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12 ELR 20617 | Environmental Law Reporter | copyright © 1982 | All rights reserved Wisconsin v. Metropolitan CouncilNo. 4-81-716 (D. Minn. April 23, 1982)The court dismisses a suit by Wisconsin against the Environmental Protection Agency (EPA) and Minnesota agencies pertaining to reissuance of a national pollutant discharge elimination system (NPDES) permit for a sewage treatment plant. Under Wisconsin law, the attorney general must have specific statutory authorization to bring an action or must act on request of the governor or one branch of the legislature. Mere acquiescence in the suit by the present governor, acting in the belief that a valid authorization had been given by the previous governor, does not constitute a proper request.On this ground the complaint must be dismissed. Even if other counsel have been given valid authority to represent the state, such authority was granted shortly before the suit was filed. Therefore, the case must be dismissed for failure to comply with the mandatory 60-day notice requirement of § 505(b)(1)(A) of the Federal Water Pollution Control Act (FWPCA). The court also holds that dismissal of the suit is warranted on grounds that primary jurisdiction over the matterlies with the Minnesota Pollution Control Agency, which is conducting an adjudicatory hearing to consider the proposed permit renewal. Moreover, there is no federal cause of action for persons seeking review of state decisions on NPDES permits, no opportunity for federal judicial review of EPA decisions not to veto a state permit, and no implied right of action against permitting agencies under the FWPCA. [The pleadings in this case are summarized at ELR PEND. LIT. 65737 and 65746 — Ed.] Counsel for Plaintiff Charles K. Dayton Counsel for Defendant Metropolitan Council Counsel for Defendant State of Minnesota Counsel for Defendant Metropolitan Waste Control Comm'n Counsel for Federal Defendants Alan W. Eckert, Roger Grimes Murphy, J.: The Attorney General of Wisconsin filed this action in the name of the State of Wisconsin, seeking injunctive and declarative relief and a civil penalty against defendants the Metropolitan Council [the Council], the Metropolitan Waste Control Commission [the MWCC], the State of Minnesota as the Minnesota Pollution Control Agency Board [the MPCA], and Anne M. Gorsuch, Administrator of the United States Environmental Protection Agency [the EPA] under the Clean Water Act, 33 U.S.C. § 1251, et seq. [the Act]. The suit has two basic components. The first seeks an injunction and statutory damages for violations of a National Pollution Discharge Elimination System [NPDES] Permit issued to the Council and the MWCC for operation of a municipal sewage treatment plant [the Plant], commonly known as the Pig's Eye Plant, located in St. Paul, Minnesota. The second portion of the suit concerns the issuance of a NPDES permit to the Council and the MWCC for operation of the Plant, which is under consideration this year. Relief is sought in the form of a declaration by the court which 1) forbids the MPCA and the EPA from reissuing a permit unless it requires construction of facilities capable of consistent compliance with certain water quality standards, or if that is impossible, contains a compliance schedule which is not contingent on state or federal funding, and 2) requires that the new permit contain a solution to the problem of "combined sewer overflow" by a date certain which is not contingent on state or federal funding. The MWCC and the Council move to dismiss, for lack of jurisdiction and failure to state a claim upon which relief can be granted, and to compel joinder of the cities of Minneapolis, Saint Paul, and South Saint Paul under Rule 19 of the Federal Rules of Civil Procedure. The MPCA moves to dismiss for lack of jurisdiction and failure to state a claim. The EPA moves to dismiss, for lack of jurisdiction and failure to state a claim, or for summary judgment. In 1972 the Act was amended to control discharge of pollutants into navigable waterways through the National Pollution Discharge Elimination System. The system sets up "effluent limitations" for each discharger of pollutants instead of the prior scheme requiring enforcement agencies to work backward from a body of polluted water to find which discharger was responsible for pollution. For most purposes a discharger in compliance with the terms of its NPDES permit is deemed to be in compliance with the requirements of the Act. See generally, EPA