Sierra Club v. Two Elk Generation Partners, Ltd. Partnership
646 F.3d 1258
10th Cir.2011Background
- Sierra Club filed a 2009 citizen suit under the Clean Air Act alleging Two Elk lacked a valid PSD permit for a coal-fired Power Plant.
- Wyoming DEQ issued and later modified the PSD permit; the 2005 Council Order found construction commenced and the permit valid, ending Council jurisdiction.
- Two Elk and DEQ later settled in 2007; the Council dismissed the appeal and adopted the settlement’s terms.
- Sierra Club did not intervene during the 2005 and 2007 state proceedings but challenged on appeal in federal court after the state actions.
- The district court dismissed Sierra Club’s action on issue preclusion grounds, and Sierra Club appealed; the court did not abstain under Burford.
- The principal question is whether state-court administrative orders can preclude a federal citizen suit under the CAA, applying Wyoming law on collateral estoppel and parens patriae.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CAA commencement bar applicability | Sierra Club argues CAA § 7604(b)(1)(B) bar applies when state enforcement is not diligently prosecuting in federal court. | Two Elk contends the commencement bar governs preclusion of citizen suits. | The commencement bar does not apply here. |
| Preclusion of Sierra Club by Council's 2005/2007 Orders | Sierra Club contends state orders do not bar its federal suit under preclusion doctrine. | Two Elk argues state orders preclude the federal action. | Sierra Club's suit is barred by issue preclusion from the Council's 2005 and 2007 Orders. |
| Preclusive effect of Wyoming district court order | Wyoming order lacks due process and should not collateralize in federal court. | Wyoming order should preclude based on collateral estoppel with due process. | Wyoming district court's March 12, 2009 Order precludes the issue of continuous construction. |
| Privity under parens patriae | Sierra Club was not in privity with DEQ; parens patriae cannot create preclusion. | DEQ acted in parens patriae capacity representing Wyoming citizens. | DEQ was in privity with Wyoming citizens; Sierra Club is barred. |
Key Cases Cited
- Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982) (implied repeal and collateral estoppel standards; irreconcilable conflicts)
- Satsky v. Paramount Communications, Inc., 7 F.3d 1464 (10th Cir. 1993) (parens patriae standing and privity considerations)
- Friends of Milwaukee's Rivers v. Milwaukee Metropolitan Sewerage Dist., 382 F.3d 743 (7th Cir. 2004) (diligent prosecution framework for preclusion under CAA/CWA)
- EPA v. City of Green Forest, 921 F.2d 1394 (8th Cir. 1990) (agency action and preclusion framework; preeminence of EPA)
- Brockman v. Wy. Dep't of Family Servs., 342 F.3d 1159 (10th Cir. 2003) (collateral estoppel factors under Wyoming law)
- Taylor v. Sturgell, 553 U.S. 880 (2008) (framework for exceptions to nonparty preclusion; parens patriae scope cautioned)