In environmental cases, federal and state courts are often asked to defer to the conclusions of an expert agency, such as the New Jersey Department of Environmental Protection (DEP) or the Environmental Protection Agency (EPA). Whether the court is reviewing regulations or an agency adjudication, litigants (especially the agencies themselves) will commonly call for deference to the agency’s determination, particularly on technical issues that involve the agency’s special expertise. In other situations, the court is asked to defer even before the agency has made its decision in order to allow the agency to resolve an issue that is also germane to the case before the court. This notion of “wait and see” deference is known as the doctrine of primary jurisdiction, and, as two recently published cases illustrate, its application can be confusing.
Last summer, the Appellate Division, in Magic Petroleum Corp. v. Exxon Mobil Corp., No. A-1218-10T1 (App. Div. July 26, 2011), affirmed the trial court’s decision to dismiss without prejudice, on primary jurisdiction grounds, a dispute between the operators of neighboring gas stations over their relative responsibility for groundwater contamination. A few months later the Third Circuit, in Raritan Baykeeper v. NL Industries, Inc., 660 F.3d 686 (3d Cir. 2011), refused to defer to the agency on primary jurisdiction grounds, and allowed a citizen suit under the Resource Conservation and Recovery Act (RCRA) and the Clean Water Act over sediment contamination in the Raritan River to go forward, vacating the district court’s decision to dismiss the case. Can the two decisions be reconciled? Or do they illustrate the irreducible unpredictability of the doctrine and its application?
