finding that RCRA citizen suits can be brought "in substantially the same capacity as provided for in the CWA"
How later courts described this case
- finding that RCRA citizen suits can be brought "in substantially the same capacity as provided for in the CWA"
- discussing how subsequent events that deprive a court of its ability to provide meaningful relief moot the case and make it subject to dismissal
- “It is an open question whether the catalyst theory remains viable in the context of environmental statutes like the CWA that limit attorneys' fees to a prevailing party or substantially prevailing party.”
- in the context of a CWA citizen’s suit, “[s]tanding concerns only whether a plaintiff has a viable claim that a defendant’s unlawful conduct was occurring at the time the complaint was filed”
Written by the judges who cited it.
The opinion
COLE, Circuit Judge,
concurring in part and dissenting in part.
In holding that Lynch’s suit is moot, the majority overlooks evidence in the record that establishes the existence of a genuine issue of material fact on whether the City has demonstrated that its alleged violations will not recur. The City must satisfy “the formidable burden of showing that it is absolutely dear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 , 120 S.Ct. 693 , 145 L.Ed.2d 610 (2000) (emphasis added). No doubt the City has demonstrated significant improvement in its wastewater treatment, but mere signifi *602 cant improvement falls short of the “absolutely clear” showing that the Supreme Court requires.
Indeed, in November 2001 — nearly six months after suit was filed and after the City had completed both Phases I and II of the state’s order — the state warned of the new plant’s “very limited digester capacity.” Although the state “understood] that there are plans to convert the old final clarifies to digesters,” this sheds no light on whether and when the plans would be implemented and exactly what those plans would entail' — let alone that they would be successful. An undefined probability that current plant deficiencies may be cured in the future falls short of the City’s burden under Friends of the Earth. And the state similarly expressed its “concern ... about the status of the [City’s] collection system rehabilitation program.”
The majority relies heavily on the fact that the last violation took place in May 2001. But summary judgment was granted to the City only six months later. Given the City’s years of chronic violations, this period of compliance is fairly brief, and its significance is further undermined by the state’s November report, which noted that “during the winter and spring ... the flows may be much higher.” The continued deficiencies in the City’s facility, combined with the possibility of increased flows in the winter and spring, made premature a finding — based on only six months of compliance during the summer and fall — that the City had made it “absolutely clear” that all the problems had passed.
Nor does the state’s determination that the City is in “substantial compliance” with its obligations necessarily shield the City from this suit. Our decision in Jones v. City of Lakeland, 224 F.3d 518, 524 (6th Cir.2000) (en banc), made it clear that a seal of approval from the state of Tennessee does not automatically close the courthouse door for private individuals seeking to enforce federal clean-water statutes. We noted that in the Tennessee proceedings, “the plaintiffs and other similarly affected citizens are, at the discretion of the TDEC, denied access to both the courts and to a meaningful opportunity to participate at significant stages of the administrative decision-making process, to adequately safeguard their legitimate interests as mandated by the Clean Water Act.” Id. at 522 . We would not be faithful to City of Lakeland if the state’s determination of “substantial compliance” required us to overlook the abovementioned evidence that the City’s plant might still produce NPDES violations.
Finally, I disagree with the majority’s emphasis on the plaintiffs’ pursuit of attorneys’ fees. It is unsurprising that Lynch’s lawyer is interested in these fees — the whole purpose of fee-shifting statutes is to encourage attorneys to take cases that would otherwise be financially undesirable. That counsel is interested in compensation for his services does little to disparage the motivations of his client, Lynch, who seems reasonably to believe that the continued threat of prohibited toxic waste in his drinking water — even after the new plant was up and running — merits the intervention of the courts.
Although I believe that Lynch should be allowed to proceed to trial, I concur with the majority’s dismissal of the suit by Ailor on grounds of standing. As for the balance of the majority’s decision, I respectfully dissent.