United States Court of Appeals For the First Circuit

No. 20-1456

CONSERVATION LAW FOUNDATION, INC.,

Plaintiff, Appellant,

v.

EXXON MOBIL CORPORATION, EXXONMOBIL OIL CORPORATION, EXXONMOBIL PIPELINE COMPANY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Howard, Chief Judge, Thompson, Circuit Judge, and Katzmann,* Judge.

Ian David Coghill, with whom Christopher M. Kilian, Conservation Law Foundation, Allan Kanner, and Kanner & Whiteley, LLC were on brief, for appellant. William Thomas Marks, with whom Theodore V. Wells, Jr., Daniel J. Toal, Jamie D. Brooks, Kannon K. Shanmugam, William T. Marks, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Deborah E. Barnard, Jessica R. Early, and Holland & Knight LLP were on brief, for appellees.

* Of the United States Court of International Trade, sitting by designation. July 1, 2021 THOMPSON, Circuit Judge. Conservation Law Foundation,

a not-for-profit organization focusing on the conservation and

protection of New England's environment, has filed suit against

ExxonMobil Corporation, ExxonMobil Oil Corporation, and ExxonMobil

Pipeline Company (collectively, "ExxonMobil"). The Foundation's

complaint alleges violations of the Clean Water Act ("CWA"),

et seq., and the Resource Conservation and Recovery

Act ("RCRA"),

et seq., at ExxonMobil's petroleum

storage and distribution terminal in Everett, Massachusetts.

After denying in part ExxonMobil's motion to dismiss, the district

court granted ExxonMobil's motion to stay proceedings under the

so-called doctrine of primary jurisdiction, a doctrine "concerned

with promoting proper relationships between the courts and

administrative agencies charged with particular regulatory

duties," so that the U.S. Environmental Protection Agency ("EPA")

could weigh in. United States v. W. Pac. R.R.,

(1956). The case has remained stayed ever since. The Foundation

appealed the stay order, maintaining that the district court erred

because, in the context of this case, the doctrine of primary

jurisdiction is inapt. ExxonMobil, on the other hand, argues that

the district court correctly applied the doctrine, but that even

if it did not we lack appellate jurisdiction to review the stay

- 3 - order.1 For the following reasons, we find that we do have

appellate jurisdiction to review the order and, upon that review,

that the district court improperly stayed the case.

I. Background

A. The Permit

Pursuant to a permit issued by EPA under the National

Pollutant Discharge Elimination System program, see

(a), ExxonMobil may discharge stormwater, groundwater, and

certain other waters (such as potable water used to wash trucks or

garage floors) from its Everett terminal into the Island End River,

a small tributary of Boston's Mystic River. See City of Taunton

v. EPA,

(1st Cir. 2018) (explaining the permit

process more). ExxonMobil's permit originally became effective on

1 It is often remarked that jurisdiction is "a word of many, too many, meanings." Fort Bend Cty. v. Davis,

, 1848 (2019) (quoting Kontrick v. Ryan,

(2004)). This case requires us to discuss two of the word's uses. The first, the doctrine of primary jurisdiction, is a bit of a misnomer. "Properly understood, the doctrine is not jurisdictional per se, but rather is a means of procuring 'harmony, efficiency, and prudence' in areas of overlapping judicial and administrative concern." Nat'l Tank Truck Carriers, Inc. v. Burke,

(1st Cir. 1979) (quoting Mashpee Tribe v. New Seabury Corp.,

, 580 n.1 (1st Cir. 1979)); see also United States v. Lahey Clinic Hosp., Inc.,

(1st Cir. 2005) (explaining that the primary jurisdiction doctrine "does not implicate the subject matter jurisdiction of the federal court" (quoting P.R. Mar. Shipping Auth. v. Fed. Mar. Comm'n,

(1st Cir. 1996))). By contrast, when it comes to appellate jurisdiction, a court of appeals "must verify [that] it has that jurisdiction before addressing the merits of any appeal." Conille v. Council 93, Am. Fed'n of State, Cty. & Mun. Emps.,

(1st Cir. 2019).

- 4 - January 1, 2009 and superseded a prior permit issued in March 2000.

EPA later modified the permit. Permits issued under the National

Pollutant Discharge Elimination System program may not exceed five

years, so ExxonMobil's permit for the Everett terminal expired on

January 1, 2014. See

(a)(3), (b)(1)(B). By

regulation, however, the conditions of an EPA-issued permit

"continue in force" until the effective date of a new permit if,

as here, the permittee has submitted a timely application and

through no fault of its own a new permit has not yet issued.

