Commonwealth Of Pennsylvania et al v. Consol Energy, Inc. et al
Memorandum Opinion and Order Granting Plaintiff's Motion to Remand, Remanding Case to the Circuit Court of Monongalia County, West Virginia, denying as moot Plaintiff's Motion to Continue or, in the Alternative, Motion to Stay Pending Rulin g on the Motion to Remand and Denying as Moot Defendants' Motion to Dismiss and Defendants' Motion for Partial Summary Judgment. The plaintiff's motion to remand 8 is granted; the plaintiff's motion to continue, or in the alter native, motion to stay pending ruling on the motion to remand 45 is denied as moot and the defendants' motion to dismiss 23 and the defendants' motion for partial summary judgment 53 are denied as moot. This matter is remanded to the Circuit Court of Monongalia County, West Virginia. The Clerk is directed to enter a separate judgment in this matter pursuant to FRCP 58 and to forward a copy of this order to the Circuit Court of Monongalia County, West Virginia. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/4/12. (Copy to the CC of Mon County)(mh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
COMMONWEALTH OF PENNSYLVANIA,
PENNSYLVANIA FISH AND BOAT
Civil Action No. 1:11CV161
CONSOL ENERGY, INC.,
CONSOLIDATION COAL COMPANY
and WINDSOR COAL COMPANY,
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO REMAND,
REMANDING CASE TO THE CIRCUIT COURT OF
MONONGALIA COUNTY, WEST VIRGINIA,
DENYING AS MOOT PLAINTIFF’S MOTION TO
CONTINUE OR, IN THE ALTERNATIVE, MOTION
TO STAY PENDING RULING ON THE MOTION TO REMAND
AND DENYING AS MOOT DEFENDANTS’ MOTION TO DISMISS
AND DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
The plaintiff, an independent administrative agency of the
Commonwealth of Pennsylvania (“the Commonwealth”), filed this
action in the Circuit Court of Monongalia County, West Virginia
against the defendants Consol Energy, Inc., Consolidation Coal
Company, and Windsor Coal Company (collectively “Consol”).
complaint alleges West Virginia common law tort claims against the
discharge of waste water into Dunkard Creek in West Virginia, which
flows into Pennsylvania.
Count One of the complaint asserts a
claim for nuisance, Count Two asserts a claim of trespass, Count
Three and Count Four raise claims for negligence and negligence per
se, Count Five requests punitive damages, and Count Six alleges
Defendants removed the civil action to this Court, asserting
removal jurisdiction based upon federal question jurisdiction under
28 U.S.C. §§ 1331 and 1441.
In support of this claim, Consol
claims that all of the plaintiff’s West Virginia common law claims
are completely preempted by the Clean Water Act, 33 U.S.C. § 1301,
et seq. (“CWA” or “the Act”).
In accordance with their assertion
that the Commonwealth’s claims are completely preempted by the CWA,
the defendants also filed a motion to dismiss the Commonwealth’s
claim as failing to state a claim under the Act.
In response, the
Commonwealth filed a motion to remand, claiming that its claims are
not completely preempted and that, as such, this Court lacks
jurisdiction to hear this matter. Following a full briefing of the
Commonwealth’s motion, Consol filed a motion for oral argument on
the remand motion, which this Court granted.
On August 20, 2012,
oral argument was held before this Court.
motion to remand, as well as Consol’s motion to dismiss are now
fully briefed, and this Court has heard oral argument on the issues
raised in the motion to remand.
For the reasons that follow, this
Court grants the Commonwealth’s motion to remand and remands this
case to the Circuit Court of Monongalia County, West Virginia for
As a result, this Court also denies Consol’s
motion to dismiss without prejudice subject to refiling in state
Consol discharged chloride into the West Virginia portion of
Dunkard Creek over a number of months in 2009.
Dunkard Creek in
West Virginia flows into the Commonwealth of Pennsylvania at or
near Greene County.
The Commonwealth alleges that the amount of
chloride discharged exceeded the daily maximum effluent limitations
Elimination System (“WVNPDES”) permits.
The Commonwealth also
alleges that, at this same time, the levels of total dissolved
solids present in the receiving waters were quite high, and that
this created the release of toxins from golden algae in Dunkard
Creek, which is fatal to fish and other aquatic life.
Commonwealth claims that loss of fish, mussels and mudpuppies
within Pennsylvania resulted.
On August 31, 2012, the defendants also filed a motion for
partial summary judgment, which has not yet been fully briefed. For
the same reasons, this motion is also denied without prejudice
subject to refiling in state court.
