NJ WORK ENVIRONMENT COUNCIL et al v. STATE EMERGENCY RESPONSE COMMISSION et al

Filing 53

OPINION. Signed by Judge William J. Martini on 10/10/18. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NEW JERSEY WORK ENV’T COUNCIL, et
al.,

Civ. No. 2:17-2916 (WJM)

Plaintiffs,
OPINION

v.
STATE EMERGENCY RESPONSE
COMM’N, et al.,
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:
Composed of labor and environment-focused community groups, Plaintiffs New Jersey
Work Environment Council and Local 877, International Brotherhood of Teamsters
(“Plaintiffs”) brought this private enforcement action under the citizen-suit provision of the
Emergency Planning and Community Right-to-Know Act of 1986 (“EPCRA” or “the
Act”), 42 U.S.C. § 11046(a)(1)(C). Plaintiffs allege that New Jersey’s State Emergency
Response Commission (“SERC”) and its members (jointly, “State Defendants”), the City
of Linden, New Jersey, and its Local Emergency Planning Committee (jointly, “Linden,”
and together with State Defendants, “Defendants”) failed to make local emergency
response plans available to the public. Before the Court are Defendants’ motions to dismiss
under Federal Rule of Civil Procedure 12(b)(6). The Court has jurisdiction under 28 U.S.C.
§ 1331 and decides the matter without oral argument. Fed. R. Civ. P. 78(b). For the reasons
set forth below, State Defendants’ motion is DENIED, and Defendant Linden’s motion is
GRANTED.
I.

BACKGROUND

“EPCRA establishes a framework of state, regional, and local agencies designed to
inform the public about the presence of hazardous and toxic chemicals, and to provide for
emergency response in the event of a health-threatening release.” Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 86 (1998); see Am. Compl. ¶¶ 14–15, ECF No. 36. Per the
Act, Congress directed each state to appoint a SERC. Am. Compl. ¶ 16. Each commission
then had to designate emergency planning districts and, for each district, appoint members
to a local emergency planning committee (“LEPC”). Id. ¶ 18. Through executive order,
New Jersey’s governor created SERC and directed each municipality and county to form
an LEPC. Id. ¶¶ 8, 19. In turn, LEPCs had to prepare emergency response plans (“ERPs”),
which, by law, SERC must review. Id. ¶ 21; see 42 U.S.C. § 11003(a), (e).

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Under the Act, State Defendants must “establish procedures” to facilitate public access
to, among other documents, ERPs. Id. ¶¶ 23–24; 42 U.S.C. § 11001(a). The Act also
compels LEPCs to: (1) provide notice to the public of the right to review an ERP, id. ¶ 27,
and (2) set rules for holding public meetings to receive input, id. ¶ 30. For actions hindering
public access, private parties may bring a civil action against the Administrator of the
United States Environmental Protection Agency, a State Governor, or a SERC. Id. ¶ 2
(citing 42 U.S.C. § 11046(a)(1)(C)).
Plaintiffs allege that on multiple occasions, Linden refused Plaintiffs’ requests to
(1) access the plan, id. ¶¶ 25–26, (2) publish notice of the public’s right to view it, id. ¶ 28,
and (3) invite public comment, id. ¶ 31. Plaintiffs implored State Defendants to enforce the
Act’s public access requirements. Id. ¶ 33. In response, SERC trained certain LEPCs on
ERP content and the Act’s public access requirements. Id. ¶ 34. Even so, Linden’s LEPC
continues to refuse Plaintiffs access, provide notice, or invite public comment. Id. ¶ 36.
Plaintiffs filed suit against State Defendants over their alleged failure to supervise and
coordinate an LEPC’s activities, thus ensuring public access. Id. ¶¶ 40–41, 43. They ask
the Court to declare Defendants in violation of the Act and for an order directing State
Defendants to redress the non-compliant LEPCs’ failure to make ERPs publicly available.
Id. ¶¶ 43.a–b.
Defendants seek dismissal, arguing the EPCRA provides Plaintiffs no avenue of relief.
State Defs.’ Mot. to Dismiss Br. 7–8, ECF No. 44-1 (“State Defs.’ Br.”). State Defendants
argue that even if they failed to provide a mechanism to ensure public availability of
information, a private party may only file suit in limited circumstances not present here
and that the Act provides no implied private right of action. Id. at 8–10, 13–15. Further,
State Defendants, along with Linden, point out that under the Tenth Amendment Congress
cannot mandate the regulation of a dilatory LEPC. Id. at 11–13; Linden’s Mot. to Dismiss
Br. 3–6, ECF No. 39-1 (“Linden’s Br.”). Linden then argues its dismissal is warranted
because Plaintiffs seek exactly the same type of relief against Linden as well as all other
non-compliant LEPCs. Linden’s Br. at 6–7.
Plaintiffs respond that State Defendants cannot raise arguments in the pending motion
to dismiss that were omitted from its earlier Rule 12(b)(6) motion. Pls.’ Opp’n to State
Defs.’ Br. 1–3, ECF No. 49. Plaintiffs then assert the Court can order State Defendants to
enforce the Act’s public access mandates. Id. at 3–14. As to Linden, Plaintiffs now seek a
different path of recovery. Lacking grounds for relief under the EPCRA, Plaintiffs allege a
state law claim in its opposition papers. For the first time, Plaintiffs argue the New Jersey
Environmental Rights Act (“ERA”) provides a direct cause of action to enforce the
EPCRA’s public access provisions, ensuring full relief. See Pls.’ Opp’n to Linden’s Br. 1–
11, ECF No. 45. In reply, Defendants largely reiterate their previous arguments. See State
Defs.’ Reply Br. 1–5, ECF No. 52; Linden Reply Br. 1–3, ECF No. 47. But as to the neverbefore-seen ERA claim, Linden essentially argues Plaintiffs cannot amend a complaint
through allegations made for the first time in a motion to dismiss brief. See Linden Reply
Br. at 3.

