Petition for Writ of Certiorari — Environmental Protection Agency v. City of Dallas, Texas (No. 08-252)

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\O“a premeo et US.

Q) 08-252 AUG 25 2008

No. 08- OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

ENVIRONMENTAL CONSERVATION ORGANIZATION,

Petitioner,

CITY OF DALLAS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS

FOR THE FirtH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

FREDERICK W. AppIsoNn, ITI

' Counsel of Record

No wan C. KNIGHT

MunscuH Haropt KoprF & Harr, PC.

3800 Lincoln Plaza

500 North Akard

Dallas, Texas 75201

(214) 855-7500

Counsel for Petitioner

217724 ce

COUNSEL PRESS

(800) 274-2321 * (800) 359-6859

QUESTIONS PRESENTED FOR REVIEW

Petitoner Environmental Conservation Organization

timely filed a Clean Water Act (“CWA”) citizen suit

against Respondent City of Dallas. Thereafter, the City

of Dallas separately negotiated and entered a Consent

Decree settlement with the federal and state

governments after the citizen suit- had been pending for

approximately two years.

Based on the Consent Decree, the district court and

United States Court of Appeals for the Fifth Circuit

dismissed the Environmental Conservation

Organization’s citizen suit. The questions presented for

review therefore are as follows:

1. Whether it violates the plain language of the

CWA to dismiss a timely, prior-filed citizen suit

based on a belated consent decree settlement

between the government and a CWA violator.

2. If a CWA citizen suit can be dismissed under

the above circumstances, whether dismissal on

grounds of mootness or res judicata is

improper if the CWA violator fails to

demonstrate its violations have ceased, or if

there is a possibility the violations continue.

CORPORATE DISCLOSURE STATEMENT

AND LIST OF PARTIES

Pursuant to Supreme Court Rules 14.1(a) and 29.6,

Petitioner Environmental Conservation Organization

states it does not have a parent corporation, and no

publicly held corporation owns 10% or more of the

Environmental Conservation Organizatior..

In addition to the parties listed in the caption, the

United States of America appeared as amicus curiae

in the proceedings before the United States Court of

Appeals for the Fifth Circuit.

iit

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .. i

CORPORATE DISCLOSURE STATEMENT

Phe hy go oe sy |. ii

pr PUN Bo yy |, ye rare ill

TABU OF APPENDED «ooo cccc ccs ccecses vii

TABLE OF CITED AUTHORITIES ......... viii

Ge PUTS EO NEAR fs viwawne civecvetvadvarsas 1

JURISDICTIONAL STATEMENT .......... 1

REE SEE UIIEIIEED ois v icevscnceceserse’s 2

STATEMENT OF THE CASE ............... 3

A. Implementation of the CWA ........... 3

B. The City Violated the CWA ............ 4

C. ECO’s Original Notice Letter .......... 5

D. ECO’s Revised Notice Letter .......... 6

E. The EPA Investigation ................ 6

Meo BG Ba nr eee! .

. Contents

The City’s Consent Decree ............

H. The City’s Motion for Summary

GN Fn bein cde cdma aeexeceanaees

I. ECO’s Appeal to the Fifth Circuit ......

REASONS FOR GRANTING THE PETITION ..

Bi Se vs so ieee a

B. A Substantive Issue in this Case Will Be

Resolved and the Public Interest Will Be

Served if this Court Establishes whether

the CWA should Be Applied Strictly to

Protect Prior-filed Citizen Suits ........

1. Congress Expressly Identified the

Limitations on CWA Citizen Suits ..

2. Case Authorities Embrace Strict

Application of the CWA Citizen Suit

PR 3 cos coun ceuseaeaseean

3. Jurisprudence Is Not Consistent

Regarding whether the Citizen Suit

Provision Should Be Applied

DEE cbs a sawas aes pam eeente

Contents

A Decision by this Court Will Resolve

the Substantive Issues in this Case

and Broader Public Interest

CS ik oe aww ccuw ck binteie an

C. The Fifth Circuit’s Mootness Standard

Conflicts with Controlling Authorities and

Was the Basis for the Erroneous

Dismissal of ECO’s Citizen Suit ........

Controlling Authorities Do Not

Support the Fifth Circuit’s Rule that

Plaintiffs Must Anticipatorily Rebut

SE. iV ahas denkkaowenewes

The Second, Fifth, and Eighth

Circuits Misread this Court’s

Precedents Regarding the Operation

OE IE cs cheeks cn eauewee

Resolution of the Proper Mootness

Standard Is Essential to Resolution

of this Case and Proper Enforcement

Oe I 6 sis ca bere eCencneeen

A Substantive Issue in this Case and a

Conflict between the Circuits Will Be

Resolved if this Court Establishes the

Proper Application of Res Judicata to

Prior-Filed Citizen Suits ..............

Page

Contents

Page

1. The Seventh Circuit Applies Res

Judicata in a Manner Consistent with

the CWA’s Objectives ............. 33

2. Other Circuits Do Not Embrace the

Proper Res Judicata Standard ..... 35

3. Resolution of the Circuit Split Is

Essential to Resolution of this Case

and Proper Enforcement of the

oS RRON ASE SAE bay gripe Monell angie yamine Ee 38

IEE. 05 ks 64 40s RRA SES ERA OES 40

vii

TABLE OF APPENDICES

Appendix Exhibit A — Opinion Of The United

States Court Of Appeals For The Fifth Circuit

FO WEN ig NO 6 bs ok vkev ct ceveeveebese

Appendix Exhibit B — Memorandum Opinion

And Order Of The United States District

Court For The Northern District Of Texas,

Dallas Division Filed April 26, 2007

vill

TABLE OF CITED AUTHORITIES

Page

Cases

Altamaha Riverkeepers v. City of Cochran,

162 F Supp. 2d 1368 (M.D. Ga. 2001) ... 17, 18, 19

Atlantic States Legal Foundation, Inc. v.

Eastman Kodak Co.,

933 F.2d 124 (2d Cir. 1991) .... 18, 19, 24, 27, 29-30

Atlantic States Legal Foundation, Inc. v.

Pan American Tanning Corp.,

998 F.3d 1017 (24 Cin, 1998) .. 2... cece wes 31

Atlantic States Legal Foundation, Inc. v.

Tyson Foods, Inc.,

SO7 F.2d T1IZS CLIC Cle, 1990)... ccc ccccccvcs 13

Boudreaux v. Swift Transp. Co.,

402 F.3d 536 (Sth Cir. 2005) ................ 25

Celotex Corp. v. Catrett,

Us See eT CE os oo areas baxwesceeeewie 25

Chesapeake Bay Foundation, Inc. v.

Gwaltney of Smithfield, Ltd.,

890 F-2d 690 (4th Cir. 1989) .:.............. 13

Christensen v. Harris County,

OD ee Ce 6 5b Koo ko ee vee 16

Cited Authorities

Page

Comfort Lake Ass'n v. Dresel Contracting, Inc.,

138 F.3d 351 (8th Cir. 1998) ............... 24, 26

DeFunis v. Odegaard,

EME EIEED overs vocccsccccenvecess 23

Envnronmental Conse: vation Organization v.

City of Datias,

516 FE. Supp. 2d 658 (N.D. Tex. 2007) ........ |

Environmental Conservation Organization v.

City of Dallas,

No. 3-08-CV-2951-BD, 2007 WI 4165917

(N.D. Tex. November 20, 2007) ............. 21

Environmental Conservation Organization v.

City of Dallas,

529 F.3d 519 (5th Cir. 2008) .............06- l

Freytag v. Commissioner,

EE coco ceccccccccrevcecs 16

Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC),

gee NL 13, 23, 28, 29

Friends of Milwaukee’s Rivers v.

Milwaukee Metropolitan Sewerage District,

382 F.3d 743 (7th Cir. 2004) ....26, 38, 34-35, 37-38

Cited Authorities

Page

Garcia v. United States,

ee eg EE 5.5 nb 0b 6 noe ch K0 bv edtr es Wane 15

Garner v. Giarrusso,

571 F.2d 1330 (6th Cir. 1978) ............... 33-34

Griffin v. Oceanic Contractors, Inc.,

i I ie 004 eevee ore ese ven eis 15

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc.,

Ee Se NE os 6 oS he roc bewcscveweee 22, 23

Kennedy Building Associates v. Viacom, Inc.,

BIO Fae Fe I OO bbe vadccevaes¥eccaes 31

Liberty Mutual Insurance Co. v. Horton,

2716 F.2d 148 (5th Cir, 1960) ... ccc cecscess 16

Northwest Power Products, Inc. v.

Omark Industries,

57G F-2e Ge (Gt OFF. 197B) .. nc ccc ccccess 16

Natural Resource Defense Council, Inc. v.

Loewengart & Co.,

776 F. Supp. 996 (M.D. Pa. 1991) ....... 17, 18, 19

Sierra Club v. Coca-Cola Corp.,

673 F. Supp. 1555 (M.D. Fla. 1987) ......... 17, 19

Cited Authorities

Page

Test Masters Education Services, Inc. v. Singh,

428 F.3d 559 (5th Cir. 2005) ................ 32-83

Texans Uniied for a Safe Economy Education

Fund v. Crown Central Petroleum,

Bre De COW (OUR GAT. BOUO) cccccccccccccces 7

United States v. Concentrated Phosphate

Export Ass’n,

SI REED ocevvdcwccceeervetecvec 23

United States v. W.T. Grant Co.,

MEETS fc vciceccccveveoccsens 22, 23

Statutes

ics coucnabiandwes ven aee passim

i ME os cevebesacbeveeveebesd tee 2

sao ptasai vt dseenes eneneen 10

NS og a a dine ow 6a wee a ROE wee ee 13

4 ee passim

Other Authorities

S. Rep. 92-414, reprinted in

oo ER See ak Yo nr 12, 21

Petitioner Environmental Conservation

Organization (“ECO”) respectfully petitions the Court

for a writ of certiorari, because its timely, prior-filed

citizen suit was erroneously dismissed when the

Respondent City of Dallas (the “City”) entered into a

Consent Decree with the government in a subsequent

lawsuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at Environmental

Conservation Organization v. City of Dallas, 529 F.3d

519 (5th Cir. 2008) and reproduced herein as Appendix

(“Appx.”) Exhibit A. The opinion of the district court is

reported at Environmental Conservation Organization

v. City of Dallas, 516 F. Supp. 2d 653 (N.D. Tex. 2007)

and reproduced herein as Appx. Exhibit B.

