Conservation Law Foundation v. ExxonMobil Corporation ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1456
CONSERVATION LAW FOUNDATION, INC.,
Plaintiff, Appellant,
v.
EXXON MOBIL CORPORATION, EXXONMOBIL OIL CORPORATION, EXXONMOBIL
PIPELINE COMPANY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Howard, Chief Judge,
Thompson, Circuit Judge,
and Katzmann,* Judge.
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.
* Of the United States Court of International Trade, sitting by
designation.
July 1, 2021
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
(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
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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
1 It is often remarked that jurisdiction is "a word of many, too
many, meanings." Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1848
(2019) (quoting Kontrick v. Ryan, 540 U.S. 443, 454 (2004)). This
case requires us to discuss two of the word's uses. The first,
the doctrine of primary jurisdiction, is a bit of a misnomer.
"Properly understood, the doctrine is not jurisdictional per se,
but rather is a means of procuring 'harmony, efficiency, and
prudence' in areas of overlapping judicial and administrative
concern." Nat'l Tank Truck Carriers, Inc. v. Burke, 608 F.2d 819,
821 (1st Cir. 1979) (quoting Mashpee Tribe v. New Seabury Corp.,
592 F.2d 575, 580 n.1 (1st Cir. 1979)); see also United States v.
Lahey Clinic Hosp., Inc., 399 F.3d 1, 18 (1st Cir. 2005)
(explaining that the primary jurisdiction doctrine "does not
implicate the subject matter jurisdiction of the federal court"
(quoting P.R. Mar. Shipping Auth. v. Fed. Mar. Comm'n, 75 F.3d 63,
67 (1st Cir. 1996))). By contrast, when it comes to appellate
jurisdiction, a court of appeals "must verify [that] it has that
jurisdiction before addressing the merits of any appeal." Conille
v. Council 93, Am. Fed'n of State, Cty. & Mun. Emps., 935 F.3d 1,
5 (1st Cir. 2019).
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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,
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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,
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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
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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
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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 -- the decision we are asked to review --
since a stay is the "postponement or halting of a proceeding."
Stay, Black's Law Dictionary (11th ed. 2019). Indeed, "most stay
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orders do not constitute final appealable decisions within the
meaning of 28 U.S.C. § 1291." Nat'l R.R. Passenger Corp. v.
Providence & Worcester R.R. Corp., 798 F.2d 8, 9 (1st Cir. 1986).
Sometimes, however, a stay bears "special features . . .
that make the district court's action something other than what it
seems," not just "an ordinary postponement of court action."
Hartford Fin. Sys., Inc. v. Fla. Software Servs., Inc., 712 F.2d
724, 726 (1st Cir. 1983) (Breyer, J.). The Foundation argues that
this case entails such a stay, because the stay order has rendered
the Foundation "effectively-out-of-court." See Moses H. Cone
Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983). The
Foundation focuses on the length of the stay, emphasizing that the
case has been pending since 2016, that the district court granted
the stay on March 21, 2020, and that the district court's order
stayed the case indefinitely pending issuance of a new permit by
EPA (though the district court set a check-in date for over a year-
and-a-half after its order (November 1, 2021)).
ExxonMobil tells us that the key consideration for
determining whether a stay order renders a party "effectively out
of court" is not the indefiniteness of the stay but whether the
stay "require[s] all or an essential part of the federal suit to
be litigated in a state forum" or some other forum. Moses H. Cone,
460 U.S. at 10 n.11. Several "effectively-out-of-court" cases
have focused on situations where the federal court stayed
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proceedings while a state court was resolving an identical issue
and where the state court's judgment would have bound the parties
in the federal litigation. See In re Urohealth Sys., Inc., 252
F.3d 504, 507 (1st Cir. 2001) (citing Moses H. Cone, 460 U.S. at
10 & n.11); Quackenbush v. Allstate Ins., 517 U.S. 706, 713 (1996)
(explaining that the stay order in Moses H. Cone was appealable
because the stay "put the litigants 'effectively out of court,'
and because its effect was 'precisely to surrender jurisdiction of
a federal suit to a state court'" (quoting Moses H. Cone, 460 U.S.
at 10 n.11)). In those situations, a party would lose the
opportunity to litigate that same issue in federal court.
