City of Greenville v. Syngenta Crop Prot. Inc.

• Decision Date: 18 November 2010
• Docket Number: Case No. 3:10–cv–188–JPG.
• Citation: 756 F.Supp.2d 1001
• Parties: CITY OF GREENVILLE, ILLINOIS, et al., Plaintiffs,v.SYNGENTA CROP PROTECTION, INC., and Syngenta AG, Defendants.
• Court: U.S. District Court — Southern District of Illinois

756 F.Supp.2d 1001

CITY OF GREENVILLE, ILLINOIS, et al., Plaintiffs,

v.SYNGENTA CROP PROTECTION, INC., and Syngenta AG, Defendants.

Case No. 3:10–cv–188–JPG.

United States District Court, S.D. Illinois.

Nov. 18, 2010.

Aaron M. Zigler, Christie R. Deaton, Christine J. Moody, Christopher A. Hoffman, Michael E. Klenov, Stephen M. Tillery, Korein Tillery, St. Louis, MO, Carla Burke, Celeste Evangelisti, Mitchell E. McCrea, Scott Summy, Baron & Budd, Dallas, TX, Patricia S. Murphy, Murphy Law Office, Energy, IL, for Plaintiffs.Kurtis B. Reeg, Reeg Lawyers, LLC, St. Louis, MO, Charles Adam Cerise, David M. Stein, Lara E. White, Mark C. Surprenant, Adams and Reese LLP, New Orleans, LA, Christopher MacNeil Murphy, Holland Marie Tahvonen, Jocelyn D. Francoeur, Michael A. Pope, Todd R. Wiener, McDermott, Will et al., Chicago, IL, for Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on defendant Syngenta Crop Protection, Inc.'s (“Syngenta”), Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) (Doc. 22). Because parts of the motion request dismissal for lack of subject matter jurisdiction, Federal Rule of Civil Procedure 12(b)(1) is also relevant. The plaintiffs have responded to the motion (Doc. 68). In addition, Syngenta has submitted supplemental authority (Doc. 102), and the plaintiffs have responded to that authority (Doc. 104).

I. Background

The plaintiffs, who are all providers of water to the public, are obligated under the Safe Drinking Water Act, 42 U.S.C. § 300f et seq., and the regulations promulgated thereunder, to test the finished water—that is, the water after the plaintiffs have processed it from their raw water—they provide to the public to ensure it does not contain contaminants in concentrations that exceed maximum contaminant levels (“MCLs”) deemed acceptable by the United States Environmental Protection Agency (“EPA”). One of the contaminants that can be found in raw water is atrazine, an herbicide used by farmers. The MCL for atrazine is 3 parts per billion (“pbb”) on an average annualized basis. See 40 C.F.R. § 141.50(b). The best available technology to remove atrazine from raw water is a granular activated carbon (“GAC”) filtration system. See 40 C.F.R. § 142.62.

The plaintiffs filed this lawsuit alleging that Syngenta manufactured atrazine and sold it to farmers knowing it had great potential to run off of crop land and into bodies of water, including the bodies of water from which water providers like the plaintiffs draw their raw water. The plaintiffs seek to hold Syngenta and its parent company, Syngenta AG, liable for the costs they have incurred to test and monitor levels of atrazine and to remove it from their raw water. They also seek to recover the costs that will be required for each plaintiff to construct, install, operate and maintain a GAC filtration system, or its equivalent, to filter atrazine from its raw water in the future, and to collect punitive damages. They assert state law causes of action for trespass onto their rights to possess the raw water (Count 1), public nuisance by unreasonably interfering with their use and enjoyment of their raw water sources (Count II), strict liability for manufacturing, marketing and selling an unreasonably dangerous product (Count III) and negligence for breaching various duties to the plaintiffs to avoid contaminating their raw water sources (Count IV). The plaintiffs plead their complaint as a class action.

Syngenta asks the Court to dismiss the plaintiffs' claims against it on the grounds that the plaintiffs do not have standing to bring this action because they have suffered no injury from Syngenta's actions. It also seeks to chip away at individual claims because they are have no merit under certain states' laws and to dismiss claims for damages based on future events or based on events that occurred more than five years before the plaintiffs filed this lawsuit.

