Riverkeeper v. Taylor Energy Co.
| Decision Date | 07 July 2015 |
| Docket Number | Civil Action No. 12–337. |
| Citation | 113 F.Supp.3d 870 |
| Parties | Apalachicola RIVERKEEPER, et al., Plaintiff v. TAYLOR ENERGY COMPANY, LLC, Defendant. |
| Court | U.S. District Court — Eastern District of Louisiana |
Machelle Rae Lee Hall, Adam Babich, Morgan N. Embleton, Tulane Environmental Law Clinic, New Orleans, LA, Heather A. Govern, Boston, MA, for Plaintiff.
Paul J. Goodwine, Taylor P. Mouledoux, Looper Goodwine & Ballew P.C., New Orleans, LA, Bret A. Sumner, Malinda Morain, Michael L. Beatty, William Ernest Sparks, Beatty & Wozniak, P.C., Denver, CO, for Defendant.
ORDER AND REASONS
This is a citizens suit under the Clean Water Act ("CWA")1 and the Resource Conservation and Recovery Act ("RCRA").2 The remaining Plaintiffs are Apalachicola Riverkeeper ("Apalachicola"), Louisiana Environmental Action Network ("LEAN"), and Waterkeeper Alliance ("Waterkeeper").3 They allege Taylor Energy Company, LLC ("Taylor") has violated the CWA and RCRA by discharging oil into the Gulf of Mexico without a permit from wells connected to Taylor's Mississippi Canyon 20 ("MC–20") platform.
Taylor has moved for summary judgment, arguing Plaintiffs lack the requisite standing to maintain this suit.4 Plaintiffs can survive this motion if they establish a genuine issue of material fact as to each of the following: (1) at least one member of each Plaintiff has standing to sue in his or her own right; (2) the interests each Plaintiff seeks to protect are germane to its organizational purpose; and (3) neither the claims asserted nor the relief requested requires the participation of Plaintiffs' members.5
For the following reasons, the motion is DENIED. There are genuine issues of material fact that must be resolved at trial.
This is the second time Taylor has challenged standing. The first challenge occurred almost three years ago in the form of a motion to dismiss under Rule 12(b)(1).6 In connection with that motion, the Court reviewed the second amended complaint and the affidavits of three purported members of Plaintiffs—Scott Porter ("Porter"), Paul Orr ("Orr"), and Arthur Tonsmeire ("Tonsmeire").7 Accepting the allegations as true, the Court denied the motion to dismiss.8
Approximately two years later, Taylor re-urged its standing argument, this time in the form of a motion for summary judgment. Taylor contends the circumstances have changed since the Court's previous ruling. The parties have conducted discovery, and Taylor has deposed Porter, Orr, and Tonsmeire. Taylor contends the deposition testimony contradicts the attestations in the affidavits. With the veracity of the affidavits fatally compromised, Taylor contends there is no genuine issue of material fact regarding Plaintiffs' inability to establish associational standing through Porter, Orr, and Tonsmeire.
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."9 A genuine dispute exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party."10 The Court reviews the evidence in the light most favorable to the non-moving party,11 mindful that "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge...."12
Taylor contends Apalachicola, LEAN, and Waterkeepers lack standing to pursue their claims in federal court. The doctrine of standing derives from Article III of the Constitution, which limits the jurisdiction of federal courts to "Cases" and "Controversies."13 A case is not justiciable unless the plaintiff has standing to sue.14 An organization has standing to bring suit on behalf of its members when (1) at least one member would otherwise have standing to sue in his or her own right, (2) the interests at stake are germane to the organization's purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.15 The Court examines each element in turn.16
Because organizations derive associational standing from their members, the threshold inquiry is whether the organization actually has members. Neither compliance with corporate formalities nor the existence of a formal membership structure is required.17 Instead, the Court inquires whether an individual possesses certain "indicia of membership," such as (1) participating in the organization's elections, (2) financing the organization's activities, (3) associating with the organization voluntarily, and (4) providing sworn testimony of membership.18 This is a holistic test. The purpose is to determine whether an organization provides the means by which members "express their collective views and protect their collective interests."19
Taylor argues that for purposes of associational standing, neither LEAN nor Waterkeepers has members.20 With respect to the former, Taylor argues LEAN relies "solely on the affidavit and testimony of Scott Porter."21 According to Taylor, this evidence does not provide sufficient indicia of membership. The Court disagrees.
