[*PG399]APPLICATION OF THE PRIMARY JURISDICTION DOCTRINE TO CLEAN AIR ACT CITIZEN SUITS

Michael Penney*

Abstract:  Increasingly, defendant’s to environmental citizen suits are urging judges to apply the primary jurisdiction doctrine. The doctrine grants judges the discretion to transfer court claims to administrative agencies where the agencies share jurisdiction over the claim. Judges determine whether to apply the primary jurisdiction doctrine based on considerations of efficiency and the relative competence between the court and agency with regard to the matter. While commentators have analyzed the application of the primary jurisdiction doctrine to Resource Conservation and Recovery Act citizen suits, no such analysis exists for the application of the primary jurisdiction doctrine to Clean Air Act suits. This note sets out that analysis and concludes that judges should apply an open-ended analysis when determining whether to apply the primary jurisdiction doctrine to Clean Air Act citizen suits.

Introduction

Environmental statutes engender complex relationships between courts and agencies. This note analyzes how the doctrine of primary jurisdiction to address an aspect of this complexity and analyzes whether judges should apply the doctrine in the context of Clean Air Act (CAA) citizen suits.

The primary jurisdiction doctrine is a judge-made doctrine that allows a judge to transfer an entire claim or individual issues of a claim to an administrative agency for resolution.1 Judges invoke the doctrine to promote efficiency and to balance the relationship between administrative agencies and courts where their jurisdictions overlap.2 The Supreme Court has established a broad and flexible analytical framework for the application of the doctrine, while lower [*PG400]federal courts have developed more specific criteria.3 In the context of environmental protection statutes, courts have addressed primary jurisdiction issues most often in the context of the Resource Recovery and Conservation Act (RCRA).4 The analysis and rationales emerging from these cases have become the analytical framework guiding the application of the primary jurisdiction doctrine in the context of other environmental statutes.5

This note concludes that the analysis of the judicially-created primary jurisdiction doctrine in the context of RCRA should not be extended to CAA citizen-suits.6 Further, this note argues that, except where the CAA citizen-suit is filed to compel EPA or a state environmental agency to act pursuant to the statute, courts may establish primary jurisdiction in EPA or state agency.7

I.  The Primary Jurisdiction Doctrine

A.  The Definition and Purpose of the Primary Jurisdiction Doctrine

Courts use the primary jurisdiction doctrine to balance the relationship between courts and administrative agencies when their jurisdictions overlap.8 An agency’s statutory authority and a court’s subject matter jurisdiction are often coextensive.9 For example, a statute may supplement an agency’s adjudicative powers with judicial remedies.10 Jurisdictional overlaps also occur when a court’s subject matter jurisdiction is based on common law, but the application of the common law requires a factual determination normally made by an agency.11 [*PG401]Finally, Congress occasionally grants agencies jurisdiction once confided solely to courts without repealing the courts’ jurisdiction.12

Primary jurisdiction issues arise when a party files a claim pursuant to a court’s subject matter jurisdiction, but the opposing party argues that an agency should resolve the issue according to its statutory authority. A judge then analyzes the advantages and disadvantages of judicial versus administrative resolution of the issue.13 If the judge concludes that the agency’s jurisdiction should supersede the court’s, the judge will hold that the agency has primary jurisdiction.14

Two significant consequences follow from a judge’s conclusion that an agency has primary jurisdiction.15 First, some degree of decision-making power is transferred to the agency.16 A court does not necessarily lose all of its authority over the matter because the court may either retain its ability to make a final ruling on the matter or dismiss the case without prejudice and allow only administrative review.17 The second consequence results if the court retains its ability to make a final ruling after the agency has resolved a particular issue.18 When this path is chosen, the court stays further judicial proceedings until the agency resolves the issue.19

B.  The Basic Application of the Primary Jurisdiction Doctrine

Courts have not developed a specific formula to analyze primary jurisdiction issues.20 Instead, judges consider multiple factors, on a case-by-case basis, to determine when primary jurisdiction in an agency is appropriate.21 First, judges have used statutory interpretation to determine whether the legislation in question resolves the issue.22 Judges also consider whether an administrative agency should have primary jurisdiction to ensure the uniform application of a stat[*PG402]ute.23 Third, judges determine whether an agency’s technical expertise is required for the application of a particular statute and, thus, makes the agency a more appropriate forum.24 Finally, judges consider whether concurrent proceedings in a court and agency will likely impose conflicting obligations on the defendant.25

II.  Development of the Primary Jurisdiction Doctrine

A.  First Statement of the Primary Jurisdiction Doctrine—Texas & Pacific Railway v. Abilene Cotton Oil Co.

The Supreme Court first recognized the primary jurisdiction doctrine in Texas & Pacific Railway Co. v. Abilene Cotton Oil Co. (Abilene Cotton).26 In Abilene Cotton, the Abilene Cotton Oil Company claimed that the Texas & Pacific Railway violated the Interstate Commerce Act (ICA) by charging an “unjust and unreasonable rate” to ship Abilene Cotton’s goods.27 Texas & Pacific Railway asserted that a county district court did not have the jurisdiction to grant relief to Abilene Cotton until the Interstate Commerce Commission (ICC) first determined that the rate was unreasonable under the statute.28 Thus, Abilene Cotton presented the question of whether the ICC should have primary jurisdiction over the enforcement of the ICA.29

