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Louisiana Environmental Action Network v. Defendants–Appellees the City of Baton Rouge and the Parish of East Baton Rouge.

País/Territorio
Estados Unidos de América
Tipo de la corte
Otros
Fecha
Apr 17, 2012
Fuente
UNEP, InforMEA
Nombre del tribunal
United States Court of Appeal for the Fifth Circuit
Juez
King, Benavides and Dennis.
Número de referencia
No. 11-30549
Idioma
Inglés
Materia
Agua, Cuestiones jurídicas
Palabra clave
Derechos de agua
Resumen
The Louisiana Environmental Action Network filed a citizen suit against the City of Baton Rouge and the Parish of East Baton Rouge, alleging violations of the Clean Water Act. The Defendants filed a Rule 12(b)(6) motion to dismiss, asserting that the citizen suit was barred under the "diligent prosecution" provision of the Act. 33 U.S.C. § 1365(b)(1)(B). The district court granted the motion to dismiss, but on the ground that the 2002 consent decree mooted Plaintiff's claims.On appeal, Plaintiff contends that the district court erred in granting the Defendants' motion to dismiss. The Appeals Court reversed the district court's judgment and remanded the case for further proceedings consistent with its opinion. The Appeals Court said, ". . .we conclude that Congress has not provided a clear statement that the "diligent prosecution" bar is jurisdictional. Absent such a clear statement from Congress, we hold that the 'diligent prosecution' bar is a non jurisdictional limitation on citizen suits. See Arbaugh, 546 U.S. at 516 ('[W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.'). The Appeals Court explains, "Our conclusion that the CWA's 'diligent prosecution' provision is non jurisdictional is buttressed by the Seventh Circuit's recent decision in Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011). There, the court held that the "diligent prosecution" provision of the Resource Conservation and Recovery Act ('RCRA') -- which is virtually identical to the 'diligent prosecution' provision of the CWA -- is not jurisdictional. Id. at 492. Applying the guiding principles of the recent Supreme Court cases, the Seventh Circuit concluded that, because 'RCRA's limits on citizen suits appear in separate provisions that do not "speak in jurisdictional terms,"' the RCRA 'diligent prosecution' bar is a nonjurisdictional claim-processing rule. Having determined that the CWA's 'diligent prosecution' bar is not jurisdictional, the question still remains whether the 'diligent prosecution' provision precludes LEAN's action in the present case. The Defendants assert that the EPA's continued enforcement of the 2002 consent decree constitutes diligent prosecution. Indeed, the Defendants point to the extensive remedial measures they are undertaking, as required by the 2002 consent decree, which are projected to cost the Defendants over $1 billion. The Defendants contend that LEAN's 'lawsuit stands as an impediment' to their efforts to achieve compliance with the CWA. However, LEAN asserts that the EPA is not diligently prosecuting the 2002 consent decree, noting the plants' ongoing, noncompliant discharges and the EPA's failure to impose stipulated penalties for these violations. LEAN argues that the issue of 'diligent prosecution' is a fact-intensive question that can only be answered after the proper development of a record. We take no position on these arguments. We think it wise for the district court to determine in the first instance whether LEAN's suit is precluded under the "diligent prosecution" provision.
Texto completo
COU-158481.pdf