Clarke v. Pac. Gas & Elec. Co., Case No. 20-cv-04629-WHO
| Decision Date | 20 November 2020 |
| Docket Number | Case No. 20-cv-04629-WHO |
| Citation | 501 F.Supp.3d 774 |
| Parties | Dan CLARKE, Plaintiff, v. PACIFIC GAS & ELECTRIC COMPANY, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
George Alexander Croton, Stuart George Gross, Gross & Klein LLP, San Francisco, CA, for Plaintiff.
Sandi L. Nichols, Allen Matkins Leck Gamble Mallory & Natsis, LLP, James Landon Mink, Scott David Mroz, Walsworth Franklin Bevins & McCall, San Francisco, CA, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS THE COMPLAINT
Re: Dkt. No. 10
Roughly one hundred years ago, as alleged by plaintiff Dan Clarke, defendants Pacific Gas and Electric Company and PG&E Corporation (collectively "PG&E") left behind hazardous waste created by its manufactured gas plants ("MGPs") along the northern waterfront of San Francisco. Those plants have long since been abandoned. In 2014, Clarke and the San Francisco Herring Association ("SFHA") sued PG&E for contamination arising out of the Fillmore, North Beach and Beach Street MGPs, formerly located in the Marina neighborhood where Clarke lived (the "Marina MGP case"). That case ultimately settled. Now Clarke seeks to sue PG&E for similar contamination caused by another MGP, the Cannery MGP, formerly located in the area east of the Marina neighborhood.
PG&E moves to dismiss Clarke's causes of action for violations of the Resource Conservation and Recovery Act ("RCRA"), the Clean Water Act ("CWA"), and state strict liability and negligence law. Clarke plausibly alleges standing based on his recreational and aesthetic interests: he continues to walk in the area but his enjoyment is diminished by the damage PG&E's conduct is causing wildlife and the environment. PG&E asks that I dismiss his RCRA claim for lack of redressability, because injunctive relief may require access to property owned by non-parties. Such an argument may have merit after discovery, but it is premature at this stage.
Clarke's remaining claims are insufficiently pleaded. While he alleges an ongoing and continuous CWA violation, it appears that his claim first accrued outside the five-year statute of limitations. He also fails to plead cognizable damages for his state strict liability and negligence claims, and additionally fails to describe an ultrahazardous activity for his strict liability claim. For these reasons, PG&E's motion to dismiss the RCRA claim is DENIED, but its motion to dismiss the CWA, strict liability and negligence claims is GRANTED with leave to amend.
My previous orders in the related Marina MGP case provide a summary of the litigation between the parties over the last six years. See San Francisco Herring Ass'n v. PG&E , No. 14-cv-04393-WHO, Dkt. Nos. 44, 208, 233.1 Here, I focus on the factual allegations Clarke makes with respect to the Cannery MGP, whose site is along San Francisco's northern waterfront at roughly the midway point between the Fillmore MGP and the Beach Street MGP. Complaint ("Compl.") [Dkt. No. 1] ¶ 2, Figure 1. It "is located at the northern terminus of Columbus street and is within the San Francisco Maritime National Historical Park." Id. ¶ 5. "A hotel, restaurants, shops, and a National Park Visitor Center currently occupy the site," and the Aquatic Cove abuts the site. Id. The National Park Service ("NPS") currently owns the Cannery MGP site. Id. ¶ 71.
Similar to his prior allegations concerning the Fillmore, North Beach, and Beach Street MGPs, Clarke alleges that PG&E and its predecessors produced and stored gas manufactured from coal and crude oil at the Cannery MGP. Compl. ¶ 50. While PG&E has acknowledged its ownership and operations of the North Beach and Fillmore MGPs, as well as the resulting contamination in the vicinity of those MGPs, it has allegedly "refused its responsibility to investigate and remediate the Cannery MGP and its vicinity." Id. ¶¶ 75, 78. Limited soil samples taken in 1985 by the NPS and later in 1986 by PG&E "indicate significant MGP contamination of soil and groundwater [in] the site and its vicinity." Id. ¶¶ 71–73. Although PG&E shared its results with the U.S. Environmental Protection Agency and the Regional Water Board at the time, neither agency nor PG&E has required or performed any additional testing for MGP contamination or remediation of the Cannery MGP Site or the vicinity thereof. Id. ¶ 74.
In sum, Clarke alleges that the Cannery MGP site and lands in the vicinity thereof, including tidelands and submerged lands, remain contaminated. On a continuous and repeated basis, pollutants from the site make their way via groundwater and discharge into the Bay, endangering human and marine life. Id. , ¶¶ 96–102, 109–15.
Clarke asserts a RCRA claim against PG&E because it allegedly "dumped, leaked, discharged, spilled, injected, and/or placed MGP Waste on the Cannery MGP Site and the vicinity thereof" (Compl. ¶¶ 181–85); a CWA claim for alleged discharges of "MGP wastes" into San Francisco Bay (id. ¶¶ 186–91); and state law claims for negligence (id. ¶¶ 192–96) and strict liability for ultrahazardous activities (id. ¶¶ 197–201). He seeks injunctive relief requiring PG&E to fund an Environmental Remediation Trust ("ERT") that would remediate the entire "Cannery MGP Site," and civil penalties under the CWA. Id. , Prayer for Relief ¶ 3–5. In addition, he seeks compensatory and punitive damages "with respect to the Cannery MGP." Id. ¶ 7.
"Because standing and ripeness pertain to federal courts’ subject matter jurisdiction, they are properly raised in a [Federal] Rule [of Civil Procedure] 12(b)(1) motion to dismiss." Chandler v. State Farm Mut. Auto. Ins. Co. , 598 F.3d 1115, 1121–22 (9th Cir. 2010). 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 inference in favor of the party opposing dismissal. See Wolfe , 392 F.3d at 362.
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss if a claim fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the claimant 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) (citation omitted). 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 claim must be supported by facts sufficient to "raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 570, 127 S.Ct. 1955.
PG&E moves to dismiss the Complaint on the following grounds: (i) Clarke lacks standing to bring any of the alleged claims; (ii) he cannot establish redressability for purposes of injunctive relief standing for his RCRA claim because the relief he seeks would necessarily loop in non-parties; (iii) his CWA claim seeks retroactive application to discharges that took place before its enactment; (iv) his CWA claim is barred by the applicable statute of limitations and the concurrent remedy doctrine; (v) he lacks the damages required for his state law negligence and strict liability claims; and (vi) he cannot, as a matter of law, state a claim strict liability claim for ultrahazardous activity. Pacific Gas and Electric Company and PG&E Corporation's Notice of Motion and Motion to Dismiss Complaint ("MTD") [Dkt. No. 10] 2.
I. STANDING
Article III standing requires that a "plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). "To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Id. at 1548 (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ).
"Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly ... allege facts demonstrating’ each element." Spokeo , 136 S. Ct. at 1547 (quoting Warth v. Seldin , 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ). "[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." Town of Chester v. Laroe Estates, Inc. , ––– U.S. ––––, 137 S. Ct. 1645, 1650, 198 L.Ed.2d 64 (2017) (citation omitted).
Clarke initially raised three primary bases for his standing: (i) recreational and aesthetic injuries; (ii) injuries to third parties; (iii) injury based on decision not to purchase home near the Cannery MGP. Compl. ¶¶ 14, 21, 23. In his opposition, Clarke conceded that the latter two are insufficient to establish standing, and focuses now on the first. Plaintiff's...
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