Environmental Law

Will the Rigs-to-Reefs Experiment Be Based on the “Best Scientific Information Available”?

Artificial reefs constructed from decommissioned oil rigs have been proposed as a tool to counteract declines in marine fish populations. There is so much uncertainty surrounding this relatively new proposition to deal with an inherently difficult-to-study problem, however, that it is not yet possible to tell whether these rigs-to-reefs will contribute to the recovery of fish populations or exacerbate the problem. The National Fishing Enhancement Act (NFEA), the statute authorizing the rigs-to-reefs program, requires that agencies implementing it base their decisions on the “best scientific information available” (BSIA). Although no court has yet addressed this provision in the NFEA, it has been the frequent subject of litigation in related statutes. This Comment explores how a Court would likely evaluate a challenge to agency action under the NFEA, based on comparisons to treatment of this provision under the Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and Magnuson-Stevens Fishery Conservation and Management Act (MSA). Concluding that courts will not likely supply the pressure to advance scientific information about the effects of rigs-to-reefs, this Comment advocates for a targeted approach to closing the information gap.

Louisiana Environmental Action Network v. City of Baton Rouge: The Fifth Circuit Follows the Trend and Finds the Clean Water Act’s Diligent Prosecution Bar Is a Nonjurisdictional Rule, to the Benefit of Citizen Suit Plaintiffs

After witnessing years of pollution by the City of Baton Rouge and the Parish of East Baton Rouge, the most significant obstacle facing the Louisiana Environmental Action Network (LEAN) in its citizen suit under the Federal Clean Water Act (CWA) was overcoming the CWA’s “diligent prosecution” bar in an atmosphere of procedural uncertainty.  The litigation in the noted case arose out of alleged violations of National Pollutant Discharge Elimination System (NPDES) permits issued to the city and parish by the Louisiana Pollutant Discharge Elimination System (LPDES).[1. La. Envtl. Action Network v. City of Baton Rouge, 677 F.3d 737, 740-41 (5th Cir. 2012).]  These permits allowed the city and parish to release pollutants from wastewater treatment facilities provided that certain conditions were met.[2. See id. at 741.]  In 1988 and 2002, in response to complaints filed by the United States over the city’s and parish’s noncompliance with the NPDES permits, the district court entered consent decrees to require compliance with the CWA.[3. Id.  The 2002 consent decree superseded and terminated the 1988 consent decree.  Id.]  The 2002 decree provided for less rigid standards and set guidelines for the facilities to achieve compliance.[4. Id.]  In 2009, the district court modified the 2002 consent decree to require the city and parish to bring the facilities into compliance by 2015.[5. Id. at 741-42.] Despite multiple consent decrees, LEAN observed that the city and parish continued to violate the requirements of the original NPDES permit and the 2002 consent decree as modified in 2009.[6. Id. at 742.]  After providing notice to the city and parish of the alleged violations in both November and December 2009, LEAN filed a citizen suit under the CWA against the city and parish in the United States District Court for the Middle District of Louisiana on March 22, 2010.[7. Id.]  In its complaint, after alleging that it met the CWA’s citizen suit notice requirement and that the diligent prosecution requirement was not met by either the Environmental Protection Agency (EPA) or state of Louisiana, LEAN claimed that the wastewater treatment plants violated multiple requirements of the NPDES permit and the 2002 consent decree.[8. Id.]  The city and parish subsequently filed a motion to dismiss, citing the 2002 consent decree, which they claimed met the diligent prosecution bar of the CWA.[9. Id. at 742-43.]  The district court granted the motion, not on the basis that the diligent prosecution bar was met, but rather on the basis that the defendants’ compliance with the 2002 consent decree mooted LEAN’s claims.[10. Id. at 743.]  In doing so, the district court dismissed LEAN’s claims on jurisdictional grounds and therefore did not need to accept LEAN’s well-pled allegations as true or view the facts in the light most favorable to LEAN.[11. See id. at 743-45.]  On appeal, the United States Court of Appeals for the Fifth Circuit held that the district court erred in dismissing LEAN’s citizen suit as moot, that the diligent prosecution bar of the CWA is a nonjurisdictional limitation to citizen suits, and that the action should be remanded to the district court to determine whether the diligent prosecution bar precludes the suit on nonjurisdictional grounds.  Louisiana Environmental Action Network v. City of Baton Rouge, 677 F.3d 737, 745, 749 (5th Cir. 2012).