Sierra Club v. Shell Oil Co., s. 85-3753

• Decision Date: 29 May 1987
• Docket Number: 85-3763,85-3762,Nos. 85-3753,s. 85-3753
• Citation: 817 F.2d 1169
• Parties: , 55 USLW 2678, 17 Envtl. L. Rep. 20,767 SIERRA CLUB, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee. SIERRA CLUB, Plaintiff-Appellant, v. MONOCHEM, INC., Defendant-Appellee. SIERRA CLUB, Plaintiff-Appellant, v. COPOLYMER RUBBER AND CHEMICAL CORP., et al., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1169

817 F.2d 1169

25 ERC 2061, 55 USLW 2678, 17 Envtl.

L. Rep. 20,767

SIERRA CLUB, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.

SIERRA CLUB, Plaintiff-Appellant, v. MONOCHEM, INC., Defendant-Appellee.

SIERRA CLUB, Plaintiff-Appellant, v. COPOLYMER RUBBER AND CHEMICAL CORP., et al., Defendant-Appellee.

Nos. 85-3753, 85-3762, 85-3763.

United States Court of Appeals, Fifth Circuit.

May 29, 1987.

James Thornton, Natural Resources Def. Council, Inc., Ralph Hallo, New York City, Michael Osborne, New Orleans, La., for plaintiff-appellant.

Warren E. Byrd, II, Asst. Atty. Gen., Justice Dept., Lands & Natural Resources, Timothy W. Hardy, Baton Rouge, La., for amicus--State of La.

Karen Florini, Justice Dept., Land & Natural Resources Div., Washington, D.C., for amicus--Justice Dept.

Jose A. Berlanga, Houston, Tex., Adams & Reese, Paul O. Dicharry, Sam A. LeBlanc, III, New Orleans, La., for Shell Oil.

Tom F. Phillips, Taylor, Porter, Brooks & Phillips, Baton Rouge, La., for Monochem, Inc.

Maureen N. Harbourt, Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, William R. D'Armond, Baton Rouge, La., for Copolymer Rubber.

Frank S. Craig, III, Robert S. Taylor, Breazeale, Sachse & Wilson, Baton Rouge, La., Leonard A. Miller, Washington, D.C., for Allied Chemical & Bercen Southern Div. & Formosa.

Appeal from the United States District Court for the Eastern District of Louisiana.

Appeals from the United States District Court for the Middle District of Louisiana.

Before VAN GRAAFEILAND ^*, HIGGINBOTHAM, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

We are here called upon to assess whether multiple, sporadic, past violations of various effluent limitations contained in National Pollutant Discharge Elimination System ("NPDES") permits held by the defendants may form the basis of a citizens' lawsuit under section 505 of the Clean Water Act. ¹ 33 U.S.C. Sec. 1365. Bound by our prior decision in Hamker v. Diamond Shamrock Chemical Co., 756 F.2d 392 (5th Cir.1985) and by appellant's failure to raise a genuine question of material fact on the critical issue, we AFFIRM the decisions of the district courts which dismissed these cases. ²

The underlying lawsuits were filed following a systematic research program in which the Sierra Club examined discharge monitoring reports ("DMR's") filed by every major industral discharger in Louisiana. The DMR's, which are prepared and filed by the defendant companies with the Environmental Protection Agency ("EPA"), may furnish some evidence concerning whether the discharger is in compliance with the terms of its NPDES permit for the period of time covered in each DMR. Having concluded by this research that the instant defendants were violating the terms of their NPDES permits, Sierra Club delivered the statutory 60-day notices and then filed separate lawsuits against each defendant. Each action averred that the defendant had violated various terms of its NPDES permit between January, 1980 and June, 1983, and all complaints alleged that the defendant "is now violating its permit, and will do so in the future." The complaints requested that civil penalties of up to $10,000 per day of violation for each violation be imposed, that an injunction be issued against further violations, and that Sierra Club recover costs including attorneys, witness and consultant fees, as provided for in 33 U.S.C. Sec. 1365(d).

During the pendency of the lawsuits, this court issued its opinion in Hamker and held that district courts are without jurisdiction to hear citizens' suits alleging a single past pollutant discharge in violation of the Clean Water Act. Ongoing discovery in these cases became focused on the application of Hamker. Because Hamker resulted in a dismissal of the plaintiff's complaint for want of jurisdiction, appellees each contested the court's subject matter jurisdiction, resting on affidavits and considerable documentary evidence concerning the status of the various alleged permit violations. In some of the cases, appellant responded that DMR's filed for the period after June, 1983 showed that further permit violations had occurred subsequent to the filing of its lawsuits. The district courts treated these motions differently. In the four cases consolidated under the Copolymer style, see note 2 supra, the court dismissed pursuant to Fed.R.Civ.P. 12(b)(1) for want of jurisdiction, without prejudice to any state law claim that might be asserted. 621 F.Supp. 1013. The Monochem court simply dismissed under Rule 12(b)(1), while the Shell court awarded a Rule 56 summary judgment to the defendant. These appeals followed.