JURISDICTIONAL STATEMENT

The City continuously has violated requirements

under the CWA since 1997. ECO therefore filed a CWA

section 505, 33 U.S.C. § 1365, citizen suit against the

City in the district court. The district court entered

summary judgment on the grounds of res judicata,

dismissing ECO’s citizen suit on April 26, 2007. See Appx.

Exhibit B. ECO appealed this dismissal to the United

States Court of Appeals for the Fifth Circuit on

May 17, 2007.

On May 27, 2008, the Fifth Circuit issued an opinion

vacating the district court’s summary judgment ruling

and remanding this matter, but it also ruled ECO’s citizen

suit be dismissed as moot. See Appx. Exhibit A. ECO

did not seek rehearing of the Fifth Circuit’s ruling, and

it has not sought extensions of time to file its Petition

for Writ of Certiorari in this Court.

Under 28 U.S.C. § 1254(1), this Court has

jurisdiction to review, on a writ of certiorari, the Fifth

Circuit’s May 27, 2008 judgment.

STATUTE INVOLVED

The relevant statute in this matter is CWA section

505(a), 33 U.S.C. § 13865(a), which provides:

(a) Authorization; jurisdiction

... any citizen may commence a civil action on

his own behalf—

(1) against any person (including (i) the

United States, and (ii) any other governmental

instrumentality or agency to the extent

permitted oy the eleventh amendment to the

Constitution) who is alleged to be in violation

of (A) an effluent standard or limitation under

this chapter or (B) an order issued by the

Administrator or a State with respect to such

a standard or limitation. ...

The district courts shall have jurisdiction,

without regard to the amount in controversy

or the citizenship of the parties, to enforce

such an effluent standard or limitation, or such

an order, ... and to apply any appropriate

civil penalties under section 1319(d) of this

title.

(b) Notice

No action may be commenced—

(1) under subsection (a)(1) of this section—

(A) prior to sixty days after the plaintiff has

given notice of the alleged violation (i) to the

Administrator, (ii) to the State in which the

alleged violation occurs, and (iii) to any alleged

violator of the standard, limitation, or order,

(B) if the Administrator or State has

commenced and is diligently prosecuting a

civil or criminal action in a court of the United

States, or a State to require compliance with

the standard, limitation, or order... .

STATEMENT OF THE CASE

A. Implementation of the CWA

ECO is an environmental watch group the members

of which are concerned with environmental health and

wellbeing, including the health and wellbeing of lakes,

streams, rivers, and other water bodies in the southwest

United States.'! The CWA and related regulations

' Record on Appeal (“ROA”), pp. 21, 84-87, 188, 189-192. As

permitted by Supreme Court Rule 12.7, ECO cites the ROA

maintained by the clerks of the lower courts.

impose standards and limitations regarding the

discharge of materials and pollutants into such water

bodies. .

The United States Environmental Protection

Agency (“EPA”), or a state acting on behalf of the EPA,

implements the CWA, in part, by issuing municipalities

a Separate Storm Sewer System Permit (“MS4

Permit”).2 A MS4 Permit dictates the manner in which

municipalities must manage, monitor, and prevent

discharges of pollutants into the municipalities’ storm

sewer systems, which often feed into surrounding water

bodies.’

B. The City Violated the CWA

On March 28, 1997, the EPA issued the City MS4

Permit number TXS000701 (the “City’s Permit”).* The

City’s Permit was accompanied by a lengthy document

known as a Storm Water Management Plan (““SWMP”),

which sets forth in exacting detail several hundred

ongoing “tasks” the City was obligated to complete to

comply with its Permit and the CWA.®

Since the City’s SWMP went into effect in 1997, the

City has failed to fulfill myriad obligations found in the

* See generally 33 U.S.C. § 1342; ROA, pp. 1938-1968.

* ROA, pp. 1938-1968.

4 ROA, p. 1938.

® ROA, pp. 2127-2327.

SWMP* The City also has engaged in the illicit discharge

of pollutants into water bodies without a permit, also in

violation of the CWA.’

C. ECO’s Original Notice Letter

_ After investigating the City’s violations, ECO sent

the City a CWA “Notice Letter” on September 8, 2003.’

In the Letter, ECO advised the City of its ongoing CWA

violations and informed it ECO would proceed with a

CWA citizen suit if the violations were not remedied

within sixty days of the Notice Letter.’

Pursuant to CWA regulations, ECO copied the

Administrator of the EPA; the EPA regional office with

responsibility for Texas; and the Texas Commission on

Environmental Quality (“TCEQ”), Texas’s state

environmental agency. By statute, if the EPA or TCEQ

had initiated an enforcement action by filing a civil or

criminal action in federal or state court during the sixty-

day notice period, ECO’s citizen suit would have been

preempted. See 33 U.S.C. § 1365(b)(1)(B). Neither the

EPA nor the TCEQ initiated such an enforcement action

during the notice period.'°

6 ROA, pp. 26-46, 1644-1649, 1772-1783, 1816-1832, 1971-

2056, 2060-2118, 2122-2124.

7 ROA, pp. 26-46, 1644-1649, 1772-1783, 1816-1832, 1971-

2056, 2060-2118, 2122-2124.

® ROA, pp. 152-153.

10 ROA, p. 21.

D. ECO’s Revised Notice Letter

On October 9, 2008, approximately one month after

ECO sent its original Notice Letter, ECO sent the City

a revised Notice Letter.'' ECO again notified the City of

the CWA violations, including violations of approximately

150 specific sections of the City’s SWMP” ECO further

notified the City that ECO would proceed with a CWA

citizen suit if the City did not address these violations."

Once again, ECO copied the EPA Administrator, the

EPA regional office with responsibility for Texas, and

the TCEQ so the agencies would be aware of the City’s

violations. Neither the EPA nor the TCEQ initiated

an enforcement action within the sixty-day notice

period, and no agency contacted ECO to signal an

interest in investigating or prosecuting the City’s

violations.'°

E. The EPA Investigation

On November 19, 2003 (approximately two-and-a-

half months after ECO sent the City and EPA the

original Notice Letter and one-and-a-half months after

ECO sent the revised Notice Letter), the EPA, without

" ROA, pp. 154-171.

ROA, pp. 154-171.

* Id.

4 ROA, p. 156.

ROA, p. 21.

ECO’s knowledge, began investigating City facilities

regarding the types of violations ECO identified in its

Notice Letters.’® The investigation did not constitute

an enforcement action under the CWA citizen suit

provision,’ and the EPA did not otherwise institute an

enforcement action during the sixty-day notice period.”

The notice period therefore lapsed, which enabled ECO

to move forward with a CWA citizen suit against the

City.

FE ECO’s Citizen Suit

On December 9, 2003 (three months after ECO sent

its original Notice Letter and two months after ECO

sent the revised Notice Letter), ECO filed a citizen suit

against the City under CWA section 505(a), 33 U.S.C.

§ 1365(a).'? ECO asserted claims the City violated the

requirements of its SWMP (the “SWMP claims”) and

that the City was engaging in the illicit discharge of

pollutants into surrounding water bodies (the “illicit

discharge claims”).”°

16 See “Appendix,” filed May 11, 2006 (not independently

numbered in the ROA), Exhibit 2, Cover Letter, p. 1 and

Compliance Order, p. 12.

17 See, e.g., Texans United for a Safe Econ. Educ. Fund v.

Crown Cent. Petroleum, 207 F.3d 789, 794-95 (5th Cir. 2000)

(recognizing that government action short of an enforcement

action in state or federal court will not preempt a citizen suit).

18 ROA, p. 21.

19 ROA, pp. 19-48.

20 ROA, pp. 19-48.

G. The City’s Consent Decree

On February 6, 2004 (five months after ECO sent

the City and EPA the original Notice Letter and

approximately two months after ECO filed its citizen

suit against the City), the EPA initiated an

administrative action against the City by serving an

administrative compliance order (“ACO”) covering some

of the City’s CWA violations.”! This administrative action

was not a “court action” within the meaning of the CWA

citizen suit provision,” and no further action was taken

under the ACO.

On May 10, 2006 (more than two years after ECO

filed its citizen suit and two-and-a-half years after ECO

sent the City and EPA the original Notice Letter), the

state of Texas (which later had become active in this

matter), the United States Attorney, acting on behalf

of the EPA (collectively, the “Government”), and the City

formally agreed to settle the administrative proceeding

against the City.” The parties memorialized their

settlement in a Consent Decree.”

Also on May 10, 2006, the Government filed a

separate CWA lawsuit in the district court against the

21 See “Appendix,” filed May 11, 2006 (not independently

numbered in the ROA), Exhibit 2.

2 See n.17, supra.

2 ROA, pp. 1603-1604, 1670-1715.

* Id.

City. On the same day, the Government lodged the

Consent Decree in that lawsuit.”

The district court formally entered the Consent

Decree on August 28, 2006. The Consent Decree was

entered approximately three years after ECO sent the

City and EPA the original Notice Letter; it was entered

after ECO’s citizen suit against the City had been

pending for more than two-and-a-half years, and after

ECO incurred hundreds of thousands of dollars in fees

and costs prosecuting its CWA citizen suit against the

City.”

H. The City’s Motion for Summary Judgment

On October 13, 2006, the City moved for summary

judgment dismissal of ECO’s remaining SWMP claims.”’

The City contended its Consent Decree either mooted

ECO’s claims or warranted dismissal under the doctrine

of res judicata.” On April 26, 2007, the district court

* See “Appendix,” filed May 11, 2006 (not numbered in the

ROA), Exhibit 3; ROA, pp. 1603-1604, 1670-1715.

26 ROA, pp. 1710, 2478. ECO’s claim for attorneys’ fees and

costs against the City was denied in the district court. The

district court’s ruling is on appeal to the Fifth Circuit in a case

styled Environmental Conservation Organization v. City of

Dallas, Appeal No. 07-11247.

27 ROA, pp. 1590-1592. ECO’s illicit discharge claims

aiready had been dismissed for reasons not at issue. ROA,

pp. 1425-1426.

8 ROA, pp. 1590-1592.

issued a Memorandum Opinion and Order (see Appx.

Exhibit B) granting the City’s summary judgment

motion on the grounds of res judicata, and the court

simultaneously dismissed ECO’s citizen suit.

I. ECO’s Appeal to the Fifth Circuit

ECO appealed the district court’s dismissal of its

citizen suit to the Fifth Circuit, pursuant to 28 U.S.C.

