Sierra Club v. Tosco Corp.

Nos. C-84-3434-WWS, -6383-WWS (N.D. Cal. November 16, 1984)

ELR Digest

Ruling from the bench on a motion to dismiss a Federal Water Pollution Control Act (FWPCA) citizen enforcement suit, the court holds that the suit is not barred by defendant's alleged present compliance with the Act, by informal state administrative action alleged to be ongoing, or by allegations of lack of standing. First the court presents a summary of its holdings. The court holds that although defendant's violations may be seasonal, there is no need to allege technical violation of the Act at the moment the suit was filed. The court also holds that even if state agencies are looking into the defendant's case, these informal actions do not rob the court of jurisdiction under the Act. Further, the abstention doctrine does not apply because the state has not assumed jurisdiction, the federal forum is not inconvenient, there is no evident risk of piecemeal litigation, and the federal court acquired jurisdiction before any state court. On the issue of standing, the court reserves judgment on whether the plaintiff must identify the particular persons who give it standing, noting that defendant has not requested plaintiff to identify such persons.

The court then enters into a colloquy with defendant's attorneys. Defendant argues first that Connecticut v. Long Island Lighting Co., 535 F. Supp. 546, 12 ELR 20668 (E.D.N.Y. 1982), a Clean Air Act case, stands for the proposition that citizen suits may only be brought in response to present violations, and second that defendant inadvertantly overstated the number of violations in its own reports. The court notes that the second point may provide a valid defense at trial or in a summary judgment motion. Turning to the first point, the court reads the cited case as simply a refusal to prospectively enforce a standard that was no longer in effect.

The defendant refers to Hudson River Sloop Clearwater, Inc. v. Consolidated Rail Corp., 591 F. Supp. 345, 14 ELR 20627 (N.D.N.Y. 1984), arguing that if state action willachieve compliance, there is no basis for a citizen suit. Regarding the issue of standing, the defendant notes the difficulty of proving the absence of protectable interests, and suggests the burden of proving standing should be on the plaintiffs. The court replies that the plaintiffs' associational standing seems self-evident, and that pursuing the point in discovery could border on harassment. The court then urges the parties to informally exchange information on violations and try to reach a settlement.

The full text of this opinion is available from ELR (12 pp. $2.00, ELR Order No. C-1334).

Counsel for Plaintiff
Stephan C. Volker
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Counsel for Defendant
Charles F. Lettow
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700

James A. Pezzaglia
Gordon, DeFraga, Watrous & Pezzaglia, Inc.
611 Las Juntas St., Martinez CA 94553
(415) 228-1400

(OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE)