Environmental Defense Fund, Inc. v. Hoerner Waldorf Corporation

No. 1694 (D. Mont. August 27, 1970)

The district court lacks jurisdiction under either the Fourteenth Amendment or §§ 1981 and 1983 of the Civil Rights Act in a suit to enjoin the operation of a kraft process pulp and paper mill. An invitation from the Mayor and City Commission to build the mill, along with a state license for it and the state's failure to abate its alleged pollution, does not constitute the requisite state action. The court rules that though plaintiff has standing, the suit is improperly brought as a class action, and that in any event the concept of primary administrative jurisdiction should be applied in this case, based on the Air Quality Act of 1967. The court notes that inhabitants near the mill have common law nuisance suits or other state proceedings open to them to abate the alleged noxious fumes.

Counsel for Plaintiff
Karl R. Karlberg
Boone, Karlberg & Haddon
First National Bank Building
Missoula, Montana 59807

Counsel for Defendant
Garlington, Lohn & Robinson
199 West Pine
Missoula, Montana 59807

[3 ELR 20794]

Murray, J.

Plaintiff Environmental Defense Fund, Incorporated, a New York non-profit corporation purporting to represent "all those entitled to the full benefit, use and enjoyment of the . . . Missoula Regional Ecosystem," has brought this action seeking injunctive relief against defendant's alleged violations of federal constitutional and statutory rights of the class members caused by defendant's operation of a kraft process pulp and paper mill in Missoula, Montana. EDF alleges that the Missoula Mill emits noxious sulfur compounds and other toxic substances into the air thereby causing irreparable harm to plant, animal and human life which defendant could prevent through the application of "the means available through modern technology," it being alleged that it is possible to operate the mill with the emission of no sulfur compounds.

Defendant has filed a motion to dismiss on the grounds that (1) EDF lacks standing to bring this action, (2) that this action is not properly brought as a class action under Rule 23 of the Federal Rules of Civil Procedure, (3) that EDF has failed to state a cause of action under the Fifth, Ninth or Fourteenth Amendments, the Federal Civil Rights Act or any other federal law, and (4) that this court lacks jurisdiction over the subject matter because Congress has vested in a federal administration agency exclusive jurisdiction over the air pollution questions raised by the complaint.

The motion is, in the alternative, asking for an order granting summary judgment in favor of defendant and against the plaintiff.

Defendant contends that "the 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentations of issues upon which the court so largely depends . . .'" Flast v. Cohen, 392 U.S. 83 at 99 (1968). Conceding that a plaintiff need not always establish a monetary interest, defendant contends a plaintiff must have a distinctive interest not possessed in common by every citizen and since there is no federal statute conferring standing in this situation, EDF's class members lack standing and therefor EDF must likewise lack standing.

Defendant recognizes that the Supreme Court in some cases has departed from the general rule that a litigant lacks standing to assert the constitutional rights of third parties not before the court, but insists those cases bear no relation to the claims of EDF here.

The cases have been analyzed and reanalyzed to the point that it will serve no purpose to run the course again. The cases are not easy to reconcile and I will not here attempt to do so.

I choose the position which reflects the contemporary trend as recorded in such cases as Church of Christ, etc., 359 F.2d 994; Scenic Hudson, etc., 354 F.2d 608; Environmental, etc., v. Secretary of Agriculture, Court of Appeals of D.C., decided May 28, 1970; Citizens Comm. v. Volpe, 425 F.2d 97 (1970).

IT IS THEREFORE ORDERED AND ADJUDGED that the motion to dismiss on the ground of lack of standing to sue be and the same is hereby denied.

The next ground upon which the motion is based is that the action is not properly brought as a class action under Rule 23 of the Federal Rules of Civil Procedure.

Plaintiff, in its brief and argument, practically concedes that the action should not have been brought as a class action. Still this does not necessarily require a dismissal. The court has already found that the plaintiff has standing to bring an action and if the complaint is not to be dismissed on some other ground, the court would permit the plaintiff to amend by striking the class action and bring suit as a public interest lawsuit.

