Deschutes River Alliance, an Or. Nonprofit Corp. v. Portland Gen. Elec. Co.

Decision Date27 March 2017
Docket NumberCase No. 3:16-cv-1644-SI.
Citation249 F.Supp.3d 1182
Parties DESCHUTES RIVER ALLIANCE, an Oregon nonprofit corporation, Plaintiff, v. PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation, Defendant.
CourtU.S. District Court — District of Oregon

J. Douglas Quirke, Oregon Clean Water Action Project , P.O. Box 11501, Eugene, OR 97440; Daniel M. Galpern, Law Office of Daniel M. Galpern , 2495 Hilyard Street, Eugene, OR 97405. Of Attorneys for Plaintiff.

Beth S. Ginsberg and Michael R. Campbell, Stoel Rives LLP, 600 University Street, Suite 3600, Seattle, WA 98101. Of Attorneys for Defendant.


Michael H. Simon, United States District Judge

Defendant Portland General Electric Company ("PGE") moves to dismiss the Complaint brought by Plaintiff Deschutes River Alliance on the ground that the Court lacks subject matter jurisdiction. Oregon Department of Environmental Quality ("DEQ") and Washington Department of Ecology appear as amici curiae ("Amici "). The Court denies PGE's motion to dismiss.


Federal courts are courts of limited jurisdiction. Gunn v. Minton , 568 U.S. 251, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013). As such, a court is to presume "that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted); see also Robinson v. United States , 586 F.3d 683, 685 (9th Cir. 2009) ; Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004).

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of "subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived." United States v. Cotton , 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). An objection that a particular court lacks subject matter jurisdiction may be raised by any party, or by the court on its own initiative, at any time. Arbaugh v. Y & H Corp. , 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ; Fed. R. Civ. P. 12(b)(1). The Court must dismiss any case over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3).

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either "facial" or "factual." See Safe Air for Everyone , 373 F.3d at 1039. A facial attack on subject matter jurisdiction is based on the assertion that the allegations contained in the complaint are insufficient to invoke federal jurisdiction. Id.


Plaintiff brings this action under the citizen suit provision in section 505 of the Clean Water Act1 ("CWA" or the "Act"), 33 U.S.C. § 1365(a)(1). Plaintiff alleges that PGE is responsible for past and continuing CWA violations at its Pelton Round Butte Hydroelectric Project (the "Project").2 The Project consists of three dams and a selective water withdrawal facility, among other associated developments, between river miles 100 and 120 of the Deschutes River. In 2002, the Project underwent relicensing through the Federal Energy Regulatory Commission ("FERC"). As part of that process, DEQ issued a water quality certification ("the Water Quality Certification") for the Project, pursuant to section 401 of the CWA.3 Each of the requirements specified in the Water Quality Certification is a condition of the FERC license.

Plaintiff alleges that PGE has violated several of the requirements contained in the Water Quality Certification that are designed to ensure that discharges comply with all applicable state water quality standards. Specifically, part of the Water Quality Certification is a Water Quality Management and Monitoring Plan that sets forth "management plans" to ensure compliance with certain water quality standards, including those relating to hydrogen ion concentration (pH), temperature, and dissolved oxygen levels. Plaintiff asserts that PGE has repeatedly violated the Water Quality Certification by failing to operate the Project in accordance with the management plans.


PGE moves to dismiss the lawsuit for lack of subject matter jurisdiction, arguing that the CWA's citizen suit provision does not allow a civil action challenging compliance with conditions contained in a water quality certification issued under section 401 of the CWA. PGE contends that only the licensing entity—not citizens, not states, and not the Environmental Protection Agency ("EPA")—has authority to enforce certification conditions. Instead, asserts PGE, because any condition that a state includes in a water quality certification is incorporated into the license or permit, only the licensing entity may enforce permit conditions. Here, the licensing entity is FERC. Thus, according to PGE, Plaintiff (or a state) may seek relief by petitioning FERC to enforce the permit conditions. See 16 U.S.C. § 823b (Federal Power Act enforcement mechanism); 18 C.F.R. § 385.206 (describing complaint process that an interested person may use to obtain action by FERC, including with respect to a Federal Power Act license). Alternatively, argues PGE, a state may be able to enforce section 401 certification conditions under state law . See 33 U.S.C. § 1370 ("nothing in this chapter shall ... preclude or deny the right of any State ... to adopt or enforce" any more stringent standard or limitation respecting discharges of pollutants); see, e.g. , OAR 340–012–0140(2)(a)(G) & (3)(a)(F) (setting penalties for any violation of a CWA section 401 water quality certification).

