honor so when new jersey says it because because there is not new jersey says they have it well in hand and got new jersey says that they have everything well in hand that they have a plan and they've got to take care they have stream problem twenty years since it first started looking but i decided to start looking to say but i think the action really kicked in around two thousand and four did it not the action of the state in terms of getting this together and having remediation done finding showed wasn't there wasn't a whole lot of damage to the settlement there and if they did something and it was continuing to have a problem upstream that they were there we'd be throwing good money after bad that's what i thought they were much in fact most we would argue most of the contamination but it was being addressed right the they are addressing young land contamination that is subject to an ar e that's correct your honor and that and that we are not the contamination the sediment would remain and needs to be remediated and there is no but doesn't make sense to allow you to do the work on the upstream sediment contamination won't that result in downstream sediment contamination if that's not into consideration we have no interest in cleaning up the settlement any more than anybody else does and having it being we contaminated but that's an issue that the district court ought to look like look at when you want to before you get to these considerations i submit to you that neither burford doctrine nor primary jurisdiction applies when congress is specifically decided when the courts have jurisdiction and that they have when you can before we get to that i may have interrupted you and in responding to judge ambrose question your remedy you're seeking is cleaning up the polluted sediment at a specific site areas like oh right now you could you would have the option to under new jersey law to ask for he the review of what the new jersey department of environmental protection is doing or or to bring a suit there but you chose not to do that you chose not to run because we believe that congress is very clearly decided that the federal courts is the appropriate place when when the state has not taken the kinds of actions that congress specified under both statutes and in those situations congress has decided that the federal courts are the place for citizens to go to that's exactly what we did there was no argument that the preclusion provisions of the two statutes whether they whether they have been satisfied to preclude the suit no arguments ever been made  have the responsibility to exercise their jurisdiction and and that's exactly what we did here the only two cases that the the defense has been able to cite a radically different from this case where citizens suits have been barred in situations like that in both those cases that were actually permits issued by the state or a consent decree that allowed the action that the defendants were taking and allow it to occur in this case there's the equivalent of a consent decree right or at least a settlement agreement not not and this is the critical thing because both the district court of the defense keeps shifting the question to be what's happening complaining about on authorized this charges wouldn't have this correct your that's correct or the part of the the contamination of the sediment originated on land we submit that overwhelmingly on land and not  established that that the courts should exercise their jurisdiction only a few weeks ago the first circuit dealt with a case quite similar to this one in which it said that it was extremely we can't allow extension but then it goes on to deal with the particular factors in other words in the alternative it is it says both ways it says it at the very least it's extremely rare and to our citizens who and then in then it says and it indicates calm which is made the decision but then it goes on to show that burford and primary jurisdiction don't apply we argue exactly the same here we say that if sanction does not exist if that means you get that the courts it's not appropriate to go on and say ah but there is a even an f and so but i also submit that if that's wrong that it the courts have made clear that it's very that that's occurs in every one of these cases let me just since my time is up let me just finish with one sentence two senses from teach us as marshall a long time ago we have no more right decline the exercise of jurisdiction which is given then to usurp which that which is not given the one or the other would be treason to the constitution that's pretty strong language i submit it applies here always good to gibson are you going first all right very good plan or at least that's been contemplated since about two thousand and four it's now two thousand and eleven has this reasonable plan regional plan been implemented developed implemented or what i think it that the regional plan in terms of having this policy if that's what you're asking is not in place the regional plan is simply a recognition that was first articulated by commissioner campbell and then later articulated at least two or three times in front of mr baker and myself by then commissioner in the e p a administrator jackson that the only sensible approach to the remediation of sediments in a river which starts and stops entirely in new jersey like we're getting the slow walk off on the state level and if the e p a is looking at the upstream sites anyway so that's the federal government and you've got a case called honeywell w says at some point you know you've crossed the line and we are bringing a citizen suit that's specifically allowed under a federal statute to inforce federal laws why in the world is  quarter abstaining from a federal court abstaining from from doing that that's what federal courts are created for rather in this situation i believe that two points there are clearly a line of cases that have looked at the timing and concluded that the regulatory authority has not done the job that it was required to do under the statement that yes there are clearly honeywell's what i always find strange about those arguments is the understanding for example in superfund sites that it is not unusual for them to take five and even twenty years to be remediated that what is at issue is the protection of the public health in the environment and i think the answer to that yes no and maybe that in the one nine hundred eighty six superfund sites the two two of the three top sites in america were new castle county delaware by about corner and l'engle one and both of them today are cleaned up completely and many of those top fifteen superfund sites your honor or located in new jersey i understand and they are also they've moved forward what i'm saying and many of them are cleaned up but that doesn't mean that this is not  a process set up by congress under the excuse me by the e p a under the national contingency plan and by our own state d e p a under what's called the technical regulations that talks about the process for