Fifth Circuit Notes Split Re Proper Privity Analysis in Context of EPA-Negotiated Consent Decree on a Prior CWA Suit

Per Environmental Conservation Organization v. City of Dallas, --- F.3d ----, 2008 WL 2174066 (5th Cir. May 27, 2008):

We recognize that, in some limited instances, “a federal court has leeway to choose among threshold grounds for denying audience to a case on the merits.” Sinochem, 127 S.Ct. at 1191 (internal quotation marks omitted). However, we do not think this is one of those instances. In this case, the res judicata analysis is no less burdensome than the standing inquiry. ECO argues that the common law doctrine of res judicata cannot be applied to CWA citizen suits, and there is some precedent to that effect. See Sierra Club v. Coca-Cola Corp., 673 F.Supp. 1555 (M.D.Fla.1987). The City points to later authority that disagrees. See EPA v. City of Green Forest, 921 F.2d 1394, 1404 (8th Cir.1990). Even were we to resolve that argument in the City's favor, we would still face an apparent circuit split regarding the proper “privity” analysis in the context of determining the preclusive effect of an EPA-negotiated consent decree on a prior-filed CWA citizen suit. Compare Friends of Milwaukee's Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743 (7th Cir.2004) (satisfaction of res judicata “privity” element requires showing of “diligent prosecution”) with City of Green Forest, 921 F.2d at 1394 (applying res judicata without any discussion of “diligent prosecution”); see Ellis v. Gallatin Steel Co., 390 F.3d 461, 473 (6th Cir.2004) (expressly rejecting “diligent prosecution” requirement when applying res judicata to a prior-filed Clean Air Act citizen suit).