Nguyen v. City of Cleveland Ohio et al
Filing
71
Order granting Defendant's Second Motion for Summary Judgment (Related Doc # 65 ). Signed by Judge Solomon Oliver, Jr on 3/15/2016.(D,M)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
PRAM NGUYEN, Ex Rel. United States,
Plaintiff
v.
CITY OF CLEVELAND, OHIO,
Defendant
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Case No.: 1:09 CV 452
JUDGE SOLOMON OLIVER, JR.
ORDER
Currently pending before the court in the above-captioned case is Defendant City of
Cleveland, Ohio’s (“Defendant” or “City”) Second Motion for Summary Judgment. (Def.’s Second
Mot. Summ. J., ECF No. 65.) Plaintiff Pram Nguyen (“Plaintiff” or “Nguyen”) has filed an
Opposition (Pl.’s Opp’n, ECF No. 69), to which the City filed a Reply (Def.’s Reply, ECF No. 70).
For the reasons set forth below, the court grants Defendant’s Second Motion for Summary
Judgment. (Def.’s Second Mot. Summ. J., ECF No. 65.)
I. BACKGROUND
A. Factual and Procedural History
For over a decade, Plaintiff has relentlessly pursued claims against the City for alleged
violations of environment laws at Cleveland Hopkins International Airport (“CHIA”). Litigation
began in 2000 when Plaintiff filed a qui tam action, United States ex rel Pram Nguyen v. City of
Cleveland, 1:00 CV 208 (N.D. Ohio) (“Nguyen I”), under the False Claims Act (“FCA”) against
seventy defendants, including the City, who operate airports across the United States. He alleged
the airports had fraudulently accepted federal funds by falsely certifying compliance with
environmental laws, including the Clean Air Act (“CAA” or “Act”), in order to meet conditions for
receiving those funds. The alleged violations concerned the airports’ use of aircraft deicing and antiicing fluids (collectively, “ADF”).
The essence of Nguyen’s claim was that the City wrongfully calculated its ADF-related
emissions by using Federal Aviation Administration (“FAA”) guidelines instead of the purportedly
more accurate testing and calculation methods he had recommended. All Defendants were
eventually dismissed, except the City and one other municipal entity, against whom Nguyen sought
damages, fees, and injunctive relief. The court granted summary judgment in favor of Defendant and
dismissed Plaintiff’s suit with prejudice in September 2005. U.S. ex rel Nguyen v. City ofCleveland,
1:00 CV 208, 2005 WL 2416925, at *12 (N.D. Ohio Sept.. 30, 2005). The court determined that: (1)
it was proper for the City to rely on the FAA for their emissions factor data; and thus, (2) there was
no FCA violation because Defendant did not “knowingly” misrepresent compliance with federal
environmental laws. However, the court made no findings as to the alleged violations of the
underlying environmental laws.
Plaintiff filed a notice of appeal in October 2005. However, prior to filing the appeal,
Plaintiff filed a Chapter 7 bankruptcy petition. See In re Nguyen, No. 05-95756 (Bankr. N.D. Ohio
Oct. 16, 2005). Thus, Plaintiff’s Nguyen I appeal and claims became a part of the bankruptcy estate.
The bankruptcy trustee ultimately settled Nguyen I with Defendant for a total of $10,100. The
settlement agreement included a Release and Covenant Not to Sue.
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In 2009, Plaintiff filed the present suit under both the FCA and the CAA. In his Amended
Complaint, he alleged violations regarding false certification of compliance with environmental laws
similar to those alleged in Nguyen I, but expands his focus beyond ADF activity. (First Am. Compl.
¶¶ 25-35, ECF No. 16.) In addition to ADF-related allegations, covering the period from 2003 to
2008, he alleged that emissions from other sources, namely the refueling of airplanes, use of ground
support equipment and auxiliary power units, roadway operations, construction, and the daily
taxiing, taking off, and landing of airplanes (collectively, “non-ADF activities”), violate the CAA
and other environmental laws. (Id. ¶¶ 36-45.)
On July 7, 2010, Defendant filed a Motion to Dismiss (ECF No. 25) for failure to state a
claim, arguing that issue preclusion bars Plaintiff’s FCA claims and res judicata bars all of his
claims. The court found that Plaintiff’s ADF-related FCA claim was barred by issue preclusion,
while his non-ADF-related FCA claim and ADF-related CAA claim were barred by res judicata.
The court denied Defendant’s Motion as to Plaintiff’s non-ADF-related CAA claim. (ECF No. 31.)
However, after reviewing Defendant’s Motion for Partial Reconsideration (ECF No. 33), the court
found that the non-ADF related CAA claim should also have been brought in Nguyen I and was
therefore barred by res judicata. (ECF No. 37.)
