Environmental Conservation Organization v. City of Dallas

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

May 27, 2008

No. 07-10583 Charles R. Fulbruge III

Clerk

ENVIRONMENTAL CONSERVATION ORGANIZATION

Plaintiff – Appellant

v.

CITY OF DALLAS

Defendant – Appellee

Appeal from the United States District Court

for the Northern District of Texas

Before DAVIS and SOUTHWICK, Circuit Judges, and DRELL, District Judge.*

SOUTHWICK, Circuit Judge:

The Environmental Conservation Organization appeals the dismissal of

its Clean Water Act citizen suit against the City of Dallas, Texas, arguing that

the district court erroneously concluded that its suit was barred under the

doctrine of res judicata. We agree that the citizen suit should have been

dismissed, but not for the reasons given by the district court. We hold that the

citizen suit became moot prior to the district court’s entry of final judgment;

therefore, we vacate the judgment because it was rendered without jurisdiction.

I. Facts and Procedural Background

*

District Judge of the Western District of Louisiana, sitting by designation.

No. 07-10583

The City of Dallas, Texas (“City”), operates a municipal separate storm

sewer system (“MS4”) that collects, channels and discharges storm water runoff

into the Trinity River and its tributaries. The City operates this separate storm

sewer system pursuant to a Clean Water Act permit (the “MS4 Permit”). See 33

U.S.C. § 1342. The MS4 Permit delineates permissible and impermissible

discharges into the Trinity River watershed and mandates the implementation

of a storm water management program (“SWMP”). The SWMP imposes

planning and monitoring requirements to ensure that non-storm water and

other pollutants are not discharged through the separate storm sewer system.

See 33 U.S.C. § 1342(p); 40 C.F.R. § 122.26.

The Environmental Conservation Organization (“ECO”) is a non-profit

environmental watch group based in Dallas, Texas. Some of ECO’s members use

the Trinity River and its tributaries for recreational purposes. In September

2003, due to problems with the City’s operation of its separate storm sewer

system and the polluted appearance of some Dallas-area water bodies, ECO

notified the City that it would file a citizen suit in order to remedy alleged

violations of the MS4 Permit and the Clean Water Act (“CWA” or “Act”). In

accordance with the requirements of the CWA citizen-suit provision, ECO

simultaneously notified the Administrator of the Environmental Protection

Agency (EPA) and the Texas Commission on Environmental Quality (“TCEQ”)

of the alleged violations and ECO’s intent to initiate a citizen suit against the

City if no corrective action was taken. See 33 U.S.C. § 1365(b). In October 2003,

ECO sent a revised notification letter to the City, the EPA Administrator and

the TCEQ, pressing its concerns regarding the alleged violations and reiterating

its intent to bring a citizen suit.

In December 2003, over sixty days after sending notice of the alleged

violations, ECO filed a CWA citizen suit against the City in federal district court.

ECO’s complaint alleged that illicit pollutant discharges from various City-

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No. 07-10583

owned facilities violated both the MS4 Permit and the CWA (because they

constituted discharges from point sources without a permit). The complaint also

alleged that the City violated its MS4 Permit by failing to comply with the

SWMP requirements contained therein. ECO sought civil penalties and

injunctive relief under the CWA.

While neither the EPA nor the State of Texas commenced an enforcement

action against the City prior to ECO’s filing this suit, the EPA had begun to

investigate the City’s separate storm sewer system.1 In February 2004, the EPA

issued an administrative compliance order that identified various violations of

the City’s MS4 Permit and the CWA. See 33 U.S.C. § 1319(a). The compliance

order instructed the City to rectify these violations or arrange a “show cause”

meeting with the EPA in order to explain why no enforcement action should be

taken in regards to the alleged violations. Shortly after the order was issued,

the City and the EPA began negotiating a settlement of the violations noticed

therein. The EPA encouraged ECO to participate in the settlement discussions,

but ECO declined. Ultimately, the City reached a settlement with the EPA.

