Greene v. Reilly

No. 80-2630T (W.D. Tenn. May 2, 1990)

The court holds that the Environmental Protection Agency's (EPA's) duty to take enforcement action under § 309(a)(3) of the Federal Water Pollution Control Act (FWPCA) is discretionary. Citizens brought suit to compel EPA to enforce the violation of FWPCA § 301 effluent limitations. The court notes that although § 309 uses the word "shall," which is generally an indication of mandatory intent, there is disagreement among the circuits whether the duty to take such enforcement action is mandatory. The court thus holds that absent a nondiscretionary duty to enforce, it lacks subject matter jurisdiction under the citizen suit provisions of § 505, lacks jurisdiction under the mandamus provisions of § 501, and lacks jurisdiction under the Administrative Procedure Act. Moreover, the court holds that the Declaratory Judgment Act does not provide the court with an independent grant of jurisdiction.

[A previous decision in this case is published at 14 ELR 20394.]

Counsel for Plaintiffs
Frank E. Deale
Center for Constitutional Rights
666 Broadway, New York NY 10012
(212) 614-6464

Counsel for Defendants
Carl Strass
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Joseph Freedman
U.S. Environmental Protection Agency
401 M St., SW, Washington DC 20460
(202) 382-7714

Todd, J.

[20 ELR 21161]

Order Granting Defendants' Motion to Dismiss and Denying Plaintiffs' Motion for Partial Summary Judgment

In a joint status report, the parties have advised the court that the resolution of the pending cross-motions for summary judgment will be dispositive of the case because there are no issues of disputed fact. The court has reviewed these motions and, based on the facts and the applicable law, determines that Defendants' motion to dismiss or for summary judgment should be granted.

Plaintiff N. T. Greene, on behalf of himself and other citizens similarly situated, brought this suit to compel the Environmental Protection Agency ("EPA") to enforce the Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. § 1251, et seq. ("the Act"). On October 31, 1983, this court entered an order denying Defendants' motion to dismiss. See Greene v. Costle, 577 F. Supp. 1225 [14 ELR 20394] (W.D. Tenn. 1983). Defendants had contended that the court lacked subject matter jurisdiction of the suit. Plaintiffs alleged jurisdiction pursuant to § 505 of the Act, 33 U.S.C. § 1365(a)(2), which provides that a citizen can bring a civil suit on his own behalf when he alleges that the administrator has failed to perform a nondiscretionary act. Plaintiffs contended that 33 U.S.C. § 1319(a)(3) imposed a mandatory duty on the Administrator to issue an order requiring a person in violation of § 1311 to comply with that section or to bring a civil action against that person. They argued that the language of the statute, i.e., "he shall issue an order" or "he shall bring a civil action" (emphasis added), imposed a mandatory duty on the administrator. Defendants argued that the statutory duty of enforcement imposed by § 1319 was discretionary.

Thus, the issue before the court was whether Plaintiffs had alleged a failure to perform a mandatory act or duty. In its order, the court noted that "[t]he question is a close one of statutory construction" and that "this question has been addressed by several other district courts and there is disagreement among those courts." Greene, 577 F. Supp. at 1228. The court focused on Congress' use of the word "shall" in the statute and determined that, because "use of the word 'shall' is generally an indication of mandatory intent," the duty imposed by § 1319 was mandatory. Id. at 1228-30.

Subsequent to the court's ruling, several circuits, most notably the Eighth Circuit in Dubois v. Thomas, 820 F.2d 943 [17 ELR 21008] (8th Cir. 1987), have decided that the duty imposed by § 1319 is discretionary. See United States v. Cheung, 836 F.2d 729 (1st Cir. 1988); Harmon Cove Condominium Ass'n, Inc. v. Marsh, 815 F.2d 949 [17 ELR 20747] (3d Cir. 1987). Accord State Water Control Bd. v. Train, 559 F.2d 921 [7 ELR 20571] (4th Cir. 1977); Sierra Club v. Train, 557 F.2d 485 [7 ELR 20670] (5th Cir. 1977). In reaching its decision, the Dubois Court relied on Heckler v. Chaney, 470 U.S. 821 [15 ELR 20335] (1985). Chaney held that an agency's decision not to take enforcement action is generally unsuitable for judicial review. Id. at 831. Also, the Chaney Court refused to interpret the phrase "shall be imprisoned" as mandatory language. Id. at 835. See also City of Seabrook v. Costle, 659 F.2d 1371 [11 ELR 21068] (5th Cir. 1981) ("shall" in Clean Air Act enforcement provisions is discretionary).

