Louisiana Envtl. Action Network v. City of Baton Rouge

• Decision Date: 17 April 2012
• Docket Number: No. 11–30549.,11–30549.
• Citation: 74 ERC 1513,677 F.3d 737
• Parties: LOUISIANA ENVIRONMENTAL ACTION NETWORK, Plaintiff–Appellant, v. CITY OF BATON ROUGE; Parish of East Baton Rouge, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

677 F.3d 737

74 ERC 1513

LOUISIANA ENVIRONMENTAL ACTION NETWORK, Plaintiff–Appellant,

v.CITY OF BATON ROUGE; Parish of East Baton Rouge, Defendants–Appellees.

No. 11–30549.

United States Court of Appeals, Fifth Circuit.

April 17, 2012.

Adam Babich (argued), Kirk Tracy, Corinne Jacqueline Van Dalen, Supervisory Atty., Tulane University, Tulane Environmental Law Clinic, New Orleans, LA, for Plaintiff–Appellant.

Robert H. Abbott, III (argued), Baton Rouge, LA, for Defendants–Appellees.

Charles Craig Caldart, National Environmental Law Center, Seattle, WA, for Environment America, Amicus Curiae.Appeal from the United States District Court for the Middle District of Louisiana.

Before KING, BENAVIDES and DENNIS, Circuit Judges.

PER CURIAM:

Plaintiff–Appellant Louisiana Environmental Action Network filed this citizen suit against Defendants–Appellees 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. For the following reasons, we REVERSE the district court's judgment and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

A. Overview of the Clean Water Act

The Clean Water Act (“CWA” or “Act”), 33 U.S.C. § 1251 et seq., was enacted “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). The Act prohibits “the discharge of any pollutant” into navigable waters except as authorized by specified sections of the Act. 33 U.S.C. § 1311(a). One of these specified sections establishes the National Pollutant Discharge Elimination System (“NPDES”). 33 U.S.C. § 1342. Pursuant to this section, the Administrator of the Environmental Protection Agency (“EPA”) or an authorized State can issue NPDES permits, which allow the discharge of pollutants according to certain conditions. Id. “NPDES permits impose limitations on the discharge of pollutants, and establish related monitoring and reporting requirements, in order to improve the cleanliness and safety of the Nation's waters. Noncompliance with a permit constitutes a violation of the Act.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citation omitted).

The holder of a state NPDES permit is subject to both federal and state enforcement action for failure to comply with the limitations imposed in the permit. 33 U.S.C. §§ 1319, 1342. Furthermore, the Act contains a citizen suit provision, which authorizes any citizen to file a civil action to enforce an effluent standard in an NPDES permit, subject to certain limitations. 33 U.S.C. § 1365(a), (b).¹ Subsection (a) of the citizen suit provision, entitled “Authorization; jurisdiction,” provides that, “[e]xcept as provided in subsection (b) of this section ..., any citizen may commence a civil action on his own behalf ... against any person ... who is alleged to be in violation of ... an effluent standard or limitation under this chapter.” § 1365(a)(1).

However, pursuant to subsection (b) of the CWA's citizen suit provision, entitled “Notice,” citizen suits are subject to two limitations. § 1365(b). First, sixty days before commencing a citizen suit, the citizen must give notice of the alleged violation to the EPA, the alleged violator, and the State in which the alleged violation occurs. § 1365(b)(1)(A). The Supreme Court has stated that “the purpose of notice to the alleged violator is to give it an opportunity to bring itself into complete compliance with the Act and thus ... render unnecessary a citizen suit.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Furthermore, “[t]he requirement that notice be given to the responsible officials highlights their primary role in enforcing the Act compared to the supplementary position of the citizen.” Hamker v. Diamond Shamrock Chem. Co., 756 F.2d 392, 396 (5th Cir.1985).