As ExxonMobil acknowledges, however, that is not the
only circumstance our circuit has recognized as rendering a party
"effectively out of court." See Rojas-Hernandez v. P.R. Elec.
Power Auth., 925 F.2d 492, 495 (1st Cir. 1991) ("[W]e note that
this Court has not interpreted the appealability rule in Moses H.
Cone to turn solely on the preclusive effects of the state court
judgment."). Indeed, the approach we have taken -- treating stay
orders that impose lengthy or indefinite delays as appealable as
final orders under § 1291, even absent any risk that another
proceeding will have res judicata effect on the federal case, id.
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-- is the approach adopted by several courts of appeals to have
considered the issue.2
In Rojas-Hernandez, for example, which is binding
precedent in our circuit, there was ambiguity about whether the
appellant was a party to state-court proceedings which concerned
an issue identical to one he had initiated litigation on in federal
court. 925 F.2d at 494–95. Accordingly, there was ambiguity about
whether the state-court judgment there would have had preclusive
effect in the federal-court proceedings. Id. And if the state-
court judgment were not binding in federal court, then the
appellant would not be "effectively out of court" in the way
ExxonMobil suggests is necessary, because the appellant would get
2 The Second, Fifth, Ninth, Eleventh, and Federal Circuits agree
that stay orders imposing lengthy or indefinite delays are
appealable as final orders under § 1291. See King v. Cessna
Aircraft Co., 505 F.3d 1160, 1165 (11th Cir. 2007) (holding that
"a stay order that is immoderate and involves a protracted and
indefinite period of delay is final and appealable under 28 U.S.C.
§ 1291"); see also XPO Logistics, Inc. v. Elliott Cap. Advisors,
LP, 673 F. App'x 85, 86 (2d Cir. 2016) (unpublished); Occidental
Chem. Corp. v. La. Pub. Serv. Comm'n, 810 F.3d 299, 307-09 (5th
Cir. 2016); Stanley v. Chappell, 764 F.3d 990, 995 (9th Cir. 2014);
Spread Spectrum Screening LLC v. Eastman Kodak Co., 657 F.3d 1349,
1354 (Fed. Cir. 2011). But see Crystal Clear Commc'ns v. Sw. Bell
Tel. Co., 415 F.3d 1171, 1176 (10th Cir. 2005) (explaining that,
"[i]f a stay merely delays litigation and does not effectively
terminate proceedings, it is not considered a final decision");
see also Strausser v. Twp. of Forks, 460 F. App'x 115, 119 (3d
Cir. 2012). Other circuits have not yet articulated a clear
position on this query. See, e.g., Clark v. Adams, 300 F. App'x
344, 351 (6th Cir. 2008) (unpublished); Phyllis Schlafly Revocable
Tr. v. Cori, 924 F.3d 1004, 1010 (8th Cir. 2019); Belize Soc. Dev.
Ltd. v. Gov't of Belize, 668 F.3d 724, 730 (D.C. Cir. 2012).
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to litigate his entire case in federal court after all.
Nevertheless, we found we had jurisdiction in Rojas-Hernandez
because the appellant was "effectively out of court" for a
different reason: "the indefinite unnecessary delay inherent in
the stay order." Id. at 495 (quoting Nat'l R.R. Passenger Corp.,
798 F.2d at 10). Even though the state court had set a trial date,
we determined that the appellant was subject to an indefinite
delay:
The stay in this case . . . [creates] a delay
tied not into the usual considerations of the
federal court's calendar but rather to those
arising in the state proceeding. . . .
