The U.S. Court of Appeals for the Third Circuit recently held that the U.S. District Court for the District of New Jersey could not abstain from hearing a citizen suit case brought under both the federal Clean Water Act and the federal Resource Conservation and Recovery Act, and which sought an injunction requiring the defendant to clean up the Raritan River.
In Raritan Baykeeper v. NL Industries, Inc., Civ. No. 10-2591 (3d Cir. Oct. 3, 2011), the Raritan Baykeeper filed a lawsuit to force NL Industries to cleanup a portion of contamination in the Raritan River. In 1998, the New Jersey Department of Environmental Protection (“NJDEP”) issued an Administrative Consent Order (“ACO”) which required NL Industries – which manufactured titanium dioxide pigments on the property, bordered on three sides by the Raritan River – to investigate and perform remediation regarding contamination of the River. During testing in the early 2000s, NL Industries concluded that other sources were contributing to the pollution of the sediment. As a result the NJDEP issued a letter in 2004 stating that “any remedial actions conducted in this area of the river should be part of a regional approach,” and did not require NL Industries to undertake any further investigation, although the remediation requirements under the ACO have not yet been fulfilled. Although no such “regional approach” has been proposed to date, in 2009 the U.S. Environmental Protection Agency (“EPA”) ordered remediation of River sediments upriver from the NL Industries property.
Raritan Baykeeper filed this lawsuit shortly thereafter, asserting claims under the citizen suit provisions of the Clean Water Act (“CWA”) and the Resource Conservation and Recovery Act (“RCRA”), and, among other things, seeking an injunction requiring NL Industries to remediate sediments in the Raritan River. NL Industries made a motion to dismiss Raritan Baykeeper’s claims on abstention grounds, and the District Court granted the motion.
The abstention doctrine requires a federal court to refrain from hearing a case that it otherwise has the power to hear. “Federal courts have an obligation to exercise their jurisdiction. Abstention, therefore, is the exception rather than the rule.” Riley v. Simmons, 45 F.3d 764, 771 (3d Cir. 1995).
One ground for abstention – primary jurisdiction – is when the lawsuit is essentially a collateral attack on an agency order or seeks a remedy that necessarily conflicts with an agency order. In those cases, it may be improper for the court to hear the case because the special competence of an administrative body would supersede the federal court’s jurisdiction. “The doctrine of primary jurisdiction . . . is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.” U.S. v. Western Pac. R. Co., 352 U.S. 59, 63 (1956).
The other ground for abstention – as set forth in Burford v. Sun Oil Co., 319 U.S. 315 (1943) and as applied in Riley v. Simmons, 45 F.3d 764, 770 (3d Cir. 1995) – is when there is a chance of timely and adequate state court review of the issue. In those cases, it may be improper for the federal court to hear the case because it would be an intrusion into matters of local concern and which are within the special competence of local courts. Under the Burford doctrine, a federal court must decline jurisdiction “where the exercise of federal review of the question in the case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern” provided “timely and adequate state-court review is available.” New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 361 (1989).
The District Court for New Jersey declined to hear Raritan Baykeeper’s case, holding that it had the right to abstain under both primary jurisdiction and Burford abstention grounds. The Third Circuit Court of Appeals disagreed.
In this case, according to the express language of the CWA and RCRA, federal district courts have exclusive jurisdiction – meaning they have the sole authority – to hear citizen suit cases arising under both the CWA and RCRA. It is mainly for this reason that the Third Circuit held that the District Court’s decision to abstain from hearing the case, under either theory, must fail.
First, as the Third Circuit noted, “[w]hen the matter is not one peculiarly within the agency’s area of expertise, but is one which the courts or jury are equally well-suited to determine, the court must not abdicate its responsibility.” The Court determined that the factors weighed heavily against the application of primary jurisdiction in this case: “this matter is not particularly within the discretion of the NJDEP” (emphasis in original); the statutes explicitly authorize federal courts to address environmental issues; there is minimal risk of inconsistent rulings because, although the NJDEP said that a regional study was necessary in 2004, no regional study was ever undertaken; and even if the district court ordered a more stringent remediation standard then would be under the ACO, it would not be enough, based on all other facts, to invoke primary jurisdiction. Therefore, the District Court of New Jersey cannot abstain from hearing the case on primary jurisdiction grounds.
Second, the New Jersey Environmental Rights Act does not create a cause of action that is “essentially the equivalent” of RCRA and the CWA, and Raritan Baykeeper could not sue under it to obtain timely and adequate state court review. As the Third Circuit explained, RCRA and the CWA establish the specific numerical standards that Raritan Baykeeper alleges the defendants violated, and because the New Jersey Environmental Rights Act does not authorize a state court action to enforce rights under RCRA and the CWA, Raritan Baykeeper cannot obtain adequate and timely state court review of its claims. The Third Circuit’s holding that this action could not have been filed in state court because federal courts have exclusive jurisdiction over RCRA and CWA citizen suits is in line with the decisions in other cases. See, e.g., Chico Serv. Station, Inc. v. Sol P.R. Ltd., 633 F.3d 20, 31 (1st Cir. 2011) (collecting cases concluding that federal courts have exclusive jurisdiction over RCRA citizen suits); Natural Res. Def. Council v. U.S. Envtl. Prot. Agency, 542 F.3d 1235, 1242 (9th Cir. 2008) (holding that federal district courts have exclusive jurisdiction over citizen suits against the EPA Administrator). Therefore, the District Court of New Jersey cannot abstain from hearing the case on Burford grounds.
While this case was a win for Raritan Baykeeper, the Third Circuit refused to take this holding as far as Raritan Baykeeper wanted, and denied Raritan Baykeeper’s request that the court establish a general rule that primary jurisdiction and Burford abstention will neverapply to RCRA or CWA actions. The Third Circuit concluded by stating: “abstention might be appropriate in cases with heightened state involvement as evidenced by ‘a formal administrative proceeding in process that the citizens’ suit would disrupt.’ But such a case is truly the exception, not the rule, and is not present here.” (quoting PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998) (emphasis added)).
Conclusion
The message for environmental groups is that the mere fact that there is or was recently some state activity to correct a problem of contamination does not necessarily – but it may – bar a federal environmental citizen suit. As always, the particular facts and circumstances will govern whether a separate citizen suit claim can be sustained against a polluting party.