In May 2006, the EPA, joined by the State of Texas, filed a CWA

enforcement action against the City in federal district court (the “EPA

enforcement action”). On the same day, EPA filed a proposed consent decree

that contained the terms of the settlement agreement. The filing of the consent

decree triggered a public notice and comment period, during which ECO was the

only person or organization to submit comments. See 28 C.F.R. 50.7. ECO did

not oppose entry of the consent decree, but expressed concern that the punitive

provisions and some remedial provisions were inadequate. At the close of the

public comment period, the EPA responded to ECO’s comments and moved for

1

It appears that EPA’s first physical “inspections” of the City’s separate storm sewer

system occurred in November 2003. However, EPA asserts that it began reviewing certain

reporting documents filed by the City as early as July 2003.

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No. 07-10583

entry of the consent decree. In August 2006, the district court granted EPA’s

unopposed motion to enter the consent decree. See United States v. City of

Dallas, No. 3:06-cv-00845 (N.D. Tex. Aug. 28, 2006).2

The consent decree is a lengthy and detailed document. It requires, among

other things, that the City pay $800,000 in civil penalties, undertake

supplemental environmental projects totaling at least $1.2 million, meet

minimum staffing requirements in its environmental quality and sewer system

monitoring departments, and provide ongoing compliance reports to the EPA.

The City is also subject to an audit of its storm water system within three years

of the consent decree’s entry and must pay stipulated penalties if it is found to

be in violation of any of its provisions. The decree’s appendices provide strict

timetables for satisfaction of these provisions, which are posted on a website and

available to the public.

During the time in which EPA was investigating and negotiating with the

City, ECO’s citizen suit remained pending on the district court’s docket. After

entering the consent decree in the EPA enforcement action, the district court

directed the City to file a motion for summary judgment in ECO’s action so that

the court could determine whether the consent decree precluded ECO’s citizen

suit. The City moved for summary judgment, arguing that ECO’s suit should be

dismissed because the final judgment in the EPA enforcement action precluded

re-litigation of the same claims in a citizen suit. Alternatively, the City argued

that ECO’s claims were mooted by the resolution of the EPA enforcement action.

ECO opposed the motion to dismiss, arguing first that the language and

statutory scheme of the CWA indicated that the res judicata doctrine and

principles of mootness could not be invoked to dismiss a prior-filed citizen suit.

2

ECO had a right to intervene in the EPA enforcement action, see 33 U.S.C. §

1365(b)(1)(B), but declined to do so despite the district court’s encouragement.

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No. 07-10583

Alternatively, ECO argued that neither the elements of res judicata nor the test

for mootness had been satisfied.

The district court relied on res judicata to dismiss ECO’s citizen suit,

rejecting arguments that both the privity and similarity of claims requirements

were not met in its case. The court noted that even though “the Fifth Circuit has

never considered whether res judicata applies to a citizen enforcement action

under the CWA,” precedents from other circuits had applied res judicata to

citizen suits under similar circumstances. Envtl. Conservation Org. v. City of

Dallas, 516 F. Supp. 2d 653, 657 (N.D. Tex. 2007). The district court did not

reach the alternative argument regarding mootness. ECO appealed here.

II. Discussion

A. Standard of Review

We review the district court’s grant of summary judgment de novo,

applying the same standard as the district court. Greenwell v. State Farm Mut.

Auto Ins. Co., 486 F.3d 840, 841 (5th Cir. 2007). Summary judgment may be

granted only if the pleadings and evidence show that there exists no genuine

issue of material fact and the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-27 (1986). The

record must be viewed in the light most favorable to the non-moving party; all

justifiable inferences will be drawn in the non-movant’s favor. TIG Ins. Co. v.

Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002).

