Consent Decrees May Not Preclude Certain Claims in Citizen Suits under the Clean Air Act
On June 17, 2015, an Ohio district court ruled that a consent decree in a separate Illinois action did not preclude certain claims asserted in a citizen suit under the Clean Air Act (CAA). Graff v. Haverhill N. Coke Co., No. 1:09-cv-670 (S.D. Ohio June 17, 2015). Generally, a consent decree precludes citizen suit plaintiffs from pursuing separate claims. The idea is that the claims were previously litigated under the doctrine of res judicata. However, in Graff the court permitted citizen plaintiffs to continue pursuing claims that the government did not allege or specifically address in a consent decree.
In 2009, the citizen plaintiffs originally filed suit in relation to the defendants’ operation of a coke processing plant near the citizen plaintiffs’ property. However, in 2013, the U.S. EPA, the State of Illinois and the State of Ohio (the Governments) filed a separate action in Illinois for CAA violations against some of the same defendants. U.S. v. Gateway Energy & Coke Co., LLC, No. 3:13-cv-616 (S.D. Ill.). The parties in the Illinois action ultimately entered into a consent decree, which dealt in part with the defendants’ coke processing plant in Ohio.
Accordingly, the main issue before the court in Graff was whether the Illinois consent decree precluded the citizen plaintiffs from pursuing their separate claims. Graff, No. 1:09-cv-670 at 4. The court observed that the “‘touchstone of the res judicata effect’ of a consent decree ‘is the consent decree itself.’” Id. at 7. Therefore, the court explained that it needed to examine the terms of the consent decree in order to determine if it precluded the citizen plaintiffs’ claims. Id.
The court decided that certain provisions in the consent decree limited or narrowed traditional res judicata principles. Id. at 10. More specifically, the consent decree “did not resolve all existing CAA violations, but in relevant respect it resolved those claims for violations alleged in the Complaint and the [Notice of Violations (NOVs)]. This narrow res judicata effect left open an avenue for the [citizen plaintiffs] to pursue claims for CAA violations which were not alleged by the [Governments] in the NOVs and were not alleged by the Governments in the Illinois Complaint.” Id.
In result, the court concluded that many of the citizen plaintiffs’ claims were not barred or precluded. The claims that the court permitted the citizen plaintiffs to continue pursuing included claims for violations of the opacity limits for waste gas exhaust stacks, certain emission limits and operational standards, regulations requiring the visual inspection of coke ovens, PSD permit requirements that waste gas from coke gas be processed with the use of a lime dryer, as well as air nuisance claims.