Professional Documents
Culture Documents
submits its Opposition to Defendant Murphy Oil, U.S.A., Inc.’s (“Murphy”) “Motion for Partial
INTRODUCTION
Having now admitted that it violates the Clean Air Act at its Mereaux, Louisiana
refinery, 1 Murphy argues that the refinery’s neighbors—people who live in or visit the same
community that Murphy pollutes and who must breathe the surrounding air—do not have legal
1
See Defendant's Statement of Contested Material Facts in Support of Opposition to Plaintiff's Motion for Partial
Summary Judgment on Liability and Standing (Nov. 19, 2009) (Doc. 41-2) (contesting only 6 of 24 alleged
violations); Local Rule LR56.2 (“All material facts set forth in the statement required to be served by the moving
party will be deemed admitted, for purposes of the motion, unless controverted as required by this rule.)
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First, Murphy argues that Concerned Citizens lacks associational standing because, as a
indisputable that Concerned Citizens has actual members: people who have unambiguously
testified that they are members of the organization, have held meetings, have contributed money
Murphy attempts to transform the “indicia of membership test”—a tool courts have used
corporation that violated “state and internal rules for identification of its members” 3 —into a type
Because the Concerned Citizens is a group that clearly has members, Murphy’s argument must
fail. See Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 342 (1977)
(“If the Commission were a voluntary membership organization . . . [rather than a state agency]
its standing to bring this action as the representative of its constituents would be clear . . . ”).
Murphy also argues that Concerned Citizen’s specific allegations of odors from Murphy
are not always precisely correlated with Murphy’s reports of emission incidents. But such
precise correlation is not part of the standing test. As the Fifth Circuit has noted in the context of
the Clean Water Act, the plaintiff must “show[ ] that a defendant has (1) discharged some
pollutant in concentrations greater than allowed by its permit (2) into a waterway in which the
plaintiffs have an interest that is or may be adversely affected by the pollutant and that (3) the
pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs.” Sierra Club,
Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 557 (5th Cir. 1996) (internal
quotation marks and citations omitted), cert. denied, 519 U.S. 811 (1996).
2
Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 344 (1977).
3
Friends of the Earth, Inc. v. Chevron Chemical Co., 129 F.3d 826, 828 (5th Cir.1997)
2
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declarants for expressing concerns and frustration about changes to their community following
the devastation from Hurricane Katrina and from Murphy’s massive spill of oil into the
ultimately is irrelevant to this litigation. Concerned Citizens’ declarants have standing to sue if
they have 1) suffered an “injury in fact,” 2) that is fairly traceable to the challenged action of the
defendant;” and 3) that will likely be “redressed by a favorable decision.” Friends of the Earth v.
ARGUMENT
To prevail on the issue of standing, Concerned Citizens must show that at least one of its
members has standing to sue as an individual. Three Concerned Citizens’ declarants gave sworn
statements that establish the elements of standing. Therefore, Concerned Citizens members have
individual standing.
Murphy argues that William Green, Jr. lacks standing because he does not currently live
in Chalmette and that “[i]n order for an individual to be an adequate representative for the
affected by the polluter’s facility.” (Def. Mem. at 27 (citing Texans United for a Safe Econ.
Educ. Fund v. Crown Cent. Petroleum Corp., 207 F.3d 789, 792 (5th Cir. 2000)). Murphy’s
argument is dead wrong—there is no rule of law that limits standing to residents. The page in
3
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Texans United that Murphy cites notes that “breathing and smelling polluted air is sufficient to
Mr. Green does not currently live in Chalmette because his Chalmette home of almost 40
years flooded during Hurricane Katrina. (Green Depo. Doc. 41-12 p. 6, 14, 15) (“That is my
home. I’m temporarily relocated, but that is my home. That's . . . been my home for almost 40
years and that's not going to change I hope.”). Mr. Green goes to his home to repair “[e]very
day, sometimes every other day . . .” Id. at 16-17. His home is located “two streets west of the
Murphy Oil refinery.” (Green Decl. Doc. 30-24 ¶ 4). While rebuilding his home, “[t]he odors
sometimes prevent [Mr. Green] from having coffee breaks outside with neighbors.” Id. at ¶ 8.