delineating defining investigating and remediating the sites where alacrity it has not and has the state of new jersey taking a position on whether this action should go for it or not have they have they got the intervene or jersey on many occasions its function is to protect the public health and the environment it is not to support the regulated community or the environmental concerns is there a plan as as a new jersey agency formulated a specific plan with a timetable it has formulated a plan in that there is a logical sequence to what must happen take the other other than the letter that was referenced earlier is there anything else that's the answer is that there's no formal enforcement action going on river wide at this moment but there is inherently in these processes a a logical sequence if for example our site is could contribute contamination to the river then the first step is not to clean up the river in front of our site the first step is to clean up the contamination that is a source of two to the river and to come into the federal court  saying no the river must be cleaned up first before you clean up the sayreville site is exactly the type of collateral attack why can't be done both at the same time there are cases where you could but the  timing and the sequencing of this when you're dealing with multiple sites and a regional problem we cannot escape if the e p a is looking at the possible source or what you think are the source sites and what new jersey thinks are the source sites and so citizens bring a suit with regard to the and the where we are now with perhaps the entire ball of wax i'm not sure of that sounds like it's a federal court should deal with a federal agency cleaning up a regional site the federal agency has a coming up the original plan the federal the the state agency after taking into account a great deal of sampling up river down river and across the site has ma determination that there is no or little ecological value to cleaning up the sediments in front of our site and that the only way to do this in a way that is protective of the public health and the environment and is not wasteful of the tremendous resources involved with any type of river cleanup is to do it in a coordinated regional fashion is there any reason why the the able district judge couldn't manage a way that as you said makes sense i believe that the able district judge is in a much more difficult situation to manage this the able district judge does not have your honor all of the other sources or potentially responsible parties in front of him or her he does not have the ability to issue information requests get that that kind of information impose cleanups on the sites that are continuing to contribute contamination into the river the only entity that truly or entities that are truly in a position to do this effectively is the state of new jersey or the environmental protection agency and it's exactly what is happening in the passaic river card in the kalamazoo river but congress in passing this act these acts providing for citizens since must of thought that there was another way to do what congress never passed an act allows citizen soused to supplement but not supplant the compliers provide for specific instances where a citizen suit would have to take a second place behind an action being taken by e p a or or the state environmentally the right it did not and those facts those circumstances don't exist they are not they do not exist here however is this court is well aware there are many doctrines that have been fashioned by this court for abstention that ultimately recognize that in certain limited circumstances important countervailing policy considerations of  federalism and comity also ought to be taken into account your budget is you know that the blank response is pretty much that given by judge posner in a sure one way i'm scase i mean it's you know it looks like an end around federal statutes i circuit and they came down under the very specific facts of those races applying the very same factors that judge present to applied everybody's gone through the same analysis they all recognize the on flagging virtually  unflagging responsibility for the federal court to exercise jurisdiction they understand what the factors are under burford stanch and they understand what the factors are under primary jurisdiction there was nothing unique or special or different about judge design nose review except at the end of the day a definite and firm conviction that they were leaf he was asked to make was one declare that the three  our site are a source of contamination in the river when extensive sampling and an agency that is dedicated to the protection of the public health and the environment that comes back to judge the records point that maybe the that this judge is going to sit back and say hey i agree with p that the jury is not responsible for this one of the thing that i think the court needs to consider is that this is now a brownfields development site and another important public policy is involved here which is trying to coordinate both the redevelopment and the remediation in a way that not only protects the public health but also provides for economic development is the brownfields problem a program being done in coordination with  solely by the state right now it's being done as my understanding solely by the state there are forty thousand hazardous waste sites in this country about twelve hundred of them show up on the national priority list there is never been a situation there is a need for cooperative federalism between the state and federal government is my understanding and correct me if i'm wrong but in region three that the e p a and the new jersey e p a have worked hand in glove pretty darn well for a long time and there's no doubt in my mind that this is not an n p l site because of that cooperative effort eat the e p a is ahead of the curve it doesn't wait to find out its waste site it says if you're going to transfer any industrial property you've got evaluate it investigate it and find out whether there's a problem and if so clean it up stuck between a long way to put place between geographically new york and and pennsylvania the recipient of many of the ways plus our own history of long history of industrial operations and a small land area new jersey does not stand behind anybody in terms of its of its in force one of the environmental laws it has provided for uniformity and if every time anybody disagrees with the conclusion of regional or this is or is not a source of contamination it can go into federal court you will and you will disrupt this type of brownfields development because it's simply this i'm not sure we know that i mean in effect what if you've got a district court judge in new jersey who's lived i think in jersey his entire life and understands what's going on here i'm not so sure in the end you don't prevail on what we're really talking about is that what forum do we have this before and in effect what you're asking us to do is to go