United States Court of Appeals

For the First Circuit

No. 20-1456

CONSERVATION LAW FOUNDATION, INC.,

Plaintiff, Appellant,

v.

EXXON MOBIL CORPORATION, EXXONMOBIL OIL CORPORATION, EXXONMOBIL 

PIPELINE COMPANY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Howard, Chief Judge,

Thompson, Circuit Judge,

and Katzmann,* Judge.

Ian David Coghill, with whom Christopher M. Kilian, 

Conservation Law Foundation, Allan Kanner, and Kanner & Whiteley, 

LLC were on brief, for appellant.

William Thomas Marks, with whom Theodore V. Wells, Jr., Daniel 

J. Toal, Jamie D. Brooks, Kannon K. Shanmugam, William T. Marks, 

Paul, Weiss, Rifkind, Wharton & Garrison LLP, Deborah E. Barnard, 

Jessica R. Early, and Holland & Knight LLP were on brief, for 

appellees.

* Of the United States Court of International Trade, sitting by 

designation.
July 1, 2021
- 3 -

THOMPSON, Circuit Judge. Conservation Law Foundation, 

a not-for-profit organization focusing on the conservation and 

protection of New England's environment, has filed suit against 

ExxonMobil Corporation, ExxonMobil Oil Corporation, and ExxonMobil 

Pipeline Company (collectively, "ExxonMobil"). The Foundation's 

complaint alleges violations of the Clean Water Act ("CWA"), 33 

U.S.C. § 1251 et seq., and the Resource Conservation and Recovery 

Act ("RCRA"), 42 U.S.C. § 6901 et seq., at ExxonMobil's petroleum 

storage and distribution terminal in Everett, Massachusetts. 

After denying in part ExxonMobil's motion to dismiss, the district 

court granted ExxonMobil's motion to stay proceedings under the 

so-called doctrine of primary jurisdiction, a doctrine "concerned 

with promoting proper relationships between the courts and 

administrative agencies charged with particular regulatory 

duties," so that the U.S. Environmental Protection Agency ("EPA") 

could weigh in. United States v. W. Pac. R.R., 352 U.S. 59, 63 

(1956). The case has remained stayed ever since. The Foundation 

appealed the stay order, maintaining that the district court erred 

because, in the context of this case, the doctrine of primary 

jurisdiction is inapt. ExxonMobil, on the other hand, argues that 

the district court correctly applied the doctrine, but that even 

if it did not we lack appellate jurisdiction to review the stay 
- 4 -

order.1 For the following reasons, we find that we do have 

appellate jurisdiction to review the order and, upon that review, 

that the district court improperly stayed the case.

I. Background

A. The Permit

Pursuant to a permit issued by EPA under the National 

Pollutant Discharge Elimination System program, see 33 U.S.C. 

§ 1342(a), ExxonMobil may discharge stormwater, groundwater, and 

certain other waters (such as potable water used to wash trucks or 

garage floors) from its Everett terminal into the Island End River, 

a small tributary of Boston's Mystic River. See City of Taunton

v. EPA, 895 F.3d 120, 124 (1st Cir. 2018) (explaining the permit 

process more). ExxonMobil's permit originally became effective on

1 It is often remarked that jurisdiction is "a word of many, too 

many, meanings." Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1848 

(2019) (quoting Kontrick v. Ryan, 540 U.S. 443, 454 (2004)). This 

case requires us to discuss two of the word's uses. The first, 

the doctrine of primary jurisdiction, is a bit of a misnomer. 

"Properly understood, the doctrine is not jurisdictional per se, 

but rather is a means of procuring 'harmony, efficiency, and 

prudence' in areas of overlapping judicial and administrative 

concern." Nat'l Tank Truck Carriers, Inc. v. Burke, 608 F.2d 819, 

821 (1st Cir. 1979) (quoting Mashpee Tribe v. New Seabury Corp., 

592 F.2d 575, 580 n.1 (1st Cir. 1979)); see also United States v. 

Lahey Clinic Hosp., Inc., 399 F.3d 1, 18 (1st Cir. 2005) 

(explaining that the primary jurisdiction doctrine "does not 

implicate the subject matter jurisdiction of the federal court" 

(quoting P.R. Mar. Shipping Auth. v. Fed. Mar. Comm'n, 75 F.3d 63, 

67 (1st Cir. 1996))). By contrast, when it comes to appellate 

jurisdiction, a court of appeals "must verify [that] it has that 

jurisdiction before addressing the merits of any appeal." Conille

v. Council 93, Am. Fed'n of State, Cty. & Mun. Emps., 935 F.3d 1, 

5 (1st Cir. 2019).
- 5 -

January 1, 2009 and superseded a prior permit issued in March 2000. 

EPA later modified the permit. Permits issued under the National 

Pollutant Discharge Elimination System program may not exceed five 

years, so ExxonMobil's permit for the Everett terminal expired on 

January 1, 2014. See 33 U.S.C. § 1342(a)(3), (b)(1)(B). By 

regulation, however, the conditions of an EPA-issued permit 

"continue in force" until the effective date of a new permit if, 

as here, the permittee has submitted a timely application and 

through no fault of its own a new permit has not yet issued. 40 

C.F.R. § 122.6(a); 5 U.S.C. § 558 ("When the licensee has made 

timely and sufficient application for a renewal or a new license 

in accordance with agency rules, a license with reference to an 

activity of a continuing nature does not expire until the 

application has been finally determined by the agency."). EPA has 

yet to act on ExxonMobil's application, so the conditions of the 

prior permit remain in effect.