(a);

("When the licensee has made

timely and sufficient application for a renewal or a new license

in accordance with agency rules, a license with reference to an

activity of a continuing nature does not expire until the

application has been finally determined by the agency."). EPA has

yet to act on ExxonMobil's application, so the conditions of the

prior permit remain in effect.

B. Procedural History

In September 2016, the Foundation filed this action

under the citizen suit provisions of the CWA,

,

and RCRA,

. The operative complaint contains

principally two sets of allegations: first, that ExxonMobil has

failed to comply with its discharge permit and thus violated the

CWA; and second, that ExxonMobil "has contributed and is

contributing to past and present handling, storage, treatment,

- 5 - transportation, or disposal of solid and hazardous wastes which

may present an imminent and substantial endangerment to health or

the environment in violation of RCRA."

In March 2019, after hearing argument on ExxonMobil's

motion to dismiss, the district court granted the motion as to

three of the fifteen counts in the complaint but denied the motion

as to the others. All but one of the surviving counts allege

violations of the CWA. Some of those counts allege ExxonMobil

violated the CWA by discharging pollutants from the Everett

terminal in excess of the limits set out in the permit or in

violation of Massachusetts Surface Water Quality Standards, which

itself violates the permit. Another count alleges that ExxonMobil

violated the CWA by failing to develop, implement, and maintain a

Storm Water Pollution Prevention Plan ("stormwater plan") that is

designed to reduce or prevent the discharge of pollutants in

stormwater while accounting for harsher precipitation events and

increased flooding generally attributable to climate change

("climate change factors"). Other counts allege that ExxonMobil

violated the CWA by failing to prepare the stormwater plan "in

accordance with good engineering practices" as required by the

permit since it did not account for the climate change factors,

or because the stormwater plan failed to "identify potential

sources of pollution that may reasonably be expected to affect the

quality" of the stormwater discharges, as required by the permit,

- 6 - since the stormwater plan did not account for the climate change

factors. Still more counts allege ExxonMobil violated the CWA

because, in violation of the permit, the stormwater plan failed to

"describe and ensure implementation of practices which will be

used to reduce the pollutants and assure compliance with this

permit" and also fails to identify "all pollutant sources"

including "all areas where spills . . . could occur" and the

"expected drainage" for each of those pollutants, since the

stormwater plan did not account for the climate change factors.

Another count alleges that ExxonMobil violated the CWA because,

among other reasons, the stormwater plan did not contain "spill

prevention and response procedures," as required by the permit,

which accounted for the climate change factors. Another count

alleges a CWA violation because the permit required ExxonMobil to

report any relevant facts it either did not previously submit or

that it submitted incorrectly, and that ExxonMobil failed to do so

as to facts relating to the climate change factors. Another count

describes a similar obligation as to the stormwater plan and

alleges that ExxonMobil failed to amend or update the stormwater

plan with information relating to the climate change factors. It

also alleges that ExxonMobil failed to "properly operate and

maintain" the Everett terminal or to "take all reasonable steps to

minimize" certain discharges having "a reasonable likelihood of

adversely affecting human health or the environment" (in violation

- 7 - of the permit) since it did not account for the climate change

factors. The complaint also alleges that ExxonMobil made certain

certifications that were improper for many of the reasons already

discussed, in violation of the permit.

The final count relates to RCRA. It alleges that

ExxonMobil violated –– and continues to violate -- RCRA at its

Everett terminal because it "has contributed or . . . is

contributing to the past or present handling, storage, treatment,

transportation, or disposal of any solid or hazardous waste which

may present an imminent and substantial endangerment to health or

the environment" largely because it has failed to account for the

climate change factors.

(a)(1)(B).

The Foundation seeks injunctive relief to prevent

further violations of the CWA and RCRA as well as declaratory

relief under the CWA. It also seeks civil penalties amounting to

tens of thousands of dollars per day per violation for each day

starting in 2009. Finally, it seeks costs of the litigation,

including attorney and expert witness fees, and all other relief

permitted by law.

After the district court ruled on the motion to dismiss,

ExxonMobil moved to stay the case under the doctrine of primary

jurisdiction until EPA issued a decision on ExxonMobil's pending

permit renewal application for the Everett terminal. ExxonMobil

maintained that EPA's decision would likely resolve "most, if not

- 8 - all, of the disputed issues" in the case. The district court

granted ExxonMobil's motion. Conservation Law Found., Inc. v.

ExxonMobil Corp.,

, 12 (D. Mass. 2020). While

recognizing that the doctrine of primary jurisdiction "must be

applied sparingly, especially in citizen suits authorized by

Congress," it reasoned that this case involved "a rare set

circumstances" justifying application of the doctrine.