v. State Water Resources Control Board, 426 U.S. 200, 203-209 (1976). The EPA, a federal agency, has ultimate authority for issuance of NPDES permits. However, the EPA may allow a state to administer a permit system. Authority to withdraw approval of a state program, as well as authority to block issuance of a certain permit, remains with the EPA. See 33 U.S.C. § 1342. In 1974 the MPCA was approved by the EPA to administer a NPDES permit program for the State of Minnesota. On December 19, 1974, the MPCA issued a joint NPDES permit to the Council and the MWCC municipal planning and service agencies, for operation of the Plant. The permit was effective until June 30, 1977. Following notice, a public adjudicatory hearing in which Wisconsin was a party, and EPA review, the MPCA issued a second NPDES permit on June 1, 1978, for operation of the Plant. On November 4, 1981, the EPA sued the Council, the MWCC, and the State of Minnesota in federal district court for failure to comply with certain effluent limitations in the NPDES permit, as well as for air violations not relevant here. See United States v. Metropolitan Waste Control Council, Civil No. 4-81-750 (D. Minn.). A consent decree was entered into among the parties. Wisconsin took no part in the proceedings before the federal court even though the Justice Department published notice of its intent to seek the court's approval of the consent decree and solicited comments. The Plant's current NPDES permit will expire in June of 1982. The MPCA has begun processing the application for renewal of the permit. A draft of the permit was forwarded to the EPA for comments, and comments were returned, including a comment that a certain compliance schedule in the permit did not meet statutory deadlines. On November 20, 1981, the MPCA issued public notice of a revised draft permit, and the EPA again noted problems. The permit cannot be issued if the EPA objects to it. If there is an objection, an administrative procedure is provided which allows an interested party, including Wisconsin, to request a hearing on the issue of the appropriate conditions of the renewal permit. See 40 C.F.R. § 123.75(e). Wisconsin has involved itself in the ongoing administrative proceedings related to renewal of the permit. In a letter, received by the EPA on December 22, 1981, the Governor of Wisconsin, the Wisconsin Attorney General, and the Secretary of the Wisconsin Department of Natural Resources raised objections concerning the issuance of the permit, submitted comments and recommendations, and requested a public hearing. The letter states that if Wisconsin's objections are addressed and its interests are protected in the permit process, the authors will consider a consent judgment in this action. Wisconsin has also filed objections and comments with the MPCA concerning the permit, and requested a contested case hearing concerning the permit. The hearing has been granted, and will take place before a state hearing examiner, commencing on April 26, 1982. The hearing examiner has already issued his prehearing order. The Wisconsin Attorney General's Office filed this suit, naming Wisconsin as plaintiff in its capacity as a sovereign state, on October 28, 1981. Notice of intent to file the suit was served on all defendants in April of 1980 and again in March of 1981. By affidavit, Wisconsin's Attorney General states that in October of 1977 he received permission from Wisconsin's former governor to participate in administrative proceedings concerning the issuance of the NPDES permit for the Plant, including bringing litigation if necessary. In March of 1981 he informed the current governor by letter of his intent to bring this suit, requesting his concurrence in bringing the suit. The governor responded by letter, stating that he was not supportive of the litigation but "recognized the validity of the prior authorization." In response to a request made in October of 1981, he authorized the hiring of local counsel for prosecution of this suit. Defendants MWCC, the Council, and the EPA move to dismiss on the ground that the Wisconsin Attorney General does not have the proper authority to bring this action. Because an affidavit has been presented in opposition to the motions, the court will consider the matter as one for summary judgment. See FED. R. CIV. P. 12(b). Summary judgment may only be granted if, viewing the evidence in a light most favorable to the party opposing the motion, there are no disputed issues of material fact, and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56; see