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MCKEOWN v. PORT AUTHORITY OF N.Y. & N.J.

March 30, 2001

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, EX REL., KEVIN MCKEOWN AND NO MORE TOLLS, PLAINTIFFS,
v.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, ROBERT BOYLE, EXECUTIVE DIRECTOR; THE NEW YORK STATE THRUWAY AUTHORITY, JOHN R. PLATT, EXECUTIVE DIRECTOR; THE METROPOLITAN TRANSPORTATION AUTHORITY, E. VIRGIL CONWAY, CHAIRMAN; THE NEW JERSEY TURNPIKE AUTHORITY, JAMES WEINSTEIN, COMMISSIONER; FRANK X. MCDERMOTT, CHAIRMAN; THE GARDEN STATE PARKWAY AUTHORITY, JOSEPH E. BUCKELEW, CHAIRMAN; THE MARYLAND TRANSPORTATION AUTHORITY, JOHN D. PORCARI, SECRETARY; THE DELAWARE RIVER AND BAY AUTHORITY, MICHAEL HARKINS, EXECUTIVE DIRECTOR; THE DELAWARE TRANSPORTATION AUTHORITY, AND ANNE P. CANBY, SECRETARY, DEFENDANTS.



The opinion of the court was delivered by: Pauley, District Judge.

MEMORANDUM AND ORDER

Plaintiffs Kevin McKeown ("McKeown") and his organization No More Tolls (collectively "plaintiffs") commenced this pro se citizen's suit against defendants, state authorities and officials responsible for operating toll roads, bridges and tunnels in New York, New Jersey, Delaware and Maryland, alleging that they operate and maintain toll booth facilities in violation of the Clean Air Act, 42 U.S.C. § 7401, et seq. ("CAA"), the Clean Water Act, 33 U.S.C. § 1251, et seq. ("CWA"), the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. ("RCRA"), Occupational Safety and Health Administration ("OSHA") regulations, Federal Highway Administration regulations, nuisance law, and civil rights law.

Currently before this Court are defendants' motions to strike the Environmental Protection Agency ("EPA") and its Administrator Carol Browner from the amended complaint, and to dismiss the amended complaint for lack of subject matter jurisdiction, lack of personal jurisdiction over the non-New York defendants, improper venue and failure to state a claim. Defendants also argue that the Court should decline to exercise its jurisdiction over the pendent state claims. For the following reasons, defendants' motions are granted.

Background

Plaintiff No More Tolls is a public interest organization in Washington, D.C. (Am. Compl. ¶ 9.) It is "dedicated to the protection and enhancement of the environment of the United States. . . . [I]t supports effective enforcement of Federal and State CAA, CWA RCRA, and other Federal and State laws." (Am.Compl. ¶ 8.) Plaintiff McKeown is the Executive Director of No More Tolls. (Am.Compl. ¶ 9.) The only information revealed about McKeown in the amended complaint is that he "has traveled defendant[s'] operated roadways in excess of twenty years and has sustained damages as a result of the operation of toll booths as described in [the] [amended] complaint." (Am.Compl. ¶ 10.)

Defendants are state authorities and their directors who are responsible for the administration of public transportation including the operation of toll booths in New York (the "New York defendants"), New Jersey (the "New Jersey defendants"), Delaware (the "Delaware defendants") and Maryland (the "Maryland defendants"). (Am.Compl. ¶¶ 8-28.)

On November 29, 1999, plaintiffs sent defendants a Notice of Intent to Sue. The Notice of Intent to Sue states that plaintiffs believe defendants are violating the CAA, CWA and RCRA by operating toll booths.

On February 3, 2000, plaintiffs filed this action by order to show cause, requesting a temporary restraining order and a preliminary injunction. Plaintiffs assert claims under the CAA, CWA, RCRA, "federal common law" nuisance, negligence and civil rights laws, and state law against defendants claiming that: (1) toll booth operators illegally slow and otherwise impede vehicular movement which unnecessarily increases toxic tailpipe emissions endangering "health and the environment"; (2) toll booth areas are "point sources" under the CWA and "cause the diminution of water quality of the surface and subterranean waters and wetland areas"; (3) toll booth operators violate the prohibition against the operation of an open dump, and "continue unpermitted discharge of pollutants into navigatable waters"; (4) toll booth operators violate "an effluent standard or limitation" by permitting discharges of leachate from toll booth locations; (5) toll booth and related operations fail to use the best practicable control technology available to reduce emissions; (6) toll booth operators are "major sources" of hazardous air pollutants causing adverse environmental effects to wildlife and aquatic life; (7) toll booth operators are "generators" of hazardous waste and violate hazardous waste standards by releasing pollutants and other substances into the air, soil, surface and ground waters in areas adjacent to the toll booths; (8) toll booth operators violate the CWA and CAA by operating without permits; and (9) toll booth operators knowingly and negligently release hazardous air pollutants into the ambient air. (Am.Compl. ¶¶ 42-56.)

