Detroit Audubon Soc. v. City of Detroit
| Decision Date | 24 February 1988 |
| Docket Number | No. 87-CV-71577-DT,87-CV-71578-DT.,87-CV-71577-DT |
| Citation | 696 F. Supp. 249 |
| Parties | DETROIT AUDUBON SOCIETY, a Michigan Non-Profit Corporation, North Cass Community Union, a Michigan Non-Profit Corporation, Sierra Club, a California Non-Profit Corporation and Environmental Defense Fund, Inc., a New York Non-Profit Corporation, Plaintiffs, v. CITY OF DETROIT, a Michigan Municipal Corporation, and Greater Detroit Resource Recovery Authority, Inc., a Michigan Public Corporation, and Combustion Engineering Co., Defendants. HER MAJESTY THE QUEEN IN RIGHT OF the PROVINCE OF ONTARIO; Ian G. Scott, Attorney General for Ontario, and James Bradley, Minister of the Environment of the Province of Ontario, Plaintiffs, v. GREATER DETROIT RESOURCE RECOVERY AUTHORITY, and Combustion Engineering, Inc., a Delaware Corporation, Jointly and Severally, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Mark A. Richardson, Detroit, Mich., for Detroit Audubon Soc., North Cass Community Union and Sierra Club.
Michael Herz, New York City, for Environmental Defense Fund.
Donald Pailen, City of Detroit Corporate Counsel, Detroit, Mich., for City of Detroit.
Donnelly W. Hadden, Detroit, Mich. and Jeffrey K. Haynes, Vanderkloot & Haynes, P.C., Bloomfield Hills, Mich., for Province of Ontario.
John D. Pirich, Miller, Canfield, Paddock and Stone, Lansing, Mich., for Greater Detroit Resource Recovery Aurity, Combustion Engineering, Inc.
Stanley M. Gorinson, Joseph Cannon, Kevin Sullivan, Steven Christiansen, Washington, D.C., for Combustion Eng.
Defendants filed a Motion for Summary Judgment pursuant to F.R.Civ.P. 56(c) and Suggestion of Judicial Notice in each of the above cases. Because these cases involve common issues and many of the pleadings filed are substantially similar, the two cases will be consolidated for purpose of the above motions only.
Plaintiffs in the first action (87-CV-71577-DT) are four non-profit organizations concerned with the environment. Plaintiffs in the second action (87-CV-71578-DT) are the Canadian Province of Ontario, the Attorney General for Ontario, and the Minister of the Environment for Ontario. Defendants in both actions are the Greater Detroit Resource Recovery Authority (GDRRA),* a municipal corporation which has as its sole purpose construction of a municipal solid waste combustion facility in Detroit, Combustion Engineering Company (C-E), the construction company retained to build that facility, and the City of Detroit.
The environmental groups filed this lawsuit under the Michigan Environmental Protection Act (MEPA), M.C.L. 691.1201 et seq. and allege two causes of action in their complaint. In Count I plaintiffs allege that when completed the Detroit incinerator will be one of the largest municipal incinerators in the world and will have the capacity to process approximately 4,000 tons of residential and commercial waste (RDF) per day. Municipal solid waste delivered to the incinerator will be processed into fuel and burned in three boilers. Steam generated by burning the RDF will be sold to Detroit Edison Company and will be used to power the facility. The environmental organizations allege that process and ash residue will be disposed of in a municipal landfill. They further argue that the incinerator will emit vast amounts of pollution into the atmosphere. These emissions will consist of both particulate and gaseous matter and will include at least 50 separate known pollutants including dioxins, furans, mercury (particulates) and sulfer dioxide, hydrogen choloride, hydrogen floride and nitrogen dioxide (gases).
Pursuant to the permit issued, defendants will attempt to control particulate emissions with devices called electrostatic precipitators which plaintiffs allege are not as effective as other available pollution control devices such as baghouses and scrubbers. Plaintiffs allege that defendants have violated their statutory duty to prevent or minimize environmental degradation by planning and constructing the incinerator without adequate air pollution control equipment, without adequate plans to dispose of incinerator ash and process residue, and without any plan for reducing pollution-causing waste through separation and recycling. Relying on this count in their complaint, plaintiffs seek (1) a finding by this court that the facility will or is likely to cause pollution and, (2) to enjoin construction of the facility.
