GASP v. Shenango: Setting Precedent on What Is Jurisdictional in Citizen Suits Seeking to Enforce Environmental Laws and then Slipping the Rug Out from Under Them
By Emily Collins
What is Jurisdiction Anyway?
I have to stretch my memory to recall a time when I have heard the word “jurisdiction” used outside of the realm of legal beagles. The best I can do is to think of various times when a police or fire vehicle appears in a completely different city or town than the one displayed on the side of the vehicle. When that happens, we’ll often say: “I wonder what she’s doing outside of her jurisdiction?” As a general matter, most people seem to understand, then, that jurisdiction refers to the area where that governmental actor has power to do something.
When a requirement exists in the law, lawyers and judges often discuss whether that requirement is “jurisdictional.” In that instance, we’re trying to figure out if a particular requirement controls the court or administrative body’s power to hear and resolve a dispute. In the environmental law arena, lawyers talk about whether notice of a lawsuit is jurisdictional or sometimes whether the requirements to file a citizen suit are jurisdictional. If it is jurisdictional, the court must determine if it even has the power to consider the merits of the case. So, when a court finds that a requirement is non-jurisdictional, it is finding that it can properly hear the merits of the case and the legal requirement at issue will be treated as a mere “ingredient” of a claim for relief.
Since even the courts have thrown around the word “jurisdiction” in the past, the U.S. Supreme Court has directed courts “to bring some discipline” to the “subject-matter jurisdiction/ingredient-of-claim-for-relief dichotomy” by applying a bright line test to the statutory language imposing a requirement. Justice Ginsburg wrote in a unanimous decision that a statute must “clearly state” that the limitation on its scope is jurisdictional, or “courts should treat the restriction as nonjurisdictional in character.” Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006).
How does the distinction matter in practical terms?
Why does the jurisdictional question matter? When considering a motion to dismiss, which is usually filed fairly early in litigation, a court will decide a subject matter jurisdiction question (known as a 12(b)(1) motion) and a question about whether the plaintiff failed to state a claim upon which relief can be granted (known as a 12(b)(6) motion) using different standards.
When the issue is one of challenging subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), the court may resolve factual disputes by considering evidence outside of the pleadings. Gould Electronics, Inc. v. U.S., 220 F.3rd 169, 176 (3rd Cir. 2000). By contrast, in evaluating a Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim on which relief can be granted, a court must accept as true all factual allegations in the complaint and determine whether it is plausible based on the plaintiff’s allegations that the plaintiff is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The requisite facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In addition to the different standards being used to determine whether a case should be dismissed, the two types of motions (one related to jurisdiction, the other related to whether the plaintiff’s pleading states a claim that will entitle it to relief if taken as true) rely on different types of evidence and timing for the court to reach a decision. A jurisdictional requirement can be raised with a court at any time. It doesn’t matter that the parties may fail to raise an issue themselves if it is jurisdictional. Instead, a court can raise the issue itself. Also, a court may consider evidence beyond just the pleadings if the challenge is a jurisdictional one. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434-35 (2011); Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997).
How does this relate to environmental citizen suits?
On January 6, 2016, the U.S. Court of Appeals for the Third Circuit issued a precedential opinion in GASP v. Shenango, Inc., a case where Fair Shake Environmental Legal Services represented the amici curiae (friends of the court), including the Sierra Club, Clean Air Council, Mountain Watershed Association, Three Rivers Waterkeeper, and the Center for Coalfield Justice. The amici curiae argued that the requirement in the Clean Air Act that citizens seeking to enforce can only bring suit for matters that are not being “diligently prosecuted” by the government is nonjurisdictional. The judges for the Third Circuit agreed with the amici curiae.
