United States District Court, W.D. Pennsylvania
For Citizens Coal Council, Plaintiff: Jeffrey V. Mansell, LEAD ATTORNEY, Goldberg, Persky & White, P.C., Pittsburgh , PA; Whitney C. Ferrell, LEAD ATTORNEY, PRO HAC VICE, John Patton Dycus , PRO HAC VICE, Environmental Integrity Project, Washington , DC; Richard Webster, PRO HAC VICE, Public Justice, P.C., Washington , DC.
For Matt Canestrale Contracting, Inc., Defendant: Marshall R. Hixson, Walter Blaine Early, PRO HAC VICE, Stites & Harbison PLLC, Lexington , KY; William T. Gorton , III, Stites & Harbison, Lexington , KY.
LISA PUPO LENIHAN, Chief U.S. Magistrate Judge.
Currently pending before the Court for disposition is the Motion to Dismiss filed by Defendant, Matt Canestrale Contracting, Inc. (" MCC" ), pursuant to Rule 12(b)(1) (ECF No. 59), challenging Plaintiff's standing to bring this lawsuit. For the reasons that follow, the Court will deny Defendant's motion to dismiss.
I. LEGAL STANDARD -- MOTION TO DISMISS UNDER RULE 12(b)(1)
MCC has moved to dismiss the Amended Complaint pursuant to Rule 12(b)(1) for lack of standing. " A motion to dismiss for want of standing is ... properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional matter." Ballentine v. United States, 486 F.3d 806, 810, 48 V.I. 1059 (3d Cir.2007) (citations omitted). The standard applied by the Court in reviewing a 12(b)(1) motion depends on whether the motion presents a " facial" or a " factual" attack on the issue presented.
In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
In a facial attack, which is usually made before an answer is filed or the factual allegations of the complaint are otherwise contested, the moving party is arguing that the claim, on its face, is insufficient to invoke the subject matter jurisdiction of the court. Constitution Party of Pa. v. Aichele, 757 F.3d 347, 2014 WL 3294855, *7 (3d Cir. July 9, 2014). In other words, " a facial attack requires the district court to apply the same standard of review it would employ in considering a motion to dismiss under Rule 12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party." Id. (citing In re Schering Plough Corp., 678 F.3d at 243). On the other hand, a factual attack argues " that there is no subject matter jurisdiction because the facts of the case--and here the District Court may look beyond the pleadings to ascertain the facts--do not support the asserted jurisdiction." Id. Thus, " a facial attack contests the sufficiency of the pleadings, whereas a factual attack concerns the actual failure of a [plaintiff's] claims to comport [factually] with the jurisdictional prerequisites." Id. (quoting In re Schering Plough Corp., 678 F.3d at 243; CNA v. United States, 535 F.3d 132, 139 (3d Cir.2008)) (internal quotation marks omitted) (alterations in original). Although not specifically stated in its motion or supporting brief, MCC appears to be making a factual challenge, as the motion was filed after the close of discovery and is based on evidence beyond the Amended Complaint and the documents attached thereto.
As to who bears the burden of proof regarding standing, the court of appeals explained:
On a motion to dismiss for lack of standing, the plaintiff " 'bears the burden of establishing' the elements of standing, and 'each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.'" FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 838 (3d Cir.1996) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). However, " general factual allegations of injury resulting from the defendant's conduct may suffice." Lujan, 504 U.S. at 561.
Ballentine, 486 F.3d at 810.
II. RELEVANT FACTUAL BACKGROUND & PROCEDURAL HISTORY
This lawsuit arises out of MCC's efforts to reclaim the 360 acre, LaBelle coal refuse disposal site located in Luzerne Township, Fayette County, Pennsylvania (the " Site" ), using coal combustion by-products (" CCBs" ) certified by the Pennsylvania Department of Environmental Resources (" DEP" ) for beneficial use. The reclamation is being done for the purpose of capping and otherwise stabilizing the Site to mitigate geotechnical instability (landslide) and to abate existing water pollution. MCC acquired the Site out of the LaBelle Processing, Inc. bankruptcy in 1997 under a Consent Order and Agreement approved by the bankruptcy court.
CCC, a Pennsylvania non-profit corporation, " is a national alliance of social and environmental justice grassroots groups and individuals" whose mission is " to protect communities affected by the mining, ...