Mr. Green explained: “I know that the noxious odors come from Murphy Oil because I have
worked in refineries, and I recognize the odors. Additionally, the odors are stronger when I am
walking or driving close to Murphy Oil, or when I am downwind from the Murphy Oil refinery.”
Id. at ¶ 9. It is therefore beyond dispute that Mr. Green suffers an “injury in fact” that is fairly
traceable to Murphy.
Murphy also argues that Mr. Green has not identified specific dates of injuries that
correspond to Murphy’s self-reported Clean Air Act violations. (Def. Mem. at 15-16). That,
however, is not the legal standard. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc.,
73 F.3d 546, 557 (5th Cir. 1996) (requiring proof that “a defendant has (1) discharged some
pollutant in concentrations greater than allowed by its permit (2) into a waterway in which the
plaintiffs have an interest that is or may be adversely affected by the pollutant and that (3) the
pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs."); see also
Chalmette Refining, 354 F. Supp. 2d at 703 (“Plaintiffs can prevail on the “fairly traceable”
4
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element by showing that there is a ‘substantial likelihood’ that the defendant's conduct caused
complaints about her. Because Murphy has now admitted that it does indeed violate the Clean
Air Act, 4 however, it is less than reasonable for Murphy to fault Ms. Kneale for complaining
about Murphy’s operations. Murphy attaches internet posts, purportedly from Ms. Kneale and
makes the inflammatory claim that Ms. Kneale has “personally attacked the integrity of Judge
Fallon.” (Def. Mem. at 9). Murphy’s claims are more shrill, however, than the posts themselves.
Because Murphy’s complaints about Ms. Kneale are irrelevant to her standing to sue for Clean
Air Act violations, the Plaintiff will not discuss each complaint separately. Plaintiffs simply note
that, given the circumstances in Ms. Kneale’s community over the last five years, a certain level
of frustration with pollutant corporations, lawyers, and even the legal system is understandable.
Murphy does not even come close to backing up its claim that Ms. Kneale is the “real party in
interest.”
Murphy argues that there “is no certain correlation between Ms. Kneale’s complaints and
the alleged violations.” (Def. Mem. at 7-8). The legal standard, however, is not “certain
correlation.” Here, Ms. Kneale testified that on August 16, 2008, she “witnessed huge flames
coming from Murphy Oil.” (Kneale Decl. Doc. 30-23 at ¶ 8). On that same day, Murphy
violated its Clean Air Act permit. See Pl. Exs. F & G (Docs. 30-12 & 30-13) Also on that day,
Ms. Kneale says, “my son and I wished to throw a football in the yard and would have done so.
The odors from Murphy Oil, however, made it unpleasant to be outside in the yard and for that
reason we did not throw the football.” (Kneale Decl. Doc. 30-23 at ¶ 8). This testimony is at
4
See note 1, supra.
5
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least as strong as the testimony reviewed by the Supreme Court in Laidlaw. 528 U.S. at 181-183.
Similarly, in Chalmette Refining, this Court held that “evidence that [] odors were present during
admitted process upsets” satisfies the “fairly traceable” standard. Chalmette Refining, 354 F.
Supp. 2d at 703.
Murphy continues its pattern of ad hominem attacks when discussing John Dalier Jr..
Murphy claims that, in another case, “Ms. Ferrara testified that Mr. Dalier dumped Motor oil
along the fence line of her property in an apparent attempt to fraudulently create evidence . . .”
(Def. Mem. at 13). This is a mischaracterization of the (irrelevant) testimony. Ms. Ferrara in fact
said nothing about an attempt to create evidence. She said “I told John, I said, "I mentioned to
the gentleman about the stain on the fence." And he goes, "I poured oil back there to stop the
grass from growing on our side." (Doc. 41-22 at 122). Further, “John actually mentioned it to
Jesse, that he had poured it there, but he -- with no intent. That had been a couple of days ago
before he -- you know, he even knew they were coming out.” Id. There is simply no excuse for
Murphy’s mischaracterization of this evidence, which is not even relevant to the issues before
this Court. In general, Murphy’s characterizations of deposition testimony in its brief are not
reliable.