Plaintiff then filed a notice of appeal on October 24, 2012. (ECF No. 38.) The United States
Court of Appeals for the Sixth Circuit (“Sixth Circuit”) affirmed this court’s decision regarding
Plaintiff’s FCA claims, but reversed as to Plaintiff’s CAA claims, finding that:
The conduct that forms the basis for Plaintiff’s Clean Air Act claim is alleged to have
occurred continuously until he filed his complaint in 2009, well after Nguyen I was
decided in 2005. Therefore, because Plaintiff has asserted causes of action that arose
after the decision in Nguyen I, the doctrine of claim preclusion does not bar the
consideration of those claims.
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(ECF No. 42, at 13.) Additionally, the Sixth Circuit noted that, because “no court has ever evaluated
Defendants’ conduct under the Clean Air Act,” issue preclusion also does not preclude Plaintiff from
litigating that issue. Thus, the Sixth Circuit remanded Plaintiff’s CAA claims for further
consideration by this court.
Defendant then filed its first Motion for Summary Judgment on April 23, 2014, arguing that
“[t]he Release and Covenant Not to Sue bars all of the claims remanded to this Court by the Sixth
Circuit.” (Def.’s First Mot. Summ. J. 3, ECF No. 46-1.) The court ultimately determined that the
Release and Covenant Not to Sue was only enforceable as it related to conduct that occurred from
1996 until Plaintiff filed his bankruptcy petition on October 16, 2005. (ECF No. 51, at 12. )
Accordingly, the only claims presently before this court are Plaintiff’s CAA claims alleging
violations occurring after October 2005.
B. Plaintiff’s Claims under the CAA
Nguyen brought this action against the City pursuant to the Citizen Suits provision of the
CAA, 42 U.S.C. § 7604. (First Am. Compl. ¶ 47, ECF No. 16.) This provision states, “any person
may commence a civil action on his own behalf . . . against any person . . . who is alleged to have
violated (if there is evidence that the alleged violation has been repeated) or to be in violation of []
an emission standard or limitation under this chapter . . . .” 42 U.S.C. § 7604(a)(1). Plaintiff alleges
Defendant violated an “emission standard or limitation” when it failed to acquire a permit under
Title V of the CAA, despite CHIA’s emissions of several regulated pollutants exceeding the relevant
threshold. (First Am. Compl. ¶¶ 47-48.) “Through his own calculations,” Nguyen has determined
that the emissions from CHIA’s ADF and non-ADF activities far exceed the threshold triggering
the permitting requirements of the CAA. (Id. ¶¶ 35, 38-39.) Despite Plaintiff’s attempts to inform
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Defendant of his calculations, CHIA continues to operate without the required permit. (Id. ¶¶ 43,
51.)
Nguyen also claims that the City violated provisions of the Ohio State Implementation Plan
by: 1) failing to report the use of toxic chemicals at CHIA to the Ohio Environmental Protection
Agency, as required by Ohio Administrative Code (“OAC”) 3745-100; and 2) failing to adopt a
Transportation Improvement Plan to reduce the amount of regulated pollutants at CHIA, as required
by OAC 3745-101. (Id. ¶ 49.)
Plaintiff alleges that he “lives near [CHIA] and uses the Airport and has been and will
continue to be injured by defendant’s violation of the [CAA].” (Id. ¶ 52.) As a result, Nguyen
requests that the court: 1) declare that Defendant violated the CAA and order CHIA to obtain a Title
V permit; 2) order Defendant to pay civil penalties; and 3) order Defendant to pay of outstanding
emissions fees. (Id. Prayer for Relief ¶¶ 1-3.)
C. Statutory Framework
The CAA, 42 U.S.C. § 7401, et seq., enacted in 1970 and amended in 1977 and 1990,
creates a cooperative framework between the federal government and the states to reduce air
pollution nationwide. To that end, the United States Environmental Protection Agency (“U.S. EPA”)
is charged with identifying air pollutants that may endanger public health and welfare and
developing standards, known as National Ambient Air Quality Standards (“NAAQS”), that specify
the maximum allowable air concentration of these pollutants. 42 U.S.C. §§ 7408(a), 7409 (2009).
The U.S. EPA is also required to divide each state into air quality control regions. Id. § 7407(b)-(c).
The Ohio EPA is responsible for the Greater Metropolitan Cleveland Intrastate Air Quality Control
Region. 40 C.F.R. § 81.22 (2009). These air quality control regions are considered either
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“attainment” or “nonattainment,” based on whether or not they are in compliance with the NAAQS.
