Ctr. for Envtl. Health v. Envtl. Prot. Agency

CENTER FOR ENVIRONMENTAL HEALTH, et al., Plaintiffs, v. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

No. 21-cv-01535-PJH

United States District Court, N.D. California

May 9, 2022

ORDER GRANTING DEFENDANTS' MOTION TO TRANSFER VENUE RE: DKT. NO. 33

PHYLLIS J. HAMILTON, United States District Judge.

Before the court is defendants' motion to transfer venue. The matter is fully briefed and suitable for decision without oral argument. Accordingly, the hearing set for May 5, 2022 was previously vacated. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby rules as follows.

BACKGROUND

This Toxic Substances Control Act (“TSCA”) case concerns testing related to alleged chemical exposures in North Carolina. Specifically, plaintiffs petitioned the United States Environmental Protection Agency (“EPA”) to initiate a rulemaking proceeding or issue an order compelling health and environmental-effects testing regarding chemical substances allegedly released into the Cape Fear River watershed. This lawsuit challenges EPA's administrative responses to the petition.

Plaintiff Center for Environmental Health (“CEH”) is a non-profit organization working to protect children and families from harmful chemicals in air, food, water, and in everyday products. FAC (Dkt. 32) ¶ 15. CEH is headquartered in Oakland, California, but members of its staff work in North Carolina. Plaintiff Cape Fear River Watch (“CFRW”) is a grassroots environmental nonprofit based in Wilmington, North Carolina, and its mission is to protect and improve the water quality of the Cape Fear River Basin for all people through education, advocacy, and action. FAC ¶ 16. Plaintiff Clean Cape Fear (“CCF”) is an all-volunteer, grassroots community group based in the Wilmington area. FAC ¶ 17. Plaintiff Democracy Green (“DG”) is an organization created and run by native North Carolinians-of-color to address the systemic impacts burdening disenfranchised communities across North Carolina. FAC ¶ 18. Plaintiff The NC Black Alliance (“NCBA”) is a group working toward state-level systemic change by strengthening the network of elected officials representing communities of color throughout the state of North Carolina and collaborating with progressive grassroots networks on intersecting issues. FAC ¶ 19. Plaintiff Toxic Free NC (“TFNC”) is an organization advancing environmental health and justice in North Carolina by advocating for safe alternatives to harmful pesticides and chemicals. FAC ¶ 20. Defendants are the EPA and Michael Regan, who is named in his official capacity as Administrator of EPA. FAC ¶¶ 21, 22. Regan was substituted for Jane Nishida, previous Administrator of EPA, pursuant to FRCP 25(d). Dkt. 15.

EPA and other leading authorities consider per- and polyfluoroalkyl substances (“PFAS”), a class of chemicals, a serious threat to human health and the environment but recognize that, while some high-profile PFAS have been shown to have harmful effects, very few substances in the class have been tested to determine their impacts on exposed people and wildlife. Section 4 of the Toxic Substances Control Act (“TSCA”) gives EPA authority to require PFAS manufacturers to fund this testing. 15 U.S.C. § 2603(a)(1).

In October 2020, plaintiffs petitioned EPA to initiate a rulemaking proceeding or issue an order under TSCA section 4(a)(1)(A)(i) to compel The Chemours Company (“Chemours”) to fund and carry out health and environmental-effects testing on 54 PFAS that, plaintiffs allege, are manufactured by Chemours at its chemical production facility in Fayetteville, North Carolina, and discharged from the facility into the Cape Fear River. FAC ¶¶ 1-2, 7. Plaintiffs' requested testing would include studies of downstream communities in North Carolina that, they allege, were exposed to PFAS-contaminated drinking water. FAC ¶ 60. Plaintiffs also proposed that EPA ask the National Academy of Sciences to create an independent science panel to oversee the testing program. FAC ¶ 61.

In January 2021, EPA denied the petition because, among other issues, “the petitioners have not provided the facts necessary for the Agency to determine for each of the 54 PFAS that existing information and experience are insufficient and testing of such substance or mixture with respect to such effects is necessary to develop such information.” FAC ¶ 64.

