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Protect Our Communities Foundation v. Chu

United States District Court, S.D. California

March 27, 2014

DR. STEVEN CHU, et al., Defendants.


M. JAMES LORENZ, District Judge.

Plaintiffs bring this action seeking injunctive and declaratory relief against Defendants for violation of multiple environmental statutes in connection with the issuance of a Presidential permit for a cross-border electric transmission line. Defendants move to dismiss the Complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.[1] Plaintiffs oppose.

The Court found this matter suitable for determination on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1). [Doc. 12.] For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss.


Executive Order 10485, as amended by Executive Order 12038, requires anyone "proposing to construct, operate, maintain, or connect an electricity transmission facility at the U.S. border" to obtain a Presidential permit issued by the U.S. Department of Energy ("DOE") ( Compl. [Doc. 1] ¶ 27; Exec. Order No. 10, 485, 18 Fed. Reg. 5397 (1953), as amended by Exec. Order No. 12, 038, 43 Fed. Reg. 4957 (1978)). Before issuing such a permit, DOE must determine the permit is in the public interest as well as consult with and obtain recommendations from the U.S. Departments of State and Defense. ( Id. )

On December 18, 2007, Energia Sierra Juarez U.S. Transmission, LLC., ("ESJ") applied to the DOE for a Presidential permit "to construct, operate, maintain, and connect a transmission line across the U.S.-Mexico Border" ("Project"). ( Compl. ¶ 28.) Plaintiffs allege that the Project's "sole purpose" is to enable the construction and operation of a separate proposed wind energy project in Baja California, Mexico ("ESJ Wind Project"). ( Id. ¶ 25.) Specifically, the Project will connect the ESJ Wind Project with the U.S. electricity grid by means of San Diego Gas & Electric's existing Southwest Powerlink transmission line, a proposed ECO Substation, and an expanded Boulevard Station in Jacumba, California. ( Id. ¶¶ 1, 26.) The Project will entail erecting up to five 150-foot tall lattice towers to support more than half a mile of transmission lines and will require extensive construction and permanent clearance of vegetation in a largely unobstructed area. ( Compl. ¶¶ 23-24.) Plaintiffs also allege that the ESJ Wind Project, located in Baja California, Mexico, entails erecting more towers, including "some" that will be located less than one mile from the U.S. border. ( Id. ¶ 24.) Furthermore, the ESJ Wind Project will require multiples phases of construction and about thirty percent of the total towers erected will be lighted. ( Id. ) Plaintiffs allege that connecting the energy from the ESJ Wind Project to the U.S. electricity grid mandates additional construction in the form of the Eco Substation project. ( Id. ¶ 26.)

After receiving ESJ's application, DOE completed an informal consultation with the U.S. Fish and Wildlife Service ("FWS"). ( Compl. ¶ 26.) Then, despite initially deciding to conduct an environmental assessment ("EA"), DOE elected to prepare an environmental impact statement ("EIS"). (Compl. ¶ 29.) Plaintiffs allege DOE decided to do so in response to public comments. ( Id. ) In September 2010, DOE completed a draft EIS ("DEIS") and subsequently conducted public hearings and considered comments on the DEIS until the end of the comment period in September 2011. ( Id. ) In May 2012, DOE published its Final EIS ("FEIS"). ( Id. ) Plaintiffs allege they submitted comments on both the DEIS and the FEIS. ( Id. )

Plaintiffs claim the FEIS identifies multiple "unavoidable impacts to biological resources, visual resources, cultural resources, noise, public health and safety, fire management, water sources, transportation and traffic, land use, and recreation." ( Compl. ¶ 30.) However, on August 17, 2012, DOE announced its decision to issue Presidential Permit Number PP-334 ("Permit") to ESJ. ( Id. ) On August 31, 2012, DOE issued the Permit to ESJ. ( Id. )

Plaintiffs allege Defendants' grant of the Permit and associated environmental reviews violated (1) the National Environmental Policy Act ("NEPA"), (2) the Endangered Species Act ("ESA"), (3) the Migratory Bird Treaty Act ("MBTA"), (4) the Bald Eagle and Golden Eagle Protection Act ("Eagle Act"), (5) the Administrative Procedure Act ("APA"), and regulations promulgated thereunder. ( Compl. ¶ 2, 31.) For these alleged violations, Plaintiffs seek preliminary injunctive relief restraining action taken in accordance with the Project pending a full hearing on the merits, declarations that Defendants violated the aforementioned acts, and permanent injunctive relief overturning DOE's Project approval pending compliance with the aforementioned Acts. ( Id. ¶ 7.)


A. Proper Standard to Apply

Although Defendants challenge this Court's jurisdiction under Rule 12(b)(1), the more appropriate procedural vehicle is Rule 12(b)(6). Plaintiffs allege violations of multiple federal statutes, all of which raise federal questions covered by 28 U.S.C. § 1331.[2] The gravamen of Defendants' position is not that Plaintiffs do not present federal claims, but instead whether those claims are enforceable against the DOE when it is acting on behalf of the President pursuant to Executive Order 10, 485. Whether there is a cause of action is not a jurisdictional question; rather, "the court must assume jurisdiction before deciding whether a cause of action exists." Natural Resources Defense Counsel, Inc ("NRDC"). v. U.S. Dept. of State, 658 F.Supp. 105, 108 (D. D. C. 2009) (citations omitted). Accordingly, the Court will treat Defendant's motion as one for dismissal under Rule 12(b)(6) for failure to state a claim.

B. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)

The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court must accept all allegations of material fact as true and construe them in light most favorable to the nonmoving party. Cedars-Sanai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the court need not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotation marks omitted). In fact, the court does not need to accept any legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations omitted). Instead, the allegations in the complaint "must be enough to raise a right to relief above the speculative level." Id. Thus, "[t]o 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.'" Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). "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 plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

Generally, courts may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, documents specifically identified in the complaint whose authenticity is not questioned by parties may also be considered. Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superceded by statutes on other grounds). Moreover, the court may consider the full text of those documents, even when the complaint quotes only selected portions. Id . It may also consider material ...

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