The Supreme Court found in favor of the Texas & Pacific Railway and held that the lower court lacked jurisdiction to grant relief to Abilene Cotton until the ICC determined the reasonableness of the rates charged by the Texas & Pacific Railway.30 The Court reasoned that the ICC should have primary jurisdiction on the issue of rate reasonableness to ensure uniform application of the ICA and to prevent disparate rates.31 Congress had enacted the ICA and created the ICC to end shipping-rate discrimination. Therefore, the ICA embodies an “indissoluble unity” between the creation of cargo rates and “prohibitions against preferences and discrimination.”32 The Court believed [*PG403]that the goal of uniformity could not be accomplished if courts and the ICC had equal power to hear rate cases because court and ICC decisions on the same action could diverge.33 The Supreme Court also believed holding that the ICC had primary jurisdiction comported with congressional intent because Congress granted the ICC with rule making authority, a broad power to grant reparations to shippers for violations of the ICA, and the power to cure carrier violations.34

B.  Refining the Primary Jurisdiction Doctrine—Great Northern Railway Co. v. Merchants’ Elevator Co.

The Supreme Court’s holding in Abilene Cotton suggests that an agency should have primary jurisdiction whenever the agency’s exclusive control promotes the uniform enforcement of a statute.35 As the Supreme Court has refined the doctrine, however, it has limited the holding in Abilene Cotton and additional considerations emerged in the Court’s analysis.36

The degree to which resolution of an issue requires the agency’s specialized expertise is chief among those considerations.37 In Great Northern Railway Co. v. Merchants’ Elevator Co., the Supreme Court first addressed agency expertise when it applied the primary jurisdiction doctrine to a case involving statutory construction.38 Merchants’ Elevator sued the Great Northern Railway Company for charging it in violation of Great Northern’s allowed tariffs.39 Under a special statutory rule, railroads could charge shippers $5.00 per car if the car “is diverted, reconsigned or reforwarded to a point outside of switching limits of original jurisdiction.”40 Great Northern claimed that the additional fees assessed on Merchants’ Elevator were properly within the rule.41 Merchants’ Elevator, however, claimed that Great Northern could not charge an additional $5.00 per car because of an exception [*PG404]to the special rule.42 Thus, the case forced the lower courts to determine the meaning and applicability of the rule and its exception.43

Great Northern Railway cited Abilene Cotton and claimed that “until the true construction of the tariff had been determined by the Interstate Commerce Commission, the trial court was without jurisdiction.”44 This presented the Supreme Court with the primary jurisdiction doctrine issue of “whether any court had jurisdiction of the controversy, in view of the fact that the Interstate Commerce Commission had not passed upon the disputed question of construction.”45 To support its primary jurisdiction doctrine argument, Great Northern Railway first asserted that the principle goal of the Commerce Act is to promote uniform shipping rates.46 Great Northern Railway argued that only interpretation by the ICC would promote the uniform application of the commerce act and, thus, the ICC should have primary jurisdiction.47

The Supreme Court disagreed.48 First, the Court noted that issues involving statutory and rule construction are questions of law that courts generally have the capacity to address.49 Second, the Court stated the appellate process could also ensure uniformity because, while issues of construction may arise in federal or state courts, appellate courts could review lower court decisions to ensure a uniform application of the law.50 The Supreme Court agreed that agency interpretations would promote uniformity, but the Court concluded that this did not automatically support a holding for primary jurisdiction in the agency because granting jurisdiction to the agency was not the only means to ensure uniform construction and application of statutes.51 The Court was impelled to consider other factors because uniformity considerations were not dispositive on whether the ICC should have primary jurisdiction on issues of statutory interpretation.52

[*PG405] The Supreme Court stated that the degree of agency expertise needed to resolve the issue would determine how the Court should allocate jurisdiction.53 According to the Court, the level of expertise required depended on whether the words in the statute were used according to their “ordinary meaning” or in a “peculiar meaning.”54 In the first instance, the Supreme Court concluded that courts may retain jurisdiction because the application of words in their ordinary meaning is a question of law properly to be determined by a court.55 Where the wording of a statute had a “peculiar meaning,” the Supreme Court believed that the agency responsible for the enforcement of the statute would be in a superior position to interpret the statute because resolution of the interpretative issue would require evidence not readily available to the court or litigants and also required the thorough familiarity of complicated facts only possessed by the agency’s experts.56 Applying this dichotomy to the interpretive question presented in Great Northern, the Supreme Court concluded that the rule involved the application of words according to their ordinary meaning.57 The Court retained jurisdiction to interpret the ICA because, in such circumstances, the Court was responsible for resolving a question of law and could ensure uniformity just as well as the ICC.58

C.  Abilene Cotton and Great Northern as Guides to the Application of the Primary Jurisdiction Doctrine

From the Supreme Court’s decision in Great Northern the defining characteristics of the primary jurisdiction doctrine emerged: no single factor is conclusive, it is applied on a case-by-case basis, and the final allocation of jurisdiction to an agency depends on the scope of the agency’s expertise and whether agency action promotes uniformity.59 In the case of the uniformity, the Court in Great Northern established that the ability of the agency to ensure uniform enforcement is not [*PG406]enough to justify allocation of jurisdiction to the agency.60 A court must also determine that judicial enforcement will fail to produce uniform results.61 The expertness consideration is also not conclusive. The Supreme Court strongly asserts that a court should retain jurisdiction over pure questions of law and in complicated cases counsel may be able to adduce the necessary facts and solicit the help of the experts needed to resolve the issue.62 However, primary jurisdiction and agency expertise are significantly linked because, as the issues become more complicated and as the technical expertise of the agency becomes more essential, courts should grant the agency primary jurisdiction.63

