Riverkeeper v. Taylor Energy Co.

• Citation: 954 F.Supp.2d 448
• Decision Date: 21 July 2013
• Docket Number: Civil Action No. 12–337.
• Parties: APALACHICOLA RIVERKEEPER, et al., Plaintiffs v. TAYLOR ENERGY COMPANY, LLC, Defendant.
• Court: U.S. District Court — Eastern District of Louisiana

954 F.Supp.2d 448

APALACHICOLA RIVERKEEPER, et al., Plaintiffs

v.TAYLOR ENERGY COMPANY, LLC, Defendant.

Civil Action No. 12–337.

United States District Court, E.D. Louisiana.

July 21, 2013.

Machelle Rae Lee Hall, Adam Babich, Morgan N. Embleton, Tulane Environmental Law Clinic, New Orleans, LA, for Plaintiffs.

Paul J. Goodwine, Taylor P. Mouledoux, Slattery, Marino & Roberts, New Orleans, LA, Bret A. Sumner, Michael L. Beatty, Beatty & Wozniak, P.C., Denver, CO, for Defendant.

ORDER AND REASONS

SUSIE MORGAN, District Judge.

Before the Court is defendant Taylor Energy Company LLC's (“Taylor”) motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and Taylor's alternative motion to stay. Having already addressed Taylor's motion to dismiss this case for lack of standing pursuant to Rule 12(b)(1),¹ the Court now addresses Taylor's motion to dismiss this case for failure to state a claim pursuant to Rule 12(b)(6) and Taylor's alternative request for a stay. For the reasons set forth below, Taylor's Rule 12(b)(6) motion is granted in part and denied in part. Taylor's request for a stay is denied.

BACKGROUND

The facts and relevant procedural history of this case were discussed in the Court's Order of May 4, 2013, which granted in part and denied in part Taylor's motion to dismiss this case for lack of standing. See Apalachicola Riverkeeper v. Taylor Energy Co. LLC, No. 12–337, 2013 WL 1897142, at *1 (E.D.La. May 4, 2013). Because three of the Original Plaintiffs—the Louisiana Environmental Action Network (“LEAN”), the Waterkeeper Alliance, and the Apalachicola Riverkeeper (collectively, the “Remaining Plaintiffs”)—were found to have established the requirements for associational standing to bring this citizen suit against Taylor, and thus Taylor's motion to dismiss those plaintiffs was denied, the Court instructed the Remaining Plaintiffs to respond to Taylor's motion to dismiss for failure to state a claim and Taylor's alternative prayer for a stay. On May 17, 2013, the RemainingPlaintiffs filed their response.² On May 31, 2013, Taylor filed a reply in further support of its Rule 12(b)(6) motion and its request for a stay.³ On June 10, 2013, the Remaining Plaintiffs filed a sur-reply in further opposition.⁴ On June 14, 2013, the Court heard oral argument from counsel for Taylor and counsel for the Remaining Plaintiffs.⁵

I. THE PARTIES' ARGUMENTS

A. Taylor's Motion to Dismiss/Stay

Taylor asserts two arguments for the dismissal of the Remaining Plaintiffs' CWA claims under Rule 12(b)(6). First, Taylor argues 33 U.S.C. § 1321 is the “exclusive” mechanism for litigating CWA cases involving un-permitted discharges of oil and citizen suits are not permitted to enforce 33 U.S.C. § 1321. As a result, the Remaining Plaintiffs' citizen suit to enforce 33 U.S.C. § 1311 with respect to a discharge of oil fails to state a facially plausible cause of action. Second, Taylor argues that the Remaining Plaintiffs' citizen suit to enforce 33 U.S.C. § 1342, governing violations of national pollutant discharge elimination system (“NPDES”) permits, fails to state a facially plausible cause of action because Taylor admits it does not have a NPDES permit to discharge oil into the Gulf of Mexico.

With respect to the RCRA claim, Taylor contends that the Remaining Plaintiffs have not stated a cause of action under RCRA because they have not alleged that the discharges from the damaged Taylor wellbore present an “imminent and substantial danger.” ⁶

Finally, with respect to its alternative prayer for a stay, Taylor argues that even if the Remaining Plaintiffs have viable CWA and RCRA claims the extraordinary technological complexity of the response in this case, involving various governmental entities all operating in conjunction with Taylor under a United States Coast Guard-directed “Unified Command,” is such that the Court should stay this litigation pursuant to the “primary jurisdiction doctrine” in favor of allowing the Unified Command to respond to the spill.

