NATURALAND TRUST; SOUTH CAROLINA TROUT UNLIMITED; UPSTATE FOREVER v. DAKOTA FINANCE LLC, d/b/a Arabella Farm; KEN SMITH; SHARON SMITH; WILLARD R. LAMNECK, JR.
No. 21-1517
United States Court of Appeals for the Fourth Circuit
July 20, 2022
PUBLISHED
SOUTH CAROLINA COASTAL CONSERVATION LEAGUE; CHARLESTON WATERKEEPER, Amici Supporting Appellants.
SOUTH CAROLINA CHAMBER OF COMMERCE, Amicus Supporting Appellee.
Appeal from the United States District Court for the District of South Carolina, at Greenville. Joseph Dawson, III, District Judge. (6:20-cv-01299-JD)
Argued: May 5, 2022
Decided: July 20, 2022
Before MOTZ, QUATTLEBAUM, and HEYTENS, Circuit Judges.
Reversed and remanded by published opinion. Judge Heytens wrote the opinion, in which Judge Motz joined. Judge Quattlebaum wrote a dissenting opinion.
ARGUED: Michael George Martinez, SOUTH CAROLINA ENVIRONMENTAL LAW PROJECT, Greenville, South Carolina, for Appellants. Elizabeth Bartlett Partlow, LAW OFFICES OF ELIZABETH B. PARTLOW, LLC, West Columbia, South Carolina, for Appellees. ON BRIEF: Amy Armstrong, Lauren M. Milton, SOUTH CAROLINA ENVIRONMENTAL LAW PROJECT, Georgetown, South Carolina, for Appellants. Adam B. Lambert, ACKER LAMBERT HINTON, P.A., Pickens, South Carolina, for Appellees. Geoffrey R. Gisler, Alex J.
TOBY HEYTENS, Circuit Judge:
The Clean Water Act contains a citizen-suit provision allowing adversely affected persons to sue polluters in federal court.
I.
Intending to operate “a working farm with an orchard and vineyard, and later an event barn for weddings and other celebrations,” Ken and Sharon Smith formed Arabella Farm, LLC. Farm Br. 2. The farm was built on property purchased by another Smith vehicle called Dakota Finance, LLC, and abutted land owned by the Smiths’ son-in-law, Willard Lamneck, Jr. Like the parties, we refer to the Smiths, Lamneck, and the two LLCs collectively as Arabella Farm.
Arabella Farm‘s site borders South Carolina‘s Jocassee Gorges area and is bounded by three bodies of water—Clearwater Branch, Peach Orchard Branch, and an unnamed tributary of the Eastatoe River. In 2017, Arabella Farm began clearing 20 acres of land to create its venue. The clearing process dramatically altered the steep, mountainous landscape and exposed the underlying granular soil. Although such an extensive land disturbance ordinarily would require obtaining stormwater permits and adhering to other regulations, see
Arabella Farm‘s activities eventually caught the attention of government regulators. In April 2019, the South Carolina Department of Health and Environmental Control (Department) conducted an inspection to evaluate the farm‘s compliance with the National Pollutant Discharge Elimination System (NPDES) program. The Clean Water Act regulates “point sources” that discharge pollutants and authorizes States to issue NPDES permits for such discharges.
Subsequent site inspections revealed inadequate stormwater controls, significant erosion, and off-site impacts. In August 2019, the Department sent a letter advising Arabella Farm that it was required to obtain an NPDES permit and instructing the farm “to cease and desist any activity at the [s]ite other than the installation and maintenance of storm water, sediment and erosion control measures as directed by its design engineer.” JA 57-58. In September 2019, the Department sent the farm a “Notice of Alleged Violation/Notice of Enforcement Conference” and informed thе farm of a voluntary “informal” enforcement conference scheduled for the end of that month. JA 54, 58–59. The conference would be “closed to the public and media.” JA 59.
In November of the same year, Naturaland Trust and Trout Unlimited—non-profit organizations dedicated to conserving land, water, and natural resources—sent a notice of intent to sue letter to the Smiths, Lamneck, and the registered agent of Dakota Finance. As the statute requires, the letter detailed the alleged violations of the Clean Water Act. See
EPA regulations also require such notices to include “sufficient information to permit the recipient to identify . . . the full name, address, and telephone number of the person giving notice.”