Whether or not the trial in the commonwealth
court takes place in the near future, [as
scheduled,] plaintiff's trial has already been
delayed almost a year since the entry of the
district court order . . . , and further
delays may arise while an opinion is awaited
and an appeal taken.
Id. We also recognized that if the state-court proceedings turned
out not to be binding (as we had assumed), then the stay would not
even have preserved any judicial resources. Id.We think the situation here mirrors that in Rojas-
Hernandez. See, e.g., Occidental Chem. Corp. v. La. Pub. Serv.
Comm'n, 810 F.3d 299, 307 (5th Cir. 2016) (finding that a decision
to stay a case under the primary jurisdiction doctrine rendered
the plaintiff "effectively out of court" where the agency had taken
no action since the entrance of the stay and, after nearly two
years, there was "no indication" of when it might take action);
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Johnson & Johnson, Inc. v. Wallace A. Erickson & Co., 627 F.2d 57,
62 (7th Cir. 1980) (taking a similar approach in a case where the
court ordered plaintiff to initiate patent reissue proceedings
with the PTO and stayed patent infringement case pending resolution
of those proceedings, resulting in delay that was for an
"indefinite period, and possibly forever"). ExxonMobil tries to
distinguish this case on the facts, pointing out that EPA has
represented that the agency is trying to issue a new permit by
October 2021. Even if EPA can deliver by its proposed issuance
date (over eight years since ExxonMobil submitted its
application), the Foundation will have endured the stay for over
a year and a half. This is so even though the district court is
requiring the parties in November 2021 to report their views on
whether the stay should be lifted if EPA has not by that point
issued the permit. ExxonMobil contends that this check-in date
makes the delay not so "indefinite," but the mere fact that the
district court may reconsider its stay order after over a year and
a half does not mean that the stay's duration is definite for
purposes of our appellate jurisdiction. But see Cheyney State
Coll. Faculty v. Hufstedler, 703 F.2d 732, 735–36 (3d Cir. 1983)
(concluding a stay order was not indefinite where the district
court asked for an update on administrative proceedings within
ninety days and where the district court agreed to reconsider its
order on that date).
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ExxonMobil maintains that we should render a party
"effectively out of court" due to "indefinite" delay in more
limited circumstances, such as where there is not even the
possibility of an eventual return to federal court. See, e.g.,
Crystal Clear Commc'ns, Inc. v. Sw. Bell Tel. Co., 415 F.3d 1171,
1177 (10th Cir. 2005) (explaining that a party was not "effectively
out of court" since the "referral of a discrete issue to a federal
agency under the doctrine of primary jurisdiction leaves open the
possibility of an eventual return to federal court"). Our caselaw,
however, espouses a broader view -- in Rojas-Hernandez, for
example, we contemplated that the appellant would eventually
return to federal court, 925 F.2d at 495 -- and, subject to only
rare exceptions, we are bound by our circuit's prior decisions,
see United States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018).
For an indefinite stay to confer appellate jurisdiction
under § 1291, the stay must also be unnecessary. See Miccosukee
Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 559 F.3d
1191, 1197 (11th Cir. 2009) (explaining that suspended-animation
stays are appealable when they are "pending the outcome of
proceedings that [are] unlikely to control or to narrow
substantially the claims or unresolved issues in the stayed
lawsuit"); Rojas-Hernandez, 925 F.2d at 495 (describing the
appellant as effectively-out-of-court because of the "indefinite
unnecessary delay inherent in the stay order" (quoting Nat'l R.R.
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Passenger Corp., 798 F.2d at 10)). That requires us to review the
likely outcome of the stay, an approach that "contrasts with the
usual situation in which we first ascertain that jurisdiction
exists and only then proceed to the merits." Cheyney State Coll.
Faculty, 703 F.2d at 735. We will explain why the stay is
unnecessary in the next section.
