Residents of Gordon Plaza, Inc. v. Landrieu, et al
Filing
48
ORDER AND REASONS: IT IS ORDERED that plaintiff's 19 motion for partial summary judgment is GRANTED and defendants' second defense is dismissed, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 03/11/2019. (am)
Case 2:18-cv-04226-ILRL-DMD Document 48 Filed 03/11/19 Page 1 of 8
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RESIDENTS OF GORDON PLAZA, INC.
CIVIL ACTION
VERSUS
NO. 18-4226
LATOYA CANTRELL, ET AL.
SECTION "B"(3)
ORDER AND REASONS
Plaintiff Residents of Gordon Plaza, Inc. filed the instant
motion for partial summary judgment on defendants’ second defense.
Rec. Doc. 19. Defendants timely filed a response in opposition.
Rec. Doc. 25. Plaintiff then sought, and was granted, leave to
file a reply. Rec. Doc. 33. For the reasons discussed below,
IT IS ORDERED that plaintiff’s motion for partial summary
judgment is GRANTED and defendants’ second defense is dismissed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed a citizen enforcement suit under the Resource
Conservation and Recovery Act (“RCRA”), alleging that the Mayor
and City of New Orleans (“the City”) have imposed inhumane and
dangerous living conditions on residents of Gordon Plaza. Rec.
Doc. 2 at 1. Gordon Plaza is located on the former Agriculture
Street Landfill (“Landfill”) site, which the City of New Orleans
operated as a dump from 1909-1957 and reopened for waste from
Hurricane Betsy in 1965-66. Id. at 5. Plaintiffs allege that the
City disposed of hazardous and solid waste at the Agriculture
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Case 2:18-cv-04226-ILRL-DMD Document 48 Filed 03/11/19 Page 2 of 8
Street Landfill, and there are presently levels of dangerous
chemicals above government standard. Id. at 6. Plaintiffs aver
that the City developed the Landfill for residential use in the
1970s and 1980s and marketed homes at Gordon Plaza to AfricanAmericans, withholding that the homes were located on top of a
toxic dump. Id. The EPA listed the Landfill as a Superfund Site on
the National Priorities List in 1994. Id. at 7. Plaintiff asserts
that from 1994 to 2001 the EPA installed inconsistent soil cover
to limit residents’ exposure to landfill waste, before announcing
that it would require no further remedial action at the Landfill
in 2002. Id. Plaintiff states that Hurricane Katrina further
devastated the Landfill in 2005, and flooding and time have since
eroded the soil cover the EPA installed, causing contaminated soil
to wash out from under homes and contaminate the surrounding area.
Id. Plaintiff avers that its members face the risk of toxic
chemical exposures, including to chemicals associated with cancer,
birth defects, and genetic damage. Id. at 8-9. Therefore, plaintiff
brings suit under the RCRA against defendants, who plaintiff
asserts are the present and past operators of the disposal facility
and have contributed to the handling and disposal of solid and
hazardous waste that “may present an imminent and substantial
endangerment”
Defendants
to
filed
health
an
or
answer
the
environment.”
denying
plaintiff’s
asserting affirmative defense. Rec. Doc. 13.
2
Id.
at
10-11.
claims
and
Case 2:18-cv-04226-ILRL-DMD Document 48 Filed 03/11/19 Page 3 of 8
Plaintiff
filed
the
instant
motion
for
partial
summary
judgment on defendants’ second affirmative defense of lack of
subject matter jurisdiction, arguing that it has no basis in law.
Rec. Doc. 19. Defendants timely filed a response in opposition,
arguing that they have properly pled as a defense that plaintiff
is
not
permitted
to
bring
this
suit
under
the
citizen
suit
provisions of the RCRA because defendants ceased operation of the
Landfill prior to enactment of the RCRA. Rec. Doc. 25 at 2.
THE PARTIES’ CONTENTIONS
Plaintiff argues that defendants’ second defense must be
dismissed because it has no basis in law. Rec. Doc. 19 at 1.