generally, Northern States Power Co. v. United States, 663 F.2d 55, 56-57 (8th Cir. 1981); Vette Co. v. Aetna Casualty and Surety Co., 612 F.2d 1076, 1077 (8th Cir. 1980). No person has the right to appear as attorney for another without first receiving authority from the party he or she purports to represent. Pueblo of Santa Rosa v. Fall, 273 U.S. 315, 321 (1927); Developmental Disabilities Advocacy Center, Inc. v. Melton, 521 F. Supp. 365, 372 (D.N.H. 1981). Broyles v. Califano, 495 F. Supp. 4, 8 (E.D. Tenn. 1979); Chunes v. Duluth, W. & P. Ry. Co., 298 F. Supp. 964, 976 (D. Minn. 1924). The court may dismiss an action without prejudice upon motion of a defendant where one who purports to be plaintiff's counsel has no such authority. See e.g., Pueblo of Santa Rosa v. Fall, 272 U.S. at 321; Developmental Disabilities Advocacy Center, Inc. v. Melton, 521 F. Supp. at 372. Moreover, the right of an attorney to appear on another's behalf is subject to the court's "diligent supervision in the management of its business." Walker International Corporation v. United States, 554 F.2d 464, 466 (C.C.P.A. 1977), and the trial court has the authority at any stage of the proceedings to require an attorney to show his or her authority to appear. Pueblo of Santa Rosa v. Fall, 273 U.S. at 319; Alamo v. Del Rosario, 98 F.2d 328, 329 (U.S. App. D.C. 1938); cf. Donnelly v. Parker, 486 F.2d 402, 405 n.6 (D.C. Cir. 1973) (court of appeals has undoubted power to require counsel before it to demonstrate authority). Wisconsin has chosen to narrowly circumscribe the power of its attorney general. Its constitution limits the powers of its attorney general to those "prescribed by law." WIS. CONST., art. VI, § 3. Pursuant to this limitation, the Wisconsin Attorney General is powerless to initiate and prosecute litigation intended to protect the state or its people unless the power to prosecute a specific action is granted by law. In re Estate of Sharp, 63 Wis. 2d 254, 260-261, 217 N.W.2d 258, 262 (1974); State v. Industrial Commission, 172 Wis. 415, 416, 179 N.W. 579, 580 (1920); State v. Sayle, 168 Wis. 159, 169 N.W. 310, 311 (1918); State v. Milwaukee Electric Ry. & Light Co., 136 Wis. 179, 116 N.W. 900, 905 (1908). The Wisconsin Supreme Court has interpreted the authorization requirement strictly. For example, the governor is unable to authorize an attorney general's action retroactively. State v. Industrial Commission, 172 Wis. 415, 179 N.W.2d at 579, 581. (attorney general without direct authorization of the governor brought an action to review an award by the Industrial Commission; although the governor sought to provide authorization nunc pro tunc after the statutory period for bringing such actions had expired, the action had to be dismissed for lack of jurisdiction). The statutory authority to allow the attorney general to enforce public charitable trusts cannot be extended to allow him to intervene in estate proceedings merely because a public charitable trust is involved. In Re Estate of Sharp, 63 Wis. 2d at , 217 N.W.2d at 262. An action can only be brought by the attorney general under a specific statutory authorization or "on request of the Governor or one branch of the Legislature." State v. Sayle, 168 Wis. at , 169 N.W. at 312. WIS. STAT. §§ 14.111 and 165.252 provide for authorization of suit by the governor, but the facts in the instant case, taken most favorably for the plaintiff, do not establish the specific legal authority needed. The authorization by the former governor allowed the Wisconsin Attorney General to take part in the last NPDES permit process concerning the Plant and to initiate other appropriate action, including litigation. There is no evidence or inference that he meant to authorize a suit some years after that permit process was completed, based in large part on the anticipated provisions of a new permit. Neither does the acquiescence of the present governor provide the necessary authorization. The statutes relied on provide that the governor may "require" or "request" the attorney general to commence an action. Not only did the governor not require or request the bringing of this action, but hehas stated that he does not support the litigation. His belief that there was a valid authorization by his predecessor does not convert his acquiescence into something more. The Wisconsin Attorney General also maintains that the present governor's authorization of the hiring of local counsel provides authority for bringing the suit. Even if such