Opinion
Nos. Civ. A. 84-407-B, Civ. A. 84-408-B, Civ. A. 84-409-B and Civ. A. 84-410-B.
November 7, 1985.
Michael Osborne, New Orleans, La., for plaintiff.
Maureen N. Harbourt, R. Gordon Kean, Jr., William D'Armond, Kean, Miller, Hawthorne, D'Armond McCowan Jarman, Baton Rouge, La., for defendant Copolymer Rubber Chemical Co.
Frank S. Craig, III, Breazeale, Sachse Wilson, Baton Rouge, La., for defendants Allied Chemical, Bercen and Formosa Plastics.
Warren Byrd, Baton Rouge, La., for amicus curiae, State of La.
These consolidated cases were filed by Sierra Club under the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1365(a). In each of these cases, Sierra Club contends the defendants have violated Section 301(a) of the Act, 33 U.S.C. § 1311(a).
The Sierra Club filed separate suits against Copolymer Rubber and Chemical Corporation ("Copolymer") (CA 84-407-B), Allied Chemical Corporation ("Allied") (CA 84-408-B), Bercen Southern Division of Bercen Incorporated ("Bercen") (CA 84-409-B) and Formosa Plastics Corporation ("Formosa") (CA 84-410-B). Because the same jurisdictional issue is involved in each of the cases, the Court has consolidated the cases in the interest of judicial economy.
I Procedural History of the Cases
After these suits were filed, the standing of the Sierra Club to bring these suits became an issue in this case. In order to determine the legal standard to be applied by the Court on the standing issue, the Court stayed discovery on all issues except standing and ordered the parties to file briefs on the issue. After the Court denied plaintiff's motion for partial summary judgment on the standing issue, the Fifth Circuit Court of Appeals rendered its decision in Hamker v. Diamond Shamrock Chemical Company, 756 F.2d 392 (5th Cir. 1985). Thereafter, the Court ordered the parties to file briefs on whether the Court had jurisdiction in these cases under the Hamker decision. In addition, Copolymer filed a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Briefs were filed, oral argument was held on two occasions and the matter was submitted to the Court.
After oral argument was held on the Hamker jurisdiction issue and the matter was submitted to the Court, Sierra Club filed another motion for partial summary judgment on the issues of standing and liability.
II The Court's Jurisdition
It is well settled that a federal court is empowered to hear only such cases as are within the judicial power of the United States, as defined in the Constitution, and have been entrusted to them by a jurisdictional grant by Congress. It is also equally settled that a federal court has an obligation to notice want of subject matter jurisdiction on its own motion. Where the subject matter jurisdiction of the Court has been challenged, the burden is on the party claiming jurisdiction to demonstrate that jurisdiction of subject matter exists. Thus, the burden is upon the Sierra Club to demonstrate that subject matter jurisdiction exist in these cases.
13 Wright, Miller Cooper, Federal Practice and Procedure: Jurisdiction § 3522.
Summer v. Mata, 449 U.S. 539, 547 n. 2, 101 S.Ct. 764, 769 n. 2, 66 L.Ed. 722 (1981); Louisville N.R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); and Cameron v. Hodges, 127 U.S. 322, 8 S.Ct. 1154, 32 L.Ed. 132 (1888).
McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1935); Diefenthal v. Civil Aeronautics Board, 681 F.2d 1039 (5th Cir. 1982), cert. denied 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983); Ortego v. Weinberger, 516 F.2d 1005 (5th Cir. 1975).
III The Hamker Decision
Hamker v. Diamond Shamrock Chemical Company, 756 F.2d 392, involved the very same issue as that presented to this Court — does Section 1365(a) permit a citizen suit for past violations, or must the defendant be "in violation" of relevant standards, limitations and orders on the date the citizen suit is filed? After thoroughly discussing the history, meaning and purposes of Section 1365(a) as it relates to the other provisions of the Clean Water Act, the Fifth Circuit Court of Appeals concluded:
To summarize, the ordinary meaning of the words of the statute and its prior Supreme Court interpretation indicate that Section 1365 does not authorize citizens suits seeking either injunctive relief or the imposition of civil penalties where the defendant is not alleged to be in violation of an effluent standard, limitation or order. The section "authorizes only prospective relief" even though "civil penalties . . . may be ordered by the court." 756 F.2d at 396
Judge Jolly, in his opinion, emphasized on at least twenty separate occasions that the defendant must be "in violation" at the time the suit is filed in order for a citizen to file a suit under § 1365(a).
The Sierra Club argues that the Hamker case is wrong and that the appellate judges misinterpreted the provisions of the Clean Water Act.
On oral argument, counsel for Sierra Club stated that the same argument the Sierra Club was making to this Court was made to the Fifth Circuit Court of Appeals in an amicus brief on rehearing in the Hamker case. The Hamker Court obviously rejected these arguments.
This Court is not only bound by the Hamker decision, but the Court must note that it fully agrees with the interpretation placed on § 1365 in the majority opinion.
The Court does not believe that it is bound by the language in the concurring opinion regarding a suit filed against a "chronic episodic violator," 756 F.2d at 399, but even if this language applies, the facts as presented in the case sub judice fail to support the subject matter jurisdiction of the Court.