Environmental Law
| Citation | Vol. 66 No. 4 |
| Publication year | 2015 |
Environmental Law
Travis M. Timble
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In 2014,1 the United States Court of Appeals for the Eleventh Circuit, addressing an issue of first impression, rejected the district court's use of a Lone Pine case-management order as a means of testing the sufficiency of the plaintiffs' pleadings in a state law environmental torts case. The court also interpreted Florida law to mean that plaintiffs are not required to allege that groundwater contamination exceeded regulatory maximum contaminant levels for drinking water to maintain their claims and that they could recover "stigma" damages to their property without alleging actual contamination. The United States District Court for the Middle District of Florida, also in a matter of first impression, concluded that claims brought under the National Environmental Policy Act of 1969 are subject to a six-year limitation period pursuant to the Administrative Procedure Act. Finally, the United States District Court for the Northern District of Alabama concluded that, for standing purposes, the "zone of interest" protected by section 404 of the Clean Water Act included matters beyond loss of jurisdictional waters, including water quality and aesthetic and recreational values.
In Adinolfe v. United Technologies Corp.2 a mass tort case alleging personal injury and property damage resulting from groundwater contamination, the Eleventh Circuit held that the United States District Court for the Southern District of Florida erred in issuing a Lone Pine order3 and using the resulting submitted facts as a basis to dismiss the
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plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).4 The circuit court held that the district court should have ruled on the defendant's motion to dismiss based solely on the sufficiency of the complaint under the standards set out by the United States Supreme Court in Bell Atlantic Corp. v. Twombly5 and its progeny.6 Although the circuit court declined to address "the general propriety [or] utility of Lone Pine orders" the court's holding appears to foreclose, or at least disapprove of, the district court's use of such orders as a means of assessing the sufficiency of a plaintiff's complaint in deciding a defendant's motion to dismiss for failure to state a claim.7
The circuit court also held that the plaintiffs' complaint, alleging generally that contamination from the defendant's plant caused personal injury and property damage and setting out causes of action arising under Florida law regarding negligence, nuisance, strict liability, and recovery in the environmental law context were not insufficient on the grounds set out in the defendant's motion.8 Specifically, the court first held the plaintiffs were not required to allege that each property covered by the complaint had actual contamination.9 Second, the plaintiffs were not required to allege that contamination discovered under some of the properties exceeded applicable regulatory safe drinking water standards under Florida law.10 Third, the plaintiffs adequately alleged causation.11 And fourth, certain plaintiffs were entitled to seek diminution in property value damages arising out of the "stigma" of contamination without alleging actual contamination.12 As a result, the Eleventh Circuit reversed the district court's dismissal of the plaintiffs' complaint for failure to state a claim.13
The plaintiffs were 384 property owners in a residential development in Palm Beach County, Florida, known as The Acreage. The defendant, doing business as Pratt & Whitney, operated an aircraft and rocket engine manufacturing plant (the site) six miles north of The Acreage.
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According to the plaintiffs' complaint, the site and The Acreage sit above the same aquifer, in which water flows north to south, that is the source of drinking water for The Acreage. The site underwent remediation in the 1980s, but remained a continuing source of environmental contamination. In 2003, metal drums marked "hazardous waste" were discovered at the site, and a plume of a particular contaminant, dioxane, had spread from the drums. In 2008, the Environmental Protection Agency (EPA) found twenty-four listed contaminants in the soil and groundwater at the site, and testing done for the defendant found contaminants present in high concentrations at the site. In 2010, the Palm Beach County Health Department labeled The Acreage a "cancer cluster," with some children developing cancerous brain tumors and at least three adults developing a type of renal cancer.14 Also in 2010, the Federal Housing Administration warned appraisers that the cancer cluster declaration could be harming home values in the area. Samples from test wells in The Acreage showed the presence of certain contaminants that the plaintiffs alleged the defendant released on the site and that plaintiffs' experts stated had migrated under The Acreage.15
Over 300 of the individual plaintiffs alleged their properties were actually contaminated by chemicals that had migrated from the site (the actual-contamination plaintiffs). The remaining plaintiffs claimed either their properties were not presently contaminated but would be in the future, or their properties had lost value because of the proximity to contaminated property (the anticipated-contamination and proximity plaintiffs).16
After the district court dismissed the plaintiffs' initial complaints and the plaintiffs filed amended complaints, the district court issued a Lone Pine order giving the plaintiffs sixty days to produce "all evidence they contend supports the prima facie elements of contamination and causation," included but not limited to "disclosure of any testing for contaminants conducted on each plaintiff's property, [] disclosure of any contaminants found on each plaintiff's property," and expert opinions on several factual issues, including whether individual properties were contaminated and whether the defendant had caused the contamination and other evidence of causation and harm, including diminution in
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value.17 The order also provided that the defendant could respond by challenging the plaintiffs' compliance with the order within sixty days of receiving the plaintiffs' evidence.18
In response to the order, the plaintiffs filed declarations from their experts purporting to show, among other things, causation. The defendant responded with opinions of its own experts challenging the validity of the plaintiffs' experts' opinions and moved to dismiss the plaintiffs' amended complaints for failure to comply with the Lone Pine order.19 As the Eleventh Circuit noted, even though the district court intended to keep the two separate, the hearing and proceedings related to compliance with the Lone Pine order became inextricably linked to the motion to dismiss the complaint with the district court and the parties "frequently stray[ing] beyond the four corners of the complaints and discuss[ing] the expert testimony and factual submissions contained in the Lone Pine filings."20
After the hearing, the district court dismissed the plaintiffs' amended complaints and subsequently dismissed with prejudice their second amended complaints as well. The district court ruled, regarding the actual-contamination plaintiffs, the complaint was insufficient because it did not allege that these plaintiffs actually tested for contamination or that each of their individual properties was actually contaminated. As a result, the allegation that their properties were contaminated by the site was merely conclusory and not entitled to be accepted as true, and the complaint was further deficient because it did not allege that any contamination exceeded the applicable regulatory safe drinking water standards.21 The district court also ruled that the actual-contamination plaintiffs' causation allegations were inadequate because the plaintiffs "did not establish a causal link between any particular pollutant that specifically traveled from [the site] on one hand and the pollution in The Acreage on the other," and thus the allegations of causation were conclusory.22 Finally, the district court ruled that the anticipated-contamination and proximity plaintiffs could not state a
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state-law claim for "stigma" damage to their property values in the absence of actual contamination.23
In disentangling the two issues, the Eleventh Circuit first held that the district court erred in issuing the Lone Pine order "requiring factual support for the plaintiffs' claims before it ha[d] determined that those claims survive a motion to dismiss under Twombly."24 The Eleventh Circuit stated that
[w]hatever the general propriety and/or utility of Lone Pine orders-matters we do not pass on today-they should not be used as (or become) the platforms for pseudo-summary judgment motions at a time when the case is not at issue and the parties have not engaged in reciprocal discovery.25
The court went on to note,
We understand the district court's concern that, without a Lone Pine order, a defendant in a case like this one would have to engage in expensive and time-consuming discovery without the plaintiffs first demonstrating some factual support for their claims. That concern may be a valid one, but it cannot be allayed by use of a scheduling order that runs counter to the adversarial process envisioned by . . . the Federal Rules of Civil Procedure.26
The court then turned to the dismissal of the plaintiffs' second amended complaints, independent of the evidence submitted by the parties in response to the district court's Lone Pine order, and held that the complaints did state claims on which relief could be granted.27 The court noted first that while the causes of action set out in the complaints required the pleading of distinct elements, the defendant moved to dismiss and the district court agreed based on "grounds common to all of the...
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