This case also requires us to examine the district court’s jurisdiction. The

City argues that ECO’s claims were moot at the time that the district court

entered summary judgment. We review questions of federal jurisdiction de novo,

including arguments that a case or controversy has become moot. In re Scruggs,

392 F.3d 124, 128 (5th Cir. 2004). When the district court had no jurisdiction,

our authority is not over the merits but exists “merely for the purpose of

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No. 07-10583

correcting the error of the lower court in entertaining the suit . . . .” New York

Life Ins. Co. v. Deshotel, 142 F.3d 873, 882 (5th Cir. 1998) (citation omitted).

B. Standing

“Mootness is ‘the doctrine of standing in a time frame. The requisite

personal interest that must exist at the commencement of litigation (standing)

must continue throughout its existence (mootness).’” Ctr. for Individual

Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006) (quoting U.S. Parole

Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)). If a case has been rendered

moot, a federal court has no constitutional authority to resolve the issues that

it presents. In re Scruggs, 392 F.3d at 128. Therefore, before considering any

other matters raised by the parties, we are obliged to “resolve the standing

question as a threshold matter of jurisdiction.” Cole v. Gen. Motors Corp., 484

F.3d 717, 721 (5th Cir. 2006).

The U.S. Department of Justice, participating in this appeal as amicus

curiae, urges us to resolve this case on res judicata grounds and argues that

recent Supreme Court precedent permits us to do so, pretermitting the mootness

issue. See Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 127 S. Ct. 1184

(2007). In Sinochem, the Supreme Court held that a federal court may dismiss

a case on grounds of forum non conveniens although jurisdictional issues remain

unresolved. Id. at 1190. The Court pragmatically recognized that “where

subject-matter or personal jurisdiction is difficult to determine, and forum non

conveniens considerations weigh heavily in favor of dismissal, the court properly

takes the less burdensome course.” Id. at 1194. The Third Circuit recently

relied on Sinochem in affirming the dismissal of a resident alien’s petition for

habeas corpus on res judicata grounds, although the government also challenged

the federal court’s jurisdiction to entertain the petition. Gonzalez-Cifuentes v.

I.N.S., 253 F. App’x 173, 175 & n.2 (3d Cir. 2007) (unpublished).

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No. 07-10583

We recognize that, in some limited instances, “a federal court has leeway

to choose among threshold grounds for denying audience to a case on the merits.”

Sinochem, 127 S. Ct. at 1191 (internal quotation marks omitted). However, we

do not think this is one of those instances. In this case, the res judicata analysis

is no less burdensome than the standing inquiry. ECO argues that the common

law doctrine of res judicata cannot be applied to CWA citizen suits, and there is

some precedent to that effect. See Sierra Club v. Coca-Cola Corp., 673 F. Supp.

1555 (M.D. Fla. 1987). The City points to later authority that disagrees. See

EPA v. City of Green Forest, 921 F.2d 1394, 1404 (8th Cir. 1990). Even were we

to resolve that argument in the City’s favor, we would still face an apparent

circuit split regarding the proper “privity” analysis in the context of determining

the preclusive effect of an EPA-negotiated consent decree on a prior-filed CWA

citizen suit. Compare Friends of Milwaukee’s Rivers v. Milwaukee Metro.

Sewerage Dist., 382 F.3d 743 (7th Cir. 2004) (satisfaction of res judicata “privity”

element requires showing of “diligent prosecution”) with City of Green Forest,

921 F.2d at 1394 (applying res judicata without any discussion of “diligent

prosecution”); see Ellis v. Gallatin Steel Co., 390 F.3d 461, 473 (6th Cir. 2004)

(expressly rejecting “diligent prosecution” requirement when applying res

judicata to a prior-filed Clean Air Act citizen suit).

This is not “a textbook case for immediate [res judicata] dismissal.”

Sinochem, 127 S. Ct. at 1194. Therefore, we turn to our threshold consideration:

was the district court bound to dismiss ECO’s suit as moot?

