Winyah Rivers Alliance v. Active Energy Renewable Power, LLC

579 F.Supp.3d 759

WINYAH RIVERS ALLIANCE, Plaintiff,

v.ACTIVE ENERGY RENEWABLE POWER, LLC, et al., Defendants.

No. 7:21-CV-43-D

United States District Court, E.D. North Carolina, Southern Division.

Signed January 10, 2022

Elizabeth Rita Rasheed, Heather Hillaker, Southern Environmental Law Center, Chapel Hill, NC, Kurt D. Ebersbach, Southern Environmental Law Center, Atlanta, GA, for Plaintiff.

Gary K. Shipman, Shipman & Associates, LLP, Wilmington, NC, for Defendants.

ORDER

JAMES C. DEVER III, United States District Judge

On March 10, 2021, Winyah Rivers Alliance ("Winyah" or "plaintiff") filed suit against Active Energy Renewable Power, LLC ("Active Energy") and Lumberton Energy Holdings, LLC ("Lumberton Energy") (collectively, "defendants") alleging violations of the Clean Water Act, 33 U.S.C. §§ 1251 et seq. [D.E. 1]. On May 3, 2021, defendants moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (b)(6) and filed a memorandum in support [D.E. 11, 12]. On May 24, 2021, Winyah responded in opposition [D.E. 13]. On June 7, 2021, defendants replied [D.E. 14]. On June 14, 2021, Winyah filed a motion to strike and, in the alternative, a motion to file a surreply, based on new arguments in defendants’ reply brief [D.E. 15, 16]. Defendants oppose Winyah's motion to strike [D.E. 17]. As explained below, the court denies Winyah's motion to strike and denies defendants’ motion to dismiss.

I.

As for defendant's motion under Rule 12(b)(1), defendants argue that Winyah lacks standing and that Winyah's claims are not ripe. See [D.E. 12] 28–29; [D.E. 14] 5–10.¹ A motion to dismiss under Rule 12(b)(1) tests subject-matter jurisdiction, which is the court's "statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (emphasis omitted). A federal court "must determine that it has subject-matter jurisdiction over [a claim] before it can pass on the merits of that [claim]." Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479–80 (4th Cir. 2005). When considering a Rule 12(b)(1) motion, the "court may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005) (quotation omitted); see Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). A plaintiff must establish that this court has subject-matter jurisdiction over his claims. See, e.g., Steel Co., 523 U.S. at 103–04, 118 S.Ct. 1003 ; Evans, 166 F.3d at 647 ; Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). However, "when a defendant asserts that the complaint fails to allege sufficient facts to support subject matter jurisdiction, the trial court must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged [in the complaint and any additional materials]." Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).

A.

Defendants argue Winyah lacks standing. Winyah has standing to sue on behalf of its members so long as "[1] its members would otherwise have standing to sue in their own right, [2] the interests at stake are germane to the organization's purpose, and [3] neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Env't Srvs. (TOC), Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ; see Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Winyah is an environmental nonprofit organization, and the interests at stake in this lawsuit are germane to its purpose. See Compl. [D.E. 1] ¶¶ 17–18. Moreover, the claims asserted and relief requested do not require the participation of Winyah's individual members. See id. at 27. Thus, Winyah has standing if its members: (1) "have suffered an injury in fact—an invasion of a legally-protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; (2) show "a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court"; and (3) show that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision" from the court. Chambers Med. Techs. of S.C., Inc. v. Bryant, 52 F.3d 1252, 1265 (4th Cir. 1995) (alterations omitted) (quoting Lujan v. Def. of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ); see TransUnion LLC v. Ramirez, ––– U.S. ––––, 141 S. Ct. 2190, 2203, 210 L.Ed.2d 568 (2021) ; Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) ; Laidlaw, 528 U.S. at 180–81, 120 S.Ct. 693 ; Sierra Club v. U.S. Dep't of Interior, 899 F.3d 260, 282–83 (4th Cir. 2018).

