Sierra Club v. Ameren Corporation

Filing 80

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's motions to compel are DENIED. (Doc. Nos. 62 & 76 .) Signed by District Judge Audrey G. Fleissig on December 31, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SIERRA CLUB,
Plaintiff,
v.
UNION ELECTRIC COMPANY,
d/b/a AMEREN MISSOURI,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 4:14-cv-00408-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s motions (Doc. Nos. 62 & 76) to
compel discovery. For the reasons set forth below, Defendant’s motions shall be denied.
BACKGROUND
Plaintiff is a non-profit environmental organization with over 8,700 members in
Missouri. Defendant is an electric company with three coal-fired power plants in
Missouri, each operating with a permit issued under Title V of the Clean Air Act
(“CAA”), 42 U.S.C. §§ 7661, et seq., and Missouri’s state implementation plan (“SIP”),
as approved by the Environmental Protection Agency (“EPA”). Plaintiff filed its
amended complaint on March 17, 2014, under the CAA’s “citizen suit” provision, 42
U.S.C. § 7604(a), alleging that Defendant’s emissions exceeded the express limits on
opacity set forth in Defendant’s Title V permits and Missouri’s SIP. Opacity refers to a
plant’s visible emissions, measured as a percentage of the amount of light being
transmitted through a plume, and, according to Plaintiff, opacity is a general indicator of

the amount of particulate matter (“PM”) emitted from a source.
For purposes of standing, Plaintiff alleges that these opacity violations harm the
health, welfare, recreational, and aesthetic interests of its members who live, work, or
recreate near Defendant’s power plants. Specifically, Plaintiff asserts that its members
“enjoy a number of recreational activities, including camping, boating, and wildlife
observation, in the vicinity of, or downwind from, one or more of [Defendant’s] Power
Plants[,] [and] [s]eeing the smoke from [Defendant’s] Power Plants reduces these
members’ enjoyment of those recreational activities.” (Doc. No. 10 at 13). Plaintiff also
asserts that its members living, working, or recreating near Defendant’s plans are exposed
to increased air pollution as a result of Defendant’s opacity violations, and that the
“increase in exposure to PM increases the risk of acquiring respiratory or cardiac
disease.” Id. Plaintiff seeks declaratory and injunctive relief, as well as the imposition
of statutory civil penalties.
Defendant has filed two motions to compel discovery. The first relates to
Plaintiff’s responses to 22 requests for production and two interrogatories. As Defendant
asserts, these discovery requests fall into three general categories: (1) identification of
Plaintiff’s members who are allegedly negatively impacted by emissions from
Defendant’s facilities, and information regarding their injuries; (2) communications
between Plaintiff and its members regarding emissions from Defendant’s facilities at
issue and regarding this lawsuit; and (3) documents relating to Plaintiff’s motive and
rationale for filing this lawsuit, including those regarding Plaintiff’s “Beyond Coal”
campaign against coal-fired power plants.
-2-

The second motion to compel focuses on the latter two categories of discovery, but
relates specifically to discovery sought, by way of subpoenas, from the six members of
Plaintiff whom Plaintiff has identified as witnesses to demonstrate standing in this case
(“Standing Members”).
Defendant argues that the discovery sought is relevant to issues of standing,
causation, and the appropriateness of Plaintiff’s requests for civil penalties and injunctive
relief. Defendant also asserts that the confidentiality of this discovery is adequately
protected by the Stipulated Protective Order entered in this case.
Regarding the first category of discovery, Plaintiff has produced or agreed to
produce discovery relating to the identity of and injuries alleged by its Standing
Members. But it has refused to identify or produce information regarding its rank-andfile members, asserting that such information is protected by the First Amendment.
Regarding the second category of discovery, directed to Plaintiff (by discovery
request) and the Standing Members (by subpoena), Plaintiff and the Standing Members
claim to have produced all discovery relating to the Standing Members’ alleged injuries.
But Plaintiff and the Standing Members have withheld certain other communications
about this lawsuit, including emails “brainstorming” about potential standing members
for this lawsuit and emails about press events relating to this lawsuit, on the ground that
these communications include frank discussions of internal advocacy strategies that are
protected by the First Amendment.
Finally, Plaintiff and the Standing Members have refused to produce any
discovery related to Plaintiff’s alleged motive for filing this lawsuit, including discovery
-3-

