Conservation Law Foundation, Inc. v. Shell Oil Products US et al
Filing
55
MEMORANDUM AND ORDER granting in part and denying in part 46 Motion to Dismiss. So Ordered by District Judge William E. Smith on 9/28/2020. (Jackson, Ryan)
Case 1:17-cv-00396-WES-LDA Document 55 Filed 09/28/20 Page 1 of 12 PageID #: 2946
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
______________________________
)
CONSERVATION LAW FOUNDATION, )
INC.,
)
)
Plaintiff,
)
)
C.A. No. 17-396 WES
v.
)
)
SHELL OIL PRODUCTS US, et al.,)
)
Defendants.
)
______________________________)
MEMORANDUM AND ORDER
In this citizen-suit enforcement action brought under the
Clean Water Act (“CWA”) and the Resource Conservation and Recovery
Act
(“RCRA”),
Plaintiff’s
Defendants
Third
move
Amended
to
dismiss
Complaint,
all
certain
of
which
claims
in
relate
to
Defendants’ conduct at the Providence Terminal (“the Terminal”).
They
say
the
Defendants’
so-called
failure
to
“Adaptation
adapt
the
Claims”,
Terminal
which
to
challenge
prepare
incremental effects of climate change, are deficient.
for
Having the
benefit of trenchant briefing and argument, the Court GRANTS IN
PART AND DENIES IN PART Defendants’ Motion to Dismiss, ECF No. 46,
as set forth below.
I.
Discussion
A.
Standing
For the most part,
Plaintiff
has carried its burden of
demonstrating associational standing to sue.
See Me. People’s
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All. & Nat. Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277,
283 (1st Cir. 2006).
That is, it has pleaded facts which, taken
as true, plausibly establish an injury in fact, traceable to the
challenged
decision.
conduct
and
likely
redressable
with
a
favorable
See Spokeo Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
Defendants’ standing challenge largely centers on imminence,
“a somewhat elastic” benchmark meant “to ensure that the alleged
injury is not too speculative for Article III purposes — that the
injury is certainly impending.”
Clapper v. Amnesty Int’l USA, 568
U.S. 398, 409 (2013) (emphasis and quotation marks omitted); see
also Mallinckrodt, 471 F.3d at 283 (explaining that “probabilistic
harms are legally cognizable”).
To that end, and to the extent that its claims rely on future
harms, Plaintiff lacks standing.1
See Katz v. Pershing, LLC, 672
F.3d 64, 71 (1st Cir. 2012) (holding that the imminence requirement
“ensures that the harm has either happened or is sufficiently
threatening”).
These flawed allegations include, for example,
those detailing that, by 2100, the National Oceanic and Atmospheric
Administration predicts — worst-case scenario — a greater-than-
This follows Judge Wolf’s holding in an analogous suit in
the United States District Court for the District of Massachusetts,
in which he found the plaintiff lacked standing as to harms in the
far future but pleaded it for near-term harms from severe
foreseeable weather events. See Conservation Law Found., Inc. v.
Exxonmobil Corp., C.A. 1:16-cv-11950-MLW, Mar. 13, 2019 Tr. 12728, ECF No. 73.
1
2
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eight-foot sea level increase, and it is “virtually certain” the
global mean sea level will continue to rise beyond then.
Am.
Compl.
omitted).
(“Compl.”)
¶¶
228-29,
232,
ECF
No.
45
Third
(emphasis
But as to near-term harms from foreseeable weather
events, Plaintiff has asserted certainly impending harm, at least
at this stage.
See Clapper, 568 U.S. at 409.
The Complaint makes
clear that a major weather event, magnified by the effects of
climate change, could happen at virtually any time, resulting in
the catastrophic release of pollutants due to Defendants’ alleged
failure to adapt the Terminal to address those impending effects.
While it might not occur for many years, the fact that it is
certainly impending is enough to meet the standard.
Plaintiff’s members use and enjoy the waters and roads near
the Terminal, and are “affected by, and concerned with” Defendants’
pollutant discharges.
Compl. ¶¶ 11-13, 16-21.
To establish a
“concrete and particularized injury”, “harm [that] in fact affects
the recreational or even the mere esthetic interests of the
plaintiff . . . will suffice.”