Mr. Dalier became a member of concerned citizens “sometime, perhaps, in the last
quarter of 2007.” (Dalier Depo., Doc. 41-13 at 93.) He testified that he “often smell[s] noxious
and chemical odors coming from Murphy Oil. These odors vary in smell. Sometimes they smell
like sulfur; sometimes they smell like petroleum. The odors are particularly bad when there is an
east-southeast wind. After it rains, the petroleum smell is sometimes particularly strong and
unpleasant.” (Id. ¶ 5). Further, “I enjoy playing with my dog, but sometimes the odors coming
6
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from the Murphy Oil refinery are so strong that I am unable to do so.” (Id., ¶ 6). “I know that
the nauseating odors come from Murphy Oil because I sometimes see black smoke emanating
from the refinery at the same time that I smell the odors.” (Id., ¶ 7).
inadmissible hearsay (without foundation) about what Mr. Dobbins “is aware of” or “has
learned” and Mr. Dobbin’s opinions about Ms. Kneale and his theories about her motivations.
Murphy’s lawyers have made no attempt to craft this affidavit as admissible evidence and the
Murphy’s Affidavit of Barbara D. Beck, Ph.D. purports to be expert testimony but the
testimony is not relevant to the issues before this Court. The affiant testifies as to her opinions
about the lack of health impacts from Murphy’s violations. But the Concerned Citizen’s
allegations of standing are not based on proof of health impacts. See Chalmette Refining, 354 F.
Supp. 2d at 702 (“plaintiffs need not show … that they suffer a bodily injury caused by the
pollution. Rather, plaintiffs can demonstrate a cognizable injury by showing that they breathe
and smell polluted air.”). To require citizen-enforcers to reverse-engineer the permitting process
and quantify the individual risk that would flow from each permit violation would turn every
enforcement action into a toxic tort case. This would defeat the statutory purpose to create
enforceable standards.
7
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These matters would have been settled in the administrative procedure leading to
an implementation plan or emission control provision. . . .
***
Enforcement of pollution regulations is not a technical matter beyond the
competence of the courts. The citizen suit provision is consistent with principles
underlying the Clean Air Act, that is the development of identifiable standards of
air quality and control measures to implement such standards. Such standards
provide manageable and precise benchmarks for enforcement.
S. Rep. No. 1196, 91st Cong. 2nd Sess. 36-39, reprinted in Natural Resources Defense Council,
Inc. v. Train, 510 F.2d 692, 723-25 (D.C. Cir. 1974) (emphasis added).
The affiant also testifies about odor, but she is “a toxicologist specializing in human
health risk assessment,” not an expert on odors. Moreover, any testimony she provides about
odors relates only to whether odors, in her opinion, would result solely from specific chemicals
released by Murphy (“due to NOx or S02 released from the facility in exceedance of their
permitted levels”). But “[t]o establish standing to redress an environmental injury, plaintiffs
need not show that a particular defendant [or a particular release] is the only cause of their
injury.” 5 Under Fifth Circuit precedent, it is enough to show that a defendant “contributes to the
pollution.” 6 As a matter of common sense, any person who has ever been around a refinery
knows that these facilities are not odor-free. Here, we have a refinery that admittedly operates
outside of the law, 7 and neighbors of that refinery who are annoyed by the refinery’s odors.
In Laidlaw, the Supreme Court rejected the defendant’s argument that there was no
standing where district court had found that “there had been no demonstrated proof of harm to
the environment.” 528 U.S. at 181. This is because the “relevant showing for purposes of
5
Natural Resources Defense Council, Inc. v. Watkins, 954 F.2d 974, 980 (4th Cir. 1992) (emphasis added).
6
Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 558 (5th Cir.1996); see also Natural
Resources Defense Council, Inc. v. Watkins, 954 F.2d at 980 (“plaintiffs must merely show that a defendant
discharges a pollutant that "causes or contributes to the kinds of injuries alleged by the plaintiffs.").