III.  The Primary Jurisdiction Doctrine in the Context of Environmental Statutes—Citizen-Suits Under the Resource Recovery and Conservation Act as the Theoretical Core

A.  Overview

In the context of environmental statutes, judges and commentators have analyzed the primary jurisdiction doctrine most often in the context of Resource Recovery and Conservation Act (“RCRA”) citizen-suit provisions. The judicial analysis of the applicability of the primary jurisdiction doctrine to RCRA citizen-suits has varied across jurisdictions and a dominant trend in court decisions has yet to emerge.64 Moreover, the primary jurisdiction doctrine in the context of RCRA or any other environmental statute has been addressed only once by legal commentators.65 Despite disunity in judicial decision-making and scant academic treatment, the application of the primary jurisdiction doctrine to RCRA citizen-suits illuminates the issues that confront the applicability of the doctrine to other environmental statutes and doctrines.66 Most importantly, the RCRA primary jurisdiction cases form a core of competing and supporting rationales to [*PG407]which judges considering primary jurisdiction issues under other environmental statutes cite for persuasive authority.67 Additionally, these cases also illustrate how federal judges have expanded the primary jurisdiction principles developed by the Supreme Court.68

In their application of the primary jurisdiction doctrine to RCRA citizen-suits, courts and commentators have emphasized three principle issues.69 First, courts have focused on whether Congress provided statutory guidance on how to resolve EPA and judicial overlaps.70 Courts have also considered whether the issues that arise under RCRA citizen-suits fall within the specialized expertise of EPA.71 Finally, judges have analyzed whether concurrent agency and judicial proceedings would likely impose conflicting obligations on a RCRA defendant.72

B.  Principle Arguments for and Against the Application of the
Primary Jurisdiction Doctrine in RCRA Citizen-Suits
Based on Congressional Intent

1.  Congressional Intent and Referral to State Agencies

The analysis of congressional intent relates primarily to whether a judge may transfer a RCRA citizen-suit from a federal court that has proper subject matter jurisdiction to a state environmental agency.73 To decide this issue, courts have analyzed congressional intent, as expressed in or implied by RCRA, to determine whether the statute, by its terms, permits referral of federal issues to state environmental agencies.74 Federal district courts are divided on this issue. Several [*PG408]federal district courts have held that state agencies should have primary jurisdiction over RCRA citizen-suit issues and thus transferred claims to state environmental protection agencies.75 Other federal courts, however, have refused to grant state environmental protection agencies primary jurisdiction because those courts believed Congress’s intent to create national and uniform pollution standards through RCRA required federal oversight.76 No federal circuit court has addressed this issue.77

Where judges have invoked the primary jurisdiction doctrine to transfer a RCRA citizen-suit issue to a state agency, the courts’ explicit reasoning has been scant because the courts do not analyze whether their decisions comport with Congress’s intent.78 In contrast, courts refusing to hold that state agencies should have primary jurisdiction relied on arguments based on an analysis of congressional intent.79 That analysis consists of two steps: the courts first identify Congress’s intent and then analyze whether the primary jurisdiction in the agency would thwart that intent.80

Those courts that have considered this issue fully have not granted primary jurisdiction to state agencies because RCRA establishes broad federal enforcement powers to ensure national standards.81 Congress explicitly stated in RCRA that waste disposal is a national issue and that “the problems of waste disposal . . . [had] become a matter national in scope and in concern and necessitate[d] federal action.”82 Further, Congress enacted RCRA because piecemeal regulatory efforts by the states did not adequately address national waste disposal problems.83 To enact this mandate, Congress endowed the EPA and citizens with broad enforcement powers.84 Congress’s [*PG409]mandate is further advanced through the citizen-suit provisions that empower citizens to initiate federal actions against parties who create an imminent hazard, against past polluters, and against present polluters.85

After identifying Congress’s intent as the creation of a broad federal enforcement power, it logically follows that the court should not transfer a RCRA citizen-suit—granting primary jurisdiction to a state agency .86 Specifically, courts have refused to use the primary jurisdiction doctrine to transfer RCRA issues to state environmental protection agencies because that application of the doctrine would be inconsistent with RCRA’s statutory language and purpose.87 Courts have also stated that deference to state agencies would thwart Congress’s intent of national uniformity because “review by fifty different state agencies with fifty different charters . . . is more likely to ensure non-uniformity” of standards and enforcement.88

Arguments based upon Congress’s broad intent, therefore, strongly favor not transferring a RCRA citizen-suit to a state agency.89 Congressional intent, however, does not answer the question of whether a RCRA citizen-suit should be transferred out of federal court to the EPA. To decide this issue, courts have probed more deeply into the statutory language to determine whether Congress pre-allocated jurisdiction between the EPA and federal courts.90

