Residents of Gordon Plaza, Inc. v. Landrieu, et al
Filing
74
ORDER AND REASONS: IT IS ORDERED that defendants' 36 motion for summary judgment is GRANTED relative to the associational standing issue and plaintiff's claims are DISMISSED; IT IS FURTHER ORDERED that plaintiff's 42 motion for par tial summary judgment on standing is DENIED; and IT IS FURTHER ORDERED that defendants' 62 motion to compel discovery responses and 66 motion to file corrected opposition, and plaintiff's 63 motion to determine that defendants' answers and objections are insufficient are DISMISSED as moot. Signed by Judge Ivan L.R. Lemelle on 05/24/2019. (am)
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
Defendants Mayor LaToya Cantrell and the City of New Orleans
filed the instant motion for judgment on the pleadings, or in the
alternative for summary judgment.1 Rec. Doc. 36. Plaintiff timely
filed a response in opposition. Rec. Doc. 44. Defendants sought,
and were granted, leave to file a reply. Rec. Doc. 56. Plaintiff
filed a motion for partial summary judgment on standing. Rec. Doc.
42. Defendants timely filed a response in opposition. Rec. Doc.
45. Plaintiff sought, and was granted, leave to file a reply. Rec.
Doc. 53. For the reasons discussed below,
IT IS ORDERED that defendants’ motion for summary judgment is
GRANTED
relative
to
the
associational
standing
issue
and
plaintiff’s claims are DISMISSED;
IT IS FURTHER ORDERED that plaintiff’s motion for partial
summary judgment on standing is DENIED; and
IT IS FURTHER ORDERED that defendants’ motion to compel
discovery responses (Rec. Doc. 62) and motion to file corrected
Because the parties present documents outside of the pleadings, and this
Court relies on information from these documents in making its decision,
defendants’ motion will be construed as a motion for summary judgment.
1
1
opposition (Rec. Doc. 66), and plaintiff’s motion to determine
that defendants’ answers and objections are insufficient (Rec.
Doc. 63) are DISMISSED as moot.
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. Plaintiff’s claims are
described in greater detail in a recent Order and Reasons and are
incorporated by reference here. Rec. Doc. 48.
Defendants filed the instant motion for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure 12(c), or in
the alternative for summary judgment, on the grounds that this
Court lacks subject matter jurisdiction and plaintiff has failed
to state a claim upon which relief can be granted. Rec. Doc. 36 at
1. Plaintiff timely filed a response in opposition, arguing that
defendants’ motion is meritless and asserting it has properly
stated a claim upon which relief can be granted and that this Court
does not lack subject-matter jurisdiction. Rec. Doc. 44.
2
Plaintiff subsequently filed a motion for partial summary
judgment that plaintiff has associational standing and its members
have
individual
standing
to
bring
this
suit.
Rec.
Doc.
42.
Defendants timely filed a response in opposition, restating the
argument they put forth in their motion that plaintiff lacks
individual
standing,
and
that
plaintiff
does
not
have
associational standing to seek individualized relocation on behalf
of alleged and unnamed members. Rec. Doc. 45.
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
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
3
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. Plaintiff does not have standing to bring suit on behalf
of its members
Plaintiff does not have standing to bring suit because the
requested
relief
participation.
of
Under
relocation
the
would
doctrine
of
require
individualized
associational
standing,
Residents may have standing to bring suit on behalf of its members
if:
“[1] its members would otherwise have standing to sue in
their own right; [2] the interests it seeks to protect
are germane to the organization's purpose; and [3]
neither the claim asserted nor the relief requested
requires the participation of individual members in the
lawsuit.”
Nat'l Rifle Ass'n of Am., Inc. v. Bureau of Alcohol, Tobacco,
Firearms,
&
Explosives,
700
F.3d
185,
191
(5th
Cir.
2012).
Defendants argue that it is impossible for plaintiff to meet the
third prong of this test. In the complaint, plaintiff requests
that the Court “order the Defendants to relocate the Plaintiff’s
4
members into comparable housing. . .” Rec. Doc. 2 at 11. Defendants
assert that relocating members from their current homes to a new
residence necessarily requires their individual participation,
voiding associational standing. Even assuming, without deciding,
that plaintiff could meet the first two prongs for associational
standing, the Court finds that plaintiff’s requested relief of
relocation
would
require
the
individual
participation
of
its
members. Plaintiff argues that it requests only injunctive relief
and not damages, and “suits for injunctive relief . . . do not
involve individualized proof of damages.” Rec. Doc. 42-1 at 12
(citing Concerned Citizens Around Murphy v. Murphy Oil USA, Inc.,
686 F.Supp.2d 663 (E.D. La. 2010)). In the Supreme Court case cited
by the District Court in Concerned Citizens, the Court stated that
“individual
participation
association
seeks
members. . .”
v.
Brown
is
not
prospective
or
normally
necessary
injunctive
relief
when
for
an
its
United Food and Commercial Workers Union Local 751
Group,
Inc.,
517
U.S.
544
(1996)
(emphasis
added)
(internal quotations omitted). It is true that a typical request
for
injunctive
relief
may
not
require
individual
members’
participation because an injunction often requires the defendant
to act or not act in some way, without requiring anything of the
members. However, in this case plaintiff seeks the individual
relocation of each of its 24 current members from their present
homes in Gordon Plaza to comparable housing elsewhere. Rec. Doc.