42 U.S.C. § 7407(d). For example, the Greater Metropolitan Cleveland Intrastate Air Quality
Control Region is an attainment area for some air pollutants like carbon monoxide and nitrogen
dioxide, but is a nonattainment area for ozone. Ohio, 40 C.F.R. § 81.336 (2009). The CAA
establishes different emissions requirements for facilities in each type of region, with stricter
standards applicable to those in non-attainment areas. 42 U.S.C. § 7410 (2009).
The CAA delegated to the states primary responsibility for implementing the NAAQS
standards. Id. §§ 7401, 7407. Each state is required to formulate a State Implementation Plan (“SIP”)
establishing “enforceable emission limitations and other control measures” designed to attain and
maintain NAAQS. Id. § 7410(a)(2)(A). Once a SIP has been approved by the U.S. EPA, after public
notice and comment, its requirements become federal law and are fully enforceable in federal court.
Id. §§ 7413, 7604; see also Her Majesty The Queen v. City of Detroit, 874 F.2d 332, 33536 (6th Cir.
1989). The Ohio SIP, Title 3745 of the OAC, has been approved by the U.S. EPA. Approval Status,
40 C.F.R. § 52.1873 (2009).
In order to achieve and maintain the NAAQS, the CAA also requires states to regulate,
through their SIPs, new or modified sources of air pollution. 42 U.S.C. § 7410(a)(2) (2009). Detailed
under Title I of the CAA, this “New Source Review”(“NSR”) encompasses two separate pollution
control programs, the Prevention of Significant Deterioration (“PSD”) program, Id. §§ 7470–92, and
the Nonattainment New Source Review (“NNSR”) program, Id., §§ 7501–7515. These provisions
have been incorporated into the Ohio SIP at Chapter 3745-31of the OAC. Ohio Admin. Code
3745–31-02 cmt. (2012). The PSD program regulates sources located in areas that are in attainment
of NAAQS for a given pollutant. 42 U.S.C. § 7475(a) (2009). Proponents of projects must obtain
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a permit before constructing or modifying a “major emitting facility.”1 Id. § 7475(a). The new source
must also comply with other provisions, such as the requirement to install the “best available control
technology” (“BACT”) for controlling every regulated pollutant to a specified limit. Id. §
7475(a)(4). The more stringent requirements of the NNSR apply to new sources located in
nonattainment areas. Id. § 7502(c)(5). Facilities must obtain “permits for the construction or
operation of new or modified major stationary sources2 anywhere in the nonattainment area.” Id.
They must also install technology that will achieve the “lowest achievable emission rate,”Id. §
7503(a)(2), a more onerous requirement than BACT, and secure emissions “offsets,” by reducing
emissions from existing sources to neutralize the proposed emissions from the new source. Id. §
7503(a)(1)(A).
This already-tangled web became even more complex in 1990, when Congress again
amended the CAA to establish a nationwide operating permit program to regulate sources of air
pollution. See generally 42 U.S.C. §§ 7661–7661f. These provisions, often referred to as “Title V,”
1
A source may qualify as a “major emitting facility” in one of two ways: a) it is
one of 28 enumerated types of sources with the potential to emit 100 tons per year
or more of “any air pollutant,” or; 2) it is any other stationary source with the
potential to emit 250 tons per year or more of any air pollutant. 42 U.S.C. §
7479(1) (2009).
2
A “major stationary source” includes “any stationary facility or source of air
pollutants which directly emits, or has the potential to emit, one hundred tons per
year or more of any air pollutant.”Id. § 7602(j). However, the applicable
regulation further clarifies that the NNSR program “shall apply to any new major
stationary source or major modification that is major for the pollutant for which
the area is designated nonattainment.” 40 C.F.R. § 51.165(a)(2)(i) (2009). Thus,
an NNSR permit is required for a source that will emit 100 tons per year or more
of the nonattainment pollutant.
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require every major stationary source3 of air pollution to obtain an operating permit that consolidates
into one document all applicable regulations. Id. § 7661a(a). Thus, instead of imposing a new set
of requirements, Title V incorporates the emission limitations, standards, monitoring requirements,
compliance schedules, and other conditions already applicable to a source. See Id. § 7661c(a).
Among these requirements are those imposed by existing state new source review programs. Each
state is required to develop, and submit for U.S. EPA approval, an operating permit program that
meets the requirements of Title V. Id. § 7661a(d)(1). Ohio’s Title V program is codified at Chapter
3745–77 of the OAC and is administered by the Ohio EPA. See Ohio Admin. Code 3745-77-02
(2012).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) governs summary judgment motions and provides:
The court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law. The court should state on the record the
reasons for granting or denying the motion.
A party asserting there is no genuine dispute as to any material fact or that a fact is genuinely
disputed must support the assertion by:
3
Title V employs the CAA’s standard definition of “major stationary source,”
which is also utilized by the NNSR program. See 42 U.S.C. § 7602(j) (2009). U.S.