Accordingly, we find that we have jurisdiction to hear
this appeal.3
B. The Stay Order
The district court granted ExxonMobil's motion for a
stay under the doctrine of primary jurisdiction. As we mentioned
earlier, the doctrine "applies where a claim is originally
cognizable in the courts, and comes into play whenever enforcement
of the claim requires the resolution of issues which, under a
regulatory scheme, have been placed within the special competence
3 The Foundation provides two alternative bases for hearing this
case. First, it argues that the stay order is final because it
falls within the collateral order doctrine laid out in Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Second, it
argues that we have jurisdiction under 28 U.S.C. § 1651 to issue
a writ of mandamus, a "'drastic and extraordinary' remedy 'reserved
for really extraordinary causes.'" Cheney v. U.S. Dist. Ct. for
D.C., 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S.
258, 259–260 (1947)). Because we find appellate jurisdiction over
the stay order because the Foundation is "effectively out of
court," we need not discuss these alternatives further. See, e.g.,
Moses H. Cone, 460 U.S. at 8 n.6 ("[A] court of appeals has no
occasion to engage in extraordinary review by mandamus 'in aid of
[its] jurisdictio[n],' 28 U.S.C. § 1651, when it can exercise the
same review by a contemporaneous ordinary appeal." (second and
third alterations in original)).
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of an administrative body." W. Pac. R.R., 352 U.S. at 64. The
doctrine guides a court in deciding when those issues should be
resolved in the first instance by the agency. See PHC, Inc. v.
Pioneer Healthcare, Inc., 75 F.3d 75, 80 (1st Cir. 1996). The
doctrine exists to promote "national uniformity in the
interpretation and application of a federal regulatory regime" and
"to avoid the possibility that a court's ruling might disturb or
disrupt the regulatory regime of the agency in question." Am.
Auto. Mfrs. Ass'n v. Mass. Dep't of Envtl. Prot., 163 F.3d 74, 81
(1st Cir. 1998).
The district court found a stay appropriate until EPA
renews ExxonMobil's permit for the Everett terminal. It reasoned
that determining permit conditions fell squarely under EPA's
authority, that EPA was better suited than the court to determine
the scientific and policy issues raised by ExxonMobil's need to
consider the climate change factors, that EPA's renewal of the
permit might moot the Foundation's request for injunctive relief,
and that resolving the case on the merits would take at least as
long as EPA's projected timeline for renewing the permit.
Conservation Law Found., Inc., 448 F. Supp. 3d at 12.
1. Primary Jurisdiction and Citizen Suits
The Foundation brought this action under the citizen
suit provisions of the CWA and RCRA, and the Foundation argues
that suits brought under those provisions bar courts from applying
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the primary jurisdiction doctrine. Citizen suits "function as a
form of statutory enforcement in addition to, or in conjunction
with, enforcement by an administrative agency or other
governmental entity." Chico Serv. Station, Inc. v. Sol P.R. Ltd.,
633 F.3d 20, 27 (1st Cir. 2011) (quoting Esso Standard Oil Co.
(P.R.) v. Rodríguez–Pérez, 455 F.3d 1, 5 n.2 (1st Cir. 2006)). In
other words, citizen suit provisions demonstrate circumstances
where Congress wanted to allow individuals to bring lawsuits, even
where an agency has some authority. The primary jurisdiction
doctrine, on the other hand, is a form of abstention, that is, "a
prudential mechanism that allows federal courts to take note of
and weigh significant and potentially conflicting interests that
were not –– or could not have been –– foreseen by Congress at the
time that it granted jurisdiction for a given class of cases to
the courts." Id. at 31; see United States v. Culliton, 328 F.3d
1074, 1082 (9th Cir. 2003) ("Whether the doctrine of primary
jurisdiction applies in any particular situation depends on 'the
extent to which Congress, in enacting a regulatory scheme, intends
an administrative body to have the first word on issues arising in
juridical proceedings.'" (quoting United States v. Gen. Dynamics
Corp., 828 F.2d 1356, 1362 (9th Cir. 1987))). We ourselves have
previously recognized some tension between citizen suits and
Burford abstention. See generally Chico, 633 F.3d at 30-31.
