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CITIZENS FOR A BETTER ENV'T v. UNION OIL OF CALIFO

April 15, 1997

CITIZENS FOR A BETTER ENVIRONMENT--CALIFORNIA, et al., Plaintiffs,
v.
UNION OIL OF CALIFORNIA, a corporation, Defendant.



The opinion of the court was delivered by: HENDERSON

 This matter came on for oral argument upon plaintiffs' motion for partial summary judgment on April 7, 1997.

 I. FACTUAL BACKGROUND

 This action was brought in 1994, against Union Oil Company of California ("Unocal") by a group of citizens and non-governmental environmental conservation organizations alleging that Unocal's Rodeo oil refinery is discharging selenium into the San Pablo Bay at levels that violate the federal Water Pollution Control Act ("Clean Water Act"). After this Court denied defendant's motion to dismiss, the Ninth circuit affirmed, and the Supreme Court denied cert, see Union Oil Co. of California v. Citizens for a Better Environment, 117 S. Ct. 789, 136 L. Ed. 2d 731 (1997); Citizens for a Better Environment v. Union Oil Co., 83 F.3d 1111, 1119 (9th Cir. 1996); Citizens for a Better Environment v. Union Oil Co., 861 F. Supp. 889 (N.D. Cal. 1994), plaintiffs moved for partial summary judgment on the issue of Unocal's liability for on-going violations of the Clean Water Act and California Unfair Practices Act by discharging selenium in excess of the amount allowed under Unocal's National Pollutant Discharge Elimination System ("NPDES") permit. In bringing this motion, plaintiffs raise the threshold issue of their standing to assert these claims.

 In response to plaintiffs' motion, defendant does not dispute its liability under the Clean Water Act for discharging treated wastewater exceeding the "final" selenium limit and has withdrawn its objection to plaintiffs' standing. Defendant does, however, oppose summary judgment on plaintiffs' California Business and Professions Code ยง 17200 claim and defendant notes that consideration of remedies is inappropriate at this stage.

 II. LEGAL STANDARD

 Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Jung v. FMC Corp., 755 F.2d 708, 710 (9th Cir. 1985); Fed. R. Civ. P. 56. Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The court may not weigh the evidence, and is required to view the evidence in the light most favorable to the nonmoving party. Id.

 A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Where the moving party will have the burden of proof on an issue at trial, she must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. However, on an issue for which her opponent will have the burden of proof at trial, the moving party can prevail merely by "pointing out to the District Court ... that there is an absence of evidence to support the nonmoving party's case." Id.

 If the moving party meets its initial burden, the opposing party must then "set forth specific facts showing that there is some genuine issue for trial" in order to defeat the motion. Anderson, 477 U.S. at 250; Fed. R. Civ. P. 56(e). A grant of summary judgment is reviewed de novo by the appellate court; a denial of summary judgment is reviewed for an abuse of discretion. U.S. v. 5,644,540 in U.S. Currency, 799 F.2d 1357, 1361 (9th Cir. 1986).

 III. DISCUSSION

 A. STANDING

 Plaintiffs' motion makes the preliminary assertion that plaintiffs have standing to bring the suit. A "threshold question in every federal case [is] whether the plaintiff has stated a 'case or controversy' between himself and the defendant within the meaning of Article III." Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). The core component of whether a case or controversy under Article III exists is the doctrine of standing. Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). The Supreme Court has established three elements necessary to meet the Article III standing requirement. First, the plaintiff must have suffered an "injury in fact"--"the plaintiff must show that he 'has sustained or is immediately in danger of sustaining some direct injury'...and the injury or threat of injury must be both 'real and immediate,' not 'conjectural' or 'hypothetical.'" City of Los Angeles v. Lyons, 461 U.S. 95, 101-102, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983). Second, the injury must be a result of the challenged conduct. See, e.g. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992) ("The injury has to be 'fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court."). Finally, a plaintiff must show a likelihood that a favorable decision will redress the injury. Id.

 Defendant has noted some factors that it believes undermine plaintiffs' contentions of standing, but ultimately withdraws its objection to plaintiffs' standing. The Court, however, remains under an independent obligation to address this jurisdictional issue. "This court . . . must consider whether federal jurisdiction exists, even if no objection is made . . . and even if both parties stipulate to federal jurisdiction." Rains v. Criterion Systems, Inc., 80 F.3d 339, 342 (9th Cir. 1996) (internal citations omitted); see also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229, 107 L. Ed. 2d 603, 110 S. Ct. 596 (1990) ("federal courts are under an independent obligation to examine their own jurisdiction"). Generally, standing is a threshold question resolved in the beginning stages of a case, see Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 115 n.31, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979), and the trial court must accept as true all material allegations of the complaint, and where necessary may require the plaintiff to supply further particularized allegations of fact deemed supportive of plaintiff's standing. Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). The most common invocation of standing at later stages of a trial is through a motion for summary judgment ...


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