Because the merits of the parties’ factual assertions as
the background of this case are largely outside of the scope
this Court’s assessment of the remand motion, for the purposes
this opinion, this Court adopts, for the most part, the facts
set forth by the plaintiff in its complaint.
A defendant may remove a case from state court to federal
court in instances where the federal court is able to exercise
original jurisdiction over the matter.
28 U.S.C. § 1441.
courts have original jurisdiction over primarily two types of
cases: (1) those involving federal questions under 28 U.S.C.
§ 1331, and (2) those involving citizens of different states where
interests and costs pursuant to 28 U.S.C. § 1332(a).
See Mulcahey v. Columbia Organic Chems. Co., Inc.,
29 F.3d 148, 151 (4th Cir. 1994). Removal jurisdiction is strictly
construed, and if federal jurisdiction is doubtful, the federal
court must remand.
Consol removed this action based upon 28 U.S.C. § 1331 federal
jurisdiction, arguing that the Commonwealth’s state law claims were
completely preempted by the CWA.
Federal jurisdiction based upon
28 U.S.C. § 1331 requires that a question “arising under the
Constitutions, laws, or treaties of the United States” be present
on the face of the plaintiff’s well pleaded complaint.
Franchise Tax Bd. v. Constr. Laborers Trust, 463 U.S. 1, 10 (1983).
This requirement is rooted in the concept that the plaintiff is the
master of his own complaint, and can choose to rely upon state law
alone in his pleading if he so chooses.
Plaintiff’s cause of action.”
Accordingly, the federal
Id. at 10-11 (internal citations
The simple existence of a federal issue, or a federal
defense is insufficient to support this type of jurisdiction.
Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813 (1986).
However, there is an exception to the well pleaded complaint
rule in cases where a plaintiff’s complaint contains state law
causes of action which are subject to complete preemption by
In these situations, the state law cause of action
actually pled “transform[s]” into a federal claim by operation of
law, and removal is proper.
(4th Cir. 2005).
See Lontz v. Tharp, 413 F.3d 435, 441
Due to severe implications upon federalism,
complete state law preemption is extremely rare.
to apply such a rarely employed concept, courts must consider the
strong presumption against it and only find complete preemption in
situations where Congress has provided a “clear and manifest
purpose” to preempt all state law causes with a federal statute.
Further, it is important to note that, in order for a cause of
action which employs state law alone to be removable based upon
preemption of federal law, the preemption must be complete.
is to say, of the types of preemption, conflict or “ordinary,” and
complete, only complete preemption creates federal jurisdiction
over a complaint employing state law alone on its face.
the complete preemption doctrine entirely supplants any state
“ordinary” preemption merely serves as a federal defense to a state
law claim, or an assertion that a federal law provides the standard
by which a claim must be evaluated. Caterpillar, Inc. v. Williams,
482 U.S. 386, 393 (1987). This type of preemption will not support
As such, in order to support removal
jurisdiction in this matter, Consol must show that “Congress
intended [the federal claim] to be the exclusive remedy for the
alleged wrong” asserted by the Commonwealth.
Int’l, Inc., 337 F.3d 421, 425 (4th Cir. 2003).
King v. Marriott
This, Consol is
unable to do.
The 1972 amendments to the Federal Water Pollution Control
Act, which would become the CWA, constituted an effective total
rewriting of the Act and, most significantly, instituted the
National Pollution Discharge Elimination System (“NPDES”) which
requires a permit to be issued in order for any entity to legally
discharge any effluent into any interstate water.
§ 1311; and see Milwaukee v. Illinois, 451 U.S. 304, 317-318 (1981)
NPDES permits are generally issued by the
Environmental Protection Agency (“EPA”), but the Act recognizes the
importance of and encourages significant participation of the
states in the regulation of discharges within their own borders.
33 U.S.C. § 1342(b); and Int’l Paper Co. v. Ouellette, 479 U.S.
481, 489 (1987).
Accordingly, the Act allows for the EPA to
delegate to state agencies the authority to issue permits and
administer the NPDES program within the state when the state
program complies with the mandates of the CWA.
Id. at 489-90.
Further, the Act provides that states may require more stringent
effluent limitations than required by the CWA in NPDES permits
issued to dischargers within the state, and requires that the EPA
certify with the source state that a permit issued by the EPA
complies with the state’s standards.
With this background of the regulatory scheme in mind, the
United States Supreme Court in Int’l Paper Co. v. Ouellette
expressly found that the CWA does not completely preempt all state
common law claims.