After the required 60-day notice period elapsed, see
A month after the conservationists filed their complaint, Arabella Farm and the Department entered into a consent order. The order imposed a $6,000 penalty and required the farm to obtain an NPDES
The district court dismissed the conservationists’ complaint. As relevant here, the court concluded that: (1) it lacked subject matter jurisdiction over the conservationists’ Clean Water Act claims because the Department had commenced and was diligently prosecuting an action for the same violations; (2) even if the Clean Water Act claims were otherwise valid, South Carolina Trout Unlimited was not a proper party because it failed to correctly identify itself in line with the Act‘s notice requirements; and (3) having dismissed the federal claims, it would not exercise supplemental jurisdiction over the state law claims.
II.
The district court erred in concluding that the diligent prosecution bar precluded the conservationists’ federal claims.
A.
A few introductory words about terminology. The Clean Water Act provides that “any citizen may commence a civil action on his own behalf against any person . . . who is alleged to be in violation of an effluent standard or limitation.”
This Court has previously stated that the judicial proceeding bar contained in Section 1365(b)(1)(B) is “an exception to the jurisdiction granted in subsection (a) of § 1365” and affirmed dismissals under Rule 12(b)(1) for lack of subject matter jurisdiction in situations where that bar applied. Piney Run Pres. Ass‘n v. Commissioners of Carroll County, 523 F.3d 453, 456 (4th Cir. 2008) (quoting Chesapeake Bay Found. v. American Recovery Co., 769 F.2d 207, 208 (4th Cir. 1985) (per curiam)). Quoting that same language, the district court concluded it lacked subject matter jurisdiction over the federal claims in this case because of the diligent prosecution bar in Section 1319(g)(6)(A)(ii).
Given our existing precedent, the district court‘s statement that—when it applies—the diligent prosecution implicates a federal court‘s jurisdiction was entirely understandable. In our view, however, such an approach is untenable given the Supreme Court‘s current approach to such matters.
As the Supreme Court has repeatedly emphasized in recent years, “jurisdiction” “is a word of many, too many, meanings.” Fort Bend County v. Davis, 139 S. Ct. 1843, 1848 (2019) (quoting Kontrick v. Ryan, 540 U.S. 443, 454 (2004), in turn quoting Steel Co. v. Citizens for Better Env‘t, 523 U.S. 83, 90 (1998)). Although courts—including this one—have “sometimes been profligate in [their] use of the
Under those standards, the diligent prosecution bar does not implicate a court‘s jurisdiction. The diligent prosecution bar “is not clearly labeled jurisdictional” and “is not located in a jurisdiction-granting provision.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010). Instead, it merely prohibits certain violations from being “the subject of a civil penalty action.”
The notion that the judicial proceeding bar implicates subject matter jurisdiction appears to have originated from our 1985 decision in Chesapeake Bay Foundation. Having reviewed that decision, however, we conclude it was “the kind of drive-by jurisdictional ruling of the sort that was more common before Supreme Court decisions like Steel Company made clear” the need for greater precision in the use of that term. B.R. v. F.C.S.B., 17 F.4th 485, 496 (4th Cir. 2021) (quotation marks and alterations omitted). And because our later decision in Piney Run had no occasion to independently consider whether the judicial proceeding bar was properly understood as truly jurisdictional—in particular, because that case involved no issues of waiver or forfeiture, cf. Miranda v. Garland, 34 F.4th 338, 350 (4th Cir. 2022)—it appears that Piney Run echoed Chesapeake Bay Foundation‘s drive-by jurisdictional ruling without independent consideration. See Piney Run, 523 F.3d at 456.
At any rate, this case involves the diligent prosecution bar contained in Section 1319(g)(6)(A)(ii) rather than the judicial proceeding bar at issue in Chesapeake Bay Foundation and Piney Run. So, although there may well be reason for skepticism about whether the judicial proceeding bar is properly labeled jurisdictional under the Supreme Court‘s current approach,3
B.
We turn next to why the diligent prosecution bar does not preclude this suit.
We start, as always, with the text. The diligent prosecution bar is triggered by the State‘s “commence[ment]” of “an action under a State law” that is “comparable to” the federal statute addressing “administrative penalties” that the government may assess for violations of the Clean Water Act.
Whatever else the Department‘s notice of alleged violation may have started, it seems odd to describe it as commencing “an action.”
Examining the features of a Section 1319(g) proceeding—which a state action must be “comparable” to for the diligent prosecution bar to apply—further supports our view of when an “action” has been “commenced.”
When asked about these regulations at oral argument, Arabella Farm сorrectly pointed out that they govern the EPA‘s own proceedings rather than those conducted under state law. Oral Arg. 18:50–21:00. But these regulations help to inform our understanding of when a “State has commenced” an action that is “comparable” to the one set forth in
This understanding of what it means to commence the relevant sort of action is only bolstered by the comparability analysis that the district court employed to assess whether the diligent prosecution bar applied. The rough comparability analysis employed by most of our sister circuits looks to whether the state law provides similar opportunities for public participation and availability of judicial review. See, e.g., McAbee v. City of Fort Payne, 318 F.3d 1248, 1251–56 (11th Cir. 2003). And although Arabella Farm and the district court pointed to the availability of public participation and judicial review of the Department‘s consent orders under South Carolina law as support for application of the diligent prosecution bar here, see
Our sistеr circuits have looked to similar features in determining whether the Clean Water Act‘s diligent prosecution bar precludes a particular suit. The Seventh Circuit has held that, “for the purposes of § 1319(g), an administrative action ‘commences’ at the point when notice and public participation protections become available to the public and interested parties.” Friends of Milwaukee‘s Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743, 756 (7th Cir. 2004). The Eighth Circuit similarly concluded that an action had “commenced” at the time the State filed a consent administrative order, explaining that once the order was issued, “interested third parties had a right to intervene, and certain notice and hearing procedures became available to interested third parties.” Arkansas Wildlife Fed‘n v. ICI Americas, Inc., 29 F.3d 376, 380 (8th Cir. 1994).4
In response, Arabella Farm insists the practices of the EPA and the States—the “primary enforcer[s]” of the Clean Water Act, Piney Run, 523 F.3d at 459—take a more flexible view of what constitutes “commencement.” For instance, Arabella Farm contends that the Department considers a notice of violation to be “the first step in the administrative enforcement process,” JA 59, and quotes an EPA publication that generally describes a notice of violation as a “form of” administrative enforcement action, Farm Br. 23 (quotation marks omitted). But the handful of public statements Arabella Farm cites—none of which were made in the context of defining commencement under the diligent prosecution bar—cannot overcome the text of the Act, which makes clear that
On the facts of this case, we do not think the Department‘s notice of alleged violation was enough to commence an action that was comparable to one brought under federal law. That notice invited Arabella Farm to an informal, voluntary, private conference with the Department to discuss allegedly unauthorized discharges. The notice mentioned no penalties or sanctions that would flow specifically from the failure to attend the conference. Of course, it was possible that the Department would determine Arabella Farm had violated the relevant provisions and issue a unilateral administrative order or (as it ultimately
III.
We also hold that the district court erred in concluding that South Carolina Trout Unlimited was not permitted to sue under the Clean Water Act.
The Act declares that no citizen suit “may be commenced . . . prior to sixty days after the plaintiff has given notice of the alleged violation . . . to any alleged violator.”
We disagree. Although the letter did not contain the specific words “South Carolina Trout Unlimited” in that order, it described Trout Unlimited as a “national non-profit” with “two local chapters in the Upstate of South Carolina” and explained the same basis for associational standing ultimately described in the complaint (its members who use the Eastatoe River and Little Eastatoe Creek to fish trout). Compare JA 63–64, 76, with JA 24–25. Those details gave Arabella Farm “sufficient information” to identify the full name, address, and telephone number of South Carolina Trout Unlimited,
Wе emphasize that plaintiffs can easily avoid imprecision with names, addresses, and telephone numbers and that more serious discrepancies that make it cumbersome for a defendant to identify the potential plaintiff may lead to dismissal under the applicable law and regulations. Here, however, there is no argument that Arabella Farm suffered any harm or had any difficulty ascertaining the identity or contact information of the party that would
*
*
*
The judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.
SO ORDERED
QUATTLEBAUM, Circuit Judge, dissenting:
This appeal involves the scope of citizen suits under the Clean Water Act. States hold “the primary responsibilities and rights” in managing our nation‘s water resources. See
By permitting the citizen suit here to proceed despite the measures South Carolina had already taken, the majority‘s decision elevates citizen suits above their supplemental role. In my view, the South Carolina Department of Health and Environmental Control (“DHEC“) had commenced and was diligently prosecuting an administrative penalty action under state law comparable to
My disagreement with the majority leaves open Plaintiffs’ contention that their claims for injunctive relief should have been preserved. On this issue, the district court erred in concluding that the
I.
The Clean Water Act permits citizen suits against any person who violated the Act‘s water quality standards. See
The government agency responsible for enforcement can be the U.S. Environmental Protection Agency or the U.S. Army Corps of Engineers. See, e.g.,
And citizen suits may be barred when the state is in fact enforcing the Clean Water Act. This can happen in two ways. First, if a state brought a lawsuit in court similar to the citizen suit, the citizen suit may be barred. See
Second, if a state has commenced and is diligently pursuing an administrative penalty action instead of any formal lawsuit, the citizen suit may also be barred. The Act states: “any violation-- (ii) with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection . . . shall not be the subject of a civil penalty action under . . . [the citizen suit provisions].”
These provisions make good sense. If citizen suits are permitted when the government cannot or does not act, they should not be allowed when the government is enfоrcing the Clean Water Act through a lawsuit or administrative proceedings.
II.
The question before us is whether, at the time of Plaintiffs’ citizen suit, DHEC “[had] commenced and [was] diligently prosecuting an action under a State law comparable” to the federal statute addressing administrative penalties.1
A.
Let‘s start with whether South Carolina had “commenced” an action at the time of Plaintiffs’ suit. I will first explain why DHEC‘s Notice of violation did, in fact, commence an action and then discuss my disagreement with the majority‘s conclusion to the contrary.
1.
Congress did not define “commence” in the Clean Water Act. And prior to today, we have not had an occasion to interpret the term. With no statutory or precedential definition to rely on, I consider the ordinary meaning of the word. See, e.g., Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) (“When terms used in a statute are undefined, we give them their ordinary meaning.“); Antonin Scalia & Bryan A. Garner, Reading Law 69–77 (2012) (“The ordinary-meaning rule is the most fundamental semantic rule of interpretation.“).
One way to identify the ordinary meaning of a word is through dictionaries. Webster‘s Dictionary offers two definitions I
But whichever definition we apply, what DHEC did meets the definition of commencing an action. Prior to the citizen suit, DHEC issued Arabella Farm a Notice of Violation. This is the first step the agency takes in enforcing its environmental laws. See DHEC, Uniform Enforcement Policy for the Office of Environmental Quality Control (“Uniform Enforcement Policy“), at § II.1 (1999) (“When, based upon available information, it is determined that there is a violation of any applicable statute, regulation, standard, or permit, and the violation can be adequately documented, a Notice of Violation will be forwarded . . . .“).3
Importantly, South Carolina has authorized DHEC to establish its enforcement procedure, see, e.g.,
This Notice of Violation is more than just an “informal” inquiry that the majority considers the document to be. The Notice memorialized that DHEC had investigated the matter, which included multiple field visits, and that the agency corresponded with Arabella Farm for almost six months. It accused Arabella Farm of violating specific provisions of South Carolina‘s environmental laws. And the Notice of Violation demanded Arabella Farm‘s presence to explain its position on such accusations in front of DHEC. Had Arabella Farm failed to attend the conference, it would have risked an administrative ruling requiring it to pay monetary penalties.4
Importantly, the Clean Water Act‘s cooperative federalism framework encourages states to experiment with different
2.
The majority reaches a different conclusion on commencement. It finds that DHEC had not yet commenced an “action” that is “comparable” to the federal statute addressing administrative penalties. For the reasons below, I disagree.
a.
