CITIZEN SUIT WATCH: Fifth Circuit Reverses Dismissal of Citizen Suit Based on Pre-Existing Consent Decree

In a recent per curiam opinion (LEAN v. City of Baton Rouge, No. 11-30549 (5th Cir.)), the Fifth Circuit reversed a lower court's dismissal of a Clean Water Act citizen suit, finding that the Clean Water Act's "diligent prosecution" bar to citizen suits is nonjurisdictional and that the district court improperly dismissed the suit as moot due to a pre-existing consent decree. The court remanded the case to the district court to determine whether the pre-existing consent decree and the government's efforts to enforce the decree constitute a diligent government prosecution that would preclude the plaintiffs' suit. The ruling will make it more difficult for citizen suit defendants to prevail at the motion to dismiss stage with a diligent prosecution defense, making the need for discovery on the issue more likely for future suits.

Case Background

The factual background for this case is set forth in our prior Citizen Suit Watch on the district court decision. In short, this Clean Water Act (CWA) citizen suit involves three wastewater treatment plants in Baton Rouge that were subject to a 2002 consent decree that imposed various compliance standards and a compliance timeline that runs until 2015.

Plaintiff Louisiana Environmental Action Network (LEAN) filed a citizen suit in 2010 alleging that defendants were in violation of the CWA and the 2002 consent decree. Defendants moved to dismiss the suit on the basis that the CWA bars citizen suits when the government is diligently prosecuting an enforcement action, arguing that plaintiffs' claims pertained to violations that require compliance with the same standards as dictated by the 2002 consent decree. Considering the government's ongoing enforcement of the decree, defendants asserted that entertaining plaintiffs' suit "undermines the [CWA's] enforcement scheme."¹

The district court granted defendants' motion to dismiss on jurisdictional grounds. It found that the CWA's diligent prosecution bar to citizen suits "strips courts of subject matter jurisdiction . . . once the [government] has timely commenced judicial or administrative enforcement actions."² The court proceeded to find that the consent decree rendered plaintiffs' claims moot, also depriving the court of jurisdiction.  In applying the mootness standard, the court placed the burden on plaintiffs to show a "realistic prospect" that defendants were likely to continue their alleged violations, despite defendants' contention that they were complying with the 2002 consent decree. The court held that plaintiffs failed to do so in their pleadings and dismissed the case.

Per Curiam Opinion from the Fifth Circuit

Plaintiffs appealed the ruling, arguing that the district court applied the wrong standard. The Fifth Circuit agreed and reversed and remanded the decision for further consideration. The court held (i) that the district court erred in its mootness analysis; and (ii) that the "diligent prosecution" bar is nonjurisdictional. 

The Fifth Circuit first determined that the lower court misapplied the mootness standard. A case is moot where any set of circumstances arising after commencement of a suit eliminates the actual controversy that precipitated the action. The district court had relied on a 2008 opinion, Environmental Conservation Organization v. City of Dallas,³ where a CWA citizen suit was mooted by a consent decree that was executed after plaintiffs filed suit.  Here, LEAN filed its citizen suit after defendants entered into the 2002 consent decree. Therefore, the consent decree could not have mooted plaintiffs' claim, as it predated the suit.

The appellate court then turned to whether the "diligent prosecution" bar is jurisdictional and determined after a lengthy analysis that it was not. Thus, remand to the district court was required for findings on whether the government was indeed diligently prosecuting the alleged violations through enforcement of the 2002 consent decree.  

The court first performed a careful analysis of the CWA's text and structure. It found that Congress did not explicitly state that the "diligent prosecution" bar is jurisdictional. Absent a clear statement, the court then looked to the "diligent prosecution" bar's context. Here, the court distinguished jurisdictional bars from "claim processing rules." The latter promote the orderly process of litigation, while jurisdictional bars require immediate dismissal. The court found instructive that Congress placed the "diligent prosecution" provision in the "Notice" section of the CWA's citizen suit provision, rather than the "Jurisdiction" provision. Indeed, the Notice section includes the requirement that plaintiffs give an alleged violator, the State, and the Environmental Protection Agency sixty days notice prior to filing suit. The court determined that the Notice provision "is a typical ‘claim processing rule.'"⁴

The court leaned heavily on the Supreme Court's analysis in Arbaugh v. Y&H Corp., reinforcing the rule that "when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character."⁵

The court conceded that, even absent clear congressional intent, the "diligent prosecution" provision could still be jurisdictional if the Supreme Court said it was so. Under the "historical treatment" test, courts look to see whether there is a "long line" of Court decisions left untouched by Congress on which to rely. The court found no such cases.

After finding that the "diligent prosecution" bar is not jurisdictional, the Fifth Circuit declined to decide whether the "diligent prosecution" provision does, in fact, bar plaintiffs' suit in this case, and instead placed that decision back in the hands of the district court. Because the bar is not jurisdictional, the district court will be compelled to take plaintiffs' allegations—that the government has failed to enforce the consent decree and the NPDES permit—as true when considering a motion to dismiss. Thus the lower court could find that determining whether the government has engaged in a diligent prosecution is a fact-intensive inquiry fit for discovery.

Implications

By clarifying that the CWA diligent prosecution bar is not jurisdictional, the Fifth Circuit has made it more difficult for citizen suit defendants to prevail on a motion to dismiss based on that defense, given that the district court must take all of a plaintiff's allegations as true. It opens the door for future citizen suit plaintiffs to survive a motion to dismiss and force discovery on whether state or federal regulators are indeed diligently enforcing, or whether citizen enforcement is appropriate. The prospect of such discovery could change the calculus of litigation risk and cost in future CWA citizen suits.

In addition, because many environmental statutes have similarly phrased diligent prosecution bars, the ruling could apply beyond the CWA, and indeed, the Seventh Circuit held last year that the diligent prosecution bar of the Resource Conservation and Recovery Act  is not jurisdictional, as reported in Citizen Suit Watch.

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¹ LEAN v. City of Baton Rouge, No. 11–30549, 2012 WL 1301164, *4 (5th Cir. April 17, 2012) (internal quotations omitted).

² 2011 WL 1882439, at *2.

³ 529 F.3d 519 (5th Cir. 2008).

⁴ LEAN, 2012 WL 1301164, at *10 (citation omitted).

⁵ 546 U.S. 500, 516 (2006).