EPA regulations further clarify that a major source “means any stationary source
(or any group of stationary sources that are located on one or more contiguous or
adjacent properties, and are under common control of the same person (or persons
under common control)) belonging to a single major industrial grouping and that”
have the potential to emit at least 10 tons of hazardous air pollutant a year or 25
tons of combined hazardous air pollutants a year; at least 100 tons of any air
pollutant a year; or trigger the requirements of the NNSR permitting program. 40
C.F.R.§ 70.2.
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(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
Though the Rule was amended in 2010, the summary judgment standards and burdens have
not materially changed. See Fed. R. Civ. P. 56 advisory committee’s notes (2010 Amendments)
(“Subdivision (a) carries forward the summary-judgment standard expressed in former subdivision
(c)....”); Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 n. 4 (1st Cir. 2011). In reviewing
summary judgment motions, this court must view the evidence in a light most favorable to the
non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 153 (1970); White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943-44
(6th Cir. 1990). A fact is “material” only if its resolution will affect the outcome of the lawsuit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual issue
is “genuine” requires consideration of the applicable evidentiary standards. Thus, in most cases, the
Court must decide “whether reasonable jurors could find by a preponderance of the evidence that
the [non-moving party] is entitled to a verdict.” Id. at 252. However, “[c]redibility judgments and
weighing of the evidence are prohibited during the consideration of a motion for summary
judgment.” Ahlers v. Scheibil, 188 F.3d 365, 369 (6th Cir. 1999).
The moving party has the burden of production to make a prima facie showing that it is
entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986). If the burden of
persuasion at trial would be on the non-moving party, then the moving party can meet its burden of
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production by either: (1) submitting “affirmative evidence that negates an essential element of the
nonmoving party’s claim”; or (2) demonstrating “to the court that the nonmoving party’s evidence
is insufficient to establish an essential element of the nonmoving party’s claim.” Id.
If the moving party meets its burden of production, then the non-moving party is under an
affirmative duty to point out specific facts in the record which create a genuine issue of material fact.
Zinn v. United States, 885 F.Supp.2d 866, 871 (N.D. Ohio 2012) (citing Fulson v. City of Columbus,
801 F. Supp. 1, 4 (S.D. Ohio 1992)). The non-movant must show “more than a scintilla of evidence
to overcome summary judgment”; it is not enough to show that there is slight doubt as to material
facts. Id. Moreover, “the trial court no longer has a duty to search the entire record to establish that
it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472,
1479–80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir.
1988)).
III. LAW AND ANALYSIS
Defendant’s initial challenge in the instant Motion for Summary Judgment is to Plaintiff’s
standing to maintain his claims. (Def.’s Second Mot. Summ. J.7-11, ECF No. 65-1.) The City
argues that Nguyen has not articulated how he has been harmed by the operations at CHIA. (Id. at
8-9.) Moreover, were CHIA to obtain a Title V permit, there would be no reduction in emissions
levels. Thus, any harm Plaintiff claims to suffer would not be redressed by the permit. (Id. at 9-11.)
Because Plaintiff fails to show any concrete, redressable injury, he may not compel Defendant to
obtain a Title V permit.
Even if Nguyen had standing, he has not demonstrated, Defendant contends, that CHIA is
required to have a Title V permit. (Id. at 11.) The emission sources on which Plaintiff relies for his
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calculations are expressly excluded from Title V permit applicability because they are either: 1) not
owned or controlled by the City; (2) mobile emission sources; or (3) fugitive emissions sources.(Id.
at 11-20.)
Additionally, Defendant’s Motion only addresses Plaintiff’s allegations regarding Title V,
as Defendant also contends that Plaintiff has waived the claims regarding violations of Ohio Rules
3745-100 and 3745-101. (Id. at 3 n.2) And, while Plaintiff has opposed this Motion, the City also
objects to the two expert reports Nguyen provided in support of his arguments. (Def.’s Reply 4, ECF
No. 70.)
Thus, the court must resolve three threshold issues before it may consider the merits of
Plaintiff’s claims: 1) whether Plaintiff has waived his claims relating to alleged violations of Rules
3745-100 and 3745-101 of the Ohio Administrative Code; 2) whether the court may consider
Plaintiff’s expert reports in resolving the instant Motion; and 3) whether Plaintiff has standing to
maintain this suit under the CAA.
A. Plaintiff’s Remaining Claims
Defendant argues that the only remaining portion of Plaintiff’s CAA claim is that related to
violations of Title V permitting requirements. The claim has been waived inasmuch as it invokes
Rules 3745-100 and 3745-101 of the OAC. In a footnote, Defendant explains:
During the April 23, 2015 status conference, counsel for Plaintiff stated that the only
remaining claim is that CHIA is violating the CAA by failing to have a Title V
permit. The First Amended Complaint alleges violations of OAC rules 3745-100 and
3745-101. FAC ¶ 49. These are unrelated to the Title V program and at this point
Plaintiff has waived those claims.