C. Mootness Analysis

1. A citizen suit may be dismissed as moot

Congress enacted the CWA with the express purpose of “restor[ing] and

maintain[ing] the chemical, physical, and biological integrity of the Nation’s

waters.” 33 U.S.C. § 1251(a). Among the myriad of mechanisms for achieving

this goal, Congress empowered private citizens to bring suit in federal court

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No. 07-10583

against alleged violators of the Act. 33 U.S.C. § 1365. Under the CWA citizen-

suit provision, federal courts are authorized to enter injunctions and assess civil

penalties, payable to the United States Treasury, against any person found to

be in violation of “an effluent standard or limitation” under the Act. § 1365(a);

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 175

(2000). The citizen-suit provision is a critical component of the CWA’s

enforcement scheme, as it “permit[s] citizens to abate pollution when the

government cannot or will not command compliance.” Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 62 (1987).

However, Congress placed some limitations on the commencement of

citizen suits under the CWA. First, a citizen may not commence suit prior to

sixty days after giving notice of the alleged violation to the EPA, the State, and

the alleged violator. § 1365(b)(1)(A). Second, no citizen suit may be brought if

the EPA or State “has commenced and is diligently prosecuting a civil or

criminal action” against the alleged violator. § 1365(b)(1)(B). The Act is silent

as to which mechanisms may be invoked to dispense with citizen suits – like

ECO’s – that have been properly commenced under Section 1365(b).

ECO argues that “courts should not employ judicially-created mootness or

res judicata doctrines” to dismiss a properly filed citizen suit because this would

conflict with Congress’s statutory scheme under the CWA. ECO invokes the

canon of statutory construction (expressio unius est exclusio alterius) that

instructs “[w]hen a statute limits a thing to be done in a particular mode, it

includes a negative of any other mode.” Christensen v. Harris County, 529 U.S.

576, 583 (2000). ECO posits that because Congress imposed certain express

limitations on a citizen’s right to prosecute a CWA suit, all other methods of

limiting that right are excluded. Under ECO’s theory, the decision to dismiss a

properly commenced citizen suit due to mootness constitutes an impermissible

judicial addition to Congress’s enumerated limitations on such suits.

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No. 07-10583

ECO’s argument is flawed for two reasons. First, the “thing to be done”

under Section 1365(b) is the commencement of a citizen suit, not the resolution

of such a suit. Second, and more importantly, mootness is part of the Article III

standing inquiry applicable to all suits filed in federal court. See Laidlaw, 528

U.S. at 189-94. Thus, when dismissing a citizen suit as moot, a court does not

graft some “judicially-created doctrine” onto the CWA. Rather, a finding that the

“irreducible constitutional minimum of standing” is not satisfied means the court

has no constitutional authority to resolve the dispute between the citizen and

the alleged violator. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

One court has noted that the citizen-suit “provision confers standing to enforce

the Clean Water Act to the full extent allowed by the Constitution.” Friends of

the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 152 (4th Cir.

2000) (en banc). The “full extent of the law” does not extend beyond

constitutional limits. Accordingly, this court has recognized that developments

subsequent to the filing of a citizen suit may moot the citizen’s case. See Carr

v. Alta Verde Indus., Inc., 931 F.2d 1055, 1061-65 (5th Cir. 1991).3

Having established that the jurisdictional mootness inquiry is required in

the context of a CWA citizen suit, we turn to an application of mootness

principles to ECO’s suit.

2. Standard for determining mootness

As a general rule, “any set of circumstances that eliminates actual

controversy after the commencement of a lawsuit renders that action moot.”

Carmouche, 449 F.3d at 661. A case should not be declared moot “[a]s long as

the parties maintain a ‘concrete interest in the outcome’ and effective relief is

3

Other circuits have reached this conclusion as well. Comfort Lake Ass’n v. Dresel

Contracting, Inc., 138 F.3d 351, 354-55 (8th Cir. 1998); Atlantic States Legal Found., Inc. v.

