D'AMICO -v- WASTE MANAGEMENT OF NEW YORK, LLC
Filing
33
DECISION AND ORDER granting in part and denying in part 13 Defendant's Motion to Dismiss. Signed by Hon. Elizabeth A. Wolford on 3/25/2019. (DPS)
cifgrES
UNITED STATES DISTRICT COURT
MAR 2 5 2019
WESTERN DISTRICT OF NEW YORK
tOEWENGUlti.
^5^ DiSTRl^
JAMES W. D'AMICO, on behalf of himself and
all others similarly situated,
DECISION AND ORDER
Plaintiff,
6:18-CV-06080 EAW
V.
WASTE MANAGEMENT OF
NEW YORK,LLC,
Defendant.
INTRODUCTION
Plaintiff James W.D'Amico ("Plaintiff) brings this putative class action, on behalf
of himself and all others similarly situated, against Defendant Waste Management of New
York, LLC ("Defendant"), alleging common law claims for nuisance, negligence, and
gross negligence, arising from Defendant's operation of the High Acres Landfill and
Recycling Center (the "Landfill") in Fairport, New York. (Dkt. 4). Specifically, Plaintiff
alleges that Defendant's operation of the Landfill has caused noxious odors to be emitted
into the surrounding environment, resulting in property damage to himself and the
owner/occupants and renters in the surrounding area. {Id. at 2-5).
Presently before the Court is Defendant's motion to dismiss. (Dkt. 13). For the
following reasons. Defendant's motion is granted in part and denied in part.
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BACKGROUND'
Defendant operates the Landfill on a 1,100-acre site and "accepts municipal solid
waste, industrial and special waste, construction and demolition debris, and other waste for
disposal." (Dkt.4 at
4,6). As the waste decomposes at the Landfill, it creates "odorous
landfill gas, leachate, and other byproducts." {Id. at Tf 7). Defendant is obligated to control
odorous emissions by, among other things, "following proper landfilling practices,
utilizing adequate landfill cover, and installing, operating, and maintaining a sufficient
landfill gas collection system to capture and destroy landfill gas." {Id. at ^ 10). In order
to effectively maintain the landfill gas collection system (the "Collection System"),
Defendant must prevent "excess liquid" from entering the system and interfering with its
operation. {Id. at^ 11).
Defendant has allegedly failed to satisfactorily control the odors emitted from the
Landfill. {Id. at ^ 12). Specifically, Plaintiff claims that Defendant has failed to properly
operate the Collection System and has allowed it to become "watered in." {Id.). This
alleged operating failure is due to inadequate drainage systems. Defendant's reliance upon
vertical gas wells, insufficient preparation for wet weather conditions, an "inadequate
wellhead vacuum,"the failure to properly monitor the system and use a proper "cover and
covering practices," and the "inadequate use of odor neutralizing systems and products."
{Id.).
'
The following facts are taken fi om Plaintiffs Amended Complaint unless otherwise
:
indicated. (Dkt. 4).
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As a result, Defendant has allegedly released "odorous emissions . . . onto the
property ofPlaintiff and the class on occasions too numerous to recount individually." {Id.
at ^ 13). The odors are "offensive" and have interfered with Plaintiffs and the putative
class members' use and enjoyment of their property. {Id. at If 14). Plaintiff claims that
"Defendant's emissions are especially injurious to the Class as compared with the public
at large, given the impacts to their homes." {Id. at ^ 15). In particular, these emissions
have caused a diminution in the value of Plaintiffs and the putative class members'
property. {Id. at^j 16).
Numerous individuals have filed complaints with the New York State Department
of Environmental Conservation ("NYSDEC") detailing the noxious odors in the
community. {Id. at^ 17). "[Mjorethan 180 households have contacted Plaintiffs' counsel
documenting the odors they attribute to" the Landfill. {Id. at ^ 18).
Plaintiff seeks to certify the following putative class: "All(a) owner/occupants and
(b) renters of residential property residing within two and one-half (2.5) miles of the
Defendant's Landfill." {Id. at ^ 20). Plaintiff also claims that "there are over three
thousand (3,000) households within the 2.5-mile radius that are being impacted." {Id. at
121).
PROCEDURAL HISTORY
On January 26, 2018, Plaintiff commenced this putative class action, on behalf of
himself and all others similarly situated, seeking compensatory and punitive damages as
well as injunctive relief under theories of common law nuisance, negligence, and gross
negligence. (Dkt. 1). On April 27, 2018, Plaintiff filed an Amended Complaint, which
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removed Waste Management, Inc. as a defendant. (Dkt. 4). The Amended Complaint
remains the operative pleading in this matter. On July 23, 2018, Defendant filed a motion
to dismiss. (Dkt. 13). Plaintiff opposed Defendant's motion to dismiss (Dkt. 14), and
Defendant submitted reply papers in further support of its motion (Dkt. 16). The Court
held oral argument on Defendant's motion on December 7, 2018, and reserved decision.
(Dkt. 27).
DISCUSSION
I.
Legal Standard
"In considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), a district court may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the
complaint." DiFolco v. MSNBC Cable LLC.,622 F.3d 104, 111 (2d Cir. 2010). A court
should consider the motion by "accepting all factual allegations as true and drawing all
reasonable inferences in favor ofthe plaintiff." Trs. of Upstate NY. Eng'rs Pension Fund
V. Ivy Asset Mgmt.,843 F.3d 561,566(2d Cir. 2016), cert, denied, 137 S. Ct. 2279(2017).
To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to reliefthat
is plausible on its face." BellAtl. Corp. v. Twombly,550 U.S. 544, 570(2007). "A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged." Turkmen
V. Ashcroft, 589 F.3d 542,546(2d Cir. 2009){qnoimgAshcroftv. Iqbal, 556 U.S.662,678
(2009)).
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"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiffs obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal
quotations and citations omitted). "To state a plausible claim, the complaint's '[f]actual
allegations must be enough to raise a right to relief above the speculative level.'" Nielsen
V. AECOMTech. Corp., 762 F.3d 214, 218(2d Cir. 2014)(quoting Twombly, 550 U.S. at
555).
II.
Plaintiffs Cause of Action for Nuisance Fails to State a Claim
A.
General Principles
"There are two types of nuisance actions in New York State, public nuisance and
private nuisance." Hicksville Water Dist. v. Philips Elecs. N. Am. Corp., No. 2:17-CV04442 (ADS)(ARL), 2018 WL 1542670, at *7 (E.D.N.Y. Mar. 29, 2018). "Public and
private nuisance bear little relationship to each other. Although some rules apply to both,
other rules apply to one but not the other." State ofN.Y. v. Shore Realty Corp., 759 F.2d
1032, 1050(2d Cir. 1985). "A public nuisance under New York law exists when there is
a substantial interference with a public right." Johnson v. Bryco Arms, 304 F. Supp. 2d
383, 390 (E.D.N.Y. 2004). By contrast, "[a] private nuisance threatens one person or a
relatively few,an essential feature being an interference with the use or enjoyment ofland."
Copart Indus., Inc. v. Consol. Edison Co. ofN.Y.,41 N.Y.2d 564,568(1977);see Scribner
V. Summers,84 F.3d 554, 559(2d Cir. 1996)(same). "A nuisance is the actual invasion of
interests in land, and it may arise from varying types of conduct." 532 Madison Ave.
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Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280, 292 (2001). Generally
speaking, a landowner "is subject to liability for either a public or private nuisance on its
property upon learning of the nuisance and having a reasonable opportunity to abate it."
Shore Realty Corp., 759 F.2d at 1050(footnote omitted).
Although Plaintiffs Amended Complaint does not specifically identify whether he
asserts a claim under theories ofprivate nuisance,public nuisance,or both, at oral argument
Plaintiffs counsel agreed that he has alleged only a public nuisance cause of action.
Accordingly, the Court will review the sufficiency ofPlaintiffs allegations under a public
nuisance theory of liability.
B.
Public Nuisance
"A public nuisance exists for conduct that amounts to a substantial interference with
the exercise of a common right of the public, thereby offending public morals, interfering
with the use by the public ofa public place or endangering or injuring the property, health,
safety or comfort of a considerable number of persons." 532 Madison Ave., 96 N.Y.2d at
292. "It is uncontested that the historical purpose of the doctrine of public nuisance was
primarily to protect the public from harm or danger; the same is equally true ofthe modem
tort ofpublic nuisance." N.A.A.C.P. v. AcuSport,Inc.,271 F. Supp.2d 435,481 (E.D.N.Y.
2003). For this reason, a public nuisance is considered "an offense against the State and is
subject to abatement or prosecution on application of the proper govemmental agency."
Copart Indus., Inc., 41 N.Y.2d at 568. "The State has standing to bring actions for public
nuisance as a matter of course in its role as 'guardian of the environment.'" Chase
Manhattan Bank, N.A. v. T&Nplc,905 F. Supp. 107,125(S.D.N.Y. 1995)(quoting Shore
Realty Corp., 759 F.2d at 1051).
"Generally,'[a] public nuisance is actionable by a private person only ifit is shown
that the person suffered special injury beyond that suffered by the community at large.'"
