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New Jersey Work Environment Council v. State Emergency Response Commission

United States District Court, D. New Jersey

October 9, 2018

NEW JERSEY WORK ENV'T COUNCIL, et al., Plaintiffs,
v.
STATE EMERGENCY RESPONSE COMM'N, et al., Defendants.

          OPINION

          WILLIAM J. MARTINI, U.S.D.J.

         Composed of labor and environment-focused community groups, Plaintiffs New Jersey Work Environment Council and Local 877, International Brotherhood of Teamsters (“Plaintiffs”) brought this private enforcement action under the citizen-suit provision of the Emergency Planning and Community Right-to-Know Act of 1986 (“EPCRA” or “the Act”), 42 U.S.C. § 11046(a)(1)(C). Plaintiffs allege that New Jersey's State Emergency Response Commission (“SERC”) and its members (jointly, “State Defendants”), the City of Linden, New Jersey, and its Local Emergency Planning Committee (jointly, “Linden, ” and together with State Defendants, “Defendants”) failed to make local emergency response plans available to the public. Before the Court are Defendants' motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). The Court has jurisdiction under 28 U.S.C. § 1331 and decides the matter without oral argument. Fed.R.Civ.P. 78(b). For the reasons set forth below, State Defendants' motion is DENIED, and Defendant Linden's motion is GRANTED.

         I. BACKGROUND

         “EPCRA establishes a framework of state, regional, and local agencies designed to inform the public about the presence of hazardous and toxic chemicals, and to provide for emergency response in the event of a health-threatening release.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 86 (1998); see Am. Compl. ¶¶ 14-15, ECF No. 36. Per the Act, Congress directed each state to appoint a SERC. Am. Compl. ¶ 16. Each commission then had to designate emergency planning districts and, for each district, appoint members to a local emergency planning committee (“LEPC”). Id. ¶ 18. Through executive order, New Jersey's governor created SERC and directed each municipality and county to form an LEPC. Id. ¶¶ 8, 19. In turn, LEPCs had to prepare emergency response plans (“ERPs”), which, by law, SERC must review. Id. ¶ 21; see 42 U.S.C. § 11003(a), (e).

         Under the Act, State Defendants must “establish procedures” to facilitate public access to, among other documents, ERPs. Id. ¶¶ 23-24; 42 U.S.C. § 11001(a). The Act also compels LEPCs to: (1) provide notice to the public of the right to review an ERP, id. ¶ 27, and (2) set rules for holding public meetings to receive input, id. ¶ 30. For actions hindering public access, private parties may bring a civil action against the Administrator of the United States Environmental Protection Agency, a State Governor, or a SERC. Id. ¶ 2 (citing 42 U.S.C. § 11046(a)(1)(C)).

         Plaintiffs allege that on multiple occasions, Linden refused Plaintiffs' requests to (1) access the plan, id. ¶¶ 25-26, (2) publish notice of the public's right to view it, id. ¶ 28, and (3) invite public comment, id. ¶ 31. Plaintiffs implored State Defendants to enforce the Act's public access requirements. Id. ¶ 33. In response, SERC trained certain LEPCs on ERP content and the Act's public access requirements. Id. ¶ 34. Even so, Linden's LEPC continues to refuse Plaintiffs access, provide notice, or invite public comment. Id. ¶ 36.

         Plaintiffs filed suit against State Defendants over their alleged failure to supervise and coordinate an LEPC's activities, thus ensuring public access. Id. ¶¶ 40-41, 43. They ask the Court to declare Defendants in violation of the Act and for an order directing State Defendants to redress the non-compliant LEPCs' failure to make ERPs publicly available. Id. ¶¶ 43.a-b.

         Defendants seek dismissal, arguing the EPCRA provides Plaintiffs no avenue of relief. State Defs.' Mot. to Dismiss Br. 7-8, ECF No. 44-1 (“State Defs.' Br.”). State Defendants argue that even if they failed to provide a mechanism to ensure public availability of information, a private party may only file suit in limited circumstances not present here and that the Act provides no implied private right of action. Id. at 8-10, 13-15. Further, State Defendants, along with Linden, point out that under the Tenth Amendment Congress cannot mandate the regulation of a dilatory LEPC. Id. at 11-13; Linden's Mot. to Dismiss Br. 3-6, ECF No. 39-1 (“Linden's Br.”). Linden then argues its dismissal is warranted because Plaintiffs seek exactly the same type of relief against Linden as well as all other non-compliant LEPCs. Linden's Br. at 6-7.

         Plaintiffs respond that State Defendants cannot raise arguments in the pending motion to dismiss that were omitted from its earlier Rule 12(b)(6) motion. Pls.' Opp'n to State Defs.' Br. 1-3, ECF No. 49. Plaintiffs then assert the Court can order State Defendants to enforce the Act's public access mandates. Id. at 3-14. As to Linden, Plaintiffs now seek a different path of recovery. Lacking grounds for relief under the EPCRA, Plaintiffs allege a state law claim in its opposition papers. For the first time, Plaintiffs argue the New Jersey Environmental Rights Act (“ERA”) provides a direct cause of action to enforce the EPCRA's public access provisions, ensuring full relief. See Pls.' Opp'n to Linden's Br. 1- 11, ECF No. 45. In reply, Defendants largely reiterate their previous arguments. See State Defs.' Reply Br. 1-5, ECF No. 52; Linden Reply Br. 1-3, ECF No. 47. But as to the never-before-seen ERA claim, Linden essentially argues Plaintiffs cannot amend a complaint through allegations made for the first time in a motion to dismiss brief. See Linden Reply Br. at 3.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975).

         III. DISCUSSION

         The Court will address Plaintiffs' procedural argument before discussing whether relief could be granted under the pleaded facts.

         A. Rule 12(g)(2) Does Not Bar State ...


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