Earth Island Inst. v. Wheeler

• Decision Date: 02 June 2020
• Docket Number: Case No. 20-cv-00670-WHO
• Parties: EARTH ISLAND INSTITUTE, et al., Plaintiffs, v. Andrew R. WHEELER, et al., Defendants.
• Court: U.S. District Court — Northern District of California

464 F.Supp.3d 1138

EARTH ISLAND INSTITUTE, et al., Plaintiffs,

v.Andrew R. WHEELER, et al., Defendants.

Case No. 20-cv-00670-WHO

United States District Court, N.D. California.

Signed June 2, 2020

Claudia Polsky, Environmental Law Clinic UC Berkeley School of Law, Berkeley, CA, for Plaintiffs Earth Island Institute, Rosemary Ahtuangaruak, Alaska Community Action on Toxics, Cook Inletkeeper, Kindra Arnesen.

Kristen Monsell, Center for Biological Diversity, Oakland, CA, Claudia Polsky, Environmental Law Clinic UC Berkeley School of Law, Berkeley, CA, for Plaintiff Center for Biological Diversity.

Mark Albert Rigau, U.S. Department of Justice, San Francisco, CA, for Defendants.

ORDER RE MOTION TO DISMISS

Re: Dkt. No. 16

William H. Orrick, United States District Judge Defendants Andrew Wheeler and the U.S. Environmental Protection Agency (collectively, "EPA") bring this motion to dismiss plaintiffs’ (collectively, "Earth Island") cause of action for violation of the Clean Water Act ("CWA"). At issue is whether, as a matter of law, the CWA imposes a nondiscretionary duty on the EPA to update or amend the National Contingency Plan ("NCP"), a plan for responding to oil and hazardous substance contamination that is mandated by the CWA; if so, Earth Island is allowed to bring a cause of action pursuant to the CWA's citizen-suit provision. I find that the EPA has such a duty and its motion is DENIED. In addition, I DENY the American Petroleum Institute's motion to intervene because this lawsuit addresses the agency's procedure, not its substantive decision.

BACKGROUND

Earth Island filed this action on January 30, 2020, alleging causes of action under the CWA and the Administrative Procedure Act ("APA"). Dkt. No. 1. In brief, Earth Island alleges that the current NCP is "obsolete and dangerous" because, among other reasons, it continues to permit the use of chemical dispersants that are now known to be harmful to humans and the environment. Id. ¶¶ 1-2. It contends that in failing to update the NCP in over a quarter-century, the EPA is in violation of its obligations under the CWA. Id. ¶¶ 2-3. It asserts that I have jurisdiction over this case pursuant to the citizen-suit provision of the CWA, 33 U.S.C. § 1365(a)(2). Id. ¶ 8. It states that for the same reasons, the EPA violated its duties under the APA to conclude a matter presented to it within a reasonable time. Id. ¶ 4.

The EPA filed a motion to dismiss the CWA claim (but not the APA claim) on March 31, 2020. Dkt. No. 16. In addition, the American Petroleum Institute ("API") filed a motion to intervene, to which the EPA filed a notice of non-opposition. Dkt. Nos. 23, 27. Earth Island opposes both motions. Dkt. Nos. 26, 29.

LEGAL STANDARD

I. MOTION TO INTERVENE

Federal Rule of Civil Procedure 24 provides for both intervention as a matter of right and permissive intervention. Under Rule 24(a), a party may intervene as a matter of right if (i) a federal statute gives it an unconditional right to intervene, or (ii) the party "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." Fed. R. Civ. P. 24(a).

Permissive intervention is governed by Rule 24(b) and provides that the court may permit a party to intervene if (i) there is a conditional right to intervene provided in a federal statute, (ii) the party's claim or defense shares a "common question of law or fact" with the main action, and (ii) the intervention will not unduly "delay or prejudice the adjudication of the original parties’ rights." Fed. R. Civ. P. 24(b). "In ruling on a motion to intervene, a district court is required to accept as true the non-conclusory allegations made in support of [the] intervention motion." Koike v. Starbucks Corp. , 602 F.Supp.2d 1158, 1160 (N.D. Cal. 2009) (internal quotations omitted).