The majority does not address the common understanding of thе word “commence.” Instead, it begins its analysis by questioning whether the Notice of Violation commenced an “action” for purposes of
The majority then proclaims that “the essential character of an ‘action‘” is “an adversarial proceeding initiated by a formal, public document.” Id. at 11. Even assuming this to be the proper test, the majority never applies it to the Notice of Violation or DHEC‘s enforcement proceedings. Doing so reveals that the Notice meets the standard the majority adopts.
As I just described, DHEC‘s enforcement proceedings were certainly adversarial. In the Notice of Violation, DHEC accused Arabella Farm of violating South Carolina‘s environmental laws and required Arabella Farm to respond to such accusations. Non-attendance would have riskеd an assessment of monetary penalties and other sanctions.
And the Notice of Violation was sufficiently formal. The Notice outlined DHEC‘s investigative efforts and the laws DHEC accused Arabella Farm of violating. In reality, aside from the difference in labeling, the Notice of Violation was comparable to a complaint in the lawsuit context. Under the
Finally, the Notice of Violation, being an official document from DHEC, was publicly available; a concerned citizen could obtain
True, the Notice of Violation might not be as easily visible as many pleadings filed in federal court. The citizen must also request the agency documents. But those issues concern degrees of accessibility, not whether a document is “public.” After all, many state court complaints and briefs are equally cumbersome to detect and procure. Oftentimes such documents are not readily available online and people must make formal document requests from the courthouse.
In fact, the complaint makes clear that Plaintiffs were aware of the various communications made by DHEC. See J.A. 34-35 (alleging “dozens of communications with Pickens County, DHEC, the Corps, and the Department of Transportation“). At minimum, the DHEC Board as a public body must give public notice of their regular and special meetings, specifying the dates, times, places and agenda of such meetings. See
In sum, even under the majority‘s own standard, the Notice of Violation commenced an “action.”
b.
Next, the majority explains that federal enforcement proceedings under
Analytically speaking, the majority‘s approach here seems questionable. The comparability requirement of
In addition, the out-of-circuit cases relied on by the majority for this point do not provide the support it suggests. The majority first relies on the Eighth Circuit‘s decision in Arkansas Wildlife, 29 F.3d 376.
Next, the majority cites to the Eleventh Circuit‘s McAbee decision. But that decision explicitly declined to address commencement. 318 F.3d at 1251 n.6 (“The requirements of ‘commencement’ and ‘diligent prosecution’ are not at issue in this appeal.“). And while the court suggested administrative consent orders might satisfy commencement, see id., that dictum does not help define thе outer limits of commencement.
In fact, McAbee warns against the majority‘s conflation of the commencement and comparability elements. The decision makes clear that “commencement,” “diligent prosecution” and “comparability” are three separate elements in which the focus of comparability is state law, not commencement or action. See id. at 1251 (“If the AWPCA and the AEMA [the Alabama water pollution and environmental management statutes] are comparable to the federal CWA, then the district court should have granted summary judgment for the City if
Last, the majority points to the Seventh Circuit‘s decision in Friends of Milwaukee‘s Rivers v. Milwaukee Metropolitan Sewerage District, 382 F.3d 743 (7th Cir. 2004). In this case, before the citizen suit was filed, the state agency negotiated a corrective action plan, formally referred the matter to the Wisconsin Department of Justice and filed stipulations. Despite that, the court determined that such actions “do not themselves qualify as the commencement of an administrative enforcement action that would serve to bar the plaintiffs’ suit.” See id. at 755-57. Instead, it “h[e]ld that for the purposes of
While this case is the most helpful to the majority‘s analysis, impоrtant differences between South Carolina‘s and Wisconsin‘s environmental laws diminish that case‘s persuasive value. Essential to the Friends of Milwaukee‘s Rivers decision was the fact that the Wisconsin law lacked an administrative penalty proceeding “comparable” to
This difference matters. Because Wisconsin‘s law did not have administrative penalty proceedings, the Seventh Circuit could only analyze the state‘s enforcement policies by looking at when a lawsuit in court commenced. And of course, lawsuits formally start by filing a complaint. Because it is distinguishable from the facts here, Friends of Milwaukee‘s Rivers does not provide the support that the majority suggests.
c.
