Environmental Conservation v. City of Dallas

• Decision Date: 27 May 2008
• Docket Number: No. 07-10583.,07-10583.
• Citation: 529 F.3d 519
• Parties: ENVIRONMENTAL CONSERVATION ORGANIZATION, Plaintiff-Appellant, v. CITY OF DALLAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

529 F.3d 519

ENVIRONMENTAL CONSERVATION ORGANIZATION, Plaintiff-Appellant, v. CITY OF DALLAS, Defendant-Appellee.

No. 07-10583.

United States Court of Appeals, Fifth Circuit.

May 27, 2008.

Frederick W. Addison, III (argued), Nolan Cornelius Knight, Munsch, Hardt, Kopf & Harr, Dallas, TX, for Plaintiff-Appellant.

Barbara Elaine Rosenberg (argued), James Bickford Pinson, Asst. City Atty., David E. Howe, City Atty's Office, Jean M. Flores, James D. Payne, Michael R. Goldman, Guida, Slavich & Flores, Dallas, TX, for Defendant-Appellee.

R. Justin Smith (argued), U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for Amicus Curiae, U.S.

Appeal from the United States District Court for the Northern District of Texas.

Before DAVIS and SOUTHWICK, Circuit Judges, and DRELL, District Judge.^*

SOUTHWICK, Circuit Judge:

The Environmental Conservation Organization appeals the dismissal of its Clean Water Act citizen suit against the City of Dallas, Texas, arguing that the district court erroneously concluded that its suit was barred under the doctrine of res judicata. We agree that the citizen suit should have been dismissed, but not for the reasons given by the district court. We hold that the citizen suit became moot prior to the district court's entry of final judgment; therefore, we vacate the judgment because it was rendered without jurisdiction.

I. Facts and Procedural Background

The City of Dallas, Texas ("City"), operates a municipal separate storm sewer system ("MS4") that collects, channels and discharges storm water runoff into the Trinity River and its tributaries. The City operates this separate storm sewer system pursuant to a Clean Water Act permit (the "MS4 Permit"). See 33 U.S.C. § 1342. The MS4 Permit delineates permissible and impermissible discharges into the Trinity River watershed and mandates the implementation of a storm water management program ("SWMP"). The SWMP imposes planning and monitoring requirements to ensure that non-storm water and other pollutants are not discharged through the separate storm sewer system. See 33 U.S.C. § 1342(p); 40 C.F.R. § 122.26.

The Environmental Conservation Organization ("ECO") is a non-profit environmental watch group based in Dallas, Texas. Some of ECO's members use the Trinity River and its tributaries for recreational purposes. In September 2003, due to problems with the City's operation of its separate storm sewer system and the polluted appearance of some Dallas-area water bodies, ECO notified the City that it would file a citizen suit in order to remedy alleged violations of the MS4 Permit and the Clean Water Act ("CWA" or "Act"). In accordance with the requirements of the CWA citizen-suit provision, ECO simultaneously notified the Administrator of the Environmental Protection Agency (EPA) and the Texas Commission on Environmental Quality ("TCEQ") of the alleged violations and ECO's intent to initiate a citizen suit against the City if no corrective action was taken. See 33 U.S.C. § 1365(b). In October 2003, ECO sent a revised notification letter to the City, the EPA Administrator and the TCEQ, pressing its concerns regarding the alleged violations and reiterating its intent to bring a citizen suit.

In December 2003, over sixty days after sending notice of the alleged violations, ECO filed a CWA citizen suit against the City in federal district court. ECO's complaint alleged that illicit pollutant discharges from various City-owned facilities violated both the MS4 Permit and the CWA (because they constituted discharges from point sources without a permit). The complaint also alleged that the City violated its MS4 Permit by failing to comply with the SWMP requirements contained therein. ECO sought civil penalties and injunctive relief under the CWA.

While neither the EPA nor the State of Texas commenced an enforcement action against the City prior to ECO's filing this suit, the EPA had begun to investigate the City's separate storm sewer system.¹ In February 2004, the EPA issued an administrative compliance order that identified various violations of the City's MS4 Permit and the CWA. See 33 U.S.C. § 1319(a). The compliance order instructed the City to rectify these violations or arrange a "show cause" meeting with the EPA in order to explain why no enforcement action should be taken in regards to the alleged violations. Shortly after the order was issued, the City and the EPA began negotiating a settlement of the violations noticed therein. The EPA encouraged ECO to participate in the settlement discussions, but ECO declined. Ultimately, the City reached a settlement with the EPA.

