Kaiser Cement Corp. v. San Diego Air Pollution Control District

No. 81-0714-G(H) (S.D. Cal. June 7, 1982)

The court holds that a plaintiff in a citizen suit under the Clean Air Act must meet minimum constitutional standing requirements. Since plaintiff failed to allege any injury resulting from defendants' alleged statutory violation in granting a permit for a cement facility, the action against local agency and corporate defendants must be dismissed without prejudice for lack of jurisdiction. In addition, the action against federal defendants is dismissed with prejudice because plaintiffs may not maintain a suit to compel enforcement of discretionary acts.

[The pleadings in this case are sumarized at ELR PEND. LIT. 65724 — Ed.]

Counsel for Plaintiff
Thomas P. O'Donnell, Beth Arnold
Pillsbury, Madison & Sutro
101 Park Ctr. Plaza, Suite 1300, San Jose CA 95113
(408) 287-2233

H. Lawrence Serra, Thomas C. Nelson
McDonald, Hecht, Worley & Solbert
600 B St., Suite 1100, San Diego CA 92101
(714) 239-3444

David L. Mulliken, Steven P. McDonald, Kelley M. Gale
Latham & Watkins
701 B St., Suite 2100, San Deigo CA 92101
(714) 236-1234

Counsel for Defendants
D. Michael Waltz, Ass't U.S. Attorney
940 Front St., Rm. 5N19 U.S. Cthse., San Deigo CA 92189
(714) 293-5610

Barbara Baird, Deputy Cty. Counsel
1600 Pacific Hwy., Rm. 355, San Diego CA 92101
(714) 236-2121

Jose R. Allen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5290

[12 ELR 20783]

Gilliam, J.:

Memorandum Decision

This court is called on to decide defendants' motions to dismiss, to strike, and for a more definite statement. Plaintiff is Kaiser Cement Corporation ("Kaiser"), and defendants are the San Diego County Air Pollution Control District and its Hearing Board ("the county defendants"), the United States Environmental Protection Agency and its Administrators ("the federal defendants" or "the Administrator"), and Melwire Trading Company ("Melwire"). Kaiser challenges certain actions and inaction of defendants surrounding Melwire's receipt of authority to construct a cement import, storage and distribution facility. Plaintiff alleges that the construction of this cement facility is in violation of various local, state and federal air pollution regulations, that the federal defendants failed in their duty to enforce certain of these regulations, and that the county defendants allowed certain activities to take place, i.e., erroneously issued variances under its permit system, all in contravention of these regulations.

Kaiser brings this suit under the citizen suits section, 42 U.S.C. § 7604, of the Clean Air Act, 42 U.S.C. § 7401, et seq. This section allows "any person" to commence a civil action against another person, the United States, a governmental agency, or the Administrator for certain violations related to air pollution. In addition to other arguments, defendants Melwire and the county rely significantly on Valley Forge College v. Americans United, U.S. , 102 S. Ct. 752 (Jan. 12, 1982) and argue that Kaiser has not alleged any injury and therefore lacks standing to bring a citizen suit. Kaiserin turn argues that it need not allege any injury because the citizen suit statute creates a legal right, the invation of which creates standing, Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973), the statute confers universal standing, Montgomery Environmental Coalition v. Costle, 646 F.2d 568, 577 [11 ELR 20211] (D.C. Cir. 1980), and under this statute the general requirements for standing are relaxed, metropolitan Wash. Coal., etc. v. District of Columbia, 511 F.2d 809, 814 [5 ELR 20335] (D.C. Cir. 1975). The federal defendants maintain that whether or not Kaiser has standing, they are not proper parties to this lawsuit, as the predicate to the exercise of the court's jurisdiction is the review of a mandatory not discretionary action of the Administrator. Kennecott Copper Corp., Nevada Mines v. Costle, 572 F.2d 1349, 1353 [8 ELR 20373] (9th Cir. 1978). In this case, the federal defendants assert that the actions in question are discretionary.

Of the various motions and grounds for dismissal raised by the parties, this court must initially address the jurisdictional arguments raised, and, having requested that the parties submit additional briefs on the subject, finds that Kaiser has not alleged any injury which would create standing. The action must therefore be dismissed in its entirety for lack of jurisdiction. It is noted that the federal defendants did not raise standing as a grounds for dismissal. This court's ruling in this area as to the federal defendants is thus sua sponte.

Standing

Citizen suits are authorized by Congress to allow enforcement of certain strictures of the Clean Air Act, and such suits may be brought by any person on his own behalf, 42 U.S.C. § 7604. The determination which must be made then is whether that person must meet minimum Article III standing requirements.

The U.S. Supreme Court recently examined the area of law on standing in Valley Forge, supra, p. 758, and stated that:

. . . at an irreducible minimum, Article III requires the party who invokes the courths authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," . . . and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision" . . . .

In addition, as pointed out by Kaiser, the Valley Forge court recognized the Linda R.S. rule, supra, pg. 23, n.24, which allows for an act to crate a legal right, the invasion of which creates standing.

This court has examined and considered the principles espoused in the Valley Forge case and believes that Kaiser must meet the minimum requirements of standing pursuant thereto. In addition, Natural Resources Def. Coun., Inc. v. U.S. Envir. Pro. Agcy., 507 F.2d 905 [5 ELR 20032] (9th Cir. 1974) (mandates that a sufficient showing of standing within Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192] (1972), be made.

This court has considered the principles espoused by the Linda R.S. rule, has examined the related cases, i.e., Trifficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 212 (1972) and Hardin v. Kentucky Utilities Co., 390 U.S. 1, 6 (1968), Warth v. Seldin, 422 U.S. 490 (1972), and acknowledges that those cases recognize that Congress may create a statutory right and a person who suffers injury as a result of a violation of that right has met standing. This court finds that the threshold requirements of Article III standing remains and must still be met. In this case Kaiser has not alleged any injury to create standing. The complaint is therefore dismissed for lack of jurisdiction.

The dismissals as to the county defendants and Melwire are granted without prejudice and Kaiser shall have 30 days leave to file an amended complaint. The dismissal as to the federal defendants [12 ELR 20784] is granted with prejudice, as the court is in agreement with their arguments that Kaiser may not maintain a suit to compel the Administrator to commence an enforcement action under the citizen suit's statute the Administrator's enforcement responsibilities in this case are discretionary, Kennecott, supra. The court does not reach any other questions, i.e., mootness, statute of limitations, raised by the parties.

Dated: June 4, 1982.