Arc Ecology v. U.S. Dept. of Air Force

• Decision Date: 03 December 2003
• Docket Number: No. C02-05651JW.,C02-05651JW.
• Citation: 294 F.Supp.2d 1152
• Court: U.S. District Court — Northern District of California
• Parties: ARC ECOLOGY, et al., Plaintiffs, v. U.S. DEPT. OF THE AIR FORCE, et al., Defendants.

294 F.Supp.2d 1152

ARC ECOLOGY, et al., Plaintiffs, v. U.S. DEPT. OF THE AIR FORCE, et al., Defendants.

No. C02-05651JW.

United States District Court, N.D. California.

December 3, 2003.

Scott J. Allen, Cox & Moyer, San Francisco, CA, for Plaintiffs.

Martin F. McDermott, Norman L. Rave, Jr., U.S. Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

WARE, District Judge.

I. INTRODUCTION

This action requires the Court to decide if Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., applies to claims brought by citizens of a foreign country against the United States to assess the alleged pollution on former U.S. military bases located in a foreign country. Pursuant to CERCLA, Plaintiffs request an order compelling the Defendants to (1) conduct preliminary assessments of the properties of two former United States military bases in the Philippines, Clark Air Force Base ("Property Formerly Clark A.F. Base") and the Subic Bay Naval Base ("Property Formerly Subic Naval Base") and (2) seek an order declaring that the provisions of CERCLA apply to those two former United States military bases. The Court finds that CERCLA does not apply to foreign countries and orders the case dismissed.

II. BACKGROUND

The Plaintiffs in this case are Filipino citizens who live or travel around property in the Philippines which were former United States military bases.¹ The individual Plaintiffs are joined by two organizations, Arc Ecology and the Filipino-American Coalition for Environmental Solutions. According to the Complaint, Arc Ecology and Filipino-American Coalition for Environmental Solutions, are non-profit organizations formed for the purpose of, among other things, forming coalitions with and supporting individuals and community groups in obtaining assessment and cleanup of environmental pollution on former United States military bases in the Philippines. Plaintiffs contend that the individually named Plaintiffs are members of at least one if not both of these organizations.

The Defendants are the United States Department of the Air Force, the United States Department of the Navy, the United States Department of Defense, and Donald Rumsfeld, in his official capacity as United States Secretary of Defense (collectively, the "Defendants").

In addition to their claims under CERCLA, Plaintiffs seek an order stating that Section 300.420(b)(5) of the National Contingency Plan applies to the former military bases in the Philippines. Plaintiffs bring the same claims pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., seeking an order declaring that the Defendants' failure and refusal to conduct preliminary assessments at the Property Formerly Clark A.F. Base and the Property Formerly Subic Naval Base constitutes: (a) agency action unlawfully withheld or unreasonably delayed under 5 U.S.C. § 706(1), and, or in the alternative (b) agency actions, findings, and conclusions that are arbitrary, capricious, an abuse of discretion or otherwise not in accordance with 5 U.S.C. § 706(2).

Defendants move the Court to dismiss the Complaint on the grounds that the Plaintiffs lack standing, Plaintiffs' failure to state a claim on which relief can be granted, and that venue is not proper in this district. The Defendants contend that CERCLA does not apply extraterritorially.

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of claims asserted in a complaint. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). Dismissal under Rule 12(b)(6) is appropriate where it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

III. DISCUSSION

A. Standing

The liberal reading accorded complaints on 12(b)(6) motions is subject to the requirement that the facts demonstrating standing must be clearly alleged in the Complaint. See Jenkins v. McKeithen, 395 U.S. 411, 422, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). The Supreme Court has three constitutional standing requirements. See Edwin Chemerinsky, Federal Jurisdiction Third Edition (1999) p. 59 (citing Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) and Northeastern Florida Contractors v. Jacksonville, 508 U.S. 656, 663, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993)). First, the Plaintiffs must allege that he or she has suffered or imminently will suffer an injury. Id. Second, the Plaintiffs must allege that the injury is fairly traceable to the Defendants' conduct. Id. Third, the Plaintiffs must allege that a favorable federal court decision is likely to redress the injury. Id.

