Citizen Suits Under the Resource Conservation and Recovery Act: Plotting Abstention on a Map of Federalism

In the shadow of the Supreme Court’s constitutional federalism doctrines, lower federal courts have developed doctrines of common law federalism through vehicles such as abstention. In the environmental law arena, courts have employed a number of abstention theories to dismiss citizen suits brought under federal statutes. The appearance of primary jurisdiction and Burford abstention in citizen suits brought under the Resource Conservation and Recovery Act (“RCRA”) exemplifies this trend. In rejecting RCRA suits, some courts have relied on primary jurisdiction, a doctrine conceived as a mechanism to allocate responsibility for limited fact-finding between courts and agencies, to dismiss RCRA citizen suits. These courts have emphasized the technical nature of evaluating RCRA violations and the superiority of state agencies as the bodies to address such issues. Although primary jurisdiction often allows the plaintiff to return to court following agency resolution of particular issues, RCRA dismissals under the doctrine may be so open-ended that they are effectively final. Because RCRA creates an exclusively federal cause of action, dismissals leave citizen plaintiffs with no judicial forum.