§ 1291. In the appeal, ECO contended: (1) strict

construction of the CWA’s citizen suit provision would

not allow dismissal of a timely, prior-filed citizen suit

based on a belated government lawsuit and consent

decree, and (2) even if the CWA could be construed to

allow dismissal under such circumstances, neither

mootness nor res judicata could justify dismissal of

ECO’s citizen suit, because the City failed to prove its

violations have ceased (or rebut affirmative evidence its

violations continue).

The Fifth Circuit resolved the appeal by vacating

the district court’s holding that res judicata justified

dismissal of ECO’s citizen suit. Indeed, the Fifth Circuit

acknowledged a split between the circuits regarding the

proper application of res judicata to prior-filed citizen

suits, and instead opted to resolve the appeal based on

mootness.

The Fifth Circuit held ECO’s citizen suit was moot.

In so doing, the court applied a mootness standard that

is not grounded in this Court’s precedents, but based

on a novel construction of mootness premised on

questionable authorities from other circuits. The

practical effect of the Fifth Circuit’s holding is that it

excused the City form bringing forth actual evidence

its violations had ceased as a pre-condition to dismissal.

ECO seeks review of the Fifth Circuit’s holding,

because this case was erroneously decided, and ECO’s

citizen suit should be allowed to proceed. ECO

respectfully submits that resolution of these matters will

require the Court to resolve misapplications of the CWA

and conflicts between the circuits on controlling legal

issues that jeopardize the objectives of the CWA.

REASONS FOR GRANTING THE PETITION

A. Introduction

The CWA has the vital policy objectives of

“restor{ing] and maintainfing] the chemical, physical,

and biological integrity of the Nation’s waters.”

33 U.S.C. § 1251(a). To ensure these objectives are

accomplished, Congress created an enforcement scheme

to ensure robust enforcement of the CWA through a

cooperative relationship between the federal

government, state governments, and private citizens.

The CWA citizen suit provision, 33 U.S.C. § 1365, best

reflects this delegation. Therein, Congress gave federal

and state governments authority to institute civil or

criminal actions to enforce CWA mandates, but in the

absence of timely enforcement actions, granted private

citizens unfettered authority to prosecute CWA citizen

suits. See generally 33 U.S.C. § 1865(b).

Indeed, Congress’s reverence and desire for the

citizen enforcement mechanism is demonstrated in the

CWA’s legislative history, wherein Congress indicated,

“(cjourts should recognize that in bringing legitimate

actions under [the CWA] citizens would be performing

a public service ....” S. REP 92-414, at 72, reprinted in

1972 U.S.C.C.A.N. 3668, 3747.

The Fifth Circuit’s holding in this matter, and

inconsistent authorities on relevant legal issues from

various circuits, jeopardize the congressionally created

enforcement scheme in the CWA. For instance, the Fifth

Circuit held the plain language of the CWA citizen suit

provision allows dismissal of a prior-filed citizen suit even

when the government fails to bring a timely enforcement

action as required by the CWA. This is contrary to the

plain language of the CWA and diminishes a citizen’s

statutorily created right to prosecute a suit under the

CWA.

Additionally, the Fifth Circuit held ECO’s timely filed

citizen suit was moot in light of the Government and

City’s belated Consent Decree, although the City never

submitted evidence its CWA violations have ceased.

The Fifth Circuit accepted the City’s contention that

its purportedly “involuntary” entry of the Consent

Decree was evidence that mooted ECO’s citizen suit.

This reflects a new mootness standard that conflicts with

this Court’s precedents and established federal

practice.

Finally, the Fifth Circuit chose not to address the

proper application of res judicata in this case, but it

noted that holdings from other circuits conflict regarding

whether res judicata can justify dismissal of a prior-filed

citizen suit without any factual evaluation regarding

whether violations continue. The circuits that hold res

judicata should be applied mechanically to permit

dismissal, without any factual inquiry, undermine the

CWA’s objectives to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters”,

33 U.S.C. § 1251(a), and discourage robust enforcement

of the CWA.

This Court has not, but should, settle these

important issues and conflicts between the circuits,

because Congress’s intended operation of the CWA is

at risk. Moreover, the issues are not merely academic;

they directly bear on the merits of ECO’s citizen suit

and the impropriety of the lower courts’ dismissal of the

suit.”

B. A Substantive Issue in this Case Will Be Resolved

and the Public Interest Will Be Served if this

Court Establishes whether the CWA should Be

Applied Strictly to Protect Prior-filed Citizen

Suits

The CWA authorizes the state and federal

governments to institute enforcement actions against

CWA violators. See 33 U.S.C. § 1365(b)(1)(B); 33 U.S.C.

§ 1319(b). Indeed, the state and federal governments

“ A corollary to these issues is the Fifth Circuit’s holding

that ECO’s claims for civil penalties are moot. See Appx. Exhibit

A, p. 22a. This implicates splits between the circuits and a

conflict with this Court’s precedents that should be resolved.

Compare Atl. States Legal Found., Inc. v. Tyson Foods, Inc., 897

F.2d 1128, 1135 (11th Cir. 1990), Chesapeake Bay Found., Inc. v.

Gwaltney of Smithfield, Lid., 890 F.2d 690, 696-97 (4th Cir. 1989),

and Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),

528 U.S. 167, 192-94 (2000), with Appx. Exhibit A, pp. 21a-22a.

have the initial, though not exclusive, responsibility for

enforcing the CWA, because CWA section 505(b)(1)(A),

33 U.S.C. § 1365(b)(1)(A), obligates private citizens to

give states and the federal government sixty-days notice

before filing a citizen suit.

If either level of government institutes an

enforcement action before expiration of the notice

period, a citizen suit is preempted. See 33 U.S.C.

§ 1365(b)(1)(B). The CWA’s plain language makes clear,

however, the federal and state governments must act

timely to preserve their status as the initial enforcers

of the CWA, because upon expiration of the sixty-day

notice period, their enforcement authority becomes

equally vested in private citizens. /d.

Here, the Government failed to initiate an

enforcement action within the sixty-day notice period.

Accordingly, consistent with the express language of the

CWA, ECO brought its citizen suit against the City.

ECO followed the strict provisions for notice and

timely sued the City. The district court and Fifth Circuit

nevertheless held ECO’s citizen suit should be dismissed

based on entry of the Government’s belated Consent

Decree.

Authoritative guidance from the Court is necessary

to resolve whether the lower courts’ holdings are

inconsistent with the express language of the CWA

citizen suit provision, and the Court’s prior rulings.

1. Congress Expressly Identified the Limitations

on CWA Citizen Suits

It is well settled that the express language of a

statute is the best evidence of congressional intent.

See Garcia v. United States, 469 U.S. 70, 75 (1984) (“only

the most extraordinary showing of contrary intentions

... would justify a limitation on the ‘plain meaning’ of

the statutory language.”); Griffin v. Oceanic

Contractors, Inc., 458 U.S. 564, 571 (1982) (“There is,

of course, no more persuasive evidence of the purpose

of a statute than the words by which the legislature

undertook to give expression to its wishes.”).

Accordingly, ECO has relied on the express

language of the CWA citizen suit provision, which

provides only for the following limited restraints on a

private citizen’s right to prosecute a CWA citizen suit:

(1) the citizen must give sixty-days’ notice of the alleged

violation before filing suit, and (2) the citizen cannot file

suit after the EPA Administrator or a state government

has commenced and is diligently prosecuting a suit

against a CWA violator. See 33 U.S.C. § 1365(b)(1).

Congress imposed no further limitations on a

citizen’s right to prosecute a citizen suit. Jd. Accordingly,

ECO contends the plain language of the citizen suit

provision precludes courts from employing judicially

created mootness or res judicata doctrines to reach a

contrary result.

Rules of statutory construction should compel this

conclusion, because courts “‘are not at liberty to create

999

an exception where Congress has declined to do so.

Freytag v. Comm ’r, 501 U.S. 868, 874 (1991) (quoting

Hallstrom v. Tillamook County, 493 U.S. 20, 27 (1989)).

Moreover, “[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) (quoting Raleigh & Gaston R.R. Co. v. Reid, 20

L. Ed. 570 (1872)).*

Indeed, courts “should be circumspect in adopting

doctrines that have even the appearance of disturbing

a congressional balance of remedies.” N.W. Power

Prods., Inc. v. Omark Indus., 576 F.2d 83, 90 (5th Cir.

1978). Although “federal courts have power to construe

and apply the laws of Congress, they have no power to

rewrite, expand, or contract them.” Liberty Mut. Ins.

Co. v. Horton, 275 F.2d 148, 153 (5th Cir. 1960).

2. Case Authorities Embrace Strict Application

of the CWA Citizen Suit Provision

In light of the foregoing legal principles, dismissal

of a properly filed citizen suit because of belated

government action is contrary to the CWA’s plain

language and Congress’s corresponding intent. One

federal district court has recognized as much by holding:

Section 1365 clearly provides that a citizen’s

suit can be commenced if the government does

* ECO contends the citizen suit provision limits the manner

in which government action can supersede or usurp a citizen

suit. To conclude otherwise requires the assumption that

Congress, which carefully defined when a citizen will be vested

with authority to enforce the CWA, legislated by omission when

that authority can be diminished.

not file its own lawsuit within sixty days of the

citizen’s notice of its intent to do so. If

Congress had intended a citizen’s suit to be

dismissed when the government took

initiative against the polluter at any

subsequent time, it could have written the

citizen's surt provision that way.

Natural Res. Def Council, Inc. v. Loewengart & Co.,

776 EF Supp. 996, 1000 (M.D. Pa. 1991) (emphasis added).

Likewise, in Altamaha Riverkeepers v. City of Cochran,

a district court recognized that under a plain reading of

the CWA’s statutory language, a subsequent consent

decree does not bar a prior-filed citizen suit. 162 F. Supp.

2d 1368, 1373 (M.D. Ga. 2001).

Another trial court addressed this issue in Srerra

Club v. Coca-Cola Corp., 673 F. Supp. 1555 (M.D. Fa.

1987). There, the court held that a later-executed

consent decree did not warrant dismissal of a prior-filed

citizen suit, even though the settling parties to the

consent decree (the government and a CWA violator)

actually had their suit consolidated with the prior-filed

citizen suit. 7d. at 1557. The court reached this holding

after it held (in the same opinion), it was going to enter

the consent decree between the government and CWA

violator. Jd.

