Citizen suits under the Resource Conservation and Recovery Act: plotting abstention on a map of federalism.

AuthorGibson, Charlotte

In the shadow of the Supreme Court's constitutional federalism doctrines,(1) lower federal courts have developed doctrines of common law federalism through vehicles such as abstention.(2) In the environmental law arena, courts have employed a number of abstention theories to dismiss citizen suits brought under federal statutes.(3) The appearance of primary jurisdiction and Burford abstention in citizen suits brought under the Resource Conservation and Recovery Act ("RCRA")(4) exemplifies this trend.

In rejecting RCRA suits, some courts have relied on primary jurisdiction, a doctrine conceived as a mechanism to allocate responsibility for limited fact-finding between courts and agencies, to dismiss RCRA citizen suits. These courts have emphasized the, technical nature of evaluating RCRA violations and the superiority of state agencies as the bodies to address such issues? Although primary jurisdiction often allows the plaintiff to return to court following agency resolution of particular issues,(6) RCRA dismissals under the doctrine may be so open-ended that they are effectively final.(7) Because RCRA creates an exclusively federal cause of action,(8) dismissals leave citizen plaintiffs with no judicial forum.

Other courts have applied the doctrine of Burford abstention, which allows federal court dismissal where adjudication would involve complicated questions of state law or would interfere with a state's attempts to develop a regulatory scheme. Although the appellate courts that have invoked Burford abstention have only addressed suits that challenged permitting or siting decisions,(9) lower courts have applied the reasoning to abstain from RCRA citizen suits more generally. District courts using these rulings have extended the use of Burford to cases where the plaintiffs sought to redress RCRA violations or endangering conditions.(10) Burford claims have arisen with increasing frequency in RCRA suits,(11) probably because RCRA's jurisdictional provisions are too clear to allow for disputes about when the statute precludes a claim.

Courts that have employed these doctrines have ignored the explicit goals and jurisdictional structure of RCRA. In enacting the comprehensive statutory and regulatory provisions of RCRA, Congress adopted a scheme of environmental law with national minimum standards and provisions for federal court enforcement. To facilitate judicial oversight, Congress created two federal causes of action for citizen suits in addition to EPA and state regulatory enforcement.(12) The statute also articulates the limited circumstances under which a citizen suit is barred: if either the state agency or the EPA has already commenced an enforcement action regarding the alleged violation,(13) or if plaintiffs are using the citizen suit as a way to challenge the terms of a permit or a determination as to where a particular facility will be located? These statutory limits determine precisely when a federal court must dismiss a RCRA citizen suit.

This Note argues that dismissals based on the, primary jurisdiction and Burford abstention doctrines violate the enforcement approach developed by Congress under RCRA and constitute judicial rulemaking beyond the established boundaries of the two doctrines. Part I argues that the policy concerns underlying the primary jurisdiction doctrine make it inapplicable for dismissals of RCRA citizen suits because RCRA's statutory scheme depends on federal court oversight, not agency independence, to ensure uniformity. Part II turns to the Burford doctrine, describing the local law focus of the doctrine and demonstrating that the explicitly federally centered statutory scheme makes RCRA suits inappropriate candidates for Burford abstention. Part II also asserts that because citizen suits challenging state-issued permits -- the factual setting in which the Fourth and Sixth Circuits have employed Burford abstention -- are outside of the statute's jurisdictional grant, invocation of Burford in that setting is unnecessary. Part III addresses the suitability of the primary jurisdiction and Burford doctrines as methods for creating a judicially fashioned theory of federalism. This Part argues that in the RCRA context, federal court abstention does not productively further a more state-centered vision of cooperative federalism. This Note concludes that abstention theories are inappropriate in the context of an expansive federal statutory scheme, and that, absent constitutional infirmities, policy judgments as to the wisdom of such federal regulation should be left to Congress.