We

will detail its reasoning as it pertains to our analysis later.

The Foundation timely appealed the stay order.

II. Discussion

A. Appellate Jurisdiction

The parties dispute whether we even have jurisdiction to

hear this case. Generally speaking, we only have appellate

jurisdiction to review "final decisions of the district courts."

; see Commonwealth Sch., Inc. v. Commonwealth Acad.

Holdings LLC,

(1st Cir. 2021). A district court's

order is final if it "ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment." Caribbean

Mgmt. Grp., Inc. v. Erikon LLC,

(1st Cir. 2020)

(quoting Whitfield v. Municipality of Fajardo,

(1st Cir. 2009)). That might seem like an uneasy match for an

order granting a stay -- the decision we are asked to review --

since a stay is the "postponement or halting of a proceeding."

Stay, Black's Law Dictionary (11th ed. 2019). Indeed, "most stay

- 9 - orders do not constitute final appealable decisions within the

meaning of

." Nat'l R.R. Passenger Corp. v.

Providence & Worcester R.R. Corp.,

(1st Cir. 1986).

Sometimes, however, a stay bears "special features . . .

that make the district court's action something other than what it

seems," not just "an ordinary postponement of court action."

Hartford Fin. Sys., Inc. v. Fla. Software Servs., Inc.,

, 726 (1st Cir. 1983) (Breyer, J.). The Foundation argues that

this case entails such a stay, because the stay order has rendered

the Foundation "effectively-out-of-court." See Moses H. Cone

Mem'l Hosp. v. Mercury Constr. Corp.,

(1983). The

Foundation focuses on the length of the stay, emphasizing that the

case has been pending since 2016, that the district court granted

the stay on March 21, 2020, and that the district court's order

stayed the case indefinitely pending issuance of a new permit by

EPA (though the district court set a check-in date for over a year-

and-a-half after its order (November 1, 2021)).

ExxonMobil tells us that the key consideration for

determining whether a stay order renders a party "effectively out

of court" is not the indefiniteness of the stay but whether the

stay "require[s] all or an essential part of the federal suit to

be litigated in a state forum" or some other forum. Moses H. Cone,

n.11. Several "effectively-out-of-court" cases

have focused on situations where the federal court stayed

- 10 - proceedings while a state court was resolving an identical issue

and where the state court's judgment would have bound the parties

in the federal litigation. See In re Urohealth Sys., Inc.,

(1st Cir. 2001) (citing Moses H. Cone,

& n.11); Quackenbush v. Allstate Ins.,

(1996)

(explaining that the stay order in Moses H. Cone was appealable

because the stay "put the litigants 'effectively out of court,'

and because its effect was 'precisely to surrender jurisdiction of

a federal suit to a state court'" (quoting Moses H. Cone,

n.11)). In those situations, a party would lose the

opportunity to litigate that same issue in federal court.

As ExxonMobil acknowledges, however, that is not the

only circumstance our circuit has recognized as rendering a party

"effectively out of court." See Rojas-Hernandez v. P.R. Elec.

Power Auth.,

(1st Cir. 1991) ("[W]e note that

this Court has not interpreted the appealability rule in Moses H.

Cone to turn solely on the preclusive effects of the state court

judgment."). Indeed, the approach we have taken -- treating stay

orders that impose lengthy or indefinite delays as appealable as

final orders under § 1291, even absent any risk that another

proceeding will have res judicata effect on the federal case, id.

- 11 - -- is the approach adopted by several courts of appeals to have

considered the issue.2

In Rojas-Hernandez, for example, which is binding

precedent in our circuit, there was ambiguity about whether the

appellant was a party to state-court proceedings which concerned

an issue identical to one he had initiated litigation on in federal

court. 925 F.2d at 494–95. Accordingly, there was ambiguity about

whether the state-court judgment there would have had preclusive

effect in the federal-court proceedings. Id. And if the state-

court judgment were not binding in federal court, then the

appellant would not be "effectively out of court" in the way

ExxonMobil suggests is necessary, because the appellant would get

2 The Second, Fifth, Ninth, Eleventh, and Federal Circuits agree that stay orders imposing lengthy or indefinite delays are appealable as final orders under § 1291. See King v. Cessna Aircraft Co.,

(11th Cir. 2007) (holding that "a stay order that is immoderate and involves a protracted and indefinite period of delay is final and appealable under

