Gulf Restoration Network v. City of Hattiesburg

Filing 23

ORDER denying Defendant City of Hattiesburg and Intervenor Mississippi Commission on Environmental Quality's 8 16 Motions to Dismiss. Counsel is directed to contact the chambers of Magistrate Judge John M. Roper within seven days of the entry of this opinion to schedule a case management conference. Signed by District Judge Keith Starrett on November 6, 2012 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
GULF RESTORATION NETWORK
v.

PLAINTIFF
CIVIL ACTION NO. 2:12-CV-36-KS-MTP

CITY OF HATTIESBURG

DEFENDANT

MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court denies the Motions to Dismiss [8, 16]
filed by Defendant City of Hattiesburg and Intervenor Mississippi Commission on
Environmental Quality.
I. BACKGROUND
This is a citizen’s suit under the Clean Water Act (“CWA”). 33 U.S.C. § 1251, et
seq. The CWA prohibits the “discharge of any pollutant” into navigable waters. 33
U.S.C. § 1251(a). To achieve this purpose, the act established the National Pollutant
Discharge Elimination System (“NPDES”), which allows states to issue permits for
discharging pollutants into navigable waters. 33 U.S.C. § 1342(b). Pursuant to this
authority, Mississippi established the Intervenor agency, the Mississippi Commission
on Environmental Quality (“MCEQ”), MISS. CODE ANN. § 49-17-13, which issues
permits through the Mississippi Environmental Permit Board (“MEPB”). MISS. CODE
ANN. § 49-17-29. MEPB issues permits and enforcement orders through the Mississippi
Department of Environmental Quality (“MDEQ”). MISS. CODE ANN. §§ 49-17-29(3), 492-13(j).

The City of Hattiesburg owns and operates two wastewater treatment facilities
– the North Lagoon and the South Lagoon. Wastewater from the North Lagoon is
discharged into the Bouie River, while wastewater from the South Lagoon is
discharged into the Leaf River. MDEQ issued permits to the City establishing specific
limits on the amount of constituents that may be contained in the wastewater. The
City has violated these limits on many occasions, prompting MDEQ to issue notices of
violation. After negotiation with the City, MDEQ issued an Agreed Order on October
5, 2011, which imposed a monetary penalty on the City for all past permit violations
and established a schedule to upgrade its wastewater treatment facilities.
On November 4, 2011, Plaintiff sent a notice of intent to sue to the City under
the CWA. Plaintiff identified certain violations of the City’s NPDES permits from
March 2007 through August 2011 and asserted that the violations were ongoing. On
February 13, 2012, MDEQ issued an Amended Agreed Order which modified the
deadlines for the City to upgrade its wastewater treatment facilities and imposed
monetary penalties for failure to meet the deadlines. On March 2, 2012, Plaintiff
initiated this lawsuit. The City and MCEQ each filed a motion to dismiss.
II. STANDARD OF REVIEW
“Motions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely
granted.” Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (punctuation
omitted). “To survive a Rule 12(b)(6) motion to dismiss, [a plaintiff’s complaint] need
only include a short and plain statement of the claim showing that the pleader is
entitled to relief.” Hershey v. Energy Transfer Partners., L.P., 610 F.3d 239, 245 (5th
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Cir. 2010) (punctuation omitted). However, the “complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Great Lakes Dredge & Dock Co. LLC v. La. State, 624 F.3d 201, 210 (5th Cir. 2010)
(punctuation omitted).
“To be plausible, the complaint’s factual allegations must be enough to raise a
right to relief above the speculative level.” Id. (punctuation omitted). “The complaint
need not contain detailed factual allegations, but must state more than mere labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d 412, 417 (5th Cir. 2010)
(punctuation omitted). When determining whether a plaintiff has stated a valid claim
for relief, the Court must “accept all well-pleaded facts as true and construe the
complaint in the light most favorable to the plaintiff.” Great Lakes Dredge & Dock Co.
LLC, 624 F.3d at 210. However, the Court will not accept as true “conclusory
allegations, unwarranted factual inferences, or legal conclusions.” Id. Legal conclusions
may provide “the complaint’s framework, [but] they must be supported by factual
allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 664, 129 S. Ct. 1937, 1940, 173 L. Ed. 2d
868 (2009). A plaintiff must provide more than “threadbare recitals of a cause of
action’s elements, supported by mere conclusory statements, which do not permit the
court to infer more than the mere possibility of misconduct.” Hershey, 610 F.3d at 246
(punctuation omitted).
III. DISCUSSION
The City and MCEQ offered two arguments in favor of dismissal. Both implicate
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the Court’s jurisdiction. First, they argue that this case is moot because of the agreed
orders issued by MDEQ. Second, they argue that Plaintiff does not have standing to
sue because it can not demonstrate that its injury is likely to be redressed by a
favorable ruling.
A.