Eastman Kodak Co., 933 F.2d 124, 128 (2d Cir. 1991); Chesapeake Bay Found. v. Am. Recovery

Co., 769 F.2d 207, 209 (4th Cir. 1985).

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No. 07-10583

available to remedy the effect of the violation . . . .” Dailey v. Vought Aircraft

Co., 141 F.3d 224, 227 (5th Cir. 1998). But a case will become moot where “there

are no longer adverse parties with sufficient legal interests to maintain the

litigation” or “when the parties lack a legally cognizable interest in the outcome”

of the litigation. In re Scruggs, 392 F.3d at 128. As the Supreme Court has

noted, “it is not enough that a dispute was very much alive when the suit was

filed; . . . [t]he parties must continue to have a personal stake in the outcome of

the lawsuit.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78 (1990) (citations

and internal quotation marks omitted).

ECO argues that, if the EPA-negotiated consent decree can moot its citizen

suit, the test for mootness should be the traditional, stringent standard that was

applied by this court in Carr v. Alta Verde Industries. According to Carr, in

order to have a case dismissed as moot, “[t]he defendant must demonstrate that

it is absolutely clear that the allegedly wrongful behavior could not reasonably

be expected to recur.” 931 F.2d at 1062 (quoting Gwaltney, 484 U.S. at 66) (some

quotation marks omitted; emphasis in original). Under this standard, the party

asserting mootness bears the “formidable burden” of showing that its alleged

violations of the CWA cannot reasonably be expected to recur. Laidlaw, 528 U.S.

at 189-90. As such, ECO argues that the City must prove that the consent

decree “actually stops all violations without any likelihood the violations will

recur” in order to have its citizen suit dismissed as moot.

However, the test for mootness that ECO urges us to apply is derived from

cases in which the defendant argued that its voluntary conduct mooted the

plaintiff’s suit. See Laidlaw, 528 U.S. at 189 (“The only conceivable basis for a

finding of mootness in this case is Laidlaw’s voluntary conduct . . . .”); Carr, 931

F.2d at 1061-65 (cattle feedlot’s voluntary improvements and application for

CWA permit did not moot citizen suit). This stringent standard is appropriate

when considering voluntary cessations of CWA violations because it “protects

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No. 07-10583

plaintiffs from defendants who seek to evade sanction by predictable

protestations of repentance and reform.” Gwaltney, 484 U.S. at 66 (quotation

marks omitted). For example, if we were considering an argument by the City

that ECO’s claims were moot because the City voluntarily hired the requisite

number of compliance and monitoring staff or voluntarily set aside funds for

supplemental environmental projects, we would employ the standard discussed

in Laidlaw and Carr because there would no impediment to the City’s laying off

the new hires or reallocating the funds after ECO’s suit was dismissed.

Far from voluntary, the City’s compliance with the terms of its MS4

Permit and the CWA has been compelled by an EPA enforcement action and the

resulting court-approved consent decree. Further, the actions that allegedly

moot ECO’s suit are actions of third parties (the EPA and a federal court), not

those of the City. As such, we would not be relying solely on the City’s

assurances that it will not “return to [its] old ways.” United States v. W.T. Grant

Co., 345 U.S. 629, 632 (1953). Under such circumstances, Carr’s stringent test

for “voluntary” mootness is inappropriate. Instead, we apply the test that has

been endorsed by the Second and Eighth Circuits, under which ECO’s claims for

relief are moot unless ECO (the citizen-suit plaintiff) proves that there is a

realistic prospect that the violations alleged in its complaint will continue

notwithstanding the consent decree. Comfort Lake, 138 F.3d at 355; Eastman

Kodak, 933 F.2d at 128.4

This standard for determining whether a CWA citizen suit has been

mooted by a subsequent government enforcement action respects Congress’s

4

The distinction we draw between the traditional mootness inquiry and the more

stringent “voluntary cessation” test is not unique to the circumstances in this case. Federal

courts have long-recognized that allegations by a defendant that its voluntary conduct has

mooted the plaintiff’s case require closer examination than allegations that “happenstance” or

official acts of third parties have mooted the case. See DeFunis v. Odegaard, 416 U.S. 312,

316-19 (1974); Locke v. Bd. of Pub. Instruction of Palm Beach County, 499 F.2d 359, 363-64

(5th Cir. 1974); see also Laidlaw, 528 U.S. at 214 (Scalia, J., dissenting).

