The Conservation Law Foundation will continue its Clean Water Act and RCRA citizen suit against Exxon Mobil alleging violations of those federal laws at Exxon Mobil's Everett facility if a decision yesterday by a three judge panel of the First Circuit stands.

While it is hard to get worked up about that specific outcome, the panel's decision is further evidence that it may be federal courts, not the Environmental Protection Agency, that could dominate the application of the Clean Water Act which is most certainly not what Congress intended.

Exxon Mobil had been operating under an expired NPDES permit since 2014.  CLF sued in 2016.  The District Court stayed the case in 2020 on the ground that EPA's pending (at that time for six years) permitting decision could resolve CLF's claims.  The District Court's impassioned but unsuccessful effort to engage EPA regarding its permitting intentions were well publicized at the time.  The District Court specified a status report in 18 months, no doubt hoping that the high profile litigation would prompt EPA to act.  It hasn't.

The First Circuit panel has now held that the District Court erred in granting a stay.  In order to do so, the panel had to first overcome the fact that appellate jurisdiction typically extends only to final decisions.  The panel overcame that hurdle by applying the law of some, but not all, Federal Circuits, that orders that impose lengthy or indefinite delays are appealable as final orders pursuant to what is called the "effectively out of court doctrine".

Having given itself permission to review the merits of the District Court's order, the panel concluded that "[w]hether and on what terms EPA issues the permit for the Everett terminal seems to us largely irrelevant to whether Exxon Mobil has violated the conditions of the permit currently in effect."  And so the panel vacated the District Court stay and remanded the case for further proceedings.

Those of us who practice in the area know that it is common that NPDES permits expire years before they are reissued.  That's why it is silly to suggest that EPA could possibly keep up with the demand for permits that would be required if the reach of the Clean Water Act were expanded as suggested by CLF and others in other cases.  In the face of an insufficiently resourced EPA, and decisions like this one, it seems as if citizen suit plaintiffs and District Court judges, and not the agency charged with implementing the Clean Water Act, could be calling the shots for the foreseeable future.