Greenaction for Health and Environmental Justice v. United States Department of…

Background

Greenaction challenged the Navy’s environmental cleanup work at Hunters Point under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Navy moved to dismiss. The court granted both parties’ unopposed requests for judicial notice and ruled that other government-submitted documents could be considered as incorporated into the complaint.

The court said the complaint improperly grouped some matters that should have been pleaded as separate claims. It nevertheless concluded that several claims could proceed in some form, including claims addressing Greenaction’s central contention that the Hunters Point cleanup was inadequate.

Rulings on the Claims

1. Retesting agreements. The motion to dismiss was granted as to parcels B and C and denied as to parcel G. The claim was moot as to parcels B and C because the Navy had announced its intention to fully retest all trenches there. The court also stated that Greenaction conceded that it could not challenge an exercise of the Environmental Protection Agency’s enforcement discretion. The claim could proceed as to parcel G because Greenaction challenged the Navy’s decision to discard testing results showing that strontium-90 exceeded remedial goals and to forgo full retesting. The court found that the alleged injury included delay in retesting and any resulting cleanup, and that the claim was ripe because the Navy had already made the challenged decision.

2. Five-year review deadlines. This claim was dismissed with leave to amend. The fourth and fifth reviews had already been published, making the claim moot as pleaded. The court allowed Greenaction to amend based on its allegation that the Navy intended to release the sixth review late.

3. CERCLA nondiscretionary duties. This claim was dismissed with leave to amend in one respect and without leave to amend in all other respects. The court dismissed without leave the theory that the Navy had a nondiscretionary duty to select remedies protective of human health and the environment, because the Navy’s duty was to select remedies and determine whether they were protective, while the remedies’ actual content involved discretion. The court also dismissed without leave challenges to the administrative record’s location, organization, public-comment process, and alleged failure to respond to late comments. The court dismissed with leave to amend the allegation that required documents were missing from the administrative record, because the complaint did not identify those documents.

4. CERCLA violations. The motion was granted without leave to amend as to some aspects, granted with leave to amend as to others, and denied as to one aspect. The court dismissed without leave challenges to actions taken more than six years earlier, including the first three five-year reviews, certain remedial-action selections, remedial investigations and feasibility studies, and related public-participation requirements. The court dismissed with leave the claims that the Navy failed to follow Environmental Protection Agency guidance, allowing Greenaction to clarify the guidance involved and why any deviations were unjustified. The court denied the motion as to the challenge to the substantive adequacy of the fourth and fifth five-year reviews’ determinations that the cleanup was protective of human health and the environment. The court held that this challenge could proceed as a CERCLA “violations” claim under 42 U.S.C. § 9659(a)(1), rather than as a nondiscretionary-duty claim under § 9659(a)(2).

5. Arbitrary and capricious claim under CERCLA. This claim was dismissed without leave to amend because 42 U.S.C. § 9613(j)(2) does not provide a cause of action.

6. Arbitrary and capricious claim under the Administrative Procedure Act. This claim was dismissed without leave to amend because CERCLA provided an adequate judicial remedy for the challenged actions. The court noted that Greenaction could seek permission to add an Administrative Procedure Act claim later if it became clear that the core cleanup challenge could not proceed under CERCLA.

Disposition and Next Steps

The motion to dismiss was granted in part and denied in part. Any amended complaint was due within 21 days, with a response due 21 days after that. The parties were instructed to continue the necessary discovery or administrative-record review concerning the claims that survived.