Mootness
The City and MCEQ argue that this case is mooted by the Agreed Order and

Amended Agreed Order issued by MDEQ, citing Environmental Conservation
Organization v. City of Dallas, 529 F.3d 519 (5th Cir. 2008). In that case, the Fifth
Circuit held that a citizen’s suit under the CWA was mooted by a consent decree
entered after the filing of the plaintiff’s complaint. Id. at 529. The Court noted:
“Mootness is the doctrine of standing in a time frame. The requisite personal interest
that must exist at the commencement of litigation (standing) must continue
throughout its existence (mootness).” Id. at 524. If a case becomes moot, it no longer
presents a live controversy, and the Court does not have constitutional authority to
hear it. Id. at 525. “As a general rule, any set of circumstances that eliminates actual
controversy after the commencement of a lawsuit renders that action moot.” Id. at 527.
A case becomes moot “where there are no longer adverse parties with sufficient legal
interests to maintain the litigation or when the parties lack a legally cognizable
interest in the outcome of the litigation.” Id.
In response, Plaintiff argues that MDEQ’s orders can not moot this case because
it commenced after the agreed orders were entered. Plaintiff is correct. The doctrine
of mootness applies when events subsequent to the commencement of the citizen suit
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eliminate the actual controversy. La. Envtl. Action Network v. Baton Rouge, 677 F.3d
737, 744-45 (5th Cir. 2012) (where consent decree was entered prior to the
commencement of lawsuit, it did not moot the lawsuit). MDEQ issued the initial
Agreed Order on October 5, 2011, and it issued the Amended Agreed Order on
February 13, 2012. Plaintiff commenced this suit on March 2, 2012. Therefore, the
agreed orders – entered prior to the filing of Plaintiff’s Complaint – can not render the
Complaint moot. Id.
The City and MCEQ argue that the Baton Rouge case is distinguishable because
the lawsuit there was commenced eight years after the entry of the consent decree. Id.
at 745. The Baton Rouge opinion leaves no room for such distinctions. The Fifth Circuit
stated that “developments subsequent to the filing of a citizen suit may moot the
citizen’s case,” and it held that the district court erred by holding that an event prior
to the filing of the suit rendered it moot. Id.
The City and MDEQ also argue that Baton Rouge is distinguishable because it
involved ongoing violations, whereas the present case involves past violations.
However, Plaintiff alleged that the City continues to violate the Permits in certain
respects. Furthermore, it is undisputed that the agreed orders allow the City to
continue to violate the permits until it decides how to upgrade its facilities and then
implements the upgrades.
Finally, the City and MCEQ argue that the reasoning behind the opinion in
Dallas – that the government’s enforcement action removes the need for private
enforcement – is equally valid here, where the enforcement action took place prior to
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the commencement of litigation. See Dallas, 529 F.3d at 531. According to the City and
MCEQ, Plaintiff is attempting to seek “civil penalties that the [government] chose to
forego.” Id. (quoting Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49,
108 S. Ct. 376, 98 L. Ed. 2d (1987)). This is a rational argument. But the doctrine of
mootness pertains to occurrences after a plaintiff commences a lawsuit. Baton Rouge,
677 F.3d at 745. If a plaintiff had no interest in the suit when it began, the doctrine of
standing is implicated, rather than mootness. Dallas, 529 F.3d at 524.
B.

Standing
Accordingly, the City and MCEQ challenge Plaintiff’s standing. “When standing

is challenged on the basis of the pleadings, [the Court] must accept as true all material
allegations of the complaint and . . . construe the complaint in favor of the complaining
party.” Ass’n of Am. Physicians & Surgeons v. Tex. Med. Bd., 627 F.3d 547, 550 (5th
Cir. 2010). “To satisfy the standing requirement of Article III in a citizen suit under the
CWA, a plaintiff must show (1) an actual or threatened injury, (2) fairly traceable to
the defendant’s action, and (3) likely redress if the plaintiff prevails in the lawsuit.”
Lockett v. EPA, 319 F.3d 678, 682 (5th Cir. 2003).
MCEQ’s argument relates to the third element of standing: redressability. It
argues that the CWA does not provide any remedy to which Plaintiff is entitled in this
case. MCEQ asserts that any potential remedy that could be imposed under the CWA
has already been imposed by the Agreed Orders, eliminating the need for a citizen suit.
The Fifth Circuit has addressed this argument.
In Texans United v. Crown Central Petroleum Corporation, 207 F.3d 789, 790
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(5th Cir. 2000), several environmental organizations brought a citizen suit under the
Clean Air Act. The defendant argued that the plaintiffs’ injuries were not redressable
because a state agency had already obtained all necessary relief through an agreed
order. Id. at 793. The Fifth Circuit noted that the lawsuit was based on the premise
that the agreed order did not “go far enough to ensure that [the defendant would] not
violate federal emissions standards in the future,” and that the evidence presented by
the plaintiffs supported that premise. Id. at 794. “[C]itizen suitors have standing to
seek civil ‘penalties for violations that are ongoing at the time of the complaint and
that could continue into the future undeterred.’” Id. (quoting Friends of the Earth v.
Laidlaw Envtl. Servs., Inc., 525 U.S. 1176, 119 S. Ct. 1111, 143 L. Ed. 2d 107 (2000)).
Therefore, the plaintiffs had standing to sue, regardless of the state agency’s prior
enforcement action. Id.
The Court concludes that the same reasoning applies here. The City and MCEQ
argue that Plaintiff’s alleged injuries are not redressable because MDEQ obtained
relief through the agreed orders, and Plaintiff is not permitted to supplant MDEQ’s
enforcement action. However, Plaintiff’s suit is premised upon the theory that MDEQ’s
actions are not sufficient to ensure that the City will cease violating the CWA. It is
undisputed that the violations are ongoing, and that they will be for some time.
Therefore, Plaintiff has standing to file a citizen suit, regardless of the agreed orders.
IV. CONCLUSION
For the reasons stated above, the Court denies the Motions to Dismiss [8, 16]
filed by Defendant, the City of Hattiesburg, and Intervenor, MCEQ. Counsel shall
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contact the chambers of Magistrate Judge John M. Roper within seven days of the
entry of this opinion for the purpose of scheduling a case management conference.
SO ORDERED AND ADJUDGED this 6th day of November, 2012.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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