Citizens for a Better Environment v. Union Oil Co. of California

In 1991, a regional board amended the discharge permit held by Union Oil Company of California (UNOCAL) (defendant), setting a final limit on UNOCAL’s daily emission rate for selenium and a compliance deadline in December 1993. The state water board rejected UNOCAL’s appeal. UNOCAL and other refiners challenged the selenium discharge limits in state court, arguing that the regional board had violated the Clean Water Act (CWA). In November 1993, UNOCAL and the state water board settled the state-court suit. The refiners agreed to pay the state $2 million, of which UNOCAL contributed $780,000. UNOCAL and the other refiners agreed to dismiss the state suit. The regional board adopted a cease-and-desist order, giving UNOCAL and the other refiners until July 1998 to meet the final selenium discharge limit. As of 1996, UNOCAL had not complied with the final limit. In 1994, Citizens for a Better Environment (CBE) (plaintiff) sued UNOCAL under the citizen-suit provisions of the CWA. Section 33 U.S.C.(g)(6)(A) precluded CWA citizen suits that duplicated administrative-penalty actions in which penalties were assessed under state-law provisions comparable to the CWA. The district court held that the cease-and-desist order was equivalent to a local exercise of prosecutorial discretion and that it did not effectively alter the terms of UNOCAL’s permit or shield UNOCAL from a CWA suit. The district court certified a denial of UNOCAL’s motion to dismiss for interlocutory appeal.