479 U.S. at 492-93.
In that case, Vermont
citizens brought a state common law action under the laws of
Vermont against the International Paper Company (“IPC”), based upon
its discharge of effluents into Lake Champlain in New York, which
discharge flowed into the Vermont side of the lake.
Id. at 484.
The Supreme Court held that, while the Vermont citizens’ claims
were preempted by the CWA because the Act foreclosed lawsuits which
sought to enforce the laws of an affected state against an out-ofstate discharger, the claims would have been proper and not
preempted had they been brought under the laws of the state in
which IPC was discharging, in that case, New York.
In reaching this holding, the Court found that federal law
governs interstate water pollution, and that the comprehensive
nature of the CWA is such that the only state law causes of action
which could remain would be those specifically reserved by the Act.
See id. at 492. It then found that the regulatory partnership
created between the federal and state governments in the CWA, as
well as two savings clauses contained in the Act, stood as evidence
that Congress intended to allow some state law causes of action to
remain available to litigants as viable vehicles for redress.
(“Although Congress intended to dominate the field of pollution
regulation, the saving clause negates the inference that Congress
‘left no room’ for state causes of action.”). These clauses, § 510
and § 505(e) of the citizen suit provision of the Act, provide as
Except as expressly provided in this Act, nothing in this
Act shall . . . be construed as impairing or in any
manner affecting any right or jurisdiction of the States
with respect to the waters (including boundary waters) of
§ 510; 33 U.S.C. § 1370.
Nothing in this section shall restrict any right which
any person (or class of persons) may have under any
statute or common law to seek enforcement of any effluent
standard or limitation or to seek any other relief . . .
§ 505(e); 33 U.S.C. § 1364(e).
However, the Supreme Court found that the savings clauses
limited the state law claims which remained.
The Court held that
the overall scheme of the Act, in addition to the fact that
§ 505(e) limits the states’ remaining regulatory rights to the
states’ own waters, required that the law of an affected state not
be used to regulate the discharge of effluents into the waters of
another state. Oullette, 479 U.S. at 494-499. The Court’s central
concern in determining that the application of state law in this
way was preempted, was that such application would “interfere with
the methods by which the [CWA] was designed to meet its goal.”
at 494 (citing Mich. Canners & Freezers Assn. v. Agricultural
Marketing & Bargaining Bd., 467 U.S.
461, 477 (1984)).
only allows source states, along with the federal government, to
regulate dischargers. Accordingly, allowing affected states to use
civil litigation to apply their own laws, which may require more
stringent effluent limitations than the NPDES permits held by outof-state dischargers, would allow affected states to indirectly
regulate out-of-state dischargers, thus frustrating the Act’s
purpose of developing “clear and identifiable requirements” through
standardized NPDES permits. See id.; and S. Rep. No. 94-414, p. 81
(1971), 2 Leg. Hist. 1499.
The Court found, however, that because the source state issues
the NPDES permit, and is permitted to impose state law upon instate dischargers so long as state law does not fall below the
requirements set by the CWA, application of source state common law
“would not frustrate the goals of the CWA.”
479 U.S. at 498-99.
The Court held that the discharger is already subject to the source
state laws, and thus the “imposition of source-state law does not
system” and does not create the concern of “being subject to an
indeterminate number of potential regulations.”
Id. at 499.
such, the Court held that the Act does not preempt the application
of source state law so long as that law does not conflict with the
requirements of the CWA.
Consol acknowledges the holding of Ouellette, and that the
Commonwealth’s claims, brought under the law of the source state,
are in line with the state law claims found to be preserved in that
However, Consol argues that the holding of Ouellette is
distinguishable from this case because the Supreme Court’s holding
in Ouellette must be limited to suits brought by individuals rather
than to suits brought by sovereign states, as is the case here.
such a case, Consol encourages this Court to apply Illinois v.
Milwaukee, 406 U.S. 91 (1972) (“Milwaukee I”), and Milwaukee II,
451 U.S. 304, as well as the reasoning in Ouellette, to find that
all state law claims brought by an affected state are completely
preempted, without regard to whether the affected state bases its
claims upon the source state’s law.
After thorough review, this
Court cannot make such a finding.
In Milwaukee I and Milwaukee II, the United States Supreme
Court held that federal law governed the regulation of interstate
Milwaukee I, decided before the 1972 amendments,
environmental rights of a State against improper impairment of
sources outside of its domain[,]” federal common law, rather than
state common law, was the proper controlling law over claims of
interstate water pollution. 406 U.S. at 107, n.9 (quoting Texas v.