B. The Remaining Plaintiffs' Opposition

The Remaining Plaintiffs' opposition to Taylor's motion to dismiss and alternative motion to stay is based on four distinct arguments: (1) the Remaining Plaintiffs' CWA claim is brought under 33 U.S.C. § 1365 to enforce 33 U.S.C. § 1311, which contains a citizen suit provision and does apply to discharges of oil as a pollutant, and not to enforce 33 U.S.C. § 1321, which the Remaining Plaintiffs agree does not contain a citizen suit provision; (2) the Remaining Plaintiffs' § 1342 claim is an alternative to their § 1311 claim and, if Taylor is willing to concede that the dischargeat issue is not pursuant to an NPDES permit, the Remaining Plaintiffs have no § 1342 claim; (3) taking as true the allegations in the second amended complaint, the Remaining Plaintiffs have stated a facially plausible claim for injunctive relief under RCRA; and (4) the primary jurisdiction doctrine does not apply to CWA/RCRA citizen suits absent exceptional circumstances, which are not present here, so a stay is inappropriate.

II. STANDARD OF LAW

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a claim if the claimant fails to set forth a factual allegation in support of its claim that would entitle it to relief (i.e., for “failure to state a claim”). See, e.g. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007). Those factual allegations “must be enough to raise a right to relief above the speculative level.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.2009) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court must accept all well-pled facts as true and must draw all reasonable inferences in favor of the non-moving party, Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir.2009), but the Court need not accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

III. ANALYSIS

A. The Remaining Plaintiffs State a Facially Plausible Citizen Suit, via 33 U.S.C. § 1365, to Enforce 33 U.S.C. § 1311

1. The Relevant Statutory Framework

The CWA was intended “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). “As a general matter, [the CWA's] provisions prohibit the unauthorized discharge of pollutants, including oil and other hazardous substances, into the waters of the United States, and set standards for evaluating discharges from various sources.” Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 422 (5th Cir.2013). The CWA authorizes citizen suits to obtain injunctions and civil penalties, “payable to the United States Treasury, against any person found to be in violation of ‘an effluent standard or limitation’ under the Act.” Id. (quoting Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 526 (5th Cir.2008)); see also33 U.S.C. § 1365(a)(1) (“any citizen may commence a civil action on his own behalf ... against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation”). The district court has jurisdiction to enforce effluent standards or limitations regardless of the amount in controversy. 33 U.S.C. § 1365(a).

“The term ‘effluent limitation’ means any restriction established by a State or the [Environmental Protection Agency] Administrator on quantities, rates, and concentrations of chemical, physical, biological,and other constituents which are discharged from point sources into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance.” 33 U.S.C.A. § 1362(11). For purposes of this case, the relevant “effluent standards or limitations” for which § 1365 allows citizens suits are (1) an unlawful act under § 1311(a); and (2) an “an effluent limitation or other limitation” under § 1311 or § 1312. See33 U.S.C. § 1365(f). 33 U.S.C. § 1311(a) provides that “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1362 defines the “discharge of a pollutant,” made unlawful by § 1311, as “(A) any addition of any pollutant to navigable waters from any point source, [and] (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.” ⁷33 U.S.C. § 1362(12).

2. The Remaining Plaintiffs' § 1365 Citizen Suit States a Facially Plausible Cause of Action to Enforce § 1311

The Remaining Plaintiffs' § 1365 CWA citizen suit seeks to enforce § 1311.⁸ Absent very specific, narrow exceptions, 33 U.S.C. § 1311 makes any un-permitted discharge of a pollutant illegal, and § 1365 allows private citizens such as the Remaining Plaintiffs to seek to enforce § 1311 by way of a CWA citizen suit. To succeed on a § 1365 citizen suit to enforce § 1311, a plaintiff must establish three elements: (1) that the defendant unlawfully discharged or is discharging a “pollutant”; ⁹ (2) that the discharge emanated or is emanating from a “point source”; ¹⁰ and (3) that the pollutant was discharged or is being discharged into “navigable waters.” ¹¹ Taylor does not argue in its motion to dismiss that the “navigable waters” and “point source” requirements are not met. ¹² As a result, the Court assumes for purposes of this motion that...