Second, the Act bars a citizen suit if the EPA or State “has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order.” 33 U.S.C. § 1365(b)(1)(B). “The bar on citizen suits when governmental enforcement action is under way suggests that the citizen suit is meant to supplement rather than to supplant governmental action.” Gwaltney, 484 U.S. at 60, 108 S.Ct. 376 (emphasis added). The Supreme Court noted that the “legislative history of the Act reinforces this view of the role of the citizen suit.” Id. The Senate Report stated that the “Committee intends the great volume of enforcement actions [to] be brought by the State,” and that citizens are allowed to bring suit only “if the Federal, State, and local agencies fail to exercise their enforcement responsibility.” Id. (alteration in original) (quoting S. Rep. No. 92–414, p. 64 (1971), 1972 U.S.C.C.A.N. 3668, 3730). Thus, the citizens' role in enforcing the Act is “interstitial” and should not be “intrusive.” Id. at 61, 108 S.Ct. 376; see also Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 526 (5th Cir.2008) (“The citizen-suit provision is a critical component of the CWA's enforcement scheme, as it ‘permit[s] citizens to abate pollution when the government cannot or will not command compliance.’ ”) (alteration in original) (quoting Gwaltney, 484 U.S. at 62, 108 S.Ct. 376).

B. Statement of Facts and Proceedings

The City of Baton Rouge (the “City”) and the Parish of East Baton Rouge (the “Parish”) own and operate three wastewater treatment facilities: the North, Central, and South Wastewater Treatment Plants. These facilities discharge treated sanitary wastewater into the Mississippi River. Pursuant to the Act, the Louisiana Department of Environmental Quality (“LDEQ”) administers a permit program, called the Louisiana Pollutant Discharge Elimination System (“LPDES”). 33 U.S.C. § 1342(b). The LDEQ issued three NPDES permits to the City and Parish for the discharges from the three plants. A standard condition in the permits, commonly known as the Eighty–Five Percent Rule, requires that the permit holder reduce the amount of Biochemical Oxygen Demand (“BOD”) and Total Suspended Solids (“TSS”) such that the thirty-day average amount of BOD and TSS in the wastewater discharged from the plant is at least eighty-five percent less than the amount of BOD and TSS in the sewage entering the plant. See 40 C.F.R. § 133.102.

In March 1988, the United States filed a complaint against the City and the State of Louisiana alleging violations of the CWA at the North, Central, and South Wastewater Treatment Plants. United States v. City of Baton Rouge, et al., No. 3:88–cv–00191 (M.D.La.). In December 1988, the district court entered a consent decree to resolve those claims and to require full compliance with the CWA by December 31, 1996. In 1997, the district court approved a modification to the consent decree that provided additional time for the City to complete construction at the North Plant and increased stipulated penalties for violations of effluent limitations at that facility.

On November 13, 2001, the United States and the State of Louisiana filed an enforcement action against the City and Parish, alleging that the same three wastewater facilities violated their NPDES permits and the Act. United States v. City of Baton Rouge, et al., No. 3:01–cv–00978, 2002 WL 34436142 (M.D.La.). The same day, the United States and the State of Louisiana lodged a proposed consent decree in the district court. In January 2002, the United States published notice of the proposed consent decree and solicited public comments in the Federal Register. See 67 Fed.Reg. 2669 (2002). After receiving no comments, the United States and the State of Louisiana filed a motion to enter the consent decree.

On March 15, 2002, the district court entered the consent decree (the “2002 consent decree”), which superseded and terminated the 1988 consent decree. One of the objectives of the 2002 consent decree is for the City and Parish to “achieve and maintain compliance with [their] NPDES permits and the CWA.” 2002 consent decree ¶ 11(A). In order to achieve this objective, the 2002 consent decree requires that the City and Parish implement extensive, physical remedial measures according to “applicable schedules.” Id. ¶ 11(B). Additionally, the 2002 consent decree provides for “stipulated penalties” for certain violations of the 2002 consent decree and of the NPDES permits. Id. ¶¶ 66–83. With regard to effluent discharges, the 2002 consent decree provides for less stringent effluent limitations—a seventy-five percent reduction of BOD and TSS—until the City and Parish reach full completion of the remedial program. Id. ¶ 39. The 2002 consent decree states that the City and Parish shall not be subject to penalties for failure to comply with the eighty-five percent reduction set out in the NPDES permits, provided that the plants comply with the seventy-five percent reduction set out in the 2002 consent decree. Id.

In 2006, as required by the 2002 consent decree, the City and Parish submitted a Second Remedial Measures Action Plan (the “Second RMAP”), wherein the City and Parish proposed to complete all construction and achieve fully operational status of its wastewater facilities by January 1, 2015. In 2007, the EPA and the LDEQ approved the Second RMAP. In November 2008, the United States and the State of Louisiana lodged a proposed modification to the 2002 consent decree, which would allow for various...