Grp. Against Smog & Pollution, Inc. v. Shenango Inc.

• Decision Date: 06 January 2016
• Docket Number: No. 15–2041.,15–2041.
• Citation: 810 F.3d 116
• Parties: GROUP AGAINST SMOG AND POLLUTION, INC., Appellant v. SHENANGO INCORPORATED.
• Court: U.S. Court of Appeals — Third Circuit

810 F.3d 116

GROUP AGAINST SMOG AND POLLUTION, INC., Appellant

v.SHENANGO INCORPORATED.

No. 15–2041.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit L.A.R. 34.1a Dec. 7, 2015.

Opinion Filed: Jan. 6, 2016.

John K. Baillie, Esq., Group Against Smog and Pollution, Inc., Pittsburgh, PA, Counsel for Appellant.

Chester R. Babst III, Esq., James D. Miller, Esq., Varun Shekhar, Esq., Babst, Calland, Clements & Zomnir, P.C., Pittsburgh, PA, Counsel for Appellee.

Emily A. Collins, Esq., Fair Shake Environmental Legal Services, Pittsburgh, PA, Counsel for Amici Curiae Sierra Club, Mountain Watershed Association, Clean Air Council, Three Rivers Waterkeeper, and Center for Coalfield Justice.

Before: FUENTES, SHWARTZ, and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Group Against Smog and Pollution, Incorporated ("GASP") filed suit against Shenango, Incorporated ("Shenango") in the U.S. District Court for the Western District of Pennsylvania pursuant to the citizen suit provision of the Clean Air Act ("Act"), 42 U.S.C. § 7604(a)(1). The District Court granted Shenango's motion to dismiss for lack of subject matter jurisdiction, filed pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1). The District Court found that the administrative agencies were already "diligently prosecuting" the Clean Air Act violations alleged by GASP, and therefore GASP's action was prohibited by the diligent prosecution bar of the Act. 42 U.S.C. § 7604(b)(1)(B) ; (App. 13–14). We will affirm the judgment of the District Court on other grounds, concluding that GASP has failed to state a claim because administrative agencies were "diligently prosecuting" the Clean Air Act violations and that this prosecution "requires compliance" with the Act. In making this determination, we conclude that the diligent prosecution bar of the Clean Air Act is not a jurisdictional limitation and is therefore properly dismissed through a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, rather than Rule 12(b)(1).

I.INTRODUCTION

Shenango operates the Neville Island Coke Plant, a coke manufacturing and by-products recovery facility in Allegheny County, Pennsylvania.¹ (App. 3). The Neville Island Coke Plant is subject to National Ambient Air Quality Standards ("NAAQS") set by the United States Environmental Protection Agency ("EPA") pursuant to the Clean Air Act. 42 U.S.C. §§ 7408 –09 ; (App. 3–4). As part of the Act's encouragement of federal cooperation with state and local governments, Pennsylvania is required to create a "state implementation plan," ("SIP") detailing how it will attain and maintain the NAAQS. 42 U.S.C. § 7410. Once the EPA approves the SIP, it becomes binding federal law. Id. § 7413. In Allegheny County, the Commonwealth of Pennsylvania delegates the authority for enforcing air pollution laws to the Allegheny County Health Department ("ACHD"). (App. 4). The ACHD has promulgated emissions standards that are incorporated in the Pennsylvania SIP and are thereby binding federal law under the Clean Air Act. See ACHD Rules and Regulations Art. XXI. Three ACHD regulations are at issue in this case:

First, Section 2105.21.b.1 restricts visible emissions from any battery of coke ovens to no more than five percent ... of the door areas of the operating coke ovens (the "five percent door emissions standard"). Second, Section 2105.21.f.3 prohibits combustion stack emissions with opacity greater than 20 percent for three minutes over a 60 minute period (the "20 percent combustion stack opacity standard"). Finally, Section 2105.21.f.4 prohibits combustion stack emissions with opacity greater than 60 percent (the "60 percent combustion stack opacity standard").

(App. 4).

In 2012, the EPA, the Pennsylvania Department of Environmental Protection ("DEP"), and the ACHD filed an action in the U.S. District Court for the Western District of Pennsylvania against Shenango claiming violations of these three standards. (App. 4–5). The parties entered into a Consent Decree to resolve these violations, specifically addressing the twenty and sixty percent combustion stack opacity standards. (Id. ). The District Court entered final judgment on this action in 2012 but retained jurisdiction "for the purpose of modifying, construing and/or enforcing the rights and obligations of the Parties to this Consent Decree." (Id. at 168–69, 174).