(Def.’s Second Mot. Summ. J. 3 n.2, ECF No. 65-1.) However, Defendant has not cited to any
authority in support of the proposition that a plaintiff may waive claims in such a manner.
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Nonetheless, upon further analysis, it is apparent to the court that the regulations relied on
by Nguyen impose no applicable requirements on Defendant related to operations at CHIA. Chapter
3745-100 of the OAC imposes certain notification requirements on regulated facilities that distribute
toxic chemicals. See generally Ohio Admin. Code 3754-100-XX (2009). However, the requirements
of this chapter are only applicable to “[a] facility that . . . is in a standard industrial classification
(SIC) (as in effect on January 1, 1987) major group or industry code listed in paragraph (A) of rule
3745-100-17 of the Administrative Code . . . .” Ohio Admin. Code 3754-100-05 (2009). The
Standard Industrial Classification Manual classifies virtually all activity at an airport under Major
Group 45. Enter. Standard Indus. Classification Manual, 1986 4 I.R.B. 52 (1986). This is not one
of the SIC major groups regulated by Chapter 3745-100. See Ohio Admin. Code 3754-100-17
(2009).
Chapter 3745-101 is similarly inapplicable. Plaintiff has alleged that “Defendant has not
adopted a Transportation Improvement Plan to reduce the amount of [regulated pollutants] at
[CHIA], as required by Ohio Administrative Code 3745-101.” (First Am. Compl. ¶ 49, ECF No. 16.)
Chapter 3745-101 implements the requirements of Section 176(c) of the CAA. See Ohio Admin.
Code 3745-101-01 (2012). Section 176(c) prohibits federal approval of a variety of actions unless
the responsible federal entity makes a determination that the action it seeks to undertake or fund
conforms to the requirements of the relevant SIP. See 42 U.S.C. § 7501 (2009). Yet, Rule 3745-10103 explains that such “conformity determinations are required for . . . [t]he adoption, acceptance,
approval or support of [transportation improvement plans (“TIPs”)] . . . developed . . . by [a
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metropolitan planning organization (“MPO”)4]. . .” Ohio Admin. Code 3745-101-03 (2012)
(emphasis added). Furthermore, a subsequent rule confirms, “[t]he respective MPO shall be
responsible for . . . [d]eveloping transportation plans and TIPs . . . .” Id. 3745-101-04(B)(5)(b)(I).
The Northeast Ohio Areawide Coordinating Agency, not Defendant, is the MPO for the region in
which CHIA is located. See, e.g., H.R. Rep. No. 105- 648, at 148 (1999).
B. Plaintiff’s Expert Reports
i. John Jacus
Next, the court must address whether Nguyen’s expert reports may be considered in
opposition to the Motion for Summary Judgment. Defendant first contends that the report prepared
by John R. Jacus (“Jacus”) (Jacus Report, ECF No. 69-1) is inadmissible. (Def.’s Reply 5-6, ECF
No. 70.) First, as an environmental lawyer practicing in Colorado, Jacus is not qualified, Defendant
argues, to provide expert testimony on Title V permitting in Ohio or the appropriate method for
calculating the relevant emissions. (Id. at 5.) Nor is the subject matter of his report appropriate, since
it amounts to “a recitation of legal principles and guidance that demonstrates no more knowledge
about the law or facts than present counsel in this case.” (Id. at 6.)
The court finds the latter argument persuasive. While there is no per se ban on lawyers
testifying as expert witnesses, they generally may not opine on the legal questions at issue in the
matter. See United States v. Zipkin, 729 F.2d 384, 387 (6th Cir. 1999) (holding inadmissible expert
testimony about meaning of specific provision of law defendant accused of violating). Here, Jacus
4
Rule 3745-101-02 defines “Metropolitan Planning Organization” or “MPO” as
“that organization designated as being responsible, together with the state, for
conducting the continuing, cooperative, and comprehensive transportation
planning process under 23 USC 134 and 49 USC 5303 within the MPO boundary
as recognized by the governor of Ohio.” Ohio Admin. Code 3745-101-02 (2012).
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seeks to offer opinions on the proper interpretation of terms within the statutes and regulatory
guidance applicable to this case. But, it is the responsibility of the court, not testifying witnesses,
to define legal terms. See Chavez v. Carranza, 559 F.3d 486, 498 (6th Cir. 2009) (“An expert
opinion on a question of law is inadmissible.” (citing Berry v. City of Detroit, 25 F.3d 1342,
1353–54 (6th Cir.1994))).