Summers v. Earth Island Inst., 555
U.S. 488, 494 (2009); see also Massachusetts v. United States Dep’t
of Health & Human Servs., 923 F.3d 209, 227 (1st Cir. 2019)
(emphasizing that “[c]oncreteness requires something ‘real, and
not abstract’” (quoting Spokeo, 136 S. Ct. at 1548)).
Plaintiff’s
members’ declarations signal diminished enjoyment, apprehension
over
close
contact
with
the
waterways,
3
and,
in
most
cases,
Case 1:17-cv-00396-WES-LDA Document 55 Filed 09/28/20 Page 4 of 12 PageID #: 2949
decisions driven by that concern.
See Sierra Club v. Morton, 405
U.S. 727, 734 (1972) (“Aesthetic and environmental well-being,
like economic well-being, are important ingredients of the quality
of life in our society[.]”).
For example, one declarant rows near
the Terminal, making contact with what he fears is polluted (or
likely to be polluted) water unavoidable. Decl. of Timmons Roberts
¶¶ 6-7, 13, 16, ECF No. 47-2.
A second declares the potential
presence of pollutants deters him from swimming.
See Decl. of
David Riley ¶¶ 11-12, 17-21, ECF No. 47-5; see also Decl. of Howard
Kilguss
¶¶
6-8,
10,
13-14,
ECF
No.
47-6
(same).
These
attestations, supporting the well-pleaded allegations, reflect
standing as to near-term harms.
See Lujan v. Defs. of Wildlife,
504 U.S. 555, 561 (1992).
And Plaintiff’s pleaded injury flows from the conduct it
challenges: Defendants’ failure to prepare the Terminal for the
coming impacts of climate change.
See Compl. ¶¶ 12-21.
This
“causal connection . . . permits tracing the claimed injury to .
. .
[D]efendant’s actions”.
Mallinckrodt, 471 F.3d
at 283.
Plaintiff has pleaded all necessary elements as to near-term harms,
so dismissal for lack of standing on these claims is not warranted.
B.
Ripeness
For those same reasons, the matter is ripe for adjudication;
this is especially true considering the First Circuit’s recent
recapitulation that “[t]he constitutional standing and ripeness
4
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inquiries are interrelated and often duplicative”.
Foisie v.
Worcester Polytechnic Inst., 967 F.3d 27, 35 (1st Cir. 2020).
C.
Resource Conservation and Recovery Act
None of Defendants’ arguments compels dismissal of the RCRA
claims (except in one narrow respect).
Foundationally, Plaintiff
has pleaded the existence of solid and hazardous waste at the
Terminal.
See, e.g., Compl. ¶¶ 54-60, 407-11, 425-28 (describing
alleged waste at the Terminal and status as generator of hazardous
waste); Compl. Ex. L. (“2019 Permit”) 32-33, ECF No. 45-12 (noting
that the Terminal “stores and handles pollutants listed as toxic
under
Section
307(a)(1)
of
the
CWA
or
pollutants
listed
as
hazardous under Section 311 of the CWA and has ancillary operations
which could result in significant amounts of these pollutants
reaching the Providence River”); see also Mallinckrodt, 471 F.3d
at 290 (recognizing “section 7002(a)(1)(B) applies to both solid
waste and hazardous waste”) (emphasis removed).
Plaintiff pleads that the alleged waste “may present an
imminent
and
environment”.
409-22.
substantial
endangerment
to
health
or
the
42 U.S.C. § 6972(a)(1)(B); see, e.g., Compl. ¶¶
Clarifying this “imminent and substantial endangerment”
standard, the Supreme Court said in Meghrig v. KFC W., Inc., “[a]n
endangerment
can
only
immediately . . . .”
be
imminent
if
it
threatens
to
occur
516 U.S. 479, 485 (1996) (internal quotation
marks and alteration omitted).
“May present”, as the statute
5
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reads, “implies that there must be a threat which is present now,
although the impact of the threat may not be felt until later.”
Id.
at
486
(internal
quotation
marks
and
citation
omitted).
Plaintiff has pleaded facts satisfying this standard (even if the
harm may be well in the future) where Plaintiff theorizes that
Defendants’ failure to prepare the Terminal for the threat of
foreseeable weather events is an imminent endangerment. See Compl.
¶¶
409-22
(alleging
climatological
data
that
and
Defendants’
adapt
the
failure
Terminal
to
consider
(through
prudent
engineering or otherwise) poses a substantial and imminent risk);
see also Mallinckrodt, 471 F.3d at 279 & n.1 (holding that RCRA
“allows citizen suits when there is a reasonable prospect that a
serious, near-term threat to human health or the environment
exists”, emphasizing “[i]t is the threat that must be close at
hand, even if the perceived harm is not”); see also Crandall v.
