LA Environmental Action Network v. City of Baton Rouge

Apr 17: In the U.S. Court of Appeals, Fifth Circuit, Case No. 11-30549. Appealed from the United States District Court for the Middle District of Louisiana. The Louisiana Environmental Action Network filed a citizen suit against the City of Baton Rouge and the Parish of East Baton Rouge, alleging violations of the Clean Water Act. The Defendants filed a Rule 12(b)(6) motion to dismiss, asserting that the citizen suit was barred under the "diligent prosecution" provision of the Act. 33 U.S.C. § 1365(b)(1)(B). The district court granted the motion to dismiss, but on the ground that the 2002 consent decree mooted Plaintiff's claims.

 

    On appeal, Plaintiff contends that the district court erred in granting the Defendants' motion to dismiss. The Appeals Court reversed the district court's judgment and remanded the case for further proceedings consistent with its opinion. The Appeals Court said, ". . .we conclude that Congress has not provided a clear statement that the "diligent prosecution" bar is jurisdictional. Absent such a clear statement from Congress, we hold that the 'diligent prosecution' bar is a nonjurisdictional limitation on citizen suits. See Arbaugh, 546 U.S. at 516 ('[W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.').

 

    The Appeals Court explains, "Our conclusion that the CWA's 'diligent prosecution' provision is nonjurisdictional is buttressed by the Seventh Circuit's recent decision in Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011). There, the court held that the "diligent prosecution" provision of the Resource Conservation and Recovery Act ('RCRA') -- which is virtually identical to the 'diligent prosecution' provision of the CWA  -- is not jurisdictional. Id. at 492. Applying the guiding principles of the recent Supreme Court cases, the Seventh Circuit concluded that, because 'RCRA's limits on citizen suits appear in separate provisions that do not "speak in jurisdictional terms,"' the RCRA 'diligent prosecution' bar is a nonjurisdictional claim-processing rule. Id. (citations omitted).

 

    "Having determined that the CWA's 'diligent prosecution' bar is not jurisdictional, the question still remains whether the 'diligent prosecution' provision precludes LEAN's action in the present case. The Defendants assert that the EPA's continued enforcement of the 2002 consent decree constitutes diligent prosecution. Indeed, the Defendants point to the extensive remedial measures they are undertaking, as required by the 2002 consent decree, which are projected to cost the Defendants over $1 billion. The Defendants contend that LEAN's 'lawsuit stands as an impediment' to their efforts to achieve compliance with the CWA. However, LEAN asserts that the EPA is not diligently prosecuting the 2002 consent decree, noting the plants' ongoing, noncompliant discharges and the EPA's failure to impose stipulated penalties for these violations. LEAN argues that the issue of 'diligent prosecution' is a fact-intensive question that can only be answered after the proper development of a record. We take no position on these arguments. We think it wise for the district court to determine in the first instance whether LEAN's suit is precluded under the "diligent prosecution" provision. See Breaux v. Dilsaver, 254 F.3d 533, 538 (5th Cir. 2001) ('Although this court may decide a case on any ground that was presented to the trial court, we are not required to do so.') (citation omitted)."

 

    Access the complete opinion (click here). [#Water, #CA5]

 

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Conservancy Of Southwest Florida v. U.S. Fish & Wildlife Service

Apr 18: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 11-11915. Appealed from the United States District Court for the Middle District of Florida. The case concerns a challenge, brought by a number of environmental groups under the Administrative Procedure Act (APA) to the United States Fish and Wildlife Service's denial of petitions to designate critical habitat for the Florida panther. The Endangered Species Act of 1973 (ESA) empowers the Secretary of the Interior to designate "critical habitat" for species of fish, wildlife, or plants that have been identified by the Secretary as "endangered" or "threatened." The practical result of designating critical habitat is that Federal agencies must then, in consultation with the Secretary, ensure not only that their actions are "not likely to jeopardize the continued existence" of such species, but also that they do not "result in the destruction or adverse modification" of critical habitat.

 

    In this case, the environmental-advocacy groups petitioned the Fish and Wildlife Service, an agency within the Department of the Interior, to begin rulemaking to designate critical habitat for the Florida panther and, when the Service denied their petitions, sued in district court under the APA. They claimed that the denial of their petitions was arbitrary and capricious. The Appeals Court ruled, "We conclude, however, that the denial of their petitions is not subject to judicial review under the APA because it is 'committed to agency discretion by law.' 5 U.S.C. § 701(a)(2). Accordingly, we affirm the district court's order of dismissal."

 

    The Appeals Court noted further, "We take care to note that not every agency action that is in some sense discretionary is exempt from APA review. Otherwise there would be little sense in the APA's provision for abuse of discretion review. See Heckler, 470 U.S. at 829, 105 S. Ct. at 1654 (pointing out the tension, noted by some commentators, between a too-literal reading of the statutory phrase 'committed to agency discretion by law' and 5 U.S.C. § 706(2)(A)'s provision for review for abuse of discretion). Rulemaking inevitably requires the exercise of discretion, but courts nevertheless review agency rulemaking under the APA. . ."

 

    Access the complete opinion (click here). [#Wildlife, #CA11]

 

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