As discussed above, this means that a Plaintiff in the Third Circuit who alleges that violations of the Clean Air Act or another environmental statute were not being diligently prosecuted by government will be subject to the 12(b)(6) standard. Ordinarily, if the diligent prosecution provision were jurisdictional, when parties contest facts related to diligence or the adequacy of the result of a civil action, the trial judge will likely “review the evidence and resolve the dispute on her own.” Arbaugh at 514. If the diligent prosecution limitation is not jurisdictional and constitutes an essential element of a claim or defense that is contested as the Third Circuit decided, “the jury is the proper trier of contested facts” according to Arbaugh. Id. On the 12(b)(6) motion in the Shenango case, however, the Third Circuit considered consent decrees entered by another court to determine whether the plaintiff stated a claim upon which relief could be granted and deferred to the governmental action as diligent and requiring compliance.
In evaluating the citizen plaintiff’s claims and the consent decrees, the Third Circuit analyzed two questions: (1) was the Allegheny County Health Department “prosecuting” an action, and (2) does the prosecution “require compliance” with the Clean Air Act?
In response to the first question, the Third Circuit opined that where the government has prosecuted the violator, even when that prosecution results in a final judgment but the consent decree still has effect by its own terms, the government is “prosecuting” an action. The Court stated that “if a state or administrative agency diligent prosecuted a suit, the presence of a final judgment, consent decree, or consent order and agreement will not prevent application of the diligent prosecution bar.” GASP v. Shenango, Inc. at 23. The Court was persuaded that the Consent Decrees between Allegheny County and Shenango demonstrated “ongoing diligent prosecution” because the Consent Decrees remained in effect and the court where the decrees were entered retained jurisdiction of the modification, interpretation and enforcement of the decrees.
In analyzing the question of whether the prosecution “requires compliance” with the Clean Air Act and is “diligent,” the Third Circuit held that Allegheny County’s prosecution is entitled to “great deference.” In ruling that the consent decrees of the Allegheny County Health Department should receive deference as to whether they “require compliance” with the Clean Air Act, the Third Circuit undermined its ruling on the nonjurisdictional character of the diligent prosecution requirement. Instead of allowing the factual dispute to properly go to the jury for resolution, the court read a presumption into the statute that doesn’t currently exist.
The amici curiae argued this point in their brief as follows:
GASP alleges that the County filed suit and obtained consent decrees twice in relationship to opacity violations at Shenango’s coke plant. JA 24-25 (¶¶ 30-31, 33-34). While a factual dispute likely exists regarding each alleged violation of the opacity limitations applicable to Shenango, GASP’s well-pled factual allegations state that the County Consent Decrees do not require compliance and that violations of the opacity limitations have continued. JA 24-28 (¶¶32, 35-42, 45, 49-50). Affording the County Consent Decrees a presumption of diligence, especially after resolution of civil actions that have allegedly failed to achieve compliance, is contrary to the plain meaning of the Clean Air Act, and “ignores the fact that Congress authorized citizen suits precisely because government enforcers were not always diligent and Congress intended courts to hear citizen suits where government enforcement was not adequately prosecuted to require compliance.” Jeffrey G. Miller, Theme and Variations in Statutory Preclusions Against Successive Environmental Enforcement Actions by EPA and Citizens, Part One: Statutory Bars in Citizen Suit Provisions, 28 Harv. Envtl. L. Rev. 401, 466 (2004).
The Third Circuit disagreed and looked at the plaintiff’s allegations in comparison to the terms of the Consent Decrees. Diligence, according to the Court, was shown because:
· the same standards were at issue in both the County Consent Decrees and the citizen suit; and
· the County’s approach to achieving compliance was “adequately set forth” and included “monitoring the violator, providing for penalties when future violations occur, and requiring the violator to bear the costs of improvement.” GASP v. Shenango at 28.
After making those holdings, the Court states the main impetus behind it’s reluctance to check anything more than whether the governmental action involves the same standards and violations as the citizen suit: “[c]oncluding that this [County] approach does not require compliance with the Act when the Consent Decrees specifically reference and address these three violations would question the agency’s expertise and contradict the accepted practice of giving deference to the diligence of the agency’s prosecution.” Id. at 28.
