Conservation Law Found. v. Pub. Serv. Co. of N.H., Civil No. 11-cv-353-JL

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
Writing for the CourtJoseph N. Laplante
PartiesConservation Law Foundation v. Public Service Company of New Hampshire
Docket NumberOpinion No. 2012 DNH 174,Civil No. 11-cv-353-JL
Decision Date27 September 2012

Conservation Law Foundation
Public Service Company of New Hampshire

Civil No. 11-cv-353-JL
Opinion No. 2012 DNH 174


Dated: September 27, 2012


This is a citizen suit brought by the Conservation Law Foundation ("CLF"), which alleges that Public Service Company of New Hampshire ("PSNH") has violated the Clean Air Act ("CAA"), 42 U.S.C. § 7401 et seq., by operating Merrimack Station, a coal-fired power plant, without (or in violation of) required permits. Specifically, CLF alleges in Counts 1 through 4 of its complaint that PSNH failed to obtain permits prior to making changes to the plant in 2008 and 2009. These changes, it claims, have resulted and will continue to result in increased pollutant emissions. In Counts 5 and 6, CLF alleges that PSNH failed to obtain permits prior to installing and operating sorbent and activated carbon injection equipment at the plant, and in Count 7, CLF alleges that PSNH operated electrostatic precipitators at the plant in contravention of its temporary permits. CLF seeks a declaratory judgment that PSNH has violated the CAA, an award of civil penalties payable to the United States Treasury, and various injunctive relief.

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PSNH has moved to dismiss the entire action pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that CLF has not alleged sufficient facts to demonstrate that it has Article III standing to bring this suit.1 See U.S. Const. art. III, § 2, cl. 1. PSNH argues that CLF's complaint fails to allege that any of its members suffered any injury as a result of PSNH's alleged CAA violations, as is required to establish standing. PSNH further asserts that Counts 5 through 7 of CLF's complaint allege "wholly past violations," and that there is "no possibility of an imminent future violation," such that CLF is unable to establish the redressability requirement of Article III standing as to those claims.

After hearing oral argument, this court denies the motion as to Counts 1 through 4 and grants the motion as to Counts 5 through 7. CLF's allegations, which are supplemented by affidavits and other supporting documents, are sufficient (at least at this stage of the case) to demonstrate that its members suffered a cognizable injury from the CAA violations alleged in Counts 1 through 4, and that the alleged injury is redressable

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through the claims brought here. CLF has not shown, however, that it suffered any injury traceable to the violations alleged in Count 7, or that this court can redress the injuries alleged in Counts 5, 6, or 7. Those claims are accordingly dismissed.

I. Applicable legal standard

In considering a motion to dismiss for lack of standing under Rule 12(b)(1), the court "accept[s] as true all well-pleaded factual averments in the plaintiff's complaint and indulge[s] all reasonable inferences therefrom in his favor." Katz v. Pershing, LLC, 672 F.3d 64, 70 (1st Cir. 2012) (internal quotation marks omitted). The court may also consider material outside the pleadings, such as affidavits, to aid in its determination. Gonzalez v. United States, 284 F.3d 281, 287-88 (1st Cir. 2002). "[A] suit will not be dismissed for lack of standing if there are sufficient allegations of fact . . . in the complaint or supporting affidavits." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 65 (1987) (internal quotations omitted).

The parties dispute the level of specificity required of those allegations. PSNH, relying on United States v. AVX Corp., 962 F.2d 108 (1st Cir. 1992), argues that the facts establishing CLF's standing must be set forth with "heightened specificity." CLF, on the other hand, argues that the standard articulated in

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AVX applies, at most, to intervenors in appellate cases, and that more generally applicable rules of pleading also apply to factual allegations regarding a plaintiff's standing to sue in the district court. Both parties are, to some degree, correct.