  1. PRIMARY JURISDICTION

    Primary jurisdiction, often discussed by courts along with the Burford doctrine in the context of RCRA citizen suits,(15) allows a court to allocate jurisdiction between itself and an administrative agency where the forums share the ability to decide one or more of the issues at stake in the lawsuit,(16) The doctrine, first articulated by the Supreme Court in Texas and Pacific Railway Co. v. Abilene Cotton Oil Co., allows a court either to stay its jurisdiction or to grant a dismissal pending a hearing before the agency.(17)

    Four policy concerns underlying primary jurisdiction are frequently discussed in the RCRA context. As a prerequisite to applying the primary jurisdiction doctrine, the statutory scheme at issue must be vague about whether a court or an agency should assume jurisdiction over a matter.(18) Second, the doctrine is appropriate only where the relevant legislative body specifically holds all agency responsible for providing uniform application of a statute,(19) or where a statute dictates that an agency's particular duties supersede those of the court.(20) A court must not defer where the federal judiciary provides the only guarantee that a federal statutory scheme is uniformly applied.(21) Third, courts have applied primary jurisdiction where a statute relies on an agency's technical specialization as a factfinder.(22) Finally, primary jurisdiction may cure various problems arising when an agency and a court share jurisdiction in a way that affects the regulation of a particular defendant.(23) The assessment of each of these concerns turns on the purposes of the statute and the roles assigned to each governmental body acting under it.(24)

    This Part argues that each of these concerns weighs against applying primary jurisdiction to RCRA citizen suits.(25) Section I.A examines the jurisdictional grant under the statute and demonstrates that this framework represents a codified system of court/agency roles needing no further judicial articulation. Section I.B argues that the main policy underlying primary jurisdiction, ensuring the uniform application of a statute, weighs against the doctrine's application to RCRA suits because RCRA's statutory scheme relies on federal courts, not state agencies, to provide such uniformity. Section I.C rejects the view that the issue of an agency's technical specialization favors dismissing RCRA citizen suits on primary jurisdiction grounds because the statute allocates resources for courts to achieve proficiency. Section I.D concludes that the various issues raised by potentially conflicting court and agency action do not require the application of primary jurisdiction in the RCRA context.

    1. Notice and Preclusion

      RCRA's jurisdictional provisions are so specific that they leave the federal courts with no opportunity to assert jurisdictional discretion. This congressional guidance dictates that a federal court must assume jurisdiction when a citizen suit meets the jurisdictional requirements of the statute.(26)

      The first jurisdictional limitation allows suit truly when notice requirements have been met. Citizen plaintiffs must provide notice to any potential defendant, the EPA, and the state administrative agency prior to commencing suit.(27) This notice mechanism allows the state or the EPA to prevent a citizen suit altogether by filing its own action against the defendant(28) or by compelling compliance before the citizen suit can commence.(29)

      The specific window of time in which an alleged violator may correct problems without court involvement defines the role of state agencies within the context of citizen suits.(30) Rather than dismissing a case under an abstention doctrine in order to allow state participation in the remedying of violations, federal courts need only ascertain that the plaintiff has properly complied with the statutory notice provisions. Observance of this notice rule guarantees that states have an opportunity to participate in the cooperative scheme without jeopardizing RCRA's mandate for timely remediation of solid and hazardous waste violations.(31)

      The second limitation on jurisdiction prohibits a citizen suit if the EPA or state agency is diligently prosecuting its own action under RCRA or a specific sister statute.(32) By specifying that only formal court action bars citizen suit litigation, Congress implicitly instructed federal courts not to treat various administrative activities, such as inspections of a site or compliance agreements between an alleged violator and the state agency, as jurisdictional hurdles.(33) Courts have unanimously understood the statutory bar to require court action, not simply administrative inquiry.(34)

      Together, the notice provisions and preclusion language create a clear path guiding federal court jurisdiction over RCRA citizen suits. Accordingly, RCRA does not leave open the kind of jurisdictional gaps required for an application of the primary jurisdiction doctrine.

    2. Uniformity, Broad Enforcement, and the Federal Courts

      The task of ensuring uniform application of RCRA falls upon the federal courts rather than state agencies. Minimum national standards are a core component of RCRA's mandate, and the broad enforcement mechanisms embedded in the statute charge federal courts with guaranteeing those minimums. Without that oversight, state agencies act in isolation...

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