As a preliminary matter, LEAN does not rely solely on Porter to establish associational standing. Orr attested he is a member of LEAN. Furthermore, viewing Porter's affidavit and deposition testimony in the light most favorable to Plaintiffs, the Court finds there is a genuine issue of material fact regarding whether Orr is a member of LEAN.
Taylor also argues Waterkeepers does not have any members it can represent in federal court, because "no witness has offered any evidence that they are an individual member of [Waterkeepers]."22 Once again, Taylor mischaracterizes the evidence. Orr attested and reaffirmed in his deposition that he is a member of Waterkeepers. This and other evidence in the record creates a genuine issue of material fact.
Having determined the issue of membership must be decided at trial, the Court now examines whether the purported members have standing to sue in their own right. Article III standing has three elements: "(1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likel[ihood] that the injury will be redressed by a favorable decision."23 Each of these elements must be supported "with the manner and degree of evidence required at the successive stages of litigation."24 To defeat a motion for summary judgment, Plaintiffs must present "affidavit[s] or other evidence," which establish a genuine issue of material fact.25
An injury sufficient to confer Article III standing must be "(a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical."26 Environmental plaintiffs can establish standing by demonstrating "they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity." '27 The Fifth Circuit has characterized injury-in-fact as a "low threshold requirement," because even "an identifiable trifle will suffice."28
Porter attested he is an investigative biologist. In May 2010, Porter and his colleagues discovered an invasive Asian coral species called Tubastrea micranthus while scuba diving in the Gulf of Mexico. As part of his work, Porter must locate the eastern edge of the coral, which he believes is located near the Taylor well. Porter will not dive near the well, however, for fear of exposure to toxic chemicals. The Court has already ruled this fear, if proven, constitutes an injury in fact.29
Taylor contends the fear is not credible for several reasons. First, Taylor argues Porter repeatedly dove in other areas of the Gulf of Mexico even though he knew those areas were polluted. As a preliminary matter, that Porter dove at contaminated sites other than MC–20 does not conclusively disprove his fear of exposure at MC–20. Furthermore, there is a factual dispute regarding the concentration of oil at MC–20 versus concentrations at the areas in which Porter continued to dive. If concentrations at the latter areas were comparatively minor, continued diving at those areas is not necessarily inconsistent with a fear of exposure at MC–20.
Second, Taylor argues Porter testified he has already found the eastern edge of Tubastrea micranthus. Therefore, according to Taylor, Porter does not need to dive near MC–20. The Court has reviewed the deposition testimony and disagrees with Taylor's characterization. There is a genuine issue of material fact as to whether Porter has found the eastern edge of Tubastrea micranthus, and, if so, where that edge is located.
Third, Taylor argues "Porter's ‘need’ to dive at MC–20 cannot be the basis for injury [because] (1) coral cannot live deeper than 400 feet, and (2) there is no structure at 400 feet."30 Even if this were true,31 a reasonable juror could conclude that Porter is concerned about diving in the area affected by the spill, not just at the MC–20 site itself.
Orr attested he uses the Gulf of Mexico for recreational and educational purposes. Specifically, he leads boat tours in and around an area approximately eleven miles away from MC–20. Orr leads these tours in a small motorboat. Water frequently splashes on him and his passengers. Orr would like to continue his boating trips but is reluctant to do so for fear of exposure to contaminated water. Orr also attested he enjoys flying small aircraft over the Gulf of Mexico. During a trip in April 2012, Orr observed the oil slick emanating from MC–20, which he described as "a scourge on the beautiful sea." Accepting his attestations as true, the Court previously found that Orr suffered a cognizable injury, because his aesthetic and recreational interests have been compromised.32
Similar to its argument with respect to Porter,...
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