In AVX, the National Wildlife Federation, an intervenor in the case below, sought to appeal a consent decree entered in the district court. Id. at 110. The Court of Appeals, surveying "various classes of cases in which we have required a heightened degree of specificity to withstand a motion to dismiss," concluded that "[b]ecause standing is fundamental to the ability to maintain a suit, . . . where standing is at issue, heightened specificity is obligatory at the pleading stage." Id. at 115. As articulated by the Court of Appeals, this burden "cannot be satisfied by purely conclusory allegations or by a Micawberish reading of a party's generalized averments." Id. Instead, the complainant "must set forth reasonably definite factual allegations, either direct or inferential, regarding each material element needed to sustain standing." Id. In other words, "the facts necessary to support standing must clearly appear in the record and cannot be inferred argumentatively from averments in the pleadings." Id. (internal quotations omitted).

In this court's view, AVX's description of this standard as one of "heightened specificity" merely reflects the pleading paradigm in 1992, the year that case was decided. At that time,

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it had been accepted for over 30 years that under Rule 8 of the Federal Rules of Civil Procedure, a complaint was facially deficient only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). As the Supreme Court later explained, some lower federal courts read this statement in isolation to say that, unless the "factual impossibility" of plaintiff's recovery was evident on the face of the complaint itself, the pleading would suffice under Rule 8. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561 (2007). Under this reading, "a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery."2 Id. (internal quotations and alterations omitted). Thus, some courts had held that, so long as one could "imagine facts consistent with [the] complaint and affidavits that [would] show plaintiffs' standing," the complaint would pass muster. Alliant Energy Corp. v. Bie, 277 F.3d 916, 920 (7th Cir. 2002) (emphasis omitted; citing cases); see also, e.g., Ed Miniat, Inc. v. Globe Life Ins. Group,

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Inc., 805 F.2d 732, 735-36 (7th Cir. 1986); Dudley v. Se. Factor & Fin. Corp., 446 F.2d 303, 308-09 (5th Cir. 1971).

It was against that backdrop that AVX was decided. Taken in context, AVX's rejection of "conclusory allegations" and "generalized averments" in favor of "factual allegations, either direct or inferential, regarding each material element needed to sustain standing," 962 F.2d at 115, might well have been characterized as a "heightened" standard. In today's post-Twombly pleading paradigm, though, that standard is the rule, not the exception. Twombly makes clear that "conclusory allegations" are insufficient, and it is not enough that the complaint's allegations are "merely consistent with" the plaintiff's ability to recover. Twombly, 550 U.S. at 557. "Threadbare recitals of the elements of a cause of action" (or, as is the case here, the elements of standing) similarly "do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint must contain some "factual content that allows the court to draw the reasonable inference" that the plaintiff may recover. Id.

The Supreme Court's proclamations in Twombly and Iqbal do not differ materially from the Court of Appeals' holding in AVX. Insofar as PSNH argues that this court must apply the standard articulated in that case, then, it is correct, and CLF is equally correct that this court must apply generally applicable pleading standards. To the extent that PSNH argues that AVX requires more

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specific allegations than the Rule 8 standard articulated in Twombly and Iqbal, though, it is incorrect. And, to the extent that CLF suggests it should be held to a lesser standard than that set forth in AVX, Twombly, and Iqbal, it is also incorrect.

II. Background

PSNH operates plants that generate electricity in several locations in New Hampshire; these include Merrimack Station in Bow. Merrimack Station, which consists of two units dubbed "MK1" (in operation since 1960) and "MK2" (in operation since 1968), generates power by burning coal. In addition to generating power, this process emits pollutants, including nitrogen oxide (NOx), sulfur dioxide (SO2), and particulates, into the air. NOx and SO2 emissions have significant adverse effects on public health. These emissions also contribute to the formation of secondary particulate matter that may cause decreased lung function, worsened respiratory infections, heart attacks, and the risk of early death.

CLF is a nonprofit organization, with more than 300 members in New Hampshire, that works to reduce emissions from coal-burning power plants. CLF alleges that its members are exposed to pollution from Merrimack Station, and that they suffer from, and are at increased risk of, a variety of adverse health effects attributable to this exposure. CLF has submitted the...

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