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II.

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in
whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The
moving party bears the burden of showing that no claim has been stated. Hedges v. United
States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under Rule
12(b)(6), a court must take all allegations in the complaint as true and view them in the
light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975).
III.

DISCUSSION

The Court will address Plaintiffs’ procedural argument before discussing whether relief
could be granted under the pleaded facts.
A. Rule 12(g)(2) Does Not Bar State Defendants’ Pending Motion
Under Rule 12(g)(2) provides that, subject to two exceptions not relevant here, a party
who omits a failure-to-state-a-claim defense in a pre-answer Rule 12(b)(6) motion cannot
later assert that defense in a successive motion. Leyse v. Bank of Am. Nat’l Ass’n, 804 F.3d
316, 320 (3d Cir. 2015). The party may only assert the new defense in a pleading, a motion
for judgment on the pleadings, or at trial. See id. (citing Fed. R. Civ. P. 12(h)(2)).
Plaintiffs’ argument that Rule 12(g)(2) bars State Defendants’ pending motion misses
the mark. State Defendants previously asserted that the Act and pleaded facts provided no
grounds for relief. Besides, prior to ruling on the first motion to dismiss and with State
Defendants’ consent, Plaintiffs filed the Amended Complaint to correct a shortcoming in
the original pleading. That is what triggered the second pre-answer Rule 12 motion. ECF
Nos. 34, 36, 44. Further, even if the Court accepted Plaintiffs’ argument, State Defendants
would then file an answer and would presumably assert the same defenses in a Rule 12(c)
motion. Upon briefing the defenses again, the Court would then confront the same
questions. That runs contrary to the aim of Rule 12(g)(2) as well as Rule 1’s mandate to
avoid unnecessary and costly delays. As such, the Court will address the merits of State
Defendants’ arguments.
B. Plaintiffs Have Stated an EPCRA Claim Against State Defendants Only
State Defendants concede Plaintiffs can allege an EPCRA claim for failing to provide
a mechanism to make ERPs available to the public. State Defs.’ Reply Br. at 3–4; see 42
U.S.C. §§ 11046(a)(1)(C), 11001(a), (c) (noting SERC and LEPC “shall establish
procedures for receiving and processing request from the public for information under
section 11044 of this title”); Am. Compl. ¶ 40. But State Defendants argue Plaintiffs cannot
seek equitable relief from the Court ordering SERC to supervise and coordinate LEPC
activities because that relief is unavailable under the Act’s citizen-suit provision. State
Defs.’ Reply Br. at 3–4; see Am. Compl. ¶ 41.
At the motion to dismiss stage, courts ask “not whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to support the claims.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 563 n.8 (quotation marks and citation omitted). It is undisputed