Initially, plaintiffs requested that this Court enjoin defendants during the pendency of this action from "slowing or otherwise impeding the movement of vehicles to collect tolls or any other activity that pollutes the air, water or soil of the United States." On February 8, 2000, this Court held a hearing and denied plaintiffs' motion.

On February 24, 2000, plaintiffs filed an amended complaint adding the United States Environmental Protection Agency ("EPA") and EPA Administrator Carol M. Browner as plaintiffs, and the Delaware River and Bay Authority and its executive director Michael Harkins as additional defendants. In all other respects, the amended complaint is identical to the initial complaint. However, plaintiffs did not serve the amended complaint until mid-March, after defendants had filed their motions to dismiss the initial complaint. (Semancik Decl. Supp. Mot. to Strike Browner & EPA from Am. Compl. ¶ 3.)

On March 9, 2000, this Court issued an order denying plaintiffs' motion for preliminary injunctive relief and a temporary restraining order. On July 13, 2000, this Court denied plaintiffs' motion for reconsideration.

Discussion

I. Motion to Strike EPA and Carol Browner from the Amended Complaint

Defendants argue that the EPA and Browner should be stricken from the amended complaint because they did not sign the amended complaint, McKeown and No More Tolls have no authority to act on behalf of the EPA or its administrator, and the EPA is not a necessary party.

The CAA, CWA and RCRA all permit a citizen to bring a civil action to enforce those statutes on their own behalf. See 33 U.S.C. § 1365(a) ("any citizen may commence a civil action on his own behalf [under this section] . . ."); 42 U.S.C. § 6972(a) ("any person may commence a civil action on his own behalf [under this section] . . ."); 42 U.S.C. § 7604 (same). None of those statutes authorizes a citizen to bring an action to enforce the CAA, CWA or RCRA on behalf of the EPA or its Administrator. Moreover, McKeown and No More Tolls have not offered any reason why the EPA and Browner are necessary parties. See, e.g., Friends of the Earth v. Carey, 535 F.2d 165, 173 (2d Cir. 1976) (noting that the CAA "simply obligates the citizen plaintiff to provide the EPA with notice of the . . . violation and of the upcoming private enforcement suit. . . . The agency can then decide for itself whether or not to participate in the proceedings."); Metropolitan Washington Coalition for Clean Air v. District of Columbia, 511 F.2d 809, 814-15 (D.C.Cir. 1975) ("The [CAA] citizen suit provision contemplates actions against the Administrator where he fails to perform a non-discretionary act. Alternatively, the citizen, after giving sixty days notice to the Administrator, can proceed directly against the violator. When the plaintiff elects this later course, the Administrator has the right to intervene in the suit, but he is not required to be a participant in such litigation and his absence does not render the action infirm.")

Accordingly, defendants' motions to strike the EPA and Browner from the amended complaint are granted. Further, because defendants moved to dismiss the initial complaint before they were served with the amended complaint, and because the amended complaint does not materially differ from the initial complaint, defendants' motions to dismiss the initial complaint are deemed motions to dismiss the amended complaint.*fn1

II. Motion to Dismiss Standards

On a Rule 12 motion to dismiss, the Court generally must accept the factual allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993) (noting that factual allegations in the complaint must be accepted as true on motion to dismiss); Press v. Quick & Reilly, Inc., 218 F.3d 121, 128 (2d Cir. 2000) (same). In order to survive dismissal, a plaintiff must assert a cognizable claim and allege facts that, if true, would support such a claim. See Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). A pro se litigant's complaint, "however inartfully pleaded," must be held to a "less stringent standard[] than formal pleadings drafted by lawyers. . . ." Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972).

On a Rule 12(b)(1) motion challenging the district court's subject matter jurisdiction, the Court may resolve the disputed jurisdictional fact issues by referring to evidence outside of the pleadings, such as affidavits, and if necessary, hold an evidentiary hearing. See Zappia Middle East Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). However, when matters outside the pleadings are presented on a motion to dismiss for failure to state a claim under Rule 12(b)(6), generally the district court must either exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment and afford all parties the opportunity to present supporting material. See Morelli v. Cedel, 141 F.3d 39, 46 (2d Cir. 1998) (citing Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972)).

On a 12(b)(2) motion the plaintiff bears the burden of demonstrating that the court has jurisdiction over the defendant. See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999); Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 240 (2d Cir. 1999) (citing Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996)). Since the parties have not conducted discovery, the plaintiff need persuade the court only that its factual allegations constitute a prima facie showing of jurisdiction over the defendants. See Kernan 175 F.3d at 240; Jazini v. Nissan Motor Co., 148 F.3d 181, 184 (2d Cir. 1998). The plaintiff's prima facie showing may be established solely by pleading, in good faith, legally sufficient allegations of jurisdiction. See Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990). The pleadings and any affidavits are construed in the light most favorable to the plaintiff and all doubts are resolved in its favor. A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993).