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In Chico, we examined whether Burford abstention, a type
of abstention related to the doctrine of primary jurisdiction, was
applicable to a suit brought under RCRA's citizen suit provision.
633 F.3d at 30. We began our abstention discussion by taking note
of a bedrock principle:
Abstention occupies an uneasy position in the
jurisprudence of federal court jurisdiction.
As the common refrain goes, "federal courts
have a 'virtually unflagging obligation . . .
to exercise the jurisdiction given them.'"
Ankenbrandt v. Richards, 504 U.S. 689, 705
(1992) (quoting Colo. River Water Conservation
Dist. v. United States, 424 U.S. 800, 817
(1976)); United States v. Fairway Capital
Corp., 483 F.3d 34, 44 (1st Cir. 2007) (same).
This all but unyielding duty to exercise
jurisdiction rests on the "the undisputed
constitutional principle that Congress, and
not the Judiciary, defines the scope of
federal jurisdiction within the
constitutionally permissible bounds." New
Orleans Pub. Serv., Inc. v. Council of New
Orleans (NOPSI), 491 U.S. 350, 359 (1989); see
also Cohens v. Virginia, 19 U.S. 264, 404
(1821) (federal courts "have no more right to
decline the exercise of jurisdiction which is
given, than to usurp that which is not").
Chico, 633 F.3d at 28-29. In our consideration of the abstention
issue before the court, we observed that most courts to consider
the issue, under either Burford abstention or the doctrine of
primary jurisdiction, had found abstention improper. Id. at 30.
We then explained that Congress had recognized in RCRA's citizen
suit provision "the specific clash of interests" we were
considering with respect to abstention, and we thought abstention
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might "threaten[] an 'end run around RCRA,' and would substitute
our judgment for that of Congress about the correct balance between
respect for state administrative processes and the need for
consistent and timely enforcement of RCRA." Id. at 31 (quoting
PMC, Inc. v. Sherwin–Williams Co., 151 F.3d 610, 619 (7th Cir.
1998)). Nevertheless, we declined to categorically rule out the
possibility of abstention in RCRA in citizen suits. Id. Instead,
we expressed our view that the "circumstances justifying
abstention will be exceedingly rare." Id. at 32.
Reasoning by analogy, the Foundation argues that the
circumstances justifying the doctrine of primary jurisdiction
should be exceedingly rare -- and, in fact, nonexistent -- when a
suit is brought under the citizen suit provisions of the CWA and
RCRA. Because we find abstention improper in the circumstances of
this particular case, however, we need not determine whether the
doctrine of primary jurisdiction doctrine is, as the Foundation
urges, inapplicable to every case brought under the citizen suit
provisions of the CWA and RCRA. See Baykeeper v. NL Indus., Inc.,
660 F.3d 686, 695 (3d Cir. 2011) (finding abstention improper while
declining to impose a general rule as to the applicability of the
primary jurisdiction doctrine to cases brought under citizen suit
provisions). We now explain why we find abstention improper here.
2. Review
To start, we must decide what standard we ought to apply
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in reviewing the stay order, but the parties have hardly discussed
this issue. Our caselaw does not readily provide an answer.
Compare U.S. Pub. Interest Research Grp. v. Atl. Salmon of Me.,
LLC, 339 F.3d 23, 34 (1st Cir. 2003) (suggesting that a district
court has some discretion over whether to stay a case under the
primary jurisdiction doctrine), with Newspaper Guild of Salem,
Local 105 of Newspaper Guild v. Ottaway Newspapers, Inc., 79 F.3d
1273, 1283 (1st Cir. 1996) ("We review de novo the district court's
implicit jurisdictional finding that the Guild's claims fall
within the primary jurisdiction of the NLRB."); see also U.S. Pub.