In March 2021, plaintiffs initiated this lawsuit seeking judicial review of the January 2021 denial and requested that EPA reconsider its decision to deny the administrative petition. FAC ¶¶ 4-5. EPA granted plaintiffs' reconsideration request, and, upon stipulation of the parties, the court placed this case in abeyance while EPA completed its reconsideration action. Dkt. 25.

On December 28, 2021, after reconsidering the agency's prior January 2021 denial, EPA granted the administrative petition and communicated the decision in a letter to counsel for plaintiffs. FAC ¶ 79. EPA's December 2021 grant of the petition was too narrow to satisfy plaintiffs, however, requiring testing of only seven of the 54 substances proposed in the petition. Plaintiffs then filed the now-operative amended complaint, seeking judicial review of both EPA's January 2021 denial and EPA's December 2021 grant of the petition. FAC ¶ 9. The FAC asserts one claim under TSCA section 21. FAC ¶¶ 121-31. Plaintiffs seek declaratory relief, an order directing EPA to initiate a proceeding for the issuance of a rule or order under TSCA section 4 requiring Chemours to conduct the studies requested in the petition, and an award of costs. FAC at 31-32.

In the instant motion, defendants ask the court for a discretionary transfer to the Eastern District of North Carolina, home to the Cape Fear River watershed and most of the plaintiffs. Plaintiffs resist transfer on the basis that one of the plaintiff organizations maintains a headquarters in Oakland in addition to its office in North Carolina. If the court grants transfer, plaintiffs ask that the matter be transferred to the District of Columbia, home of the defendant agency's headquarters.

DISCUSSION

A. Legal Standard

A motion for discretionary transfer of venue from one district to another is governed by Title 28 U.S.C. § 1404(a), which states: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” In contrast to motions challenging venue as improper, the party seeking discretionary transfer generally bears the burden of showing that transfer is appropriate. Jones v. GNC Franchising, Inc., 211 F.3d 495, 499 (9th Cir. 2000) (noting the moving party failed to meet its burden of showing the alternate forum “was the more appropriate forum for the action”).

Under the plain text of the statute, the moving party must make two showings to justify transfer. First, the transferee forum must be one in which the case “might have been brought.” Hoffman v. Blaski, 363 U.S. 335, 344 (1960). “In determining whether an action ‘might have been brought' in a district, the court looks to whether the action initially could have been commenced in that district.” Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985).

Second, provided the case could have been brought in the proposed transferee forum, the movant must persuade the court that considerations of “convenience of parties and witnesses” and “the interest of justice” weigh in favor of transfer. Earth Island Inst. v. Quinn, 56 F.Supp.3d 1110, 1117 (N.D. Cal. 2014). The Ninth Circuit has identified the following specific but non-exhaustive factors which “the court may consider” in analyzing those overarching statutory considerations:

(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, . . . (8) the ease of access to sources of proof . . . [9] the presence of a forum selection clause . . . [and 10] the relevant public policy of the forum state, if any.”

Jones, 211 F.3d at 498-99.

A district court is not restricted to the pleadings on a motion to transfer and may consider “undisputed facts supported by affidavits, depositions, stipulations, or other relevant documents.” FastCap, LLC v. Snake River Tool Co., LLC, No. 15-CV-02764-JSC, 2015 WL 6828196, at *2 (N.D. Cal. Nov. 6, 2015). Section 1404(a) affords the court broad discretion “to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.'” Jones, 211 F.3d at 498 (quoting Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988)).

B. Analysis

The two steps in the § 1404(a) assessment, determining (1) whether the case could have been brought elsewhere and (2) whether transfer to another district would serve the convenience of the parties and witnesses as well as the interest of justice, are considered in turn.

1. Section 1391(e)

“In determining whether an action might have been brought in a district, the court looks to whether the action initially could have been commenced in that district.” Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985). In civil actions against the United States or its agencies or officers, venue is proper in any judicial district where (1) “a defendant in the action resides”; (2) “a...