5
44 at 19. Such an action cannot be completed without the members’
participation. Therefore, while individual participation is not
normally necessary for injunctive relief, the relocation relief
requested in this case would require it. Therefore, plaintiff does
not have associational standing.
Plaintiff also relies on a Clear Water Act consent decree
issued by the Middle District of Louisiana. That decree involved
a component for relocating residents away from a sewage treatment
plant.
Rec.
Doc.
42-1
at
13.
However,
that
consent
decree
voluntarily submitted by parties who willingly agreed to undertake
a relocation remedy is not comparable to the present case in which
plaintiff’s
associational
standing
contested
is
and
found
lacking. Rec. Doc. 45 at 11.
B. The consent decree between the City and the EPA
Defendants assert that the consent decree between themselves
and the EPA bars this
type
of lawsuit because RCRA prohibits
citizen suits brought under 42 U.S.C. 6972(a)(1)(B) when the EPA
is also acting
to
address
the
conditions
contributing
to
the
alleged endangerment as identified by the statute. Rec. Doc.
36-3. On the other hand, plaintiff argues the Consent Decree does
not
bar suit because the Consent Decree does not purport to
release
the
City
from
RCRA
liability,
proceeding with remedial action.
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and
the
City
is
not
The parties quote RCRA as stating that citizens suits are
barred where the EPA Administrator has obtained a court order
“pursuant to which a responsible party is diligently conducting a
remedial action, Remedial Action Investigation and Feasibility
Study (RIFS), or proceeding with a remedial action.” Rec. Doc. 361 at 13; Rec. Doc. 44 at 14 (emphasis added). The RCRA actually
states that:
“(B) No action may be commenced under subsection
(a)(1)(B) of this section if the Administrator, in order
to restrain or abate acts or conditions which may have
contributed or are contributing to the activities which
may present the alleged endangerment—
. . .
(iv) has obtained a court order (including a consent
decree) . . . pursuant to which a responsible party is
diligently conducting a removal action, Remedial
Investigation
and
Feasibility
Study
(RIFS),
or
proceeding with a remedial action.”
42 U.S.C. 6972(B)(iv) (emphasis added).
The text of RCRA prohibits a citizen suit to be brought
against a defendant where the defendant is conducting a removal
action or a remedial action pursuant to a consent decree obtained
by the EPA. Plaintiff points out the EPA report states that “no
remedial action was performed”. Removal actions are distinct from
remedial actions in that they may mitigate or stabilize the threat
rather than comprehensively address all threats at a site.
The question before the Court is whether defendants are
conducting an action to mitigate or stabilize the threat pursuant
7
to the Consent Decree. The Consent Decree requires defendants to:
“maintain and repair the security fence,” “maintain a stable
vegetative
cover,”
provide
a
technical
abstract
to
utilities
operating within the Landfill site, join and maintain membership
in the LAOne Call program and designate an office within the City
as a point of contact, direct City agencies to incorporate the
Technical Abstract as standard operating procedure, ensure that
the Sewerage and Water Board includes the protocol for maintenance
in bills, designate a disposal facility for soils removed from
beneath the geotextile mat, and designate a project coordinator to
ensure the City’s compliance. Rec. Doc. 36-3 at 8-10. Those actions
are
not
removal
actions
as
they
do
not
task
the
City
with
mitigating or stabilizing a threat. Rather, the City has been
ordered to meet certain compliance requirements to maintain the
removal actions that were previously completed by the EPA. A number
of these requirements were to be completed within 60 days of the
entry of the Decree in 2008, including providing utilities with
the
Technical
Abstract,
joining
the
LAOne
Call
program
and
designating an office within the City as a point of contact,
designating a landfill facility for disposal of the excavated
soils, and designating a project coordinator. Rec. Doc. 36-3 at 9.
The remaining requirements that the City must continue to meet,
such
as
maintaining
and
repairing
the
security
fence
and
maintaining a stable vegetative cover, involve basic maintenance
8
of completed removal actions. Therefore, the City has not provided
evidence that it is “diligently conducting a removal activity” as
required to preclude a citizen suit. 42 U.S.C. § 6972(b)(2)(B)(iv).
Additionally, for purposes of determining whether a citizen
suit
is
prohibited
defendants’
actions
by
section
pursuant
to
6972(b)(2)(B)(iv),
the
Consent
it
Decree
is
the
that
are
relevant for the Court to consider, not the EPA’s actions. As
plaintiff
points
out,
defendants
do
not
rely
on
section
6972(b)(2)(B)(ii) in their motion, which prohibits citizen suits
when the EPA itself is actually engaging in a removal action, and
it is not relevant as neither party has alleged that the EPA is
presently engaging in removal actions in the pleadings. Rec. Doc.
44 at 15.
Parties’ arguments concerning whether the Consent Decree
releases the City from abatement actions is not relevant to the
Court’s analysis here. Rec. Doc. 36-1 at 13, Rec. Doc. 44 at 12.
The plain language of RCRA does not require the Consent Decree to
include such a release from liability in order for a citizen suit
to be barred. Rather, the existence of a court order or consent
decree pursuant to which defendants are conducting removal or
remedial work would have been sufficient to preclude a citizen
suit.
New Orleans, Louisiana this 24th day of May 2019
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___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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