related to the “Beyond Coal” campaign, on the ground that such discovery is irrelevant to
any issue in this case and is also protected by the First Amendment.
Plaintiff has presented declarations from one of its Standing Members and a few
of its officers and employees, attesting to the negative impact that the disclosure of each
category of the discovery at issue would have on members’ associational rights. These
declarants describe past instances of harassment of and threats against Plaintiff’s local
members as a result of their involvement in campaigns directed against Defendant’s
operations, and state that they and other members feel that public disclosure of members’
identities and internal strategy discussions will chill membership and will make members
and employees less willing to communicate freely about campaign objectives, for fear of
retaliation.
DISCUSSION
Defendant, as the moving party, bears the burden of showing that the requested
discovery is discoverable within the meaning of Federal Rule of Civil Procedure 26. See
Cent. States, Se. & Sw. Areas Pension Fund v. King Dodge, Inc., No. 4:11MC00233
AGF, 2011 WL 2784118, at *2 (E.D. Mo. July 15, 2011). “[A]fter the proponent of
discovery makes a threshold showing of relevance, the party opposing a motion to
compel has the burden of showing its objections are valid by providing specific
explanations or factual support as to how each discovery request is improper.”
Cincinnati Ins. Co. v. Fine Home Managers, Inc., No. 4:09CV234-DJS, 2010 WL
2990118, at *1 (E.D. Mo. July 27, 2010).

-4-

“Although the First Amendment does not normally restrict the actions of purely
private individuals, the amendment may be applicable in the context of discovery orders,
even if all of the litigants are private entities.” Grandbouche v. Clancy, 825 F.2d 1463,
1466 (10th Cir. 1987). In such cases, a court order compelling or enforcing discovery
“provide[s] the requisite governmental action that invokes First Amendment scrutiny.”
Id.
“A party who objects to a discovery request as an infringement of the party’s First
Amendment rights [to freedom of association] is in essence asserting a First Amendment
privilege.” Perry v. Schwarzenegger, 591 F.3d 1147, 1160 (9th Cir. 2010). In cases
involving organizations, the First Amendment’s protection “extends not only to the
organization itself, but also to its staff, members, contributors, and others who affiliate
with it.” Int’l Union v. Nat’l Right to Work Legal Defense & Ed. Found., Inc., 590 F.2d
1139, 1147 (D.C. Cir. 1978). The First Amendment may protect membership lists of
advocacy groups, as well as requests for internal communications of and among such
groups, where disclosure would “have a potential for chilling the free exercise of political
speech and association guarded by the First Amendment.” Wyoming v. U.S. Dep’t of
Agric., 208 F.R.D. 449, 454-55 (D.D.C. 2002).
The parties agree that, although there is little authority in the Eighth Circuit
evaluating a claim of First Amendment privilege in the discovery context, the balancing
test used by other circuits should apply here.
Some circuits apply a two-part framework to claims of First Amendment
discovery privilege. “The party asserting the privilege must demonstrate a prima facie
-5-

showing of arguable first amendment infringement,” demonstrating that enforcement of
the discovery requests will result in “(1) harassment, membership withdrawal, or
discouragement of new members, or (2) other consequences which objectively suggest an
impact on, or chilling of, the members’ associational rights.” Perry v. Schwarzenegger,
591 F.3d 1147, 1160 (9th Cir. 2010) (citations omitted). If this prima facie showing is
made, the burden shifts to the party seeking the discovery to demonstrate “an interest in
obtaining the disclosures it seeks which is sufficient to justify the deterrent effect on the
free exercise of the constitutionally protected right of association.” Id. at 1161 (citation
omitted). “[T]he party seeking the discovery must show that the information sought is
highly relevant to the claims or defenses in the litigation—a more demanding standard of
relevance than that under Federal Rule of Civil Procedure 26(b)(1).” Id. “The request
must also be carefully tailored to avoid unnecessary interference with protected activities,
and the information must be otherwise unavailable.” Id.
Other circuits apply a similar balancing test, first determining the validity of the
claimed First Amendment privilege and then considering factors such as “(1) the
relevance of the evidence; (2) the necessity of receiving the information sought; (3)
whether the information is available from other sources; and (4) the nature of the
information.” Grandbouche, 825 F.2d at 1466.
Upon review of the declarations submitted by Plaintiff, the Court finds that
Plaintiff has made a prima facie showing that disclosure of the requested information will
chill members’ associational rights. See Perry, 591 F.3d at 1163-64 (finding that
declarations from several individuals attesting to the impact that compelled disclosure
-6-

would have on participation and formulation of strategy constituted a sufficient prima
facie showing). Therefore, the Court will weigh Defendant’s interest in obtaining each
category of information.
Defendant asserts that each category of information is relevant for four reasons.
First, Defendant argues that the information is relevant to standing, as it may undercut or
challenge the Standing Members’ allegations of injury. Second, Defendant argues that
the information may be relevant to causation, which Defendant asserts is a required
element of a CAA citizen suit separate and apart from standing. Third, Defendant argues
that the information is relevant to the assessment of a civil penalty, because one of the
factors considered for such penalties is the seriousness of the violation. Finally,
Defendant argues that the information is relevant to the injunctive relief factors of
balance of hardships and the public interest.
Identification and Communications of Non-Standing Members
The Court agrees with Plaintiff that the identities and communications of nonstanding members are irrelevant to any issue in this case. As to standing, it is sufficient if
“any one” of Plaintiff’s members has suffered injury in fact fairly traceable to
Defendant’s conduct and likely to be redressed by a favorable decision by the Court.
Iowa League of Cities v. E.P.A., 711 F.3d 844, 869 (8th Cir. 2013). Whether or not other
members have suffered similar injuries is irrelevant to standing.
As to causation, the Court is not convinced that, apart from the general causationprong of Article III standing, a plaintiff in a CAA citizen suit such as this one must
demonstrate causation and injury to prevail on the merits. See 42 U.S.C. § 7604(a)
-7-