The plaintiffs counter all Syngenta's arguments except one—that Indiana law, which would apply to the claims of plaintiffs City of Jasper, Indiana, and Indiana–American Water Company, does not provide a cause of action for strict products liability for design defects.

The Court addresses each argument in turn, beginning, of course, with the issue of standing.

II. AnalysisA. Standing

The doctrine of Article III standing is a component of the Constitution's restriction of federal courts' jurisdiction to actual cases or controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see U.S. Const. art. III, § 2. Standing contains three elements:

First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical.... Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court..... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Id. at 560–61, 112 S.Ct. 2130 (internal citations, quotations and footnotes omitted). The party asserting federal jurisdiction bears the burden of establishing it “with the manner and degree of evidence required at the successive stages of the litigation.” Id. at 561, 112 S.Ct. 2130 (citing Lujan v. National Wildlife Federation, 497 U.S. 871, 883–89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). Thus, at the pleading stage, the plaintiffs must sufficiently allege facts to support their standing to sue. Syngenta's standing challenge centers on the plaintiffs' pleading of the first element—injury in fact.

The Court considers Syngenta's standing argument under Federal Rule of Civil Procedure 12(b)(1) because it challenges the Court's subject matter jurisdiction. When considering a motion to dismiss under Rule 12(b)(1), the Court “must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff.” Long v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir.1999). It may, however, “properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Id.

Syngenta argues that the plaintiffs have not adequately alleged an injury in fact because they have not alleged that their raw water sources or the finished water they provide to the public contain atrazine above the MCL. As a consequence, Syngenta argues, the plaintiffs have suffered no injury from its conduct because they have not been impaired in their ability to provide potable water to the public and have not demonstrated a likelihood they will be so impaired in the future. Syngenta cites in support of its position Iberville Parish Waterworks District No. 3 v. Novartis Crop Protection, Inc., 45 F.Supp.2d 934, 938 (S.D.Ala.), aff'd, 204 F.3d 1122 (11th Cir.1999), as well as a number of cases in which courts have found no injury in fact where contamination of the plaintiff's property has not exceeded, or even approached, the MCL or other acceptable levels as determined by an administrative agency. See, e.g., Koronthaly v. L'Oreal USA, Inc., 374 Fed.Appx. 257, 259 (3d Cir.2010) (purchasers of lipstick had no standing to sue lipstick manufacturer where lipstick lead content did not exceed safe levels as determined by Food and Drug Administration); Rockwell Int'l Corp. v. Wilhite, 143 S.W.3d 604, 623 (Ky.App.2003) (landowners had no standing to sue for damage to land contaminated by insignificant amounts of polychlorinated biphenyls, also known as PCBs); City of Moses Lake v. United States, 430 F.Supp.2d 1164, 1184 (E.D.Wash.2006) (without addressing the standing issue, court held municipal water supplier suffered no injury where there was no danger of contaminants in excess of the MCL during the relevant time period).

The plaintiffs, on the other hand, argue that the mere presence of atrazine in their raw water sources causes injury because they must monitor and remediate the contamination to ensure atrazine levels in their finished water do not exceed the MCL. Whether the levels exceed the MCL is not a bright-line test for injury, they claim. In support of their position, the plaintiffs rely on In re: Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 458 F.Supp.2d 149 (S.D.N.Y.2006).

In Iberville Parish, the primary case on which Syngenta relies, two local water systems sued an atrazine producer for the increased water processing costs they had incurred, or would be forced to incur, to remove atrazine from their raw water as well as costs for testing their raw water for the presence of atrazine. Iberville Parish, 45 F.Supp.2d at 936. Although the atrazine concentration in its finished water had never exceeded the MCL, the first plaintiff had taken certain (unsatisfactory) measures to reduce the threat of high atrazine levels by removing it from its raw water and hoped to install a GAC filter system to remove all atrazine from its raw water. Id. at 938–39. The second plaintiff, whose finished water had also never exceeded the MCL, had installed a pilot GAC filter system and intended to install a full-scale GAC system in a general effort to improve its water treatment but not specifically in response to an atrazine threat. Id. at 940. The court concluded that neither party had suffered an injury in fact. Id. at 941. It assumed without discussion that there could be no injury from atrazine contamination unless a water provider's finished water exceeded the MCL. Id. at 941–42. There had been no such injury and there was no imminent danger of one, so the court concluded the plaintiffs did...