Sierra Club v. Two Elk Generation Partners: The End of Citizen Suits

Nick Klein[1]

Congress originally enacted the Clean Air Act (CAA) in 1963 to directly address growing environmental concerns over air pollution.[2]  On the assertion that each individual has a right to their health, and in recognition of this liberty, Congress established the citizen suit provision as a right of action for citizens themselves to enforce the CAA.[3]  Additionally, the delicate balance between industrial and commercial growth and health and safety of individuals, led Congress to imbed within the act this citizen suit provision, shifting the responsibility and liability for oversight and enforcement to the public, the government, and Congress in particular.[4]  However, enabling citizens to individually bring an action against CAA violators raises res judicata concerns, namely that the same individual right would be litigated by each individual separately.  To prevent the burden on industry from escalating, courts have applied doctrines of preclusion to prevent these duplicate suits.  The cornerstone of courts’ preclusion analysis is satisfaction of the due process requirements of the Fifth and Fourteenth Amendments.  An individual suit may be barred on the grounds that the contentious issue has previously and adequately been litigated and resolved in a court of proper jurisdiction without violating due process.

The Tenth Circuit in Sierra Club v. Two Elk Generation Partners, estopped Sierra Club’s claim under collateral estoppel. Sierra Club had filed an action under the CAA’s citizen suit provision alleging that Two Elk Generation Partners, an electric power plant operator, was violating the CAA by attempting to build a coal-fired power plant with an invalid prevention of significant deterioration permit.[5] However, Two Elk had previously reached a stipulation regarding the permit with the permitting agency, the Wyoming Department of Environmental Quality (DEQ).[6] This stipulation was approved by an administrative agency, the Wyoming Environmental Quality Council (Council); the Council dismissed the matter.[7]  As a result of this stipulation and dismissal, the court found that privity existed between Sierra Club and the DEQ, thus binding Sierra Club under the doctrine of parens patriae.  In expanding the doctrine of parens patriae the Tenth Circuit violated the legislative intent behind the citizen suit provision and eroded proper limitations on collateral estoppel, leading to a violation of due process.

The CAA citizen suit provision provides that district courts have jurisdiction, “without regard to the amount in controversy or the citizenship of the parties, to enforce such an emission standard or limitation, or such an order, or order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties.”[8]  Meshing statutory rights, namely the citizen suit provision, with constitutional guarantees of due process requires certain protections in the application of privity.  Privity is a doctrine that binds a non-party to the decision articulated by a court on the grounds that there is a logical connection with a named party in the dispute.  When an administrative agency is a party to the dispute, privity may be found between a non-party and the agency on the grounds that the agency has adequately represented the non-party.  Adequate representation is fundamentally necessary to satisfy due process when precluding a non-party from their own day in court.  When applied correctly, parens patriae is a doctrine that satisfies due process and properly precludes further suits on the same matter.  Parens patriae, which has ancient roots, binds citizens of a state to their representatives in court who are charged with looking out for their interests. [9]  Traditionally, those representatives were limited to those expressly charged with protecting the sovereign interests of the state in federal court. 

The constitutional effect of the court’s decision arises out of the application of parens patriae to satisfy the privity requirement of collateral estoppel.[10]  The majority’s reliance on parens patriae extends the doctrine beyond well-established and recognized limits.[11]   Sierra Club’s claim was never litigated in state court, it was not an adversarial proceeding in which the government adequately prosecuted or defended, and the government did not properly assert their standing under parens patriae in federal court.[12]  In short, the application of parens patriae in this scenario undermines the doctrine’s constitutional limitations.

The Council declared an order without an adversarial proceeding.[13]  Yet, in federal court pursuant to the citizen suit provision of the CAA, Sierra Club is now estopped from litigating their claim.[14]  The court mistakenly justifies this estoppel on the grounds that Sierra Club was in privity with DEQ, the state administrative agency charged with regulating the permits.[15]  The court’s reasoning is not only flawed, but its application of the parens patriae doctrine in this administrative proceeding context diminishes the protections of due process and effectively eliminates citizen suits in the Tenth Circuit.