After discussing the characteristics of an action and comparing the public notice and participatiоn features of South Carolina and federal law, the majority holds that DHEC‘s Notice of Violation did not bar Plaintiffs’ citizen suit. It states that “we do not think [DHEC‘s] notice of alleged violation was enough to commence an action that was comparable to one brought under federal law.” Maj. Op. 14. But its only real analysis here is to liken the Notice of Violation to an invitation or “a demand letter before civil litigation.” Id.
Respectfully, those comparisons are unfair. No reasonable inquiry would view the Notice as a casual offer to engage in a voluntary discussion. As noted above, the Notice of Violation, at the risk of penalties, compelled Arabella Farm to attend the conference and address the specific accusations of violating South Carolina‘s environmental laws identified in the document. And DHEC‘s Notice of Violation is nothing like a demand letter. A demand letter is not required to commence civil litigation. In fact, many suits begin without any demand letter or advanced communication between parties. In contrast, Notices of Violation are, by virtue of DHEC‘s official policies, the first step in its enforcement process.
In short, the majority seems to brush aside the statutory authority under which DHEC issued the Notice, as well as the document‘s adversarial nature and substantive content. In doing so, the majority improperly concludes that DHEC had not yet “commenced” an “action” that is “comparаble” to the federal statute addressing administrative penalties.
B.
Next, I turn to the issue of diligent prosecution. “A CWA enforcement prosecution will ordinarily be considered ‘diligent’ if the judicial action ‘is capable of requiring compliance with the Act and is in good faith calculated to do so,’ and . . . diligence is presumed.” Piney Run Pres. Ass‘n v. Cnty. Comm‘rs of Carroll Cnty., 523 F.3d 453, 459 (4th Cir. 2008). “This presumption ‘is due not only to the intended role of the [government] as the primary enforcer of the [CWA], but also to the fact that courts are not in the business of designing, constructing or maintaining sewage treatment systems.‘” Id. (alterations in original) (quoting Friends of Milwaukee‘s Rivers, 382 F.3d at 760).
There is no serious argument that DHEC failed to diligently prosecute the enforcement proceedings. As Arabella Farm rightfully points out, DHEC “achieved the same results Plaintiffs allegedly
C.
Last, I consider whether DHEC‘s administrative proceeding against Arabella Farm was “an action under a State law comparable to [
1.
To begin this analysis, we confront a tricky question of statutory interpretation. The statute says, “any violation . . . (ii) with respect to which a State has commenced and is diligently prosecuting an аction under a State law comparable to [
In my view, it is the state law that must be comparable.7 Concluding otherwise would violate the nearest reasonable referent canon. See Scalia & Garner, supra, at 144-46 (“A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.“). Consistent with that, our prior decisions indicate “comparable” describes “State law,” not “action.” See, e.g., United States v. Smithfield Foods, Inc., 191F.3d 516, 525-26 (4th Cir. 1999) (finding that “Virginia‘s enforcement scheme is not sufficiently comparable to [
2.
Having established that it is the state law that must be comparable to its federal counterpart, how do we analyze comparability? The Clean Water Act does not provide a standard for determining what would make a state law comparable to
One approach is the “overall comparability” test, adopted by the First and Eighth Circuits. Under this test, courts assess whether the “the overall regulatory scheme” is comparable, “even if the state law does not contain precisely the same” provision that would be found in the Clean Water Act. The state regulation is comparable “so long as the state law contains comparable penalty provisions which the state is authоrized to enforce, has the same overall enforcement goals as the [Act], provides interested citizens a meaningful opportunity to participate at significant
The alternative approach is the “rough comparability” test, explicitly adopted by the Tenth and Eleventh Circuits and implicitly adopted by the Ninth Circuit. Under this test, “each category of state-law provisions—penalty assessment, public participation, and judicial review—must be roughly comparable to the corresponding class of federal provisions.” Paper, Allied-Indus., Chem. & Energy Workers Int‘l Union v. Cont‘l Carbon Co., 428 F.3d 1285, 1294 (10th Cir. 2005); see also McAbee, 318 F.3d at 1255-56 (discussing how this approach is preferable); Citizens for a Better Env‘t-California v. Union Oil Co. of California, 83 F.3d 1111, 1117-18 (9th Cir. 1996) (rejecting the First Circuit‘s decision of comparing “the state statutory enforcement scheme as a whole“).
