Conservation Law Found., Inc. v. Exxon Mobil Corp.

3 F.4th 61

CONSERVATION LAW FOUNDATION, INC., Plaintiff, Appellant,

v.EXXON MOBIL CORPORATION, ExxonMobil Oil Corporation, ExxonMobil Pipeline Company, Defendants, Appellees.

No. 20-1456

United States Court of Appeals, First Circuit.

July 1, 2021

Ian David Coghill, with whom Christopher M. Kilian, Conservation Law Foundation, Allan Kanner, and Kanner & Whiteley, LLC were on brief, for appellant.

William Thomas Marks, with whom Theodore V. Wells, Jr., Daniel J. Toal, Jamie D. Brooks, Kannon K. Shanmugam, William T. Marks, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Deborah E. Barnard, Jessica R. Early, and Holland & Knight LLP were on brief, for appellees.

Before Howard, Chief Judge, Thompson, Circuit Judge, and Katzmann,^* Judge.

THOMPSON, Circuit Judge.

Conservation Law Foundation, a not-for-profit organization focusing on the conservation and protection of New England's environment, has filed suit against ExxonMobil Corporation, ExxonMobil Oil Corporation, and ExxonMobil Pipeline Company (collectively, "ExxonMobil"). The Foundation's complaint alleges violations of the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., at ExxonMobil's petroleum storage and distribution terminal in Everett, Massachusetts. After denying in part ExxonMobil's motion to dismiss, the district court granted ExxonMobil's motion to stay proceedings under the so-called doctrine of primary jurisdiction, a doctrine "concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties," so that the U.S. Environmental Protection Agency ("EPA") could weigh in. United States v. W. Pac. R.R., 352 U.S. 59, 63, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). The case has remained stayed ever since. The Foundation appealed the stay order, maintaining that the district court erred because, in the context of this case, the doctrine of primary jurisdiction is inapt. ExxonMobil, on the other hand, argues that the district court correctly applied the doctrine, but that even if it did not we lack appellate jurisdiction to review the stay order.¹ For the following reasons, we find that we do have appellate jurisdiction to review the order and, upon that review, that the district court improperly stayed the case.

I. Background

A. The Permit

Pursuant to a permit issued by EPA under the National Pollutant Discharge Elimination System program, see 33 U.S.C. § 1342(a), ExxonMobil may discharge stormwater, groundwater, and certain other waters (such as potable water used to wash trucks or garage floors) from its Everett terminal into the Island End River, a small tributary of Boston's Mystic River. See City of Taunton v. EPA, 895 F.3d 120, 124 (1st Cir. 2018) (explaining the permit process more). ExxonMobil's permit originally became effective on January 1, 2009 and superseded a prior permit issued in March 2000. EPA later modified the permit. Permits issued under the National Pollutant Discharge Elimination System program may not exceed five years, so ExxonMobil's permit for the Everett terminal expired on January 1, 2014. See 33 U.S.C. § 1342(a)(3), (b)(1)(B). By regulation, however, the conditions of an EPA-issued permit "continue in force" until the effective date of a new permit if, as here, the permittee has submitted a timely application and through no fault of its own a new permit has not yet issued. 40 C.F.R. § 122.6(a) ; 5 U.S.C. § 558 ("When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency."). EPA has yet to act on ExxonMobil's application, so the conditions of the prior permit remain in effect.

B. Procedural History

In September 2016, the Foundation filed this action under the citizen suit provisions of the CWA, 33 U.S.C. § 1365, and RCRA, 42 U.S.C. § 6972. The operative complaint contains principally two sets of allegations: first, that ExxonMobil has failed to comply with its discharge permit and thus violated the CWA; and second, that ExxonMobil "has contributed and is contributing to past and present handling, storage, treatment, transportation, or disposal of solid and hazardous wastes which may present an imminent and substantial endangerment to health or the environment in violation of RCRA."