2.  Congress Clearly Delineated the Jurisdiction Between EPA and Federal Courts

Many judges have cautioned against blindly holding that EPA has primary jurisdiction because federal courts must assume jurisdiction over citizen-suits which meet RCRA’s jurisdiction requirements.91 The primary jurisdiction doctrine allows judges to allocate jurisdiction between courts and administrative agencies to promote a uniform and efficient court-agencyrelationship.92 But judges may not exercise that discretion where Congress explicitly delineates jurisdiction over [*PG410]RCRA issues.93 Congress expressly demarcated the jurisdictional bounds between the EPA and federal courts in RCRA.94, Thus, judges have limited discretion to invoke the doctrine because Congress’s definition of the respective jurisdiction of the EPA and the federal courts is final and not amendable by a court.95 Like the congressional intent arguments, courts in favor of granting primary jurisdiction to EPA have not addressed this issue.96

Courts have limited a judge’s discretion to use the primary jurisdiction doctrine in RCRA citizen-suits by asserting that RCRA pre-establishes the jurisdictional balance between courts and the EPA.97 A specific window of opportunity exists for the EPA to acquire jurisdiction over a RCRA issue, as does an absolute right for citizen plaintiffs to sue in federal court after that opportunity passes.98 A plaintiff who initiates a citizen-suit must wait sixty days after notifying EPA and the alleged violator before she can commence a claim in federal court against a person who violates RCRA regulations or permits.99 The waiting period is ninety days for claims against persons who create an “imminent and substantial endangerment.”100 These waiting periods create the window of opportunity for EPA because EPA has the power to usurp the citizen-suit by initiating an EPA enforcement action against the alleged polluter.101 Thus, whether a plaintiff can sue in federal court depends on whom he is suing, whether notice was properly filed, and whether EPA initiates administrative proceedings during the waiting period.102 Moreover, the Supreme Court in Hallstrom v. Tallamook County stated that these provisions illustrate Congress’s intent to balance the role of courts and the EPA in the application of RCRA through RCRA’s notice provisions.103

Several courts have concluded that they cannot apply the primary jurisdiction doctrine to RCRA citizen-suits because Congress has al[*PG411]ready allocated jurisdiction between EPA and the courts depending on whether EPA’s window of opportunity has passed.104 For example, in the most recent decision on this issue, PMC, Inc. v. Sherwin-Williams Co, Judge Posner stated that primary jurisdiction did not bar a plaintiff’s RCRA suit where EPA failed to assume jurisdiction for the matter during its window-of-opportunity.105 Judge Posner concluded, “[t]hat would be an end run around RCRA. Congress has specified the conditions under which the pendency of other proceedings bars suit under RCRA and, as we have just seen, those conditions have not been satisfied here.”106 Thus, federal judges refuse to apply the primary jurisdiction doctrine in the context of RCRA citizen-suits because an exercise of such discretion contravenes the jurisdictional balance and the citizen’s right to sue as established by RCRA’s notice and waiting periods.107

C.  Arguments for and Against the Application of the Primary Jurisdiction Doctrine to RCRA Citizen-Suits Based on Technical Expertise and the Possibility of Conflicting Obligations

1.  Technical Expertise

Those judges who apply the primary jurisdiction doctrine to RCRA have based their arguments primarily on the agency expertise dichotomy developed in Great Northern.108 Courts that have applied the primary jurisdiction doctrine have argued that a RCRA citizen-suit presents two issues best left to a specialized agency.109 First, in a RCRA citizen-suit, a judge must determine whether the defendant’s activities and conduct pose “an imminent and substantial endangerment to human health or the environment.”110 If the court finds the defendant culpable under RCRA, it must fashion a remedy that is appropriate to the violation.111 Both issues present highly scientific questions of fact and require scientific analysis, specialized investigation, and [*PG412]expert testimony.112 Moreover, judges often fear duplications of effort because agencies are constantly engaged in these functions.113 Therefore, in cases granting primary jurisdiction to the EPA, judges have reasoned that the agency’s specialization, experience, and flexible procedures were better suited to address certain issues.114 Additionally, those judges holding that EPA should have primary jurisdiction believed the court lacked the resources needed to address adequately those issues.115

Judges, then, are tempted to defer to EPA to resolve RCRA issues because one of EPA’s primary functions is to enforce RCRA.116 However, several courts have noted that judges cannot use the primary jurisdiction doctrine to allocate RCRA issues to EPA simply because EPA has a specialized function in its enforcement.117 Instead, to determine whether the agency has primary jurisdiction because of its technical expertise, judges often focus on the court’s competence and the ability to effectively resolve RCRA issues.118 Only where the court lacks the competence and ability to effectively enforce RCRA, should primary jurisdiction be applied and jurisdiction allocated to the EPA.119 If the rule were otherwise, several judges and commentators argue that RCRA citizen-suits would be completely foreclosed by the primary jurisdiction doctrine because EPA’s specialization would, in all cases, support an administrative remedy rather than continuation of the citizen-suit.120

To that end, federal courts, as represented by the decision in Wilson v. Amoco, place the burden on defendants to prove the courts lack the competence to apply RCRA in individual cases because, the courts maintain, RCRA is not “so esoteric or complex as to foreclose [cases’] consideration by the judiciary.”121 Moreover, courts assert that judges must not shirk their duties because “courts are expected to develop the expertise required to enforce RCRA” in order to ensure complete and uniform enforcement of RCRA.122 Thus, federal judges frequently [*PG413]reject these arguments seeking the application of the primary jurisdiction doctrine by assuring that federal judges have the competence to apply RCRA and have an affirmative obligation to develop the expertise needed to enforce it.123