B. Procedural History

In September 2016, the Foundation filed this action 

under the citizen suit provisions of the CWA, 33 U.S.C. § 1365, 

and RCRA, 42 U.S.C. § 6972. The operative complaint contains 

principally two sets of allegations: first, that ExxonMobil has 

failed to comply with its discharge permit and thus violated the 

CWA; and second, that ExxonMobil "has contributed and is 

contributing to past and present handling, storage, treatment, 
- 6 -

transportation, or disposal of solid and hazardous wastes which 

may present an imminent and substantial endangerment to health or 

the environment in violation of RCRA." 

In March 2019, after hearing argument on ExxonMobil's 

motion to dismiss, the district court granted the motion as to 

three of the fifteen counts in the complaint but denied the motion 

as to the others. All but one of the surviving counts allege 

violations of the CWA. Some of those counts allege ExxonMobil 

violated the CWA by discharging pollutants from the Everett 

terminal in excess of the limits set out in the permit or in 

violation of Massachusetts Surface Water Quality Standards, which 

itself violates the permit. Another count alleges that ExxonMobil 

violated the CWA by failing to develop, implement, and maintain a 

Storm Water Pollution Prevention Plan ("stormwater plan") that is 

designed to reduce or prevent the discharge of pollutants in 

stormwater while accounting for harsher precipitation events and 

increased flooding generally attributable to climate change 

("climate change factors"). Other counts allege that ExxonMobil 

violated the CWA by failing to prepare the stormwater plan "in 

accordance with good engineering practices" as required by the 

permit since it did not account for the climate change factors, 

or because the stormwater plan failed to "identify potential 

sources of pollution that may reasonably be expected to affect the 

quality" of the stormwater discharges, as required by the permit, 
- 7 -

since the stormwater plan did not account for the climate change 

factors. Still more counts allege ExxonMobil violated the CWA 

because, in violation of the permit, the stormwater plan failed to 

"describe and ensure implementation of practices which will be 

used to reduce the pollutants and assure compliance with this 

permit" and also fails to identify "all pollutant sources" 

including "all areas where spills . . . could occur" and the 

"expected drainage" for each of those pollutants, since the 

stormwater plan did not account for the climate change factors. 

Another count alleges that ExxonMobil violated the CWA because, 

among other reasons, the stormwater plan did not contain "spill 

prevention and response procedures," as required by the permit, 

which accounted for the climate change factors. Another count 

alleges a CWA violation because the permit required ExxonMobil to 

report any relevant facts it either did not previously submit or 

that it submitted incorrectly, and that ExxonMobil failed to do so 

as to facts relating to the climate change factors. Another count 

describes a similar obligation as to the stormwater plan and 

alleges that ExxonMobil failed to amend or update the stormwater 

plan with information relating to the climate change factors. It 

also alleges that ExxonMobil failed to "properly operate and 

maintain" the Everett terminal or to "take all reasonable steps to

minimize" certain discharges having "a reasonable likelihood of 

adversely affecting human health or the environment" (in violation 
- 8 -

of the permit) since it did not account for the climate change 

factors. The complaint also alleges that ExxonMobil made certain 

certifications that were improper for many of the reasons already 

discussed, in violation of the permit. 

The final count relates to RCRA. It alleges that 

ExxonMobil violated –– and continues to violate -- RCRA at its 

Everett terminal because it "has contributed or . . . is 

contributing to the past or present handling, storage, treatment, 

transportation, or disposal of any solid or hazardous waste which 

may present an imminent and substantial endangerment to health or 

the environment" largely because it has failed to account for the 

climate change factors. 42 U.S.C. § 6972(a)(1)(B).

The Foundation seeks injunctive relief to prevent 

further violations of the CWA and RCRA as well as declaratory 

relief under the CWA. It also seeks civil penalties amounting to 

tens of thousands of dollars per day per violation for each day 

starting in 2009. Finally, it seeks costs of the litigation, 

including attorney and expert witness fees, and all other relief 

permitted by law. 

After the district court ruled on the motion to dismiss, 

ExxonMobil moved to stay the case under the doctrine of primary 

jurisdiction until EPA issued a decision on ExxonMobil's pending 

permit renewal application for the Everett terminal. ExxonMobil 

maintained that EPA's decision would likely resolve "most, if not 
- 9 -

all, of the disputed issues" in the case. The district court 

granted ExxonMobil's motion. Conservation Law Found., Inc. v. 

ExxonMobil Corp., 448 F. Supp. 3d 7, 12 (D. Mass. 2020). While 

recognizing that the doctrine of primary jurisdiction "must be 

applied sparingly, especially in citizen suits authorized by 

Congress," it reasoned that this case involved "a rare set 

circumstances" justifying application of the doctrine. Id. We 

will detail its reasoning as it pertains to our analysis later.

The Foundation timely appealed the stay order. 

