Celanese Corp. v. Costal Water Authority
| Decision Date | 09 February 2007 |
| Docket Number | Civil Action No. H-06-2265. |
| Citation | 475 F.Supp.2d 623 |
| Parties | CELANESE CORPORATION, Plaintiff, v. COASTAL WATER AUTHORITY., et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Alistair Byrne Dawson, Beck Redden & Secrest LLP, Houston, TX, John M. Terry, Joseph G. Nassif, Michael D. Montgomery, Husch & Eppernberger LLC, St. Louis, MO, for Plaintiff.
Keith Walton Lapeze, Vinson & Elkins, Houston, TX, Steve Leifer, Baker Botts, Washington, DC, for Defendants.
This case is before the court1 on the motions to dismiss of defendants Coastal Water Authority (Dkt.12) and Kellogg, Brown & Root, Inc. (Dkt.14). Having considered the parties' submissions, argument of counsel at the January 12, 2007 hearing, and the law, the court concludes that defendants' motions should be granted in part and denied in part and plaintiff Celanese Corporation should be given an opportunity to amend its complaint.
Plaintiff Celanese Corporation seeks recovery of costs incurred in remediating environmental damage related to the release of methanol from a damaged pipeline in the City of Shoreacres, Texas. According to its complaint, Celanese discovered a leak in its methanol pipeline in 2002 and took steps to remediate the contamination from the leak and investigate its cause. Celanese alleges that the pipeline was damaged in 1978 by the bucket of a backhoe during excavation for installation of a 30" raw water pipeline below and perpendicular to the methanol pipeline. CWA contracted with KBR to design and supervise installation of the 30" raw water pipeline. Martin K. Eby Corporation was the contractor responsible for the installation of the 30" water pipeline. According to Celanese, defendants knew the pipe was damaged, and tried to hide the damage by backfilling soil over the damaged pipeline and not informing Celanese of the incident.
Celanese has sued Coastal Water Authority (CWA), Kellogg, Brown & Root, Inc. (KBR), and Martin K. Eby Corporation alleging causes of action pursuant to Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9607, Section 361.344 of the Texas Solid Waste Disposal Act (SWDA), TEX. HEALTH & SAFETY CODE § 361.344, and Texas common law of fraud, public nuisance, and restitution.2 CWA and KBR move to dismiss all of Celanese's causes of action pursuant to Federal Rule of Civil Procedure 12(b)(6). CWA also moves to dismiss Celanese's claims under Federal Rule of Civil Procedure 12(b)(1).
CWA's motion based on sovereign immunity from suit is a challenge to the court's subject matter jurisdiction. Warnock v. Pecos Cty., Texas, 88 F.3d 341, 343 (5th Cir.1996). When a Rule 12(b) (1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. The burden of establishing subject matter jurisdiction is on the party invoking the court's jurisdiction. Hartford Ins. Group v. Low-Con, Inc., 293 F.3d 908, 910 (5th Cir.2002). Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief. Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998).
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is viewed with disfavor and is rarely granted. Priester v. Lowndes County, 354 F.3d 414, 418 (5th Cir.2004) ). The complaint must be liberally construed in favor of the plaintiff and all well-pleaded facts taken as true. Id. A claim may only be dismissed if the plaintiff is not entitled to relief under any set of facts or any possible theory of recovery that he could prove consistent with the allegations in his complaint. Id. (citing Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999)).
Texas common law of sovereign immunity shields the state of Texas and its governmental units from lawsuits for damages unless the immunity has been waived or the state entity has consented to suit. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694-95 (Tex.2003). Celanese does not argue that CWA is not a governmental unit for state law sovereign immunity purposes, but contends that the state waived sovereign immunity in the SWDA. Celanese also argues that Texas courts recognize an exception to sovereign immunity for a claim of public nuisance that rises to the level of a constitutional taking.3
The SWDA provides:
A person who conducts a removal or remedial action that is approved by the commission and is necessary to address a release or threatened release may bring suit in a district court to recover the reasonable and necessary costs of that action and other costs as the court, in its discretion, considers reasonable. This right is in addition to the right to file an action for contribution, indemnity, or both in an appeal proceeding or in an action brought by the attorney general.
TEX. HEALTH & SAFETY CODE § 361.344. The SWDA creates liability for persons responsible for solid waste as follows:
(a) Unless otherwise defined in applicable statutes and rules, a person is responsible for solid waste if the person:
(1) is the owner or operator of a solid waste facility;
(2) owned or operated a solid waste facility at the time of processing, storage, or disposal of any solid waste;
(3) by contract, agreement, or otherwise, arranged to process, store, or dispose of, or arranged with a transporter for transport to process, store, or dispose of, solid waste owned or possessed by the person, by any other person or entity at:
(A) the solid waste facility owned or operated by another person or entity that contains the solid waste; or
(B) the site to which the solid waste was transported that contains the solid waste; or
(4) accepts or accepted any solid waste for transport to a solid waste facility or site selected by the person.
Id. § 361.271. "Person" is defined in the SWDA as "an individual, corporation, organization, government or governmental subdivision or agency, business trust, partnership, association, or any other legal entity." TEX. HEALTH & SAFETY CODE § 361.003(23) (emphasis added).
Celanese argues that the legislature clearly and unambiguously expressed its intent to waive sovereign immunity by including governmental entities in the definition of "person" in the SWDA. Because of this definition, the SWDA expressly makes a governmental entity that fits one of the four categories set out in § 361.271 "a person responsible for solid waste" that may be sued under § 361.
344. Celanese bolsters this argument by reference to § 361.271(g), which provides:
(g) A port authority or navigation district created under Section 59, Article XVI, or Section 52, Article III, Texas Constitution, is not a person responsible under this chapter for the release or threatened release of hazardous waste from a facility or at a site solely for its activities related to construction or maintenance of waterways to facilitate navigation if, in performing those activities:
(1) the port authority or navigation district is acting by virtue of the authority's or district's function as sovereign;
(2) the port authority or navigation district requires that dredged materials be sampled and analyzed before placement or storage of those materials on land or submerged land; and
(3) the port authority or navigation district, after exercising due diligence, does not accept dredged materials that are hazardous waste.
If the legislature did not intend to waive sovereign immunity for suits under the SWDA, argues Celanese, then § 361.271(g) would be superfluous because port authorities and navigation districts are governmental units that enjoy the protection of sovereign immunity.
"In order to preserve the legislature's interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language." Tex. Gov't Code § 311.034. In Wichita Falls, the Texas Supreme Court identified several aids to assist courts in determining whether the Legislature has clearly and unambiguously waived sovereign immunity in the absence of explicit language in the statute. First, while the statute need not be "a model of perfect clarity," the waiver must be beyond doubt, such as when a provision would be meaningless otherwise. Second, ambiguities are resolved in favor of retaining immunity. Third, if the Legislature required the state to be joined in a lawsuit for which immunity would otherwise attach, immunity has been waived. Fourth, it is often the case that where the Legislature has explicitly waived immunity, it has also enacted simultaneous measures to insulate public resources from judgment. Wichita Falls, 106 S.W.3d at 697-98.
The court used these aids in Wichita Falls to analyze the Patient's Bill of Rights, TEX. HEALTH & SAFETY CODE § 321.003. The Patient's Bill of Rights permits a person harmed by a mental health facility's violation of the statute to sue for injunctive relief, damages, or both. Id. at 698. The Patient's Bill of Rights does not contain a definition of "mental health facility," but incorporates the definition contained in TEX. HEALTH & SAFETY...
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