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ARC Ecology v. U.S. Dept. of the Air Force

December 03, 2003

ARC ECOLOGY, ET AL., PLAINTIFFS,
v.
U.S. DEPT. OF THE AIR FORCE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: James Ware United States District Judge

CERTIFIED FOR PUBLICATION

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

I. INTRODUCTION

This action requires the Court to decide if Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., applies to claims brought by citizens of a foreign country against the United States to assess the alleged pollution on former U.S. military bases located in a foreign country. Pursuant to CERCLA, Plaintiffs request an order compelling the Defendants to (1) conduct preliminary assessments of the properties of two former United States military bases in the Philippines, Clark Air Force Base ( "Property Formerly Clark A.F. Base" ) and the Subic Bay Naval Base ( "Property Formerly Subic Naval Base") and (2) seek an order declaring that the provisions of CERCLA apply to those two former United States military bases. The Court finds that CERCLA does not apply to foreign countries and orders the case dismissed.

II. BACKGROUND

The Plaintiffs in this case are Filipino citizens who live or travel around property in the Philippines which were former United States military bases.*fn1 The individual Plaintiffs are joined by two organizations, Arc Ecology and the Filipino-American Coalition for Environmental Solutions. According to the Complaint, Arc Ecology and Filipino-American Coalition for Environmental Solutions, are non-profit organizations formed for the purpose of, among other things, forming coalitions with and supporting individuals and community groups in obtaining assessment and cleanup of environmental pollution on former United States military bases in the Philippines. Plaintiffs contend that the individually named Plaintiffs are members of at least one if not both of these organizations.

The Defendants are the United States Department of the Air Force, the United States Department of the Navy, the United States Department of Defense, and Donald Rumsfeld, in his official capacity as United States Secretary of Defense (collectively, the "Defendants").

In addition to their claims under CERCLA, Plaintiffs seek an order stating that Section 300.420(b)(5) of the National Contingency Plan applies to the former military bases in the Philippines. Plaintiffs bring the same claims pursuant to the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., seeking an order declaring that the Defendants' failure and refusal to conduct preliminary assessments at the Property Formerly Clark A.F. Base and the Property Formerly Subic Naval Base constitutes: (a) agency action unlawfully withheld or unreasonably delayed under 5 U.S.C. § 706(1), and, or in the alternative (b) agency actions, findings, and conclusions that are arbitrary, capricious, an abuse of discretion or otherwise not in accordance with 5 U.S.C. § 706(2).

Defendants move the Court to dismiss the Complaint on the grounds that the Plaintiffs lack standing, Plaintiffs' failure to state a claim on which relief can be granted, and that venue is not proper in this district. The Defendants contend that CERCLA does not apply extraterritorially.

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of claims asserted in a complaint. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Dismissal under Rule 12(b)(6) is appropriate where it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1482 (9th Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

III. DISCUSSION

A. Standing

The liberal reading accorded complaints on 12(b)(6) motions is subject to the requirement that the facts demonstrating standing must be clearly alleged in the Complaint. See Jenkins v. McKeithen, 395 U.S. 411, 422 (1969). The Supreme Court has three constitutional standing requirements. See Edwin Chemerinsky, Federal Jurisdiction Third Edition (1999) p.59 (citing Bennett v. Spear, 520 U.S. 154 (1997) and Northeastern Florida Contractors v. Jacksonville, 508 U.S. 656, 663 (1993)). First, the Plaintiffs must allege that he or she has suffered or imminently will suffer an injury. Id. Second, the Plaintiffs must allege that the injury is fairly traceable to the Defendants' conduct. Id. Third, the Plaintiffs must allege that a favorable federal court decision is likely to redress the injury. Id.

Defendants contend that the Plaintiffs lack standing due to the vagueness of the alleged injuries suffered by the Plaintiffs. Plaintiffs contends CERCLA ยง 105(d) authorizes any person who is, or may be, affected by a release or threatened release of a hazardous substance to petition to have a preliminary assessment addressing the release. Plaintiffs assert that their Amended Complaint is not vague because it alleges that numerous hazardous substances, pollutants and contaminants, including toxic ...


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