II. Discussion

A. Appellate Jurisdiction

The parties dispute whether we even have jurisdiction to 

hear this case. Generally speaking, we only have appellate 

jurisdiction to review "final decisions of the district courts." 

28 U.S.C. § 1291; see Commonwealth Sch., Inc. v. Commonwealth Acad. 

Holdings LLC, 994 F.3d 77, 82 (1st Cir. 2021). A district court's 

order is final if it "ends the litigation on the merits and leaves 

nothing for the court to do but execute the judgment." Caribbean 

Mgmt. Grp., Inc. v. Erikon LLC, 966 F.3d 35, 40 (1st Cir. 2020) 

(quoting Whitfield v. Municipality of Fajardo, 564 F.3d 40, 45 

(1st Cir. 2009)). That might seem like an uneasy match for an 

order granting a stay -- the decision we are asked to review --

since a stay is the "postponement or halting of a proceeding." 

Stay, Black's Law Dictionary (11th ed. 2019). Indeed, "most stay 
- 10 -

orders do not constitute final appealable decisions within the 

meaning of 28 U.S.C. § 1291." Nat'l R.R. Passenger Corp. v. 

Providence & Worcester R.R. Corp., 798 F.2d 8, 9 (1st Cir. 1986).

Sometimes, however, a stay bears "special features . . . 

that make the district court's action something other than what it 

seems," not just "an ordinary postponement of court action." 

Hartford Fin. Sys., Inc. v. Fla. Software Servs., Inc., 712 F.2d 

724, 726 (1st Cir. 1983) (Breyer, J.). The Foundation argues that 

this case entails such a stay, because the stay order has rendered 

the Foundation "effectively-out-of-court." See Moses H. Cone 

Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983). The 

Foundation focuses on the length of the stay, emphasizing that the 

case has been pending since 2016, that the district court granted 

the stay on March 21, 2020, and that the district court's order 

stayed the case indefinitely pending issuance of a new permit by 

EPA (though the district court set a check-in date for over a yearand-a-half after its order (November 1, 2021)). 

ExxonMobil tells us that the key consideration for 

determining whether a stay order renders a party "effectively out 

of court" is not the indefiniteness of the stay but whether the 

stay "require[s] all or an essential part of the federal suit to 

be litigated in a state forum" or some other forum. Moses H. Cone, 

460 U.S. at 10 n.11. Several "effectively-out-of-court" cases 

have focused on situations where the federal court stayed 
- 11 -

proceedings while a state court was resolving an identical issue 

and where the state court's judgment would have bound the parties 

in the federal litigation. See In re Urohealth Sys., Inc., 252 

F.3d 504, 507 (1st Cir. 2001) (citing Moses H. Cone, 460 U.S. at 

10 & n.11); Quackenbush v. Allstate Ins., 517 U.S. 706, 713 (1996) 

(explaining that the stay order in Moses H. Cone was appealable 

because the stay "put the litigants 'effectively out of court,' 

and because its effect was 'precisely to surrender jurisdiction of 

a federal suit to a state court'" (quoting Moses H. Cone, 460 U.S. 

at 10 n.11)). In those situations, a party would lose the 

opportunity to litigate that same issue in federal court.

As ExxonMobil acknowledges, however, that is not the 

only circumstance our circuit has recognized as rendering a party 

"effectively out of court." See Rojas-Hernandez v. P.R. Elec. 

Power Auth., 925 F.2d 492, 495 (1st Cir. 1991) ("[W]e note that 

this Court has not interpreted the appealability rule in Moses H. 

Cone to turn solely on the preclusive effects of the state court 

judgment."). Indeed, the approach we have taken -- treating stay 

orders that impose lengthy or indefinite delays as appealable as 

final orders under § 1291, even absent any risk that another 

proceeding will have res judicata effect on the federal case, id.
- 12 -

-- is the approach adopted by several courts of appeals to have 

considered the issue.2 

In Rojas-Hernandez, for example, which is binding 

precedent in our circuit, there was ambiguity about whether the 

appellant was a party to state-court proceedings which concerned 

an issue identical to one he had initiated litigation on in federal 

court. 925 F.2d at 494–95. Accordingly, there was ambiguity about 

whether the state-court judgment there would have had preclusive 

effect in the federal-court proceedings. Id. And if the statecourt judgment were not binding in federal court, then the 

appellant would not be "effectively out of court" in the way 

ExxonMobil suggests is necessary, because the appellant would get 

2 The Second, Fifth, Ninth, Eleventh, and Federal Circuits agree 

that stay orders imposing lengthy or indefinite delays are 

appealable as final orders under § 1291. See King v. Cessna 

Aircraft Co., 505 F.3d 1160, 1165 (11th Cir. 2007) (holding that 

"a stay order that is immoderate and involves a protracted and 

indefinite period of delay is final and appealable under 28 U.S.C. 