7
See note 1, supra.
8
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Article III standing, however, is not injury to the environment but injury to the plaintiff.” Id.
And that injury is demonstrated not by expert testimony but—for example—by showing that
concern about the defendant’s pollution causes the plaintiff to curtail activities. Id. at 181-183. 8
Thus, for example, the reasonable decision not to play ball with a child in the yard because of
concerns about belching smoke from a refinery seven blocks away, establishes standing to sue.
The Affidavit of Lew Strate (Doc. 41-21) is irrelevant for the same reasons, discussed
Murphy spends much of its “Law and Argument” section attempting to delegitimize
Concerned Citizens as a membership organization. But read in context, the deposition testimony
reveals a fairly typical neighborhood, grass roots organization. There are numerous meetings,
but not a lot of recordkeeping or documentation. Murphy complains about the lack of “regular
8
The Supreme Court held:
The relevant showing for purposes of Article III standing, however, is not injury to the
environment but injury to the plaintiff. To insist upon the former rather than the latter as part of
the standing inquiry (as the dissent in essence does, post, at 713-714) is to raise the standing
hurdle higher than the necessary showing for success on the merits in an action alleging
noncompliance with an NPDES permit. Focusing properly on injury to the plaintiff, the District
Court found that FOE had demonstrated sufficient injury to establish standing. . . . For example,
FOE member Kenneth Lee Curtis averred in affidavits that he lived a half-mile from Laidlaw's
facility; that he occasionally drove over the North Tyger River, and that it looked and smelled
polluted; and that he would like to fish, camp, swim, and picnic in and near the river between 3
and 15 miles downstream from the facility, as he did when he was a teenager, but would not do so
because he was concerned that the water was polluted by Laidlaw's discharges. . . . Curtis
reaffirmed these statements in extensive deposition testimony. For example, he testified that he
would like to fish in the river at a specific spot he used as a boy, but that he would not do so now
because of his concerns about Laidlaw's discharges.
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181-182 (2000)
9
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meeting dates” or “CCAM records” (Def. Mem. at 4), but never explains why it would expect to
Murphy argues that Concerned Citizens’ “stated purposes are . . . too general and vague
to give CCAM the focus it needs to be a real party in a Clean Air Act case.” (Def. Mem. at 26).
But Mr. Dalier testified that his understanding of the organization’s purpose is to “try to help the
community out” by making it “[e]nvironmentally better.” (Dalier Depo., Doc. 41-13 at 94.). Mr.
organization’s members and other St. Bernard Parish residents from pollution coming from the
surrounding petrochemical industry,” and “to affect the decisions that impact its community by
encouraging citizen participation and providing advocacy for all residents who are committed to
return, rebuild and remain in St. Bernard Parish, Louisiana.” (Kneale Decl. Doc. 30-23 at ¶ 4).
As people returned to St. Bernard Parish after Rita and Katrina, there was a need
for a unique neighborhood watch, as one could imagine. We were camping out or
we were down at our homes for day visits, and as we began to repopulate our
neighborhoods, we formed block captains. We formed unique associations and
relationships with our neighbors, as one can imagine, to address the unique
concerns of the neighborhood at that time.
There were general meetings beginning in May of 2007, and I don't recall
specifically at which meetings prior to the filing of this paper in July 2007. But at
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general meetings, it was discussed who would serve as officers, and these three
officers were nominated and voted on.
Q. And I want to ask you some questions about the process of the meetings, and
what goes on. How did you notify people of the meeting?
A. Word-of-mouth, fliers, knocking on doors, telephone calls, other means of
communicating.
[Member attendance] varies from meeting to meeting, you know but our members
talk. Let me clarify that. Our members talk among each other and are in contact
with each other and so we get input from members that might not make a
particular meeting. Someone else would bring their viewpoints with them. So it's
actually a consensus of the whole membership.
