Can prior agency action be used as a strategy in defending an environmental lawsuit?

Yes.  Although rarely used, asserting collateral estoppel based upon prior agency action can be a highly effective strategy when defending an environmental lawsuit.  Collateral estoppel, or issue preclusion, precludes the re-litigation of identical issues of facts or law that were actually litigated and essential to the judgment in a prior suit. 

Once an issue is actually litigated and an essential issue is determined, that issue is conclusive in a subsequent action between the same parties.  Unlike the broader res judicata doctrine, the collateral estoppel analysis does not focus on what could have been litigated, but only on what was actually litigated and essential to the judgment.

A Texas district court recently dismissed a plaintiff’s civil lawsuit on the basis that it was an impermissible collateral attack on a final agency action which concerned identical issues of facts and law.

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