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intent that citizen suits “supplement rather than . . . supplant government

action.” Gwaltney, 484 U.S. at 60. The primary function of a citizen suit is to

spur agency enforcement of law. See Nat’l Wildlife Fed’n v. Hanson, 859 F.2d

313, 317 (4th Cir. 1988) (such suits help “ensure that the agencies fulfill their

duties under the CWA responsibly”). That is why the Supreme Court has noted

that “citizen suits are proper only ‘if the Federal, State, and local agencies fail

to exercise their enforcement responsibility.’” Gwaltney, 484 U.S. at 60 (quoting

S. Rep. No. 92-414, at 64 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3730).

Were we to employ the stringent “voluntary cessation” standard urged by

ECO to these circumstances – where compliance was brought about as the result

of an EPA enforcement action and a court-approved consent decree – we would

effectively cede primary enforcement authority under the CWA to citizens acting

in the role of private attorneys general. Such ceding would discourage

defendants in a citizen from entering a consent decree with federal or state

enforcement agencies, because defendants would remain exposed to duplicative

penalties. See Gwaltney, 484 U.S. at 60-61; Eastman Kodak, 933 F.2d at 127.

Not only might this lead to under-enforcement of the CWA, it would also shift

primary responsibility from the expert agencies to the necessarily generalist

courts. Cf. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546,

579 (5th Cir. 1996) (primary regulation of pollution should be by the EPA, not

through a federal district court’s supervision); Eastman Kodak, 933 F.2d at 127.

Further, the “realistic prospect” mootness standard that we employ today

comports with Congress’s policy that only “diligent prosecutions” preempt citizen

suits. See § 1365(b)(1)(B). If a citizen-suit plaintiff demonstrates that there is

a realistic prospect that the violations alleged in its complaint will continue

notwithstanding the government-backed consent decree, then a less-than-

diligent prosecution might have been shown. Placing the burden on the citizen-

suit plaintiff to demonstrate that his claims are not mooted by the consent

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decree is also in step with Congressional policy. See Karr v. Hefner, 475 F.3d

1192, 1198 (10th Cir. 2007) (noting that the citizen-suit plaintiff bears the

burden to demonstrate that an EPA prosecution is not diligent). For these

reasons, we adopt the “realistic prospect” test for mootness that has been

employed by the Second and Eighth Circuits in this context.

3. ECO’s citizen suit is moot

We now consider whether ECO can satisfy its burden to show a realistic

prospect that the CWA violations alleged in its citizen suit will continue

notwithstanding the consent decree. The district court found that the consent

decree resolved every violation alleged in the ECO citizen suit. Envtl.

Conservation Org., 516 F. Supp. 2d at 659 & n.6. ECO argues that evidence in

the record shows that the City is engaging and will continue to engage in

violations of its MS4 Permit and the CWA.

ECO relies primarily on an affidavit submitted by Craig T. Maske, a civil

engineer with an expertise in water resources whom ECO retained as an expert.

Mr. Maske’s affidavit, sworn on November 10, 2006, details various past

violations by the City and offers his opinion that these violations will continue.

However, Mr. Maske does not mention the consent decree in his affidavit, nor

does he offer an explicit opinion that the consent decree will not adequately

address the violations discussed therein. Therefore, Mr. Maske’s affidavit does

not address the critical fact in our mootness inquiry.