Because the plaintiff is not a member of the class it alleges to represent, this suit is not maintainable as a class action under Rule 23 of the Federal Rules of Civil Procedure. The only case the court is aware of sustaining the position of plaintiff that the action is maintainable as a class action is the Norwalk Core case, 395 F.2d 920 (1963). The language relied upon is dictum and in any event not persuasive. Because the court has found a basis of standing to bring a non-class representation action on behalf of a public interest, the court is not required to find a class action is maintainable. The requirement that the party be a member of the class it assertedly represents may not be set aside. Bailey v. Patterson, 369 U.S. 31; Local Union No. 17 v. Mason & Hanger Co., 217 F.2d 687.

A further ground for dismissal is upon defendant's contention that plaintiff has failed to state a cause of action under the Fifth, Ninth or Fourteenth Amendments, the Civil Rights Act and the Declaratory Judgment Act.

To dispose of the claim of plaintiff that the Declaratory Judgment Act is a basis for jurisdiction of this court, it need only be pointed out that the Act is procedural and its invocation requires an independent basis of federal jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667. Whether such an independent basis exists we will examine.

What would ordinarily appear to be a common law nuisance case is alleged by plaintiff to be a deprivation of the constitutional right to life and liberty.

I have no difficulty in finding that the right to life and liberty and property are constitutionally protected. Indeed the Fifth and Fourteenth Amendments provide that these rights may not be denied without due process of law, and surely a person's health is what, in a most significant degree, sustains life.

So it seems to me that each of us is constitutionally protected in our natural and personal state of life and health. But the constitutional protection is against governmental action either federal or state.

The Fifth Amendment protects against federal action and the Fourteenth against state action. It seems clear also, though the point has never been decided by the Supreme Court, that the Ninth Amendment is a limitation upon the powers and conduct of the federal government and by the Fourteenth Amendment such limitation is extended to the power of the state. Griswold v. Conn., 381 U.S. 479 (concurring opinion of Justice Goldberg); Red Lion Broadcasting Co. v. F.C.C., 381 F.2d 908.

There are no allegations of federal action which would bring the Fifth Amendment or Ninth Amendment into play, so far as the federal government is converned, but plaintiff contends that there was the requisite state action in that the City of Missoula, through its Mayor, extended an invitation to defendant to become "a part of our (Missoula's) growing economy" and that the invitation was extended on behalf of the Missoula City Commission. It is the further contention of plaintiff, in its complaint, that the State Planning Board (whose purpose was to encourage industrial plant [3 ELR 20795] locations within the state) invited and encouraged public acceptance of the plant. The plaintiff further relies on state action in licensing defendant and that the failure of the state to abate the alleged pollution establishes the requisite state action. The plaintiff relies on such cases as N.A.A.C.P. v. Alabama, 357 U.S. 449; Kissinger v. N.Y. City Transit Authority, 274 F. Supp. 438; Reitman v. Mulkey, 387 U.S. 369; Adickes v. S.H. Kress & Co., 409 F.2d 121; Burton v. Wilmington Parking Authority, 365 U.S. 715 and Anderson v. Moses, 185 F. Supp. 727.

None of the above cases has based a finding of state action on the grounds alleged here. Those cases involved in some instances direct unconstitutional action by the state. N.A.A.C.P. v. Alabama, supra; Kissinger v. N.Y. City Transit Authority, supra. In other cases governmental action was based on the failure to take action for the very purpose of encouraging unconstitutional action. Reitman v. Mulkey, supra, and Adickes v. S.H. Kress & Co., supra. In the other cases, Wilmington Parking Authority, supra, and Anderson v. Moses, supra, the governmental agencies leased public property for the purpose of operating a physically and financially integrated project. In such case the actions of the lessee are those of the state and are proscribed by the Fourteenth Amendment. The state cannot permit Fourteenth Amendment violations under such circumstances or its permission becomes state action.