2.  Possibility of Conflicting Obligations

Courts also consider whether the primary jurisdiction doctrine should be applied to ensure that defendants are not subjected to conflicting orders from courts and agencies. For example, the court in Friends of Santa Fe County stated, “[If] this court independently determined an appropriate investigatory and remediation plan, aspects of the order may contradict [an EPA regulation] and subject the defendant to conflicting obligations.”124 In that case, the court concluded that the primary jurisdiction doctrine should be applied and that the agency should have sole discretion on the issue so as to prevent imposing conflicting obligations on the defendant.125

Case law rebutting the presumption made in Friends of Santa Fe County does not exist; however, commentators suggest that the presumptions can be rebutted.126 For example, in Friends of Santa Fe County, the plaintiff sought an order to force the defendant to obtain an appropriate RCRA permit and to enjoin the defendant from releasing acidic materials into a stream.127 The defendant argued that this would conflict with EPA’s internal remediation plan.128 To grant the plaintiff’s request and force the defendants to obtain the appropriate RCRA permits does not conflict with EPA rules and regulations because it would merely force the defendant to comply with those rules.129 The injunction would only conflict with agency orders and regulations in one circumstance—where the agency order or regulation was not stringent enough to prevent harm to the plaintiff.130 The conflict between the injunction and remediation plan does not justify deferring the action to the EPA as Friends of Santa Fe County suggests. [*PG414]Rather, the conflict supports the position that federal courts should retain jurisdiction in order to prevent harms otherwise permitted by the EPA’s regulations.131

Federal courts in other jurisdictions have also framed the conflicting-obligation issue in terms of conflicts between state agency and federal court orders.132 For example, the federal district court in Davies v. National Cooperative Refinery Ass’n stated that the Kansas Department of Health and Environment should have primary jurisdiction over a RCRA issue because “[a] potential for conflicting orders would exist if the court were to determine an investigatory and remediation plan independently of the [Kansas Department of Health and Environment].”133 Again, rebuttal to this argument has not been established in case law, but arguments in favor of the plaintiff do exist and are persuasive.

One commentator has stated that the argument for deferral to a state agency to prevent conflicts between state and federal orders “is simply not viable [because] the state and federal bodies operate as part of a single regulatory scheme” and, as with the EPA, the federal court’s order is essential to the uniform operation of that scheme.134 Thus, a successful defense against application of the primary jurisdiction doctrine to RCRA citizen-suits must rebut the presumption that a more stringent federal order causes a conflict requiring primary jurisdiction in the state agency.135 Under RCRA, state programs must be at least equivalent to the federal program because states cannot create rules and regulations that are less strict than the federal regulations.136 In this context a more stringent federal order may not justify primary jurisdiction in the state agency because a federal order issued in accordance with RCRA would effectively correct deficiencies in state rules and bring state regulations into compliance with the federal RCRA standards.137

[*PG415]D.  Other Considerations in the Application of the Primary Jurisdiction Doctrine—Actual Agency Proceedings and Agency Diligence

Judges often consider two final factors in their application of the primary jurisdiction doctrine to RCRA citizen-suits: whether the agency has already initiated proceedings on the issue and whether the agency is diligently attempting to resolve those issues.138 Where an agency is already addressing an issue involved in a RCRA citizen-suit, courts assert that “[i]t is axiomatic that the advisability of invoking primary jurisdiction is greatest where the issue is already before the agency.”139 Additionally, if the agency is not diligently pursuing the issue, the agency’s delay militates in favor of retained judicial jurisdiction.140 Neither factor is conducive to a broad discussion of whether the primary jurisdiction doctrine should be applied to RCRA because both factors depend on the facts of a particular case.

IV.  First Steps: The Primary Jurisdiction Doctrine in the Context of the Clean Air Act

Judges have analyzed the applicability of the primary jurisdiction doctrine to Clean Air Act (CAA) citizen-suits in only three cases.141 This section discusses the three federal district court cases that have addressed primary jurisdiction issues in the context of the CAA. In these cases, judges predominately relied on Congress’s intent, expressed in the CAA’s citizen-suit notice provisions, to prohibit grants of primary jurisdiction to administrative agencies.142 Judges also focused on the types of remedies sought by citizen plaintiffs and concluded that where the plaintiffs sought injunctions and money damages, rather than compliance orders, that there was no reason to establish primary jurisdiction in the agency.143 Finally, in CAA citizen-suit cases, judges only determine whether the defendants violated the [*PG416]CAA. This determination does not require the special expertise of agencies.144

A.  Anderson v. Farmland Industries

A federal district court most recently addressed the primary jurisdiction doctrine in the context of the CAA in Anderson v. Farmland Industries.145 In Anderson, the plaintiff sought an injunction and money damages against Farmland Industries under the CAA’s citizen-suit provisions to remedy emission and reporting violations.146 As part of its appeal, Farmland Industries urged the court to apply primary jurisdiction and transfer the case to the Kansas Department of Health and Environment (KDHE).147 Farmland had entered into a consent agreement with KDHE and was involved in a permitting process that would allow Farmland to continue polluting.148 Accordingly, Farmland argued that primary jurisdiction should be granted to KDHE and the citizen-suit prohibited because the citizen-suit would interfere with the consent agreements and permitting process.149