City & Cty. of Denver, 594 F.3d 1231, 1238 (10th Cir. 2010) (“No
harm will result for years, but the endangerment already exists
because that harm can result if remedial action is not taken in
the interim.”) (internal quotation marks and citation omitted).
And, as necessary, Plaintiff also alleges Defendants exercise
control over the Terminal and its waste disposal processes, see,
e.g., Compl. ¶¶ 48, 63, 408, 414, and have “contribut[ed] to the
past or present handling, storage, treatment, transportation, or
disposal
of
any
solid
or
hazardous
6
waste”,
42
U.S.C.
§
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6972(a)(1)(B). See Compl. ¶¶ 54-63, 407-11, 425-28; see also Hinds
Invs.,
L.P.
v.
Angiolo,
654
F.3d
846,
851
(9th
Cir.
2011)
(explaining “contribution” requires active involvement in or some
control over the waste disposal process, and courts have allowed
claims to continue “with some allegation of defendants’ continuing
control over waste disposal”); United States v. Aceto Agric. Chems.
Corp., 872 F.2d 1373, 1383 (8th Cir. 1989) (holding that explicit
allegations of control are not required).2
Plaintiff’s regulatory claim also survives, with some slight
trimming.
Its reliance on federal regulations fails easily; no
federal regulation applies where Rhode Island maintains its own
program.
34.
See 250 R.I. Code R. 140-10-1.4; see also Compl. ¶¶ 433-
But its allegations of state regulatory violations, plausibly
pleaded, endure Defendants’ challenge at this stage.
See Compl.
¶¶ 424-36; 250 R.I. Code R. 140-10-1.7.12(I)(1) (requiring that
large quantity generators “maintain and operate their facilities
in a manner that minimizes the possibility of a fire, explosion,
or any unplanned spill or release of hazardous waste or hazardous
waste constituents to the air, soil, or surface waters of the
State”);
id.
generators);
140-10-1.7.13(H)(1)
id.
(same,
140-10-1.7.14(H)(1)
for
(same,
small
for
quantity
conditionally
exempt small quantity generators).
2
The First Circuit has not yet weighed in on this issue.
7
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In sum, giving Plaintiff all due deference, both RCRA claims
survive this early test.
D.
Clean Water Act
The CWA Adaptation claims relate to a National Pollutant
Discharge
Elimination
System
(“NPDES”)
Permit
(“the
Permit”)
issued through the Rhode Island Pollutant Discharge Elimination
System program.
See Compl. ¶¶ 36, 42, 71.
As a condition of the
Permit, the Storm Water Pollution Prevention Plan (“SWPPP”) must
be “prepared in accordance with good engineering practices and
identify potential sources of pollutants” that “may reasonably be
expected to affect the quality of storm water discharges associated
with industrial activity from the facility.”
(emphasis added).
2019 Permit 16
It must “describe and ensure the implementation
of Best Management Practices (BMPs) which are to be used to reduce
or eliminate the pollutants in storm water discharges” and “assure
compliance with” the Permit.
Id.
Defendants “shall immediately
amend the SWPPP . . . if the SWPPP proves to be ineffective in
achieving the general objectives of controlling pollutants in
storm water discharges associated with industrial activity.”
These “permits are treated like any other contract”.
Id.
Nat.
Res. Def. Council, Inc. v. Cty. of Los Angeles, 725 F.3d 1194,
1204 (9th Cir. 2013); see also Piney Run Pres. Ass’n v. Cty.
Comm’rs of Carroll Cty., Md., 268 F.3d 255, 269 (4th Cir. 2001).
Plaintiff’s claims entail interpretating the Permit — asking, for
8
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example, whether “good engineering practices” require preparing
the Terminal for catastrophic weather, or whether the current SWPPP
would be “ineffective” during such events — and state plausible
claims under the CWA.
And because this suit does not challenge the Permit’s terms
(as Defendants suggest), the Court has jurisdiction over it, see
33 U.S.C. § 1365(a), and Defendants cannot invoke the permit shield
to avoid it.