Murphy’s claims that “Ms. Kneale’s interests alone fuel this lawsuit” (Def. Mem. at 30)
are not supported by the facts. Concerned Citizens members other than Ms. Kneale have
testified about their participation. When Murphy’s counsel asked Mr. Dalier why Concerned
Because it seems like the consensus was that we weren't getting assistance. We
are not getting assistance from the DEQ on matters that were involving us,
disrupting our lives. We have tried to speak—I mean, I have tried to speak to the
old fox that’s watching the henhouse for us, to get them to help us. Or get DEQ
to resolve some things for us, for years, and nothing was happening.
(Dalier Depo. Doc. 41-13 at 114-15). Mr. Green testified that Concerned Citizens originally
“didn’t want to sue,” and hoped that something would happen during the 60-day notice period.
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(Green Depo. Doc. 41-12 at 147-48). He said that after the 60 days expired, “we took another
vote and then we decided to go ahead with the lawsuit.” Id. Mr. Green explained,
Well, our mission as a group is to hopefully get Murphy to abide by the pure air
laws and acts that are on the books established by the EPA and the DEQ. We
want them to comply with those, to give us clean air. The families living there
should be entitled to that. That's why we sued. That's what we seek.
Murphy claims that Concerned Citizens’ lacks “indicia of membership.” (Def. Mem. at
18-19). In doing so, Murphy relies on Hunt and Friends of the Earth, Inc. v. Chevron Chemical
Co., in which the courts used an “indicia of membership” test. 129 F.3d 826 (5th Cir. 1997). In
Chevron, the Fifth Circuit found that an environmental organization had standing to bring a
citizen suit despite the fact that “it had no legal members under the corporate laws of the District
have testified. Further, Concerned Citizens is a non-profit corporation under the laws of the
State of Louisiana, and Murphy makes no discernable argument to the contrary. Nonetheless,
even if Concerned Citizens were not a non-profit corporation, it would still meet state
requirements as an association. See, e.g., Ermert v. Hartford Ins., Co., 559 So.2d 467 (La. 1990)
(all that is needed is the intent to create such an association by two or more people); see also
Bogue Lusa Waterworks District v. The Louisiana Department of Environmental Quality, 897
voluntary membership organization. Murphy relies on only three, non-environmental and non-
applicable cases.
12
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American Legal Foundation v. FCC, 808 F.2d 84 (D.C. Cir. 1987) involved a plaintiff,
ALF, seeking standing on behalf of “all television viewers who watch ABC News.” (Def. Mem.
at 21). ALF never claimed to have any actual members and admitted to having none. 808 F.2d at
88 (“ALF has no members. In fact, the Foundation's corporate charter expressly prohibits it from
having any.”). Instead, ALF claimed that it was bringing suit on behalf of its “supporters,” who,
it alleged, were the public at-large. Id. Similarly, in Health Research Group, a food-and-drug
case, the plaintiffs brought suit on behalf of multiple public-interest groups. Health Research
Group v. Kennedy, 82 F.R.D. 21, 24 (D.C. Cir. 1979). The Health Research Group plaintiffs
alleged no injury to any interest of their own and sought to establish standing “solely in a
not…seek standing as the representatives of their Members. Indeed, plaintiffs concede that they
Finally, Association for Retarded Citizens of Dallas v. Dallas County Mental Health & Mental
Retardation Center Bd. of Trustees, 19 F.3d 241, 244 (5th Cir. 1994) involved an organization
that purported “to sue on behalf of individuals with developmental disabilities” rather than on
behalf of members.
CONCLUSION
For the foregoing reasons, Murphy’s Motion for Partial Summary Judgment on Standing
should be denied.
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s/ Matthew Altaras
______________________________________
Matthew Altaras, Student Attorney
s/ Matthew B. Miller
______________________________________
Matthew B. Miller, Student Attorney
s/ Adam Babich
______________________________________
Adam Babich, La. Bar No. 27177
Tulane Environmental Law Clinic
6329 Freret Street
New Orleans, LA 70118-6321
Phone: (504) 865-5789; direct dial 862-8800
Fax: (504) 862-8721
Counsel for Concerned Citizens Around Murphy
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing pleading has been served upon counsel of record by
s/ Adam Babich
______________________________________
Adam Babich, SBN: 27177
14