In its extreme hesitation to allow a factual evaluation of whether a governmental enforcement action is diligent or truly seeks to achieve compliance, the Third Circuit creates a very difficult evaluative framework for litigants.
· First, we know that in determining whether a government action bars a citizen suit, courts should now credit “as true the pleaded assertions in the complaint and [construe] them most favorably on behalf of the plaintiffs.” Jones v. City of Lakeland, Tennessee, 224 F.3d 518, 522 (6th Cir. 2000). Clearly, courts within the Third Circuit will review governmental court actions and resolutions in the public record in addition to the complaint.
· Second, we know that the Third Circuit will consider governmental enforcement efforts that have gone through the civil courts to erect a wall to bringing a citizen suit even though allegations in the complaint may state that the government action is neither in the courts, diligent, nor calculated to require compliance.
· Third, despite accepting well-pled allegations in the complaint as true, the Third Circuit expects courts to defer to an ongoing governmental action as diligent and calculated to require compliance.
In making such a contradictory holding, the Court creates great dissonance with U.S. Supreme Court and even its own rulings on how to consider 12(b)(6) motions. If the diligent prosecution provision is declared to be jurisdictional, when parties contest facts related to diligence or the adequacy of the result of a civil action, the trial judge will likely “review the evidence and resolve the dispute on her own.” Arbaugh at 514. If the limitation is not jurisdictional and constitutes an essential element of a claim or defense that is contested, “the jury is the proper trier of contested facts.” Id. The Third Circuit’s deference to the expertise of the agency on enforcement essentially enacts a presumption of diligence to governmental actions. Yet, “presumptions are evidentiary standards that should not be applied to motions to dismiss.” In re Xcel Energy, Inc., Sec., Derivative & "ERISA'' Litig., 312 F. Supp. 2d 1165, 1180 (D. Minn. 2004) (citing Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510-14 (2002)). Indeed, “[u]nder the Federal Rules of Civil Procedure, an evidentiary standard is not a proper measure of whether a complaint fails to state a claim.” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009).
With a presumption of diligence (or deference to government action) read into the statutory language of diligent prosecution when a consent decree remains in effect, the prospect of discovery (the exchange of information between the plaintiff and defendant) to prove or disprove well-pled allegations of governmental failures to diligently prosecute is largely stolen from the citizen plaintiff in contravention of the nonjurisdictional nature of the diligent prosecution defense of the Clean Air Act. Indeed, if the Court had allowed discovery, the question of diligence may have been answered very differently since even the County publicly admitted that its Consent Decree was failing to achieve compliance, but that it would be a high bar to try to convince a judge to change the decree.
Allowing citizen plaintiffs to prove the failure of governmental action is procedurally correct and a practical necessity to effectuate the purpose of pollution control statutes. In many cases, it is the polluter/violator that is asking the court to favor the government enforcement over citizen enforcement instead of the government. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 890 F. Supp. 470, 475-76, 478-82 (D.S.C. 1995) (explaining that the state filed a civil action and consent decree only after the polluter/violator drafted the complaint and consent decree, filed the documents with the court, and paid the filing fee for the state). In GASP v. Shenango, the County did not intervene in the case in the lower court to argue that its Consent Decrees were diligent and require compliance. Yet, the Third Circuit offered deference to the polluter/violator’s case.
Eventually, the question of whether deference or a presumption applies may have to be resolved by the U.S. Supreme Court. For now, we’ll likely see future citizen plaintiffs rely on the nonjurisdictional nature of the diligent prosecution provision of environmental statutes by carefully constructing their allegations about prior or ongoing governmental action. In addition, we should expect to see 12(b)(6) motions for failure to state a claim when governmental action exists on the same standards as those alleged in the complaint. The alleged violator will claim that the well-pled allegations in a citizen plaintiff’s complaint shouldn’t matter in the face of a governmental action that, according to the Third Circuit, should receive great deference. The resolution of these motions will depend on the circumstances of each case.