A. Taking away our “day in court”

An individual harmed by the action of another, for which there is a statutory or constitutional basis for redress, has standing to litigate that issue in a court of proper jurisdiction.  The doctrine of parens patriae, as a doctrine of standing, does not limit that right, but subsumes the responsibility to litigate on behalf of the individual in a very particular situation.  In addressing the concept of privity one must be mindful of the extraordinary circumstances necessary for its application.[16]  The predisposition against privity is fundamental in the judicial system of the United States, namely that every individual has a right to be heard in a court of justice.[17]  The particular situation in which the government holds its citizens in privity under parens patriae exists when the following specific circumstances exist: (1) the injury results from a cause tied to a quasi-sovereign interest; (2) the government represents their citizens against a collective harm; (3) the government explicitly asserts their representation in federal court; and (4) the government diligently prosecutes or defends the action with due diligence and reasonable prudence in an adversarial proceeding.[18]  When any one of these elements is lacking, so is the government’s privity and standing.  These limitations serve to protect the careful balance between sovereignty and individual rights.  It is a “deep-rooted historical tradition” and constitutional right “that everyone should have his own day in court.”[19]  By relaxing these elemental circumstances required for precluding an individual from their due process in court, is to tilt the balance too far. 

The Tenth Circuit completely disregarded these well-established limitations on asserting parens patriae status and the Supreme Court’s clear guidance in Taylor v. Sturgell.[20]  The Supreme Court expressly rejected the expansive use of “virtual representation” to avoid the general rule against non-party preclusion.[21]  The Court in Taylor outlined the six exceptions to the general rule against preclusion and did not mention parens patriae as one of them.[22]  While the Taylor exceptions were not comprehensive,[23] the majority’s reliance on the lack of discussion regarding parens patriae as a sign that Taylor does not apply to the case at bar, is a mistake.  The majority even concedes that the Wyoming Supreme Court would likely rely on federal case law in a privity analysis, but choses to simply disregard Taylor altogether.[24]  Had the Tenth Circuit included Taylor in its analysis, as it should have, Sierra Club would have its day in court.  Despite this misguided exclusion of Taylor in their analysis, the underlying concern is the encroachment of governmental privity on individual rights to be heard in court, to which the Tenth Circuit turns a blind eye.

Turning to the specific deficiencies in applying parens patriae that the Tenth Circuit diminished, the government never asserted their parens patriae standing in federal court.  Articulated in Satsky v. Paramount Communications, Inc., the court found that parens patriae, as a doctrine of standing, is designed only to bind citizens in privity when a state explicitly asserts the doctrine before a federal court.[25] This requirement is justified by the historical foundation of the doctrine.[26]  In the creation of the Union states ceded diplomatic powers, war-making and other rights, to the federal government in return for a guaranteed remedy in federal court for disputes between states.[27]  Federal courts are thus required to settle disputes that a state raises on behalf of its citizens, which were previously settled by force or threat of force.[28]  The resulting doctrine has evolved to one in which a state asserts a violation of its “quasi-sovereign interests” and seeks resolution in a federal forum.[29]  The dissent emphasized this principle in their reliance on one hundred years of case law[30] and their conclusion that “[i]t is only after a state has come to the doors of a federal courthouse, and asked to be admitted to assert its quasi-sovereign interests, that a court may imbue it with parens patriae status” therefore binding the citizens of the State through privity.[31]  Wyoming has not, either through the state agency, DEQ, or otherwise, come to federal court to assert its “quasi-sovereign interest.”[32]  The court equates an internal administrative proceeding to knocking on the door of federal court, thereby eliminating this historical limitation.