§ 1291"); see also XPO Logistics, Inc. v. Elliott Cap. Advisors, 

LP, 673 F. App'x 85, 86 (2d Cir. 2016) (unpublished); Occidental 

Chem. Corp. v. La. Pub. Serv. Comm'n, 810 F.3d 299, 307-09 (5th 

Cir. 2016); Stanley v. Chappell, 764 F.3d 990, 995 (9th Cir. 2014); 

Spread Spectrum Screening LLC v. Eastman Kodak Co., 657 F.3d 1349, 

1354 (Fed. Cir. 2011). But see Crystal Clear Commc'ns v. Sw. Bell 

Tel. Co., 415 F.3d 1171, 1176 (10th Cir. 2005) (explaining that, 

"[i]f a stay merely delays litigation and does not effectively 

terminate proceedings, it is not considered a final decision"); 

see also Strausser v. Twp. of Forks, 460 F. App'x 115, 119 (3d 

Cir. 2012). Other circuits have not yet articulated a clear 

position on this query. See, e.g., Clark v. Adams, 300 F. App'x

344, 351 (6th Cir. 2008) (unpublished); Phyllis Schlafly Revocable

Tr. v. Cori, 924 F.3d 1004, 1010 (8th Cir. 2019); Belize Soc. Dev.

Ltd. v. Gov't of Belize, 668 F.3d 724, 730 (D.C. Cir. 2012).
- 13 -

to litigate his entire case in federal court after all. 

Nevertheless, we found we had jurisdiction in Rojas-Hernandez

because the appellant was "effectively out of court" for a 

different reason: "the indefinite unnecessary delay inherent in 

the stay order." Id. at 495 (quoting Nat'l R.R. Passenger Corp., 

798 F.2d at 10). Even though the state court had set a trial date, 

we determined that the appellant was subject to an indefinite 

delay:

The stay in this case . . . [creates] a delay 

tied not into the usual considerations of the 

federal court's calendar but rather to those 

arising in the state proceeding. . . . 

Whether or not the trial in the commonwealth 

court takes place in the near future, [as 

scheduled,] plaintiff's trial has already been 

delayed almost a year since the entry of the 

district court order . . . , and further 

delays may arise while an opinion is awaited 

and an appeal taken.

Id. We also recognized that if the state-court proceedings turned 

out not to be binding (as we had assumed), then the stay would not 

even have preserved any judicial resources. Id.

We think the situation here mirrors that in RojasHernandez. See, e.g., Occidental Chem. Corp. v. La. Pub. Serv. 

Comm'n, 810 F.3d 299, 307 (5th Cir. 2016) (finding that a decision 

to stay a case under the primary jurisdiction doctrine rendered 

the plaintiff "effectively out of court" where the agency had taken 

no action since the entrance of the stay and, after nearly two 

years, there was "no indication" of when it might take action); 
- 14 -

Johnson & Johnson, Inc. v. Wallace A. Erickson & Co., 627 F.2d 57, 

62 (7th Cir. 1980) (taking a similar approach in a case where the 

court ordered plaintiff to initiate patent reissue proceedings 

with the PTO and stayed patent infringement case pending resolution 

of those proceedings, resulting in delay that was for an 

"indefinite period, and possibly forever"). ExxonMobil tries to 

distinguish this case on the facts, pointing out that EPA has 

represented that the agency is trying to issue a new permit by 

October 2021. Even if EPA can deliver by its proposed issuance 

date (over eight years since ExxonMobil submitted its 

application), the Foundation will have endured the stay for over 

a year and a half. This is so even though the district court is 

requiring the parties in November 2021 to report their views on 

whether the stay should be lifted if EPA has not by that point 

issued the permit. ExxonMobil contends that this check-in date 

makes the delay not so "indefinite," but the mere fact that the 

district court may reconsider its stay order after over a year and 

a half does not mean that the stay's duration is definite for 

purposes of our appellate jurisdiction. But see Cheyney State 

Coll. Faculty v. Hufstedler, 703 F.2d 732, 735–36 (3d Cir. 1983) 

(concluding a stay order was not indefinite where the district 

court asked for an update on administrative proceedings within 

ninety days and where the district court agreed to reconsider its 

order on that date).
- 15 -

ExxonMobil maintains that we should render a party 

"effectively out of court" due to "indefinite" delay in more 

limited circumstances, such as where there is not even the 

possibility of an eventual return to federal court. See, e.g., 

Crystal Clear Commc'ns, Inc. v. Sw. Bell Tel. Co., 415 F.3d 1171, 

1177 (10th Cir. 2005) (explaining that a party was not "effectively 

out of court" since the "referral of a discrete issue to a federal 

agency under the doctrine of primary jurisdiction leaves open the 

possibility of an eventual return to federal court"). Our caselaw, 

however, espouses a broader view -- in Rojas-Hernandez, for 

example, we contemplated that the appellant would eventually 

return to federal court, 925 F.2d at 495 -- and, subject to only 

rare exceptions, we are bound by our circuit's prior decisions, 

see United States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018).

For an indefinite stay to confer appellate jurisdiction 

under § 1291, the stay must also be unnecessary. See Miccosukee 

Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist., 559 F.3d 

1191, 1197 (11th Cir. 2009) (explaining that suspended-animation 

stays are appealable when they are "pending the outcome of 

proceedings that [are] unlikely to control or to narrow 

substantially the claims or unresolved issues in the stayed 

lawsuit"); Rojas-Hernandez, 925 F.2d at 495 (describing the 

appellant as effectively-out-of-court because of the "indefinite 

unnecessary delay inherent in the stay order" (quoting Nat'l R.R. 
- 16 -

Passenger Corp., 798 F.2d at 10)). That requires us to review the 

likely outcome of the stay, an approach that "contrasts with the 

usual situation in which we first ascertain that jurisdiction 

exists and only then proceed to the merits." Cheyney State Coll. 

