Sierra Club v. Energy Future Holdings Corp., Civil Action No. W–12–CV–108.

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtWALTER S. SMITH
Citation921 F.Supp.2d 674
PartiesSIERRA CLUB, Plaintiff v. ENERGY FUTURE HOLDINGS CORPORATION and Luminant Generation Company LLC, Defendants.
Docket NumberCivil Action No. W–12–CV–108.
Decision Date06 February 2013

921 F.Supp.2d 674

SIERRA CLUB, Plaintiff
v.
ENERGY FUTURE HOLDINGS CORPORATION and Luminant Generation Company LLC, Defendants.

Civil Action No. W–12–CV–108.

United States District Court, W.D. Texas, Waco Division.

Feb. 6, 2013.


[921 F.Supp.2d 676]


Elena Saxonhouse, Sanjay Narayan, Sierra Club, San Francisco, CA, Erin E. Fonken, Ilan Levin, Environmental Integrity Project, Austin, TX, J. Patton Dycus, Environmental Integrity Project, Atlanta, GA, Julie Kaplan, One Thomas Circle, NW, Washington, DC, for Plaintiff.

Charles D. Olson, Michael W. Dixon, Haley & Olson, P.C., Waco, TX, Philip Stephen Gidiere, III, Thomas L. Casey, III, Balch & Bingham LLP, Birmingham, AL, Russell H. Falconer, William B. Dawson, Gibson Dunn & Crutcher LLP, Dallas, TX, Stacey H. Dore, Energy Future Holdings, Dallas, TX, for Defendants.


ORDER

WALTER S. SMITH, JR., District Judge.

Before the Court is the “Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) by Defendants Energy Future Holdings Corporation and Luminant Generation Company

[921 F.Supp.2d 677]

LLC.” Having reviewed the motion, response, reply, and applicable legal authority, the Court finds that the motion is without merit and is DENIED. Also, the Court will grant leave for Plaintiff to amend its Complaint to state the correct units of measurement for Particulate Matter (“PM”) limits under its second cause of action.

I. Factual and Procedural History

Defendants own and operate a coal-fired electric generating plant, located in Freestone County, Texas, known as “Big Brown Plant.” The plant's two units generate electricity with a blend of coal. The electricity generated is supplied to 23 million Texas customers via the electric grid operated by the Electric Reliability Council of Texas (“ERCOT”).

The Big Brown Plant is required to operate under a permitting process that limits the amount of pollutants that the plant may legally emit into the air. One measurement of air pollutants is opacity. Opacity is an indicator of the excessive levels of particulate matter pollution being emitted by a facility. Essentially, opacity measures the level of soot in the facility's exhaust. Texas rules define opacity as the “degree to which an emission of air contaminants obstruct the transmission of light expressed as a percentage of light obstructed as measured by an optical instrument or trained observer.” 30 Tex. Admin. Code § 101.1(72). The higher the opacity, the less light that passes through a plume of air pollution.

The Clean Air Act requires that each state submit a State Implementation Plan § “SIP”) to the Environmental Protection Agency (“EPA”) for approval. 42 U.S.C. § 7410. Under the Texas SIP, power plant opacity “shall not exceed 30 percent averaged over a six-minute period.” 30 Tex. Admin. Code § 111.111(a)(1)(A).1 Additionally, emissions may not exceed “0.3 pound of total suspended particulate per million [British thermal units (“Btu”) ] heat input, averaged over a two-hour period.” 230 Tex. Admin. Code § 111.153(b) However, Big Brown Plant is permitted to exceed the opacity limit for up to six minutes in any sixty consecutive minutes for “cleaning of a firebox or the building of a new fire, soot blowing, equipment changes, ash removal, and rapping of precipitators.” 30 Tex. Admin. Code § 111.111(a)(1)(E).