A. Principles of Statutory Interpretation

Whether Congress has provided Plaintiff with a cause of action is "a straightforward question of statutory interpretation" to be resolved using "traditional principles of statutory interpretation." Lexmark Int'l, Inc. v. Static Control Components, Inc. , –––U.S. ––––, 134 S.Ct. 1377, 1388, 188 L.Ed.2d 392 (2014). "The purpose of statutory construction is to discern the intent of Congress in enacting a particular statute." Robinson , 586 F.3d at 686. The plain meaning of the statute controls, unless such a reading would result in unreasonable or impracticable results. Id. at 687. In determining the plain meaning, the Court may look to "the language and design of the statute as a whole." Id. (quoting Nadarajah v. Gonzales , 443 F.3d 1069, 1076 (9th Cir. 2006) ). A court should "not [be] guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." Dole v. United Steelworkers of Am. , 494 U.S. 26, 35, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990) (quotation marks omitted; alteration in original). Indeed, "[i]t is a cardinal canon of statutory construction that statutes should be interpreted harmoniously with their dominant legislative purpose." Valladolid v. Pac. Operations Offshore, LLP , 604 F.3d 1126, 1133 (9th Cir. 2010) (quoting United States v. Gallenardo , 579 F.3d 1076, 1085 (9th Cir. 2009) ); see also Bob Jones Univ. v. United States , 461 U.S. 574, 586, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983) ("It is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute[.]"). If a statute is ambiguous, legislative history may inform congressional intent. See Woods v. Carey , 722 F.3d 1177, 1181 (9th Cir. 2013).

B. CWA's Purpose and Framework

Congress enacted the CWA in 1972 to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). Except when in compliance with one of the permitting schemes in the Act, the "discharge of any pollutant by any person" is prohibited. Id. § 1311(a) ("Except as in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful.").

States have the "primary responsibilities and rights" to "prevent, reduce, and eliminate pollution" and "to plan the development and use (including restoration, preservation, and enhancement) of land and water resources [.]" Id. § 1251(b). To that end, the CWA imposes several duties on the states, including adopting water quality standards for the waters within the state, id. § 1313(a), and issuing National Pollutant Discharge Elimination System ("NPDES") permits under Section 402 to "point sources" that discharge pollutants. Id. § 1342.

Additionally, states ensure compliance with water quality standards under Section 401. That section applies when an applicant seeks a federal license or permit to undertake any activity that might result in any discharge into navigable waters. Id. § 1341. Under section 401(a) of the CWA, the state's "certification" means that "any such discharge will comply with the applicable provisions of sections [301], [302], [303], [306] and [307] of this title." Id. § 1341(a)(1). Section 401(d) of the CWA also provides:

Any certification ... shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant ... will comply with any applicable effluent limitations and other limitations, under section [301 or 302] of this title, standard of performance under section [306] of this title, or prohibition, effluent standard, or pretreatment standard under section [307] of this title, and with any other appropriate requirement of State law set forth in such certification[.]

Id. § 1341(d). The certification conditions "shall become a condition on any" federal license. Id.

C. CWA's Citizen Suit Provision

The CWA empowers citizens to bring enforcement actions against any person alleged to be in violation of federal water pollution standards or limitations.

Section 505 of the CWA reads, in relevant part:

(a) Authorization; jurisdiction
Except as provided in subsection (b) of this section [requiring 60 days' notice before bringing suit] and section 1319(g

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