Friends of the Earth v. Consolidated Rail Corp.
| Decision Date | 19 July 1985 |
| Docket Number | Nos. 942,745 and 894,D,1122,s. 942 |
| Citation | 768 F.2d 57 |
| Parties | , 54 USLW 2088, 15 Envtl. L. Rep. 20,674 FRIENDS OF THE EARTH and Atlantic States Legal Foundation and Christian G. Spies, Plaintiffs-Appellants, Cross-Appellees, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellee, Cross-Appellant. HUDSON RIVER SLOOP CLEARWATER, INC., Plaintiff-Appellant, Cross-Appellee, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellee, Cross-Appellant. ocket 85-7033, 85-7073, 84-7701 and 84-7715. |
| Court | U.S. Court of Appeals — Second Circuit |
Bruce J. Terris, Washington, D.C. (James M. Hecker, Terris & Sunderland, Washington, D.C., Jan S. Kublick, Davoli, McMahon & Kublick, Syracuse, N.Y., of counsel), for plaintiffs-appellants, cross-appellees Friends of the Earth, Atlantic States Legal Foundation and Christian G. Spies.
Anthony Z. Roisman, Trial Lawyers for Public Justice, Washington, D.C., for plaintiff-appellant, cross-appellee Hudson River Sloop Clearwater, Inc.
John R. Jenchura, Philadelphia, Pa. (Abbi L. Cohen, Philadelphia, Pa., of counsel), for defendant-appellee, cross-appellant Consolidated Rail Corp.
Robin S. Conrad, National Chamber Litigation Center, Inc., Washington, D.C., for Chamber of Commerce of U.S.; Stark Ritchie, James K. Jackson, Thomas S. Llewellyn, American Petroleum Institute, Washington, D.C., for American Petroleum Institute; David F. Zoll, Fredric P. Andes, Chemical Mfrs. Ass'n, Washington, D.C., for Chemical Mfrs. Ass'n; Douglas E. Kliever, Charles F. Lettow, Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., for Synthetic Organic Chemical Mfrs. Ass'n, for amici curiae in Docket Nos. 84-7701 and 84-7715, Chamber of Commerce of the United States, American Petroleum Institute, Chemical Mfrs. Ass'n and Synthetic Organic Chemical Mfrs. Ass'n.
Bruce J. Terris, James M. Hecker, Terris & Sunderland, Washington, D.C., for amici curiae in Docket Nos. 84-7701 and 84-7715, Friends of the Earth, Atlantic States Legal Foundation and Student Public Interest Research Group of New Jersey.
Robert Abrams, Atty. Gen., Peter H. Schiff, Deputy Sol. Gen., James A. Sevinsky, Kathleen Liston Morrison, Mary L. Lyndon, Asst. Attys. Gen., State of New York, Albany, N.Y., for amicus curiae in Docket Nos. 84-7701 and 84-7715, The State of New York.
Before MESKILL and PRATT, Circuit Judges, and METZNER, * District Judge.
We have consolidated these two appeals for opinion, although they were argued separately, 1 because they arise from similar facts and present a common legal question: whether enforcement actions by the New York State Department of Environmental Conservation (DEC) against Consolidated Rail Corporation (Conrail) that culminated in consent orders preclude the institution of citizen suits under section 505 of the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act or Act), 33 U.S.C. Sec. 1365 (1982). We conclude that they do not.
Hudson River Sloop Clearwater, Inc. (Sloop Clearwater) appeals from a judgment entered in the United States District Court for the Northern District of New York, Miner, J., granting Conrail's motion for summary judgment on the basis of section 505(b)(1)(B), 33 U.S.C. Sec. 1365(b)(1)(B). Friends of the Earth, Atlantic States Legal Foundation and Christian G. Spies (collectively Friends) appeal from a judgment also entered in the United States District Court for the Northern District of New York, Munson, C.J., dismissing their suits against Conrail for lack of subject matter jurisdiction on the basis of section 505(b)(1)(B), 33 U.S.C. Sec. 1365(b)(1)(B). Both judgments denied Conrail's requests for attorneys' fees.
We affirm the denials of attorneys' fees. We affirm Judge Miner's decision to the extent that it held that Sloop Clearwater had standing to sue. We reverse Judge Miner's grant of summary judgment for Conrail and against Sloop Clearwater, and we reverse Chief Judge Munson's dismissal of Friends' complaint.
These actions were brought under the citizen suit provision, section 505(a), of the Clean Water Act, 33 U.S.C. Sec. 1365(a). Both alleged violations of National Pollutant Discharge Elimination System/State Pollutant Discharge Elimination System (NPDES/SPDES) permits issued to Conrail by DEC. The permits, which DEC is authorized to issue pursuant to section 402(a) & (b) of the Act, 33 U.S.C. Sec. 1342(a) & (b) (1982), set allowable pollutant discharge limits for particular locations. The Act makes it unlawful for any person to discharge pollutants into navigable waters except in compliance with the limits and conditions of a discharge permit.