3. Jurisprudence Is Not Consistent Regarding

whether the Citizen Suit Provision Should Be

Applied Strictly

Despite such authority, and given the absence of

authoritative guidance from this Court, no consistent

jurisprudence has evolved regarding whether the CWA’s

plain language should be applied strictly to protect

prior-filed citizen suits. For instance, the district court

in this case called into question the holdings in both

Natural Resources Defense Council and Altamaha

Riverkezpers, because the district court did not believe

the holdings accounted for the purportedly “preclusive

effect” of a belated, court-entered consent decree.

See Appx. Exhibit B, p. 38a.

This position is not supported by a close reading of

the cases. In Natural Resources Defense Council, a

CWA violator negotiated a consent decree with the

government after a private citizei filed a timely CWA

citizen suit. 776 F. Supp. at 999-1000. The CWA violator

therefore contended the later-executed consent decree

necessitated dismissal of the prior-filed citizen suit. Jd.

The court in Natural Resources Defense Council,

however, was not indifferent to preclusive effect; rather,

it offered a general principle of law that applied

regardless whether a consent decree had been entered.

This contention appears accurate because the court

reached its holding only after rejecting the holding from

Atlantic States Legal Foundation, Inc. v. Eastman

Kodak Co., 933 F:2d 124 (2d Cir. 1991).

In Atlantic States Legal Foundation, Inc., the

Court of Appeals for the Second Circuit dismissed a

prior-filed citizen suit because the CWA violator in that

case entered a settlement and related criminal plea

agreement that was entered as a final judgment. See

933 F.2d at 126. When the court in Natural Resources

Defense Council analyzed the holding from Atlantic

States Legal Foundation, Inc., it did not give any

indication the settlement or plea agreement in Atlantic

States Legal Foundation, Inc. changed the analysis

whether subsequent government action bars a prior-

filed citizen suit.

The Natural Resources Defense Council court

rejected the holding, because regardless of the status

of a later-executed settlement or similar agreement:

“If Congress had intended a citizen’s suit to be

dismissed when the government took initiative against

the polluter at any subsequent time [to the notice

period ], it cowld have written the citizen’s suit provision

that way.” 776 F. Supp. at 1000 (emphasis added).

Similarly, in Altamaha Riverkeepers, although a

consent decree had been proposed to resolve the case,

the court held: “although the [state environmental

agency] has now proposed a Consent Order and fined

the [defendant] for noncompliance with its [CWA] permit,

those actions do not bar this citizen suit.” 162 F. Supp.

2d at 1373. The court in Sierra Club v. Coca-Cola Corp.

did not attribute “preclusive effect” to the consent

decree in that case either, because the court approved

entry of the consent decree in the same opinion in which

it authorized the prior-filed citizen suit to proceed.

673 F. Supp. at 1557.

Based on these authorities, and a plain reading of

the CWA, ECO contends later government action cannot

justify dismissal of a prior-filed citizen suit. Admittedly,

it would be appropriate for a judge in the prior-filed

citizen suit to be made aware of and understand the

terms of a related consent decree when fashioning relief.

See, e.g., Natural Res. Def Councit, 776 F. Supp. at 1000

(adopting the position that “any overlap with the

[government] proceedings can be handled at the

remedial stage of [a prior-filed] lawsuit when the

penalties and other provisions of the [government’s]

consent decree can be coordinated with whatever relief

. order[ed in the citizen suit].”).*! However, the

foregoing authorities nonetheless stand for the

proposition that the CWA citizen suit provision should

be construed strictly, and in accordance with its plain

language, which prohibits dismissal of a prior-filed

citizen suit.

4. A Decision by this Court Will Resolve the

Substantive Issues in this Case and Broader

Public Interest Concerns

The proceedings below make clear that courts do

not have a uniform view on this matter. CWA plaintiffs,

therefore, have no clear guidance at the outset of CWA

citizen suits whether belated government action may

retroactively preempt their prior-filed suits. This injects

far too much uncertainty into the operation of the CWA’s

citizen suit provision. This uncertainty is not consistent

with the reverence Congress displayed for citizen

enforcement of the CWA when it admonished that

“{cjourts should recognize that in bringing legitimate

actions under [the CWA] citizens would be performing

a public service....” S. REP 92-414, at 72, reprinted in

1972 U.S.C.C.A.N. 3668, 3747.

3! This approach reconciles a strict application of the CWA’s |

plain language with the constitutional] mootness concerns the

Fifth Circuit raised in its opinion in this case. See Appx. Exhibit

A, p. 12a.

It is essential to appreciate that CWA plaintiffs’

uncertainty regarding whether later-government action

might undermine their prior-filed citizen suit is not

tantamount to the uncertainty all litigants face when

initiating lawsuits. CWA. plaintiffs, unlike litigants in

general, do not sue for their personal interests. Instead,

CWA plaintiffs accommodate Congress’s appeal for

private citizens to undertake a private burden and

potentially, as was the case here, incur considerable

expense, to prosecute suits in the public interest.

Congress even attempted to incentivize private

citizen enforcement with a fee-shifting provision in the

CWA. See 33 U.S.C. § 1865(d) (“The court, in issuing

any final order in any action brought pursuant to this

section, may award costs of litigation (including

reasonable attorney and expert witness fees) to any

prevailing or substantially prevailing party ... .”).

Contrary to this congressional incentive and appeal for

private enforcement of the CWA, subjecting potential

CWA plaintiffs to uncertainty because of the unsettled

state of the law will operate as disincentive for them to

prosecute citizen suits.”

ECO respectfully requests the Court to allow the

writ in this matter and provide authoritative guidance

regarding whether the CWA’s citizen suit provision

should be applied strictly to protect prior-filed citizen

% This is compounded by authorities that hold CWA

plaintiffs cannot recover attorneys’ fees when belated

government action leads to dismissal of their prior-filed citizen

suits. See, e.g., Environmental Conservation Organization v. City

of Dallas, No. 3-03-CV-2951-BD, 2007 WL 4165917, *2 (N.D.

Tex. November 20, 2007).

suits. Otherwise, citizen enforcement of the CWA will

be jeopardized by uncertainty regarding operation of

the citizen suit provision, and Congress’s desire for

robust enforcement of the CWA to “restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters,” 33 U.S.C. § 1251(a), will be thwarted.

C. The Fifth Circuit’s Mootness Standard Conflicts

with Controlling Authorities and Was the Basis

for the Erroneous Dismissal of ECO’s Citizen

Suit

The Fifth Circuit improperly adopted a new

mootness standard. Mootness is grounded in the

constitutional principle that federal courts have

jurisdiction over only actual cases and controversies.

See Gwaltney of Smithfield, Ltd., v. Chesapeake Bay

Found., Inc., 484 U.S. 49, 66 (1987). The Court, with

apparent uniformity, has treated mootness similar to.an

avoidance or affirmative defense; accordingly, a

defendant has the burden to prove mootness when

parties dispute whether a continuing case or

controversy can sustain a suit.*

For instance, in United States v. W.T. Grant Co., this

Court held: “The case may nevertheless be moot if the

defendant can demonstrate that there is no reasonable

expectation that the wrong will be repeated.” 345 U.S.

*% ECO is not suggesting that mootness, like affirmative

defenses, can be waived if not pleaded. ECO only notes that

this Court historically has placed the burden of proving

mootness on defendants, which is similar to the burden

defendants have to prove affirmative defenses.

629, 633 (1953) (emphasis added). In United States v.

Concentrated Phosphate Export Ass’n, this Court held

that it was a defendant’s obligation to bring forth

evidence that a lawsuit was moot. 393 U.S. 199, 203

(1968).

In Gwaltney of Smithfield, Ltd., the Court held:

“In seeking to have a case dismissed as moot... . the

defendant’s burden “is a heavy one.’.... The defendant

must demonstrate that it is ‘absolutely clear that the

allegedly wrongful behavior could not reasonably be

expected to recur.” 484 U.S. at 66 (quoting WT Grant

Co., 345 U.S. at 633 and Concentrated Phosphate Export

Ass’n, Inc., 393 U.S. at 203) (emphasis added).

In Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., the Court held:

“The ‘heavy burden of persua[ding]’ the court that the

challenged conduct cannot reasonably be expected to

start up again lies with the party asserting mootness.”

528 U.S. at 189 (quoting Concentrated Phosphate Export

Ass’n, 393 U.S. at 203) (emphasis added).*

4 The only discernible exception to this principle appears

to be that the Court has dismissed suits as moot when both

parties to the suit concede the underlying illegal conduct ceased.

See, e.g., DeFunis v. Odegaard, 416 U.S. 312, 317 (1974)

(“all parties agree that [plaintiff] is now entitled to [the relief

he requested]. A determination by this Court of the legal issues

tendered by the parties is no longer necessary to compel that

result, and could not serve to prevent it.”) (emphasis added).

Here, by contrast, ECO has been adamant that the un-rebutted

summary judgement evidence illustrates the City’s violations

are ongoing, and ECO never has conceded the Consent Decree

resolves the City’s violations.

Notwithstanding these authorities, the Fifth Circuit,

purportedly following holdings from the Second and

Eighth Circuits,® has formulated a new mootness

standard. The Fifth Circuit places the burden on

plaintiffs to anticipatorily rebut the application of

mootness, even when a defendant has not propounded

evidence raising the prospect of mootness. This new

standard is not consistent with, nor grounded in, this

Court’s precedents or federal practice.*

% See Atl. States Legal Found., Inc., 933 F.2d at 128; Comfort

Lake Ass'n v. Dresel Contracting, Inc., 138 F.3d 351, 355 (8th Cir.

1998).

% The Fifth Circuit’s adoption of this novel standard in

this case is particularly troubling, because the court reviewed

the summary judgment record and concluded ECO’s summary

judgment evidence was probative of the City’s past CWA

violations, but not ongoing violations. See Appx. Exhibit A, pp.

17a-18a. In reaching this conclusion, the court overlooked that

at the time ECO submitted its summary judgment evidence in

November 2006, the evidence reflected the City’s CWA

violations existed before and after suit was filed. The Fifth

Circuit therefore should have viewed the summary judgment

evidence from a retroactive perspective, not from the

perspective that existed when the Fifth Circuit issued its

opinion in this matter over a year after ECO submitted its

summary judgment evidence. The Fifth Circuit also overlooked

that even after the Consent Decree was entered, the City failed

to produce in discovery compliance documents ECO requested,

which should have existed if the City had been complying with

the CWA. See ROA, p. 1645. The absence of these compliance

documents was probative of the City’s ongoing non-compliance.