Accordingly, the court will not consider the report (Jacus Report, ECF No. 69-1) in resolving
the instant Motion for Summary Judgment, insofar as it expresses impermissible legal opinions
regarding the subject matter of this case. See Stoler v. Penn Cent. Transp. Co., 583 F.2d 896, 899
(6th Cir. 1978) (explaining district court judge has duty to exclude improper legal opinions).
ii. Scott McDowell
Defendant also argues that the report prepared by Scott McDowell (“McDowell”)
(McDowell Aff., ECF No. 69-2) should be excluded because Plaintiff failed to disclose him as an
expert witness in violation of this court’s August 26, 2015 Order setting expert report deadlines, and
Rule 26 of the Federal Rules of Civil Procedure. (Def.’s Reply 7, ECF No. 70.) Defendant adds that
this report, actually prepared for Nguyen I, “is not probative here, as the report is over a decade old,
does not evaluate current conditions at CHIA, and calculates fugitive emissions of a deicing agent
that has not been used at CHIA since 2002.” (Id.)
However, the purpose of Rule 26(a)(2)(A) is to afford opposing parties “a reasonable
opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from
other witnesses.” Fed. R. Civ. P. 26(a)(2) advisory committee’s note to 1993 amendment. While
Plaintiff may have failed to disclose this expert at the appropriate time, Defendant has not shown
any prejudice caused by the late disclosure. Additionally, Defendant’s arguments about the
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probative value of the report goes toward the weight of this evidence, rather than its admissibility.
Therefore, the court declines to exclude the report (McDowell Aff., ECF No. 69-2) from
consideration at this time.
C. Standing5
Defendant argues that Plaintiff lacks standing, under Article III of the United States
Constitution, to bring this citizen suit, challenging CHIA’s alleged violations of Title V permitting
provisions. (Def.’s Second Mot. Summ. J. 7-8, ECF No. 65-1.) Because Plaintiff has failed to
demonstrate that he has suffered a concrete, redressable injury as a result of Defendant’s failure to
obtain a Title V permit, the City contends this court lacks jurisdiction to decide the present matter.
(Id.)
The requirement that a party have standing flows from the limitation of federal jurisdiction
to “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1; see also Lujan v. Defenders of
Wildlife, 504 U.S. 555, 559 (1992). To satisfy the requirements of Article III,6 a plaintiff must
5
Notwithstanding the resolution of the question of standing relative to Plaintiff’s
remaining claims, the court may dispose of the request for declaratory relief, as
such a remedy will not support standing for a CAA citizen-suit. See, e.g., Little v.
Louisville Gas & Elec. Co., 33 F. Supp. 3d 791, 802 (W.D. Ky. 2014) aff'd in part
sub nom. Little v. Louisville Gas & Elec. Co., 805 F.3d 695 (6th Cir. 2015) (citing
WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1191 (10th Cir.
2012).
6
In addition to the requirements of Article III, the federal judiciary has also
adhered to “prudential considerations that are part of judicial self-government.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Prudential standing
requires “the interest sought to be protected by the complainant [to be] arguably
within the zone of interests to be protected or regulated by the statute or
constitutional guarantee in question.” Dismas Charities, Inc. v. U.S. Dep't of
Justice, 401 F.3d 666, 671 (6th Cir. 2005) (quoting Ass’n of Data Processing
Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). However, Defendant does
not raise this issue in its Motion. Moreover, unlike the constitutional
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demonstrate the following three elements: 1) he has suffered an “injury in fact,” 2) the injury is
“fairly traceable” to the challenged actions of the defendant, and 3) the injury will likely be
redressed by a favorable decision. Lujan, 504 U.S. at 560-61. Because these elements are not “mere
pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be
supported in the same way as any other matter on which the plaintiff bears the burden of proof.” Id.
at 561. Thus, at summary judgment, a plaintiff can no longer rely on mere allegations of standing
but must support each element by specific facts via affidavits or other evidence. Id. (citing Fed. R.
Civ. P. 56(e)). The court will now address each of these requirements in turn.
To satisfy the first requirement, injury-in-fact, a plaintiff must suffer “an invasion of a legally
protected interest which is concrete and particularized” and “actual or imminent, not ‘conjectural’
or ‘hypothetical’ ” before he can bring an action. Id. at 560-61. In other words, a plaintiff “must
somehow differentiate himself from the mass of people who may find the conduct of which he
complains to be objectionable only in an abstract sense.” Id. at 560 n.1. This standard is one of kind
and not of degree. As such, the claimed injury “need not be large, an identifiable trifle will suffice.”