In March 2019, after hearing argument on ExxonMobil's motion to dismiss, the district court granted the motion as to three of the fifteen counts in the complaint but denied the motion as to the others. All but one of the surviving counts allege violations of the CWA. Some of those counts allege ExxonMobil violated the CWA by discharging pollutants from the Everett terminal in excess of the limits set out in the permit or in violation of Massachusetts Surface Water Quality Standards, which itself violates the permit. Another count alleges that ExxonMobil violated the CWA by failing to develop, implement, and maintain a Storm Water Pollution Prevention Plan ("stormwater plan") that is designed to reduce or prevent the discharge of pollutants in stormwater while accounting for harsher precipitation events and increased flooding generally attributable to climate change ("climate change factors"). Other counts allege that ExxonMobil violated the CWA by failing to prepare the stormwater plan "in accordance with good engineering practices" as required by the permit since it did not account for the climate change factors, or because the stormwater plan failed to "identify potential sources of pollution that may reasonably be expected to affect the quality" of the stormwater discharges, as required by the permit, since the stormwater plan did not account for the climate change factors. Still more counts allege ExxonMobil violated the CWA because, in violation of the permit, the stormwater plan failed to "describe and ensure implementation of practices which will be used to reduce the pollutants and assure compliance with this permit" and also fails to identify "all pollutant sources" including "all areas where spills ... could occur" and the "expected drainage" for each of those pollutants, since the stormwater plan did not account for the climate change factors. Another count alleges that ExxonMobil violated the CWA because, among other reasons, the stormwater plan did not contain "spill prevention and response procedures," as required by the permit, which accounted for the climate change factors. Another count alleges a CWA violation because the permit required ExxonMobil to report any relevant facts it either did not previously submit or that it submitted incorrectly, and that ExxonMobil failed to do so as to facts relating to the climate change factors. Another count describes a similar obligation as to the stormwater plan and alleges that ExxonMobil failed to amend or update the stormwater plan with information relating to the climate change factors. It also alleges that ExxonMobil failed to "properly operate and maintain" the Everett terminal or to "take all reasonable steps to minimize" certain discharges having "a reasonable likelihood of adversely affecting human health or the environment" (in violation of the permit) since it did not account for the climate change factors. The complaint also alleges that ExxonMobil made certain certifications that were improper for many of the reasons already discussed, in violation of the permit.

The final count relates to RCRA. It alleges that ExxonMobil violated -- and continues to violate -- RCRA at its Everett terminal because it "has contributed or ... is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment" largely because it has failed to account for the climate change factors. 42 U.S.C. § 6972(a)(1)(B).

The Foundation seeks injunctive relief to prevent further violations of the CWA and RCRA as well as declaratory relief under the CWA. It also seeks civil penalties amounting to tens of thousands of dollars per day per violation for each day starting in 2009. Finally, it seeks costs of the litigation, including attorney and expert witness fees, and all other relief permitted by law.

After the district court ruled on the motion to dismiss, ExxonMobil moved to stay the case under the doctrine of primary jurisdiction until EPA issued a decision on ExxonMobil's pending permit renewal application for the Everett terminal. ExxonMobil maintained that EPA's decision would likely resolve "most, if not all, of the disputed issues" in the case. The district court granted ExxonMobil's motion.

Conservation Law Found., Inc. v. ExxonMobil Corp., 448 F. Supp. 3d 7, 12 (D. Mass. 2020). While recognizing that the doctrine of primary jurisdiction "must be applied sparingly, especially in citizen suits authorized by Congress," it reasoned that this case involved "a rare set circumstances" justifying application of the doctrine. Id. We will detail its reasoning as it pertains to our analysis later.

The Foundation timely appealed the stay order.

II. Discussion

A. Appellate Jurisdiction

The parties dispute whether we even have jurisdiction to hear this case. Generally speaking, we only have appellate jurisdiction to review "final decisions of the district courts." 28 U.S.C. § 1291 ; see Commonwealth Sch., Inc. v. Commonwealth Acad. Holdings LLC, 994 F.3d 77, 82 (1st Cir. 2021). A district court's order is final if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Caribbean Mgmt. Grp., Inc. v. Erikon LLC, 966 F.3d 35, 40 (1st Cir. 2020) (quoting Whitfield v. Municipality of Fajardo, 564 F.3d 40, 45 (1st Cir. 2009) ). That might seem like an uneasy match for an order granting a stay --...