The Fifth Circuit Court of Appeals has reinstated a Clean Water Act (CW A) citizen suit filed against Baton Rouge by a community group alleging that three of the city’s sewage treatment plants were in violation of the CW A and breached a 2002 consent decree. La. Envtl. Action Network v. City of Baton Rouge, No. 11-30549 (5th Cir. 4/17/12). The ruling reversed a district court decision, which had granted defendants’ motion to dismiss on the ground that plaintiff’s claims were rendered moot by the defendants’ claimed ongoing compliance with the 2002 consent decree.  

Defendants had argued that the U.S. Environmental Protection Agency’s (EP A’s) continued enforcement of the 2002 consent decree, which required improvements to the city’s sewage treatment facilities, constituted diligent prosecution, barring a citizen suit under section 1365(b)(1)(B) of the CW A. Plaintiff argued that EP A was not diligently prosecuting the 2002 consent decree, as demonstrated by the plants’ allegedly ongoing, noncompliant discharges and EP A’s failure to take action to prevent them.  

The Fifth Circuit found that the CW A provision which bars a citizen suit when the government is “diligently prosecuting” a civil or criminal action, is not jurisdictional. The court cited Fifth Circuit precedent holding that if the plaintiff can demonstrate a “realistic prospect” that the alleged violations will continue despite the consent decree, the citizen suit may not be moot. According to the court, plaintiff’s lawsuit, filed some eight years after the 2002 consent decree was issued, could possibly meet the “realistic prospect” standard, especially given that, in ruling on defendants’ motion to dismiss, the court must “accept all well-pleaded facts” as true. The Fifth Circuit remanded the matter for the district court to determine whether the “diligent prosecution” provision would render the citizen suit moot under the facts of the case.