In environmental litigation, "the standing requirements are not onerous." Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 517 (4th Cir. 2003) ; see Beck v. McDonald, 848 F.3d 262, 274 n.5 (4th Cir. 2017). Plaintiffs allege an "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." Sierra Club, 899 F.3d at 283 (quotation omitted); see Laidlaw, 528 U.S. at 183, 120 S.Ct. 693 ; Sierra Club v. Morton, 405 U.S. 727, 734–35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) ; Am. Canoe Ass'n, 326 F.3d at 517. Plaintiffs demonstrate traceability by showing the challenged actions are partly responsible for their alleged injury in fact. See Sierra Club, 899 F.3d at 283 ; Libertarian Party of Va. v. Judd, 718 F.3d 308, 316 (4th Cir. 2013) (stating the challenged action must be "at least in part responsible" for the injury). The challenged action need not be "the sole or even immediate cause of" the injury. Sierra Club, 899 F.3d at 284 ; see Md. Shall Issue, Inc. v. Hogan, 971 F.3d 199, 212 (4th Cir. 2020) ; Libertarian Party of Va., 718 F.3d at 315–16. And plaintiffs show redressability by demonstrating a favorable judicial decision will likely redress their injury. See Laidlaw, 528 U.S. at 181, 120 S.Ct. 693 ; Sierra Club, 899 F.3d at 284. Plaintiffs "need not show that a favorable decision will relieve their every injury. Instead, [they] need only show that they personally would benefit in a tangible way from the court's intervention." Sierra Club, 899 F.3d at 284 (cleaned up); see Larson v. Valente, 456 U.S. 228, 242–44, 243 n.15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) ; Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 162 (4th Cir. 2000) (en banc).

Winyah has standing. As for injury-in-fact, Winyah submitted the affidavits of the organization's members describing how defendants’ alleged discharges of pollutants negatively affect the Lumber River's and Jacob Branch's aesthetic, recreational, and economic value to them, particularly for fishing (i.e., availability of fish to catch and health concerns of eating fish from a polluted river), boating, and swimming. See [D.E. 13-2 through 13-6]. Winyah also plausibly alleges that defendants’ NPDES permit required it to file a renewal application after acquiring the site and before resuming any discharges from the site into the Lumber River and Jacob Branch. See [D.E. 1] ¶¶ 4–10,100–12; Cf. Spokeo, 578 U.S. at 341–42, 136 S.Ct. 1540 ; Dreher v. Experian Info. Sols., Inc., 856 F.3d 337, 345-46 (4th Cir. 2017). Assuming without deciding Winyah is correct, Winyah's members could have used the public information from the renewal application and the subsequent review process to make more informed choices about whether and how to swim, fish, and boat on the Lumber River and Jacob Branch. See, e.g., [D.E. 13-3] ¶¶ 21–24; [D.E. 13-4] ¶¶ 11–15; [D.E. 13-5] ¶ 8; cf. Am. Canoe Ass'n, Inc. v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 542 (6th Cir. 2004). Accordingly, Winyah has demonstrated injury in fact.

As for traceability, Winyah's members describe concerns contributing to their injuries in fact particularized not only to the rivers in which defendants are allegedly discharging but also to specific parts of those rivers close to where defendants allegedly discharge pollutants. See, e.g., [D.E. 13-2] ¶ 11; [D.E. 13-3] ¶ 20; Compl. ¶¶ 116–37; see also Am. Canoe Ass'n, 326 F.3d at 520 ("In order to satisfy the traceability requirement, ‘[r]ather than pinpointing the origins of particular molecules, a plaintiff must merely show that a defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged’ in the specific geographic area of concern." (alteration in original) (quotation omitted)); Gaston Copper, 204 F.3d at 161 ; NRDC v. Watkins, 954 F.2d 974, 980 (4th Cir. 1992) ; N.C. Coastal Fisheries Reform Grp. v. Capt. Gaston LLC, No. 4:20-CV-151-FL, 560 F.Supp.3d 979, 992–94 (E.D.N.C. Sept. 17, 2021), appeal docketed, No. 21-2184 (4th Cir. Oct. 20, 2021). As for the informational injury, that injury is directly traceable to defendants’ alleged failure properly to file a renewal application for its NPDES permit. Thus, Winyah has demonstrated traceability, even if defendants’ activities are not the sole cause of Winyah's members’ injuries. See Sierra Club, 899 F.3d at 283–84.

Alternatively, to the extent Winyah does not clearly satisfy traceability, it is because the causation question involves some of the factual disputes between the parties. Where, as here, "the jurisdictional facts are inextricably intertwined with those central to the merits, the court should resolve the relevant factual disputes only after appropriate discovery, unless the jurisdictional allegations are clearly immaterial or wholly unsubstantial and frivolous." Kerns, 585 F.3d at 193. Moreover,...