Ohio Valley Envtl. Coal., Inc. v. Hernshaw Partners, LLC

984 F.Supp.2d 589

OHIO VALLEY ENVIRONMENTAL COALITION, INC., et al., Plaintiffs,

v.HERNSHAW PARTNERS, LLC, Defendant.

Civil Action No. 2:13–cv–14851.

United States District Court, S.D. West Virginia.

Dec. 2, 2013.

Benjamin A. Luckett, Joseph Mark Lovett, Lewisburg, WV, for Plaintiffs.

Nicholas S. Preservati, Preservati Law Offices, W. Howard Sammons, II, The Law Office of W. Howard Sammons II, Charleston, WV, Terry R. Sammons, Sammons Law Offices, Gilbert, WV, for Defendant.

MEMORANDUM OPINION & ORDER

JOSEPH R. GOODWIN, District Judge.

Pending before the court is the plaintiffs' Motion for Leave to File Amended Complaint for Declaratory and Injunctive Relief and for Civil Penalties [Docket 19]. For the reasons stated below, the plaintiffs' motion is GRANTED. The plaintiffs are DIRECTED to file their proposed amended complaint within ten days of this Order.

Also pending before the court is the defendant's Rule 12(b)(1) Motion to Dismiss [Docket 11] and Rule 12(b)(6) Motion to Dismiss [Docket 13]. For the reasons stated below, these motions are DENIED.

I. Background

The plaintiffs allege that the defendant discharges selenium in violation of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., otherwise known as the Clean Water Act. The defendant is the owner of land that was previously used for coal mining operations. (Compl. for Decl. and Inj. Relief and for Civil Penalties [Docket 1], ¶ 9). Those mining operations involved the construction of a valley fill in a tributary of Laurel Fork of Ben Creek of Tug Fork. ( Id. ¶¶ 9, 27). The plaintiffs allege that this valley fill is the source of selenium being discharged into the Laurel Fork tributary in violation of section 301 of the Clean Water Act, 33 U.S.C. § 1311. ( See id. ¶¶ 1–2).

The plaintiffs are environmental groups. They allege that at least one of their members is personally affected by the selenium discharges. The plaintiffs seek a declaration that the defendant has violated and continues to violate the Clean Water Act, an injunction preventing the defendant from continuing to discharge selenium into Laurel Fork, and civil penalties pursuant to the Clean Water Act. ( See id. at 9).

The defendant moved to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing [Docket 11] and under Rule 12(b)(6) for failure to state a claim [Docket 13]. Although the plaintiffs oppose both motions to dismiss, they seek to amend their complaint “out of an abundance of caution” to clarify the facts that support their Article III standing and their claim under the Clean Water Act. (Reply in Supp. of Pls.' Mot. for Leave to File Am. Compl. for Decl. and Inj. Relief and for Civil Penalties [Docket 27], at 1).

As I explain below, the plaintiffs can amend their complaint only if the amendments would survive a motion to dismiss. Therefore, whether to grant the plaintiffs' motion to amend and the defendant's motions to dismiss will necessarily involve the same legal analysis.

II. Legal Standard for Amendment of Pleadings

Rule 15(a) of the Federal Rules of Civil Procedure permits amendment of a complaint after a responsive pleading has been filed “only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). Such leave should be freely given by the court “when justice so requires.” Id. This is a permissive standard. The Fourth Circuit “reads Rule 15(a) to mean that leave to amend should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or amendment would be futile.” Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir.2009) (citing Laber v. Harvey, 438 F.3d 404, 426 (4th Cir.2006) (en banc)). An amendment is futile if it would fail to survive a motion to dismiss. See Perkins v. United States, 55 F.3d 910, 917 (4th Cir.1995).

III. Analysis

The defendant argues that it would be futile to allow the plaintiffs to amend their complaint because it cannot survive a motion to dismiss under Rule 12(b). Specifically, the defendant argues that the plaintiffs lack Article III standing and have failed to state a claim. In determining if the amendment is futile, I apply the same standard used in determining whether to grant a motion to dismiss. See Wash. Gas Light Co. v. Prince George's Cnty. Council Sitting as Dist. Council, 784 F.Supp.2d 565, 570 (D.Md.2011) (citing Perkins v. United States, 55 F.3d 910, 917 (4th Cir.1995)); Travelers Indem. Co. v. Dammann & Co., Inc., 592 F.Supp.2d 752, 763 (D.N.J.2008). Accordingly, to determine whether the plaintiffs may amend their complaint, I must determine whether their proposed amended complaint would survive a motion to dismiss.