The court refused to grant KDHE primary jurisdiction because it believed granting jurisdiction would frustrate the purpose of the CAA citizen-suit provisions.150 The court based its rationale on persuasive authority discussing the primary jurisdiction doctrine in the context of RCRA.151 Relying primarily on PMC, Inc. v. Sherwin-Williams Co., the court in Anderson concluded that Congress pre-established the jurisdiction between the courts and Congress through the citizen-suit notice provisions.152 Specifically, the court believed that Congress expressly specified that citizen-suits may be initiated where the plaintiff gave notice according to the statute, and the defendant or agency failed to initiate action pursuant to the complaint.153 Anderson had fully complied with the notice provisions and Farmland Industries and KDHE failed to respond, so the court believed Anderson had a right to sue in court.154

[*PG417] The court in Anderson also concluded that KDHE should not have primary jurisdiction because the entire action was within the court’s competence.155 First, Anderson petitioned the court to stop an ongoing violation of the CAA.156 The court suggested that its decision might have been different if Anderson sought what would amount to administrative remedies, e.g., compliance schedules, emission standards, and other remediation orders.157 Given these circumstances and the lack of evidence in the record that the citizen-suit would disrupt the permitting process, the court concluded that the case did not involve issues within KDHE’s specialized expertise.158 Further, the court refused to grant KDHE primary jurisdiction because the “plaintiffs have not requested any relief requiring scientific or technical expertise.”159

B.  Local Environmental Awareness Development Group (LEAD) v. Exide Corp.

In Local Environmental Awareness Development Group v. Exide Corp., the Local Environmental Awareness Development Group (LEAD), a private environmental activism organization, sued the Exide Corporation claiming violations of the CAA, CWA, and RCRA.160 Specifically, LEAD alleged violations of CAA operating permits issued for the smoke stacks of Exide’s smelting facility.161 The plaintiffs brought their action under the citizen-suit provisions of each statute.162 Among the multiple defenses it asserted, Exide claimed that primary jurisdiction should be granted to the Pennsylvania Department of Environmental Protection (DEP) on the CAA and CWA claims because “DEP is the appropriate body to address CWA and CAA issues . . . .”163

The District Court for the Eastern District of Pennsylvania held that the primary jurisdiction doctrine could not be applied to the [*PG418]CAA claim.164 The court based this conclusion in large part on the fact that other federal courts have refused to apply the primary jurisdiction doctrine to CAA citizen-suit provisions.165 Further, the court believed that “applying the primary jurisdiction doctrine in citizen-suits actions would greatly reduce the instances in which a plaintiff could pursue such an action to facilitate broad enforcement of the environmental-protection laws and regulations.”166

Second, the courtdid not believe that Exide demonstrated factors favoring a grant of primary jurisdiction to the agency.167 Specifically, Exide did not demonstrate that the case required DEP’s special expertise.168 As in Anderson, the court in Exide believed that determining liability under the CAA did not require the special expertise of the DEP because the court was faced with the simple issue of whether Exide violated the provisions of the statute and applicable federal rules.169 Finally, the court believed that, by its terms, the CAA’s citizen-suit provisions removed any danger of conflicting obligations because “Congress has expressly set forth situations [through the CAA’s notice provisions] in which a citizen-suit is precluded . . . .”170

C.  Sierra Club v. Tri-State Generation and Transmission Ass’n, Inc.

In Sierra Club v. Tri-State Generation and Transmission Ass’n, Inc., an environmental activist group sued Tri-State, a Colorado power plant, for releasing air pollutants in violation of the CAA and the Colorado Air Quality Control Act (CAQC).171 The Sierra Club based its complaint on the citizen-suit provisions of the CAA.172 Tri-State responded to the suit in part by arguing that the Air Quality Commission of Colorado (AQCC) had started “rulemaking proceedings concerning the [air quality standards] at issue in this case” and, thus, the court should grant primary jurisdiction to the administrative agency.173

As in Anderson and LEAD, the court in Sierra Club rejected the defendant’s primary jurisdiction argument.174 First, the court reasoned [*PG419]that the primary jurisdiction doctrine should not be applied because the court was only asked to determine if Tri-State had violated existing CAA and CAQC standards.175 The court did not believe the case related to the AQCC’s contemporaneous efforts to develop new standards because the modified rules would not take effect until after public notice and comment and agency approval.176

The court in Sierra Club was also not convinced by Tri-State’s conflicting obligations argument.177 Tri-State claimed that the Sierra Club was demanding that Tri-State replace its current emission control technology, which would technical expertise beyond the court’s competence.178 The court responded:

Contrary to defendants’ assertion, however, plaintiff does not ask the court to order defendants to replace existing equipment; it asks the court to order defendants to: (1) comply with all applicable permits, statutes, and regulations; (2) provide plaintiff with the results of air-pollution samples they take; and (3) pay statutory penalties and plaintiff’s attorney fees and costs.179

The court implicitly reasoned that the CAQC’s expertise was not needed to grant such relief or that Tri-State faced the risk of conflicting obligations.180

V.  Toward a Coherent Theory: How the Primary
Jurisdiction Doctrine Should Be Applied
to Clean Air Act Citizen-Suits

Anderson, LEAD, and Sierra Club demonstrate that courts have relied heavily on RCRA case law to determine whether the primary jurisdiction doctrine should be applied to CAA citizen suits.181 The courts in these cases focused predominately on congressional intent and the role of agency expertise.182 Given this reliance on RCRA case [*PG420]law, courts did not begin their analysis from scratch and did not consider the broad pragmatic reasons in their primary jurisdiction analysis as prescribed by the Supreme Court.183 Therefore, it is necessary to test the applicability of the primary jurisdiction doctrine in the context of RCRA to the CAA citizen-suit provisions and develop alternative rationales that might justify or prohibit the application of the primary jurisdiction doctrine to the CAA.