Faculty, 703 F.2d at 735. We will explain why the stay is 

unnecessary in the next section.

Accordingly, we find that we have jurisdiction to hear 

this appeal.3

B. The Stay Order

The district court granted ExxonMobil's motion for a 

stay under the doctrine of primary jurisdiction. As we mentioned 

earlier, the doctrine "applies where a claim is originally 

cognizable in the courts, and comes into play whenever enforcement 

of the claim requires the resolution of issues which, under a 

regulatory scheme, have been placed within the special competence 

3 The Foundation provides two alternative bases for hearing this 

case. First, it argues that the stay order is final because it 

falls within the collateral order doctrine laid out in Cohen v. 

Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). Second, it 

argues that we have jurisdiction under 28 U.S.C. § 1651 to issue 

a writ of mandamus, a "'drastic and extraordinary' remedy 'reserved 

for really extraordinary causes.'" Cheney v. U.S. Dist. Ct. for 

D.C., 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 

258, 259–260 (1947)). Because we find appellate jurisdiction over 

the stay order because the Foundation is "effectively out of 

court," we need not discuss these alternatives further. See, e.g., 

Moses H. Cone, 460 U.S. at 8 n.6 ("[A] court of appeals has no 

occasion to engage in extraordinary review by mandamus 'in aid of 

[its] jurisdictio[n],' 28 U.S.C. § 1651, when it can exercise the 

same review by a contemporaneous ordinary appeal." (second and 

third alterations in original)).
- 17 -

of an administrative body." W. Pac. R.R., 352 U.S. at 64. The 

doctrine guides a court in deciding when those issues should be 

resolved in the first instance by the agency. See PHC, Inc. v. 

Pioneer Healthcare, Inc., 75 F.3d 75, 80 (1st Cir. 1996). The 

doctrine exists to promote "national uniformity in the 

interpretation and application of a federal regulatory regime" and 

"to avoid the possibility that a court's ruling might disturb or 

disrupt the regulatory regime of the agency in question." Am. 

Auto. Mfrs. Ass'n v. Mass. Dep't of Envtl. Prot., 163 F.3d 74, 81 

(1st Cir. 1998).

The district court found a stay appropriate until EPA 

renews ExxonMobil's permit for the Everett terminal. It reasoned 

that determining permit conditions fell squarely under EPA's 

authority, that EPA was better suited than the court to determine 

the scientific and policy issues raised by ExxonMobil's need to 

consider the climate change factors, that EPA's renewal of the 

permit might moot the Foundation's request for injunctive relief, 

and that resolving the case on the merits would take at least as 

long as EPA's projected timeline for renewing the permit. 

Conservation Law Found., Inc., 448 F. Supp. 3d at 12.

1. Primary Jurisdiction and Citizen Suits

The Foundation brought this action under the citizen 

suit provisions of the CWA and RCRA, and the Foundation argues 

that suits brought under those provisions bar courts from applying 
- 18 -

the primary jurisdiction doctrine. Citizen suits "function as a

form of statutory enforcement in addition to, or in conjunction 

with, enforcement by an administrative agency or other 

governmental entity." Chico Serv. Station, Inc. v. Sol P.R. Ltd., 

633 F.3d 20, 27 (1st Cir. 2011) (quoting Esso Standard Oil Co. 

(P.R.) v. Rodríguez–Pérez, 455 F.3d 1, 5 n.2 (1st Cir. 2006)). In 

other words, citizen suit provisions demonstrate circumstances 

where Congress wanted to allow individuals to bring lawsuits, even 

where an agency has some authority. The primary jurisdiction 

doctrine, on the other hand, is a form of abstention, that is, "a 

prudential mechanism that allows federal courts to take note of 

and weigh significant and potentially conflicting interests that 

were not –– or could not have been –– foreseen by Congress at the 

time that it granted jurisdiction for a given class of cases to 

the courts." Id. at 31; see United States v. Culliton, 328 F.3d 

1074, 1082 (9th Cir. 2003) ("Whether the doctrine of primary 

jurisdiction applies in any particular situation depends on 'the 

extent to which Congress, in enacting a regulatory scheme, intends 

an administrative body to have the first word on issues arising in 

juridical proceedings.'" (quoting United States v. Gen. Dynamics 

Corp., 828 F.2d 1356, 1362 (9th Cir. 1987))). We ourselves have 

previously recognized some tension between citizen suits and 

Burford abstention. See generally Chico, 633 F.3d at 30-31.
- 19 -

In Chico, we examined whether Burford abstention, a type 

of abstention related to the doctrine of primary jurisdiction, was 

applicable to a suit brought under RCRA's citizen suit provision. 

633 F.3d at 30. We began our abstention discussion by taking note 

of a bedrock principle: 

Abstention occupies an uneasy position in the 

jurisprudence of federal court jurisdiction. 