Janki Bai Sahu v. Union Carbide Corp., 528 F. App'x 96, 102 n.4(2d Cir. 2013)(quoting
532 Madison Ave., 96 N.Y.2d at 292); see Johnson, 304 F. Supp. 2d at 392("A private
plaintiff does not have standing to bring a public nuisance cause of action unless he or she
shows some harm different from that suffered by the public generally."). "In this way, a
private wrong may be distinguished from a common injury to the public, and a private right
of action is restored." Baker v. Saint-Gobain Performance Plastics Corp.,232 F. Supp. 3d
233, 248 (N.D.N.Y. 2017)(citing Kavanagh v. Barber, 131 N.Y. 211, 214 (1892)("The
public nuisance as to the person who is specially injured thereby in the enjoyment or value
of his lands becomes a private nuisance also.")); see also 81 N.Y. Jur. 2d Nuisances § 6
(2018)("[A] public nuisance becomes also a private nuisance as to any person who is
specially injured by it to any extent beyond the injury to the public." (citing Ackerman v.
True, 175 N.Y.353,360-61 (1903))). "This principle recognizes the necessity ofguarding
against the multiplicity of lawsuits that would follow if everyone were permitted to seek
redress for a wrong common to the public." 532 Madison Ave., 96 N.Y.2d at 292.
A review ofthe allegations contained in the Amended Complaint reveals that it does
not once specifically allege that Defendant's operation of the Landfill has interfered with
a right held in common by the public. See Haire v. Bonelli, 57 A.D.3d 1354, 1358 (3d
Dep't 2008)(affirming dismissal of the plaintiffs public nuisance cause of action where
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the plaintiff"did not allege an interference with rights belonging to the general public, nor
an interest in public land"); Reid v. Kawasaki Motors Corp., U.S.A., 189 A.D.2d 954,957
(3d Dep't 1993)("The sine qua non of an action for public nuisance ... is the interference
by a defendant with a public right. The complaint here simply is bereft of any such
allegations." (citation omitted)). At oral argument. Plaintiffs counsel argued that this
Court should infer that the Landfill is causing harm to the public's right to clean air.
Plaintiffs Amended Complaint alleges, among other things, that Defendant owes a duty
"to prevent and abate the interference with the invasion of the private interests of the
Plaintiffs," and that "Defendant has intentionally and negligently caused an unreasonable
invasion of Plaintiffs' interest in the use and enjoyment of their property." (Dkt. 4 at
32-33 (emphases added)). Notably, the Amended Complaint fails to set forth a single
allegation specifically stating that Defendant's operation of the Landfill has substantially
interfered with a public right; rather, the relevant allegations pertain to Defendant's
purported interference with private property rights.
A liberal construction of the Amended Complaint might conceivably permit an
inference that the Landfill's noxious emissions have substantially interfered with the
public's right to uncontaminated and unpolluted air. See generally Town of Mount
Pleasant v. Van Tassell, 1 Misc. 2d 643,646(N.Y. Sup. Ct., Westchester Cty. 1957)("[I]t
is well established that noxious smells or odors alone may constitute a nuisance although
they are not unwholesome or injurious to the health but merely offensive and unpleasant."),
afTd,6 A.D.2d 880(1958); Restatement(Second)of Torts § 821B cmt. g.(1979)("In any
case in which a private nuisance affects a large number of persons in their use and
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enjoyment ofland it will normally be accompanied by some interference with the rights of
the public as well. Thus the spread ofsmoke, dust or fumes over a considerable area filled
with private residences may interfere also with the use of the public streets or affect the
health of so many persons as to involve the interests of the public at large."). However,
the mere possibility that there has been a "substantial interference" with the public's right
to clean air does not satisfy federal pleading standards; if a plaintiff has "not nudged [his]
claims across the line from conceivable to plausible,[his] complaint must be dismissed."
Twombly, 550 U.S. at 570(emphasis added). Because Plaintiff must allege "enough facts
to state a claim to relief that is plausible on its face," id. Plaintiffs allegations that the
noxious odors have interfered with the use and enjoyment of private property rights fail to
sufficiently allege a substantial interference with a right enjoyed by the public generally.
Accordingly, Plaintiffs public nuisance claim is dismissed without prejudice. As a result,
the Court does not reach Defendant's other arguments challenging the sufficiency of
Plaintiffs public nuisance claim.
III.
Plaintiffs Amended Complaint States a Claim for Ordinary Negligence. But
Fails to State a Claim for Gross Negligence
Under New York law, "a plaintiff must establish three elements to prevail on a
negligence claim: (1)the existence ofa duty on defendant's part as to plaintiff;(2)a breach
'
ofthis duty; and(3)injury to the plaintiff as a result thereof.'" Alfaro v. Wal-Mart Stores,
Inc., 210 F.3d 111, 114 (2d Cir. 2000)(quoting
v. Glens Falls City Sch. Dist., 53
N.Y.2d 325, 333 (1981)). To prevail on a claim for gross negligence, a plaintiff must
establish the three elements required of ordinary negligence and further demonstrate that
the defendant engaged in "conduct that evinces a reckless disregard for the rights of others
or 'smacks' of intentional wrongdoing." Am. Tel. & Tel. Co. v. City ofNew York, 83 F.3d
549, 556(2d Cir. 1996)(quoting Colnaghi, U.S.A., Ltd. v. Jewelers Prot. Servs., Ltd., 81
N.Y.2d 821, 823-24 (1993)). As discussed below. Plaintiff has adequately alleged a
negligence cause of action, but not a gross negligence claim.
A.
Ordinary Negligence
At the heart of the parties' dispute regarding the negligence cause of action is
whether Plaintiff has sufficiently alleged legally cognizable damages to state a claim for
ordinary negligence. Defendant argues that Plaintiffs alleged diminution in property
values is a "purely economic harm[]" that is not recoverable under a theory of negligence.
(Dkt. 13-1 at 16-18).
The "Second Circuit has determined that New York does not recognize a tort cause
of action when only economic loss is sought." Greater N.Y. Auto. Dealers Ass'n v. Envtl.
Sys. Testing, Inc., 211 F.R.D. 71, 82(E.D.N.Y. 2002); see Suffolk County v. Long Island
Lighting Co.,728 F.2d 52,62(2d Cir. 1984)
("New York law holds that a negligence action
seeking recovery for economic loss will not lie."). "In other words,'it is well-established
under New York law that, where a plaintiff alleges only economic damages resulting from
defendant's alleged negligence, defendants owe no duty to plaintiffs with whom they are
not in contractual privity.'" Four Directions Air, Inc. v. United States, No. 5:06-CV-283
(NAM/GHL), 2007 WL 2903942, at *3 (N.D.N.Y. Sept. 30, 2007)(quoting Land Mine
Enters, v. Sylvester Builders, Inc., 74 F. Supp. 2d 401, 407 (S.D.N.Y. 1999), qfd, 234
F.3d 1262 (2d Cir. 2000); see also Niagara Mohawk Power Corp. v. Stone & Webster
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Eng'g Corp., 725 F. Supp. 656, 665 n.6 (N.D.N.Y. 1989)("The term 'economic loss' or
'economic damage' in this context refers to damages which are sought by a plaintiff other
than for 'physical damage to person or property resulting from an accidental cause.'"
(quoting
Oldsmobile-Cadillac, Inc. v. Sirus Leasing Co., Div. ofSirus Enters., 101
A.D.2d 688,688(4th Dep't 1984))).
Nevertheless, the case law reveals that "'stigma damages' have been recognized as
a valid category of damages by the New York courts in environmental cases." 87th St.
Owners Corp. v. Carnegie Hill-Slth St. Corp.,251 F. Supp.2d 1215,1223(S.D.N.Y.2002)
(quoting Commerce Holding Corp. v. Bd. ofAssessors ofthe Town ofBabylon,88 N.Y.2d
724, 732 (1996)). Stigma damages have been "defined loosely as the public's perhaps
unwarranted fears concerning a property" that result in the diminution in that property's
value. Nashua Corp. v. Norton Co., No. 90-CV-1351 (RSP/RWS), 1997 WL 204904, at
*6 (N.D.N.Y. Apr. 15, 1997). These damages are recoverable because the diminished
property values result from an actual or imminent invasion of a landowner's property by a
defendant's polluting conduct.^ See Donavan v. Saint-Gobain Performance Plastics Corp.,
^
While the pollution alleged here entails the emission of gaseous particulate matter
in the form of"odors" permeating Plaintiffs property, there is no meaningful distinction
between the public's perception of more tangible impacts to land or water resources and
the contamination of air space. See generally Donavan v. Saint-Gobain Performance
Plastics Corp., No. l:16-CV-924 (LEK/DJS), 2017 WL 3887904, at *5 (N.D.N.Y. Sept.
5, 2017) (noting that allegations that the plaintiffs property "has been contaminated
through air emissions . . . would likely state a plausible claim for property damages");
Criscuola v. Power Auth. ofState ofN.Y., 81 N.Y.2d 649, 651 (1993)(holding that the
diminution in market value of property resulting from "'cancerphobia' and the public's
perception of a health risk from exposure to electromagnetic emissions from power lines"
that run across the property should be considered in evaluating "just compensation" in the
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No. l:16-CV-924(LEK/DJS),2017 WL 3887904,at *4(N.D.N.Y. Sept. 5,2017)("Courts
applying New York law have concluded that loss-of-value damages constitute a sufficient
injury in contamination suits when the plaintiffs property is directly affected by the
defendant's conduct." (emphasis added)); see Baker, 232 F. Supp. 3d at 246 (same);
Halliday v. Norton Co., 265 A.D.2d 614, 617 (3d Dep't 1999)(holding that where there
was inadequate proof of "contamination in plaintiffs' soil or water wells, or in the
surrounding neighborhood[, a]ny alleged consequential damages emanating, in part, from
the adverse publicity associated with the landfill were ... not proven to have arisen fi om
"
the migration of toxins or fi-om defendants' actions" (citation omitted)); Nalley v. Gen.