Defendants’ second defense asserts that this Court lacks subject
matter jurisdiction because no federal question is presented under
the Resource Conservation and Recovery Act (“RCRA”). Rec. Doc. 13.
It states:
This Honorable Court lacks subject matter jurisdiction
because the operation of the Agriculture Street Landfill
ceased prior to enactment of the Resource Conservation
and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., which,
therefore, does not apply in the premises and, hence, no
federal question is presented under the RCRA and the
Complaint asserts no other basis for jurisdiction
Rec. Doc. 13 at 1. Plaintiff asserts that the plain language of
the RCRA authorizes injunctive relief against defendants based on
“the past or present handling, storage, treatment, transportation,
or
disposal
of
any
solid
or
hazardous
waste.”
42
U.S.C.
§
6972(a)(1)(B); Rec. Doc. 19 at 1. Furthermore, plaintiff avers
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Case 2:18-cv-04226-ILRL-DMD Document 48 Filed 03/11/19 Page 4 of 8
that binding Fifth Circuit precedent precludes the City’s second
defense because in Cox v. City of Dallas, 256 F.3d 281, 298 (5th
Cir.2001)
the
Fifth
Circuit
held
that
the
RCRA
applied
retroactively. Rec. Doc. 19-1 at 4. Therefore, plaintiff argues
that defendants’ second defense is invalid as a matter of law and
should be dismissed. Id. at 7.
Defendants argue that they have properly pled their second
defense that plaintiff is not permitted to bring this suit under
the citizen suit provisions of the RCRA. Rec. Doc. 25. Defendants
aver that the citizen suit provisions were not enacted until 1984,
while the City has not operated the Landfill since 1966. Id. at 2.
Defendants note that they have pled their second defense in order
to preserve this issue for appeal and reconsideration by the Fifth
Circuit, or in the event of consideration by the Supreme Court in
the
interim.
Id.
at
9.
Regardless
of
whether
this
occurs,
defendants also argue that the Fifth Circuit’s decision in Cox is
not
as
broad
as
proposed
by
plaintiffs
and
does
not
permit
retroactive application of the RCRA in all circumstances. Id.
Defendants assert that retroactive application of the RCRA is
limited to past actors where endangerment currently exists, and
their
past
action
constitutes
a
continuing
violation.
Id.
Defendants state that their second defense should be read together
with their third and fourth defenses, which address the lack of
jurisdiction of this Court. Id. at 3. Defendants’ third defense
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Case 2:18-cv-04226-ILRL-DMD Document 48 Filed 03/11/19 Page 5 of 8
asserts that plaintiff lacks standing as there is no injury in
fact. Id. at 2-3. In their fourth defense, defendants plead that
this Court lacks subject matter jurisdiction because they have
been in compliance with the Consent Decree entered by a court in
2008, in which the City undertook remediation and maintenance
obligations of the Landfill in lieu of financial obligations after
Hurricane Katrina. Id. at 5-6. Therefore, defendants aver that
there is a genuine issue of fact as to whether defendants’ past
actions present an imminent and substantial endangerment to health
or the environment so as to allow for retroactive application of
the RCRA to defendants. Id. at 10. Defendants assert that summary
judgment is not proper, and their second defense should not be
dismissed.
LAW AND ANALYSIS
Summary
judgment
is
appropriate
when
“the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). A genuine
issue of material fact exists if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When
the movant bears the burden of proof, it must “demonstrate the
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Case 2:18-cv-04226-ILRL-DMD Document 48 Filed 03/11/19 Page 6 of 8
absence of a genuine issue of material fact” using competent
summary judgment evidence. Celotex, 477 U.S. at 323. But “where
the non-movant bears the burden of proof at trial, the movant may
merely point to an absence of evidence.” Lindsey v. Sears Roebuck
& Co., 16 F.3d 616, 618 (5th Cir. 1994). When the movant meets its
burden, the burden shifts to the non-movant, who must show by
“competent summary judgment evidence” that there is a genuine issue
of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). All reasonable inferences
must be drawn in favor of the nonmovant, but “a party cannot defeat
summary
judgment
with
conclusory
allegations,
unsubstantiated
assertions, or only a scintilla of evidence.” See Sec. & Exch.