In Count II of the complaint, the environmental organizations allege that defendants had a duty to consider and determine the likely environmental effects of the proposed incinerator and to consider alternatives to construction of the incinerator. Again, defendants seek to enjoin construction of the facility. Plaintiffs allege that this duty also arises under MEPA.
The Ontario plaintiffs' complaint, originally filed in Wayne County Circuit Court, also relies on the Michigan Environmental Protection Act. The Ontario complaint alleges that the incinerator as proposed will or is likely to pollute, impair, or destroy the air, water, and other natural resources of the State of Michigan and of the Province of Ontario, and the public trust therein in one or more of the following ways, including, but not limited to:
Ontario plaintiffs also seek to enjoin construction of the facility or to have this court order the facility to install an acid gas scrubber and fabric filter.
Both complaints were removed to this court by defendants. Plaintiffs sought to remand both actions. This court subsequently denied both motions to remand finding that the plaintiffs' complaints were artfully pled in a purposeful attempt to deprive the federal court of jurisdiction and that the issues raised actually are federal matters.
Defendants now move for summary judgment on both complaints. The bases asserted by defendants for summary judgment are that plaintiffs' complaints are not timely; that plaintiffs' complaints are barred by principles of res judicata and collateral estoppel; and, that plaintiffs' complaints state no legally cognizable claim. In addition, defendants allege that summary judgment is appropriate against the Ontario plaintiffs because they have no standing to bring this lawsuit.
Defendants also move this court to take judicial notice of civil action 86-CV-72910-DT, a related proceeding heard by this court. For the reasons stated below and on the record following oral argument heard in these matters, defendants' motions are granted.
Defendants ask this court to take judicial notice of civil action 86-CV-72910-DT, pursuant to F.R.Evid. 201. As it may assist in understanding the sequence of events in this litigation, the court will first address this matter. Defendants cite Rodic v. Thistledown Racing Club, 615 F.2d 736, 738 (6th Cir.1980), cert. denied, 449 U.S. 996, 101 S.Ct. 535, 66 L.Ed.2d 294 (1980) in support of their motion. The Ontario plaintiffs oppose this court's taking judicial notice of 86-CV-72910-DT. Ontario plaintiffs incorrectly argue that taking judicial notice is the same as res judicata, although they do agree that this court can take judicial notice of the fact that a prior lawsuit did occur. They also note that Rodic, supra, and Grenader v. Public Bank, 417 F.2d 75 (6th Cir.1969), cert. denied, 397 U.S. 1065, 90 S.Ct. 1503, 25 L.Ed. 2d 686 (1970), which is cited in Rodic, hold that federal courts may take judicial notice of proceedings in other courts of record but argue that in both cases the court took judicial notice of proceedings in a prior state action between the same parties.
However, other cases hold that a court can take judicial notice of a related proceeding even if not all parties are identical. See United States v. Author Services, Inc., 804 F.2d 1520 (9th Cir.1986); MacMillan Bloedel Ltd. v. Flintkote Co., 760 F.2d 580 (5th Cir.1985); see also, Green v. Warden, U.S. Penitentiary, 699 F.2d 364 (7th Cir. 1983), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983), which held that federal courts may take judicial notice of proceedings in other courts, both within and outside a federal judicial system, if the proceedings have a direct relation to matters at issue.
The facts underlying these lawsuits did not recently come into being nor do they exist in a vacuum. This court cannot close its eyes and ignore all of the prior proceedings regarding this trash incinerator. This court will take judicial notice of civil action 86-CV-72910-DT in which this court determined that based on the record at that time, the defendants were acting pursuant to a validly issued permit. As of this date, the validity of that permit has not been further challenged.
Defendants argue that the Ontario plaintiffs lack standing to bring the present lawsuit. Defendants refer the court to Article III of the United States Constitution...
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Her Majesty The Queen In Right of the Province of Ontario v. City of Detroit
...February 24, 1988, the district court decided all pending motions. It granted defendants' motions for summary judgments in both actions, 696 F.Supp. 249, denied Detroit Audubon's second motion to remand, and denied both motions to certify the initial remand denial for interlocutory The dist......
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