Legal Environmental Assistance Foundation, Inc. v. Pegues

No. 89-H-263-N (717 F. Supp. 784, 30 ERC 1634) (M.D. Ala. July 27, 1989)

The court holds that a state's issuance of a national pollutant discharge elimination system permit under the Federal Water Pollution Control Act (FWPCA) cannot be challenged under the Supremacy Clause in federal district court. The court holds that the Supremacy Clause is inoperative, since plaintiff lacks a remedy or a cause of action under the FWPCA.

Counsel for Plaintiff
Debra Swim
Legal Environmental Assistance Foundation
203 N. Gadseden St., Ste. 5, Tallahassee FL 32301
(904) 681-2591

Counsel for Defendants
Olivia H. Jenkins
Alabama Department of Environmental Management
1751 Congressman W. L. Dickinson Dr., Montgomery AL 31630
(205) 271-7700

Fournier J. Gale III, Jarred O. Taylor II
Maynard, Cooper, Frierson & Gale
2400 AmSouth/Harbert Plaza, Birmingham AL 35203
(205) 254-1000

[20 ELR 20998]

HOBBS, Chief Judge.

ORDER

On Motion To Amend Complaint

Plaintiff's motion for leave to amend its complaint is GRANTED and the amended complaint allowed. However, since the complaint, as amended, fails to state a valid basis of jurisdiction of this Court, the Court DISMISSES the action, without prejudice to its being brought in a court of competent jurisdiction.

EFFECT OF SUPREMACY CLAUSE

Plaintiff amends its complaint to allege [20 ELR 20999] that this Court has jurisdiction under 28 U.S.C. § 1331 by reason of the Supremacy Clause, U.S. Const. Art. VI, cl. 2. The Supremacy Clause states:

The Constitution and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land . . . .

It has been notedthat

The Supremacy Clause does not secure rights to individuals; it states a fundamental structural principle of federalism. While that clause is the reason why a state law that conflicts with a federal statute is invalid; it is the federal statute that confers whatever rights the individual is seeking to vindicate.

Andrews v. Maher, 525 F.2d 113, 119 (2d Cir.1975). See Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 613, 99 S. Ct. 1905, 1913, 60 L. Ed. 2d 508 (1979) (the Supremacy Clause is not a source of any federal rights but merely protects federal rights by giving them priority when they conflict with state law).

The question presented in this Court's show cause order is whether plaintiff's complaint states a federal cause of action, and therefore whether plaintiff has a right to relief under federal law. In its memorandum brief, plaintiff does not address the Court's concern that plaintiff has no federal right of action to seek an injunction to bar defendants Warr and Pegues from issuing NPDES permits to defendant Corporation with effluent limitations which do not meet 40 C.F.R. § 435.32's "no discharge" standard. Since this Court is of the opinion that Congress intended that the issuance of NPDES permits under State programs be governed under State laws, the Court finds no federal law which governs the instant litigation. As plaintiff has no remedy or right of action which the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251 et seq. created or which plaintiff may enforce via the Supremacy Clause, plaintiff's complaint is due to be dismissed for want of subject matter jurisdiction.

DONE and ORDERED.