Group Against Smog & Pollution, Inc. v. Shenango Inc.
2016 U.S. App. LEXIS 59
| 3rd Cir. | 2016Background
- Shenango operates Neville Island Coke Plant in Allegheny County subject to federal NAAQS and Pennsylvania SIP rules enforced by Allegheny County Health Department (ACHD).
- ACHD, the Pennsylvania DEP, and EPA sued Shenango in 2012 for violations of three ACHD standards (5% door emissions; 20% and 60% combustion-stack opacity); parties entered a Consent Decree; the district court retained continuing jurisdiction to enforce/modify the decree.
- In 2014 ACHD sued in state court and entered a Consent Order addressing the 5% door standard and reaffirming the approach to the 20% and 60% stack standards; ACHD retained enforcement authority and the agreements remained in effect.
- GASP sent a notice of intent in 2014 and then filed a citizen suit under the Clean Air Act alleging the same three violations in May 2014.
- Shenango moved to dismiss under Rules 12(b)(1) and 12(b)(6), arguing the Clean Air Act’s diligent-prosecution bar (42 U.S.C. § 7604(b)(1)(B)) precluded GASP’s suit because ACHD was already diligently prosecuting enforcement; the district court granted dismissal for lack of subject-matter jurisdiction.
- The Third Circuit affirmed dismissal but held the diligent-prosecution bar is nonjurisdictional (a claim-processing rule) and thus dismissal is properly analyzed under Rule 12(b)(6); the court found ACHD was diligently prosecuting and that its enforcement “requires compliance.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Clean Air Act diligent-prosecution bar jurisdictional or nonjurisdictional? | GASP proceeded on assumption it was jurisdictional but did not contest nonjurisdictional label. | Shenango (and district court) treated the bar as jurisdictional, justifying 12(b)(1) dismissal. | Bar is nonjurisdictional (claim-processing); analyze under 12(b)(6). |
| Does “prosecuting” require an enforcement action be pending in court when the citizen suit is filed? | GASP: yes — absent a pending court action the bar does not apply. | Shenango: no — a diligently pursued enforcement culminating in consent decrees/retained jurisdiction can suffice. | “Prosecuting” can include agency prosecutions that resulted in consent decrees or final judgments still subject to modification/enforcement; bar can apply post-judgment. |
| Do the 2012 Consent Decree and 2014 Consent Order “require compliance” with the Act? | GASP: the decrees/orders do not actually require compliance; continued violations show they are inadequate. | ACHD/Shenango: decrees expressly require compliance, provide monitoring, penalties, and retention of enforcement authority. | The court defers to agency prosecution and finds the decrees/orders require compliance; thus the bar applies. |
| Did GASP state a claim despite the diligent-prosecution bar? | GASP: its citizen suit should proceed because agency enforcement was insufficient or not pending. | Shenango: GASP’s complaint is barred by § 7604(b)(1)(B). | Complaint fails to state a claim; dismissal affirmed (under 12(b)(6) standard). |
Key Cases Cited
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (distinguishes jurisdictional rules from claim-processing rules)
- Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011) (clarifies test for jurisdictional characterization)
- Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) (use text, context, history to decide jurisdictional nature)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (citizen suits supplement rather than supplant governmental enforcement)
- Louisiana Envtl. Action Network v. City of Baton Rouge, 677 F.3d 737 (5th Cir. 2012) (diligent-prosecution bar is nonjurisdictional)
- Adkins v. VIM Recycling, Inc., 644 F.3d 483 (7th Cir. 2011) (diligent-prosecution bar is nonjurisdictional)
- Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., Md., 523 F.3d 453 (4th Cir. 2008) (deference to agency consent decrees in citizen-suit context)
- Karr v. Hefner, 475 F.3d 1192 (10th Cir. 2007) (consent decree can constitute diligent prosecution)
- Beazer East, Inc. v. Mead Corp., 525 F.3d 255 (3d Cir. 2008) (applying Arbaugh framework to jurisdictional question)