authorization is deemed to be otherwise sufficient, however, the suit would have to be dismissed for lack of proper notice. According to 33 U.S.C. § 1365(b)(1)(A) notice must be given 60 days before filing suit under the Act. This requirement is jurisdictional. See Middlesex County Sewerage Authority v. National Sea Clammers Association, 101 S. Ct. 2615, 2619 [11 ELR 20684] (1981). This action was filed in October of 1981, and notice was given to defendants in April of 1980 and March of 1981. This notice was ineffective as an act of the State of Wisconsin. See State v. Industrial Commission, 172 Wis. 416, 417, 179 N.W. 579, 581 (1920). The governor did not authorize the hiring of local counsel until after a request made in October, 1981, subsequent to the attempt to give the statutory notice. Wisconsin's Attorney General argues that because he is a private citizen who has an interest in and a right to bring a suit under the citizen's suit provisions of the Act, 33 U.S.C. § 1365(a), the suit should be allowed to proceed. He has not, however, chosen to file this suit in his own name. The suit was filed in the name of the State of Wisconsin as a sovereign state. Even if the Attorney General were authorized to bring this suit, the action against the defendants should be dismissed. First, primary jurisdiction of this matter lies with the MPCA and the EPA. Within days the MPCA will hold an adjudicatory hearing, [12 ELR 20619] to which Wisconsin is a party, that will address the issues raised by Wisconsin concerning the proposed NPDES permit. Many of the technical and legal issues raised herein are central to the permit process underway. It is, in fact, possible that Wisconsin will gain substantially all of the relief the Attorney General seeks herein through the permit process. This action would then be moot. The letter received by the EPA on December 22, 1981, which was signed by the Attorney General, admits as much. Orderly administration of justice demands that the court withhold jurisdiction while the pending administrative proceedings are in progress. See Montgomery Environmental Citizens Coordinating Committee on Friendship Heights v. Washington Suburban Sanitary Commission, 607 F.2d 378, 381-382 (D.C. Cir. 1979). Second, there is not a cause of action available against the EPA and the MPCA under the circumstances presented. Congress did not provide a federal causeof action for persons seeking review of state decisions on NPDES permits. District of Columbia v. Schramm, 631 F.2d 854, 862-863 [10 ELR 20520] (D.C. Cir. 1980). Nor is there provision for review in federal district court of the EPA's decision not to veto a state permit. Id. at 860. Neither is there an implied right of action against these agencies under the Act. Middlesex County Sewerage Authority v. National Sea Clammers Association, 101 S. Ct. 2615, 2625 [11 ELR 20684] (1981). This action involves complex issues which are within the administrative expertise of the EPA and the MPCA. The administrative process is involved in considering many of the issues raised herein, thus providing Wisconsin with an opportunity to protect its interests. This court should not provide an unnecessary, duplicative forum, particularly where the Wisconsin Attorney General has not been authorized as required by Wisconsin law to invoke this court's jurisdiction on behalf of the state. Dismissal of this action does not leave Wisconsin without a forum for advancing its interests concerning the operation of the Plant, and it serves the goal of judicial economy and lack of interference in ongoing administrative proceedings. Because of this disposition it is unnecessary to discuss all of the issues raised by the parties. Now therefore, based upon all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that the above-entitled action is dismissed without prejudice. 1. Section 14.11 states in relevant part The governor, whenever in his opinion the rights, interests or property of that state have been or are liable to be injuriously affected, may require the attorney general to institute and prosecute any proper action or proceeding for the redress or prevention thereof . . . . 2. Section 165.25 provides in relevant part The department of justice shall: . . . if requested by the governor . . . appear for the state and prosecute or defend in any court or before any officer, any cause or matter, civil or criminal, in which the state or people thereof may be interested . . . . 12 ELR 20617 | Environmental Law Reporter | copyright © 1982 | All rights reserved |