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Club v. Johnson

July 23, 2008

SIERRA CLUB, GREAT BASIN RESOURCE WATCH, AMIGOS BRAVOS, AND IDAHO CONSERVATION LEAGUE, PLAINTIFFS,
v.
STEPHEN L. JOHNSON, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND MARY E. PETERS, SECRETARY, UNITED STATES DEPARTMENT OF TRANSPORTATION, DEFENDANTS, AND SUPERFUND PROJECT, RCRA CORRECTIVE ACTION PROJECT, AND AMERICAN PETROLEUM INSTITUTES, DEFENDANT-INTERVENORS.



The opinion of the court was delivered by: William Alsup United States District Judge

ORDER DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND ORDER TO SHOW CAUSE SETTLEMENTS

INTRODUCTION

In this environmental action alleging failure to perform non-discretionary duties required by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the federal defendants move to dismiss for lack of subject-matter jurisdiction or, in the alternative, for improper venue. For the reasons stated below, defendants' motion is DENIED IN PART. Subject-matter jurisdiction is proper over plaintiffs' CERCLA claim.

With respect to plaintiffs' Administrative Procedure Act claim, the parties are hereby ordered to show cause within fourteen days as to whether that claim is duplicative of the CERCLA claim.

STATEMENT

Plaintiffs Sierra Club, Great Basin Resource Watch, Amigos Bravos, and Idaho Conservation League are nonprofit organizations dedicated to environmental protection. The lead plaintiff in this action is Sierra Club, a California nonprofit corporation headquartered in San Francisco. Sierra Club has over 700,000 members in all fifty states and the District of Columbia. Defendants are Stephen L. Johnson, sued in his official capacity as Administrator of the Environmental Protection Agency, and Mary E. Peters, sued in her official capacity as Secretary of the Department of Transportation.

Congress enacted CERCLA, also known as "Superfund," in 1980 to address the cleanup of improperly disposed hazardous substances. Section 108(b) mandated that the President promulgate regulations to ensure that facilities involved in any way with hazardous substances would remain financially responsible for cleaning up any substances that were improperly disposed. 42 U.S.C. 9608(b). By executive order, all functions vested in the President under Section 108(b) were delegated to the Administrator of the EPA, except for functions having to do with transportation-related facilities, which were delegated to the Secretary of the DOT. Those officials were allegedly required by Section 108(b) to: (i) publish notice of the classes of facilities for which financial responsibility requirements would be required not later than three years after December 11, 1980; (ii) promulgate requirements that classes of facilities establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances beginning not earlier than five years after December 11, 1980; and (iii) incrementally impose financial responsibility requirements as quickly as can reasonably be achieved but in no event more than four years after the date of promulgation. See 42 U.S.C. 9608(b)(1), (b)(3). According to plaintiffs, defendants have taken none of these steps.

Plaintiffs have two claims for relief. The first arises under Section 310(a)(2) of CERCLA, codified as 42 U.S.C. 9659(a)(2), which authorizes citizen suits against federal officials for failure to perform any non-discretionary act or duty mandated by CERCLA. Plaintiffs allege that defendants' failure to issue the regulations that CERCLA requires constitutes a "failure of the President or of such other officer to perform any act or duty under this chapter . . . which is not discretionary with the President or such other officer" within the meaning of Section 310(a)(2). That failure, plaintiffs claim, "increases the likelihood that plaintiffs' members and their environment will be exposed to unremediated releases of hazardous substances" (Compl. ¶ 10). Plaintiffs' second claim for relief arises under the Administrative Procedure Act, which grants courts the jurisdiction to review agency action or failure to act. Defendants' failure to issue regulations, plaintiffs allege, constitutes "agency action unlawfully withheld or unreasonably delayed," in violation of Section 706(1) of the APA (Compl. ¶ 41). Defendants' action is unlawfully withheld, according to plaintiffs, because it is required by CERCLA, and it has been unreasonably delayed because "a delay of over 20 years is inherently unreasonable, particularly in light of the importance Congress has assigned to the protection of people and the environment from hazardous substances" (ibid.). Plaintiffs brought this action in the Northern District of California because Sierra Club is headquartered in San Francisco. The federal defendants move to dismiss the action for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Defendants argue that proper venue is an express condition of the government's waiver of sovereign immunity for suits brought under CERCLA Section 310(a)(2) and that venue is proper only in the District of Columbia. Plaintiffs' APA claim, defendants argue, must also be dismissed for lack of subject-matter jurisdiction because that claim can only be brought in the Court of Appeals for the District of Columbia Circuit.

ANALYSIS

1. THE CERCLACLAIM

The special venue provision that governs citizen suits for failure by an executive officer to perform a non-discretionary duty is Section 310(b)(2), and it reads as follows:

Any action brought under subsection (a)(2) of this section may be brought in the United States District Court for the District of Columbia. 42 U.S.C. 9659(b)(2). The issue is whether "may be brought" is permissive. The federal defendants argue that, by specifying the District Court for the District of Columbia, Congress mandated that Section 310(a)(2) suits be filed only there. Defendants further contend that the provision must be narrowly construed in favor of the government because it constitutes a waiver of sovereign immunity. See, e.g., Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 94 (1990).*fn1

In Exxon Corp. v. Hunt, 475 U.S. 355, 363 (1986), the Supreme Court noted that Section 114(c) of CERCLA was "not a model of legislative draftsmanship." So too as for Section 310(b)(2). In the absence of convincing legislative history to the contrary, however, ...


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