"); see also XPO Logistics, Inc. v. Elliott Cap. Advisors, LP,

(2d Cir. 2016) (unpublished); Occidental Chem. Corp. v. La. Pub. Serv. Comm'n,

(5th Cir. 2016); Stanley v. Chappell,

(9th Cir. 2014); Spread Spectrum Screening LLC v. Eastman Kodak Co.,

(Fed. Cir. 2011). But see Crystal Clear Commc'ns v. Sw. Bell Tel. Co.,

(10th Cir. 2005) (explaining that, "[i]f a stay merely delays litigation and does not effectively terminate proceedings, it is not considered a final decision"); see also Strausser v. Twp. of Forks,

(3d Cir. 2012). Other circuits have not yet articulated a clear position on this query. See, e.g., Clark v. Adams,

(6th Cir. 2008) (unpublished); Phyllis Schlafly Revocable Tr. v. Cori,

(8th Cir. 2019); Belize Soc. Dev. Ltd. v. Gov't of Belize,

(D.C. Cir. 2012).

- 12 - to litigate his entire case in federal court after all.

Nevertheless, we found we had jurisdiction in Rojas-Hernandez

because the appellant was "effectively out of court" for a

different reason: "the indefinite unnecessary delay inherent in

the stay order."

at 495 (quoting Nat'l R.R. Passenger Corp.,

). Even though the state court had set a trial date,

we determined that the appellant was subject to an indefinite

delay:

The stay in this case . . . [creates] a delay tied not into the usual considerations of the federal court's calendar but rather to those arising in the state proceeding. . . . Whether or not the trial in the commonwealth court takes place in the near future, [as scheduled,] plaintiff's trial has already been delayed almost a year since the entry of the district court order . . . , and further delays may arise while an opinion is awaited and an appeal taken.

We also recognized that if the state-court proceedings turned

out not to be binding (as we had assumed), then the stay would not

even have preserved any judicial resources.

We think the situation here mirrors that in Rojas-

Hernandez. See, e.g., Occidental Chem. Corp. v. La. Pub. Serv.

Comm'n,

(5th Cir. 2016) (finding that a decision

to stay a case under the primary jurisdiction doctrine rendered

the plaintiff "effectively out of court" where the agency had taken

no action since the entrance of the stay and, after nearly two

years, there was "no indication" of when it might take action);

- 13 - Johnson & Johnson, Inc. v. Wallace A. Erickson & Co.,

(7th Cir. 1980) (taking a similar approach in a case where the

court ordered plaintiff to initiate patent reissue proceedings

with the PTO and stayed patent infringement case pending resolution

of those proceedings, resulting in delay that was for an

"indefinite period, and possibly forever"). ExxonMobil tries to

distinguish this case on the facts, pointing out that EPA has

represented that the agency is trying to issue a new permit by

October 2021. Even if EPA can deliver by its proposed issuance

date (over eight years since ExxonMobil submitted its

application), the Foundation will have endured the stay for over

a year and a half. This is so even though the district court is

requiring the parties in November 2021 to report their views on

whether the stay should be lifted if EPA has not by that point

issued the permit. ExxonMobil contends that this check-in date

makes the delay not so "indefinite," but the mere fact that the

district court may reconsider its stay order after over a year and

a half does not mean that the stay's duration is definite for

purposes of our appellate jurisdiction. But see Cheyney State

Coll. Faculty v. Hufstedler,

, 735–36 (3d Cir. 1983)

(concluding a stay order was not indefinite where the district

court asked for an update on administrative proceedings within

ninety days and where the district court agreed to reconsider its

order on that date).

- 14 - ExxonMobil maintains that we should render a party

"effectively out of court" due to "indefinite" delay in more

limited circumstances, such as where there is not even the

possibility of an eventual return to federal court. See, e.g.,

Crystal Clear Commc'ns, Inc. v. Sw. Bell Tel. Co.,

(10th Cir. 2005) (explaining that a party was not "effectively

out of court" since the "referral of a discrete issue to a federal

agency under the doctrine of primary jurisdiction leaves open the

possibility of an eventual return to federal court"). Our caselaw,

however, espouses a broader view -- in Rojas-Hernandez, for

example, we contemplated that the appellant would eventually

return to federal court,

-- and, subject to only

rare exceptions, we are bound by our circuit's prior decisions,

see United States v. Barbosa,

(1st Cir. 2018).

For an indefinite stay to confer appellate jurisdiction

under § 1291, the stay must also be unnecessary. See Miccosukee

Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist.,

(11th Cir. 2009) (explaining that suspended-animation

stays are appealable when they are "pending the outcome of

proceedings that [are] unlikely to control or to narrow

substantially the claims or unresolved issues in the stayed

lawsuit"); Rojas-Hernandez,

(describing the

appellant as effectively-out-of-court because of the "indefinite

unnecessary delay inherent in the stay order" (quoting Nat'l R.R.