Our Circuit has not taken a position on this issue. The most relevant precedent, Smithfield Foods, found a Virginia enforcement scheme to not be sufficiently comparable to
3.
But even under the more rigorous “rough comparability” approach—comparing South Carolina‘s penalty assessment, public participation and judicial review provisions with the corresponding class of federal provisions—South Carolina‘s enforcement mechanism is comparable to
To explain why, I begin with two guiding principles in this analysis. First, comparable cannot mean identical. See McAbee, 318 F.3d at 1252 (“[T]he term ‘comparable’ means that the state law need only be sufficiently similar to the federal law, not identical.” (emphasis in original) (quoting Ark. Wildlife, 29 F.3d at 381)). Second, the Clean Water Act‘s cooperative federalism framework welcomes different regulatory practices developed by the states. See, e.g., Sierra Club, 909 F.3d at 647. And under such arrangement, citizen suits should not get in the way of the state‘s initiatives. See Gwaltney, 484 U.S. at 60;
With these principles in mind, I first look at South Carolina‘s public notice and participation provisions, which is the main contention presented by Plaintiffs. As an initial matter, South Carolina‘s administrative penalty enforcement process provides for public notice and participation. See, e.g.,
Plaintiffs maintain, however, that public notice and opportunities for public participation must come before any civil penalty order. They point out that, assuming DHEC and Arabella Farm strike a deal during the enforcement conference, DHEC may issue a consent order. See DHEC, Uniform Enforcement Policy, supra, at § IV.4.(b) (“If a determination is made as a result of the conference that a Consent Order can be mutually agreed to, the Department may issue such order.“). And at least up to this point, there is no obvious public notice. From Plaintiffs’ perspective, aside from the hypervigilant watchdogs who follow DHEC‘s every move (and could accordingly make any state FOIA requests to track documents, such as a Notice of Violation, in advance), the first time an average citizen would likely hear about the consent order will be when those orders are briefed at the DHEC Board meeting.
The problem with Plaintiffs’ position is that
Considering
Thus, under South Carolina law, the opportunity for an interested party to request the Board to challenge the terms of the order—before a defendant must comply with it—exists. Even if this procedure is not what Plaintiffs view as optimal, South Carolina law provides a “reasonable opportunity” to comment on a consent order which is what
My conclusion is similar to the Tenth Circuit decision reached in Paper, 428 F.3d 1285. The Tenth Circuit held that Oklahoma‘s enforcement structure was comparable to EPA‘s—even though the laws did not “require notice of an assessment to anyone other than the violator.” See id. at 1295. The Tenth Circuit ruled so because of the state‘s laws that guaranteed a right to an administrative hearing and the state‘s “Open Meetings Act” which required public notice of all regular and special meetings. See id. at 1295-97. South Carolina‘s public notice/participation provisions are at least as robust as Oklahoma‘s.
The Tenth Circuit also relied on the fact that the EPA delegated to Oklahoma the authority to enforce the National Pollutant Discharge Elimination System (“NPDES“), since such delegation is permissible only if the state has adequate public participation procedures. See id. at 1296-97 (“Oklahoma‘s public-participation provisions are comparable enough to permit a delegation of CWA enforcement authority, and we conclude they should also be deemed comparable for the purposes of imposing the jurisdictional bar . . . .“); see also
Just like in the Tenth Circuit‘s case, the EPA also approved South Carolina‘s enforcement mechanism. For a state to administer its own NPDES program, the state must have its program approved by the EPA. See
In the case of South Carolina, the EPA approved the state‘s program thirty years ago. See 40 Fed. Reg. 28,130 (July 3, 1975) (NPDES program); 57 Fed. Reg. 43,733 (Sept. 22, 1992) (general permits). That approval has survived periodic review as well. See, e.g., EPA Region 4, State Review Framework: South Carolina (Dec. 11, 2019). Thus, like in Paper, the EPA‘s approval of South Carolina‘s standards bolsters Arabella Farm‘s argument that the South Carolina law is comparable to the EPA‘s public notice/participation procedures when it comes to administrative penalty actions.9
It may be true, as the majority points out, that the EPA‘s own regulations provide public notice and participation opportunities a bit earlier than what DHEC does. But the majority‘s reliance on these
Ironically, the EPA‘s regulations would still not bar Plaintiffs’ citizen suits because the advanced public notice does not occur soon enough. Under the EPA‘s regulations, assessment of civil penalties pursuant to
Having concluded that the public notice and participation opportunities that DHEC provides is comparable to
Finally, South Carolina‘s right to judicial review is broader than the Clean Water Act‘s corollary. Compare
For these reasons, even under the more rigorous rough comparability test, DHEC‘s administrative penalty proceedings are comparable to
D.
