 (D. Nev. 2010)
Plaintiffs, all residential property owners, brought suit under RCRA against the owners and prior owners of a shopping center, which leased space in the center to a dry cleaning facility. The owners and prior owners contributed, over at least twenty years, to the handling and disposal of perch loreoethylene (PCE), a hazardous waste, which had been discharged from the facility and become an underground plume underneath a residential neighborhood where it had contaminated groundwater as required to subject owners to injunctive relief under the RCRA. The owners of the shopping center also owned the drain pipes beneath the dry cleaning facility where the highest concentrations of PCE had been found. They also gained a financial advantage by leasing the site to the dry cleaning tenant because they received a percentage of the dry cleaning operation's over-the-counter sales as part of the lease agreement. Because of this participation in the financial operation of the dry cleaning business, and direct profits from the dry cleaner's use of PCE, the shopping center owners were subject to liability.
See also, Simsbury-Avon Preservation Society LLC v. Metacon Gun Club Inc., 69 ERC 1187 (2d Cir. 2009) (gun club not RCRA disposal facility, and no imminent and substantial endangerment); Oklahoma v. Tyson Foods Inc., 68 ERC 1961 (10th Cir. 2009) (federal court order denying motion for PI in RCRA citizen suit not abuse of discretion); Sycamore Industrial Park Associates v. Ericsson Inc., 67 ERC 1870 (7th Cir. 2008) (no RCRA liability for sale of commercial products); Cannon v. Defense Department, 67 ERC 1788 (10th Cir. 2008) (CERCLA 113(h) bars RCRA citizen suit challenging ongoing removal or remedial action); OSI Inc. v. United States, 66 ERC 1513 (11th Cir. 2008) (same); Sánchez v. Esso Standard Oil Co., 69 ERC 1053 (1st Cir. 2008) (remanding for reconsideration of decision to grant P/I in RCRA citizen suit despite failure to conduct harm and balancing analysis); Maine People's Alliance v. Mallinckrodt Inc., 63 ERC 1737 (1st Cir. 2006) (upholding RCRA citizen suit to redress medical and scientific concerns). Esso Standard Oil v. Rodríguez-Pére, 63 ERC 1213 (1st Cir. 2006) (jurisdiction to hear RCRA citizen suit as counterclaim); Interfaith Community Organization v. Honeywell International Inc., 59 ERC 2116 (3d Cir. 2005) (Cleanup order upheld in RCRA citizen suit for imminent and substantial endangerment); June v. Westfield, 58 ERC 1648 (2d Cir. 2004) (no continuing violations in RCRA citizen suit); Northern California River Watch v. Redwood Oil Co., 68 ERC 1773 (N.D. Cal. 2008) (CWA consent decree bars subsequent RCRA citizen suit); River Village West LLC v. Peoples Gas Light & Coke Co., 68 ERC 1720 (N.D. Ill. 2008) (CERCLA 113(h) bars RCRA citizen suit, even if instituted after commencing RCRA action). Wason Ranch Corp. v. Hecla Mining Co., 67 ERC 1570 (D. Colo. 2008) (same).
2. Preliminary Injunction Kentucky Oil and Refining Co. v. W.E.L., Inc., 2010 WL 882133 (E.D. Ky. 2010)
The transport company, W.E.L., Inc., established that it had a likelihood of success on its RCRA claim, and thus, the transport company was entitled to a preliminary injunction. The transport company entered into an agreement with the oil company, Kentucky Oil and Refining Co., to transport its waste, but some of its waste was rejected by the disposal sites for containing high amounts of toxins. The transport company tanker was currently filled with the toxic waste on the oil company's property, and the transport company wanted the oil company to clean tanker of the toxic waste. The transport company alleged that the tanker was not designed for long-term storage of waste material and that its valves could burst at low temperatures, releasing the waste. Furthermore, there was evidence that the waste did contain toxins and that the tanker was not fenced off and any person could have access to it.
3. Enforcement Saline River Properties LLC v. Johnson Controls Inc., 2010 WL 2605972 (E. D. Mich. 2010)
An Administrative Order on Consent (AOC) issued by the Environmental Protection Agency (EPA) did not preclude citizens from bringing an RCRA action against a facility owner to enforce the AOC. Johnson Controls Inc. contended that the AOC required certain conditions precedent be met such as giving notice before penalties could be imposed and providing with dispute resolution rights before commencing a civil action. However, under the express language in the AOC, a citizen action to enforce the AOC or assess penalties was not precluded.