Elec. Co., 165 Misc. 2d 803, 810 (N.Y. Sup. Ct., Rensselaer County 1995) (denying
recovery for "negative market stigma" where there was"no evidence that the land or water
of the plaintiffs .. . is contaminated by toxic substances" nor "a competent evidentiary
showing of an imminent threat of contamination to any of these properties, or even a
showing of a high likelihood offuture contamination");see also Adams v. Star Enter., 851
F. Supp. 770, 773 (E.D. Va. 1994)(dismissing the plaintiffs' claim because their alleged
"risk to health and property" from an underground oil plume was "no more than mere
mental distress" where they did "not complain of actual oil odors, ground water
contamination, or other material interference with their properties"),qffd,51 F.3d 417(4th
"takings" context); Butler v. Frontier Tel. Co., 186 N.Y. 486,491 (1906)("The surface of
the ground is a guide, but not the full measure [of real property], for within reasonable
limitations land includes not only the surface but also .the space above and the part
beneath.").
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Cir. 1995); cf. Hanna v. Motiva Enters., LLC, 839 F. Supp. 2d 654,680(S.D.N.Y. 2012)
(granting summary judgment against the plaintiffs' "general claim that the stigma
associated with the contamination of their property renders it unmarketable" because the
plaintiffs "point to no other evidence linking the contamination of their property with any
diminution property value"); see generally Criscuola, 81 N.Y.2d at 651.^
In other words,stigma damages, while economic in nature, are distinguishable from
"purely economic harm" that arises from the loss of intangible financial interests
unaccompanied by any tangible intrusion onto the property. See Hydro Inv'rs, Inc. v.
Trafalgar Power Inc., 227 F.3d 8, 16 (2d Cir. 2000)(stating that New York courts, to
prevent "open-ended liability, . . . have applied the economic loss rule to prevent the
recovery of damages that are inappropriate because they actually lie in the nature ofbreach
^
The Second Circuit appears to have last discussed this issue in 2000, when it
"question[ed] whether Criscuola and cases similar to it" were relevant to the issue of
"whether diminution in the value of property, without more, can constitute an interference
with use and enjoyment." Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 299(2d
Cir. 2000). After suggesting that Criscuola may be limited to the context of just
compensation in takings disputes, the Second Circuit stated:
Citing Criscuola for the proposition that stigma damages are available in a
tort action, therefore, begs the question, which is rather whether, absent some
other interference with plaintiffs' ability to use and enjoy their property,
liability in nuisance exists. And this question seems not to be answered by
the New York cases.
Id. at 300. Mehlenbacher is distinguishable fi-om the present case because Plaintiff and the
putative class have alleged an interference with their use and enjoyment of property as a
result ofthe noxious odors and rely upon the diminution of property value as an additional
injury. Cf. id. at 293 (noting that some of the plaintiffs seek to recover for the diminution
of property values resulting simply from their residence being close in proximity to the salt
mine). Furthermore, Mehlenbacher relates to a nuisance claim and does not address
whether New York recognizes "stigma damages" in the context of a negligence claim.
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of contract as opposed to tort"(citing 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia
Ctr., Inc., 271 A.D.2d 49, 52 (1st Dep't 2000), rev'd on other grounds, 96 N.Y.2d 280
(2001))); Ambac Assurance Corp. v. U.S. Bank Nat'I Ass'n, 328 F. Supp. 3d 141, 159
(S.D.N.Y. 2018)(stating that the economic loss rule "reflects the premise that 'damages
arising from the failure of the bargained-for consideration to meet the expectations of the
parties are recoverable in contract, not tort, unless a legal duty independent ofthe contract
itself has been violated'"(quoting Suffolk Laundry Servs., Inc. v. Redux Corp.,238 A.D.2d
577,578(2d Dep't 1997))); Carmania Corp., N. V. v. Hambrecht TerrellInt'1,705 F, Supp.
936, 938(S.D.N.Y. 1989)(stating that "New York law ... restrict[s] plaintiffs who have
suffered 'economic loss,' but not personal or property injury, to an action for the benefits
oftheir bargains," and that "[i]fthe damages suffered are ofthe type remediable in contract,
a plaintiff may not recover in tort"(footnote omitted)); Bristol-Myers Squibb, Indus. Div.
V. Delta Star, Inc., 206 A.D.2d 177,181 (4th Dep't 1994)("The economic loss rule reflects
the principle that damages arising from the failure of the bargained-for consideration to
meet the expectations of the parties are recoverable in contract, not tort."); see also Hunt
Constr. Grp., Inc. v. BrennanBeer Gorman/Architects, P.C.,607 F.3d 10,14(2dCir.2010)
(explaining that Vermont's economic loss rule "is intended to maintain the distinction
between tort law and contract law"). New York law recognizes that "[djamages from the
diminished market value ofreal property as a result ofpublic fear ofexposure to a potential
health hazard constitute consequential damages." Cottonaro v. Southtowns Indus., Inc.,
213 A.D.2d 993, 993 (4th Dep't 1995).
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In support of its motion, Defendant relies upon 532 Madison Ave. Gourmet Foods,
Inc. V. Finlandia Ctr., Inc., 96 N.Y.2d 280(2001), arguing that "defendant landowners do
not owe a duty to their neighbors to avoid purely economic losses," (Id. at 16); see 532
Madison, 96 N.Y.2d at 290("We have never held .. . that a landowner owes a duty to
protect an entire urban neighborhood against purely economic losses."). 532 Madison
involved consolidated appeals regarding "construction-related disasters in midtown
Manhattan," where various businesses sought redress for their lost business and income.
96 N.Y.2d at 286,293-94. Defendant contends that the diminished property values alleged
in this case are akin to the financial losses incurred by the businesses in 532 Madison. (Dkt.
13-1 at 16-17). Furthermore, Defendant argues that any diminution in property value is
not recoverable in this case because Plaintiff has failed to allege any physical damage to
his or the putative class members' properties. (Id. at 17).
In opposition. Plaintiff relies upon Baker v. Saint-Gobain Performance Plastics
Corp., 232 F. Supp. 3d 233 (N.D.N.Y. 2017). Baker is one of several toxic tort cases
involving perfluorooctanoic acid ("PFOA") in sources of drinking water. The Baker
plaintiffs alleged that they had sustained property damage as a result of PFOA
contamination and "personal injury from their ingestion of PFOA." Id. at 240 (footnote
omitted). Although the plaintiffs' alleged property damages "include[d] the cost to
remediate the contamination of their property, the loss of their use and enjoyment of the
property, and a loss in their quality oflife," the "largest source ofdamages" stemmed from
the alleged "loss in their property values." Id. at 240-41.
15
In arguing that the plaintiffs failed to allege a "property-based injury sufficient to
maintain a negligence claim," the Baker defendants also relied upon 532 Madison. Id. at
244. Nonetheless, the Baker court found 532 Madison to be inapposite, stating that the
New York Court of Appeals did not "announce a talismanic requirement for plaintiffs to
allege physical injury to their property. ... Instead, the decision concerned the existence
ofa legal duty between the plaintiffs and defendants." Id. In distinguishing 532 Madison,
the Baker court broadly defined a party's duty in pollution cases, stating that "[sjociety has
a reasonable expectation that manufacturers avoid contaminating the surrounding
environment, an expectation that extends to the pollution of an area's water supply." Id. at
245. The Baker court further noted that "nothing in 532 Madison prevents a person whose
water supply was contaminated by such conduct from recovering in tort, even if she seeks
economic damages." Id. at 246.
Baker is more analogous to the instant matter than 532 Madison. Baker and similar
pollution cases involved conduct directly impacting the plaintiffs' property and a
diminution in value traceable to the defendants' actions. Here, Defendant owed Plaintiff
and the putative class members, as adjacent landowners, a duty of care to operate the
Landfill in a reasonable manner. See Fitzgibbons v. City of Oswego, No. 5:I0-CV-I038
FJS/ATB,2011 WL 6218208,at *15(N.D.N.Y. Dec. 13,2011)(denying motion to dismiss
negligence claim where the adjacent landowner alleged that the defendant "owed him a
duty of care with regard to its operation ofthe [Ijandfill").
Defendant's duty in this case is distinguishable from the more tenuous obligations
and intangible losses asserted by the plaintiffs in 532 Madison. While the financial loss
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suffered by the businesses in 532 Madison fell outside the zone of danger reasonably
expected to be guarded against, Plaintiff and the putative class members in this case have
a reasonable expectation that the operator of an adjacent landfill will take reasonable
measures to prevent the unreasonable contamination ofthe immediate air space permeating
their properties. Indeed, in concluding that the plaintiffs in 532 Madison could not sustain
their negligence cause of action, the New York Court of Appeals juxtaposed Dunlop Tire
& Rubber Corp. v. FMC Corp., 53 A.D.2d 150, 154-55 (4th Dep't 1976) where an
explosion caused "direct physical contact" with a nearby property as well as financial
losses due to lost electrical power—^resulting in recoverable damages—and Beck v. FMC
Corp., 53 A.D.2d 118, 121 (4th Dep't 1976), ajf'd, 42 N.Y.2d 1027 (1977), where the
plaintiffs merely "sought damages for lost wages caused by"the closure ofa manufacturing
plant, see 532 Madison, 96 N.Y.2d at 290. The lost wages arising from the plant's
temporary closure are far more akin to a loss in bargained-for-consideration for which the
economic loss rule undoubtedly applies than the loss-in-value-damages resulting from the
actual pollution ofPlaintiffs property.
