Conservation Law Found. v. Gulf Oil Ltd. P'ship
| Docket Number | 21-cv-00932-SVN |
| Decision Date | 23 June 2023 |
| Parties | CONSERVATION LAW FOUNDATIO INC., Plaintiff, v. GULF OIL LIMITED PARTNERSHIP, Defendant. |
| Court | U.S. District Court — District of Connecticut |
RULING AND ORDER ON PLAINTIFF'S MOTION TO AMEND
In this environmental suit, Plaintiff Conservation Law Foundation Inc. alleges that Defendant Gulf Oil Limited Partnership is violating federal law by failing to prepare its bulk petroleum storage facility in New Haven, Connecticut for severe flooding and other weather-related risks that are increasing in severity due to climate change. Plaintiff's complaint originally consisted of eighteen counts: Counts One through Fifteen alleged various violations of the Clean Water Act (the “CWA”), 33 U.S.C. § 1251 et seq.; and Counts Sixteen through Eighteen alleged violations of the Resource Conservation and Recovery Act (“RCRA”) 42 U.S.C. § 6901 et seq. In September of 2022, the Court dismissed without prejudice Counts One through Nine and Sixteen through Eighteen of Plaintiff's complaint for lack of standing. Accordingly, the operative complaint currently consists only of Plaintiff's CWA claims in Counts Ten through Fifteen.
Presently before the Court is Plaintiff's motion for leave to amend its complaint to attempt to remedy the deficiencies described in the Court's dismissal ruling and reassert the claims the Court dismissed. Plaintiff also seeks to assert a new claim alleging that Defendant is violating the CWA by presently discharging pollutants from its New Haven facility into nearby waters.
For the reasons below, the Court finds that, although it is a close question, Plaintiff has alleged sufficient facts regarding standing to reassert Counts One through Nine and Sixteen through Eighteen of its original complaint. The Court also holds that Plaintiff is not permitted to assert its new CWA claim at this stage of the litigation. Plaintiff's request to amend is thus GRANTED IN PART and DENIED IN PART.
Plaintiff filed its initial complaint in July of 2021. Compl., ECF No. 1. The Court assumes the parties' familiarity with the facts alleged in that complaint, which the Court described in its September 2022 dismissal ruling, ECF No. 96.[1]Accordingly, the Court summarizes the facts only briefly here.
The parties' dispute centers on a bulk petroleum storage terminal Defendant owns and operates in New Haven, Connecticut (the “Terminal”). Compl. ¶¶ 20, 58-59, 62. Oil products are stored at the Terminal in sixteen large aboveground storage tanks (“ASTs”) surrounded by berms. Id. ¶¶ 64, 66-67, 73. The Terminal also has drainage systems in place for purposes of stormwater management, and to prevent contaminants from being discharged into New Haven Harbor. Id. ¶¶ 82-91. Stormwater from the “tank farm” at the Terminal either infiltrates the ground or is directed to a catch basin in a low elevation area. Id. ¶ 81.
Defendant's operation of the Terminal is regulated under RCRA because the Terminal generates hazardous waste. Id. ¶ 95. Operation of the Terminal is also subject to Connecticut's General Permit for Discharges Associated with Industrial Activity (the “General Permit”), which is issued by the Connecticut Department of Energy and Environmental Protection (“CT DEEP”) pursuant to the CWA. Id. ¶¶ 80, 124. The General Permit provides several requirements and restrictions regarding stormwater discharges, id. ¶ 127, including that Defendant must develop a Stormwater Pollution Prevention Plan (“SWPPP”) with respect to the Terminal, id. ¶ 150. Among other things, the SWPPP must identify potential pollutant sources and describe the control measures implemented at the Terminal to minimize the discharge of pollutants. Id. ¶¶ 142, 151.
Plaintiff is a nonprofit organization that seeks to promote the conservation and protection of New England's public health, environment, and natural resources. Id. ¶ 8. Some of Plaintiff's members live near and regularly visit, use, and enjoy the area and waters near the Terminal, which include New Haven Harbor, the Quinnipiac River, and the Mill River. Id. ¶¶ 9, 11, 27, 101-23. Plaintiff has alleged that climate change is impacting New Haven in various ways, including by increasing the average surface temperature of nearby waters, and by causing sea level rise and frequent flooding. Id. ¶¶ 21-23; see generally id. ¶¶ 158-255. Plaintiff further alleges that the Terminal has not been designed, maintained, modified, or operated to account for the effects of climate change or to address the risk of pollutant discharges. Id. ¶¶ 13, 25, 310-13. Accordingly, Plaintiff asserts that the Terminal is likely to discharge pollutants into surrounding surface waters, groundwater, the community, and the air, which puts Plaintiff's members at risk. Id. ¶¶ 13, 25.
