by David R. Overstreet, Christopher R. Nestor
Washington Legal Foundation
January 23, 2013
In Citizens for Pennsylvania’s Future (“PennFuture”) v. Ultra Resources, Inc. (“Ultra”), the U.S. District Court for the Middle District of Pennsylvania concluded that it has jurisdiction over a citizen suit under the federal Clean Air Act (“CAA”), where PennFuture seeks to collaterally attack final permitting decisions of the Pennsylvania Department of Environmental Protection. Citizens for Pennsylvania’s Future v. Ultra Resources. The District Court also declined to read an exhaustion requirement into the CAA and, although clearly troubled by the inequities of PennFuture’s attempt to end-run the state administrative process, decided not to abstain. These rulings, we suggest, overlook a more fundamental problem with PennFuture’s case which, once identified and addressed, compels dismissal of the case—either for failure to state a claim, if the court is willing to take judicial notice of certain undisputed facts, or upon motion for summary judgment.