Defendant's attempts to distinguish Baker are unpersuasive. Defendant appears to
argue that because Plaintiff does not plead "any constant fear of health consequences
related to the odor[s],"5a^er is inapplicable. (Dkt. 16 at 12). However,"[sjtigma resulting
from serious health concerns or other injury" is not required in order for a case to fall within
the realm of damages envisioned by Baker and other New York courts. (See id). Instead,
the critical requirement is the "actual pollution" of a plaintiffs property. See Donavan,
2017 WL 3887904, at *6. Whether the stigma results from odors, fears of electromagnetic
- 17-
radiation, or industrial chemicals, the resulting economic damages may be sought through
a negligence claim so long as the stigma-causing pollutant or emission "directly affected"
a plaintiffs property or imminently risks contamination. See id. at *4;Baker,232 F. Supp.
3d at 246("Such a fear or stigma ... must be traceable to the conduct of the defendant,
and that conduct must in turn be cormected with the property in question."); see also
Halliday, 265 A.D.2d at 617; Nalley, 165 Misc. 2d at 810; cf. Hanna, 839 F. Supp. 2d at
680. Because Plaintiff alleges that the noxious odors permeate his property and the
properties of the putative class members, the diminished market value of their respective
properties may be pursued in a claim for ordinary negligence. Cf. Donovan, 2017 WL
3887904,at *4("Because [the plaintiff] has not alleged contamination ofhis drinking water
or the presence of PFOA on his property, the Court agrees with [djefendants that [the
plaintiff] has not adequately pleaded a claim ofnegligence or gross negligence for property
damages. The Court reaches this conclusion because [the plaintiff] has not satisfied the
duty prong, not, as [d]efendants urge, for failure to allege injury."(citation omitted)).
Therefore, Plaintiff has plausibly stated a claim for ordinary negligence based upon
Defendant's alleged breach of its duty by causing the airspace on and surrounding
Plaintiffs property to be contaminated, resulting in a diminution in property values.
Defendant's motion to dismiss this claim is denied.
B.
Gross Negligence
"Gross negligence ... differs in kind as well as degree from ordinary negligence."
Sutton Park Dev. Corp. Trading Co. Inc. v. Guerin & Guerin Agency Inc.,297 A.D.2d 430,
431 (3d Dep't 2002)(citing Colnaghi, U.S.A., Ltd., 81 N.Y.2d at 823-24). "To constitute
- 18-
gross negligence,'the act or omission must be of an aggravated character, as distinguished
from the failure to exercise ordinary care.'" Travelers Indem. Co. ofConn. v. Losco Grp.,
Inc., 204 F. Supp. 2d 639,644(S.D.N.Y. 2002)(quoting Curley v. AMR Corp., 153 F.3d
5, 13(2d Cir. 1998)).
"On a motion to dismiss, a claim for gross negligence will be sustained only if the
plaintiff alleges facts plausibly suggesting that the defendant's conduct 'evinces a reckless
disregard for the rights of others or smacks of intentional wrongdoing.'" Bayerische
Landesbank, N.Y. Branch v. Aladdin Capital Mgmt. LLC,692 F.3d 42, 61 (2d Cir. 2012)
(quoting M+J Savitt, Inc. v. Savitt, No. 08 Civ. 8535 (DLC), 2009 WL 691278, at *12
(S.D.N.Y. Mar. 17,2009)). "Recklessness in the context ofa gross negligence claim means
'an extreme departure from the standards ofordinary care,' such that'the danger was either
known to the defendant or so obvious that the defendant must have been aware of it.'" Id.
at 61-62
AMW Materials Testing, Inc. v. Town ofBabylon,584 F.3d 436,454(2d
Cir. 2009)); see Mali v. British Airways, No. 17 Civ. 685(KPF),2018 WL 3329858, at *8
(S.D.N.Y. July 6, 2018)("As such,'a party is grossly negligent when it fails to exercise
even slight care or slight diligence.'"(quoting Goldstein v. CornellAssocs., Inc.,74 A.D.3d
745, 747(2d Dep't 2010))).
Plaintiff alleges that Defendant knew that it "improperly constructed, maintained
and operated the [LJandfill and knew, or should have known upon reasonable inspection
that such actions would cause Plaintiffs' property to be invaded by noxious odors." (Dkt.
4 at T[ 48). According to Plaintiff, not only did Defendant fail "to exercise ordinary care,"
- 19
but it "knowingly aIlow[ed] conditions to exist which caused noxious odors to physically
invade Plaintiffs' property.,.
(See id. at
49-50).
Despite these conclusory allegations, Plaintiff has failed to set forth facts that,
accepted as true, allege "an extreme departure from the standards of ordinary care" or the
absence of"even slight care or slight diligence." See Bayerische Landesbank, N.Y. Branch,
692 F.3d at 61-62; Mali, 2018 WL 3329858, at *8 (quotation marks omitted). Instead of
providing factual allegations demonstrating a reckless disregard for Plaintiffs rights.
Plaintiff simply asserts that Defendant knowingly and/or intentionally failed to operate,
maintain, or construct the Landfill in a manner consistent with its obligations of ordinary
care. (See Dkt. 4 at
47-50). Simply appending conclusory words or phrases, such as
"knowingly" or "intentionally," to allegations of ordinary negligence does not satisfy the
aggravated nature of a gross negligence claim. See Bayerische Landesbank, N.Y. Branch,
692 F.3d at 62("Simply adding the conclusory word 'reckless' to Aladdin's trading does
not transform an ill-advised investment decision into something approaching intentional
misconduct."); Kinsey v. Cendant Corp., No.04 Civ.0582 RWS,2005 WL 1907678, at *7
(S.D.N.Y. Aug. 10, 2005)(holding that allegations "sufficient to demonstrate ordinary
negligence" do not necessarily allege a gross negligence claim without factual allegations
sufficient to "meet the heightened standard necessary to state a claim for gross
negligence"); Sutton Park Dev. Corp. Trading Co. Inc., 297 A.D.2d at 431 ("Notably
missing from this complaint are any factual averments alleging conduct ofsuch aggravated
character.").
-20
Plaintiff argues that he has sufficiently alleged a claim for gross negligence because
the Amended Complaint establishes that Defendant was on notice ofthe Landfill emissions
for some time, and yet it continues to allow the odors to permeate the surrounding
properties and it "has not taken all reasonable steps to fix" this problem. (Dkt. 14 at 7-8).
The Amended Complaint alleges that the noxious odors are a widespread and ongoing
problem, and that Defendant recognizes these emissions as unacceptable. {See Dkt. 4 at
13-18). Nonetheless, the Amended Complaint does not allege that Defendant "has not
taken all reasonable steps to fix" the problem. And, in any event, whether one has taken
all reasonable steps to resolve an issue is not the appropriate standard by which to evaluate
a claim for gross negligence. While the failure to pursue reasonable remedies may be
sufficient to support a claim for ordinary negligence, it is only the absence of"even slight
care or slight diligence" that rises to the degree of recklessness necessary to sustain this
cause of action. The Amended Complaint simply fails to set forth sufficient factual
allegations that satisfy the heightened standard required to sustain a gross negligence cause
of action, and this claim must be dismissed.
Therefore, Plaintiffs gross negligence cause of action is dismissed without
prejudice for failure to state a claim.
IV.
PlaintifPs Claims are Not Preempted by the Federal Clean Air Act
Defendant argues that even if Plaintiff has sufficiently stated New York common
law causes of action, those claims are preempted by the federal Clean Air Act("CAA").
(Dkt. 13-1 at 25-28). While the Second Circuit has not yet addressed this issue, the Third
Circuit and the Sixth Circuit have both concluded that a source state's common law is not
-21 -
preempted by the CAA. See Merrick v. Diageo Ams. Supply, Inc., 805 F,3d 685,686(6th
Cir,2015)
("This interlocutory appeal concerns whether the federal Clean Air Act preempts
common law claims brought against an emitter based on the law ofthe state in which the
emitter operates. The Clean Air Act's text makes clear that the Act does not preempt such
claims. This conclusion is further supported by the Act's structure and history, together
with relevant Supreme Court precedents."); Bell v. Cheswick Generating Station, 734 F.3d
188, 189-90 (3d Cir. 2013)("On appeal, we are faced with a matter of first impression:
whether the Clean Air Act preempts state law tort claims brought by private property
owners against a source of pollution located within the state. Based on the plain language
of the Clean Air Act and controlling Supreme Court precedent, we conclude that such
source state common law actions are not preempted."). Furthermore,Defendant's reliance
upon the Fourth Circuit's decision in North Carolina, ex rel. Cooper v. Tenn. Valley Auth.,
615 F.3d 291 (4th Cir. 2010) is misplaced because Cooper involved the application of an
affected state's common law to regulate source-state pollution. For the following reasons,
this Court holds that the CAA does not preempt a source state's common law causes of
action that mandate the imposition of more stringent requirements respecting the regulation
of air pollution.
The CAA "has been referred to as a 'model of cooperative federalism.'" Black v.
George Weston Bakeries, /«c.. No.07-CV-853S,2008 WL 4911791,at *4(W.D.N.Y.Nov.
13, 2008)(quoting Ellis v. Gallatin Steel Co., 390 F.3d 461,467(6th Cir. 2004)). Indeed,
the CAA declares that "air pollution prevention ... and air pollution control at its source
is the primary responsibility of States and local governments." 42 U.S.C. § 7401(a)(3).
