CITIZEN SUIT WATCH: Tenth Circuit Rejects Article III Standing For Local District Attorney in Multi-Party Clean Water Act Citizen Suit
The Tenth Circuit recently affirmed the dismissal of a district attorney from a citizen suit alleging Clean Water Act violations by a neighboring municipality. Thiebaut v. Colorado Springs Utilities, 2011 WL 4824326 (Oct. 12, 2011). In a rare result for modern citizen suit jurisprudence, the court rejected three standing theories proffered by the district attorney: parens patriae standing, associational standing, and standing on the basis of another party's standing.
In October 2005, Bill Thiebaut, District Attorney for the Tenth Judicial District of Colorado,1 filed a Clean Water Act citizen suit against the City of Colorado Springs (Colorado Springs) alleging that Colorado Springs had discharged raw sewage, non-potable water, and chlorine into Fountain Creek. The Fountain Creek watershed flows through Colorado Springs, Colorado to Pueblo County, Colorado, which is encompassed by the Tenth Judicial District. The Sierra Club filed a similar suit, and the cases were consolidated. After the cases were consolidated, Colorado Springs filed a motion for summary judgment challenging the standing of both Mr. Thiebaut and the Sierra Club. The district court held that Mr. Thiebaut did not have standing and rejected Mr. Thiebaut's motion for reconsideration. The district court found that the Sierra Club did have standing.
On appeal, the Tenth Circuit considered whether Mr. Thiebaut had standing in his official capacity to bring a citizen suit under the Clean Water Act, analyzing each of the three theories he proffered: parens patriae standing, associational standing, and standing on the basis of another party's standing.
The district court had looked to state law when determining that Mr. Thiebaut did not have the authority to claim parens patriae standing. On appeal, Mr. Thiebaut claimed this was error and that state law should not determine federal standing. The Tenth Circuit disagreed, concluding that referring to state law is appropriate to determine whether the plaintiff has been authorized to represent the state's sovereign interests. The Tenth Circuit agreed with the district court that Mr. Thiebaut, in his official capacity as the District Attorney for the Tenth Judicial District, had not been so authorized. The legislation establishing his office allows district attorneys to bring nuisance suits, but the Tenth Circuit found that "this limited grant of authority does not provide Mr. Thiebaut with authority to represent Colorado's sovereign or quasi-sovereign interests in a CWA citizen suit in federal court." The Court further concluded that Colorado's statutes provide no general grant of authority to local district attorneys to protect the state's sovereign or quasi-sovereign interests.
The Tenth Circuit also rejected Mr. Thiebaut's associational standing claim. Under this theory, Mr. Thiebaut claimed he represented the "association" of the Tenth Judicial District. Setting aside the question of whether the judicial district qualified as an association, the Tenth Circuit agreed with the district court that "purpose" of the alleged association, as defined by the statutory scheme creating the office, did not authorize district attorneys "to protect the health, safety, and welfare of the people of Colorado by seeking to remedy violations of the CWA in federal court."
Finally, the Tenth Circuit rejected Mr. Thiebaut's claim that, because the Sierra Club had standing, the district court was obliged to allow him to remain in the case. The opinion characterized this argument as "standing for one is standing for all." The Court acknowledged that in circumstances where one party has shown standing, the district court may, for purposes of judicial economy, decline to inquire into the standing of the other plaintiffs seeking identical relief. However, the Tenth Circuit did not agree with Mr. Thiebaut that the district court was obliged to do so. The Court held that it is within the discretion of the district court to analyze the standing of all plaintiffs and dismiss those that lack standing.
This case provides a check on the use of Clean Water Act citizen suits to resolve resource disputes between local jurisdictions and limits the ability of local officials to use their official positions to bring citizen suit claims generally. Although all parties conceded that Mr. Thiebaut would have had standing in his individual capacity, he lacked standing in his official capacity. The Court's careful look at the qualifications required to assert parens patriae standing may be a response to the dissent in Sierra Club v. Two Elk Generation Partners, 646 F.3d 1258 (10th Cir. 2011) covered in a Citizen Suit Watch in July 2011. The dissent in that case criticized the majority, claiming that the opinion would allow any proceeding in which the state appeared, including a generic state enforcement action, to qualify as a parens patriae proceeding.
The Court's rejection of Mr. Thiebaut's "standing for one is standing for all" theory is an important decision for citizen suit defendants facing an array of plaintiffs. Challenging the standing of each plaintiff, even if unsuccessful in dismissing the entire case, may be helpful in streamlining the case by limiting the number of parties involved, simplifying procedural negotiations and briefing, as well as limiting the number of parties seeking a seat at the table for potential settlement discussions and demanding attorneys' fees.
1 Mr. Thiebaut named himself, in his official capacity as District Attorney, the Office of the District Attorney, and the People of the State of Colorado as plaintiffs in the suit, but because he presented argument only in support of his claim of standing in his official capacity, the Tenth Circuit did not consider the standing of the Office of the District Attorney or of the People of the State of Colorado.
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