See id. § 1342(k); see also Piney, 268 F.3d at 265
(explaining compliance with permit terms avoids liability); see,
e.g., Compl. ¶¶ 13, 285, 292, 300, 304, 310, 315, 333, 338
(alleging noncompliance with the Permit).
None of Defendants’
other arguments persuades the Court to dismiss at this stage.
E.
Motiva Enterprises LLC
Defendants
ask
the
Court
to
dismiss
Defendant
Motiva
Enterprises LLC (“Motiva”), arguing a past owner cannot be a
present violator.
See Gwaltney of Smithfield, Ltd. v. Chesapeake
Bay Found., Inc., 484 U.S. 49, 59-63 (1987)(holding that the CWA
does not permit suits for “wholly past” violations).
Motiva
operated the Terminal before its dissolution in May 2017, Compl.
¶ 26, but Motiva’s continued control is a live issue.
See Paolino
v. JF Realty, C.A. No. 12-039-ML, 2013 WL 3867376, at *4 (D.R.I.
July 24, 2013) (allowing suit to proceed against former owner where
that defendant potentially maintained control); see also Friends
of the Sakonnet v. Dutra, 738 F. Supp. 623, 633 (D.R.I. 1990)
9
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(dismissing former owner defendants, mentioning “they have no
control over the pollution source”).
Dismissal is thus, at best,
premature.
F. Outfall 003A
The latest iteration of the Permit eliminated monitoring
requirements for Outfall 003A, and so Defendants move to dismiss
claims
stemming
from
it.
Plaintiff,
when
it
sued,
alleged
Defendants were in violation of the CWA related to Outfall 003A,
and it now argues persuasively that subject matter jurisdiction
turns on the posture of a citizen suit at its inception.
See also
Gwaltney, 484 U.S. at 59 (recognizing “[a] citizen suit may be
brought only for violation of a permit limitation ‘which is in
effect under the Act’” (quoting 33 U.S.C. § 1365(f)); see also
U.S. Pub. Interest Research Grp. v. Atl. Salmon of Me., LLC, 339
F.3d 23, 33 (1st Cir. 2003) (explaining “only citizen suits
alleging that defendants are in violation of the Clean Water Act at
the time suit is brought are cognizable”) (emphasis in original).
These allegations therefore survive. Cf. Atl. States Legal Found.,
Inc. v. Pan Am. Tanning Corp., 993 F.2d 1017, 1021 (2d Cir. 1993)
(holding that, even where wrongful conduct could not reasonably be
expected to recur, “civil penalties can still be imposed, though
only for post-complaint violations and for violations that were
ongoing at the time plaintiffs filed suit”).
10
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G.
Abstention and Primary Jurisdiction3
Last, the Court declines to exercise its discretion to abstain
under Burford v. Sun Oil Co., 319 U.S. 315 (1943).
Whether
abstention is ever appropriate in these cases, “the circumstances
justifying [it] [are] exceedingly rare”, Chico Serv. Station, Inc.
v. Sol P.R. Ltd., 633 F.3d 20, 31-32 (1st Cir. 2011), and are
absent here.
Neither does the primary jurisdiction doctrine favor
dismissal (or a stay, if Defendants seek one) of this case.
See
Ass’n of Int’l Auto. Mfrs., Inc. v. Comm’r, Mass. Dep’t of Envtl.
Prot., 196 F.3d 302, 304 (1st Cir. 1999).
doctrine’s role in these cases is unsettled.
Like abstention, the
See, e.g., PMC, Inc.
v. Sherwin-Williams Co., 151 F.3d 610, 619 (7th Cir. 1998) (Posner,
J.) (calling applying the doctrine of primary jurisdiction to these
cases an “end run around RCRA”).
But see Mallinckrodt, 471 F.3d
at 292 (discussing RCRA, and remarking that the district court
“sensibly left open the possibility that primary jurisdiction
concerns
quotation
could
marks
arise
in
omitted).
the
future”)
Even
so,
(internal
its
citation
application
is
and
not
justified in this case.
II.
Conclusion
For these reasons, Defendants’ Motion to Dismiss, ECF No. 46,
is GRANTED IN PART AND DENIED IN PART; Plaintiff’s Complaint
The Court acknowledges the State of Rhode Island for its
thorough amicus brief.
3
11
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survives except insofar as Plaintiff lacks standing for future
harms and to the extent it relies on federal regulations to support
Claim 22.
IT IS SO ORDERED.
William E. Smith
District Judge
Date: September 28, 2020
12
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