II. RULE 12(B)(1)

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure is a challenge to the court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "Federal courts are courts of limited jurisdiction," and it is "presumed that a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The party invoking the jurisdiction of the federal court bears the burden of establishing that the court has the authority to grant the relief requested. Id. A challenge pursuant to Rule 12(b)(1) may be facial or factual. See White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, the jurisdictional challenge is confined to the allegations pled in the complaint. See Wolfe v. Strankman , 392 F.3d 358, 362 (9th Cir. 2004). The challenger asserts that the allegations in the complaint are insufficient "on their face" to invoke federal jurisdiction. See Safe Air Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). To resolve this challenge, the court assumes that the allegations in the complaint are true and draws all reasonable inferences in favor of the party opposing dismissal. See Wolfe , 392 F.3d at 362.

III. RULE 12(B)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the plaintiff pleads facts that "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). There must be "more than a sheer possibility that a defendant has acted unlawfully." Id. While courts do not require "heightened fact pleading of specifics," a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 570, 127 S.Ct. 1955.

In deciding whether the plaintiff has stated a claim upon which relief can be granted, the Court accepts the plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. Usher v. City of Los Angeles , 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig. , 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). If the court dismisses the complaint, it "should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith , 203 F.3d 1122, 1127 (9th Cir. 2000) (citation omitted). In making this determination, the court should consider factors such as "the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment." Moore v. Kayport Package Express , 885 F.2d 531, 538 (9th Cir. 1989).

DISCUSSION

The parties dispute whether this motion is properly resolved pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction, or pursuant to Rule 12(b)(6) for failure to state a claim. Dkt. No. 16 at 2, 4-6; Dkt. No. 26 at 7-10; Dkt. No. 28 at 3-6. A ruling under either subsection of Rule 12 involves the legal question of whether Earth Island may bring a cause of action under the CWA for a violation of 33 U.S.C.A. § 1321(d)(3). Because I find that Earth Island may bring a CWA claim, as discussed below, I find that it has satisfied the requirements of both Rule 12(b)(1) and Rule 12(b)(6).

I. LEGAL FRAMEWORK

33 U.S.C.A. § 1321, titled "[o]il and hazardous substance liability," provides the CWA's provisions related to the NCP. Subsection (d)(1) states that "[t]he President shall prepare and publish a National Contingency Plan for removal of oil and hazardous substances pursuant to this section." 33 U.S.C.A. § 1321(d)(1). This "shall provide for efficient, coordinated, and effective action to minimize damage from oil and hazardous substance discharges, including containment, dispersal, and removal of oil and hazardous substances, and shall include" various actions not at issue here. Id. § 1321(d)(2). Subsection (d)(3)—the provision at issue in this motion—states that "[t]he President may, from time to time, as the President deems advisable, revise or otherwise amend the National Contingency Plan." Id. § 1321(d)(3).¹ Subsection (d)(4) states that "[a]fter publication of the National Contingency Plan, the removal of oil and hazardous substances and actions to minimize damage from oil and hazardous substance discharges shall, to the greatest extent possible, be in accordance with the National Contingency Plan." Id. § 1321(d)(4).

The CWA's citizen suit provision, pursuant to which Earth Island brings this action, states that a citizen may bring a civil action "against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator." 33 U.S.C.A. § 1365(a)(2). To compel agency action under this provision, "a citizen suit must point to a nondiscretionary duty that is ‘readily-ascertainable’ and not ‘only [ ] the product of a set of inferences based on the overall statutory scheme.’ " Our Children's Earth Found. v. U.S. E.P.A. , 527 F.3d 842, 851 (9th Cir. 2008) (citation omitted). In other words, courts "must be able to identify a specific, unequivocal command from the text of the statute at issue using traditional tools of statutory interpretation; it's...