I.

The Clean Water Act intertwines the jurisdiction of the district court with the grounds for relief in a citizen enforcement action. Under the general caption, "Citizen Suits: jurisdiction," it authorizes

any citizen [to] commence a civil action on his own behalf--(1) against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation....

33 U.S.C. Sec. 1365(a). Consequently, where the requirement that the discharger be "in violation" is interpreted to mean that a violation must be ongoing at the date the suit is filed, the plaintiff must allege an ongoing violation to invoke the court's jurisdiction.

This Court affirmed a dismissal in Hamker for lack of jurisdiction because the pleadings there alleged a single oil spill prior to the date of suit and patently excluded the possibility of the defendant's being "in violation" thereafter. Hamker's emphasis on jurisdiction was appropriate to that case because a court may determine it lacks jurisdiction based on pleadings alone. 5 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1350 (1969). Two of the district courts here, apparently intending to follow Hamker, dismissed under Rule 12(b)(1) for lack of jurisdiction based on undisputed facts revealed in discovery rather than on the pleadings. Such fact-based dismissals are contrary to this circuit's practice of ruling on the merits, but they do not fatally affect the disposition of these cases.

This Court has held that when, as here, issues of jurisdictional fact are intermeshed with the merits of a case, "the jurisdictional issues should be referred to the merits, for it is impossible to decide one without the other." McBeath v. Inter-American Citizens for Decency Committee, 374 F.2d 359, 363 (5th Cir.1967). ³ The purpose of this rule is to discourage district courts from dismissing cases on the pleadings for want of jurisdiction unless the pleadings reveal a clearly insubstantial or frivolous claim. Compare Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). Thus, "[w]here the defendant's challenge to the court's jurisdiction is also a challenge to the existence of a federal cause of action, the proper course ... is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case." Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir.1981). Judicial economy further counsels resolution on the merits in these instances so that the court can avoid duplicate trials of facts essential to both jurisdiction and the merits of the claim. Id. at 415-16.

As a result, when a plaintiff has alleged an ongoing violation for purposes of Sec. 1365(a), but he fails to demonstrate a fact issue about whether a defendant is "in violation," the court should grant summary judgment for the defendant on the merits under Fed.R.Civ.P. 56, instead of dismissing for want of jurisdiction under Fed.R.Civ.P. 12(b)(1).

Although the letter of McBeath and Williamson were violated in all but one of these cases, their spirit was not. None of the cases was cavalierly treated. The orders dismissing for lack of jurisdiction were entered following extensive discovery in each case. The district courts strained to afford Sierra Club an opportunity to demonstrate a fact issue on whether appellees were "in violation" of their permits when these suits were filed. The courts' ultimate determinations rest on a complete and undisputed factual record. Sierra Club does not contend that further discovery is necessary to support its position. Consequently, dismissing some of the cases for lack of jurisdiction was tantamount to summary judgment against Sierra Club on the merits of the critical issue of appellees' being "in violation" when the actions were filed. No reversible error follows from this procedural flaw.

II.

The district courts found that under Hamker, the appellees in this case were not "in violation" of the NPDES permits when Sierra Club filed suit. In Hamker, the panel reasoned that section 1365 does not permit a citizen lawsuit to enforce the Clean Water Act where there is no ongoing violation of an effluent standard, limitation or order. Thus, the plaintiff there could not state a cause of action for a single past oil discharge. Judge Williams, specially concurring, suggested however that the statutory language "in violation" is broad enough to cover the "chronic episodic violator" who "intentionally turns off the spigot" just before a citizen brings suit. 756 F.2d at 399 (Williams, J., concurring). We need not enter a debate concerning the extent of the Hamker holding because the uncontradicted evidence in these cases demonstrated only past, sporadic or largely unconnected permit violations by each of the appellees. Not only was none of the violations ongoing at the date Sierra Club filed suit in either a "chronic episodic" or actual sense, but Sierra Club never attempted to establish, and in fact eschewed the possibility that there might be any requirement of demonstrating the ongoing or chronic nature of such violations. Sierra Club's proof failed to comport with its pleadings.

To demonstrate the failure of Sierra Club's proof, it...