Type: Law Bulletins
Date: 02/08/2011

Federal Abstention When State Environmental Proceedings Are Pending

On January 26, 2011, the First Circuit Court of Appeals vacated the decision of the district court to abstain from hearing a RCRA citizen suit brought concerning a leaking underground storage tank (UST), even though a state administrative proceeding was pending and addressing the same issues.  Chico Service Station, Inc. v. Sol Puerto Rico Limited, — F.3d — , 2011 WL 228048 (1st Cir. Jan. 26, 2011).  The plaintiff brought a RCRA citizens suit requesting an injunction to compel clean up of a formerly leaking UST.  The Puerto Rico Environmental Quality Board (EQB) had been addressing this tank, the investigation, and its cleanup, for 17 years.  An extensive series of remedial investigations had been conducted.  No lawsuit had been filed against the defendant owner of the tank by the regulatory agency, but the agency and the tank owner were working together within the territory’s regulatory structure to address the UST remediation. 

The district court found that Burford abstention applied to the RCRA citizen suit because of the pendency of parallel state proceedings, and that the federal court should abstain under the guidance issued by the Supreme Court in Burford v. Sun Oil Co., 319 U.S. 315 (1943).  In this appeal, the First Circuit Court of Appeals noted that application of the Burford abstention doctrine to RCRA citizen suits was “an issue of first impression in this circuit,” 2011 WL 228048, at *1, but then concluded as follows: 1. There was no formal lawsuit filed by the Puerto Rico EQB against the defendant; 2. The parties had agreed in a settlement of prior litigation to allow the EQB hear plaintiff’s concerns, rather than the Commonwealth Court;  3. Other courts had found abstention under these circumstances to be improper;  4. Congress intended RCRA to allow these claims in federal court through inclusion of a citizen suit provision, and “justifying abstention will be exceedingly rare.”  2001 WL 228048, at *8;  5. The state court proceedings did not result in timely results;  6. Fashioning a federal injunction will not interfere with state regulation of USTs;  and  7. An injunction can be fashioned by the federal court which does not interfere with the state (Puerto Rico) UST administrative proceedings.  The First Circuit stated that because there were unresolved issues concerning the extent of contamination (an issue present in virtually every environmental case), the lawsuit was not moot and the federal district court could issue an injunction.  Curiously, in a passing footnote, the First Circuit refused to consider abstention under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976)(urging abstention when there are parallel federal and state proceedings to avoid duplicative lawsuits and inconsistent outcomes) because Colorado River abstention had not been raised by the parties, even though the Court had the inherent obligation to determine whether it had subject matter jurisdiction over the controversy.  2001 WL 228048, at Fn. 10.  Likewise, the First Circuit did not speak to the specialized expertise of environmental agencies and whether federal courts should abstain in those circumstances.   Reiter v. Cooper, 507 U.S. 258 (1993).  This is better known as the doctrine of primary jurisdiction.  U.S. v. Western Pacific R.R. Co., 352 U.S. 59, 63-64 (1956) .

With the First Circuit’s decision in Chico to vacate the district court’s decision to abstain, trial lawyers must ponder whether, under this court’s reasoning, there are any circumstances where Burford or Colorado River abstention, or the primary jurisdiction doctrine, can apply to conserve judicial resources and respect states’ authority to implement properly delegated environmental programs, such as those involving USTs.

For more information on federal abstention, please contact Kim Burke or any member of Taft’s environmental practice group.

1 This decision in Chico appears to be in direct conflict with prior decisions of the First Circuit when the court recognized the importance of deference to matters “within the special competence of an administrative agency.”  Ass’n of Int’l Auto. Mfrs. v. Comm’r, Mass. Dep’t of Envt’l Prot., 196 F.3d 302, 306 (1st Cir. 1999)(deference to environmental agency action appropriate even if appeal to U.S. Supreme Court delays resolution).  The Mass. Dep’t of Envt’l Protection decision was not mentioned in the Chico opinion.  Other First Circuit Cases Recognizing Primary Jurisdiction Doctrine: Verizon New England v. Maine Public Utilities Com’n, 509 F.3d 1, 12 (1st Cir. 2007); U.S. Pub. Interest Research Group v. Atl. Salmon of Me., LLC, 339 F.3d 23, 34 (1st Cir. 2003); Pejepscot Indus. Park, Inc. v. Me. Cent. R.R. Co., 215 F.3d 195, 205 (1st Cir. 2000).

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