Pankey, 441 F.2d 236, 241-42).
Milwaukee II, issued as a response
to an attempt by the State of Illinois to utilize federal common
law after the 1972 amendments, found that as a result of the
amendments, federal common law is completely preempted because
Congress utilized the statutory scheme of the CWA to create a
formulation of appropriate federal standards to the courts through
application of often vague and indeterminate nuisance concepts and
maxims of equity jurisprudence.”
451 U.S. at 317.
In support of its contention that the reasoning of Milwaukee
I and Milwaukee II require that Ouellette be limited to suits
brought by individual plaintiffs, Consol argues that allowing
affected states to bring state law claims under source state law
does the same damage contemplated in those cases with regard the
application of affected state law to the regulation of interstate
Thus, Consol argues, as was found with regard to
regulatory scheme created by Congress in the CWA does not leave
room for the application of state law in this way.
In Ouellette, the court, relying on the opinions in three
Milwaukee cases,3 pointed to two main bases for finding federal
preemption of the use of affected state law against out-of-state
First, the Court found that the application of a
state’s common law to out-of-state dischargers would frustrate the
goals of uniform standards for regulation of interstate water
pollution, and would result in confusion and disjointed, unforeseen
obligations for dischargers.
479 U.S. at 496 (“The application of
numerous States’ laws would only exacerbate the vagueness and
Second, it was determined that allowing affected states to
apply their own law in civil suits against out-of-state dischargers
would result in an ability to circumvent the Act’s limitation on
non-source states’ ability to participate in the regulation of outof-state dischargers by allowing them to indirectly regulate such
See id. at 495.
This Court finds that neither of these
concerns exist in this case.
Initially, it is noted that, while Consol heavily relies upon
the Milwaukee II decision to support its contention that the
The Ouellette court also relied on the reasoning of the
Seventh Circuit in Illinois v. Milwaukee, 731 F.2d 403 (1984)
(“Milwaukee III”), the opinion which resulted from the remand in
Milwaukee II, and which found in line with the Supreme Court’s
ultimate holding in Ouellette.
Commonwealth’s claims are completely preempted by the CWA, this
Court notes, as did the Supreme Court in Milwaukee II, that the
standard by which a court finds preemption of federal common law is
notably lower than the standard by which a court may find complete
preemption of state law.
451 U.S. at 316-17 (“Such concerns [of
federalism] are not implicated in the same fashion when the
governs, and accordingly the same sort of evidence of a clear and
undisputed that the Milwaukee II court found that the CWA preempted
federal common law, and clearly determined that the CWA is the law
in the field of interstate water pollution, it did not reach a
determination as to the scope of the savings clauses within the
Id. at 310 n.4.
One conclusion it did reach, however, was
that while the CWA did not specifically preserve federal common
waters)” in the § 510 savings clause.
33 U.S.C. § 1370; 451 U.S.
Finally, Consol fails to address Milwaukee III, where
on remand, the Seventh Circuit found that, had the State of
Illinois’ claims been based upon the source state law, they would
not be preempted by the CWA, which finding was seemingly endorsed
by the Supreme Court in Ouellette.
U.S. at 485-88.
See 731 F.2d at 414-15; 479
In addition to these issues with regard to the defendants’
offering of proof of Congress’ clear and manifest intent to
completely preempt the Commonwealth’s claims under West Virginia
law, the concerns of conflict between state law and the CWA found
in Ouellette are not present in this case.
Id. at 499.
stated above, the chief concern with regard to the application of
This is not a concern when an affected state seeks to
enforce source state law.
This issue of conflict articulated in
discharger, not the litigant enforcing that law.
If the source
state law is used, no matter who brings the claims, the discharger
will be subject only to the federal law and the source state law,
as was contemplated by the Court in Ouellette.
Id. at 498-99.
oral argument, the defendants argued that allowing states to bring
these actions would open the gates for other states downstream to
bring such lawsuits, thus exposing a discharger to liability to a
possibly unlimited number of affected states. (Hr’g Tr. *24)
Liability to a number of affected downstream states
poses no greater concern than liability to any number of citizens
from any number of affected downstream states.
Further, the only
standards of liability to which the discharger is held remain those
of the source state and the CWA.