A. The amendment is not futile for lack of Article III standing

First, the defendant argues that the plaintiffs lack standing under Article III of the United States Constitution. In determining whether these plaintiffs lack standing under their proposed amended complaint, I will accept as true the facts alleged in that pleading. See Kerns v. United States, 585 F.3d 187, 192 (4th Cir.2009). If those facts are sufficient to confer standing, the amended pleading is not futile.

To have standing, a plaintiff must meet the following requirements: (1) the plaintiff must have suffered an “injury in fact,” (2) the injury must be “traceable to the challenged action of the defendant,” and (3) it must be “likely ... that the injury will be redressed by a favorable decision” from the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotations and citations omitted). “[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).

There is a relatively low threshold for establishing an injury-in-fact in environmental litigation. “[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (internal quotations omitted). The plaintiffs have alleged the following in their proposed amended complaint:

At least one of Plaintiffs' members lives in Mingo County and has visited in the past and plans to continue to visit Ben Creek, including the area around Laurel Fork. That member is aware of Defendant's unpermitted selenium discharges from the Valley Fill and of elevated selenium levels in Laurel Fork. Plaintiffs' member knows that selenium can harm animals and is concerned about the effects of the unregulated selenium discharges on aquatic life, birds, and other wildlife that rely on healthy streams. That member's knowledge of Defendant's unmonitored, unregulated selenium discharges causes her to enjoy the affected waterways less than she would otherwise. Plaintiffs' member's knowledge of the unregulated discharges causes her to refrain from bringing her grandchildren to enjoy the affected waters in the ways that Plaintiffs' member did when she was a child.

( [Proposed] Compl. for Decl. and Inj. Relief and for Civil Penalties (“Proposed Am. Compl.”) [Docket 19–1], ¶ 13). These allegations, which concern the plaintiffs' “aesthetic or recreational interests,” are sufficient to show an injury-in-fact. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir.2000). Accordingly, I FIND that the plaintiffs satisfy the injury-in-fact prong for Article III standing.

To establish the second element of standing—traceability—the plaintiffs need not show to scientific certainty that the defendant's conduct “caused the precise harm suffered by the plaintiffs.” Natural Res. Def. Council, Inc. v. Watkins, 954 F.2d 974, 980 n. 7 (4th Cir.1992) (quoting Pub. Interest Research Grp. of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 72 (3d Cir.1990)). The plaintiffs need to show merely “that a defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged in the specific geographic area of concern.” See Friends of the Earth, 204 F.3d at 161. Here, the plaintiffs' proposed amended complaint alleges that a valley fill on the defendant's property discharges selenium without a permit. ( See Proposed Am. Compl. [Docket 19–1], ¶¶ 1, 2, 29, 30). The plaintiffs allege that a water sampler hired by Sierra Club detected elevated levels of selenium less than one mile downstream from the valley fill, causing injury to at least one of the plaintiffs' member's aesthetic and recreational interests in Laurel Fork. ( See Proposed Am. Compl. [Docket 19–1], ¶¶ 13, 31). These facts sufficiently trace the plaintiffs' injuries to the defendant's conduct. Accordingly, I FIND that the plaintiffs satisfy the traceability prong for standing.

The third element of standing—redressability—is clearly established. The plaintiffs seek injunctive relief and civil penalties to halt the discharge of selenium from the defendant's valley fill. “A plaintiff seeking injunctive relief shows redressability by alleging a continuing violation ... of the statute at issue.” Friends of the Earth, 204 F.3d at 162. Here, the plaintiffs have alleged that the defendant continues to discharge selenium in violation of the Clean Water Act. ( See Proposed Am. Compl. [Docket 19–1], ¶ 2). I therefore FIND that the plaintiffs satisfy the redressability prong for standing.

Finally, the plaintiffs must...