December 6, 2021

Volume XI, Number 340

Advertisement
Advertisement

December 06, 2021

Subscribe to Latest Legal News and Analysis

Following First Circuit Panel's Decision, Does EPA Even Matter Anymore?

The Conservation Law Foundation will continue its Clean Water Act and RCRA citizen suit against Exxon Mobil alleging violations of those federal laws at Exxon Mobil's Everett facility if a decision yesterday by a three-judge panel of the First Circuit stands.

While it is hard to get worked up about that specific outcome, the panel's decision is further evidence that it may be federal courts, not the Environmental Protection Agency, that could dominate the application of the Clean Water Act which is most certainly not what Congress intended.

Exxon Mobil had been operating under an expired NPDES permit since 2014.  CLF sued in 2016.  The District Court stayed the case in 2020 on the ground that EPA's pending (at that time for six years) permitting decision could resolve CLF's claims.  The District Court's impassioned but unsuccessful effort to engage EPA regarding its permitting intentions were well-publicized at the time.  The District Court specified a status report in 18 months, no doubt hoping that the high profile litigation would prompt EPA to act.  It hasn't.

The First Circuit panel has now held that the District Court erred in granting a stay.  In order to do so, the panel had to first overcome the fact that appellate jurisdiction typically extends only to final decisions.  The panel overcame that hurdle by applying the law of some, but not all, Federal Circuits, that orders that impose lengthy or indefinite delays are appealable as final orders pursuant to what is called the "effectively out of court doctrine".

Having given itself permission to review the merits of the District Court's order, the panel concluded that "[w]hether and on what terms EPA issues the permit for the Everett terminal seems to us largely irrelevant to whether Exxon Mobil has violated the conditions of the permit currently in effect."  And so the panel vacated the District Court stay and remanded the case for further proceedings.

Those of us who practice in the area know that it is common that NPDES permits expire years before they are reissued.  That's why it is silly to suggest that EPA could possibly keep up with the demand for permits that would be required if the reach of the Clean Water Act were expanded as suggested by CLF and others in other cases.  In the face of an insufficiently resourced EPA, and decisions like this one, it seems as if citizen suit plaintiffs and District Court judges, and not the agency charged with implementing the Clean Water Act, could be calling the shots for the foreseeable future.   

"The U.S. Court of Appeals for the First Circuit found that it has appellate jurisdiction, but it concluded it was improper to stay the case."

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 183
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer
Member

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.

...

617-348-1711
Advertisement
Advertisement
Advertisement