These issues go to both the impropriety of the Fifth Circuit’s

ruling (i.e. as the non-movant, ECO was entitled to have all

(Cont'd)

1. Controlling Authorities Do Not Support the

Fifth Circuit’s Rule that Plaintiffs Must

Anticipatorily Rebut Mootness

In the lower courts, ECO contended that the City,

not ECO, had the burden of proof regarding mootness.*”

This was particularly so given the City raised mootness

as a basis for summary judgment dismissal of ECO’s

citizen suit.

It is well settled that the party moving for summary

judgment has the initial burden of proof. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). This is

reinforced by the fact that the City treated mootness

as an affirmative defense and even amended its Answer

in ECO’s citizen suit to assert the defense after the

Consent Decree was entered.*

Notwithstanding that proper application of this

Court’s precedents and the rules of practice excused

ECO from any obligation to anticipatorily rebut

mootness, ECO submitted evidence of the City’s ongoing

CWA violations in the summary judgment record.*?

(Cont’d)

facts and inferences resolved in its favor, see Boudreaux v. Swift

Transportation Co., 402 F.3d 536, 540 (5th Cir. 2005)) and an

unsettled matter regarding the proper method of appellate

review in cases of this kind.

37 See ROA pp. 1634, 1638, 1640, 1643-44.

38 See ROA, pp. 1530-1542, 1573.

® See ROA, pp. 1644-1649.

Ongoing violations demonstrate not only that a

defendant’s violations have not ceased, but also, that

they may recur. Cf Friends of Milwaukee's Rivers v.

Milwaukee Metropolitan Sewerage District, 382 b.3d

743, 764-65 (7th Cir. 2004). Even in the face of this

evidence, the City never submitted any rebuttal

evidence to demonstrate its CWA violations had ceased.”

The City instead offered the conclusory contention that

its Consent Decree operated as proof the City’s

violations had ended as a matter of law."’

Proper respect for this Court’s precedents and the

rules of pratice should have compelled the Fifth Circuit

to reject the City’s unsubstantiated mootness claim.

Instead, the Fifth Circuit followed the Second and

Eighth Circuits and adopted an entirely new principle

of mootness whereby ECO purportedly had the burden

to anticipatorily rebut the application of mootness by

“prov[ing] that there is a realistic prospect that the

violations alleged in its complaint [would] continue

notwithstanding the [C]Jonsent [Djecree.” See Appx.

Exhibit A, p. 15a.

2. The Second, Fifth, and Eighth Circuits

Misread this Court’s Precedents Regarding

the Operation of Mootness

The Fifth Circuit adopted the foregoing, novel

mootness doctrine by relying on the Eighth Circuit’s

holding in Comfort Lake Ass’n v. Dresel Contracting,

See ROA, pp. 1640-1644.

*) See, e.g., ROA pp. at 2414.

which had been based on language from the Second

Circuit’s holding in Atlantic States Legal Foundation,

Inc. v. Eastman Kodak Co. The Fifth Circuit read these

opinions to stand for the proposition that when a

defendant “voluntarily” ceases illegal conduct while a

CWA citizen suit is pending, the mootness principles

historically articulated by this Court apply (i.e. the

defendant has the heavy burden of establishing it is

absolutely clear its wrongful conduct could not

reasonably be expected to recur). If, however, the

defendant ceases illegal conduct because of what the

Fifth Circuit apparently considers “involuntary” means

(i.e. by entry of a consent decree), then according to the

Fifth Circuit, a less stringent mootness standard should

apply, which imposes the burden on a plaintiff to

anticipatorily rebut the application of mootness.®

The Fifth Circuit applied the less stringent standard

in this case, reasoning that the City did not “voluntarily”

discontinue its CWA violations. According to the Fifth

Circuit, the City was compelled, “involuntarily,” to

discontinue the violations by its Consent Decree with

the Government.

This voluntary versus involuntary dichotomy is not

in keeping with this Court’s precedents. Although this

Court often has discussed mootness in factual contexts

where a defendant voluntarily discontinued illegal

conduct, the Court never has held a voluntary versus

involuntary dichotomy (in the manner the Fifth Circuit

* Appx. Exhibit A, pp. 13a-14a.

43 Td.

uses the concept) is relevant to the application of the

mootness doctrine. The most compelling evidence of this

is the Court’s holding in Friends of the Earth, Inc. »v.

Laidlaw Environmental.

In Laidlaw, a CWA defendant (as did the City here)

entered into a settlement with a governmental agency

and accepted civil penalties as punishment for CWA

violations. 528 U.S. at 176-77. Indeed, the CWA

defendant actually initiated communications with the

agency and proposed the settlement and civil penalties

precisely because it wanted to preempt a CWA plaintiff’s

citizen suit. Jd. at 176.

On appeal, the United States Court of Appeals for

the Fourth Circuit held these facts demonstrated a later-

filed citizen suit should have been dismissed as moot.

Id. at 179. This Court reversed the Fourth Circuit, not

based on mootness principles purportedly contingent

on whether the CWA defendant voluntary or involuntary

discontinued its CWA violations, but because the Court

found the defendant failed to satisfy its burden to prove

mootness. /d. at 193-94.“

Notwithstanding the CWA defendant in Laidlaw

(like the City here) was compelled to comply with the

CWA by virtue of its settlement with the government,

this Court did not shift the burden regarding mootness

to the CWA plaintiff. The plaintiff’s suit was not moot

“4 Not even the undisputed fact that the CWA defendant

closed the facility that was the source of the CWA violations

was Sufficient, in itself, to establish mootness as a matter of law.

528 U.S. at 193-94.

absent evidence from the defendant that violations

had ceased.

Laidlaw confirms the lack of a basis in this Court’s

precedents for the Second, Fifth, and Eighth Circuits’

holdings that the mootness standard may vary

contingent upon whether a change in a defendant’s

conduct is voluntary versus involuntary. This Court

simply has not employed or endorsed the “involuntary”

concept in the manner the Fifth Circuit has held, nor

has it ruled entry of a consent decree, standing alone, is

conclusive proof a defendant’s violations have ceased.

There is no discernable basis for shifting a defendant’s

historical burden of establishing mootness to a plaintiff,

or for the proposition that a case is moot without an

affirmative showing by a CWA defendant that its

violations have ended.

3. Resolution of the Proper Mootness Standard

Is Essential to Resolution of this Case and

Proper Enforcement of the CWA

It is telling that in Atlantic States Legal

Foundation, Inc., purportedly the origin of the

voluntary versus involuntary dichotomy, the Second

Circuit neither cited authority from this Court nor

expressly articulated its intent to create a modified rule

for mootness. In fact, it is doubtful the Second Circuit

even intended to signal a change in the law. The Second

Circuit began its analysis of the mootness doctrine by

citing the historical formulation of the doctrine embraced

by this Court: “If the state enforcement proceeding has

caused the violations alleged in the citizen suit to cease

without any likelihood of recurrence ... we believe that

the citizen action must be dismissed.” 938 F.2d at 128

(emphasis added).

Only in the Second Circuit’s factual application of

the mootness doctrine did it use, loosely, language the

Eighth and Fifth Circuits ostensibly read as a new

standard for cases of this kind:

A citizen suing pursuant to Section 505 of the

Act thus may not revisit the terms of a

settlement reached by competent state

authorities without regard to the probability

of a continuation of the violations alleged in

its complaint. Nor may the citizen suit proceed

merely for the purpose of further

investigating and monitoring the state

compromise absent some realistic prospect of

the alleged violations continuing.

Id. at 127-28 (emphasis added).

It depends on an exceedingly slender reed io

construe this language as supporting a new mootness

standard, because in a later portion of its opinion, the

Second Circuit reined in any arguable modification of

the law when it again alluded to this Court’s historical

mootness standard: “Nevertheless, there has been no

express finding in the instant matter that the

settlement between [the CWA defendant] and the

fgovernment] has caused the violations alleged by

[plaintiff] to cease and eliminated any realistic

prospect of their recurrence.” Id. at 128 (emphasis

added).

Nothing in this language suggests the standard for

mootness or the burden of proof regarding it was being

shifted to the plaintiff. The Eighth Circuit, and now

the Fifth Circuit, nevertheless have created this judicial

hybrid. As such, it appears at least two circuits have

adopted anew mootness standard that conflicts with

this Court’s precedents.”

Resolution of this issue is essential for three

reasons. First, it will resolve whether ECQ’s citizen suit

was dismissed erroneously, because under this Court’s

mootness standard, the City was not entitled to

summary judgment because 72¢ never submitted actual

evidence demonstrating it is absolutely clear its CWA

violations could not reasonably be expected to recur.

Second, resolution will eliminate uncertainty for

potential CWA plaintiffs by providing clear guidance on

In a subsequent opinion, the Second Circuit analyzed

the effect of a later-executed consent decree on a prior-filed

suit and appeared to adhere to the historical mootness principles

whereby a CWA defendant has the heavy burden to prove

mootness by showing that “there is no reasonable expectation

that the wrong will be repeated.” Atl. States Legal Found., Inc.

v. Pan Am. Tanning Corp., 993 F.2d 1017, 1018-19 (2d Cir. 1993).

* ECO notes that in Kennedy Building Associates v.

Viacom, Inc., the Eighth Circuit, without explanation, appears

to retreat from its position that plaintiffs have the burden to

disprove mootness when a defendant is compelled to discontinue

illegal conduct by operation of a government settlement. 375

F.3d 731, 745 (8th 2004). A state statute, as opposed to the CWA,

was at issuc in Kennedy Building Associates, but it is not at all

clear how this justified the Eighth Circuit’s apparent retreat

from its modified ~«»otness standaid. This reinforces that the

state of the law on this point is highly uncertain.

whether a mootness standard can retroactively

undermine plaintiffs’ citizen suits, and which mootness

standard plaintiffs will have to overcome to sustain

citizen suits.

Finally, the Court will have the opportunity (not

taken by the Second, Fifth, or Eighth Circuit) to

consider two fundamental issues regarding the

operation of mootness, in the context of Congress’s

intended operation of the CWA. The Court will be able

to resolve whether a modified mootness standard will

impose an increased burden on citizen suit plaintiffs to

a degree that conflicts with Congress’s intent to

incentivize private enforcement of the CWA. Bound up

in this determir ation is the degree to which the plain

language of the CWA will be followed in the face of

belated government action. Additionally, the Court can

resolve whether a burden-shifting policy could have a

chilling effect on private enforcement in a manner that

will undermine the CWA’s objectives to “restore and

maintain the chemical, physical, and biological integrity

of the Nation’s waters.” 33 U.S.C. § 1251(a).

