by Daniel E. Estrin
Supervising Attorney, Pace Environmental Litigation Clinic, Inc.
Adjunct Professor of Law, Pace Law School

The U.S. Court of Appeals for the Third Circuit last month issued two well-reasoned and important opinions regarding the enforcement and application of federal environmental statutes.

First, on October 3, 2011, the court considered federal court abstention in Raritan Baykeeper v. NL Industries, Inc., a citizen suit brought under the federal Clean Water Act (“CWA”) and the Resource Conservation and Recovery Act (“RCRA”).  Then, this week, in United States v. Donovan, the court joined the ranks of several other courts of appeals that have been put in the unenviable position of having to interpret and apply the U.S. Supreme Court’s confusing and unhelpful plurality holding in Rapanos v. United States.


Several years prior to the commencement of the Raritan Baykeeper litigation, NL Industries and other defendants had been ordered by the New Jersey Department of Environmental Protection (“NJDEP”) to study the cause and extent of contaminated sediments in the Raritan River and had reported to NJDEP that off-site sources were contributing to the contamination.  The NJDEP agreed with this conclusion and determined that “any remedial actions conducted in this area of the river should be part of a regional approach.”  Since making that determination in 2004, NJDEP had taken no action to implement a “regional approach” to remediation of river sediments.

The plaintiffs in Raritan Baykeeper then brought a citizen suit pursuant to Section 7002(a)(1)(B) of RCRA, 42 U.S.C. § 6972(a)(1)(B), and Section 505 of the CWA, 33 U.S.C. § 1365(a)(1), to compel the remediation of the contaminated river sediments.  The Defendants moved to dismiss on abstention grounds based upon the prior involvement of, and the determinations made by, the NJDEP.  The district court granted defendants’ motion, concluding that abstention was appropriate under both the primary jurisdiction doctrine and under Burford v. Sun Oil Co., 319 U.S. 315 (1943), and plaintiffs appealed.

The Third Circuit began its analysis by noting that both the RCRA and CWA citizen suit provisions specify certain government enforcement actions that statutorily limit the availability of citizen suits.  For example, both statutes explicitly preempt citizen suits where the EPA or a state has commenced and is diligently prosecuting an enforcement action in court concerning the same alleged violations.  The parties to the Raritan Baykeeper litigation had agreed that such statutory preemption did not apply in the case, and the court thus framed the issue as “whether the District Court erred by declining to hear the case for reasons other than those enumerated in the RCRA and CWA.”

After applying the applicable tests, the court concluded that “neither primary jurisdiction nor the Burford doctrine calls for abstention in this case,” summing up its thinking as follows:

This outcome is consistent with the decisions of our sister circuits.  The First Circuit explained that federal courts must “exercise great caution in considering abstention,” and that “the circumstances justifying abstention will be exceedingly rare,” because declining to hear a case for a reason not enumerated in the RCRA “would substitute our judgment for that of Congress about the correct balance between respect for state administrative processes and the need for consistent and timely enforcement of RCRA.”  Chico Serv. Station, Inc., 633 F.3d at 31, 32.  Similarly, the Seventh Circuit observed that, while “there may be room for applying the doctrines of abstention or primary jurisdiction . . . in cases in which a state has a formal administrative proceeding in progress that the citizens’ suit would disrupt,” abstention in RCRA ordinarily would amount to “an end run around the RCRA.”  PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998).  The same logic also applies to CWA actions, since that statute similarly provides for citizen suits except under specific, enumerated circumstances, none of which apply here.

Jurisdictional Wetlands Under Rapanos

United States v. Donovan is a criminal enforcement action brought by the United States against a Pennsylvania citizen accused of illegally filling wetlands on his property.  The defendant appealed his district court conviction on the grounds that the wetlands he had filled did not qualify as “waters of the United States.”  Defendant further argued that because the Supreme Court’s plurality opinion in Rapanos fails to provide any governing standard, pre-Rapanos case law should govern whether Donovan’s land is subject to the CWA.

The court summarily rejected the defendant’s argument that Rapanos fails to provide a governing standard, and quickly turned to the key issue on the appeal, i.e., whether to (1) agree with the Seventh and Eleventh Circuits and adopt Justice Kennedy’s “significant nexus” test as the sole basis for a finding of federal CWA jurisdiction over wetlands, or (2) agree with the First and Eighth Circuits and allow a finding of federal jurisdiction to be based upon either Justice Kennedy’s significant nexus test or the plurality’s “continuous surface connection” test.

(Readers not already familiar with Rapanos are referred the Supreme Court’s opinions therein and/or to the Third Circuit’s summary set forth at pages 10-12 of the U.S. v. Donovan slip opinion).

In its analysis of which test(s) to adopt, the court referenced one of the Rapanos dissenting opinions (authored by Justice Stevens), and explained:

At first glance, the Rapanos opinions seem to present an analytical problem: the three opinions articulate three different views as to how courts should determine whether wetlands are subject to the CWA, and no opinion was joined by a majority of the Justices.  So which test should apply?  Interestingly, after explaining why he would have affirmed the judgments below, Justice Stevens noted that, “[i]t has been [the Supreme Court’s] practice in a case coming to us from a lower federal court to enter a judgment commanding that court to conduct any further proceedings pursuant to a specific mandate.”  Id. at 810 (Stevens, J., dissenting).  That practice, he observed “has, on occasion, made it necessary for Justices to join a judgment that did not conform to their own views.”  Id. (citations omitted).  Then, Justice Stevens stated that, although the Justices voting to remand disagreed about the appropriate test to be applied, the four dissenting Justices—with their broader view of the CWA’s scope—would nonetheless support a finding of jurisdiction under either the plurality’s or Justice Kennedy’s test, and that therefore the Corps’ jurisdiction should be upheld in all cases in which either test is satisfied.  Id. at 810 & n.14.

United States v. Donovan, Slip Op. at 12.  The court then accepted Justice Stevens’s invitation:

Recognizing that the plurality and Justice Kennedy had failed to give a mandate to the Court of Appeals on remand, Justice Stevens and the dissenters provided the mandate. Were we to disregard this key aspect of his opinion we would be ignoring the directive of the dissenters. They have spoken and said that, while they would have chosen a broader test, they nonetheless agree that jurisdiction exists if either the plurality’s or Justice Kennedy’s test is met.

*                                              *                                              *

In any given case, this disjunctive standard will yield a result with which a majority of the Rapanos Justices would agree.  See Casey, 947 F.2d at 693.  If the wetlands have a continuous surface connection with “waters of the United States,” the plurality and dissenting Justices would combine to uphold the Corps’ jurisdiction over the land, whether or not the wetlands have a “substantial nexus” (as Justice Kennedy defined the term) with the covered waters.  If the wetlands (either alone or in combination with similarly situated lands in the region) significantly affect the chemical, physical, and biological integrity of “waters of the United States,” then Justice Kennedy would join the four dissenting Justices from Rapanos to conclude that the wetlands are covered by the CWA, regardless of whether the wetlands have a continuous surface connection with “waters of the United States.”  Finally, if neither of the tests is met, the plurality and Justice Kennedy would form a majority saying that the wetlands are not covered by the CWA.

United States v. Donovan, Slip Op. at 19, 21-22.

Double kudos to the Third Circuit for two jobs well done!