Other evidence is said to be found in the depositions of several City

employees. This testimony, given in April and May 2006, provides evidence

solely of past violations by the City. No employee mentions the consent decree

or offers any prediction as to whether the decree will address the relevant

violations. ECO asks us to infer from the City’s “distinct track record of failing

to comply with CWA requirements” that these violations will continue and

suggests that there is authority for drawing such an inference on summary

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judgment. See Orange Env’t, Inc. v. County of Orange, 860 F. Supp. 1003, 1019

(S.D.N.Y. 1994). Such an inference requires that the polluter have a poor “track

record for complying with [state agency] compliance orders . . . .” Id. The only

compliance order entered against the City is the one that is the focus of this

appeal. We refuse to draw the inference that the Orange court drew under such

dissimilar circumstances.

After reviewing the consent decree and comparing it to ECO’s complaint,

we agree with the district court that it addresses every MS4 Permit and CWA

violation alleged in ECO’s citizen suit. ECO has not pointed to specific facts on

appeal that would support an inference that the City will continue to engage in

violations that were alleged in ECO’s citizen suit but not addressed by the

consent decree. See Sedgwick James, 276 F.3d at 759 (“Conclusional allegations

and denials, speculation, improbable inferences, unsubstantiated assertions, and

legalistic argumentation do not adequately substitute for specific facts showing

a genuine issue for trial.”). For these reasons, ECO cannot show a realistic

prospect that any of the violations alleged in its citizen suit will continue

notwithstanding the consent decree. As we explain below, ECO’s claims for both

injunctive relief and civil penalties are moot.

(a) Injunctive relief

The consent decree requires the City to take steps to correct the planning,

staffing, monitoring, and compliance deficiencies that resulted in the violations

alleged in ECO’s suit. ECO argues there is no mootness as to injunctive relief

because the immediate cessation of all violations has not been ordered.

Even had ECO prevailed on its citizen suit, the district court was not

bound to order the immediate cessation of all violations. Traditional equitable

principles control the decision to enter an injunction, under which the court has

broad discretion to balance the interests of the parties. 11A CHARLES ALAN

WRIGHT, ARTHUR R. MILLER & MARY KAY LANE, FEDERAL PRACTICE AND

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PROCEDURE § 2942 (2d ed. 1990). The district court might even have denied

injunctive relief altogether. See Weinberger v. Romero-Barcelo, 456 U.S. 305,

314-20 (1982). But even if some form of injunctive relief were ordered, the

district court might have denied ECO’s request for immediate relief if the more

practical solution was a permanent injunction that mandated a cessation of

violations over a period of time. See e.g., Reserve Mining Co. v. EPA, 514 F.2d

492, 537-40 (8th Cir. 1975); N.Y. Coastal Fishermen’s Ass’n v. N.Y. Dep’t of

Sanitation, 772 F. Supp. 162, 169-70 (S.D.N.Y. 1991). We also note the practical

difficulty of enforcing an immediate cessation of violations that occur, in large

part, due to rainfall over the City. Thus, as applied to this case, the “realistic

prospect” test considers whether violations will “continue” in the sense that the

violations will not be cured even after the remedial plan imposed by the consent

decree has been fully implemented in accordance with reasonable timetables.5

The consent decree achieved some court-ordered mandatory relief that is

injunctive in nature. Because ECO is not entitled to any particular form of

injunctive relief under the CWA – and, therefore, was not guaranteed to achieve

any other form of relief in its citizen suit than that imposed under the consent

decree – its claims for injunctive relief are moot.

(b) Civil penalties

There is some authority that even where a defendant’s voluntary acts of

compliance are sufficient to moot a citizen’s request for injunctive relief, those

voluntary acts will not necessarily moot a related claim for civil penalties.

Comfort Lakes, 138 F.3d at 356; Carr, 931 F.2d at 1065 n.9. This is not a case

of voluntary compliance. This appeal requires us to determine whether acts of

5

Under the consent decree, all mandatory planning and any construction must be

completed within three to four years. This is not an unreasonably lengthy period for requiring

compliance. Cf. Friends of Milwaukee’s Rivers, 382 F.3d at 760-61 (eight-year deadline for

completion of remedial construction projects was permissible).