Similarly, on a Rule 12(b)(3) motion to dismiss based on improper venue, the burden of showing that venue in the forum district is proper falls on the plaintiff. See, e.g., Blass v. Capital Int'l Security Group, No. 99-CV-5738 (FB), 2001 WL 301137, at *2 (E.D.N.Y. Mar. 23, 2001). In a case involving multiple claims, the plaintiff must show that venue is proper for each claim asserted, but dismissal of an improperly venued claim is not warranted if it is factually related to a properly venued claim and the claims could be considered "one cause of action with two grounds of relief." 17 James Wm. Moore et al., Moore's Federal Practice § 110.05 (3d ed. 1997). The court must take all allegations in the complaint as true, unless contradicted by the defendants' affidavits. See 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 1352 (1990 & Supp. 1999). When an allegation is so challenged "[a] court may examine facts outside the complaint to determine whether venue is proper. The court must draw all reasonable inferences and resolve all factual conflicts in favor of the plaintiff." Id. (citations omitted). If the defendants prevail on their Rule 12(b)(3) motion, the court has the power to dismiss or transfer the case to any district in which it could have been brought. See 28 U.S.C. § 1406(a); see also Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993) (holding that "[w]hether dismissal or transfer is appropriate lies within the sound discretion of the district court").

III. Standing

Defendants argue that the complaint should be dismissed for lack of standing because plaintiffs have not alleged an injury in-fact, or alternatively, that any alleged injury is not redressable by this action. (See, e.g., New York State Thruway Auth.'s Br. at 4-5; New Jersey Defs. Br. at 5-13.)

An organization such as No More Tolls may have standing to "seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy. Moreover, in attempting to secure relief from injury to itself the association may assert the rights of its members, at least so long as the challenged infractions adversely affect its members' associational ties." Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975) (citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 458-60, 78 S.Ct. 1163, 1169-171, 2 L.Ed.2d 1488 (1958); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 183-87, 71 S.Ct. 624, 654-57, 95 L.Ed. 817 (1951) (Jackson J., concurring)). No More Tolls, however, has not asserted injury to itself.

Even in the absence of injury to itself, an association may have standing solely as the representative of its members. See Warth, 422 U.S. at 511, 95 S.Ct. at 2211. To have standing as the representative of its members, No More Tolls must satisfy the constitutional requirement of a case or controversy. See Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The only known member of No More Tolls is McKeown. Thus, plaintiffs must establish that: (1) McKeown has suffered an "injury in fact" — "an invasion of a legally protected interest which is concrete and particularized" and "actual or imminent, not `conjectural' or `hypothetical'"; (2) "there is a causal connection between the injury and the conduct complained of — the injury has to be `fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court"; and (3) "it must be `likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); accord, e.g., Warth, 422 U.S. at 511, 95 S.Ct. at 2211-12; Sierra Club, 405 U.S. at 734-41, 92 S.Ct. at 1365-69.

The only personalized injuries alleged in the amended complaint are that McKeown "has sustained damages as a result of the operation of toll booths" (Am.Compl. ¶ 10) and that "[d]efendant[s'] operation of toll booths damage the business, property and health of the [p]laintiff" in violation of antitrust laws (Am.Compl. ¶ 83). Neither of those allegations is concrete or particularized, nor do they constitute a "distinct and palpable injury." Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979); Sierra Club v. SCM Corp., 747 F.2d 99, 103 (2d Cir. 1984). Additionally, there are no facts alleged that support an antitrust claim.

Moreover, plaintiffs' allegations that the toll booths have a negative impact on the environment are based on the premise that toll booth increase motor vehicle toxic tailpipe emissions. (Am.Compl. ¶ 29-41.) Even if the operation of toll booths increases toxic tailpipe emissions, the emissions are caused by the vehicles owned by millions of people not parties to this action. If all toll booths were removed from the mid-Atlantic states, as plaintiffs seek, millions of drivers would still experience backups, traffic jams and delays that increase tailpipe emissions. Accordingly, plaintiffs have not established that the injury complained of is "fairly . . . traceable to the challenged action of defendant[s], and not . . . the result [of] the independent action of some third party not before the court." Lujan, 504 U.S. at 560, 112 S.Ct. at 2136. Nor have they demonstrated that the elimination of toll booths would redress injuries to plaintiffs.

Further, even if plaintiffs could establish that they have standing to sue, they failed to comply with the mandatory notice requirement with respect to the ...


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