Interest Research Grp., 339 F.3d at 34 ("[A] refusal in this case
to make a primary jurisdiction reference prior to the state's
issuance of the permit was neither a mistake of law nor an abuse
of discretion."). And other circuit courts are split over whether
to review decisions about the application of the doctrine of
primary jurisdiction for abuse of discretion or without any
deference to the district court. See Chlorine Inst., Inc. v. Soo
Line R.R., 792 F.3d 903, 908 (8th Cir. 2015) (collecting cases);
see generally Nicholas A. Lucchetti, One Hundred Years of the
Doctrine of Primary Jurisdiction: But What Standard of Review Is
Appropriate for It?, 59 Admin. L. Rev. 849 (2007). For present
purposes, we assume -- favorably to ExxonMobil -- that our review
is for abuse of discretion. "Abuse occurs when a material factor
deserving significant weight is ignored, when an improper factor
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is relied upon, or when all proper and no improper factors are
assessed, but the court makes a serious mistake in weighing them."
Indep. Oil & Chem. Workers of Quincy, Inc. v. Procter & Gamble
Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988).
Although there is "[n]o fixed formula" for applying the
primary jurisdiction doctrine, W. Pac. R.R., 352 U.S. at 64, we
have recognized three principal factors that guide whether to defer
a matter to an agency:
(1) whether the agency determination l[ies] at
the heart of the task assigned the agency by
Congress; (2) whether agency expertise [i]s
required to unravel intricate, technical
facts; and (3) whether, though perhaps not
determinative, the agency determination would
materially aid the court.
Massachusetts v. Blackstone Valley Elec. Co., 67 F.3d 981, 992
(1st Cir. 1995) (quoting Mashpee Tribe, 592 F.2d at 581). We may
also consider whether referral to the agency promotes "national
uniformity in the interpretation and application of a federal
regulatory regime." Am. Auto. Mfrs. Ass'n, 163 F.3d at 81; see
also Blackstone, 67 F.3d at 992.
As a reminder, the district court stayed the case until
EPA issues its new permit for ExxonMobil's Everett terminal. As
to the first Blackstone factor, the district court sensibly
determined that issuing a permit and determining its terms lie at
the heart of EPA's assigned task. See 33 U.S.C. § 1342; Arkansas
v. Oklahoma, 503 U.S. 91, 105 (1992) ("Congress has vested in the
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[EPA] Administrator broad discretion to establish conditions for
NPDES permits.").
As to the second Blackstone factor, the district court
explained that -- because the complaint focuses heavily on
ExxonMobil's alleged failure to account for the climate change
factors -- it would have to determine "whether and to what extent
climatologists believe weather patterns in Boston are changing,
and how prudent industrial engineers would respond to such changes"
in order to grant the requested relief. Conservation Law Found.,
Inc., 448 F. Supp. 3d at 22. We assume for the sake of argument
that agency expertise would be helpful to unravel which climate
models most accurately capture the effects of the climate change
factors. Cf. BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 655
(1st Cir. 1979) ("[T]he choice of statistical methods is a matter
best left to the sound discretion of the [EPA] Administrator."
(quoting FMC Corp. v. Train, 539 F.2d 973, 986 (4th Cir. 1976)));
but see Me. People's All. v. Mallinckrodt, Inc., 471 F.3d 277, 293
(1st Cir. 2006) ("[F]ederal courts have proven, over time, that
they are equipped to adjudicate individual cases, regardless of
the complexity of the issues involved. Federal courts are often
called upon to make evaluative judgments in highly technical areas
(patent litigation is an excellent example).").
We now turn to the third Blackstone factor -- whether
the agency determination would materially help the court. Of
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course, were we to weigh each of the Blackstone factors equally,
the first two factors might outweigh the third even if the agency
determination underlying the stay were completely unrelated to an
issue before the court. But that is obviously not what is meant.