Dubois also relied on Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 [14 ELR 20507] (1984), which reiterated the principle that an agency's interpretation of a statute which it administers is entitled to a high degree of deference from the court.

If . . . the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.

Id. at 842-43 (footnotes omitted). This court previously noted the ambiguities in the legislative history of the Act. Greene, 577 F. Supp. at 1229-30. As stated in Dubois,

EPA's interpretation of § 309(a)(3) not only finds adequate support in the statutory language, but also is consistent with the intent of Congress in enacting the [Act]. The opening words of that statute declare that its objective "is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a)(1982). Under [a different] interpretation . . ., EPA might have great difficulty in achieving that objective. EPA could be compelled to expend its limited resources investigating multitudinous complaints, irrespective of the magnitude of their environmental significance. As a result, EPA would be unable to investigate efficiently and effectively those complaints the EPA, in its experience, considers to be the most egregious violations of the [Act]. Only if the Administrator has discretion to allocate its own resources can a rational enforcement approach be achieved.

Dubois, 820 F.2d at 947-48.

Based on the reasoning of Chaney, Chevron U.S.A., and Dubois, the court determines that the duties imposed by 33 U.S.C. § 1319(a)(3) are discretionary; therefore, there is no subject matter jurisdiction over this suit under 33 U.S.C. § 1365(a)(2). Neither does the court have jurisdiction under 28 U.S.C. § 1361, the mandamus statute. Mandamus is appropriate only when the duty owed by a federal officer or agency is nondiscretionary. Greene, 577 F. Supp. at 1230. Because the court has determined that the duty imposed by § 1319(a)(3) is discretionary, Plaintiffs cannot invoke the mandamus statute. For this same reason, the court does not have jurisdiction under the Administrative Procedure Act, 5 U.S.C. §§ 701-705 ("APA").

Assuming, without deciding, that the court has jurisdiction under the federal question statute, 28 U.S.C. § 1331, the complaint must be dismissed for failure to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6). Plaintiffs seek to protect rights that were created by the Act. Plaintiffs have pointed to no rights, other than those found in § 1319(a)(3), that they allege are not being protected by the EPA, and Congress has provided a mechanism for enforcing those rights in 33 U.S.C. § 1365. Consequently, Plaintiffs have not stated a claim for relief that is separate from their claim under § 1365.

The court has previously noted that the Declaratory Judgment Act is not an independent grant of jurisdiction to federal courts. Greene, 577 F. Supp. at 1231. The court has determined that it does not have subject matter jurisdiction under § 1365, the mandamus statute, or the APA and that Plaintiffs have failed to state a claim [20 ELR 21162] for relief under the federal questionstatute. Thus, the court does not have jurisdiction under the Declaratory Judgment Act.

Plaintiffs contend that they are entitled to attorney's fees for their efforts to obtain agency action for the allegations of the complaint that have been corrected, regardless of the outcome of the case. A court "may award costs of litigation . . . to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." 33 U.S.C. § 1365(d). Prior to the 1987 amendment, this section had allowed the court to award litigation costs to any party, even partially prevailing parties if the suit served to promote the purposes of the Act. Ruckelshaus v. Sierra Club, 463 U.S. 680, 686-93 [13 ELR 20664]. Congress' addition of the words "prevailing" and substantially prevailing" to the statute indicates that a party must be successful in the litigation before the court can award attorney's fees. Plaintiffs have not been successful in this litigation. Accordingly the request for attorney's fees is denied.

In summary, Defendants' motion to dismiss or for summary judgment is GRANTED. Plaintiffs' motion for partial summary judgment is DENIED, and Plaintiffs' request for attorney's fees is DENIED.

IT IS SO ORDERED.