out on a limb say that hate something that the supreme court itself tells us that should happen in the most rare of circumstances hey this is it we should go and do it where it seems that again almost every judge is like response is going to be that of judge posner that you know federal courts deal with federal statutes especially with citizen suits that are under federal statutes and you've got a federal agency also actively involved in the very process of this regional develop this regional plan here if federal courts under thirteen thirty two deal with state matters under diversity why in the world would they not deal  one with federal matters i don't think it's ever been your honor a matter of whether the federal courts have the competence i think the issue is who has who is best situated to make that determination and whether the federal courts because of federalis m should abstain when what is being played alleged in the complaint is really a collateral attack on a technical decision in which is really vested for the most part in the discretion of the agency what is it what is the timing of the plan right now when is everything supposed to be completed in connection with everything including the brownfield policy here remedial action work plans for the site have been submitted one is been approved for parcel way that parcel by the way was dedicated it's eighty three acres dedicated to open space because of the active participation of the two appellants and what's what's the timetable on the remediation for that maybe three acres i would believe that it's going to be a couple of years because the remedial action work plant has to be approved it has to go in the field you have to do post excavation sampling to make sure all of the conventional as well as well as the other types of contaminants that have been found have been remediated and then at that point i believe you would get no further action letter we are we expecting no further action letter for eighty three acres parcel a very shortly this is now been turned over as you well know pursuant to an m o u two several economic redevelopment authority and you have the state who has committed to see this process through to the end not only because it's duty and it's good economic development well it's also because it's also committed twenty million dollars to make sure that this is cleaned up properly i am way over time further i thank you for your home thank you mr gi distinguishing feature of this case from every other case that was cited in every belief i asked appellants to cite one case one case involving preferred involving primary jurisdiction where the state has committed twenty million dollars through thera so the economic development authority to my client's remediation cite another case where a private company like my client has committed twenty million dollars to remediation of the n l site and another ten million dollars that's fifty million dollars it's committed to their mediation of this site on the land and how much is committed to this we are expressly excluded from the settlement piece i am distinguished as this terra as is the county in this case we were named for some reason despite the fact that we're fixing this zano based on whatever record comes out may not say i'm going to let that go to the jury to decide which would have the express problem of disrupting the global remediation plan and your honor i want to address the question you asked about timing this regional approach it's clear it's clear what the new jersey to e p is doing here it's a rational approach where first it's attacking a s we're cleaning that up we were part of the problem we're part of the solution but we're a defendant we're cleaning it up and we came in in two thousand and seven well your honor two thousand and four there look at the regional approach two thousand and seven they say not yet that's not my piece of the puzzle your honor but it's clear what's going on here is that the new jersey d e p t include a nation with the e p a has a strategic plan remediating the river and to take that to judge design no it's a judge design or you get one piece of the puzzle that's not fair it's not fair to the parties it's not fair to the policy of brownfields and it's not fair to the policy of of the federal environmental laws and these are not novel concepts that we're talking about i mean abstention go back as far as i read the constitution to article to article three section two the in her equity powers of federal courts have always had congress doesn't give them that the constitution  client or sara the redevelopment sarti and for the county that are defendants and this is the exact situation that the supreme court is talking about because we were mediating the brownfield piece under a state statute under a state policy you are we have i want to respond to one of the things that mr turner said because at appendix one sixty one we argued to the lower court and lower six you know are we arguing that we paid a penalty and when you look at the four party agreement that we published to the public to which there were no comments received we told everyone we're paying like a million dollar penalty here to eliminate our environmental liabilities which my client assumed what is what is the birth for doctor what it what does it say her for doct essentially says we will refer the matter to a state agency that has superior expertise to deal with a problem when under when we are sitting in akwa when the state agency is dealing with difficult questions of state law and the federal review will be disruptive we don't know we're going backwards as to whether the federal review will be settlement agreement that we signed that n l signed that the new jersey d e p signed we excluded any liabilities there might be under the clean water act or any other federal which would include rac right to come into this project to invite us to come in to this festering all that for years has sacked there to help fix it under the brownfield redevelopment we were invited to come in as i think primary your honor and i think this court must for the sake of developers what my client articulate a clear standard in this circuit  lower courts are relying on global maps the quote in santa fe had a five part test which was somewhat different here we have the global maps the four ports and so i mean if you take a look at those things that you've got whe ther the question at issue is within the conventional expertise of judges or whether it involves technical or policy considerations within the agency's particular field of expertise there you have it worse your honor judge puts on a rate wade that correctly we say that there was particular expertise because of what's gone on here there's brownfield redevelopment enters a regional approach that involves parties that are not part of the litigation but they say they have an expertise that i don't have that sort of bleeds into the second thing which is where the question of the issue is particularly within the discretion it sounds like