In 2014, GASP sent Shenango a notice of intent to sue, claiming violations of the same three standards. (Id. at 5). The ACHD then filed an action against Shenango in the Allegheny County Pennsylvania Court of Common Pleas, and the parties entered into a Consent Order and Agreement. (Id. ). This Agreement appears to address the five percent door emissions standard, as discussed infra, and reaffirms the 2012 Consent Decree's approach to the twenty and sixty percent combustion stack opacity standards. (Id. ). The Court of Common Pleas entered final judgment on this action on April 8, 2014. (Id. at 106). The ACHD retained authority with respect to future violations and "to seek further enforcement of this Agreement" if Shenango fails to comply. (Id. at 95). The Consent Order and Agreement was intended to be jointly terminated by the parties upon Shenango's compliance with certain conditions. (Id. at 105–06).

On May 8, 2014, GASP filed the instant citizen suit against Shenango in U.S. District Court, again claiming violations of the same three emissions standards. (Id. at 6, 19–29). Shenango moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted, pursuant to Rules 12(b)(1) and 12(b)(6). (Id. at 109–10). The District Court found the issue presented to be jurisdictional. (Id. at 6). The Court granted Shenango's motion to dismiss for lack of subject matter jurisdiction, finding that GASP could not bring an action because the ACHD was already "diligently prosecut[ing]" an action in court against Shenango to require compliance under the Act. (Id. at 12–14). The Court rejected two arguments raised by GASP in opposition to the motion to dismiss: (1) that the Consent Decrees² do not actually require Shenango to comply with the standards set forth in the Act; and (2) that the 2014 Consent Order and Agreement was deficient because the parties failed to provide an opportunity for the public to intervene or comment on the terms of the order. (Id. at 11–13). GASP timely appealed. (Id. at 1).

II.³

DISCUSSION

GASP raises two arguments on appeal: (1) that the diligent prosecution bar⁴ should not apply because no state or administrative agency was actively "prosecuting" a civil action in court at the time GASP filed its present citizen suit; and (2) that the Consent Decrees from 2012 and 2014 do not "require compliance" with the Act. (Appellant's Br. 16–18). In dealing with these issues we must first determine whether the diligent prosecution bar is jurisdictional or only a claim-processing rule. The District Court proceeded assuming the bar was jurisdictional. (App. 6). We exercise plenary review over the District Court's legal conclusions. CNA v. United States, 535 F.3d 132, 139 (3d Cir.2008).

A. Nonjurisdictional Diligent Prosecution Bar

Amici curiae raise the issue of whether the diligent prosecution bar is jurisdictional and appropriately decided through a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, or whether the diligent prosecution bar is nonjurisdictional and should be decided through a Rule 12(b)(6) motion to dismiss for failure to state a claim.⁵ This dichotomy is significant, "one of considerable practical importance for judges and litigants," as "[b]randing a rule as going to a court's subject-matter jurisdiction alters the normal operation of our adversarial system." Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011).⁶

The U.S. Supreme Court has noted, "[o]n the subject-matter jurisdiction/ingredient-of-claim-for-relief dichotomy, this Court and others have been less than meticulous." Arbaugh v. Y & H Corp., 546 U.S. 500, 511, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Arbaugh instructs us that "[i]f the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed," however "when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character." 546 U.S. at 515–16, 126 S.Ct. 1235 (footnote omitted). The Court has described this as a "readily administrable bright line rule." Henderson ex rel. Henderson, 562 U.S. at 435, 131 S.Ct. 1197 (quoting Arbaugh, 546 U.S. at 516, 126 S.Ct. 1235 ) (internal quotation marks omitted).

In Henderson, the Supreme Court distinguished claim-processing rules, which "seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times," from jurisdictional rules, which "govern[ ] a court's adjudicatory capacity, that is, its subject-matter or personal jurisdiction." Id. To distinguish these rules, the pivotal question as it applies to this case "is whether Congress mandated" the diligent prosecution bar to be "jurisdictional." Id. There are no "magic words" Congress must use to express that a statutory requirement is jurisdictional. Id. at 436, 131 S.Ct. 1197. Instead, we look "to the condition's text, context, and relevant historical treatment" in determining whether the condition is jurisdictional. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) ; see also Henderson ex rel. Henderson,

562 U.S. at 436, 131 S.Ct. 1197 (stating the Court's approach in Arbaugh "is suited to capture Congress' likely intent and also provides helpful guidance for courts and litigants, who will be duly instructed...