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

Background Greenaction for Health and Environmental Justice asserted three claims involving the Navy’s environmental cleanup obligations. The opinion addresses a work plan governing sampling at parcel G, five-year reviews, and a Federal Facilities Agreement requiring certain tasks to follow federal environmental guidance and policy. The court also granted the government’s request for judicial notice.

First claim: change in strontium sampling method The court granted the motion to dismiss the first claim. Greenaction alleged that the government violated the work plan by rejecting the initial strontium samples and changing the sampling method. The work plan allowed changes to the sampling program and analytical suite at parcel G when the Navy approved a field change request. The Navy approved such requests to change the strontium sampling method from Method 905 to the Eichrom method. The court therefore concluded that the change was authorized by the work plan. Greenaction did not identify a work-plan provision violated by the Navy or the Environmental Protection Agency. Because Greenaction could not identify additional allegations that would state a claim, the dismissal was without leave to amend.

Second claim: five-year reviews The court denied the motion to dismiss the second claim. Greenaction alleged that the Navy had a past and ongoing policy of improperly setting deadlines for five-year reviews, which Greenaction described as a current policy of failing to perform a nondiscretionary duty created by the Comprehensive Environmental Response, Compensation, and Liability Act. The court held that the claim could proceed because Greenaction alleged a current failure, regardless of whether the cited statute provides a cause of action or waives sovereign immunity for challenges to current failures only.

Third claim: compliance with environmental guidance The court granted the motion to dismiss the third claim. Greenaction alleged that the Navy failed to follow Comprehensive Environmental Response, Compensation, and Liability Act guidance made enforceable through the Federal Facilities Agreement during the fifth five-year review. The court reasoned that the agreement’s reference to tasks, obligations, and responsibilities—including response actions—did not cover five-year reviews as removal actions. Removal actions are temporary measures addressing an immediate threat, while remedial actions are intended as permanent solutions. Five-year reviews evaluate remedial actions and determine whether additional remedial actions are needed. The court concluded that five-year reviews therefore were not removal actions for purposes of the claim, and that additional facts could not cure the defect. The dismissal was without leave to amend. The court also noted that Greenaction forfeited a separate argument that five-year reviews were part of the operation and maintenance of response actions because Greenaction had not raised that argument in its complaint, briefs, or at the hearing.

Disposition Judge Vince Chhabria granted in part and denied in part the motion to dismiss. Claims one and three were dismissed without leave to amend; the motion was denied as to claim two, which survives the ruling.