As the common refrain goes, "federal courts 

have a 'virtually unflagging obligation . . .

to exercise the jurisdiction given them.'" 

Ankenbrandt v. Richards, 504 U.S. 689, 705 

(1992) (quoting Colo. River Water Conservation 

Dist. v. United States, 424 U.S. 800, 817 

(1976)); United States v. Fairway Capital 

Corp., 483 F.3d 34, 44 (1st Cir. 2007) (same). 

This all but unyielding duty to exercise 

jurisdiction rests on the "the undisputed 

constitutional principle that Congress, and 

not the Judiciary, defines the scope of 

federal jurisdiction within the 

constitutionally permissible bounds." New 

Orleans Pub. Serv., Inc. v. Council of New 

Orleans (NOPSI), 491 U.S. 350, 359 (1989); see 

also Cohens v. Virginia, 19 U.S. 264, 404

(1821) (federal courts "have no more right to 

decline the exercise of jurisdiction which is 

given, than to usurp that which is not").

Chico, 633 F.3d at 28-29. In our consideration of the abstention 

issue before the court, we observed that most courts to consider 

the issue, under either Burford abstention or the doctrine of 

primary jurisdiction, had found abstention improper. Id. at 30. 

We then explained that Congress had recognized in RCRA's citizen 

suit provision "the specific clash of interests" we were 

considering with respect to abstention, and we thought abstention 
- 20 -

might "threaten[] an 'end run around RCRA,' and would substitute 

our judgment for that of Congress about the correct balance between 

respect for state administrative processes and the need for 

consistent and timely enforcement of RCRA." Id. at 31 (quoting 

PMC, Inc. v. Sherwin–Williams Co., 151 F.3d 610, 619 (7th Cir. 

1998)). Nevertheless, we declined to categorically rule out the 

possibility of abstention in RCRA in citizen suits. Id. Instead, 

we expressed our view that the "circumstances justifying 

abstention will be exceedingly rare." Id. at 32.

Reasoning by analogy, the Foundation argues that the 

circumstances justifying the doctrine of primary jurisdiction 

should be exceedingly rare -- and, in fact, nonexistent -- when a 

suit is brought under the citizen suit provisions of the CWA and 

RCRA. Because we find abstention improper in the circumstances of 

this particular case, however, we need not determine whether the 

doctrine of primary jurisdiction doctrine is, as the Foundation 

urges, inapplicable to every case brought under the citizen suit 

provisions of the CWA and RCRA. See Baykeeper v. NL Indus., Inc., 

660 F.3d 686, 695 (3d Cir. 2011) (finding abstention improper while 

declining to impose a general rule as to the applicability of the 

primary jurisdiction doctrine to cases brought under citizen suit 

provisions). We now explain why we find abstention improper here.

2. Review

To start, we must decide what standard we ought to apply 
- 21 -

in reviewing the stay order, but the parties have hardly discussed 

this issue. Our caselaw does not readily provide an answer. 

Compare U.S. Pub. Interest Research Grp. v. Atl. Salmon of Me., 

LLC, 339 F.3d 23, 34 (1st Cir. 2003) (suggesting that a district 

court has some discretion over whether to stay a case under the 

primary jurisdiction doctrine), with Newspaper Guild of Salem, 

Local 105 of Newspaper Guild v. Ottaway Newspapers, Inc., 79 F.3d 

1273, 1283 (1st Cir. 1996) ("We review de novo the district court's 

implicit jurisdictional finding that the Guild's claims fall 

within the primary jurisdiction of the NLRB."); see also U.S. Pub. 

Interest Research Grp., 339 F.3d at 34 ("[A] refusal in this case 

to make a primary jurisdiction reference prior to the state's 

issuance of the permit was neither a mistake of law nor an abuse 

of discretion."). And other circuit courts are split over whether 

to review decisions about the application of the doctrine of 

primary jurisdiction for abuse of discretion or without any 

deference to the district court. See Chlorine Inst., Inc. v. Soo 

Line R.R., 792 F.3d 903, 908 (8th Cir. 2015) (collecting cases); 

see generally Nicholas A. Lucchetti, One Hundred Years of the 

Doctrine of Primary Jurisdiction: But What Standard of Review Is 

Appropriate for It?, 59 Admin. L. Rev. 849 (2007). For present 

purposes, we assume -- favorably to ExxonMobil -- that our review 

is for abuse of discretion. "Abuse occurs when a material factor 

deserving significant weight is ignored, when an improper factor 
- 22 -

is relied upon, or when all proper and no improper factors are 

assessed, but the court makes a serious mistake in weighing them." 

Indep. Oil & Chem. Workers of Quincy, Inc. v. Procter & Gamble 

Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988).

Although there is "[n]o fixed formula" for applying the 

primary jurisdiction doctrine, W. Pac. R.R., 352 U.S. at 64, we 

have recognized three principal factors that guide whether to defer 

a matter to an agency:

(1) whether the agency determination l[ies] at 

the heart of the task assigned the agency by 

Congress; (2) whether agency expertise [i]s 

required to unravel intricate, technical 

facts; and (3) whether, though perhaps not 

determinative, the agency determination would 

materially aid the court.