Plaintiff pleads that according to Defendants' self-reported data, Big Brown Plant violated the 30 percent opacity limit on 6,520 occasions between July 2007 and December 2010 in violation of the Texas SIP, the Defendants' Title V permit, and the Clean Air Act. Plaintiff alleges the violations at times exceeded 90 percent opacity, more than triple the plant's legal limit. Furthermore, Plaintiff alleges that the Big Brown Plant violated the particulate matter (“PM”) limits outlined in the Texas SIP. Plaintiff states that using the Defendants' self-reported heat input and sulfur dioxide emissions data the Defendants have violated the PM limit on at least 370 occasions between January 2008 and July 2011. In arriving at the aggregate number of violations, Plaintiff states it has assumed Defendants have utilized their one exemption per hour.

[921 F.Supp.2d 678]

II. Analysis

Defendants seek dismissal on multiple grounds. First, they argue dismissal is warranted under Federal Rule of Civil Procedure 12(b)(1) because Plaintiff has not identified a single individual citizen or member of its organization that has suffered a redressable, particularized injury from Big Brown Plant's emissions. Second, Defendants argue dismissal is appropriate under Rule 12(b)(1) because Sierra Club is attempting to collaterally attack the permitting process, which is outside the Court's jurisdiction. Third, Defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(6) because Plaintiff failed to provide sufficient pre-suit notice of the alleged violations. Fourth, Defendants seek dismissal under Rule 12(b)(6) because Plaintiff fails to state sufficient facts in its Complaint that if proven would show a violation of any emission standards. Finally, Defendants believe dismissal of the claim for injunctive relief is appropriate because the claim is now moot.3 The Court finds that these grounds are without merit.

A. Dismissal Pursuant to Federal Rule of Civil Procedure 12(b)(1)
1. Standard of Review

Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court's subject-matter jurisdiction. “Under Rule 12(b)(1), a claim is properly dismissed for lack of subject-matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the claim.” In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir.2012) (internal quotation marks omitted). The plaintiff bears the burden of demonstrating that subject matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981).

There are two types of 12(b)(1) challenges to subject-matter jurisdiction: facial attacks and factual attacks. E.g., Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir.2012); Russell v. City of Houston, 808 F.Supp.2d 969, 972 (S.D.Tex.2011) (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir.1981)). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). The pleading's allegations are presumed to be true, and “[i]f those allegations sufficiently allege a claim for recovery the complaint stands and the federal court must entertain the suit.” Jones v. SuperMedia Inc., 281 F.R.D. 282, 286 (N.D.Tex.2012) (citing Paterson, 644 F.2d at 523).

“A factual attack on the subject matter jurisdiction of the court, however, challenges the facts on which jurisdiction depends and matters outside of the pleadings, such as affidavits and testimony, are considered.” Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir.1981). When examining a factual challenge to subject matter jurisdiction that does not implicate the merits of plaintiff's cause of action, the district court has substantial authority “to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir.1997); see also Clark v. Tarrant Cnty., 798 F.2d 736, 741 (5th Cir.1986). Accordingly, the Court may consider matters outside the pleadings, such as testimony and affidavits. See

[921 F.Supp.2d 679]

Garcia, 104 F.3d at 1261. The court may rely on (1) the complaint alone, presuming the allegations to be true, (2) the complaint supplemented by undisputed facts, or (3) the complaint supplemented by undisputed facts and by the court's resolution of disputed facts. Id.; see also Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996). A court's dismissal of a case for lack of subject matter jurisdiction is not a decision on the merits, and the dismissal does not prevent the plaintiff from pursuing the claim in another forum. See Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977).

2. Sierra Club Standing

Defendants have lodged a facial attack on the pleadings and argue that the suit must be dismissed for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) because the Sierra Club has no standing to assert its claims on behalf of its members. Standing is “built on a single basic idea—the idea of separation of powers.” Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Standing is an essential part of the case-or-controversy requirement of Article III of the Constitution. See U.S. Const. art. III, sec. 2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). As such, the standing inquiry addresses whether a plaintiff's claims are appropriately resolved by the court. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Standing implicates the court's jurisdiction and must be addressed before determining whether the plaintiff has adequately stated claims against defendants. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001) (“When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits. This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice.”). At the pleading stage of proceedings, the plaintiff need only make general factual allegations of injury caused by defendants. Lujan, 504 U.S. at 561, 112 S.Ct. 2130.

An association has standing to bring suit on behalf of its members when: (1) one or more of the organization's members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted nor the relief requested...

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