4. “Imminent and Substantial Endangerment” City of Fresno v. United States, 709 F. Supp. 2d 934 (E.D. Cal. 2010)
The city of Fresno brought suit against, inter alia, a company allegedly responsible for activities, conduct and omissions that caused or permitted the release of environmental contaminants at an airport. The company moved for summary judgment on the city's claim under RCRA. The District Court held that presence on the site of 1, 2, 3-trichloropropane (TCP) did not present an “imminent and substantial endangerment.” The motion was granted.
Crandallv. City & County of Denver, 594 F.3d 1231 (10th Cir. Colo. 2010)
Defendants Denver city and county that operated the airport were entitled to judgment on citizen suit claims brought by two individuals under RCRA. Crandall and other individuals alleged harm from deicing operations at the airport concourse. The city and county were granted summary judgment because: (1) under RCRA *482 individuals were only entitled to injunctive relief if they established imminent and substantial endangerment to human health or environment; (2) at time of trial the city and county had prohibited full plane deicing at airport gates, instituted new protective deicing protective measures, and there was no detectable hydrogen sulfide gas from degraded deicing fluid in airport concourse; and (3) gas could only be problem if full-plane deicing operations resumed at concourse gates and measures instituted by city and county proved insufficient to protect human health.
Newark Group, Inc. v. Dopaco, Inc., 2010 WL 1342268, (E. D. Cal. 2010)
Newark Group, Inc. moved for partial summary judgment on its RCRA claim in this RCRA citizen suit. Newark Group sought an order holding Dopaco, Inc. jointly and severally liable for the contamination of toluene on its property. Dopaco was a former tenant on Newark's property before Newark purchased the property. Because Newark had failed to satisfy “the imminent and substantial endangerment” element of its RCRA claim, the motion for partial summary judgment was denied.
V. Endangered Species Act Citizen driven lawsuits are allowed under section 11 (g) of the Endangered Species Act. These lawsuits can seek to enjoin any person that is in violation of the act, to compel agency compliance with the act when a violation has occurred, or can be against the Secretary where there is an alleged failure to perform the nondiscretionary acts and duties set forth by section 4 which sets the procedures for determining endangered and threatened species. Sixty day notice must be given to the violator and the Secretary of the Interior before the commencement of an action. Remedies under the act include an injunction and award attorney's fees and costs if appropriate.
The core of the Endangered Species Act (ESA) is §7(a)(2) that requires federal agencies to “insure that any action authorized, funded, or carried out” by the agency “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.” The section further provides in §7(b) that if an agency concludes that the action “may effect” an endangered species or its habitat a formal consultation with the Fish and Wildlife Service is required. Section 9 prohibits any person, not just federal agencies, from unlawfully taking, selling, importing, or exporting any protected species.
A. Procedural Issues 1. Notice Conservation Force v. Salazar, 715 F. Supp. 2d 99 (D.D.C. 2010). Conservation Force, comprised of organizations and individuals that supported sustainable hunting of the Canadian wood bison, brought suit alleging that the Secretary of the Department of the Interior had violated the Endangered Species Act (ESA) by not downgrading the species' classification to threatened as it is currently listed as endangered. The Secretary filed a motion to dismiss, and Conservation Force moved for summary judgment. The District Court held that notice of intent to sue under ESA for the failure to issue a 90-day finding did not provide proper notice of intent to sue for the subsequent failure to issue a 12-month finding, and that the request for declaratory judgment was moot. The Secretary's motion was granted. See also Man Against Extinction v. U.S. Fish and Wildlife Service, 68 ERC 1141 (N.D. Cal. 2008) (failure to provide notice challenging decision to delist whale species); Western Watersheds Project v. U.S. Forest Service, 66 ERC 1693 (D. Idaho 2007) (APA claims not trigger ESA's notice requirement); South Yuba River Citizens League v. National Marine Fisheries Service, 66 ERC 1627 (E.D. Cal. 2007) (failure to provide notice of section 7 claim).