"[T]he doctrine of primary jurisdiction is not a doctrine of
futility; it does not require resort to 'an expensive and merely
delaying administrative proceeding when the case must eventually
be decided on a controlling legal issue wholly unrelated to
determinations for the ascertainment of which the proceeding was
sent to the agency.'" Local Union No. 189, Amalgamated Meat
Cutters & Butcher Workmen of N. Am., AFL-CIO v. Jewel Tea Co., 381
U.S. 676, 686 (1965) (quoting Fed. Mar. Bd. v. Isbrandtsen Co.,
356 U.S. 481, 521 (1958) (Frankfurter, J., dissenting)). So, the
third factor can outweigh the other factors, and sometimes greatly
so. See U.S. Pub. Interest Research Grp., 339 F.3d at 34(explaining that whether to apply the doctrine of primary
jurisdiction "usually depends on whether a reference will advance
the sound disposition of the court case and whether failure to
refer will impair the statutory scheme or undermine the agency to
which the reference might be made").
The third Blackstone factor is especially salient in
this case. Whether and on what terms EPA issues the permit for
the Everett terminal seems to us largely irrelevant to whether
ExxonMobil has violated the conditions of the permit currently in
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effect.4 And it is wholly speculative whether the issuance of the
permit will illuminate EPA's beliefs as to the best climate change
models or how good engineers would respond to them, even if it
must publish a draft permit, provide detailed explanations for the
permit's conditions, and respond to public comments. See 40 C.F.R.
§§ 124.7, 124.8, 124.11, 124.13, 124.17. The stay also seems
unlikely to aid in the national uniformity of the meaning of terms
at issue in ExxonMobil's permit or the appropriate scope of climate
change regulations since EPA is not tasked with interpreting them.
See Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 761 (9th
Cir. 2015) ("Common sense tells us that even when agency expertise
4 See, e.g., Sierra Club, Inc. v. Granite Shore Power LLC, No.
19-CV-216-JL, 2019 WL 8407255, at *13 (D.N.H. Sept. 13, 2019) ("At
its core, the EPA's current permit adjudication concerns the
content and scope of [the facility's] future permit conditions.
This is a very different determination than whether [the facility]
is operating in compliance with its current permit conditions."
(citation omitted)) (denying motion to stay citizen suit alleging
violations of existing NPDES permit under primary jurisdiction
doctrine notwithstanding pending permit renewal proceeding);
Student Pub. Interest Research Grp. of N.J., Inc. v. Fritzsche,
Dodge & Olcott, Inc., 579 F. Supp. 1528, 1537-38 (D. N.J. 1984),
aff’d, 759 F.2d 1131 (3d Cir. 1985) ("Defendant's argument confuses
two events: the present citizen's suit, to enforce an existing
NPDES permit; and a renewal application") (rejecting argument that
citizen suit alleging violation of NPDES permit should be stayed
pending permit reissuance); Ill. Pub. Interest Research Grp., 835
F. Supp. at 1076 (finding primary jurisdiction inapplicable where
citizen suit seeks enforcement of existing permit terms); cf.
Student Pub. Interest Research Grp. of N.J., Inc. v. Monsanto Co.,
600 F. Supp. 1479, 1483 (D.N.J. 1985) ("The pendency of a [permit]
modification proceeding does not excuse violations of a permit
prior to actual modification: a modification request does not
stay existing permit limitations.").
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would be helpful, a court should not invoke primary jurisdiction
when the agency is aware of but has expressed no interest in the
subject matter of the litigation."); see also Student Pub. Interest
Research Grp. of N.J., Inc. v. Monsanto Co., 600 F. Supp. 1479,
1483 (D.N.J. 1985) ("[W]hatever uniformity the EPA hoped to achieve
presumably was expressed through the issuance of permits.").5
After all, ExxonMobil has represented that its permit application
seeks the issuance of a permit that is similar "in all material
aspects" to the one currently in effect.