the the big issue here which is the regional and the upstream sites are within the particular  picture to take a step back and look at what's occurring at the rare turn rever you have the e p a acting aggressively on two sites up the river because as the letter from the njt e p said what are we going to clean up the lower portion for for just going to come addresses upstream and then out of leads to the third factor where there exists of substantial nature of inconsistent rulings we have no clue as to whether there will be a single inconsistent ruling of this goes before judge was all do we at this point in time some judge just coming out of the agencies so that i do then i benefit are out but however most of us come from from different backgrounds and so but you still end up in federal court before judges who perhaps are generalists that happens all the time  happens all the time or i really have administrative law i agree honor but the expertise required for this type of case is different and i'm not saying that applies in every case when i'm saying is my case for my client for sarah and for the county and although mr turner says i don't have a claim against the site he sued us what i'm saying is we're different and in our situation that kind of difference differentiates us and at a minimum i don't minimum the court's holding but we should be affirmed as to my client as to sarah and as to the county because we're so morning good morning your honor i'll do my best to stay on my one minute i won't repeat anything that's already been said and i just want to mr bono was on our time so that's perfectly and i do want to say that i think that this is exactly the kind of very rare case where the abstention doctrine should be applied because of what was a long pointed out well pointed out is this is a very rare and unique circumstance that has not been before the court before what we have is an economic redevelopment act in the state of new jersey by which sarah was created not for the purposes of making somebody just clean up a field which is an admirable thing to do but for doing more than that in the big public policy picture we have a unique partnership of our organizations who have come together with public and private funding in order to effectuate not just the cleanup but more than citizens case this truck that i'll tell you what it does your honor what it does is it takes the resources that we have gone to from private industry and from public funding which we were able to get because of our economic redevelopment act and put forty million dollars together twenty million dollars in public funds twenty million dollars in private funding in order to do more than just clean it up with the redevelopment for a bigger public good that is the rare instance where the chilling effect that this will have on new jersey's economic redevelopment act will be substantial because it's not just this area there are other areas that cerebral and other areas that the state of new jersey wants to clean up the brown fields and make them economically redeveloped not just clean but more than that residential commercial open space the eighty three acres that we've already connecticut and we're very close to having that cleaned up and done that was our first and primary goal that's why we say well you say you're close to fit when we don't have it we expect to have it done and i can't give you an exact time because we don't know but but partial essay the eighty three acres that are set aside is close to being submitted is there were several is there any to any ok i'm sorry is there any doubt in anyone's mind that if judge prison now had jurisdiction in this case that he would not take into account the interests your interests and he and the interests of cleaning up matters upstream as well i have no doubt but i also have no doubt the judge doesn't know when he ruled on this was in the best position to decide that in this very rare instance because of the nature of sars involvement and as i say his involvement that this is exactly the in charge of the case and it probably will not what what what what i think i want to make sure that we all understand is this isn't an abdication of jurisdiction it's an abstention of jurisdiction at this time if we get down the road ten years five years some period in time when public citizen say hey you are trying to and you are trying to get around you're doing nothing which is not going to be the case in this instance because we're so far down the road already further than everywhere else we are ahead of the game we're doing it faster and cheaper but should that ever be rows and the court can address that at that time should that be the be the case that somewhere down the road they say you're not doing it but that's not where we are today judged as on a has ruled that this is an appropriate application of he doesn't he doesn't have to say i'm going to be first and pay no attention and as to whether there's been a remedy upstream i might say by the way zach going to ever go to a jury it's going to go to church  and the question what that in effect is being said is look forget all the theory yes the theory supports federal courts in forcing federal cases there's no doubt about that there's two circus that are lined up that way and  but practically this is gone so far down the road with a state agency with the blessing of the e p a what in the world do you want to interfere with it now and in effect would just resign it was saying is as a practical matter i think they're right your honor if if we were litigating defense or to live again before your honor the case we didn't bring we deliberately did not bring the  case we look at for a whole year and we looked at all the things that were going on and we made a decision that we should not and maybe could not but at least should bring a case in which so whatever you going to call it from the state of new jersey indicated they were not going to address the sentiment issue believe it or not because if they did it would just come back again because the source is upstream and so why force people to do something today to spend money unnecessarily when the problem's going to be back tomorrow no matter what you do with regard to this particular saddam there is there is no careful analysis to show we dispute and that we think well i think and like honeywell went on for it on forever and we submit time's up the federal courts have jurisdiction and they should look at it and judge was sano undoubtedly take into account all the things that have been are watch it and so we submit this is the typical situation where the federal courts have the capacity congress decided they have the capacity and they do have the capacity if you need any prove that honeywell's a perfect for excellent argument will take the matter under advisement i think it would be a good thing to have a transcript made of the oral argument here i'd ask the parties to share in the costs and please check with the clerk's office between both sides good thank you gentlemen very much