- 15 - Passenger Corp.,

)). That requires us to review the

likely outcome of the stay, an approach that "contrasts with the

usual situation in which we first ascertain that jurisdiction

exists and only then proceed to the merits." Cheyney State Coll.

Faculty, 703 F.2d at 735. We will explain why the stay is

unnecessary in the next section.

Accordingly, we find that we have jurisdiction to hear

this appeal.3

B. The Stay Order

The district court granted ExxonMobil's motion for a

stay under the doctrine of primary jurisdiction. As we mentioned

earlier, the doctrine "applies where a claim is originally

cognizable in the courts, and comes into play whenever enforcement

of the claim requires the resolution of issues which, under a

regulatory scheme, have been placed within the special competence

3 The Foundation provides two alternative bases for hearing this case. First, it argues that the stay order is final because it falls within the collateral order doctrine laid out in Cohen v. Beneficial Indus. Loan Corp.,

(1949). Second, it argues that we have jurisdiction under

to issue a writ of mandamus, a "'drastic and extraordinary' remedy 'reserved for really extraordinary causes.'" Cheney v. U.S. Dist. Ct. for D.C.,

(2004) (quoting Ex parte Fahey,

, 259–260 (1947)). Because we find appellate jurisdiction over the stay order because the Foundation is "effectively out of court," we need not discuss these alternatives further. See, e.g., Moses H. Cone,

n.6 ("[A] court of appeals has no occasion to engage in extraordinary review by mandamus 'in aid of [its] jurisdictio[n],'

, when it can exercise the same review by a contemporaneous ordinary appeal." (second and third alterations in original)).

- 16 - of an administrative body." W. Pac. R.R.,

. The

doctrine guides a court in deciding when those issues should be

resolved in the first instance by the agency. See PHC, Inc. v.

Pioneer Healthcare, Inc.,

(1st Cir. 1996). The

doctrine exists to promote "national uniformity in the

interpretation and application of a federal regulatory regime" and

"to avoid the possibility that a court's ruling might disturb or

disrupt the regulatory regime of the agency in question." Am.

Auto. Mfrs. Ass'n v. Mass. Dep't of Envtl. Prot.,

(1st Cir. 1998).

The district court found a stay appropriate until EPA

renews ExxonMobil's permit for the Everett terminal. It reasoned

that determining permit conditions fell squarely under EPA's

authority, that EPA was better suited than the court to determine

the scientific and policy issues raised by ExxonMobil's need to

consider the climate change factors, that EPA's renewal of the

permit might moot the Foundation's request for injunctive relief,

and that resolving the case on the merits would take at least as

long as EPA's projected timeline for renewing the permit.

Conservation Law Found., Inc., 448 F. Supp. 3d at 12.

1. Primary Jurisdiction and Citizen Suits

The Foundation brought this action under the citizen

suit provisions of the CWA and RCRA, and the Foundation argues

that suits brought under those provisions bar courts from applying

- 17 - the primary jurisdiction doctrine. Citizen suits "function as a

form of statutory enforcement in addition to, or in conjunction

with, enforcement by an administrative agency or other

governmental entity." Chico Serv. Station, Inc. v. Sol P.R. Ltd.,

(1st Cir. 2011) (quoting Esso Standard Oil Co.

(P.R.) v. Rodríguez–Pérez,

, 5 n.2 (1st Cir. 2006)). In

other words, citizen suit provisions demonstrate circumstances

where Congress wanted to allow individuals to bring lawsuits, even

where an agency has some authority. The primary jurisdiction

doctrine, on the other hand, is a form of abstention, that is, "a

prudential mechanism that allows federal courts to take note of

and weigh significant and potentially conflicting interests that

were not –– or could not have been –– foreseen by Congress at the

time that it granted jurisdiction for a given class of cases to

the courts."

; see United States v. Culliton,

(9th Cir. 2003) ("Whether the doctrine of primary

jurisdiction applies in any particular situation depends on 'the

extent to which Congress, in enacting a regulatory scheme, intends

an administrative body to have the first word on issues arising in

juridical proceedings.'" (quoting United States v. Gen. Dynamics

Corp.,

, 1362 (9th Cir. 1987))). We ourselves have

previously recognized some tension between citizen suits and

Burford abstention. See generally Chico,

.

- 18 - In Chico, we examined whether Burford abstention, a type

of abstention related to the doctrine of primary jurisdiction, was

applicable to a suit brought under RCRA's citizen suit provision.

