Does Res Judicata Prevent EPA Overfiling under the Clean Water and Clean Air Acts
The Clean Water Act (CWA) and the Clean Air Act (CAA) are unclear regarding whether Congress specifically intended to permit the federal Environmental Protection Agency (EPA) to bring another civil enforcement action against a company that has already resolved the same violations with an authorized state agency like the Michigan Department of Environmental Quality (MDEQ) in state court. This practice is commonly known as "overfiling." There are provisions in the CWA1 and the CAA2 that arguably preserve EPA’s enforcement authority, notwithstanding the enforcement authority delegated to the state. Despite this EPA enforcement discretion under the CWA and the CAA, a recent federal court of appeals case suggests that this discretion does not necessarily pre-empt the common-law doctrine of res judicata (claim preclusion).
In the case of Harmon Industries v Browner, 191 F3d 894, 903 (CA 8, 1999), the court stated:
[T]he plain language of the [Resource Conservation and Recovery Act] permits the State of Missouri to act in lieu of the EPA. When such a situation occurs, Missouri’s action has the same force and effect as an action by the EPA. Accordingly, the two parties stand in the same relationship to one another.
As a result, the EPA and the Missouri Department of Natural Resources (MDNR) were determined to be in privity3 for res judicata purposes. For similar reasons, it is my opinion that the res judicata rationale that barred the EPA’s overfiling action under the Resource Conservation and Recovery Act (RCRA) in Harmon Industries should similarly preclude the EPA from overfiling under the CWA and the CAA in Michigan. This article discusses those reasons.
CLEAN WATER ACT
If the EPA were to file an ensuing enforcement action in federal court under the CWA after the MDEQ had resolved its action in state court, then the Full Faith and Credit Act, under 28 USC 1738 would apply. The Full Faith and Credit Act directs that the "judicial proceedings" of any state "shall have the same full faith and credit in every court within the United States...as they have by law or usage in the courts of such state...from which they are taken." Id.
The Full Faith and Credit Act requires all courts, state or federal, to treat a state court judgment with the same respect that it would receive in the courts of the rendering state. Matsushita Electric Indus Co v Epstein, 516 US 367, 373 (1996). Federal courts cannot "employ their own rules...in determining the effect of state judgments" but must "accept the rules chosen by the state from which the judgment is taken." Kremer v Chemical Constr Corp, 456 US 461, 481-482 (1982).
In Michigan, res judicata bars a subsequent action between the same parties when the evidence or essential facts are identical. Eaton Co Bd of Co Rd Comm’rs v Schultz, 205 Mich App 371, 375 (1994). A second action is barred when (1) the first action was decided on merit by a court of competent jurisdiction, (2) the matter contested in the second action was resolved in the first action, and (3) both actions involve the same parties or their privies. Id. at 375-376. There is little dispute that an enforcement action resolved in state court by an authorized state agency such as the MDEQ and a subsequent EPA enforcement action against the same company for the same violations in federal court would involve the same permit under the CWA. The only remaining question is whether the MDEQ can be considered to be in privity with the EPA.
In Harmon Industries, the court relied on the "in lieu of" and "same force and effect" language in the RCRA4 to determine that the MDNR and the EPA were identical parties or in privity for enforcement purposes and, thus, res judicata purposes. Unlike the RCRA, the CWA does not explicitly mention that it is administered and enforced by the state "in lieu of" the federal program. Nor does the CWA say that any action taken by a state has the "same force and effect" as action taken by the EPA, such as the RCRA.
Nevertheless, the CWA’s legislative history indicates that the "state permit programs...are state programs which ‘function in lieu of the federal program."’ See State of California v United States Dep’t of Navy, 845 F2d 222, 225 (CA 9, 1988) (quoting HR Rep No 830, 95th Cong, 1st Sess 104, reprinted in 1977 US Code Cong & Admin News 4327, 4479). In addition, a federal court of appeals has recognized that "the relationship between [a state agency] and the EPA [under the Clean Water Act], however it may be labeled, is sufficiently ‘close’ under the circumstances to preclude relitigation of the [enforcement] issue already resolved in state court." United States v ITT Rayonier, 627 F2d 996, 1003 (CA 9, 1980).
In spite of ITT Rayonier, the case of United States v Smithfield Foods, Inc, 191 F3d 516 (CA 4, 1999) initially appeared to uphold the EPA’s "overfiling" authority under the CWA. However, the Smithfield Foods case is distinguishable because it does not represent the traditional overfiling situation, as Harmon Industries did, in which the EPA filed after the state had adjudicated its enforcement action in state court. Rather, in Smithfield Foods, the EPA filed first and obtained a judgment in federal court before the state court could render a final judgment on the action filed by the Virginia Department of Environmental Quality (VDEQ).5 The state court dismissed the pending state enforcement action on res judicata grounds because the issues were previously adjudicated in federal court.6
In short, Smithfield Foods dealt with state overfiling, which was precluded on res judicata grounds, rather than EPA overfiling.7 Consequently, because the enforcement relationship between the EPA and the MDEQ under the RCRA is virtually identical to their relationship under the CWA, the res judicata doctrine should preclude an EPA overfiling under the CWA.
CLEAN AIR ACT (CAA)
Both companies in the Harmon Industries and ITT Rayonier cases have demonstrated that a res judicata argument will succeed under the RCRA and the CWA, respectively, if it is shown that the state agency and the EPA are in privity with one another. It is an open question regarding whether res judicata can properly be applied to EPA overfiling actions under the CAA. There is federal case law8 suggesting that overfiling is permissible under the CAA. However, neither case addressed the applicability of the common-law doctrine of res judicata.