Additionally, Consol argues that the Commonwealth here is
attempting to circumvent the CWA’s limitations on regulation of
dischargers through indirect regulation of the defendants by way of
this lawsuit. This argument too is without merit. This Court does
not quarrel with the Consol’s assertion that the CWA precludes the
Commonwealth from regulating, in its capacity as a sovereign lawmaking and law-enforcing entity, the defendants’ discharge of
effluents into West Virginia waterways. See Ouellette, 479 U.S. at
495, 497-98; and 33 U.S.C. § 1370 (“[N]othing in this Act shall
. . . be construed as impairing or in any manner affecting any
right or jurisdiction of the states with respect to the waters
(including boundary waters) of such states.”) (emphasis added).
However, the Commonwealth is not attempting to, as Consol
repeatedly quotes from Milwaukee II, establish “more stringent
standards applicable to out-of-state dischargers.”
In this case, the Commonwealth is not acting as a
sovereign law-making and law-enforcing entity.
451 U.S. at
Rather, it is
Virginia courts, for an alleged harm resulting from a perceived
violation of laws created by the State of West Virginia, which were
already applicable to the defendants by virtue of their discharge
of effluents into West Virginia waterways.
No more indirect
regulation of an out-of-state discharger can occur as a result of
this litigation than could result from the same suit being raised
by a private citizen of the Commonwealth of Pennsylvania.
Finally, there has not been presented, nor could this Court
find, any indication within the CWA or any of the cited Supreme
Court precedent of an intent to treat sovereign states acting as
plaintiffs any differently than private individual plaintiffs.
First, as indicated above, the court in Ouellette cited with
approval the Seventh Circuit’s finding in Milwaukee III that the
State of Illinois’ claims, if brought under the source state’s law,
Additionally, while concern was expressed for non-source state
regulation of dischargers, the focus within Ouellette, as well is
in both Supreme Court Milwaukee opinions, was on the enforcement of
non-source state laws upon dischargers, i.e., litigants asking
courts to enforce affected state laws on out-of-state dischargers.
No mention was made of concern for the party bringing such a state
law action, even when the plaintiff in the Milwaukee cases was a
Nor does the CWA draw any differentiation between states
acting as plaintiffs in civil litigation and any other type of
litigant that may bring an action based upon water pollution.
§ 1362, the definitions section of the Act, subsection five defines
the term “person” as it is used in the Act to include “individual,
commission, or political subdivision of a state, or any interstate
33 U.S.C. § 1362(5) (emphasis added).
In 33 U.S.C. § 1365,
the citizen suit provision of the Act, the CWA indicates that any
“citizen” may commence a civil action on his behalf under the Act,
and that a “citizen” is defined as a “person or persons having an
interest which is or may be adversely affected.” §§ 1365(a) & (g).
The savings clause of the citizen suit provision, quoted in full
above, goes on to assert that “[n]othing in this section shall
restrict any right which any person (or class of persons) may have
under any statute or common law . . .”
§ 1365(e) (emphasis added).
This Court further notes that, at oral argument, the defendants
conceded that the terms of the Act made a citizen suit available to
(Hr’g Tr. *25)
In short, the defendants have
provided this Court no basis upon which to find that Congress even
individuals and suits brought by States, let alone that Congress
intended to eliminate all state law actions brought by a sovereign
state in this situation.
Just as the Supreme Court held in
Ouellette that the Act preempts laws, not courts, so does this
Court conclude that the Act preempts laws, not parties.
Accordingly, this Court finds, as Consol argues, and as it
must based upon the United States Supreme Court’s findings in the
Milwaukee cases, that federal law, and specifically the CWA,
governs actions based upon interstate water pollution. At the same
time, this Court finds that the CWA specifically preserves the
availability of state law rights of action brought by any “person”
as defined by the Act, under the law of the source state.
U.S.C. § 1362(5).
Accordingly, the Commonwealth’s West Virginia
common law claims are not completely preempted by the CWA, and this
Court lacks jurisdiction to adjudicate this action.
As a result,
this Court also lacks jurisdiction to decide Consol’s motion to
accordingly deny the motions as moot, but without prejudice subject
to refiling in state court.
For the reasons stated above, the plaintiff’s motion to remand
(ECF No. 8) is GRANTED.
Accordingly, the plaintiff’s motion to
continue, or in the alternative, motion to stay pending ruling on
defendants’ motion to dismiss (ECF No. 23) and the defendants’
motion for partial summary judgment (ECF No. 53) are DENIED AS
Accordingly, this matter is hereby REMANDED to the Circuit
Court of Monongalia County, West Virginia.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the Clerk of
the Circuit Court of Monongalia County, West Virginia. Pursuant to
Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter
judgment on this matter.
September 4, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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