To that end, this section concludes that arguments based on congressional intent do not persuasively establish that courts should always be preferred to the EPA and state environmental protection agencies with regard to CAA citizen-suits.184 This section then recommends that courts focus on the basic factors that bear on the decision to grant primary jurisdiction to administrative agencies.185 Specifically, courts should develop a new core of rationales based on the questions of whether: (1) uniformity requires agency action or can be ensured by the courts; (2) the technical expertise of the agency would promote efficiency; and (3) the parties face the possibility of inconsistent obligations where jurisdiction is retained by a court.

When this analysis is completed, two general guidelines emerge for the application of the primary jurisdiction doctrine to CAA citizen suits. First, where the private plaintiff is using the citizen-suit provisions to sue EPA or a government official, courts should retain jurisdiction because it would significantly disadvantage the plaintiff to transfer suits against the government to a governmental agency.186 Where the plaintiff, however, is suing a private party polluter, courts should not adopt the per se prohibition on the use of the primary jurisdiction doctrine that has emerged from CAA case law.187 Instead, courts should focus on the particular factual and interpretive questions presented by each case and determine from the basis of the claim and the issues involved whether the primary jurisdiction doctrine is applicable.188 By doing this, the primary jurisdiction doctrine in the context of CAA citizen-suits is brought full circle in that courts would no longer rely on RCRA case law; they would adopt the general maxim from Western Pacific Railway Co. that “[n]o fixed formula exists [*PG421]for applying the doctrine of primary jurisdiction.”189 To remain true to Supreme Court jurisprudence, courts, in the context of CAA citizen-suits, must develop an analysis tailored to the characteristics of each individual case.190

A.  A Rebuttal of the Primary Arguments Against Applying the Primary Jurisdiction Doctrine in the Context of CAA Citizen-Suits

Under RCRA, most courts began their primary jurisdiction arguments by analyzing the language of RCRA’s citizen-suit provisions.191 Courts found this analysis useful for two reasons. First, the analysis allowed the courts to determine whether they could transfer a citizen-suit from federal court to a state environmental protection agency.192 Second, statutory language allowed judges in the RCRA context to determine whether Congress pre-established jurisdiction between the federal courts and EPA.193 The courts in Anderson, LEAD, and Sierra Club, did not evaluate the coherence of these rationales in the context of the CAA.194 As a first step in the application of the primary jurisdiction doctrine to the CAA, then, the rationale of the RCRA cases should be tested.195

1.  Congressional Intent Does Not Likely Prohibit a Court from Holding That a State Agency Has Primary Jurisdiction

The courts in Anderson, LEAD, and Sierra Club did not thoroughly analyze whether congressional intent prohibited transfer of citizen-suit issues to state agencies because the judges largely ignored the RCRA case law on the issue.196 Several courts concluded that RCRA represented Congress’s intent to create a national system of hazardous materials regulations because the problems RCRA addressed required federal action, rather than piecemeal state action.197 Like pol[*PG422]lution from hazardous waste, air pollution is a national problem and Congress created broad enforcement power through the CAA. By analogy to RCRA cases such as Wilson v. Amoco, one might conclude that transfer of CAA citizen-suits to state agencies would be inconsistent with the CAA’s national enforcement purpose because it would frustrate Congress’s effort to create a national enforcement system.198

This parallel analysis is tenable; however, it neglects to account for how the CAA actually operates. Enforcement of environmental statutes and the development of regulations is the product of a cooperative relationship between the federal government and state environmental protection agencies.199 For example, under the CAA, the federal government is responsible for developing national air quality standards (NAAQS).200 Individual states can then develop regulations to ensure compliance with the NAAQS through state implementation plans (SIPS).201 Therefore, while Congress responded to national air pollution problems by enacting the CAA, the CAA actually orchestrates federal and state activities.202 Further, the actual implementation of the CAA depends, in many instances, on compliance with regulations developed by the states.203

Congress enacts citizen-suit provisions because the EPA lacks the resources to enforce every provision of an environmental statute against all potential polluters.204 To cure this underenforcement, citizen-plaintiffs can bring suits enjoining polluters and compelling administrators to act.205 Both the federal and state regulations are cognizable under the CAA’s citizen-suit provisions.206 Federal courts have concluded that citizen plaintiffs may use the citizen-suit provision to enforce EPA approved regulations, such as SIPs.207

Given the actual operation of the CAA, one cannot coherently argue that congressional intent forbids a judge from holding that a state agency has primary jurisdiction over issues implicated by a citizen-suit, because the CAA contemplates significant state enforcement [*PG423]and state-level issues are cognizable under the CAA’s citizen-suit provisions. Therefore, the CAA does not establish a per se prohibition on a state agency from having primary jurisdiction.

