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Sierra Club v. Shell Oil Co.

Citation: 17 ELR 20767
No. Nos. 85-3753 et al., 817 F.2d 1169/25 ERC 2061/(5th Cir., 05/29/1987) Aff'd

The court rules that a citizen suit based on multiple, sporadic, and past violations of effluent limitations contained in national pollutant discharge elimination system (NPDES) permits cannot be maintained under § 505 of the Federal Water Pollution Control Act (FWPCA). In this consolidated action, the court reaffirms its position in Hamker v. Diamond Shamrock Chemical Co., 15 ELR 20385. Hamker held that a district court lacks jurisdiction to adjudicate a citizen suit that alleges a single past violation of an effluent limitation but fails to allege an ongoing violation. Here, plaintiff's complaints alleged ongoing and future violations of defendants' NPDES permits. The court first holds that when issues of jurisdictional fact are intertwined with the merits of a case, the district court should refrain from dismissing the case on the pleadings for lack of jurisdiction unless the pleadings manifest a clearly insubstantial or groundless claim. The court further holds that when a plaintiff alleges an ongoing violation but fails to demonstrate a factual issue about whether a defendant is in violation, the district court should grant summary judgment for the defendant on the merits rather than dismiss the case for want of jurisdiction. The instant cases, with one exception, were dismissed by the courts below, but these dismissals essentially amounted to summary judgment against plaintiff on the issue of whether defendants were in violation of their permits at the time suit was filed. Hence, the district courts did not commit reversible error.

The court next holds that plaintiff failed to prove that defendants were violating their permits at the time suit was filed. Evidence presented by plaintiff showed only past, sporadic, or largely unconnected permit violations. Under Hamker, plaintiff was required to prove ongoing violations. The court then rejects the arguments that Hamker is distinguishable, incorrect, and an unworkable approach to FWPCA enforcement. Finally, the court holds that the district court that awarded litigation costs to Shell Oil did not abuse its discretion by so doing.

Counsel for Plaintiff-Appellant
James Thornton
Natural Resources Defense Council, Inc.
122 E. 42nd St., 45th Fl., New York NY 10168
(212) 949-0049

Counsel for Defendant-Appellee
Jose A. Berlanga
P.O. Box 2463, Houston TX 77002
(713) 241-2233