Sierra Club v. Tri-State Generation & Transmission Ass'n

173 F.R.D. 275, 1997 U.S. Dist. LEXIS 2464
CourtDistrict Court, D. Colorado
DecidedFebruary 6, 1997
DocketCivil Action No. 96 N 2368
StatusPublished
Cited by64 cases

This text of 173 F.R.D. 275 (Sierra Club v. Tri-State Generation & Transmission Ass'n) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sierra Club v. Tri-State Generation & Transmission Ass'n, 173 F.R.D. 275, 1997 U.S. Dist. LEXIS 2464 (D. Colo. 1997).

Opinion

ORDER AND MEMORANDUM OF DECISION

NOTTINGHAM, District Judge.

This is a citizen suit under the Clean Air Act, 42 U.S.C.A. §§ 7401-7671q (West 1995 & Supp.1996), and the Colorado Air Quality Control Act, Colo.Rev.Stat. §§ 25-7-101 to 25-7-1008 (1989 & Supp.1996) (“CAQC”). Plaintiff Sierra Club alleges that defendants’ release of air pollutants violates the two acts and their implementing regulations. Plaintiff seeks declaratory judgment and injunctive relief The matter is before the court on defendants’: (1) “Motion to Strike Pursuant to Rule 12(f), Fed.R.Civ.P.” filed November 27, 1996; and (2) “Motion to Dismiss, or in the Alternative, for a Stay of This Action” filed December 2, 1996. Jurisdiction is based on 28 U.S.C.A. §§ 1331, 1367 (West 1993), 42 U.S.C.A. § 7604(a) (West 1995).

FACTS

Plaintiff, a national conservation organization with approximately 600,000 members, alleges that defendants have illegally emitted air pollutants from the Craig Station, a coal-fired, electricity-generating facility in Moffat County, Colorado, into the Yampa Valley. (Compl. ¶¶, 6-7 [filed Oct. 9, 1996].) As a result of the emissions, plaintiff claims, its members who live, work, and recreate in the Yampa Valley have suffered impaired abilities to (1) breathe clean air in the Yampa Valley and mountains surrounding the valley, including the Mount Zirkel Wilderness Area, and (2) view natural scenery and wildlife in the valley. (Id. ¶ 7.)

On May 5, 1993, via certified mail, plaintiff sent defendants notice of its intent to file a lawsuit against them for violations of the Clean Air Act. (Mot. to Dismiss, or in the Alternative, for a Stay of this Action, Ex. A [copy of notice] [filed Dec. 2, 1996] [hereinafter “Mot. to Dismiss”].) In its notice, plaintiff stated, inter alia:

The suit will allege that the Craig Station in Moffat County, Colorado has been, and continues to be, in violation of the Clean Air Act by: (1) failing regularly to comply with the 20% opacity standard, (2) failing to comply with the SO2 emission standard for- unit # 3, (3) failing to operate air pollution control equipment in a manner consistent with good air pollution control practices to minimize emissions, and (4) failing to monitor continuously air emissions.

(Id.) Plaintiff further wrote, “These violations have persisted for at least the last five years.” (Id.) Plaintiff alleges that, as required by the Clean Air Act, it also sent copies, via certified mail, to the Environ[279]*279mental Protection Agency, the Colorado Department of Health, and the Governor of Colorado. (Compl. ¶ 13.) Plaintiff has provided copies of return receipts indicating that the Governor of Colorado, the EPA Regional Administrator, and the Colorado Department of Health received certain materials via certified mail on May 7, 1993, and the Administrator of the EPA received certain materials via certified mail on May 11, 1993. (Sierra Club’s Resp. in Opp’n to Defs.’ Mot. to Dismiss, Ex. A [copies of return receipts] [filed Dec. 31, 1996] [hereinafter “Pl.’s Resp. to Mot. to Dismiss”].) The receipts do not indicate, however, the nature of the materials sent or the sender.

Plaintiff alleges that, despite its May 5, 1993, notice, neither the EPA nor the CDPHE has commenced or prosecuted a court action to redress its grievances. (Compl. ¶ 4.) On October 9, 1996, plaintiff filed a complaint in this court for injunctive and declaratory relief under the Clean Air Act and the CAQC. (Id.) Defendants assert that the air-quality regulations at issue “are the subject of an ongoing state administrative rulemaking that may, in all likelihood, lead to related federal rulemaking by the EPA.” (Mot. to Dismiss at 14.)

On November 27, 1996, defendants moved to strike portions of plaintiffs complaint as immaterial, impertinent, or scandalous pursuant to rule 12(f) of the Federal Rules of Civil Procedure. (Mot. to Strike Pursuant to Rule 12(f), Fed.R.Civ.P. [filed Nov. 27, 1996] [hereinafter “Mot. to Strike”].) On December 2, 1996, defendants moved to dismiss plaintiffs claims pursuant to rules 12(b)(1) and 12(b)(2) of the Federal Rules of Civil Procedure on the grounds that: (1) plaintiff lacks standing to maintain this action; (2) plaintiff failed to satisfy the statutory notice prerequisites to bringing a court action; and (3) the doctrine of primary jurisdiction counsels that the court should refrain from adjudicating plaintiffs claims in light of recent state administrative rulemaking proceedings concerning opacity and sulfur dioxide standards. (Mot. to Dismiss.) Defendants alternatively request a stay pending completion of the state rulemaking proceedings. (Id.)

On December 23, 1996, the Colorado Air Quality Control Committee (“AQCC”) voted to modify certain opacity and sulfur dioxide limits. (Pl.’s Resp. to Mot. to Dismiss at 21; Defs.’ Reply to Pl.’s Resp. in Opp’n to Defs.’ Mot. to Dismiss at 7 [filed Jan. 22, 1997] [hereinafter “Def.’s Reply (Mot. to Dismiss)”].) The parties agree, however, that before the modified limits can take effect, they must be approved by (1) the Colorado General Assembly and (2) the EPA after it publishes them and solicits public comments. (Pl.’s Resp. to Mot. to Dismiss at 21; Def.’s Reply [Mot. to Dismiss] at 7.)

ANALYSIS

1. Motion to Dismiss or Stay

a. Standing

Because “standing is an essential and unchanging part of the case-or-controversy requirement of Article III,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992), I first address defendants’ motion to dismiss or stay. Defendants argue that this action should be dismissed for lack of subject-matter jurisdiction under rule 12(b)(1) of the Federal Rules of Civil Procedure because plaintiff has no standing to bring it. The Clean Air Act provides that “any person may commence a civil action on his own behalf [ ] against any person ... who is alleged to have violated or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such standard or limitation.” 42 U.S.C.A. § 7604(a)(1) (West 1995). Defendants maintain, however, that plaintiff has not established constitutional standing to maintain this action.

In Lujan, the Supreme Court held that “the irreducible constitutional minimum of standing” contains the following three elements:

First, the plaintiff must 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.’” Second, there must be a causal connection between the injury and the conduct com[280]*280plained of — the injury has to be “fairly ... trace[able] to the challenged action of the defendants], and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”

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Bluebook (online)
173 F.R.D. 275, 1997 U.S. Dist. LEXIS 2464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sierra-club-v-tri-state-generation-transmission-assn-cod-1997.