Comm'n v. Arcturus Corp., 912 F.3d 786, 792 (5th Cir. 2019).
A. Binding
Fifth
Circuit
precedent
precludes
defendants’
second defense
Defendants’ second defense must be dismissed as a matter of
law because the RCRA applies retroactively. In Cox v. City of
Dallas,
256
F.3d
281,
298
(5th
Cir.2001)
the
Fifth
Circuit
disagreed with defendant City of Dallas’ argument “that because
its use ended in 1972 and because the RCRA was not enacted until
1976, it cannot be held liable under §6972(a)(1)(B).” The Fifth
Circuit held that “[s]ection 6972(a)(1)(B) is clear that it applies
to both past and present acts, as the adjectives ‘past and present’
are specifically included.” Id. The Fifth Circuit ultimately found
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that the “continued presence of this municipal waste in the South
Loop 12 (so long as it presents an imminent and substantial
endangerment to health or the environment) is actionable under
§6972(a)(1)(B).”
at
Id.
299
(internal
citations
omitted).
Therefore, binding precedent makes clear that this Court does not,
as
defendants
plead
in
jurisdiction because
their
answer,
“lack[]
subject
matter
the operation of the Agriculture Street
Landfill [by defendants] ceased prior to enactment of the Resource
Conservation and Recovery Act.” Rec. Doc. 13 at 2. Rather, this
Court has jurisdiction regardless of when defendants’ operation of
the
Landfill
ceased.
Resolution
of
the
jurisdictional
issue
presented in the instant motion is a matter of law that requires
no fact-finding by the Court. Whether defendants operated the
Landfill wholly in the past or they operate it presently, the RCRA
applies to both their past and present conduct. Accordingly,
defendants’ second defense fails as a matter of law.
Defendants
assert
that
the
RCRA
has
limited
retroactive
application, and because there is a genuine issue as to whether an
imminent and substantial endangerment to health or environment
exists, the RCRA may not retroactively apply to them. Rec. Doc.
25. The Court disagrees with defendants’ characterization of the
limited nature of the RCRA’s retroactivity. Section 6972(a)(1)(B)
of the RCRA, under which plaintiff brings this suit, requires a
plaintiff to demonstrate that the “solid or hazardous waste may
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Case 2:18-cv-04226-ILRL-DMD Document 48 Filed 03/11/19 Page 8 of 8
present an imminent and substantial endangerment to health or the
environment” as an element of the claim itself. 42 U.S.C. § 6972
(a)(1)(B). The question of retroactive application of the statute
is separate and distinct from the elements of the claim. The Fifth
Circuit has held that the RCRA applies retroactively to wholly
past conduct, but this does not relieve plaintiff of the obligation
of
proving
every
element
of
its
claim,
including
providing
sufficient evidence to show that the Landfill may present an
imminent
and
substantial
endangerment
to
health
or
the
environment. The Court’s dismissal of defendants’ second defense
is
based
only
on
the
legal
conclusion
that
subject-matter
jurisdiction exits because the RCRA applies retroactively. At this
stage, the Court is not making a determination regarding the merits
of any element of plaintiff’s claim. Additionally, the Court does
not find it necessary to consider defendants’ arguments in support
of their second and third defenses as plaintiff does not seek
summary judgment on either of those defenses in its motion. 1 Rec.
Doc. 25 at 2-4. Therefore, defendants’ second defense must be
dismissed, and partial summary judgment is proper.
New Orleans, Louisiana, this 11th day of March 2019.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
1Frankly,
the use of pre-trial motion practice relative to subject
retroactivity question expends resources best and reasonably saved for
discussion and resolution at the final pre-trial conference, without need of
formal motion practice.
8
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