-22-
Accordingly, Congress enacted a "savings clause" permitting states to "adopt and enforce
regulations limiting the emission of pollutants to the extent that such regulations are more
stringent than the requirements of the Clean Air Act, subject to certain exceptions not
relevant here." Clean Air Mkts. Grp. v. Pataki, 194 F. Supp. 2d 147, 157(N.D.N.Y. 2002)
(footnote omitted), aff'd, 338 F.3d 82 (2d Cir. 2003); see generally 42 U.S.C. § 7416
(allowing states or their political subdivisions "to adopt or enforce (1) any standard or
limitation respecting emissions of air pollutants or(2)any requirement respecting control
or abatement of air pollution" so long as that standard or requirement is no less stringent
than any standards or requirements mandated by federal law).
In construing the CAA, courts have frequently referred to the federal Clean Water
Act("CWA") because "many provisions in the Clean Water Act—including the savings
clauses—were modeled on the Clean Air Act
" Merrick, 805 F.3d at 692;see Bell, 734
F.3d at 196 ("Ultimately, as commentators have recognized, there is little basis for
distinguishing the Clean Air Act from the Clean Water Act—^the two statutes feature nearly
identical savings clauses and employ similar 'cooperative federalism' structures."
(quotation omitted)); see generally Moran v. Vaccaro,684 F. Supp. 1201, 1204(S.D.N.Y.
1988)(noting that "[t]he citizen suit provision of the Clean Air Act contains the same
'alleged to be in violation' language as the Clean Water Act"); Friends of the Earth v.
Eastman Kodak Co., 656 F. Supp. 513, 515 n.l (W.D.N.Y.)("Because the Clean Water
Act section under which this action is brought is virtually identical to § 304 of the Clean
Air Act,there is no reason not to interpret it in the same manner."), aff'd, 834 F.2d 295(2d
Cir. 1987). The CWA's "savings clause" also permits "any State or political subdivision
-23-
thereof... to adopt or enforce (A) any standard or limitation respecting discharges of
pollutants, or(B)any requirement respecting control or abatement of pollution" that is no
less stringent than any applicable standard or requirement set forth under federal law. 33
U.S.C. § 1370. The similarities between these two statutes are notable because the
Supreme Court has already determined mlnt'lPaper Co. v. Ouellette,479 U.S.481 (1987),
whether state common law claims are preempted by the CWA.
In Ouellette, "the Court was asked to determine whether the Clean Water Act
preempted a Vermont common law nuisance suit filed in Vermont state court, where the
source of the alleged injury was located in New York." Bell, 734 F.3d at 194. In other
words, Ouellette involved a case oftransboundary pollution; the source ofthe effluent was
located in New York, but the pollution ended up on the Vermont-side ofLake Champlain.
479 U.S. at 483-84. Ultimately, the Supreme Court held that "the CWA precludes a court
from applying the law of an affected State against an out-of-state source" because "if
affected States were allowed to impose separate discharge standards on a single point
source, the inevitable result would be a serious interference with the achievement of the
'full purposes and objectives of Congress.'" Id. at 493-94 (quoting Hillsborough County
V. AutomatedMed. Labs., Inc., 471 U.S. 707, 712(1985)). For example,"[i]f aNew York
source were liable for violations of Vermont law, that law could effectively override both
the permit requirements and the policy choices made by the source State." Id. at 495. As
such, "[ajpplication of an affected State's law to an out-of-state source also would
undermine the important goals of efficiency and predictability in the permit system." Id.
at 496.
-24-
However,the Supreme Court reached a different conclusion regarding the common
law remedies recognized by a source State. See id. at 497("The saving clause specifically
preserves other state actions, and therefore nothing in the Act bars aggrieved individuals
from bringing a nuisance claim pursuant to the law of the source State.")- The Court
indicated that the CWA's savings clause permitted states "to impose higher standards on
their own point sources," and that "this authority may include the right to impose higher
common-law as well as higher statutory restrictions." Id.-, see Merrick, 805 F.3d at 690
("State courts are arms of the 'State,' and the common law standards they adopt are
requirement[s] respecting control or abatement of air pollution." (quotation marks
omitted)). The "application of the source State's law does not disturb the balance among
federal, source-state, and affected-state interests"; because "the Act specifically allows
source States to impose stricter standards, the imposition of source-state law does not
disrupt the regulatory partnership established by the permit system." Ouellette, 479 U.S.
at 498-99. While acknowledging that "New York nuisance law may impose separate
standards and thus create some tension with the permit system," Ouellette indicated that
this source-state rule "prevents a source from being subject to an indeterminate number of
potential regulations" because "a source only is required to look to a single additional
authority, whose rules should be relatively predictable." Id.
Since the CAA's savings clause permits States to "adopt or enforce . . . any
requirement respecting control or abatement of air pollution" that is no less stringent than
any required by federal law, see 42 U.S.C. § 7416 (emphasis added). Plaintiffs source-
state common law claims are not preempted by the CAA's comprehensive regulatory
-25-
program, see Ouellette, 479 U.S. at 497-99; see also Merrick, 805 F.3d at 690 ("An
expansive reading of'any requirement' is consistent, moreover, with the Court's historical
tendency to treat common law standards as 'requirements' for purposes of a variety of
statutes."); see generally Bates v. Dow Agrosciences LLC, 544 U.S. 431, 443 (2005)
(stating that "the term 'requirements' in § 136v(b)[of the Federal Insecticide, Fungicide,
and Rodenticide Act]reaches beyond positive enactments, such as statutes and regulations,
to embrace common-law duties").
Defendant argues that the assertion of common law claims and the imposition of
any corresponding injunctive relief would disrupt the regulatory framework set up by the
CAA and its permitting system. (Dkt. 13-1 at 26-27). In this respect. Defendant contends
that "if successful. Plaintiffs lawsuit could force Waste Management to engage in actions
that conflict with its permit" because Plaintiff"seeks injunctive relief above and beyond
what is already required under Waste Management's Title V permit." {Id. at 28; see Dkt.
4 at 11 (demanding "[i]njunctive relief outside of that which is required by Defendant's
Federal and State issued Air Permits")).
However, Ouellette's explanation as to why source-state common law claims do not
undermine the CWA's comprehensive regulatory framework applies with equal force to
Defendant's arguments in the CAA context. Defendant cites to one Northern District of
New York decision for the proposition that state law requirements are preempted where
the plaintiff "attempt[s] to require [the] defendant to conduct additional or different
remediation than [the] state agency require[s]." (Dkt. 13-1 at 28 (citing Bartlett v.
Honeywell Int'l, Inc., 260 F. Supp. 3d 231, 246 (N.D.N.Y. 2017))). However, Bartlett
-26-
involved the provisions of the federal Comprehensive Emergency Response,
Compensation and Liability Act ("CERCLA"), which pertains to a wholly different
environmental statutory scheme from that structured by either the CAA or the CWA. In
addition, the Bartlett plaintiffs sought to hold the defendant liable for actions "that were
consistent with the Consent Decree" entered between the defendant and the NYSDEC.
Bartlett, 260 F. Supp. 3d at 240. Had the defendant "engaged in any alternative remedial
measures," it "would have violated CERCLA § 122(e)(6)." Id. In other words,the Bartlett
court found the plaintiffs' claims were preempted because the plaintiffs were "attempting
to hold [the d]efendant liable for activities consistent with the Consent Decree on the theory
that[the d]efendant should have conducted additional remediation that would have violated
CERCLA § 122(e)(6)." Id. at 243. Bartlett is distinguishable because unlike § 122(e)(6)
of CERCLA, the CAA specifically preserves the States' authority to adopt and enforce
more stringent standards than those imposed by federal law.
Compare 42 U.S.C.
§ 9622(e)(6)("When either the President, or a potentially responsible party pursuant to an
administrative order or consent decree under this chapter, has initiated a remedial
investigation and feasibility study for a particular facility under this chapter, no potentially
responsible party may undertake any remedial action at thefacility unless such remedial
action has been authorized by the President."(emphasis added)), with 42 U.S.C. § 7416
(retaining the authority in any State or the political subdivisions thereof to "adopt or
enforce" emissions standards and limitations or "any requirement respecting control or
abatement of air pollution" so long as that standard or requirement is no less stringent than
any required by federal law).
-27-
Defendant also relies upon the Fourth Circuit's decision in North Carolina, ex rel.
Cooper V. Tenn. Valley Auth., 615 F.3d 291 (4th Cir. 2010). Like Ouellette, Cooper
involved transboundary pollution issues. North Carolina sought an injunction to require
the installation of pollution control devices in certain coal-fired power plants located in
Alabama and Tennessee, whose air emissions were blown eastward into North Carolina
and other states by prevailing winds. See id. at 296-97. And, as in Ouellette, the Fourth
Circuit also concluded that the affected state's common law was preempted by the CAA.
See id. at 308 ("The Supreme Court emphasized that only source state law, here that of
Alabama and Tennessee, could impose more stringent emission rates than those required
by federal law on plants located in those two jurisdictions. Yet exactly the opposite has
happened. North Carolina explicitly stated that it wanted out-of-state entities, including
[the Tennessee Valley Authority ("TVA")], to follow its state rules."(citation omitted)).'^
^
In dicta. Cooper suggests that"even ifthe district court actually applied source state
law from Alabama and Tennessee, it would be difficult to uphold the injunctions because
TVA's electricity-generating operations are expressly permitted by the states in which they
are located." 615 F.3d at 309. The Fourth Circuit stated that no public nuisance action
exists under either Tennessee or Alabama common law for conduct that is authorized or
permitted by law. Id. at 309-10. Under New York law, "[i]t is settled that an otherwise
lawful business, even one operating in conformity with relevant statutory requirements,
may be enjoined when it creates or contributes to a public nuisance because ofthe manner
or circumstances in which it operates." City ofNew York v. Beretta U.S.A. Corp., 315 F.
Supp. 2d 256, 280(E.D.N.Y. 2004);see AcuSport, Inc., 271 F. Supp. 2d at 484-85 (same).