United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14
(1973).
requirements, prudential, or statutory, standing may be modified or even
abrogated by Congress. See Warth v. Seldin, 422 U.S. 490, 501 (1975). And, at
least some courts have interpreted the citizen suit provision of the Clean Air Act
as extending statutory standing to the full extent permitted by Article III. See, e.g.,
St. Bernard Citizens for Envtl. Quality, Inc. v. Chalmette Ref., L.L.C., 354 F.
Supp. 2d 697, 700 (E.D. La. 2005); Texas Campaign for the Env’t v. Lower
Colorado River Auth., No. 4:11-cv-791, 2012 WL 1067211, at *3 (S.D. Tex. Mar.
28, 2012). Therefore, if Plaintiff had standing under Article III in the instant
matter, he would also have statutory standing under the CAA.
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Defendant argues that Plaintiff has only complained of the kind of conjectural harm that will
not satisfy the injury-in-fact requirement. (Def.’s Second Mot. Summ. J. 8, ECF No. 65-1.) When
asked, during a deposition, how he had been harmed by CHIA’s failure to obtain a Title V permit,
Plaintiff stated:
First of all, the Ohio EPA/Cuyahoga County developed the State Implementation
wrong. And I believe that I live in a healthy area, but, in fact, it may be an unhealthy
area. And then, the city emits the emissions directly to a public place. And then I use
the airport, and the people that – my family or the people who live near to the airport,
it also impacts their health. But they don’t know for sure in one or two months, one
or two years, or maybe it’s five or 10 years.
(Id. at 8-9.) Such vague statements, Defendant contends, fail to identify how Plaintiff has been
injured in a “concrete and personal way.” (Id. at 9.) (quoting Lujan, 504 U.S. at 581.)
In his Opposition (Opp’n, ECF No. 69), Nguyen offer no persuasive challenge to
Defendant’s arguments concerning injury-in-fact. Instead, Plaintiff contends that he need not satisfy
the requirements of Article III. (Id. at 3-4.) Rather, as an “aggrieved member of the public” and
“thus ‘a victim of any offenses under’ the CAA,” he has standing under the “public trust doctrine”
to assert his claims. (Id. at 4.)
Given the voluminous contrary authority, the court can only express confusion at Plaintiff’s
argument. The requirements of Article III constitute the “irreducible constitutional minimum of
standing . . . .” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (emphasis added); see also
Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979) (“In no event, however, may
Congress abrogate the Art. III minima: A plaintiff must always have suffered ‘a distinct and palpable
injury to himself’ . . . that is likely to be redressed if the requested relief is granted.”) (internal
citations omitted). Perhaps Nguyen hopes to avoid the strictures of Article III because he explicitly
seeks to advance the type of “generalized grievance” excluded from federal jurisdiction. See Lujan,
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504 U.S. at 573-74 (“We have consistently held that a plaintiff . . . – claiming only harm to his and
every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no
more directly and tangibly benefits him than it does the public at large – does not state an Article
III case or controversy.”); see also Heartwood, Inc. v. U.S. Forest Serv., No. 1:00 CV 683, 2001 WL
1699203, at *4 (W.D. Mich. Dec. 3, 2001) (noting injury-in-fact requirement “ensur[es] that suit is
brought by a plaintiff facing an injury to a concrete interest to protect rather than ‘a roving
environmental ombudsman seeking to right environmental wrongs wherever he might find them.’
”).
Nguyen fails to provide any support for the notion that the “public trust” doctrine relieves
him of the burden of demonstrating Article III standing. Because he cannot. The “public trust
doctrine” is a matter of state law. See PPL Montana, LLC v. Montana, 132 S. Ct. 1215, 1235 (2012)
(“[T]he public trust doctrine remains a matter of state law ” and its “contours . . . do not depend upon
the Constitution.”). In Ohio, the public trust doctrine charges the State with the responsibility to
manage certain lands for the benefit of the public. See, e.g., Lemley v. Stevenson, N.E.2d 237, 243
(Ohio Ct. App. May 26,1995) (“We begin by restating that the state as trustee for the water and lands
of Lake Erie can, through proper legislation, use the trust for the benefit of the public.”). This
concept has no application here. And, while the cases on which Plaintiff mistakenly relies do indeed
refer to “the public” and “trust” in connection with violations of environmental protection statutes,
they have nothing to do with Article III standing. See United States v. Snook, 366 F.3d 439, 446 (7th
Cir. 2004) (considering sentencing enhancement for abusing position of trust under § 3B1.3 of the
United States Sentencing Guidelines); United States v. Technic Servs., Inc., 314 F.3d 1031, 1049
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(9th Cir. 2002), overruled by United States v. Contreras, 593 F.3d 1135 (9th Cir. 2010) (same);
United States v. Tonawanda Coke Corp., 5 F. Supp. 3d 343, 358 (W.D.N.Y 2014) (same).