Additionally, Wyoming, under the guidelines of Satsky, must affirmatively state its standing under parens patriae in order to properly notify the citizenry they purport to represent, and ensure their standing in the federal proceeding.[33]  The majority mistakenly dismissed this requirement on the grounds that it is simply form over substance.[34]  Considering parens patriae is a doctrine of standing, the substance of explicitly asserting standing is vital to ensure the court is one of proper jurisdiction, and that the entire population purportedly represented is given the opportunity to intervene or challenge the decisive position of the state.  In this case, neither of the two Satsky requirements were satisfied by Wyoming.[35]  And, again, the court has diminished a historical and procedural safeguard on our due process rights by casting off explicit assertion of standing as “form over substance.”[36]

Another major deficiency in the Tenth Circuit’s application of parens patriae is that the government did not prosecute or defend their action with due diligence and reasonable prudence in an adversarial court proceeding.  The CAA provides that “No action may be commenced…if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard, limitation, or order….”[37]  The same requirement exists to bind citizens to the government under parens patriae.[38]  Significant circuit authority exists for the proposition that an administrative proceeding does not constitute a “court” under both the CAA and parallel language of the Clean Water Act.[39]  The bottom line is that “[a]ll but two of the more than thirty courts asked to rule that an administrative tribunal is a court for the purposes of preclusion under the CAA or similar statutes have refused to do so.”[40]  An administrative tribunal is simply not a court of justice.  Our Constitution’s Fifth and Fourteenth Amendments preserve the right to due process of law and are violated here because, on this particular issue, the Tenth Circuit denied Sierra Club’s right to their day in court.  It is the courts, not administrative agencies under the executive branch, which determine what the law is and satisfy due process.[41]  The doctrine of parens patriae simply does not exist if the proceeding is not in a court of law.[42]  Therefore, whatever action by DEQ before the Wyoming administrative agency does not preclude Sierra Club’s citizen suit.  Again, the Tenth Circuit ignored this concept to the detriment of our due process rights.

The Tenth Circuit has fundamentally altered the historical balance between individual rights and sovereignty.  By eliminating the proven and vital safeguards on invoking parens patriae standing to establish privity and precluding citizen suits, the Tenth Circuit has infringed on our due process and statutory right to have our day in court.  Of the limited requirements to establish parens patriae, the Tenth Circuit has eliminated the need for the government to explicitly assert parens patriae standing in a court, let alone a federal court, and the need for the government to diligently prosecute the interest of those they purport to represent.  The only requirements left for parens patriae standing to preclude citizen suits is that the government asserts a quasi-sovereign interest against a collective harm.

The Tenth Circuit has unwisely expanded the doctrine of parens patriae by eliminating most of the historical limitations on its use.  In so doing, privity may now be established between citizens and administrative agencies precluding, under collateral estoppel, citizen suits.  By loosening the elemental requirements on parens patriae, the Tenth Circuit has infringed on our due process right to be have our day in court. 

[1] J.D. Candidate 2013, University of Denver Sturm College of Law.

[2] 42 U.S.C. § 7401.

[3] 42 U.S.C. § 7604.

[4] Id.

[5] Sierra Club v. Two Elk Generation Partners, 646 F.3d 1258, 1258 (10th Cir. 2011).

[6] Id.

[7] Id.

[8] 42 U.S.C. § 7604(a).

[9] Parens patriae is Latin for “parent of the state” and under Roman law stood for the emperor as the embodiment of the state. Black’s Law Dictionary (9th Ed., 2009).  Initially invoked by the King’s Bench in the sixteenth century as a doctrine of standing, it is “a concept of standing utilized to protect…quasi-sovereign interests, such as health comfort, and welfare of the people.” Gibbs v. Titelman, 369 F. Supp. 38, 54 (E.D. Pa. 1973), rev’d on other grounds, 502 F.2d 1107 (3d Cir. 1974).  As parens patriae evolved certain limitations developed to prevent an overbearing government.  See Mormon Church v. United States, 136 U.S. 1, 57-58 (1890) (parens patriae limited to use by state legislatures, not the federal government).  The concept of ordered liberty and, specifically, the due process clause of the Fourteenth Amendment under strict scrutiny analysis, limit state invocations of parens patriae.  See Palko v. Connecticut, 302 U.S. 319 (1937); see also Meyer v. Nebraska, 262 U.S. 390 (1923) (“Determination by the Legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.”).