Defendants contend that the Plaintiffs lack standing due to the vagueness of the alleged injuries suffered by the Plaintiffs. Plaintiffs contends CERCLA § 105(d) authorizes any person who is, or may be, affected by a release or threatened release of a hazardous substance to petition to have a preliminary assessment addressing the release. Plaintiffs assert that their Amended Complaint is not vague because it alleges that numerous hazardous substances, pollutants and contaminants, including toxic solvents and other organic pollutants, have been discharged at the Clark and Subic properties as a result of the Defendants' actions.

The Defendants cite to US. v. AVX Corp., 962 F.2d 108 (1st Cir.1992) as instructive on the type of injury that must be alleged in a CERCLA case. In AVX, an environmental organization intervened in a pollution cleanup action brought on behalf of the EPA under CERCLA. The court explained that because the constitutional doctrine of standing "seeks to ensure the existence of a case or controversy by focusing on the harm to the complainant, it is unsurprising that the `personal injury' prong of the standing inquiry has received the bulk of the [Supreme] Court's attention." AVX Corp., 962 F.2d at 113. Then, the court stated that, to survive a motion challenging a party's standing, the alleged injury must be real, and "mere interest in an event — no matter how passionate or sincere the interest and no matter how charged with public import the event — will not substitute for an actual injury." Id. at 114.

The AVX court went on to rule that the complainant had failed to set forth "reasonably definite factual allegations, either direct or inferential, regarding each material element needed to sustain standing." AVX Corp., 962 F.2d at 115. Aside from the general averment of injury to the organization's members, the court found that no specific allegations were made that members lived near the affected area and no allegations were made as to the extent and frequency of members' use of that area. Id. at 117. The court ruled that the claimed injury was not "anchored in any relevant particulars" and that a "bare-bones allegation, bereft of any vestige of a factual fleshing-out, is precisely the sort of speculative argumentation that cannot pass muster where standing is contested." Id. at 117.

Here, Plaintiffs' Amended Complaint does name individual Plaintiffs. Plaintiffs assert that Individual Plaintiffs live or travel on the former Clark and Subic base properties, and that they have been or may be exposed to the hazardous substances, pollutants or contaminants that were released on those properties. See Plaintiffs' Opposition, p 4.

Whether Individually Named Plaintiffs have standing in this case is a close call. Plaintiffs are seeking an order compelling Defendants to conduct "preliminary assessments" of alleged environmental contamination under CERCLA and are not asserting any tort based causes of action. The Court finds that alleged injury (exposure to contaminants and denial of preliminary assessments) is traceable to the defendants' alleged conduct (Defendants' denied Plaintiffs' request to issue preliminary assessments). Also, the Court finds that a favorable federal court decision would likely redress the alleged injury.

The finding of standing for the Individual Plaintiffs permits the Court to reach the question of whether the allegations are otherwise sufficient to state a claim on which relief can be granted under Rule 12(b)(6). Because later in this Order the Court finds that the allegations are not sufficient, the Court need not reach the question of whether Plaintiffs Arc Ecology and the Filipino-American Coalition for Environmental Solutions also have standing to assert the same claims on behalf of their members. See Western Min. Council v. Watt, 643 F.2d 618, 628 n. 16 (9th Cir.1981).

B. Subject Matter Jurisdiction

A claim that a right exists under federal law is enough for jurisdiction unless the claim is insubstantial or frivolous. See Wright, Miller & Copper, Federal Practice and Procedure: Jurisdiction 2d § 3562 at 40-41. A substantial claim that a remedy may be implied from a federal statute is enough for jurisdiction. Id. If it is held that federal law does not provide for the remedy, the dismissal should be on the merits rather than for want of jurisdiction. Id. (citing Jackson Transit Authority v. Local Division 1285, Amalgamated Transit Union, AFL-CIO-CLC, 457 U.S. 15, 20-22, 102 S.Ct. 2202, 72 L.Ed.2d 639 (1982)).

Plaintiffs' contention that CERCLA applies extraterritorially is one of first impression. "When the plaintiff bases his cause of action upon an Act of Congress jurisdiction cannot be defeated by a plea denying the merits of his claim." Amlon Metals, Inc. v. FMC Corp., 775 F.Supp. 668, 670 (S.D.N.Y.1991) (quoting The Fair v. Kohler Die and Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913)); see also Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946) (holding that jurisdiction is not defeated by the possibility that the averments might fail to state a...