. We began our abstention discussion by taking note

of a bedrock principle:

Abstention occupies an uneasy position in the jurisprudence of federal court jurisdiction. As the common refrain goes, "federal courts have a 'virtually unflagging obligation . . . to exercise the jurisdiction given them.'" Ankenbrandt v. Richards,

(1992) (quoting Colo. River Water Conservation Dist. v. United States,

(1976)); United States v. Fairway Capital Corp.,

(1st Cir. 2007) (same). This all but unyielding duty to exercise jurisdiction rests on the "the undisputed constitutional principle that Congress, and not the Judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds." New Orleans Pub. Serv., Inc. v. Council of New Orleans (NOPSI),

(1989); see also Cohens v. Virginia,

(1821) (federal courts "have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not").

Chico,

. In our consideration of the abstention

issue before the court, we observed that most courts to consider

the issue, under either Burford abstention or the doctrine of

primary jurisdiction, had found abstention improper.

.

We then explained that Congress had recognized in RCRA's citizen

suit provision "the specific clash of interests" we were

considering with respect to abstention, and we thought abstention

- 19 - might "threaten[] an 'end run around RCRA,' and would substitute

our judgment for that of Congress about the correct balance between

respect for state administrative processes and the need for

consistent and timely enforcement of RCRA."

at 31 (quoting

PMC, Inc. v. Sherwin–Williams Co.,

(7th Cir.

1998)). Nevertheless, we declined to categorically rule out the

possibility of abstention in RCRA in citizen suits.

Instead,

we expressed our view that the "circumstances justifying

abstention will be exceedingly rare." Id. at 32.

Reasoning by analogy, the Foundation argues that the

circumstances justifying the doctrine of primary jurisdiction

should be exceedingly rare -- and, in fact, nonexistent -- when a

suit is brought under the citizen suit provisions of the CWA and

RCRA. Because we find abstention improper in the circumstances of

this particular case, however, we need not determine whether the

doctrine of primary jurisdiction doctrine is, as the Foundation

urges, inapplicable to every case brought under the citizen suit

provisions of the CWA and RCRA. See Baykeeper v. NL Indus., Inc.,

(3d Cir. 2011) (finding abstention improper while

declining to impose a general rule as to the applicability of the

primary jurisdiction doctrine to cases brought under citizen suit

provisions). We now explain why we find abstention improper here.

2. Review

To start, we must decide what standard we ought to apply

- 20 - in reviewing the stay order, but the parties have hardly discussed

this issue. Our caselaw does not readily provide an answer.

Compare U.S. Pub. Interest Research Grp. v. Atl. Salmon of Me.,

LLC,

(1st Cir. 2003) (suggesting that a district

court has some discretion over whether to stay a case under the

primary jurisdiction doctrine), with Newspaper Guild of Salem,

Local 105 of Newspaper Guild v. Ottaway Newspapers, Inc.,

, 1283 (1st Cir. 1996) ("We review de novo the district court's

implicit jurisdictional finding that the Guild's claims fall

within the primary jurisdiction of the NLRB."); see also U.S. Pub.

Interest Research Grp.,

("[A] refusal in this case

to make a primary jurisdiction reference prior to the state's

issuance of the permit was neither a mistake of law nor an abuse

of discretion."). And other circuit courts are split over whether

to review decisions about the application of the doctrine of

primary jurisdiction for abuse of discretion or without any

deference to the district court. See Chlorine Inst., Inc. v. Soo

Line R.R.,

(8th Cir. 2015) (collecting cases);

see generally Nicholas A. Lucchetti, One Hundred Years of the

Doctrine of Primary Jurisdiction: But What Standard of Review Is

Appropriate for It?,

(2007). For present

purposes, we assume -- favorably to ExxonMobil -- that our review

is for abuse of discretion. "Abuse occurs when a material factor

deserving significant weight is ignored, when an improper factor

- 21 - is relied upon, or when all proper and no improper factors are

assessed, but the court makes a serious mistake in weighing them."

Indep. Oil & Chem. Workers of Quincy, Inc. v. Procter & Gamble

Mfg. Co.,

(1st Cir. 1988).

Although there is "[n]o fixed formula" for applying the

primary jurisdiction doctrine, W. Pac. R.R.,

, we

have recognized three principal factors that guide whether to defer

a matter to an agency:

(1) whether the agency determination l[ies] at the heart of the task assigned the agency by Congress; (2) whether agency expertise [i]s required to unravel intricate, technical facts; and (3) whether, though perhaps not determinative, the agency determination would materially aid the court.

Massachusetts v. Blackstone Valley Elec. Co.,

(1st Cir. 1995) (quoting Mashpee Tribe,

). We may

also consider whether referral to the agency promotes "national

uniformity in the interpretation and application of a federal

regulatory regime." Am. Auto. Mfrs. Ass'n,

; see

also Blackstone,

.