2. Jurisdiction The ESA is replete with jurisdictional issues concerning enforcement, listing and delisting, and a variety of other issues. See e.g., Salmon Spawning and Recovery Alliance v. U.S. Customs and Border Protection, 68 ERC 1041 (Fed. Cir. 2008) (dismissing ESA citizen suit, finding enforcement discretionary); American Bird Conservancy v. FCC, 67 ERC 1833 (9th Cir. 2008) (no jurisdiction to review section 7 claims for actions regulated under FCC); Center for Biological Diversity v. Marina Point Development Co., 67 ERC 1289 (9th Cir. 2008) (delisting species *483 moots ESA citizen suit); Defenders of Wildlife v. Commerce Department, 67 ERC 1097 (D.C. Cir. 2008) (traffic separation scheme subject to citizen enforcement under ESA); Coos County Board of County Commissioners v. Interior Department, 66 ERC 1929 (9th Cir. 2008) (no citizen suit by county for agency's alleged failure to act after determining lack of distinct population segment under ESA); Institute for Wildlife Protection v. Interior Department, 63 ERC 1395 (9th Cir. 2006) (failure to respond to petitions for review not subject to ESA citizen suit); Washington Toxics Coalition v. EPA, 60 ERC 1940 (9th Cir. 2005) (upholding citizen suit requiring EPA to consult under section 7).
3. Standing Animal Welfare Inst. v. Martin, 623 F.3d 19 (1st Cir. Me. 2010)
Animal rights' group Animal Welfare Institute (AWI) sued the Commissioner of Maine Department of Inland Fisheries and Wildlife among others seeking to enjoin Maine officials from using foothold traps, to prevent incidental takes of the threatened Canadian Lynx. The District Court denied relief, citing that AWI failed to show irreparable harm for purposes of the injunction. On appeal, the 1st Circuit found that AWI did have standing to sue, and that the agency did not abuse its discretion when denying the injunction. See Also, Defenders of Wildlife v. Commerce Department, 67 ERC 1097 (D.C. Cir. 2008) (standing to challenge effect U.S. Coast Guard's maritime traffic separation pattern would have on right whales); Alabama-Tombigbee Rivers Coalition v. Interior Department, 56 ERC 1897 (11th Cir. 2003) (upholding business' standing to challenge listing of sturgeon as endangered); American Society for the Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 55 ERC 1904 (D.C. Cir. 2003) (upholding standing to challenge mistreatment of endangered elephants); Institute for Wildlife Protection v. U.S. Fish and Wildlife Service, 66 ERC 1620 (D. Or. 2007) (upholding standing to challenge failure to designate critical habitat).
B. Substantive Issues 1. Section 4 The ESA continues to shape climate litigation. In Center for Biological Diversity v. Salazar (N.D.Cal., June 3, 2010), the U.S. Fish and Wildlife Service reached a settlement to complete listings to protect certain penguin species from the effects of climate change. The determinations for all six species and a subspecies are to be published at various dates, with the last being January 30, 2011. Also, the Eastern District of California recently found that the National Marine Fisheries acted arbitrarily and capriciously by not discussing the impact of climate change on protected salmon and steelhead in the Yuba River in their biological opinion about two dams on the river. South Yuba River Citizens League v. National Marine Fisheries Service (E.D. Cal. July 8, 2010). The agency's actions constituted a taking under the ESA, the court held.
2. Section 7 Medina County Environmental Action Ass'n v. Surface Transp. Bd., 602 F.3d 687 (C.A.5, 2010).
Medina County Environmental Action Association (“EAA”), an environmental organization, challenged the Surface Transportation Board and the Fish and Wildlife Service's decision to allow the construction of a service railroad for failure to comply with §7 of the ESA. Specifically EAA challenged the agencies' findings that the railroad and its cumulative effects would not harm endangered bird species and karst invertebrates known to live in the area. The Court found that the agencies did not act arbitrarily or capriciously when making the decision because: (1) board properly relied upon biological opinion that considered actions associated with proposed line that were reasonably certain to occur, and (2) board adequately analyzed effects of project in making its jeopardy determination.
Western Watersheds Project v. Kraayenbrink, 620 F.3d 1187 (9th Cir. Idaho 2010).
The Western Watersheds Project (WWP) challenged the Bureau of Land Management's regulation amendments to the Taylor Grazing Act which decreased public involvement in public land management and limited the agency's enforcement power while increasing ranchers' ownership rights to improvements and water. The Court of Appeals found that the agency violated §7(b) of the ESA by not consulting with the FWS given the extensive evidence of effects on listed species and habitat. Furthermore, the amendments violated the National Environmental Policy Act in that the agency failed to take a “hard look” at significant environmental impacts, failed to consider other agencies and expert concerns, and offered no reasoned explanation for the policy change in its environmental impact statement. Summary judgment was granted for the ESA and NEPA claims and a permanent injunction was affirmed by the 9th Circuit.
Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. N.M. 2010).