By issuing the Notice of Violation, DHEC commenced and was diligently prosecuting an action under state law comparable to
My conclusion on the citizen suit bar leaves open one additional point raised by Plaintiffs. They claim that even if South Carolina “has commenced and is diligently prosecuting an action under a State law comparable to [
A.
Our sister circuits are split as to whether
While the Eighth Circuit‘s reasoning may have some logical appeal, the text of the Clean Water Act itself supports the First and Tenth Circuits’ position. The main statute governing citizen suits,
A deeper inquiry into
Accordingly, a state administrative penalty action does not bar a citizen suit to the extent it seeks an injunction. Cf. Paper, 428 F.3d at 1300 (“[T]he jurisdictional bar in
B.
Even so, an injunctive relief seems questionable in a citizen suit when a state has commenced, and is diligently prosecuting, an action under state law comparable to
(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). “Satisfying these four factors is a high bar, as it should be.” SAS, 874 F.3d at 385. Because “[a]n injunction is a drastic and extraordinary remedy” which “risks awarding more relief than is merited,” a plaintiff must “meet a heavy burden before being granted injunctive relief.” See id. (alteration in original) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010)).
That burden is even greater when a state agency, like DHEC here, has stepped in and diligently prosecuted the matter. State enforcement efforts inevitably tradeoff between environmental protection and other state government priorities. As just one example, states often must consider conservation along with economic development. When a state agency is the delegated authority to enforce the Clean Water Act through the state‘s laws and regulations and has—after weighing the various interests and hardships involved—deсided to take particular measures to address the harms caused by the violator, we must defer to that decision. Failing to do so upsets the balance of interests that states must strike.
As we said in Piney Run, 523 F.3d at 459-60, state agencies are the primary enforcers of the Clean
The Supreme Court‘s Gwaltney decision is consistent with this view. After emphasizing that citizen suits are “meant to supplement rather than to supplant” government enforcements, the Supreme Court discussed the negative consequences should this maxim not be followed:
Suppose that the [EPA] Administrator identified a violator of the Act and issued a compliance order under [
§ 1319(a) ]. Suppose further that the Administrator agreed not to assess or otherwise seek civil penalties on the condition that the violator take some extreme corrective action, such as to install particularly effective but expensive machinery, that it otherwise would not be obliged to take. If citizens could file suit, months or years later, in order to seek the civil penalties that the Administrator chose to forgo, then the Administrator‘s discretion to enforce the Act in the public interest would be curtailed considerably. The same might be said of the discretion of state enforcement authorities. Respondents’ interpretation of the scope of the citizen suit would change the nature of the citizens’ role from interstitial to potentially intrusive. We cannot agree that Congress intended such a result.
484 U.S. at 60-61. I agree. In fact, granting injunctive relief in citizen suits under circumstances like those here and in Gwaltney would permit the tail—citizen suits—to wag the dog—state enforcement of environmental laws.
None of this is to say that citizen suits do not have a proper role in the enforcement of environmental laws. Congress has made clear that they do. But that role exists when the state or federal agency is not doing enough. See id. at 62. In contrast, satisfying
Because I would vacate the portion of the district court‘s order that concludes
IV.
Environmental law has been, and always will be, a delicate balance between various competing interests.12 The Clean Water Act is no exception. Thus, while citizen suits play an integral role in protecting our nation‘s waters, the Act also sets clear limits on when private citizens can step in instead of the government. By determining that DHEC had not commenced an administrative penalty action prior to the citizen suit, the majority broadens the scope of when citizen suits are permissible, overriding the delicate balance that Congress established under the Act.
I respectfully dissent.