Massachusetts v. Blackstone Valley Elec. Co., 67 F.3d 981, 992 

(1st Cir. 1995) (quoting Mashpee Tribe, 592 F.2d at 581). We may 

also consider whether referral to the agency promotes "national 

uniformity in the interpretation and application of a federal 

regulatory regime." Am. Auto. Mfrs. Ass'n, 163 F.3d at 81; see 

also Blackstone, 67 F.3d at 992.

As a reminder, the district court stayed the case until 

EPA issues its new permit for ExxonMobil's Everett terminal. As 

to the first Blackstone factor, the district court sensibly 

determined that issuing a permit and determining its terms lie at 

the heart of EPA's assigned task. See 33 U.S.C. § 1342; Arkansas

v. Oklahoma, 503 U.S. 91, 105 (1992) ("Congress has vested in the 
- 23 -

[EPA] Administrator broad discretion to establish conditions for 

NPDES permits.").

As to the second Blackstone factor, the district court 

explained that -- because the complaint focuses heavily on 

ExxonMobil's alleged failure to account for the climate change 

factors -- it would have to determine "whether and to what extent 

climatologists believe weather patterns in Boston are changing, 

and how prudent industrial engineers would respond to such changes" 

in order to grant the requested relief. Conservation Law Found., 

Inc., 448 F. Supp. 3d at 22. We assume for the sake of argument 

that agency expertise would be helpful to unravel which climate 

models most accurately capture the effects of the climate change 

factors. Cf. BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 655 

(1st Cir. 1979) ("[T]he choice of statistical methods is a matter 

best left to the sound discretion of the [EPA] Administrator." 

(quoting FMC Corp. v. Train, 539 F.2d 973, 986 (4th Cir. 1976))); 

but see Me. People's All. v. Mallinckrodt, Inc., 471 F.3d 277, 293 

(1st Cir. 2006) ("[F]ederal courts have proven, over time, that 

they are equipped to adjudicate individual cases, regardless of 

the complexity of the issues involved. Federal courts are often 

called upon to make evaluative judgments in highly technical areas 

(patent litigation is an excellent example).").

We now turn to the third Blackstone factor -- whether 

the agency determination would materially help the court. Of 
- 24 -

course, were we to weigh each of the Blackstone factors equally, 

the first two factors might outweigh the third even if the agency 

determination underlying the stay were completely unrelated to an 

issue before the court. But that is obviously not what is meant. 

"[T]he doctrine of primary jurisdiction is not a doctrine of 

futility; it does not require resort to 'an expensive and merely 

delaying administrative proceeding when the case must eventually 

be decided on a controlling legal issue wholly unrelated to 

determinations for the ascertainment of which the proceeding was 

sent to the agency.'" Local Union No. 189, Amalgamated Meat 

Cutters & Butcher Workmen of N. Am., AFL-CIO v. Jewel Tea Co., 381 

U.S. 676, 686 (1965) (quoting Fed. Mar. Bd. v. Isbrandtsen Co., 

356 U.S. 481, 521 (1958) (Frankfurter, J., dissenting)). So, the 

third factor can outweigh the other factors, and sometimes greatly 

so. See U.S. Pub. Interest Research Grp., 339 F.3d at 34 

(explaining that whether to apply the doctrine of primary 

jurisdiction "usually depends on whether a reference will advance 

the sound disposition of the court case and whether failure to 

refer will impair the statutory scheme or undermine the agency to 

which the reference might be made"). 

The third Blackstone factor is especially salient in 

this case. Whether and on what terms EPA issues the permit for 

the Everett terminal seems to us largely irrelevant to whether 

ExxonMobil has violated the conditions of the permit currently in 
- 25 -

effect.4 And it is wholly speculative whether the issuance of the 

permit will illuminate EPA's beliefs as to the best climate change 

models or how good engineers would respond to them, even if it 

must publish a draft permit, provide detailed explanations for the 

permit's conditions, and respond to public comments. See 40 C.F.R. 

§§ 124.7, 124.8, 124.11, 124.13, 124.17. The stay also seems 

unlikely to aid in the national uniformity of the meaning of terms 

at issue in ExxonMobil's permit or the appropriate scope of climate 

change regulations since EPA is not tasked with interpreting them. 

See Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 761 (9th 

Cir. 2015) ("Common sense tells us that even when agency expertise 

4 See, e.g., Sierra Club, Inc. v. Granite Shore Power LLC, No. 

19-CV-216-JL, 2019 WL 8407255, at *13 (D.N.H. Sept. 13, 2019) ("At 

its core, the EPA's current permit adjudication concerns the 

content and scope of [the facility's] future permit conditions. 

This is a very different determination than whether [the facility] 

is operating in compliance with its current permit conditions."

(citation omitted)) (denying motion to stay citizen suit alleging 

violations of existing NPDES permit under primary jurisdiction 

doctrine notwithstanding pending permit renewal proceeding); 

Student Pub. Interest Research Grp. of N.J., Inc. v. Fritzsche, 

Dodge & Olcott, Inc., 579 F. Supp. 1528, 1537-38 (D. N.J. 1984), 

aff’d, 759 F.2d 1131 (3d Cir. 1985) ("Defendant's argument confuses 

two events: the present citizen's suit, to enforce an existing 

NPDES permit; and a renewal application") (rejecting argument that 

citizen suit alleging violation of NPDES permit should be stayed 

pending permit reissuance); Ill. Pub. Interest Research Grp., 835 

F. Supp. at 1076 (finding primary jurisdiction inapplicable where 

citizen suit seeks enforcement of existing permit terms); cf.