As a reminder, the district court stayed the case until

EPA issues its new permit for ExxonMobil's Everett terminal. As

to the first Blackstone factor, the district court sensibly

determined that issuing a permit and determining its terms lie at

the heart of EPA's assigned task. See

; Arkansas

v. Oklahoma,

(1992) ("Congress has vested in the

- 22 - [EPA] Administrator broad discretion to establish conditions for

NPDES permits.").

As to the second Blackstone factor, the district court

explained that -- because the complaint focuses heavily on

ExxonMobil's alleged failure to account for the climate change

factors -- it would have to determine "whether and to what extent

climatologists believe weather patterns in Boston are changing,

and how prudent industrial engineers would respond to such changes"

in order to grant the requested relief. Conservation Law Found.,

Inc., 448 F. Supp. 3d at 22. We assume for the sake of argument

that agency expertise would be helpful to unravel which climate

models most accurately capture the effects of the climate change

factors. Cf. BASF Wyandotte Corp. v. Costle,

(1st Cir. 1979) ("[T]he choice of statistical methods is a matter

best left to the sound discretion of the [EPA] Administrator."

(quoting FMC Corp. v. Train,

(4th Cir. 1976)));

but see Me. People's All. v. Mallinckrodt, Inc.,

(1st Cir. 2006) ("[F]ederal courts have proven, over time, that

they are equipped to adjudicate individual cases, regardless of

the complexity of the issues involved. Federal courts are often

called upon to make evaluative judgments in highly technical areas

(patent litigation is an excellent example).").

We now turn to the third Blackstone factor -- whether

the agency determination would materially help the court. Of

- 23 - course, were we to weigh each of the Blackstone factors equally,

the first two factors might outweigh the third even if the agency

determination underlying the stay were completely unrelated to an

issue before the court. But that is obviously not what is meant.

"[T]he doctrine of primary jurisdiction is not a doctrine of

futility; it does not require resort to 'an expensive and merely

delaying administrative proceeding when the case must eventually

be decided on a controlling legal issue wholly unrelated to

determinations for the ascertainment of which the proceeding was

sent to the agency.'" Local Union No. 189, Amalgamated Meat

Cutters & Butcher Workmen of N. Am., AFL-CIO v. Jewel Tea Co.,

(1965) (quoting Fed. Mar. Bd. v. Isbrandtsen Co.,

(1958) (Frankfurter, J., dissenting)). So, the

third factor can outweigh the other factors, and sometimes greatly

so. See U.S. Pub. Interest Research Grp.,

(explaining that whether to apply the doctrine of primary

jurisdiction "usually depends on whether a reference will advance

the sound disposition of the court case and whether failure to

refer will impair the statutory scheme or undermine the agency to

which the reference might be made").

The third Blackstone factor is especially salient in

this case. Whether and on what terms EPA issues the permit for

the Everett terminal seems to us largely irrelevant to whether

ExxonMobil has violated the conditions of the permit currently in

- 24 - effect.4 And it is wholly speculative whether the issuance of the

permit will illuminate EPA's beliefs as to the best climate change

models or how good engineers would respond to them, even if it

must publish a draft permit, provide detailed explanations for the

permit's conditions, and respond to public comments. See

, 124.8, 124.11, 124.13, 124.17. The stay also seems

unlikely to aid in the national uniformity of the meaning of terms

at issue in ExxonMobil's permit or the appropriate scope of climate

change regulations since EPA is not tasked with interpreting them.

See Astiana v. Hain Celestial Grp., Inc.,

(9th

Cir. 2015) ("Common sense tells us that even when agency expertise

4 See, e.g., Sierra Club, Inc. v. Granite Shore Power LLC, No. 19-CV-216-JL,

, at *13 (D.N.H. Sept. 13, 2019) ("At its core, the EPA's current permit adjudication concerns the content and scope of [the facility's] future permit conditions. This is a very different determination than whether [the facility] is operating in compliance with its current permit conditions." (citation omitted)) (denying motion to stay citizen suit alleging violations of existing NPDES permit under primary jurisdiction doctrine notwithstanding pending permit renewal proceeding); Student Pub. Interest Research Grp. of N.J., Inc. v. Fritzsche, Dodge & Olcott, Inc.,

(D. N.J. 1984), aff’d,

(3d Cir. 1985) ("Defendant's argument confuses two events: the present citizen's suit, to enforce an existing NPDES permit; and a renewal application") (rejecting argument that citizen suit alleging violation of NPDES permit should be stayed pending permit reissuance); Ill. Pub. Interest Research Grp., 835 F. Supp. at 1076 (finding primary jurisdiction inapplicable where citizen suit seeks enforcement of existing permit terms); cf. Student Pub. Interest Research Grp. of N.J., Inc. v. Monsanto Co.,

(D.N.J. 1985) ("The pendency of a [permit] modification proceeding does not excuse violations of a permit prior to actual modification: a modification request does not stay existing permit limitations.").