While an exception to this New York rule exists "where the specific conduct at issue is
'fully authorized by statute, ordinance or administrative regulation,"'Beretta U.S.C. Corp.,
315 F. Supp. 2d at 281 (quoting Restatement(Second) of Torts § 821B, cmt. f), since the
NYSDEC has issued a "Notice of Violation" and communicated with Defendant regarding
odor abatement actions there is at least an unresolved question of fact as to whether this
exception would apply in this case. In any event, a careful review of Cooper indicates that
it is not in tension with the holdings in Merrick, Bell, or Ouellette. See Cooper,615 F.3d
-28-
Accordingly, the result in Cooper is actually consistent with this Court's application of
Ouellette to the CAA context at issue in this matter.
Therefore, in light of the CAA's statutory text, the holdings in Merrick and Bell,
and reference to the analogous provisions of the CWA and the Supreme Court's decision
in Ouellette,this Court concludes that Plaintiffs source-state common law causes ofaction
are not preempted by the CAA.
V.
The Doctrine of Primary Jurisdiction
Defendant also argues that the doctrine of primary jurisdiction requires the Court to
dismiss or stay Plaintiffs request for injunctive relief because the NYSDEC "is already
directing and supervising an ongoing action plan related to the odors." (Dkt. 13-1 at 28;
see id. at 28-30). At oral argument, the parties indicated that a community organization
known as Fresh Air for the Eastside ("FAFES"),^ which is composed of at least some of
the putative class members, has filed a petition with the NYSDEC to modify Defendant's
permit obligations. However, subsequent to the oral argument, the NYSDEC issued its
response to FAFES' petition. See High Acres Landfill, Dep't of Envtl. Conservation,
https://www.dec.nv.gov/chemical/113037.html (last visited Mar. 25, 2019). Because the
at 306("There is no question that the law ofthe states where emissions sources are located,
in this case Alabama and Tennessee, applies in an interstate nuisance dispute. The Supreme
Court's decision in Ouellette is explicit: a 'court must apply the law ofthe State in which
the point source is located.' While Ouellette involved a nuisance suit against a source
regulated under the Clean Water Act, all parties agree its holding is equally applicable to
the Clean Air Act."(citation omitted)(emphasis added)).
^
FAFES subsequently filed an action concerning the Landfill's emissions that is
currently pending before the undersigned. See Fresh Airfor the Eastside, Inc. v. Waste
Mgmt. ofN.Y., LLC,Case No. 6:18-cv-06588, Dkt. 1 (W.D.N.Y. Aug. 14, 2018).
-29-
NYSDEC has issued its response, several of Defendant's arguments in support of the
application of this doctrine appear to be rendered inapplicable. See, e.g., In re Kind LLC
"Healthy & All Natural" Litig., No. 15-MC-2645 (WHP), 2019 WL 542834, at *2
(S.D.N.Y. Feb. 11, 2019)("This Court also stayed the 'non-GMO' claims pursuant to the
primary jurisdiction doctrine pending [the United States Department of Agriculture
("USDA")] rulemaking. And . . . the USDA promulgated 'non-GMO' rules .. . on
December 21, 2018, which [became] effective February 19, 2019. Accordingly, there is
no longer a basis for staying the 'non-GMO' claims." (citations omitted)); Bhanusali v.
Orange Reg'l Med. Ctr., No. lO-CV-6694 CS, 2013 WL 4828657, at *3 (S.D.N.Y. Aug.
12, 2013)("Because the [Public Health and Health Planning Council of the New York
State Department of Public Health] made its ruling on March 2, 2012, the doctrine of
primary jurisdiction no longer presents a bar to consideration of the merits of[pjlaintiffs'
antitrust claims."(citation omitted)(footnote omitted)), aff'd in part, vacated in part, 572
F. App'x 62(2d Cir. 2014); Geo Grp., Inc. v. Cmty. First Servs., Inc., No. ll-CV-1711
CBA,2012 WL 1077846, at *10(E.D.N.Y. Mar. 30, 2012)("[Djefendants moved in the
alternative for 'stay or dismissal pursuant to the doctrine of primary jurisdiction pending
the resolution of[the plaintiff]'s bid protest.' As explained above, there is no longer any
other pending legal action arising out ofthis dispute. Accordingly, stay or dismissal on this
ground is not appropriate."(citation omitted)).
While it appears the NYSDEC has denied each and every one of FAFES' requests
to modify Defendant's permit requirements, the NYSDEC's response is a bit more
nuanced. The NYSDEC has also imposed additional obligations on Defendant that the
-30-
agency anticipates will become enforceable permit requirements upon approval, and at
least one of the FAFES' requests was denied "at this time, subject to a review" of an
additional waste study. As such, some further action or assessment may still be required.
The Court acknowledges that no briefing has been submitted regarding what impact the
NYSDEC's response has on the Court's primary jurisdiction analysis. Nonetheless, the
Court declines to invoke the doctrine of primary jurisdiction for the reasons that follow.
"The doctrine of primary jurisdiction 'comes into play whenever enforcement of[a]
claim requires the resolution of issues which, under a regulatory scheme, have been placed
within the special competence ofan administrative body.'" Town ofNew Windsor v. Avery
Dennison Corp., No. lO-CV-8611 (CS), 2012 WL 677971, at *8(S.D.N.Y. Mar. 1, 2012)
(quoting Johnson v. Nyack Hosp., 964 F.2d 116, 122-23 (2d Cir. 1992)). This doctrine
serves two primary purposes:"the desire for uniformity and the reliance on administrative
expertise. Thus,in determining whether to apply the primary jurisdiction doctrine,[courts]
must examine whether doing so would serve either ofthese purposes." Tassy v. Brunswick
Hosp. Ctr., Inc., 296 F.3d 65,68(2d Cir. 2002)(footnote omitted);see also Ellis v. Tribune
Television Co., 443 F.3d 71,81 (2d Cir. 2006)("The doctrine's central aim is to allocate
initial decisionmaking responsibility between courts and agencies and to ensure that they
'do not work at cross-purposes.'" (quoting Fulton Cogeneration Assocs. v. Niagara
Mohawk Power Corp., 84 F.3d 91,97(2d Cir. 1996))).
"Whether there should be judicial forbearance hinges therefore on the authority
Congress delegated to the agency in the legislative scheme." Golden HillPaugussett Tribe
ofIndians v. Weicker, 39 F.3d 51, 59(2d Cir. 1994); see Gen. Elec. Co. v. MV Nedlloyd,
-31 -
817 F.2d 1022, 1026 (2d Cir. 1987)("[W]hen Congress has entrusted the regulation of
certain subject matter under a statute to an administrative agency, it is often
counterproductive for a court to act upon that subject matter without the benefit ofknowing
what the agency has to offer."). "Recourse to the doctrine of primary jurisdiction is thus
appropriate 'whenever enforcement of the claim requires the resolution of issues which,
under a regulatory scheme, have been placed within the special competence of an
administrative body.'" Ellis, 443 F.3d at 81 (quoting United States v. W. Pac. R. Co., 352
U.S. 59, 64(1956)).
Four factors must be weighed in determining whether the doctrine of primary
jurisdiction should be invoked:
(1)
whether the question at issue is within the conventional experience of
judges or whether it involves technical or policy considerations within
the agency's particular field of expertise;
(2)
whether the question at issue is particularly within the agency's
discretion;
(3)
whether there exists a substantial danger of inconsistent rulings; and
(4)
whether a prior application to the agency has been made.
Nat'l Comma'ns Ass'n, Inc. v. Am. Tel. & Tel. Co., 46 F.3d 220, 222(2d Cir. 1995). In a
post-hearing submission. Defendant points to the analysis of these four factors in Read v.
Corning Inc., 351 F. Supp. 3d 342,2018 WL 6710925(W.D.N.Y. 2018), a recent decision
that Defendant believes supports its position that the doctrine of primary jurisdiction is
applicable under the circumstances of this case (Dkt. 31). Read involved an action by
property owners who asserted New York common law and CERCLA claims for damages
and "response costs," respectively, for the alleged contamination of their property by
-32-
"hazardous substances." Read, 2018 WL 6710925, at *1. However, the application of
these four factors to the facts presented indicate that neither a stay nor a dismissal of
Plaintiffs injunctive relief is appropriate, and that Read is inapposite.
Here, the first factor weighs against the application of the primary jurisdiction
doctrine because "Plaintiffs lawsuit is based on common law causes of action commonly
adjudicated by courts, and will not require extensive interpretation of agency regulations."
Avery Dennison Corp., 2012 WL 677971, at *9;see Sullivan v. Saint-Gobain Performance
Plastics Corp., 226 F. Supp. 3d 288, 297 (D. Vt. 2016)("The questions raised by [the
pjlaintiffs' state-law tort claims are all within the conventional expertise of judges.");
Martin v. Shell Oil Co., 198 F.R.D. 580, 585(D. Conn. 2000)("Although the resolution of
the issues in this case undoubtedly will require some technical analysis, the claims—for
example, whether Shell breached a duty to the plaintiffs, whether Shell trespassed or
created a nuisance on the plaintiffs' property, whether Shell defrauded the plaintiffs, or
whether Shell was willful, wanton or reckless in its actions toward the plaintiffs—are all
of a type commonly adjudicated by the courts."); Luckey v. Baxter Healthcare Corp., No.
