Clarke v. Pacific Gas & Electric Company

Background

Dan Clarke sued Pacific Gas and Electric Company and PG&E Corporation, which the opinion collectively calls “PG&E.” He alleged that PG&E and its predecessors left hazardous waste from the Cannery manufactured-gas plant along San Francisco’s northern waterfront. The National Park Service owns the Cannery site. Clarke alleged that pollutants continue to move through groundwater and discharge into San Francisco Bay, harming people, marine life, and the environment.

Clarke asserted claims under the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and California law for negligence and strict liability based on an ultrahazardous activity. He sought an order requiring PG&E to fund environmental cleanup and sought Clean Water Act civil penalties, as well as compensatory and punitive damages.

Standing and RCRA redressability

PG&E argued that Clarke lacked standing, meaning a sufficient personal injury that a court could address. Clarke alleged that he repeatedly visits the affected area for walking and other recreational and aesthetic enjoyment, and that contamination and its effects on wildlife have diminished that enjoyment.

The court held that these allegations plausibly showed a concrete and particularized recreational and aesthetic injury. It rejected PG&E’s argument that Clarke had to allege a direct sensory impact or live particularly close to the site. The court therefore denied PG&E’s motion to dismiss for lack of standing.

PG&E also argued that Clarke could not obtain meaningful relief on his RCRA claim because cleanup might require access to property owned by the National Park Service, which was not a party. The court held that PG&E had not provided sufficient legal support for dismissing the claim at the pleading stage. Whether the National Park Service would allow access was an open factual question that could be considered later. The court denied dismissal of the RCRA claim for lack of redressability.

Clean Water Act claim

The court denied dismissal based on PG&E’s argument that Clarke had not alleged an ongoing violation. Clarke alleged that pollutants continued to discharge into San Francisco Bay and that PG&E’s failure to investigate or remediate contributed to those ongoing discharges. The court found that these allegations were sufficient at the pleading stage and did not necessarily seek retroactive application of the Clean Water Act.

The court reached a different conclusion on timeliness. Under 28 U.S.C. § 2462, the five-year limitations period for Clean Water Act civil penalties begins when the claim first accrues. The court concluded that the complaint did not clearly allege repeated, discrete violations within the limitations period. Instead, it appeared to allege a single violation that began decades earlier and continued because the contamination remained unremedied. The court therefore granted dismissal of the Clean Water Act claim based on the statute of limitations. It also held that the related request for injunctive relief was barred by the concurrent remedy doctrine, which can prevent equitable relief when the related legal claim is time-barred.

State-law claims

Clarke argued that his decision not to search for another home near San Francisco’s northern waterfront constituted sufficient harm for his negligence and strict-liability claims. The court found that theory speculative because it was based on possible future exposure and unspecified health risks. The complaint also did not plausibly connect that alleged injury specifically to the Cannery site. The court granted dismissal of the negligence and strict-liability claims for failure to allege cognizable damages, with leave to amend.

The court separately addressed whether operating and demolishing the Cannery manufactured-gas plant, producing gas from coal and oil, and disposing of related waste could qualify as an ultrahazardous activity under California law. Although that determination is generally fact-specific, the court found that Clarke had not pleaded enough facts or cited supporting cases. The court granted dismissal of the strict-liability claim for failure to adequately allege an ultrahazardous activity, with leave to amend.

Disposition

The court denied PG&E’s motion to dismiss for lack of standing and denied dismissal of the RCRA claim for lack of redressability. It denied dismissal of the Clean Water Act claim for failure to plead an ongoing violation, but granted dismissal based on the statute of limitations and the concurrent remedy doctrine. It also granted dismissal of the negligence and strict-liability claims for failure to allege cognizable damages and, for strict liability, an ultrahazardous activity. Clarke was given 20 days to amend if he could do so in good faith. Judge William H. Orrick signed the order.