D. A Substantive Issue in this Case and a Conflict

between the Circuits Will Be Resolved if this

Court Establishes the Proper Application of Res

Judicata to Prior-Filed Citizen Suits

Res judicata conventionally applies when. “(1) the

parties are identical or in privity; (2) the judgment in

the prior action was rendered by a court of competent. -

jurisdiction; (3) the prior action was concluded by a final

judgment on the merits; and (4) the same claim or cause

of action was invelved in both actions.” Test Masters

Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir.

2005) (emphasis added). Circuit courts have split

regarding proper application of res judicata to prior-

filed CWA citizen suits. *

1. The Seventh Circuit Applies Res Judicata in

a Manner Consistent with the CWA’s

Objectives

In Friends of Milwaukee’s Rivers v. Milwaukee

Metropolitan Sewerage District, the Seventh Circuit

tailored the elements of res judicata to achieve effective

enforcement of the CWA. 382 F.3d at 748. The Seventh

Circuit formulated the “privity” requirement for

purposes of prior-filed citizen suits, such that the

requirement is satisfied only if a later-executed consent

decree was the product of the government’s “diligent

prosecution.” Jd. at 757, 759. The Seventh Circuit used

the diligent prosecution requirement to strike a balance

between the policy objectives of the CWA and the

principles of judicial economy and avoidance of

duplicative litigation embodied in the res judicata

doctrine.*

Although the Fifth Circuit did not decide this matter

based on res judicata, ECO addresses the doctrine, because the

City asserted it as an alternative basis for dismissal.

# This hardly is a radical departure from the operation of

the res judicata doctrine, which long has been subject to the

principle that “[e]ven when the prior decision is made in a

judicial .. . forum neither res judicata nor collateral estoppel is

rigidly applied. Both defenses must be qualified or rejected

when their use would contravene an overriding public policy or

(Cont'd)

For instance, the Seventh Circuit held that “diligent

prosecution” in the CWA context requires an analysis of

several factors, in luding whether the object of a consent

decree is only the eventual reduction of violations, or the

elimination of the violations altogether. 382 F3d at 759,

763-64. Evidence the consent decree will not actually

eliminate the underlying violations or that violations persist

despite the consent decree is not consistent with diligent

prosecution. See id. at 763-64.

Accordingly, when the Seventh Circuit applied res

judicata, it did not analyze the “compliance” issue by

considering a settlement agreement in a vacuum, or in

the abstract. The court expressly noted: “we think a

diligent prosecution analysis requires more than mere

acceptance at face value of the potentially self-serving

statements of a state agency and the violator with whom

it settled regarding their intent with respect to the effect

of the settlement.” Jd. at 760. The Seventh Circuit

looked to real-world circumstances in which the

settlement was executed and the CWA violator’s actual,

past conduct. Jd. at 760.

Based on this construction of res judicata, a consent

decree purportedly covering violations at issue in a

(Cont'd)

result in manifest injustice.” Garner v. Giarrusso, 571 F.2d 1330,

1336 (5th Cir. 1978) (emphasis added). Here, the policy that

must prevail is Congress’s commitment to restoring and

maintaining the Nation’s waters as reflected in the CWA’ citizen

suit provision. This policy is placed in jeopardy by conflicting

opinions from circuit courts discussed below.

prior-filed citizen suit is not necessarily res judicata as

to the suit. 382 F.3d at 760. The Seventh Circuit applied

this principle by holding:

Under the circumstances of this case [in which

violations persisted over many years], we

cannot say that simply throwing more money

at the problems and taking an inordinately

long time to determine if enough money was

thrown at the problems to solve them this time

around are actions calculated in good faith to

bring about compliance with the Act. The

record to date does not inspire confidence that

effective and timely action will be taken to

address problems of long standing. While the

2002 Stipulation will hopefully result in fewer

and smaller violations after the mandated

projects are completed, it is still, when all is

said and done, a stalling tactic rather than a

compliance strategy. As such, we cannot say

that it is a diligent prosecution, and we

cannot uphold the district court’s

determination that res judicata bars the

plaintiffs’ suit.

Id. at 764-65 (emphasis added).

2. Other Circuits Do Not Embrace the Proper

Res Judicata Standard

Not all circuits apply the res judicata standard in a

manner that accounts for congressional objectives to

“restore and maintain the chemicai, physical,

and biological integrity of the Nation’s waters.”

36 -

33 U.S.C. § 1251(a). For instance, although the Fifth

Circuit declined to resolve the proper application of res

judicata in its opinion in this case, it nonetheless

acknowledged a spilt between the circuits on the issue:

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)

... with City of Green Forest, 921 F-2d at 1394

.. 3 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).

Appx. Exhibit A, p. 9a (emphasis added).”

# Likewise, the district court noted the split between the

circuits on this point, siding with the Sixth and Eighth Circuits,

(Cont’d)

Moreover, when the district court analyzed res

judicata in this case, it held, contrary to the standard

established in Friends of Milwaukee’s Rivers, that a

government settlement is presumed to be diligent

prosecution (i.e. sufficient to end CWA violations) as a

matter of law.” The district court actually cited Friends

of Milwaukee's Rivers in support of its holding, despite

the Seventh Circuit’s admonition: “we think a diligent

prosecution analysis requires more than mere

(Cont'd)

which do not embrace the res judicata standard applied by the

Seventh Circuit:

The Seventh Circuit is the only appellate court to

suggest that “diligent prosecution” is a necessary

element of privity. See Friends of Milwaukee’s

Rivers, 382 F.3d at 760... . Other courts have

expressly held that the “diligent prosecution”

requirement only limits the ability of a citizen to

file suit after “the [EPA] Administrator or State has

commenced and is diligently prosecuting a civil or

criminal action in a court of the United States, or a

State to require compliance with the standard,

limitation, or order.” See 33 U.S.C. 1365(b)(1)(B).

“Diligent prosecution” does not appear to be a factor

in determining whether res judicata precludes a

citizen from continuing to prosecute an earlier-filed

enforcement action after entry of a consent decree

in a subsequent case brought by the government. [See

Ellis, 390 F.3d at 473; City of Green Forest, 921 F.2d

at 1403-04].

Appx. Exhibit B, pp. 39a-40a, n.5 (emphasis added).

5° Appx. Exhibit B, p. 40a.

acceptance at face value of the potentially self-serving

statements of a state agency and the violator with whom

it settled regarding their intent with respect to the effect

of the settlement.” 382 F:3d at 760.

The district court declined to consider the evidence

demonstrating violations were ongoing despite the

Consent Decree, and instead settled on the presumptive

diligent prosecution standard articulated, in different

contexts, by the United States Court of Appeals for the

Tenth Circuit and several federal district courts.’ The

foregoing illustrates there is a split between the circuits

regarding whether res judicata should be subject to a

fact-based inquiry focusing on whether CWA violations

will continue, or a mechanical application that allows

dismissal of prior-filed citizen suits despite the absence

of evidence violations will cease.

3. Resolution of the Circuit Split Is Essential

to Resolution of this Case and Proper

Enforcement of the CWA

The conflicting holdings from the Sixth and Eighth

Circuits potentially empower courts to dismiss prior-filed

citizen suits even in the face of continuing CWA

- violations. CWA plaintiffs therefore have no clear

guidance at the outset of a CWA citizen suit whether,

and under what circumstances, belated government

action may retroactively preempt their timely noticed

and prior-filed actions. This injects uncertainty into the

§! See Appx. Exhibit B, pp. 39a-40a (citing, inter alia, the

Tenth Circuit’s holding in Karr v. Hefner, 475 F.3d 1192, 1197-

98 (10th Cir. 2007)).

operation of the CWA’s citizen suit provision, and

penalizes CWA plaintiffs even when they bring

legitimate actions against CWA violators. Both results

threaten to undermine Congress’s efforts to encourage

citizen enforcement of the CWA.

Mechanical application of the res judicata doctrine,

as the Sixth and Eighth Circuits appear to mandate,

also creates considerable risk that the CWA will not

operate to “restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters,”

33 U.S.C. § 1251(a), because bona fide citizen suits will

be dismissed without regard to whether CWA violations

continue to threaten the Nation’s waters. Authoritative

guidance from this Court is necessary to resolve both

the merits of ECO’s citizen suit and whether the

mechanical application of res judicata, or the fact-based

application, is consistent with the public interest

Congress sought to serve by enacting the CWA.

CONCLUSION

The district court and Fifth Circuit have re-written

the CWA citizen suit provision, or otherwise disregarded

relevant principles, to permit untimely government

action to supplant a timely, prior-filed citizen suit. The

result is Petitioner Environmental! Conservation

Organization’s rights under the CWA have been

abrogated, and Congress’s intended operation of the

CWA has been put in jeopardy. Petitioner

Environmental Conservation Organization therefore

respectfuliy requests that the Court grant this Petition

for Writ of Certiorari.

Respec‘fully submitted,

FREDERICK W. Appison, III

Counsel of Record

NoLan C. KNIGHT

Muwnscu Harpt Kopr & Harr, PC.

3800 Lincoln Plaza

500 North Akard

Dallas, Texas 75201

(214) 855-7500

Counsel for Petitioner

APPENDIX

APPENDIX EXHIBIT A — OPINION OF THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT FILED MAY 27, 2008

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10583

ENVIRON MENTAL CONSERVATION

ORGANIZATION,

Plaintiff - Appellant,

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 Judge of the Western District of Louisiana,

sitting by designation.

Appendix Exhibit A

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

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. § 1842(p); 40 C.FR. § 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

_—" ,

Appendix Exhibit A

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-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

Appendix Exhibit A

investigate the City’s separate storm sewer system.!

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 enfo.cement 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 he violations noticed

therein. The EPA encouraged ECO to participate in the

settlement discussions, but ECO declined. Ultimately,

the City reached a settlement with the EFA.

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

entry of the consent decree. In August 2006, the district

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.

Appendix Exhibit A

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).*

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 ECOQ’s suit should be dismissed

2. ECC 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.

Appendix Exhibit A

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 ECOQ’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 mootress could not be invoked to dismiss

a prior-filed citizen suit. Alternatively, ECO argued that

neither the elements of res judicata nor the test for

mootness had been satisfied.

The district court relied on res judicat2 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.

Appendix Exhibit A

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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 ECOQ’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 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.