Student Pub. Interest Research Grp. of N.J., Inc. v. Monsanto Co., 

600 F. Supp. 1479, 1483 (D.N.J. 1985) ("The pendency of a [permit] 

modification proceeding does not excuse violations of a permit 

prior to actual modification: a modification request does not 

stay existing permit limitations.").
- 26 -

would be helpful, a court should not invoke primary jurisdiction 

when the agency is aware of but has expressed no interest in the 

subject matter of the litigation."); see also Student Pub. Interest

Research Grp. of N.J., Inc. v. Monsanto Co., 600 F. Supp. 1479, 

1483 (D.N.J. 1985) ("[W]hatever uniformity the EPA hoped to achieve 

presumably was expressed through the issuance of permits.").5 

After all, ExxonMobil has represented that its permit application 

seeks the issuance of a permit that is similar "in all material 

aspects" to the one currently in effect. 

For these reasons, we find unconvincing the district 

court's rationale that EPA's determination on the permit could 

render "most of th[e] case moot" since the Foundation has sought 

injunctive relief and since the new permit might cover some or all 

of the behavior the Foundation seeks to enjoin. Conservation Law

Found., Inc., 448 F. Supp. 3d at 24. The district court also 

reasoned that even if the new permit did "not directly address 

climate change," it would "generate a fuller administrative record 

to which [it could] refer to discern the meaning of particular 

terms" in the permit. Id. at 23. That may be so, but we are not 

5 EPA is well aware of this litigation. In fact, EPA's statements 

in this case have expressly discounted concerns with any regulatory 

interference (indicating in a letter filed in this matter that the 

threat that "rulings in this case could be contrary to EPA's 

programs" is no greater than that "present in most private 

environmental litigation"). Further, EPA was invited to comment 

on this lawsuit and expressly declined to do so.
- 27 -

satisfied that a stay awaiting EPA's decision on ExxonMobil's 

permit for this reason would "materially" help the district court.6 

After considering the Blackstone factors, we balance 

them "against the potential for delay inherent in the decision to 

refer an issue to an administrative agency." Am. Auto. Mfrs. 

Ass'n, 163 F.3d at 81.7 Since the Blackstone factors do not weigh 

in favor of the stay envisioned by the district court, any 

potential delay only furthers our view that the stay was 

unjustified. We add that, despite the district court ruling on 

ExxonMobil's motion to dismiss in March 2019, the parties have not 

even begun discovery. The district court explained that, in its 

view, even under an "ambitious, and perhaps unrealistic, 

schedule," discovery and briefing on summary judgment would take 

6 We can imagine much more salient agency determinations, though 

we do not suggest that a stay to refer such determinations to EPA 

would satisfy the Blackstone factors or that it would be proper 

for the district court on remand to refer such determinations to 

the agency at this stage of the litigation. EPA's determination 

would much more likely aid the district court if, for example, it 

were to consider the meaning of the terms as used in ExxonMobil's 

permit whose terms are currently in effect.

7 In American Automobile Manufacturers, we advised that where 

delay would potentially be too great to justify a referral, a 

district could, for example, "refer a matter to an administrative 

agency, explicitly providing, however, that if the agency fails to 

rule within a reasonable amount of time, the court would either 

vacate the referral order and decide the matter itself, or issue 

an order under 5 U.S.C. § 706(1), which authorizes courts to 

'compel agency action . . . unreasonably delayed.'" 163 F.3d at 

82. There, we stayed proceedings to afford one of the parties the 

opportunity to obtain a ruling from EPA, but we warned that if no 

agency ruling was forthcoming in 180 days, we would decide the 

issues in the case without EPA's guidance. Id. at 86–87.
- 28 -

over a year. Conservation Law Found., Inc., 448 F. Supp. 3d at 

26. Although the district court foresaw the issuance of the new 

permit as mooting many of the issues in the case, it is unclear 

how, as it believed, "deferring to the EPA until at least October 

2021 [w]ould not delay the resolution of the issues involved in 

this case." Id. Even if EPA issues ExxonMobil's permit by EPA's 

proposed deadline and even if the permit moots the Foundation's 

request for injunctive relief, the parties would still have to 

begin discovery on the counts alleging past violations. Indeed, 

the district court held that the Foundation's complaint adequately 

alleged that ExxonMobil was or is contributing to an "imminent and 

substantial endangerment to health or the environment" in 

violation of RCRA. 42 U.S.C. § 6972(a)(1)(B). And that count 

does not even involve consideration of the permit's terms.

In conclusion, we think the district court erred in 

granting a stay under the doctrine of primary jurisdiction until 

EPA issues a new permit for ExxonMobil's Everett terminal.

III. Conclusion

For the foregoing reasons, we vacate the stay order and 

remand for proceedings not inconsistent with this opinion. Costs 

to the appellant.