[10] As the majority correctly notes, in analyzing the preclusive effect of an administrative decision under the common law doctrine of collateral estoppel, the court “must determine whether the decision would be entitled to preclusive effect under Wyoming law and whether it satisfied the minimum standards of due process.” Sierra Club, 646 F.3d at 1264 (citing Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481-82 (1982)).  The majority incorrectly reached its conclusion that collateral estoppel applied by an erroneous evaluation of Wyoming’s four element test.  Specifically, the third element: whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication.  Brockman v. Wyo. Dep’t of Family Servs., 342 F.3d 1159, 1166 (10th Cir. 2003). 

[11] See Lisa Moscati Hawkes, Parens Patriae and the Union Carbide Case: The Disaster at Bhopal Continues, 21 Cornell Int’l L.J. 181, 186-89 (1988).

[12] Sierra Club, 646 F.3d at 1262 (majority opinion).

[13] Id.

[14] Id.

[15] Id.

[16] See supra note 9.

[17] See Hawkes, supra note 11, at 188-92.

[18] Friends of Milwaukee’s Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743, 743 (7th Cir. 2004) (using parallel language to the CAA in requiring the “due diligence and reasonable prudence” in prosecuting or defending action); Satsky v. Paramount Commc’ns, Inc., 7 F.3d 1464, 1464 (10th Cir. 1993) (explaining that parens patriae must be explicitly asserted in federal court for a quasi-sovereign interest); EPA v. City of Green Forest, 921 F.2d 1394, 1394 (8th Cir. 1990) (discussing the adversarial proceeding requirement of parens patriae).  See 72 Am. Jur. 2d States § 90 (2011).

[19] Taylor v. Sturgell, 553 U.S. 880, 892-93 (2008) (citing Richards v. Jefferson County, 517 U.S. 793, 798 (1996)) (internal quotations omitted).

[20] Id.

[21] Id. at 893-95.

[22] Id.

[23] Id. at 893.

[24] Sierra Club, 646 F.3d at 1268.

[25] 7 F.3d at 1469-70.

[26] Id.

[27] Missouri v. Illinois, 180 U.S. 208, 241 (1901).

[28] Id.

[29] Satsky, 7 F.3d. at 1469.

[30] Massachusetts v. EPA, 549 U.S. 497, 497 (2007); Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907); Sierra Club, 646 F.3d at 1275.

[31] Sierra Club, 646 F.3d at 1275 (Lucero, J., dissenting).

[32] Id.

[33] Satsky, 7 F.3d at 1464.

[34] Sierra Club, 646 F.3d at 1271 (majority opinion).

[35] Id.

[36] Id.

[37] 42 U.S.C. § 7604(b)(1)(B) (emphasis added).

[38] EPA v. City of Green Forest, 921 F.2d 1394, 1405 (8th Cir. 1990).

[39] Friends of Milwaukee’s Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743, 759 (7th Cir. 2004); Texans United for a Safe Economy Educ. Fund v. Crown Cent. Petroleum Corp. 207 F.3d 789, 794-95 (5th Cir. 2000) (holding that the plain meaning of “court of the United States or a State” in the CAA citizen suit provision excludes administrative actions.”); Sierra Club v. Chevron U.S.A., Inc., 834 F.2d 1517, 1525 (9th Cir. 1987); Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 59 (2d Cir. 1985).

[40] Sierra Club, 646 F.3d at 1278 (Lucero, J., dissenting).

[41] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”).

[42] Friends of Milwaukee’s Rivers, 382 F.3d at 759.