95 C 509, 1996 WL 242977, at *6 (N.D. 111. May 9, 1996)("[Ajlthough the case will
necessarily involve technical questions concerning the quality ofplasma testing procedures
and plasma products,this case...is comparable to myriad tort actions that regularly require
this Court to resolve complex technical issues."). "While NYSDEC of course has greater
technical expertise than the Court in environmental matters,... such expertise will [not]
be required to determine liability in this case, and [this Court] decline[s] to defer to
NYSDEC simply because this case touches upon technical environmental issues." Avery
-33-
Dennison Corp., 2012 WL 677971, at *9 (citations omitted); see Martin, 198 F,R.D. at
585-86 ("Although the [Connecticut Department of Environmental Protection (the
"CTDEP")] undoubtedly possesses expertise in the area of environmental pollution, the
defendant has not persuaded this court that the CTDEP's expertise is essential in
adjudicating the matters at hand.").
In contrast to the claims alleged in this case, the Read plaintiffs not only asserted
common law causes of action but also requested relief pursuant to CERCLA, a highly
technical environmental statute that Congress enacted "in response to the serious
environmental and health risks posed by industrial pollution," and which was intended "to
promote the timely cleanup of hazardous waste sites and to ensure that the costs of such
cleanup efforts were borne by those responsible for the contamination." Burlington N. &
Santa Fe Ry. Co. v. United States, 556 U.S. 599, 602 (2009) (quotation omitted).
Considering that the NYSDEC is "responsible ... for inactive hazardous waste disposal
site remedial programs" in New York State, N.Y. Envtl. Conserv. Law § 27-1313(l)(a), it
is not surprising that the Read court found those issues to involve "technical or policy
considerations within the agency's particular field of expertise," Read,2018 WL 6710925,
at *7. Therefore, the first factor weighs against the application of primary jurisdiction.
With respect to the second factor, in evaluating whether the issues presented fall
"particularly within the agency's discretion," the Court recognizes that the NYSDEC has
been tasked with controlling air pollution throughout New York State. See N.Y. Envtl.
Conserv. Law § 19-0301. Moreover, the United States Environmental Protection Agency
"has delegated to [NYSjDEC the authority to issue and modify clean air permits under
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Title V ofthe Clean Air Act." Glob. Cos. LLC v. N.Y. State Dep't ofEnvtl. Conservation,
155 A.D.Sd 93,97(3d Dep't 2017), leave to appeal denied, 30 N.Y.3d 913(2018);see 42
U.S.C. § 7661a(d)(l); N.Y. Envtl. Conserv. Law § 19-0311(1).
Ensuring compliance with state and federal air pollution requirements falls squarely
within the discretion ofthe NYSDEC. Indeed, it is NYSDEC's responsibility to "carry out
the environmental policy of the state," see N.Y. Envtl. Conserv. Law § 3-0301(1), which
requires that state agency to, among other things,"conserve,improve and protect its natural
resources and environment and to prevent, abate and control water, land and air pollution,
in order to enhance the health, safety and welfare ofthe people ofthe state and their overall
economic and social well being," id. § 1-0101(1). However, the NYSDEC is not
responsible for vindicating private property rights or providing remedies for landowner
disputes. See Lombardozzi v. Taminco US Inc., No. 3:15CV533/MCR/EMT, 2016 WL
4483856, at *2 (N.D. Fla. Aug. 24, 2016)(noting that while the Florida Department of
Environmental Protection "is charged with enforcing Florida's environmental statutes," the
agency "has no authority to vindicate individual property rights such as those asserted by
[the pjlaintiffs in this case"); Martin, 198 F.R.D. at 587 ("[T]he CTDEP is charged with
protecting the environment for the public's health and safety. It does not have the purpose
of vindicating individual property rights such as those asserted by the plaintiffs in this
case."); see also Massa v. Peabody Coal Co., 698 F. Supp. 1446, 1451 (S.D. Ind. 1988)
(noting that the plaintiffs common law claims "suggest that even if[the defendant] is in
compliance with the agency standards," it may still be acting "in violation of other
-35
standards arising out of the common law, wholly independently from the agency
regulations").
Plaintiffs Amended Complaint does not clearly set forth exactly what type of
injunctive relief is contemplated by this action. The operative pleading merely requests
injunctive relief"outside ofthat which is required by Defendant's Federal and State issued
Air Permits." (Dkt. 4 at 11). At oral argument, Plaintiffs counsel indicated that Plaintiff
generally requests the Landfill odors cease to pollute Plaintiffs and the putative class
members' properties, but counsel declined to provide a more specific response until the
case proceeded past discovery. Although Plaintiff is not preempted from asserting a New
York common law claim that requests injunctive relief more stringent than that required
by Defendant's CAA permit and federal law, any injunctive reliefthat might interfere with
Defendant's compliance with those federal requirements could very well be precluded.
Nonetheless, the mere possibility that a common law standard may require different
injunctive relief than that currently prescribed by the CAA does not by itself place this
issue within the NYSDEC's exclusive domain. See Massa, 698 F. Supp. at 1451
("Although the possibility exists that some ofPeabody's blasting and mining conduct may
be subject to revision if these common law standards are breached, those changes would
not properly fall within the exclusive authority of the Indiana regulatory agencies.").
Therefore, given the limited definition of the injunctive relief sought by Plaintiff, the
second primary jurisdiction factor does not weigh in favor of or against the application of
the primary jurisdiction doctrine in this case.
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In turning to the third primaryjurisdiction factor, the Court is unpersuaded that there
is a "substantial danger of inconsistent rulings" between this Court and the NYSDEC.
Whether or not Defendant is in compliance with its regulatory responsibilities is not
necessarily dispositive of whether Plaintiff and the putative class members are suffering
property damage or are otherwise being deprived oftheir right to the use and enjoyment of
their property. See generally Avery Dennison Corp., 2012 WL 677971, at *10 ("[W^hile
it is conceivable that NYSDEC factual findings may help to inform this Court, 1 do not
believe at this point that any are necessary for me to make legal rulings, nor will any such
ruling necessarily conflict with any factual finding."); Martin, 198 F.R.D. at 586 ("The
court is unaware, for example, of any minimum amount of a foreign substance that must
be found on a plaintiffs property in order for that plaintiff to state a claim for trespass. A
trespass is a trespass, and no ruling as to whether the defendants trespassed on the plaintiffs'
property will necessarily conflict with any finding ofthe state agency."). Furthermore,that
NYSDEC has rejected FAFES' requests to modify Defendant's permit obligations,
presumably because many ofthe agency's concerns have been addressed to its satisfaction,
does not preclude the imposition of additional abatement measures. See generally
Interfaith Cmty. Org. Inc. v. PPG Indus., Inc., 702 F. Supp. 2d 295, 312 (D.N.J. 2010)
("The fact that [the defendant] may be subject to a more stringent remediation standard
than it is under the Consent Judgment is not a reason to invoke the primary jurisdiction
doctrine."); Mame People's All. v. Holtrachem Mfg. Co., No. CIV. 00-69-B-C, 2001 WL
1602046, at *8(D. Me. Dec. 14, 2001)("Extra burden is not what the doctrine is meant to
37-
circumvent; additional obligation is not incompatible with nor does it undermine the
agency-driven process.")-
Moreover, Plaintiffs claims are not based upon the CAA or the permits issued to
Defendant. The federal requirements set forth by the CAA establish a regulatory floor,
rather than a ceiling, upon which a source state may impose more stringent requirements
to abate the emission of air pollution. Defendant takes the position that an award of any
injunctive relief would be inconsistent with the NYSDEC's resolution ofFAFES'petition.
This is simply not so. That Plaintiffseeks injunctive reliefdifferent—i.e., more stringent—
than that required by Defendant's permit requirements does not mean that such relief will
necessarily be inconsistent with Defendant's federal obligations.
Read provides no additional support for Defendant's position. In Read, the
NYSDEC issued a "Final Decision Document" that "set[] forth a remedy for the subject
area." 2018 WL 6710925, at *2. Subsequently, the NYSDEC entered into an "Order on
Consent and Administrative Settlement" that required the remedial activities set forth in
the Final Decision Document to be implemented by the defendant. Id. Because the Read
plaintiffs challenged the sufficiency ofthis remedy,the court determined that the defendant
could find "itself whipsawed between two different remedies ordered by two different
entities, each with jurisdiction over the matter." Id. at *7. Again, since the regulatory
framework set forth by the CAA is different from that established under CERCLA,Read
is inapposite. Unlike CERCLA,the CAA specifically anticipates that source-state common
law rules may impose more stringent regulatory requirements than those mandated by
federal law. See generally Bartlett, 260 F. Supp. 3d at 240(noting that a party that engages
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in "alternative remedial measures" from those set forth in a duly issued consent decree
between that party and the NYSDEC would violate CERCLA). Indeed, that is the precise
argument the court rejected in Read. See Read,2018 WL 6710925, at *7("They want the
Court to order a literally more extensive remedy. At oral argument, plaintiffs' attorney
expressly stated that in plaintiffs' view, the remedy 'should be more' than what was
approved by the[NYSjDEC."). Therefore,the third primaryjurisdiction factor also weighs
against the application of this doctrine.
The last primary jurisdiction factor requires the Court to determine "whether a prior
application to the agency has been made." Plaintiff seeks "[ijnjunctive relief outside of
that which is required by Defendant's Federal and State issued Air Permits." (Dkt. 1 at
10). Since FAFES' petition sought to modify Defendant's permit obligations, a "prior
application" to obtain relief beyond that currently required by those permits has arguably
already been made. Nevertheless, construing FAFES' petition as such does not warrant
the application ofthe doctrine of primary jurisdiction. Whereas the Read court determined
that recourse through the courts would serve no purpose after the NYSDEC "ha[d] actually
approved a specific remedy," Read, 2018 WL 6710925, at *7 ("Late-in-the-day meddling
by this Court would serve little if any useful purpose."), the NYSDEC's resolution of
FAFES' petition does not prevent more stringent common law requirements from being
imposed upon Defendant's operation of the Landfill, see Merrick, 805 F.3d at 690-91
(noting that "the Supreme Court has interpreted the word 'State' in the Clean Water Act
states' rights savings clause...to cover state courts and the common law rules they shape,"
and concluding that "[sjtate common law standards are . . . 'requirements' adopted by
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'States'" in the context of the CAA as well (citations omitted)). Furthermore, the Court
now has the benefit of the NYSDEC's response to that "prior application" in considering
Plaintiffs request for injunctive relief. At this time, it does not appear that FAFES'petition
or the NYSDEC's response will impede the Court's ability to craft an appropriate
injunctive remedy should Plaintiffultimately prevail in this matter. Additionally,"Plaintiff
seeks damages here, and 'courts generally do not defer jurisdiction where plaintiffs seek
damages for injuries to their property or person.'" Avery Dennison Corp., 2012 WL
677971, at *10 (quoting In re Methyl Tertiary Butyl Ether ("MTBE")Prod. Liab. Litig.,
175 F. Supp. 2d 593,618(S.D.N.Y. 2001)(applying this principle in declining to dismiss
the plaintiffs claims requesting both injunctive relief and damages));see also Martin, 198
F.R.D. at 587(finding that "an application to the CTDEP would not necessarily result in a
vindication ofthe plaintiffs' rights," in part because the CTDEP "does not have the purpose
of vindicating individual property rights such as those asserted by the plaintiffs in this
case"). Therefore, the fourth factor also weighs against the application of the primary
jurisdiction doctrine.
Finally, in addition to the four factors set forth above,"[cjourts must also weigh 'the
advantages ofapplying the doctrine against the potential costs resulting from complications
and delay in the administrative proceedings.'" Avery Dennison Corp., 2012 WL 677971,
at *9(quoting Nat7 Commc'ns Ass'n, Inc., 46 F.3d at 222). There is little if any benefit to
be had from staying or striking Plaintiffs requested injunctive relief at this time. It is not
entirely clear exactly what type of injunction Plaintiff seeks and how that remedy
juxtaposes with the CAA's requirements. As Defendant's counsel acknowledged at oral
-40-
argument, the NYSDEC has pursued no formal enforcement actions, outside its issuance
of the initial Notice of Violation,^ and at least one abatement action is apparently still
outstanding. For these reasons, any advantage derived from the primary jurisdiction
doctrine does not outweigh the potential for unnecessary delay that could result from its
application to this case.
Based upon the foregoing, the Court declines to apply the doctrine of primary
jurisdiction to stay or strike the request for injunctive relief in the Amended Complaint.
VI.
Political Question Doctrine
Lastly, Defendant argues that Plaintiffs state law claims raise a political question
that is not justiciable before this Court. (Dkt. 13-1 at 30-32). "The political question
doctrine calls for a careful and delicate analysis into whether a 'matter has been committed
by the Constitution to another branch of government or whether the action of that branch
exceeds whatever authority has been committed.'" In re MTBEProd. Liab. Litig., 438 F.
Supp. 2d 291, 295 (S.D.N.Y. 2006)(quoting Baker v. Carr, 369 U.S. 186, 211 (1962)).
"The Judiciary is particularly ill suited to make such decisions, as courts are fundamentally
underequipped to formulate national policies or develop standards for matters not legal in
^
On February 2, 2018, the NYSDEC issued a Notice of Violation to Defendant,
detailing various conditions and actions that the agency deemed necessary for Defendant
to return to a state of regulatory compliance, and the NYSDEC continued to communicate
with Defendant regarding the status of these emissions for a number
of months. See High Acres Landfill, Dep't of Envtl. Conservation,
https://www.dec.nv.gOv/chemical/l 13037.html (last visited Mar. 25, 2019). Nonetheless,
the Notice of Violation is not an enforceable order. See N.Y. Envtl. Conserv. Law § 19-
0505; cf. Collins v. Olin Corp., 418 F. Supp. 2d 34, 46(D. Conn. 2006)("[Bjecause the
[CTjDEP is actively overseeing the implementation of the consent order, the doctrine of
primary jurisdiction counsels in favor of dismissal.").
-41 -
nature." Japan Whaling Ass'n v. Am. Cetacean Soc., 478 U.S. 221, 230(1986)(quotation
omitted). Political questions are those that "lie beyond the competence and proper
institutional role ofthe federal courts." Belgrade v. Sidex Int7Furniture Corp.,2 F. Supp.
2d407,415 (S.D.N.Y. 1998).
The Supreme Court has set forth six factors to evaluate in determining whether an
issue is a nonjusticiable political question;
[1] a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or [2] a lack ofjudicially discoverable and
manageable standards for resolving it; or [3] the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court's undertaking independent
resolution without expressing lack ofthe respect due coordinate branches of
government;or[5]an unusual need for unquestioning adherence to apolitical
decision already made; or [6] the potentiality of embarrassment from
multifarious pronouncements by various departments on one question.
Baker, 369 U.S. at 217; see Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004)(stating that
these are "six independent tests for the existence ofa political question" and that they "are
probably listed in descending order of both importance and certainty").
Defendant has failed to articulate how any ofthese factors demonstrate the existence
ofa political question in this case. The Third Circuit directly addressed a similar argument
in Bell, where the court rejected the contention that the common law claims at issue were
barred by the CAA under the political question doctrine. The Bell court explained that
"[n]o court has ever held that such a constitutional commitment of authority regarding the
redress of individual property rights for pollution exists in the legislative branch. Indeed,
if such a commitment did exist, the Supreme Court would not have decided Ouellette in
-42
the first place." Bell, 734 F.3d at 198. This rationale applies with equal force to the facts
presented here.
Furthermore, Defendant's case citations are inapposite. Defendant primarily relies
upon past attempts to combat global climate change through common law remedies. See
Am. Elec. Power Co. v. Connecticut, 564 U.S. 410,426(2011)("The critical point is that
Congress delegated to EPA the decision whether and how to regulate carbon-dioxide
emissions from power plants; the delegation is what displaces federal common law.
Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the
conclusion of its ongoing § 7411 rulemaking, the federal courts would have no warrant to
employ the federal common law of nuisance to upset the agency's expert determination.");
Comer v. Murphy Oil USA,Inc., 839 F. Supp. 2d 849,864(S.D. Miss. 2012)("It is unclear
how this Court or any jury, regardless of its level of sophistication, could determine
whether the defendants' emissions unreasonably endanger the environment or the public
without making policy determinations that weigh the harm caused by the defendants'
actions against the benefits ofthe products they produce. Our country, this Court, and even
the plaintiffs themselves rely on the products the defendants produce."), affd, 718 F.3d
460 (5th Cir. 2013). The regulation of greenhouse gases is a complex issue involving
numerous policy decisions, including national questions of energy production and
transportation infrastructure as well as personal choices of consumption. The blunt
instruments of traditional common law may be inadequately refined to address such broad
and pervasive issues in modem society. However, determining whether a landfill operator
is liable for property damages arising from the emission of noxious odors is not an issue
-43-
committed to one of the coordinate political branches; rather, it falls well within the
traditional competency ofthe Judiciary to adjudicate.
Therefore, the Court rejects Defendant's assertion ofthe political question doctrine.
VII.
Request for Leave to Amend
Finally, in the last sentence of Plaintiffs opposition papers, he states that "should
the Court grant any portion of Defendant's motion. Plaintiff respectively requests leave to
amend his complaint." (Dkt. 14 at 15). Plaintiff does not explain why leave to amend is
warranted or how any pleading defects would be cured.
Plaintiffs cursory request is procedurally defective under the Local Rules of Civil
Procedure. See Wi3, Inc. v. Actiontec Elecs., 71 F. Supp. 3d 358, 363 (W.D.N.Y. 2014)
(finding request for leave to amend defective for failure to comply with Local Rules of
Civil Procedure); see also Food Holdings Ltd. v. Bank ofAm. Corp., 423 F. App'x 73, 76
(2d Cir. 2011)(finding district court did not abuse its discretion in denying leave to amend
complaint when request to amend was made "on the final page of their brief in opposition
to defendants' motion to dismiss, in boilerplate language and without any explanation as
to why leave to amend was warranted" and collecting cases). Local Rule 15(a) provides
that "[a] movant seeking to amend or supplement a pleading must attach an unsigned copy
of the proposed amended pleading as an exhibit to the motion," and Local Rule 15(b)
requires parties represented by counsel to identify the proposed amendments "through the
use of a word processing 'redline' function or other similar markings. .. ." L.R. Civ. P.
15(a),(b). Because Plaintiff has failed to comply with the Local Rules,the Court exercises
its discretion in denying this "cursory or boilerplate request[ ]. . . made solely in a
-44-
memorandum in opposition to a motion to dismiss." Malin v. XL Capital, Ltd., 312 F,
App'x 400,402(2d Cir. 2009)(citation omitted). IfPlaintiff wishes to seek leave to amend
his Amended Complaint, he should do so through a procedurally-compliant motion.
CONCLUSION
For the foregoing reasons. Defendant's motion to dismiss(Dkt. 13)is granted to the
extent that Plaintiffs nuisance and gross negligence causes ofaction are dismissed without
prejudice for failure to state a claim, but it is otherwise denied.
SO ORDERED.
mzX^TH ^:^WOLFORD
Unile(PStates District Judge
Dated:
March 25, 2019
Rochester, New York
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