- 25 - would be helpful, a court should not invoke primary jurisdiction

when the agency is aware of but has expressed no interest in the

subject matter of the litigation."); see also Student Pub. Interest

Research Grp. of N.J., Inc. v. Monsanto Co.,

(D.N.J. 1985) ("[W]hatever uniformity the EPA hoped to achieve

presumably was expressed through the issuance of permits.").5

After all, ExxonMobil has represented that its permit application

seeks the issuance of a permit that is similar "in all material

aspects" to the one currently in effect.

For these reasons, we find unconvincing the district

court's rationale that EPA's determination on the permit could

render "most of th[e] case moot" since the Foundation has sought

injunctive relief and since the new permit might cover some or all

of the behavior the Foundation seeks to enjoin. Conservation Law

Found., Inc., 448 F. Supp. 3d at 24. The district court also

reasoned that even if the new permit did "not directly address

climate change," it would "generate a fuller administrative record

to which [it could] refer to discern the meaning of particular

terms" in the permit. Id. at 23. That may be so, but we are not

5 EPA is well aware of this litigation. In fact, EPA's statements in this case have expressly discounted concerns with any regulatory interference (indicating in a letter filed in this matter that the threat that "rulings in this case could be contrary to EPA's programs" is no greater than that "present in most private environmental litigation"). Further, EPA was invited to comment on this lawsuit and expressly declined to do so.

- 26 - satisfied that a stay awaiting EPA's decision on ExxonMobil's

permit for this reason would "materially" help the district court.6

After considering the Blackstone factors, we balance

them "against the potential for delay inherent in the decision to

refer an issue to an administrative agency." Am. Auto. Mfrs.

Ass'n,

.7 Since the Blackstone factors do not weigh

in favor of the stay envisioned by the district court, any

potential delay only furthers our view that the stay was

unjustified. We add that, despite the district court ruling on

ExxonMobil's motion to dismiss in March 2019, the parties have not

even begun discovery. The district court explained that, in its

view, even under an "ambitious, and perhaps unrealistic,

schedule," discovery and briefing on summary judgment would take

6 We can imagine much more salient agency determinations, though we do not suggest that a stay to refer such determinations to EPA would satisfy the Blackstone factors or that it would be proper for the district court on remand to refer such determinations to the agency at this stage of the litigation. EPA's determination would much more likely aid the district court if, for example, it were to consider the meaning of the terms as used in ExxonMobil's permit whose terms are currently in effect. 7 In American Automobile Manufacturers, we advised that where delay would potentially be too great to justify a referral, a district could, for example, "refer a matter to an administrative agency, explicitly providing, however, that if the agency fails to rule within a reasonable amount of time, the court would either vacate the referral order and decide the matter itself, or issue an order under

(1), which authorizes courts to 'compel agency action . . . unreasonably delayed.'"

. There, we stayed proceedings to afford one of the parties the opportunity to obtain a ruling from EPA, but we warned that if no agency ruling was forthcoming in 180 days, we would decide the issues in the case without EPA's guidance.

at 86–87.

- 27 - over a year. Conservation Law Found., Inc., 448 F. Supp. 3d at

26. Although the district court foresaw the issuance of the new

permit as mooting many of the issues in the case, it is unclear

how, as it believed, "deferring to the EPA until at least October

2021 [w]ould not delay the resolution of the issues involved in

this case." Id. Even if EPA issues ExxonMobil's permit by EPA's

proposed deadline and even if the permit moots the Foundation's

request for injunctive relief, the parties would still have to

begin discovery on the counts alleging past violations. Indeed,

the district court held that the Foundation's complaint adequately

alleged that ExxonMobil was or is contributing to an "imminent and

substantial endangerment to health or the environment" in

violation of RCRA.

(a)(1)(B). And that count

does not even involve consideration of the permit's terms.

In conclusion, we think the district court erred in

granting a stay under the doctrine of primary jurisdiction until

EPA issues a new permit for ExxonMobil's Everett terminal.

III. Conclusion

For the foregoing reasons, we vacate the stay order and

remand for proceedings not inconsistent with this opinion. Costs

to the appellant.

- 28 -