None of the action alleged here partake of those affirmative or permissive actions which are designed to violate constitutional rights. The activities of State Planning Boards and City Commissions may well constitute state actions, but to support a Ninth or Fourteenth Amendment suit, the action of the state must be unconstitutional or the proximate cause of unconstitutional action, and the court can find no such unconstitutional action from the allegations made here.

Plaintiff claims that the alleged pollution constitutes an unconstitutional taking of public property by its impact on the National Forest. This contention is without merit. The constitutional provisions of the Fifth and Fourteenth Amendments prohibit the taking of private property for a public use without just compensation and due process of law. No case holds that the converse is a principle of constitutional law.

So far as plaintiff's claim of jurisdiction in this court, based on 42 U.S.C.A. §§ 1981 and 1983, is concerned, it is sufficient to point out that Section 1983 requires action under color of state law. In cases under 1983 'under color of law' has consistently been treated as the same thing as the state action required under the Fourteenth Amendment." United States v. Price, 383 U.S. 787, 794-7.

Section 1981 does not require state action because of the power of the Congress to enact legislation enforcing the antislavery Thirteenth Amendment. Thus the impact of Section 1981 is limited to racial discrimination situations. The Supreme Court has recently held as to Section 1982, the companion to Section 1981, that state action is not required because of the power of Congress to enforce the Thirteenth Amendment. The same reasoning must apply to Section 1981. Jones v. Alfred H. Mayer Co., 392 U.S. 409. The Ninth Circuit has said that "the plain purpose of these statutes (Sections 1981 and 1982) is to provide for equality of rights as between persons of different races." Agnew v. City of Compton, 239 F.2d 226. The case was later overruled on a different point.

It is clear that the claims made here are not grounded on Section 1981.

The motion to dismiss on the grounds of failure to state a claim because no allegation of unconstitutional governmental action is alleged is granted and the action is ordered dismissed. The order is to dismiss the action because it does not appear that the required state action can be alleged.

Defendant first contended that Congress had preempted the field of the subject matter of this lawsuit, but abandoned that position for one calling upon the court to exercise its discretion in applying the concept of primary jurisdiction based on the Air Quality Act of 1967.

The court is satisfied that had the court not dismissed the action it would hold that this is a proper case in which to apply the concept of primary jurisdiction advocated by defendant.

The statutory scheme of the Act, 42 U.S.C.A. 1857-1857(1) is the development of air quality standards against which atmospheric areas and particularly emission sources can be judged.

The difficult, complex, technical questions of fact raised by this case concerning the air pollution problem are best left in the first instance to those having some expertise in the matter.

The Supreme Court has said:

"that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. This is so even though the facts after they have been appraised by specialized competence serve as a premise for legal consequences to be judicially definted.Uniformity and the consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure." Far East Conference v. United States, 342 U.S. 570, 574-575, 96 L.Ed. 576, 582 (1952).

Because the court has dismissed this action, it is not to be thought that the court is not cognizant of the serious situation with which we are now faced in this country. It seems obvious, however, that it is a national problem and it must be approached and settled on that basis. An attempted piecemeal settlement by way of court action might well result in great unfairness and injustice without correcting the problem. It is obvious that the state and national governments are proceeding to understand and develop programs designed to cure the pollution problem, though they may not be moving as fast as some of us would like. But then, neither are we as individuals moving very fast. It is up to the people individually and collectively through their representatives, state and national, to fix the priorities of political and social values upon which a solution to pollution rests.

I once heard a biologist discuss the problem of pollution and he proposed a very simple solution. All that was needed, he said, was for the courts to have "guts" and close all polluters down. Indeed, the courts do need "guts". They need the "guts" to follow the law. Just as a biologist may not overrule or ignore a scientific law or fact, neither may a court ignore the law of the land to achieve its own idea of a desired result.

Though this action be dismissed, that does not leave the citizens of Missoula without recourse. If the most interested persons, the citizens of Missoula, are aggrieved by the alleged pollution here, they may proceed to protect themselves by way of a common law nuisance case or other state proceeding.

Done and dated this 25th day of August, 1970.