Stranger still, Plaintiff does not invoke the “public trust doctrine” in support of the
allegations that make up the bulk of his Complaint – Defendant’s continued operation of CHIA
without the necessary Title V permit. Instead, Plaintiff claims he has standing “to challenge
Defendant on whether it, in violation of Ohio Administrative Code (OAC) 3745-101, expanded
operations at CHIA absent the required New Source Review Permit . . . .” (Id. at 4.) The alleged
violations to which Plaintiff refers are Defendant’s construction of a new runway7 and deicing
facility and purchase of upgraded airport ground support equipment. (Id.)Yet, as explained above,
Rule 3745-101 is inapplicable to Defendant. See Section II.A. supra. And, Plaintiff fails to explain
what relation, if any, Rule 3745-101 has to the New Source Review program.
Most importantly, Plaintiff fails to provide any evidentiary support for these contentions.
Unsupported assertions are an inadequate response to a motion for summary judgment, for it is not
the responsibility of the court to “comb though the record” to determine whether genuine issues of
material fact exist. See Cacevic v. City of Hazel Park, 226 F.3d 483, 492 (6th Cir. 2000) (internal
citation and quotations omitted). Without a sufficient response from Plaintiff, the court is left to rely
on the evidence provided by Defendant in an attempt to clarify Nguyen’s true concerns.
Nonetheless, what becomes apparent, after careful consideration of the record, is that
whatever harm Plaintiff may complain of, it is not redressable by a favorable decision in this case.
7
The construction of the new runway took place from about 2001-2004. (First Am.
Compl. ¶ 40, ECF No. 16.) Because this activity occurred prior to October 2005,
any potential claims are barred by the Release and Covenant Not to Sue. (ECF
No. 51.)
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To satisfy the redressability requirement of Article III standing, Plaintiff must demonstrate that it
is “likely, as opposed to merely speculative, that [his] injury will be redressed by a favorable
decision.” Heartwood, Inc. v. Agpaoa, 628 F.3d 261, 266 (6th Cir. 2010) (citing Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180–81 (2000)). Nguyen has requested
declaratory relief, civil penalties, and emissions fees, all in an effort to compel Defendant to obtain
a Title V permit. But, it is the Ohio EPA that determines whether a facility is required a obtain a
permit under Title V. See Ohio Admin. Code 3745-77-02 (2012) (“Upon written request of a Title
V permit applicant, the [director of environmental protection] shall make a determination of the
applicability or inapplicability of any provision or class of requirements under the act . . . .”) The
Agency has already made such a determination with respect to CHIA. In 1999, and again in 2011,
the Ohio EPA evaluated the operations at CHIA and determined that its emissions, when properly
calculated, were below Title V permitting thresholds. (McGreal Aff. ¶¶ 8.-10., ECF No. 65-4.)
Thus, to determine whether Nguyen’s injury is likely to be redressed, the court would be
compelled to speculate on whether Ohio EPA would grant a Title V permit on reapplication by the
City. As the Supreme Court has explained, “[w]hen the existence of an element of standing ‘depends
on the unfettered choices made by independent actors not before the courts and whose exercise of
broad and legitimate discretion the courts cannot presume either to control or to predict,’ a party
must present facts supporting an assertion that the actor will proceed in such a manner.”
Massachusetts v. EPA, 549 U.S. 497, 545-46 (2007) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 568-71 (1992)). And, plaintiff has offered no such facts. Instead, Plaintiff seems to tacitly
acknowledge the speculative nature of his request. When asked during his deposition whether his
harm would be redressed if the airport were required to obtain a permit, he responded: “Not go away
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immediately. But if the EPA had a better emissions inventory and they do better with the computer
modeling, they may develop a better State Implementation Plan for people who live in Cuyahoga
County and for Ohio in general.” (ECF No. 65-2, at 18.) In addition, the court notes that it would
seem a perverse outcome to hold Defendant liable for acting in reliance on a determination by the
appropriate state regulatory agency. Cf. Ellis v. Gallatin Steel Co., 390 F.3d 461, 480-82 (6th Cir.
2004) (applying Burford abstention to preclude consideration of plaintiffs’ claims under CAA
challenging state agency’s permitting decisions).
Consequently, the court finds that Plaintiff lacks standing to sue Defendant for alleged
violations of the CAA. Thus, the court need not reach Defendant’s additional arguments regrading
the applicability of Title V to the operations at CHIA.
IV. CONCLUSION
For the foregoing reasons, the court hereby grants Defendant’s Second Motion for Summary
Judgment. (Def.’s Second Mot. Summ. J., ECF No. 65.)
IT IS SO ORDERED.
/S/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT
March 15, 2016
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