Appendix Exhibit A

Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d

479 (1980)). If a case has been rendered moot, a federal

court has no constitutional authority to resolve the

issues that it presents. /n 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 F3d 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 Intl Co. v. Malaysia Intl

Shipping Corp., _U.S.__, 127S.Ct. 1184, 167 L.Ed.2d

15 (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. Jd. at 1190. The Court pragmatically

recognized that “where subject-matter or personal

jurisdiction is difficult to determine, and forwm non

conveniens considerations weigh heavily in favor of

dismissal, the court properly takes the less burdensome

course.” Jd. at 1194. The Third Circuit recently relied

on Szinochem 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. IL.N.S., 253 Fed.Appx. 173, 175 &

n. 2 (3d Cir.2007) (unpublished).

Appendix Exhibit A

“a

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 mai ks

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.F la.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 ECOQ’s suit as moot?

10a

Appendix Exhibit A

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 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.

Laidlew Envtl. Servs. (TOC), Inc., 528 U.S. 167, 175,

120 S.Ct. 693, 145 L.Ed.2d 610 (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, 108 S.Ct.

376, 98 L.Ed.2d 306 (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. § 1865(b)(1)(A). Second,

no citizen suit may be brought if the EPA or State “has

commenced and is diligently prosecuting a civil or

lla

Appendix Exhibit A

criminal action” against the alleged violator.

§ 1865(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

“[wjhen 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, 120

S.Ct. 1655, 146 L.Ed.2d 621 (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.

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, 120 S.Ct. 693. Thus, when dismissing a citizen suit

as moot, a court does not graft some “judicially-created

12a

Appendix Exhibit A

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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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.” F’nends 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).’

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,

3. Other circuits have reached this conclusion as well.

Comfort Lake Ass’n v. Dresel Contracting, Inc., 1388 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).

l3a

Appendix Exhibit A

449 F.3d at 661. A case should not be declared moot

“Cals long as the parties maintain a ‘concrete interest in

the outcome’ and effective relief is available to remedy

the effect of the violation ....” Dailey v. Vought Aircraft

Co., 141 F.8d 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. /n 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, 110 S.Ct. 1249,

108 L.Ed.2d 400 (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, 108 S.Ct. 376)

(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, 120 S.Ct.

693. As such, ECO argues that the City must prove that

l4a

Appendix Exhibit A

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, 120 S.Ct. 693 (“The

only conceivable basis for a finding of mootness in this

case is Laidlaw’s voluntary conduct... .”); Car7, 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 plaintiffs from defendants who seek to evade

sanction by predictable protestations of repentance and

reform.” Gwaltney, 484 U.S. at 66, 108 S.Ct. 376

(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

lSa

Appendix Exhibit A

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. WT: Grant Co., 345 U.S. 629,

632, 73 S.Ct. 894, 97 L.Ed. 1303 (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

intent that citizen suits “supplement rather than...

supplant government action.” Gwaltney, 484 U.S. at 60,

108 S.Ct. 376. The primary function of a citizen suit is

to spur agency enforcement of law. See Nat'l Wildlife

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, 94 S.Ct. 1704, 40 L.Ed.2d 164

(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, 120 S.Ct. 693 (Scalia, J., dissenting).

| |

16a

Appendix Exhibit A

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, 108 S.Ct. 376 (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, 108 S.Ct. 376; 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); Kastman Kodak, 933 F:2d at 127.

Further, the “realistic prospect” mootness standard

that we employ today comports with Congress’s policy

17a

Appendix Exhibit A

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 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.

8. 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

ESupp.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.

18a

Appendix Exhibit A

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 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....” Jd. 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

19a

Appendix Exhibit A

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 ECU’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 PROCEDURE § 2942 (2d ed.1990). The district court

20a

Appendix Exhibit A

might even have denied injunctive relief altogether.

See Weinberger v. Romero-Barcelo, 456 U.S. 305, 314-

20, 102 S.Ct. 1798, 72 L.Ed.2d 91 (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.C. Dep't of Sanitation, T772 F.Supp. 162, 16°-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.°

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.

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).

2la

Appendix Exhibit A

(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 Lake, 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 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

22a

Appendix Exhibit A

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, 108 S.Ct.

376. 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 administrative

settlement.” Kastman Kodak, 933 F.2d at 127; compare

Atlantic States Legal Found. v. Pan Am. Tanning, 993

F.2d 1017, 1022 (2d Cir.1993) (distinguishing Kastman

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.

23a

Appendix Exhibit A

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 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).

24a

Appendix Exhibit A

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.

25a

APPENDIX EXHIBIT B — MEMORANDUM

OPINION AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF TEXAS, DALLAS DIVISION

FILED APRIL 26, 2007

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

No. 3-03-CV-2951-BD

The ENVIRONMENTAL

CONSERVATION ORGANIZATION,

Plaintiff,

The CITY OF DALLAS,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant the City of Dallas (“the City”) has filed a

motion for summary judgment in this citizen

enforcement action brought under section 505 of the

Federal Water Pollution Control Act, also known as the

Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq.

For the reasons stated herein, the motion is granted.

26a

Appendix Exhibit B

The City operates a municipal separate storm sewer

system (“MS4”) that collects and discharges storm water

into the Trinity River and its tributaries. (See Def. MSJ

App. at 279). In March 1997, the City obtained a storm

water discharge permit from the United States

Environmental Protection Agency (“EPA”). (/d. at 39).

As required by the permit, the City created and

implemented a comprehensive storm water pollution and

management program (“SWMP”) designed to reduce

the discharge of pollutants into the MS4. (Jd. at 71-272).

The permit became effective on May 1, 1997 and expired

at midnight on April 30, 2002. (Jd. at 39). A renewal

permit was issued on February 22, 2006 and remains in

effect today. (/d. at 279).'

On December 9, 2003, The Environmental

Conservation Organization (“ECO”), a Texas non-profit

environmental watch group, sued the City in federal

district court for CWA violations (“the ECO Litigation”).

Succinctly stated, ECO alleges that the City has all but

ignored its obligations under the SWMP by failing to

develop and implement an effective program to monitor

1. In October 2001, the City applied for a renewal storm

water discharge permit. However, a new permit was not issued

until February 22, 2006. (Def. MSJ App. at 279). In the interim,

the City continued to operate its municipal separate storm

water system under the expired permit as allowed by federal

law. See 40 C.F.R. § 122.6.

27a

Appendix Exhibit B

and reduce the discharge of pollutants into the MS4.

(See Pif. Orig. Compl. at 8, 91 29-34). A list of more than

150 specific violations of Sections 4.1-4.20 of the SWMP

is included as an attachment to ECO’s complaint.

(Id., Attch. A).

On February 6, 2004, the EPA issued a Compliance

Order citing the City for multiple violations of its SWMP

including many of the violations made the basis of the

ECO Litigation. (Def. MSJ App. at 610-52). Among the

violations identified in the Compliance Order are:

2. ECO also accused the City of regularly discharging

poliutant-laden water from its various facilities without a

National Pollutant Discharge Elimination System (“NPDES”)

permit or a Texas Pollutant Discharge Elimination System

(“TPDES”) permit, in violation of such permits, or at levels far

exceeding any discharge permitted under state and federal! law.

(See Pif. Orig. Compl. at 5-7, 9% 20-28). Those claims were

dismissed without prejudice for failure to provide adequate

notice in accordance with 33 U.S.C. § 1365(b)(1)(A) and 40 C.F.R.

§ 135.3. The Environmental Conservation Organization v. The

City of Dallas, No. 3-03-CV-2951-BD, 2005 WL 1771289

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34a

Appendix Exhibit B

(id. at 631, 157 & 640-46). Following protracted

negotiations, the City and the EPA settled their

differences and entered into a Consent Decree which

resolves, inter alia, “the violations allegediin the

Compliance Order through the date of lodging.” (/d. at

356, 171). Under the terms of the settlement, the City

agreed to pay $800,000 in civil penalties, to undertake

two supplemental environmental projects at a cost of at

least $1.2 million, to establish an environmental

management system, to adhere to minimum staffing and

inspection requirements, and to pay stipulated penalties

for future violations of the CWA. (/d. at 744-50, 755).

On May 10, 2006, the United States of America, joined

by the State of Texas, filed suit to obtain judicial

approval of their settlement with the City and entry of

the Consent Decree (“the EPA Litigation”). Although

ECO did not oppose entry of the Consent Decree, it did

complain to the EPA and Texas authorities that the

terms of the settlement were inadequate in various

respects. (/d. at 657-60). On August 28, 2006, the court

determined that the Consent Decree was fair,

reasonable, and consistent with the purposes of the

CWA, and entered the decree as its final judgment in

the EPA Litigation. (See zd. at 774).

Tne City now moves for summary judgment in the

ECO Litigation on i*e ground that the Consent Decree

is res judicata of all claims asserted in that case.* The

3. The City also argues that the claims alleged by ECO in

its complaint, which are based on violations of a permit that

expired in 2002, are moot. Because the City is entitled to

summary judgment on its res judicata defense, the court need

not address this alternative ground for dismissal.

35a

Appendix Exhibit B

issues have been fully briefed by the parties and the

motion is ripe for determination.

Summary judgment is proper when there is no

genuine issue as to any 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, 106S.Ct.

2548, 2552, 91 L.Ed.2d 265 (1986). Where, as here, a

party seeks summary judgment on an affirmative

defense, the movant must establish “beyond

peradventure all of the essential elements of the claim

or defense to warrant judgment in his favor.” Fontenot

v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986)

(emphasis in original). The burden then shifts to the

non-movant to show that summary judgment is not

proper. Duckett v. City of Cedar Park, 950 F.2d 272, 276

(5th Cir.1992). The parties may satisfy their respective

burdens by tendering depositions, affidavits, and other

competent evidence. Topalian v. Ehrman, 954 F.2d 1125,

1131 (5th Cir.), cert. denied, 506 U.S. 825, 113 S.Ct. 8&2,

121 L.Ed.2d 46 (1992). All evidence must be viewed in

the light most favorable to the party opposing the

motion. Rosado v. Deters, 5 F.3d 119, 122 (5th Cir.1993).

The rule of res judicata, or claim preclusion,

“bars the litigation of claims that either have been

litigated or should have been raised in an earlier suit.”