Environmental group Rio Grande Silvery Minnow (hereinafter Minnow) sued the Bureau of Reclamation for failure to protect the Rio Grande Silvery Minnow, an endangered species, by not reallocating water from agriculture and contract users to maintain stream flows in the Rio Grande. Contract water users intervened. The United States District Court for the District of New Mexico, affirmed the biological opinion on substantive grounds, but found that the Bureau had sufficient discretion over certain operations to require consultation under the ESA. Water users, Bureau, and Corps appealed. The Court of Appeals dismissed the water users' appeal for lack of standing and the agencies' appeal because the order was not subject to interlocutory appeal. While appeal was pending, Minnow filed a motion for emergency injunctive relief that alleged a drought was endangering the fish and requested an order directing the Bureau and Corps to meet the flow requirements of the biological opinion. The District Court granted the motion in part and the Bureau, Corps, and water users appealed. The Court of Appeals affirmed the injunction, but subsequently found the appeal moot and vacated its opinion. Following dismissal of the appeal and issuance of a new biological opinion by the FWS, Minnow sought dismissal, but requested that the District Court not vacate its prior orders. The Bureau, Corps, and water users moved for vacatur, and Minnow sought to withdraw their motions to dismiss. The District Court denied the motion to vacate, and the Bureau, Corps, and water users appealed. The Court of Appeals held that Minnow's scope-of-consultation was mooted by the superseding biological opinion, and that the de novo standard of review was applicable to questions of Article III mootness. Further, the Court of Appeals held that the vacatur of the District Court's prior orders was warranted.
3. Sections 9 and 10 Sierra Club v. California American Water Co., 2010 WL 135183, 1 (N.D.Cal.,2010).
The Sierra Club alleged that California American Water Co. (CAW), a public water company, diverted and continues to divert water from the Camel River and that these diversions are harming the endangered South Central California Coast Stealhead. Federal agencies were joined as defendants as a necessity because the Sierra Club claimed they had not enforced the takings of the Stealhead. The Sierra Club sought injunctive relief. The District Court dismissed the claim because of its interference with ongoing state judicial proceedings on the same issues.
In January 2010, the district of Alaska upheld a rule by the U.S. Department of the Interior allowing for incidental takings of polar bears and Pacific walruses during oil and gas exploration. Center for Biological Diversity v. Kempthorne, (D. Alaska Jan. 8, 2010). Petitioners sought to revoke the rule for failure to consider the impact of climate change when approving the taking of the protected species. See also, Center for Biological Diversity v. Kempthorne (9th Cir. Dec. 2, 2009) (upholding U.S. Fish and Wildlife Service's incidental take rules when the climate change evidence presented by the petitioners showed only a generalized threat the species populations, rather than a significant impact).
Conclusion 2010 shows that environmental citizen suits are to remain a necessary but not sufficient attribute in enforcement of environmental laws in the United States.
STATUTES W/ENV. CITIZEN SUITS INCLUDE • Clean Air Act (“protect and maintain” air quality) (1970, 1987)
• Clean Water Act (“protect and restore the chemical, physical and biological integrity of the nation's waters”) (1972, 1977, 1987)
• Endangered Species Act (Conserve Threatened and Endangered Species) (1973)
• Resource Conservation and Recovery Act (Management of Hazardous Waste) (1976 & 1984)
• Comprehensive Environmental Response, Compensation and Liability Act (Clean Up Releases of Hazardous Substances) (1980)
CITIZEN SUIT PURPOSES ● Force compliance when agencies can't or won't
● Hold unelected agencies more accountable
● Spur enforcement
● Compel compliance with legislative mandates
● Uphold bicameral lawmaking and tripartite governance
● Encourage environmental stewardship and awareness home and abroad
● Allowed against:
● Person who violates legal requirement (“enforcement” case)
● EPA for failure to perform non-discretionary duty (“agency forcing” case)
ANATOMY OF A CITIZEN SUIT ● Fact gathering
● FOIA and other informal means
● Ascertain extent of injury (“standing”)
● Notice of Intent to Sue
● To governing agency
● To non-complying party
● Wait statutory time period to elapse
● If (a) violation is ongoing, and (b) agency still not enforcing or complying, evaluate litigation prospects
● Commence Action
● Person who violates legal requirement (“enforcement” case)
● EPA for failure to perform non-discretionary duty (“agency forcing” case)
● Defend dispositive briefs
● Conduct formal discovery
● Submit dispositive briefs
● Trial on any surviving issues
● Determine appropriate penalties
● Negotiate and monitor compliance with consent decree, if any
CWA/CERCLA SAMPLE DOCUMENTS Environmental Law Forms Guide, Database updated April 2013, by: Richard H. Mays