As with the CWA, under the CAA the first two elements of res judicata are easily satisfied. The question remains regarding whether the EPA and a state agency satisfy the remaining privity element of res judicata. If privity exists, then application of the doctrine of res judicata in EPA overfiling situations is warranted.
In order to find privity, a court must examine the statutory language of the CAA to determine whether they represent the same legal interest in enforcement actions. See Citizens Legal Environmental Action Network v Premium Standard Farms (No. 97-6073-CV-53-6, WD Missouri, February 23, 2000). The EPA would likely argue that they are not in privity with a state agency under the CAA because states should not be expected to share the federal government’s interest in nationwide enforcement under the CAA. Although the EPA’s interest may entail the ability to ensure that states do not relax enforcement in order to attract industry to that particular state, certain language in the CAA designates states as "authorized representatives of the United States"9 to administer certain portions of an EPA-approved state implementation plans (SIP).
This "authorized representative" language is not prevalent throughout the CAA, nor is it as plain or clear as the "in lieu of" or "same force and effect" language in RCRA. Regardless, it does suggest that state agencies are likely to be considered authorized agents of the EPA, representing the same legal interests under the CAA. This argument is buttressed by dictum from the U.S. Court of Appeals for the Sixth Circuit that res judicata should preclude overfiling by the EPA in CAA enforcement cases. In Buckeye Power, Inc, v EPA, 481 F2d 162, 167 n 2 (CA 6, 1973), the court stated:
It would seem to us that the court which first acquired jurisdiction of enforcement proceedings would have exclusive jurisdiction to proceed to determine the litigation, and its judgment would be res judicata of the issues litigated. In view of the fact that both federal and state courts acquire jurisdiction by a single act of Congress, we do not think that Congress ever intended that the parties defendant to enforcement proceedings would be subject to double penalties, i.e. penalties in each jurisdiction.
Consequently, this dictum from the Buckeye Power opinion, coupled with the "authorized representative" language of the CAA, suggests that a subsequent EPA overfiling action under the CAA can be barred on res judicata grounds by the federal courts in Michigan.10
The courts in the Harmon Industries, ITT Rayonier, and Buckeye Power cases have charged that the doctrine of res judicata prohibits subsequent enforcement actions under RCRA, the CWA, and the CAA respectively. Thus, the first to obtain a court judgment or court-approved consent decree in a CWA or a CAA enforcement action, by either the EPA or the MDEQ, will likely bar the other’s subsequent enforcement action under the doctrine of res judicata in Michigan.
1. Under 33 USC 1319(a)(1) of the CWA, the EPA is permitted to initiate enforcement of permits issued by a state if the state does not initiate "appropriate enforcement action" within 30 days of notice of a violation from the EPA. Also, 33 USC 1342(i) of the CWA states that "nothing in this section [providing for the state National Pollutant Discharge Elimination System permit programs] shall be construed to limit the authority of the Administrator to take action pursuant to section 1319 of this title."
2.42 USC 7661a(e) of the CAA states that "nothing in this subsection [providing for state permit programs] should be construed to limit the Administrator’s ability to enforce permits issued by the state." Furthermore, there is no corresponding trigger for EPA enforcement under the CAA, as in 33 USC 1319(a)(1) of the CWA.
3. There is no general prevailing definition of privity. However, Michigan recognizes that it has been described as including a person so identified in interest with another that he or she represents the same legal right, as in the relationships between principal and agent, master and servant, or indemnitor and indemnitee. See Viele v DCMA, 167 Mich App 571, 580 (1988).
4. See 42 USC 6926(b) and (d).
5. The EPA filed its own enforcement action when it became apparent that the Virginia Department of Environmental Quality (VDEQ) would not be diligent in initiating its own enforcement action for the CWA violations. The EPA invited the VDEQ to join the federal suit, but the VDEQ subsequently filed its own enforcement action in state court. Thus, because of the VDEQ’s lack of diligence in prosecuting this matter, it appears that it was probably unable to preclude an EPA enforcement action under 33 USC 1319(g)(6)(A)(ii) of the CWA.
6.See Tuesday October 5, 1999, editions of The Virginian Pilot (Business News) and the Richmond Times-Dispatch (Business News). Furthermore, it is important to note that for the state court to dismiss the state action on res judicata grounds, it had to first recognize that the EPA and the VDEQ were the same parties or in privity with each other for CWA enforcement purposes.
7. It is critical to recognize that if a state enforcement action alleges violations that occurred at a different time than the alleged violations in a concurrent EPA enforcement action for the same permit, then neither action is precluded on res judicata grounds. United States v City of Menominee, 727 F Supp 1110, 1123 (WD Mich 1989).
8. See United States v SCM Corp, 615 F Supp 411, 418, n 17 (D Md 1985) (there is no suggestion in the CAA that state enforcement authority provisions were intended to displace the enforcement authority of the EPA); See also Train v Natural Resources Defense Council, 421 US 60, 93, n 27 (1975).
9. 42 USC 7414 (b) and (c). See also 40 CFR 2.301(h)(3).
10. Another federal court determined that even though a state reached an agreement regarding a compliance schedule to rectify violations under the CAA, that agreement did not affect the underlying liability of the company and, by implication, the EPA’s ability to overfile under the CAA. United States v Harford Sands, Inc, 575 F Supp 733, 735 (D Md 1983). Res judicata was not applicable in Harford Sands because the agreement was not part of a consent decree or other court judgment. As a result, the Harford Sands case is distinguishable from footnote 2 in Buckeye Power.