621 F. Supp. 1013

SIERRA CLUB v. COPOLYMER RUBBER AND CHEMICAL CORPORATION. SIERRA CLUB v. ALLIED CHEMICAL CORPORATION. SIERRA CLUB v. BERCEN SOUTHERN DIVISION OF BERCEN INCORPORATED. SIERRA CLUB v. FORMOSA PLASTICS CORPORATION.

Nos. Civ. A. 84-407-B, Civ. A. 84-408-B, Civ. A. 84-409-B and Civ. A. 84-410-B.

United States District Court, M.D. Louisiana.

Nov. 7, 1985.

*1014Michael 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.

POLOZOLA, District Judge:

These consolidated cases 1 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).

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.2 Briefs were filed, oral argument was held on two occasions and the matter was submitted to the Court.

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.3 It is also equally settled that a federal court has an obligation to notice want of subject matter jurisdiction on its own motion.4 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.5 Thus, the burden is upon the Sierra Club to demonstrate that subject matter jurisdiction exist in these cases.

*1015III The Hamker Decision

Hamker v. Diamond Shamrock Chemical Company, 756 F.2d 892, 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)6 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 3967

The Sierra Club argues that the Hamker case is wrong and that the appellate judges misinterpreted the provisions of the Clean Water Act.8

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.9

IV The Court Has No Subject Matter Jurisdiction

Since the Court and Copolymer have questioned the Court’s subject matter jurisdiction, the Sierra Club must affirmatively show that the Court has subject matter jurisdiction. Sierra Club has failed to demonstrate that the Court has subject matter jurisdiction in these cases. In each of the cases, the Sierra Club alleges that the defendants are in violation of an effluent standard, limitation or order at the time the suits were filed.10 Since this allegation has been challenged by each of the defendants, the Sierra Club must present proof that the defendants were “in violation” at the time the suits were filed. However, the evidence 11 presented in these cases clearly and unequivocally shows that none of the defendants were in violation at the time the suits were filed.12

IV Conclusion

The Court finds that the defendants were not in violation of any standard, limitation or order at the time the suits were filed herein. Therefore, the Sierra Club is precluded from filing a citizens suit against the defendants under Section 1365(a) of the Act. Since the Court does not have subject *1016matter jurisdiction, plaintiffs suits shall be dismissed.13

Sierra Club v. Copolymer Rubber & Chemical Corp.
621 F. Supp. 1013

Case Details

Name
Sierra Club v. Copolymer Rubber & Chemical Corp.
Decision Date
Nov 7, 1985
Citations

621 F. Supp. 1013

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!