2.  The Citizen-Suit Notice Provisions Do Not a Court from Granting Primary Jurisdiction to the EPA or a State Environmental Protec-tion Agency

In the context of RCRA citizen-suits, several judges concluded that they could not apply the primary jurisdiction doctrine because RCRA’s notice provisions allocated jurisdiction between the courts and enforcement agencies.208 Courts should not make this argument in the context of CAA citizen-suits because notice under the CAA relates to a court’s subject matter jurisdiction over a citizen-suit and the EPA’s right to initiate its own civil action.209

It is important to remember that primary jurisdiction issues only arise when a court’s subject matter jurisdiction overlaps with an agency’s jurisdiction.210 Issues relating to the CAA’s notice provisions precede the primary jurisdiction issue because notice under the CAA determines whether a court has subject matter jurisdiction over the citizen-suit.211 The CAA notice provisions require a citizen-plaintiff to provide the alleged violator notice of the violation sixty days before filing suit.212 Courts have recognized that the purpose of such notice provisions is to give the “alleged violator an opportunity to bring itself into compliance with the Act and, thus, render unnecessary the citizen-suit.”213 Additionally, if the state “has commenced and is diligently prosecuting an action in federal or state court under the statute to cleanup the site, the citizen-suit is prohibited.”214 Therefore, if the alleged violator initiates clean up or the EPA files its own civil suit within sixty days, the court does not have jurisdiction to entertain the citizen-suit.215

[*PG424] Given that the CAA’s notice provisions determine the court’s subject matter jurisdiction, a primary jurisdiction issue only arises if the citizen plaintiff complied with the notice provisions, accordingly filed his claim in court, and the citizen-suit claim involves issues that are also within the agency’s authority.216 For example, the citizen-suit might involve a factual question that requires the agency’s technical expertise to resolve.217 Therefore, the argument that CAA citizen-suits that comply with the notice provisions preclude the use of the primary jurisdiction doctrine is not tenable because it addresses a completely different issue.

B.  Analyzing the Primary Jurisdiction Doctrine in the Context
of CAA Citizen-Suits

The congressional intent and notice arguments under RCRA are not dispositive in the CAA context, thus, courts should return to the basic building blocks of uniformity, technical expertise, and the possibility of conflicting obligations.218 In the application of these elements, courts should be mindful of the purpose of the primary jurisdiction doctrine—to balance the judicial and agency relationship where their jurisdictions overlap through an analysis of the advantages and disadvantages of judicial versus agency proceedings.219

This analysis necessarily revolves around the purposes of CAA citizen-suits. The first purpose of CAA citizen-suits is to provide a private party plaintiff the right to compel the EPA and other administrators to act in accordance with the CAA.220 The second purpose of the CAA citizen-suit provisions is to provide private parties a cause of action against private party polluters to enjoin their polluting behavior.221

Whether a court should grant primary jurisdiction to an agency over CAA citizen-suits, then, should be a function of who the plaintiff is suing. When the CAA citizen-suit provisions are being used to compel the EPA or government official to act,222 a court should not grant primary jurisdiction to the agency. In such cases, the court is not likely faced with complex factual issues that require an agency’s spe[*PG425]cialized expertise to resolve.223 Moreover, such cases do not raise issues regarding the uniform application of a statute or regulation across the nation.224 Finally, the primary jurisdiction doctrine is concerned with balancing the relationship between courts and agencies.225 Through the CAA, Congress expressly granted citizens the power to compel the EPA to act226 and, thus, preestablished the relationship between courts and the EPA where the EPA is the defendant in a citizen-suit.227

When a plaintiff has proper subject matter jurisdiction under the CAA citizen-suit provision and where the plaintiff’s claim is against a private party polluter, judges should employ the standard application of the primary jurisdiction doctrine found in the Supreme Court’s rate-case decisions.228 Accordingly, the court should conduct its primary jurisdiction analysis on a case-by-case basis.229 Pursuant to the holding in Great Northern, the court should be mindful that the ability of the agency to ensure uniform enforcement is not enough to justify allocation of jurisdiction to the agency.230 A court must also determine that judicial enforcement will fail to produce uniform results.231 The expertness consideration is also not conclusive. The Supreme Court strongly asserts that a court should retain jurisdiction over pure questions of law and, in complicated cases, counsel may be able to adduce the necessary facts and solicit the help of the experts needed to resolve the issue.232 However, primary jurisdiction and agency expertise are significantly linked because, as the issues become more complicated and as the technical expertise of the agency becomes more essential, courts should grant the agency primary jurisdiction.233

[*PG426]Conclusion

The primary jurisdiction doctrine is defined by two principles. First, the doctrine allows judges to balance the relationship between agencies and courts where their jurisdictions overlap. Second, the analysis for the application of the primary jurisdiction doctrine is broad and flexible, not formulaic.

In developing a framework for applying the primary jurisdiction doctrine to CAA citizen-suits, judges must be mindful of the doctrine’s basic principles. To that end, judges should not be overly dependant on analogies or rationales drawn from other applications of the doctrine because each application of the doctrine involves a particular set of circumstances: each CAA case involves a specific relationship between the court and EPA and each CAA case involves a particular set of issues.

Accordingly, judges should begin their primary jurisdiction analysis from the specific court-agency relationship and issues implicated in the case under consideration. Judges should then proceed under the flexible guidelines of the primary jurisdiction analysis to find the optimal balance between the agency and the court in the context of the particular case.

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