For these reasons, we find unconvincing the district
court's rationale that EPA's determination on the permit could
render "most of th[e] case moot" since the Foundation has sought
injunctive relief and since the new permit might cover some or all
of the behavior the Foundation seeks to enjoin. Conservation Law
Found., Inc., 448 F. Supp. 3d at 24. The district court also
reasoned that even if the new permit did "not directly address
climate change," it would "generate a fuller administrative record
to which [it could] refer to discern the meaning of particular
terms" in the permit. Id. at 23. That may be so, but we are not
5 EPA is well aware of this litigation. In fact, EPA's statements
in this case have expressly discounted concerns with any regulatory
interference (indicating in a letter filed in this matter that the
threat that "rulings in this case could be contrary to EPA's
programs" is no greater than that "present in most private
environmental litigation"). Further, EPA was invited to comment
on this lawsuit and expressly declined to do so.
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satisfied that a stay awaiting EPA's decision on ExxonMobil's
permit for this reason would "materially" help the district court.6
After considering the Blackstone factors, we balance
them "against the potential for delay inherent in the decision to
refer an issue to an administrative agency." Am. Auto. Mfrs.
Ass'n, 163 F.3d at 81.7 Since the Blackstone factors do not weigh
in favor of the stay envisioned by the district court, any
potential delay only furthers our view that the stay was
unjustified. We add that, despite the district court ruling on
ExxonMobil's motion to dismiss in March 2019, the parties have not
even begun discovery. The district court explained that, in its
view, even under an "ambitious, and perhaps unrealistic,
schedule," discovery and briefing on summary judgment would take
6 We can imagine much more salient agency determinations, though
we do not suggest that a stay to refer such determinations to EPA
would satisfy the Blackstone factors or that it would be proper
for the district court on remand to refer such determinations to
the agency at this stage of the litigation. EPA's determination
would much more likely aid the district court if, for example, it
were to consider the meaning of the terms as used in ExxonMobil's
permit whose terms are currently in effect.
7 In American Automobile Manufacturers, we advised that where
delay would potentially be too great to justify a referral, a
district could, for example, "refer a matter to an administrative
agency, explicitly providing, however, that if the agency fails to
rule within a reasonable amount of time, the court would either
vacate the referral order and decide the matter itself, or issue
an order under 5 U.S.C. § 706(1), which authorizes courts to
'compel agency action . . . unreasonably delayed.'" 163 F.3d at
82. There, we stayed proceedings to afford one of the parties the
opportunity to obtain a ruling from EPA, but we warned that if no
agency ruling was forthcoming in 180 days, we would decide the
issues in the case without EPA's guidance. Id. at 86–87.
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over a year. Conservation Law Found., Inc., 448 F. Supp. 3d at
26. Although the district court foresaw the issuance of the new
permit as mooting many of the issues in the case, it is unclear
how, as it believed, "deferring to the EPA until at least October
2021 [w]ould not delay the resolution of the issues involved in
this case." Id. Even if EPA issues ExxonMobil's permit by EPA's
proposed deadline and even if the permit moots the Foundation's
request for injunctive relief, the parties would still have to
begin discovery on the counts alleging past violations. Indeed,
the district court held that the Foundation's complaint adequately
alleged that ExxonMobil was or is contributing to an "imminent and
substantial endangerment to health or the environment" in
violation of RCRA. 42 U.S.C. § 6972(a)(1)(B). And that count
does not even involve consideration of the permit's terms.
In conclusion, we think the district court erred in
granting a stay under the doctrine of primary jurisdiction until
EPA issues a new permit for ExxonMobil's Everett terminal.
III. Conclusion
For the foregoing reasons, we vacate the stay order and
remand for proceedings not inconsistent with this opinion. Costs
to the appellant.
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