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compliance that have been compelled by an EPA-negotiated consent decree can

moot a citizen’s claim for civil penalties.

First, it is significant that the consent decree imposed $800,000 in civil

penalties on the City. This does not represent the maximum penalty permissible

under the statute. See 33 U.S.C. § 1319(d). However, even in the event of a

successful citizen suit, the district court is not bound to impose the maximum

penalty afforded under the statute. In fact, the district court is required to

consider a myriad of factors, some of which are mitigating in nature, when

determining the appropriate civil penalty under the CWA. § 1319(d); see Cedar

Point, 73 F.3d at 576 (district court did not abuse its discretion by imposing

$186,070 civil penalty even though maximum permissible penalty was

$20,225,000). Thus, the penalties imposed by the consent decree are arguably

the same penalties that ECO could have achieved in a successful citizen suit.

More importantly, ECO assumed the role of private attorney general in the

pursuit of its citizen suit. Any penalty that it achieved would have been paid

into the United States Treasury. After ECO initiated its citizen suit, the United

States government initiated its own enforcement action and extracted some civil

penalties from the City. The resulting consent decree (approved by the U.S.

Department of Justice) represents the federal government’s discretionary

resolution of the level of penalty needed for the same environmental concerns

raised by ECO. A private attorney general is no longer needed to raise the issue

of the proper civil penalty. That ECO might have sought stiffer penalties

against the City does not change the result; ECO is not permitted to upset the

primary enforcement role of the EPA by seeking civil penalties that “the

Administrator chose to forego . . . .” Gwaltney, 484 U.S. at 61. The appropriate

government agencies have exercised their discretion to extract some penalties

from the City and forego others. By proceeding with its citizen suit, ECO could

accomplish nothing other than to revisit the government’s “dispositive

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No. 07-10583

administrative settlement.” Eastman Kodak, 933 F.2d 127; compare Atlantic

States Legal Found. v. Pan Am. Tanning, 993 F.2d 1017, 1022 (2d Cir. 1993)

(distinguishing Eastman Kodak where settlement “did not cover all of the

violations plaintiffs allege[d] and assessed small fines of only $6,600”). For these

reasons, ECO’s claim for civil penalties is moot.

III. Conclusion

Underlying our decision today is the recognition that ECO’s concrete

interest in the outcome of the litigation was the public’s interest, not an interest

specific to ECO or its members. See Green Forest, 921 F.2d at 1404-05. Once the

EPA filed an enforcement action and secured a consent decree that adequately

addressed the same violations alleged in ECO’s suit, the public interest was

vindicated to the full extent of ECO’s ability to vindicate it. When nothing was

left for ECO to accomplish, it no longer had a stake in the litigation.

Because the district court’s consent decree in the EPA’s enforcement action

addressed all of the CWA violations alleged in ECO’s citizen suit, extracted

reasonable civil penalties, and mandated that the City undertake significant

corrective measures, ECO’s citizen suit became moot when the consent decree

was entered. Accordingly, the district court’s judgment in this case was

rendered without jurisdiction and must be vacated. Goldin v. Bartholow, 166

F.3d 710, 718 (5th Cir. 1999).6

We VACATE the district court’s summary judgment in favor of the City

and REMAND this case to the district court with instructions that ECO’s citizen

suit be dismissed as moot.

6

We are aware that ECO has appealed the denial of its request for costs under Section

§ 1365(d). Envt’l Conservation Org. v. City of Dallas, No. 07-11247 (5th Cir. filed Dec. 10,

2007). Our opinion today should not be read to express any position on the merits of that

appeal. See Murphy v. Fort Worth Indep. Sch. Dist., 334 F.3d 470, 471 (5th Cir. 2003) (a

determination of mootness does not preclude an award of attorneys’ fees).

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