In May 2006, the EPA, joined by the State of Texas, filed a CWA enforcement action against the City in federal district court (the "EPA enforcement action"). On the same day, EPA filed a proposed consent decree that contained the terms of the settlement agreement. The filing of the consent decree triggered a public notice and comment period, during which ECO was the only person or organization to submit comments. See 28 C.F.R. 50.7. ECO did not oppose entry of the consent decree, but expressed concern that the punitive provisions and some remedial provisions were inadequate. At the close of the public comment period, the EPA responded to ECO's comments and moved for entry of the consent decree. In August 2006, the district court granted EPA's unopposed motion to enter the consent decree. See United States v. City of Dallas, No. 3:06-cv-00845 (N.D.Tex. Aug. 28, 2006).²

The consent decree is a lengthy and detailed document. It requires, among other things, that the City pay $800,000 in civil penalties, undertake supplemental environmental projects totaling at least $1.2 million, meet minimum staffing requirements in its environmental quality and sewer system monitoring departments, and provide ongoing compliance reports to the EPA. The City is also subject to an audit of its storm water system within three years of the consent decree's entry and must pay stipulated penalties if it is found to be in violation of any of its provisions. The decree's appendices provide strict timetables for satisfaction of these provisions, which are posted on a website and available to the public.

During the time in which EPA was investigating and negotiating with the City, ECO's citizen suit remained pending on the district court's docket. After entering the consent decree in the EPA enforcement action, the district court directed the City to file a motion for summary judgment in ECO's action so that the court could determine whether the consent decree precluded ECO's citizen suit. The City moved for summary judgment, arguing that ECO's suit should be dismissed because the final judgment in the EPA enforcement action precluded re-litigation of the same claims in a citizen suit. Alternatively, the City argued that ECO's claims were mooted by the resolution of the EPA enforcement action. ECO opposed the motion to dismiss, arguing first that the language and statutory scheme of the CWA indicated that the res judicata doctrine and principles of mootness could not be invoked to dismiss a prior-filed citizen suit. Alternatively, ECO argued that neither the elements of res judicata nor the test for mootness had been satisfied.

The district court relied on res judicata to dismiss ECO's citizen suit, rejecting arguments that both the privity and similarity of claims requirements were not met in its case. The court noted that even though "the Fifth Circuit has never considered whether res judicata applies to a citizen enforcement action under the CWA," precedents from other circuits had applied res judicata to citizen suits under similar circumstances. Envtl. Conservation Org. v. City of Dallas, 516 F.Supp.2d 653, 657 (N.D.Tex.2007). The district court did not reach the alternative argument regarding mootness. ECO appealed here.

II. Discussion

A. Standard of Review

We review the district court's grant of summary judgment de novo, applying the same standard as the district court. Greenwell v. State Farm Mut. Auto. Ins. Co., 486 F.3d 840, 841 (5th Cir.2007). Summary judgment may be granted only if the pleadings and evidence show that there exists no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-27, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The record must be viewed in the light most favorable to the non-moving party; all justifiable inferences will be drawn in the non-movant's favor. TIG Ins. Co. v. Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir.2002).

This case also requires us to examine the district court's jurisdiction. The City argues that ECO's claims were moot at the time that the district court entered summary judgment. We review questions of federal jurisdiction de novo, including arguments that a case or controversy has become moot. In re Scruggs, 392 F.3d 124, 128 (5th Cir.2004). When the district court had no jurisdiction, our authority is not over the merits but exists "merely for the purpose of correcting the error of the lower court in entertaining the suit ...." New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 882 (5th Cir.1998) (citation omitted).

B. Standing

"Mootness is `the doctrine of standing in a time frame. The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness).'" Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir.2006) (quoting U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980)). If a case has been rendered moot, a federal court has no constitutional authority to resolve the issues that it presents. In re Scruggs, 392 F.3d at 128. Therefore, before considering any other matters raised by the parties, we are obliged to "resolve the standing question as a threshold matter of...