Test Masters Educational Services, Inc. v. Singh, 428

36a

Appendix Exhibit B

I°.3d 559, 571 (5th Cir.2005), cert. denied, 547 U.S. 1055,

126 S.Ct. 1662, 164 L.Ed.2d 397 (2006). The test for res

judicata has four elements: (1) the parties in the

subsequent action are identical to, or in privity with,

the parties in the prior action; (2) the judgment in the

prior case was rendered by a court of competent

jurisdiction; (3) there has been a final judgment on the

merits; and (4) the same claim or cause of action is

involved in both suits. /d.; see also Ellis v. Amex Life

Insurance Co., 211 F.3d 935, 937 (5th Cir.2000). Although

the Fifth Circuit has never considered whether res

judicata applies to a citizen enforcement action under

the CWA, those courts that have considered the issue

have concluded that the principles of res judicata apply

to citizens suits, like the one brought by ECO, where

the government subsequently files suit and obtains a

judgment based on the same violations alleged in the

earlier-filed citizen enforcement action. See, e.g. Friends

of Milwaukee’s Rivers v. Milwaukee Metropolitan

Sewerage Dist., 382 F.3d 748, 752 (7th Cir.2004), cert.

denied, 544 U.S. 913, 125 S.Ct. 1593, 161 L.Ed.2d 293

(2005); Alaska Sport Fishing Ass’n v. Exxon Corp., 34

F.3d 769, 774 (9th Cir.1994); Atlantic States Legal

Foundation, Inc. v. Eastman Kodak Co., 933 F.2d 124

(2d Cir.1991); United States v. City of Green Foresi, 921

F.2d 1394, 1403-05 (8th Cir.), cert. denied, 502 U.S. 956,

112 S.Ct. 414, 116 L.Ed.2d 435 (1991).

37a

Appendix Exhibit B

ECO first argues that a citizen suit cannot be

dismissed on res judicata grounds where the

government fails to initiate an enforcement proceeding

within 60 days of receiving notice of the alleged CWA

violation. In support of this argument, ECO relies on

the federal statute authorizing citizen enforcement

actions, 33 U.S.C. § 13865, which provides, in pertinent

part:

Except as provided in subsection (b) of this

section and section 1319(g)(6) of this title, any

citizen may commence a civil action on his own

behalf—

against any person... who is alleged to be in

violation of (A) an effluent standard or

limitation under this chapter or (B) an order

issued by the Administrator or a State with

respect to such a standard or limitation[.]

33 U.S.C. § 1365(a)(1). Subsection (b) prohibits the filing

of a citizen suit:

prior to sixty days after the plaintiff has given

notice of the alleged violation (i) to the

Administrator, (ii) to the State in which the

alleged violation occurs, and (iii) to any alleged

violator of the standard, limitation, or order[.]

Id. § 13865(b)(1)(A). According to ECO, Congress

imposed this 60-day notice requirement “as the way to

38a

Appendix Exhibit B

balance the potential tensions between allowing citizens

to sue and preferring the government to do so.”

(Plf. MSJ Resp. Br. at 3). Because the government did

not act within the 60-day waiting period, ECO believes

that it may continue to prosecute its citizen suit,

notwithstanding the subsequent enforcement action

filed by the government which has been resolved by

entry of a consent decree. -

The court cannot accept ECO’s broad reading of

section 1865. Neither the statute itself nor the cases

cited by ECO in its summary judgment response

address the preclusive effect of a consent decree

entered in a government enforcement action that was

filed after the citizen suit was initiated. Section 1365,

by its terms, specifies the jurisdictional prerequisites

for filing a citizen enforcement action under the CWA.

Similarly, the cases cited by ECO deal with standing,

statutory preclusion, and mootness. None of those cases

even mention, much less discuss, the res judicata

implications of a consent decree entered in a

government enforcement action. See Altamaha

Riverkeepers v. City of Cochran, 162 FSupp.2d 1368,

1373 (M.D.Ga.2001); Public Interest Research Group of

New Jersey, Inc. v. Elf Atochem North America, Inc.,

817 F.Supp. 1164, 1171-73 (D.N.J.1993); Natural

Resources Defense Council, Inc. v. Loewengart & Co.,

776 F.Supp. 996, 1000 (M.D.Pa.1991).* The court is

4. The court notes that in two of those cases, Natural

Resource Defense Council and Altamaha Riverkeepers, res

judicata would not apply in any event because the consent decree

had not yet been entered by the court and was not a final

judgment.

39a

Appendix Exhibit B

unaware of any authority which would prevent

application of the well-settled princ.ples of res judicata

to citizen suits brought under the CWA.

Having determined that the City may assert a res

judicata defense, the elements of the defense must be

examined. ECO tacitly zoncedes the second and third

elements-that the Consent Decree was rendered by a

court of competent jurisdicticn and constitutes a final

judgment on the merits. Instead, ECO argues that:

(1) the privity requirement is not met because the

government did not “diligently pursue” its case; and (2)

the Consent Decree does not resolve all of the claims

raised in the citizen suit. (PIf. MSJ Resp. Br. at 22-25).

Assuming that diligent prosecution is required,°*

5. The Seventh Circuit is the only appellate court to suggest

that “diligent prosecution” is a necessary element of privity.

See Friends of Milwaukee’s Rivers, 382 F.3d at 760

(notwithstanding the heavy presumption in favor of diligent

prosecution by the government, the court must examine

whether the consent decree was “capable of requiring

compliance with the Act and [was] in good faith calculated to do

so”). Other courts have expressly held that the “diligent

prosecution” requirement only limits the ability of a citizen to

file suit after “the [EPA] Administrator or State has

commenced and is diligently prosecuting a civil or criminal

action in a court of the United States, or a State to require

compliance with the standard, limitation, or order.” See 33 U.S.C.

§ 1365(b)(1)(B). “Diligent prosecution” does not appear to be a

factor in determining whether res judicata precludes a citizen

(Cont'd)

40a

Appendix Exhibit B

government prosecutions under the CWA are heavily

presumed to be “diligent.” See, e.g. Friends of

Milwaukee’s Rivers, 382 F.3d at 760; Karr v. Hefner,

475 F.3d 1192, 1197-98 (10th Cir.2007); Citizens Legal

Environmental Action Network v. Premium Standard

Farms, Inc., No. 97-6073-C-SJ, 2000 WL 220464 at *12

(W.D.Mo. Feb.23, 2000) (citing cases); Williams Pipe

Line Co. v. Bayer Corp., 964 F.Supp. 1300, 1324

(S.D.lowa 1997). Indeed, the court in Premium

Standard Farms noted that absent unique

circumstances, “a consent order should be viewed as

sufficient in itself to satisfy the requirement of diligent

prosecution.” Premium Standard Farms, 2000 WL

220464 at *18, quoting Sierra Club v. SCM Corp., 572

F.Supp. 828, 831 n. 3 (W.D.N.Y.1983). The court

concludes, as a matter of law, that the EPA and the State

of Texas diligently prosecuted their enforcement action

against the City as evidenced by the comprehensive

relief obtained in the Consent Decree.

In order to determine whether the ECO Litigation

and the EPA Litigation involve the same claims or

causes of action, the court uses a “transactional test.”

As the Fifth Circuit explained:

Under the transactional test, a prior

judgment’s preclusive effect extends to all

(Cont'd)

from continuing to prosecute an earlier-filed enforcement action

after entry of a consent decree in a subsequent case brought by

the government. See Ellis v. Gallatin Steel Co., 390 F.3d 461, 473

(6th Cir.2004); City of Green Forest, 921 F.2d at 1403-04.

4\a

Appendix Exhibit B

rights of the plaintiff with respect to all or any

part of the transaction, or series of connected

transactions, out of which the original action

arose. What grouping of facts constitutes a

“transaction” or a “series of transactions”

must be determined pragmatically, giving

weight to such considerations as whether the

facts are related in time, space, origin, or

motivation, whether they form a convenient

trial unit, and whether their treatment as a

unit conforms to the parties’ expectations or

business understanding or usage. If a party

can only win the suit by convincing the court

that the prior judgment was in error, the

second suit is barred.

Test Masters, 428 F.3d at 571 (internal citations omitted).

The critical issue is whether the two suits are based on

the “same nucleus of operative facts.” /d.; see also Davis

v. Dallas Area Rapid Transit, 383 F.3d 309, 313 (5th

Cir.2004). ECO argues that the complaint in the EPA

Litigation does not mention sections 4.8, 4.10, 4.12, 4.14,

4.15, or 4.19 of the SWMP While this may be true, ECO

ignores the fact that the Consent Decree expressly

resolves “the violations alleged in the Compliance Order

through the date of lodging.” ‘Def. MSJ App. at 356,

4 71). The Compliance Order, which is attached as an

appendix to the Consent Decree, specifically addresses

violations of sections 4.8, 4.10, 4.12, 4.14, 4.15, and 4.19.

( Id. at 640-44, 646). In addition, the City has submitted

a detailed summary explaining how the Consent Decree

resolves each and every violation alleged in the ECO

42a

Appendix Exhibit B

Litigation. (Jd., 781-827).° Consequently, ECO is

precluded from litigating the same claims in a citizen

suit. See Premium Standard Farms, 2000 WL 220464

at *7, citing 18A Wright, Miller & Cooper, Federal

Practice and Procedure, § 4443 at 386-87 (1981) and

Larken, Inc., v. Wray, 189 F.3d 729, 733 n. 9 (8th

Cir.1999).

CONCLUSION

The City’s motion for summary judgment [Doc. #

101] is granted on its affirmative defense of res judicata.

The court will dismiss all remaining claims in this action

by separate judgment filed today.

SO ORDERED.

DATED: April 26, 2007

s/ Jeff Kaplan

JEFF KAPLAN

UNITED STATES MAGISTRATE JUDGE

6. In its complaint, ECO alleges that the City violated Subtask

4.10.1 of the SWMP by “fail{ing] to institute a citizen report

elephone number” and Subtask 4.14.4 by “fail[ing] to initiate [a]

yublic information campaign for HHW issues.” (See Plf. Orig.

Compl., Attch. A at 13, 15). Neither the Compliance Order nor the

complaint filed in the EPA Litigation specifically refer to these

subtasks. However, as the City explains in its summary, Subtask

4.10.2, which requires the City to institute a citizen observer

program, includes the creation of a citizen report telephone

number. (See Def. MSJ App. at 812). Subtask 4.10.2 is referenced

in the Compliance Order. (/d. at 641). The City also points out that

the SWMP does not include a Subtask 4.14.4, nor is there any

corresponding requirement that matches ECO’s description. (See

id. at 817). ECO offers no evidence to the contrary.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.