Plaintiff initially asserted eighteen counts, seeking declaratory and injunctive relief, civil penalties, and other remedies, id. at 86-87. Plaintiff's first fifteen counts generally alleged that Defendant has failed to comply with the General Permit, and thereby violated the CWA, by omitting certain information from the SWPPP and by failing to properly update the SWPPP. See, e.g., id. ¶¶ 67, 211, 369. Specifically, Plaintiff alleged the following violations of the CWA: (1) failure to eliminate non-stormwater discharges; (2) activity inconsistent with the Connecticut Coastal Management Act (the “CMA”) and causing adverse impacts to coastal resources; (3) unlawful certification of an SWPPP; (4) failure to identify potential pollution sources; (5) failure to describe and implement practices to reduce pollutants and ensure permit compliance; (6) failure to implement measures to manage runoff; (7) failure to minimize the potential for leaks and spills; (8) failure to submit required facts or information to CT DEEP; (9) failure to amend or update an SWPPP; (10) failure to identify discharges to impaired waters in an SWPPP; (11) failure to conduct monitoring for discharges to impaired waters; (12) failure to identify outfalls in an SWPPP; (13) failure to monitor discharges from all outfalls; (14) illegal infiltration of stormwater; and (15) failure to maintain an impervious containment area. Plaintiff also claimed that Defendant is violating RCRA by failing to mitigate the risks of hazardous waste discharges associated with climate change. See id. ¶¶ 422, 442, 457. Specifically, Plaintiff alleged the following violations of RCRA: (1) open dumping; (2) imminent and substantial endangerment to human health and the environment; and (3) failure to comply with state and federal RCRA regulations applicable to generators of hazardous wastes.
In October of 2021, Defendant moved to dismiss the first nine CWA counts, as well as all three RCRA counts, for lack of standing and failure to state a claim. ECF No. 33.[2] The Court agreed with Defendant's standing arguments and dismissed Counts One through Nine and Sixteen through Eighteen of Plaintiff's complaint without prejudice. ECF No. 96. The Court explained that, because Plaintiff had relied on allegations regarding the longer-term impacts of climate change but had not alleged how such impacts present a real and immediate threat of harm to Plaintiff's members, Plaintiff had failed to establish Article III standing as to the claims at issue. Id. at 17. Accordingly, the Court concluded that, because the complaint failed to plausibly suggest that the impacts of climate change will imminently result in injury to Plaintiff's members or that there is a substantial risk that such harm will occur, Plaintiff lacked standing as to the dismissed claims. Id.
The Court's dismissal ruling provided that, if Plaintiff wished to file an amended complaint to attempt to address the deficiencies described in that ruling, it could seek leave to do so pursuant to Federal Rule of Civil Procedure 15(a) by October 20, 2022. Id. at 17-18. The Court further stated that, if Plaintiff sought to amend the complaint after October 20, its request would be governed by the good cause standard in Federal Rule of Civil Procedure 16(b). Id. at 18. The Court subsequently extended the October 20 deadline until November 3, 2022, and Plaintiff filed its present motion on that date.
In its proposed amended complaint (“PAC”), ECF No. 100-3, Plaintiff seeks to assert several new allegations against Defendant based largely on a declaration of Plaintiff's retained expert, Dr. Wendi Goldsmith, an earth scientist.[3]Most of Plaintiff's proposed new allegations provide additional context regarding how climate change will impact New Haven over the next several years and decades. See, e.g., id. ¶¶ 80-82 (discussing the effects a “50-, 100-, or 500-year storm” could have on the Terminal); id. ¶ 94 (); id. ¶¶ 271-72 (). In addition, Plaintiff seeks to add allegations regarding when severe storms might be expected to strike Connecticut, id. ¶¶ 231-32, and how such storms might be expected to cause a discharge of pollutants from the Terminal, id. ¶¶ 364-67. Plaintiff also seeks to insert new allegations pertaining to how Defendant is purportedly contributing to the pollution of the waters near the Terminal. See id. ¶¶ 106-17, 141-44, 314-21. Finally, Plaintiff seeks to add a new, nineteenth count, alleging that Defendant has violated the CWA by “causing or contributing to an exceedance of water quality standards.” Id. ¶¶ 527-36.
In Counts One through Nine and Sixteen through Eighteen...
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