Prior to the filing of these suits, Conrail's permit violations led to administrative involvement by DEC and resulted in the execution of orders of consent between Conrail and DEC. At no time during the negotiations between Conrail and DEC did Sloop Clearwater, Friends or any other members of the public have an opportunity to participate.
Sloop Clearwater is a not-for-profit New York corporation dedicated to the protection and restoration of the Hudson River. An environmentalist, public interest organization, it engages in research, monitoring, education and advocacy on behalf of its members. Sloop Clearwater has approximately 5,000 members who reside in New York State. Several members reside, own property or recreate in, on or near the Hudson River and South Albany Creek.
Sloop Clearwater's suit involves Conrail's A.E. Perlman Yard in Selkirk, New York (Selkirk Yard), a diesel locomotive repair and refueling facility, which discharges treated wastes from its operations through point sources into the Hudson River and South Albany Creek. Although authorized by an NPDES/SPDES permit to discharge limited quantities of pollutants into these waterways, the Selkirk Yard failed to comply with the permit limitations. In September 1979, Conrail entered into a consent order with DEC regarding the Selkirk Yard permit violations. It imposed a number of obligations on Conrail, including a timetable, related to the construction of a wastewater treatment facility. The order also assessed a $25,000 penalty against Conrail, $5,000 to be paid immediately and the remainder to be suspended for as long as Conrail complied with the order. Conrail did not comply, but it was never penalized, and the order was repeatedly modified. After a number of extensions, Conrail completed construction on the $2 million project in April 1984, considerably after its original December 1982 deadline. Conrail claims to have been in compliance with its Selkirk Yard permit since July 1984.
In September 1982, Sloop Clearwater notified Conrail of its intention to institute a citizen suit to enforce compliance with the Selkirk Yard permit. It filed suit in November 1982 and moved for partial summary judgment on the issue of liability. Conrail moved to dismiss the complaint or in the alternative for summary judgment. The district court first addressed Conrail's contention that Sloop Clearwater lacked standing. Noting that Sloop Clearwater had produced affidavits from two of its members setting forth specific injury in precise terms, the court determined that there was standing. Hudson River Sloop Clearwater, Inc. v. Consolidated Rail Corp., 591 F.Supp. 345, 348 (N.D.N.Y.1984). Turning to Conrail's claim that the DEC administrative proceeding and the resultant consent order precluded a citizen suit under section 505(b)(1)(B), the court agreed that DEC's enforcement proceedings and the resultant consent order were the equivalent of a diligently prosecuted court action and granted summary judgment for Conrail.
On appeal, Sloop Clearwater argues that the administrative proceedings and consent order are insufficient to activate the bar of section 505(b)(1)(B). Conrail supports the district court's section 505 conclusion but contends that Sloop Clearwater lacks standing. It also maintains that it is entitled to attorneys' fees.
Friends of the Earth is a not-for-profit New York corporation dedicated to protecting and enhancing natural resources. Of its approximately 32,000 active members, more than 8,000 live in New York. Atlantic States Legal Foundation, Inc., also a not-for-profit New York corporation and membership organization, is similarly dedicated to the protection and restoration of natural--and especially water--resources along the Atlantic Coast. Both organizations have members who live or own property in the vicinity of or recreate in, on or near Butternut Creek. Christian G. Spies, a resident of Syracuse, has been a birdwatcher for twenty years and frequently watches birds at Butternut Creek.
Conrail's DeWitt Yard, located in Syracuse, New York, is a facility for the inspection, maintenance and repair of diesel engines. Conrail is authorized by the NPDES/SPDES permit to discharge limited quantities of pollutants from the DeWitt Yard into Butternut Creek.
In response to repeated permit violations at the DeWitt Yard, DEC began negotiations with Conrail that resulted in a consent order signed in June 1979. The order imposed a $1,000 penalty against Conrail and incorporated a timetable for the modernization of the DeWitt Yard waste treatment facility to achieve permit compliance by December 1980. The order, which contained no penalties in the event that Conrail failed to meet its terms, was modified twice to extend the completion date. The project was finally completed in November 1982 at a cost in excess of $1 million. Although the DeWitt Yard continued to experience compliance problems, the district court found that the yard had achieved "substantial compliance" as of April 1984. The record indicates at least one violation in May 1984.
In June 1983, Friends sent Conrail notice of their intention to sue to enforce compliance. In November 1983 they filed suit seeking, as had...
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