(creating a private right of action against “any person . . . who is alleged to have violated
. . . or to be in violation of an emission standard or limitation”); Sierra Club v. Franklin
Cty. Power of Ill., LLC, 546 F.3d 918, 923-39 (7th Cir. 2008) (describing citizen suit
requirements but not addressing causation or injury except in the context of standing);
Sierra Club v. Tenn. Valley Auth., 430 F.3d 1337, 1341-46 (11th Cir. 2005) (same). As
discussed below, Defendant can test the injury and traceability assertions of the Standing
Members using discovery relating to those members’ injuries. But Defendant has not
demonstrated that discovery regarding Plaintiff’s other, rank-and-file members is
warranted here.
As to the civil penalty and injunctive relief factors, the Court agrees with Plaintiff
that Defendant may rely on its own experts and fact witnesses, including persons who
live near Defendant’s facilities but who are not Sierra Club members, to demonstrate that
the alleged violations were not serious enough to warrant penalties or an injunction in this
case. As such, the Court finds that Defendant’s interest in the identities and
communications of the non-standing members is not sufficient to justify the deterring
effect such a disclosure may have on the associational rights of Plaintiff’s members.
Therefore, the Court will deny Defendant’s motions in this regard.
Communications of Standing Members
Unlike Plaintiff’s rank-and-file members, the Standing Members “have put their
credibility at stake on . . . essential issues of [Plaintiff’s] case”—namely, whether “they
have been injured in a concrete and particularized and actual or imminent way by
[Defendant’s] opacity violations,” so as to give Plaintiff standing to bring this case. Nat’l
-8-

Res. Def. Council, Inc v. Ill. Power Res., LLC, No. 13-CV-1181, 2015 WL 4910204, at
*4 (C.D. Ill. Aug. 17, 2015). However, Plaintiff asserts that it has not withheld any
discovery relating to the Standing Members’ alleged injuries. Therefore, to the extent
Defendant’s motions seek to compel this discovery, it is moot.
Defendant argues that it is entitled not only to discovery relating to the Standing
Members’ injuries but also to other communications of the Standing Members relating to
this lawsuit generally because such communications “might” reveal that the Standing
Members had little concern about Defendant’s emissions. But even if such
communications existed—for example, if the Standing Members sent emails indicating
that their injuries were exaggerated or non-existent—those communications would
“relate to” the Standing Members’ alleged injuries and would have, according to Plaintiff,
been produced. And if such communications do exist, but have not been produced,
Plaintiff must do so promptly.
To the extent that Defendant seeks additional communications of the Standing
Members about this lawsuit for the purpose of discovering other motives for filing the
lawsuit, unrelated to the Standing Members’ alleged injuries, the Court will deny the
Defendant’s request as irrelevant, as discussed below.
Documents Relating to Plaintiff’s Motive for Filing Suit
The Court agrees with Plaintiff that discovery relating to Plaintiff’s alleged motive
for bringing this lawsuit, such as discovery regarding the “Beyond Coal” campaign, is
irrelevant to any issue in this case. Defendant asserts that it needs such discovery “to
explore the connections between this lawsuit and Sierra Club’s anti-coal political
-9-

agenda,” and to “impeach the credibility of Sierra Club’s witnesses who will testify about
various issues, including facts relating to perceived harm, causation on the merits, the
seriousness of the alleged violations, whether an injunction would disserve the public
interest, and standing.” (Doc. No. 63 at 14-15.)
For the reasons discussed above, the only relevant harm in this case is the harm
asserted by Plaintiff’s Standing Members, and Plaintiff states it has already produced all
discovery relating to these members’ injuries. Plaintiff’s alleged motive for bringing this
lawsuit is relevant neither to standing nor to the civil penalty or injunctive relief analysis.
See Pound v. Airosol Co., Inc., 498 F.3d 1089, 1097 (10th Cir. 2007) (finding that a
plaintiff’s motivation in bringing a citizen suit was irrelevant to the determination of an
appropriate civil penalty under the CAA). Therefore, the Court will deny Defendant’s
motions in this regard.
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendant’s motions to compel are DENIED.
(Doc. Nos. 62 & 76.)

______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 31st day of December, 2015.

- 10 -