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that EPCRA compels SERC to “supervise and coordinate the activities of [its LEPCs],”
42 U.S.C. § 11001(a), and that each LEPC must “complete preparation of an emergency
response plan . . . .” Id. § 11003(a). It is also undisputed SERC must then “review the
[ERPs] and make recommendations to the [LEPCs] . . . .” Id. § 11003(e). And it is
undisputed that under the Act, ERPs “shall be made available to the general public . . .
during normal working hours at the location or locations designated by the . . . [SERC], or
[LEPC] . . . .” Id. § 11044(a).
In addressing a similar question, the Supreme Court held that a challenge to the scope
of the EPCRA’s citizen-suit provision is a merits question and one not appropriate for
decision at the Rule 12 stage. Steel Co., 523 U.S. at 92. In addition, the Supreme Court
found district courts could hear private enforcement actions where a plaintiff asserts a
violation enumerated in the EPCRA’s citizen-suit provision or “contend[s] that [the citizensuit provision] contains a certain requirement.” Id. at 93. That is the case here.
Based on the Steel Company decision, Plaintiffs have stated a claim for relief under the
EPCRA when State Defendants’ refused to make Linden’s ERP publicly available. Like in
Steel Company, it is undisputed the EPCRA permits Plaintiffs the right to challenge actions
hindering public access to ERPs. And like in Steel Company, Plaintiffs contend the citizensuit provision contains a particular requirement: to allow redress over SERC’s failure to
supervise and coordinate LEPC activities. At this stage, whether SERC’s supervision
mandate falls outside the ambit of the Act’s citizen-suit provision is a question beyond
consideration. See Steel Co., 523 U.S. at 93. As to State Defendants’ Tenth Amendment
arguments, the Court will refrain from deciding a constitutional question absent a full
record. See Hazo v. Geltz, 537 F.2d 747, 751 (3d Cir. 1976) (collecting Supreme Court
cases). Since it is not “clear that no relief could be granted under any set of facts,” Plaintiffs
have sufficiently pleaded the EPCRA claim. See Hishon v. King & Spalding, 467 U.S. 69,
73 (1984). The Court will thus “unlock the doors of discovery.” See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
C. Plaintiffs Failed to Show Why Linden is a Necessary Party and Have
Improperly Alleged the State Law Claim
Plaintiffs predicated their right to access the ERPs of non-compliant LEPCs, like
Linden’s, on the theory that Linden must be joined as a “necessary” party under Federal
Rule of Civil Procedure 19(a). Not so. First, Plaintiffs seek relief from State Defendants
alone, arguing Linden’s inclusion is necessary “for the sole purpose of effecting complete
relief for the Defendants’ failure to assure public access to [ERPs].” Pls.’ Opp’n to
Linden’s Br. at 2. Second, even if the Court accorded complete relief, it would be
directed against the already named State Defendants since the Act’s citizen-suit provision
affords no cause of action against an LEPC. See 42 U.S.C. § 11046(a)(1)(C) (authorizing
citizen suits against a State governor, a SERC, or the Federal EPA Administrator); 132
Cong. Rec. H9561-03 (1986) (statement of Rep. Swift) (“None of [the Act’s citizen-suit]
provisions provide for suits against [LEPCs].”); see also Janney Montgomery Scott, Inc.
v. Shepard Niles, Inc., 11 F.3d 399, 405 (3d Cir. 1993) (“A Rule 19(a)(1) inquiry is

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limited to whether the district court can grant complete relief to the persons already
parties to the action”). Plaintiffs have thus failed to show that Linden is a necessary party
under Rule 19(a) and to permit leave to amend would be futile. See Shane v. Fauver, 213
F.3d 113, 115 (3d Cir. 2000) (citation omitted).
As to the ERA claim, the Court declines to exercise supplemental jurisdiction. See
Pls.’ Opp’n to Linden’s Br. at 6–11. That state law claim appeared nowhere in either the
original or amended pleadings. Indeed, Plaintiffs first alleged the ERA claim in its
motion papers, running contrary to well-settled law “that the complaint may not be
amended by the briefs in opposition to a motion to dismiss.” Pa. ex rel. Zimmerman v.
PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (quotation marks and citation omitted).
IV.

CONCLUSION

For the above-stated reasons, State Defendants’ motion to dismiss is DENIED, and
Defendant Linden’s motion to dismiss is GRANTED. Plaintiffs’ Amended Complaint
against Defendant Linden is DISMISSED WITH PREJUDICE. An appropriate order
follows.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.

Dated: October 9, 2018

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