The opinion of the court was delivered by: Paul L. Maloney Chief United States District Judge
HONORABLE PAUL L. MALONEY
OPINION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS
Defendants City of Holland and Holland Board of Public Works filed a motion to dismiss (Dkt. No. 19) the amended complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn1 In the alternative, Defendants request the court order Plaintiff to file a more definitive statement pursuant to Rule 12(e). Plaintiff Sierra Club filed a response. (Dkt. No. 22.) Defendants filed a reply. (Dkt. No. 23.)
Plaintiff Sierra Club (Plaintiff) sued Defendants City of Holland and the Holland Board of Public Works (Defendants) for violations of the Clean Air Act and violations of the implementation plan developed by the State of Michigan. The Federal Rules of Civil Procedure require a plaintiff to include in the complaint "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). The United States Supreme Court recently modified the standard for pleading requirements and retired the "no-set-of-facts" standard set forth in Conley v. Gibson, 355 U.S. 41 (1957). Bell Atlantic Corp. v. Twombly, 550 U.S. at 544, 562-63 (2007); Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629 (6th Cir. 2009); see Hensley Mfg. v. Propride, Inc., 579 F.3d 603, 609 (6th Cir. 2009). Under the new standard, a complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2008) (quoting Bell Atlantic, 550 U.S. at 570). The Court explained what this new "plausibility" standard requires.
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"
Id. (quoting Bell Atlantic) (citations omitted). The Iqbal opinion identified two "working principles" in the Bell Atlantic decision: (1) when reviewing a complaint subject to a motion to dismiss, courts must accept as true all factual allegations, but not legal conclusions; and (2) the court must determine whether the complaint states a plausible claim for relief. Id. at 1949-50. The Court offered some guidance for trial courts.
In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
In the amended complaint, Plaintiff offered a number of legal and factual assertions. Defendants own and are responsible for operating the De Young Plant (the Plant), a coal and natural gas fired power plant. (Compl. ¶¶ 3 and 19.) The Plant is located in Holland, Michigan, in Ottawa County. (Id. ¶ 27.) The Plant meets the definition of a "major emitting facility," as that term is defined in the Clean Air Act, and is a source of "hazardous air pollutants." (Compl. ¶¶ 28-30.) Defendants have undertaken modifications of the Plant. (Id. ¶¶ 4-5, 65.) The crux of the amended complaint rests on the modifications allegedly made to the Plant. In paragraphs 4 and 5 of the amended complaint, Plaintiff asserts 4. On numerous occasions, Defendants modified and thereafter operated the generating units at the De Young Plant: (i) without first applying for and/or obtaining appropriate permits authorizing the modification and operation; (ii) without meeting required emission limits including "best available control technology"; (iii) without meeting "lowest achievable emission rates" for nitrogen oxides; (iv) without installing appropriate technology to control emissions of nitrogen oxides, sulfur dioxides, particulate matter, and other pollutants; and (v) without accurately reporting the facility's compliance status with its Renewable Operating Permit as required by the [Clean Air] Act, its implementing regulations, and the Michigan State Implementation Plan.
5. As a result of the Defendants' operation of the De Young Plant following those major unlawful modifications, and in the absence of appropriate controls, unlawful amounts of various pollutants have been, and continue to be, released into the atmosphere, aggravating air pollution locally and far downwind of the plant. (Compl. ¶¶ 4-5.) Standing alone, these statements are the sort of "threadbare recitals" or "conclusory allegations" that fail to establish a facial plausibility sufficient to withstand a motion to dismiss. See Iqbal, 129 S.Ct. at 1949. The amended complaint, however, does not rest on these "naked assertions," rather the amended complaint provides "further factual enhancement[s]." See Bell Atlantic, 550 U.S. at 557. In paragraph 65, Plaintiff alleges 65. Beginning no later than 1988 and continuing at various times thereafter up to at least 2007, Defendants commenced construction of one or more major modifications, as defined in the [Clean Air] Act, at the De Young Plant. These modifications included one or more physical changes or changes in the method of operation at each of the three generating units, including work involving various replacements or renovations of major components of the boilers, turbines, and associated equipment. The physical changes included, but were not limited to, replacing generator and economizer tubes at Unit 5, replacing waterwall tubes, elements of the superheater and rebuilding the precipitator at Unit 4; and replacing condenser tubes, superheater and rebuilding the pulverizer at Unit 3. These and other physical changes or changes in the method of operation resulted in significant net emission increases, as defined by 40 C.F.R. § 52.21(b)(3)(i), of one or more of the following: nitrogen oxides, sulfur dioxide, carbon monoxide, and/or particulate matter. (Compl. ¶ 65.)
Defendants insist the complaint in general, and paragraph 65 in particular, fails to provide the level of factual detail required to survive a motion to dismiss. Defendants correctly point out the complaint does not include (1) what work constituted a modification, (2) why the work constituted a modification, (3) how many modifications occurred, (4) when the modifications occurred, (5) why the modifications were considered major for the relevant statutory and regulatory provisions, (6) which pollutants were released in a net increase in emissions, and (7) by what amount the pollutants increased as a result of the modifications. (Def. Br. 3.)
The complaint provides sufficient factual allegations to survive Defendants' motion to dismiss. The factual allegations contained in paragraph 65, combined with other facts asserted earlier in the complaint, state a plausible claim for relief. In paragraph 65, Plaintiffs identified specific modifications to generators 3, 4 and 5 and assert that those modifications caused a significant net increase in emissions of at least one of four regulated gasses or pollutants. Those facts, taken as true, state a plausible, not just possible, claim upon which relief may be granted. Rule 8(a)(2) does not require the sort of "detailed factual allegations" asserted by Defendants. Were this court to accept Defendants interpretation of the new standard, based on the facts Defendants assert were omitted, a plaintiff would be obligated to prove its claims in the complaint, rather than simply giving the defendants notice of them.
Turning to the alternative portion of the motion, Defendants object to Plaintiff's use of open-ended and ambiguous language. (Def. Br. 6, 9, 10.) Defendants correctly point out that Plaintiff strategically employs phrases like "one or more," "at least," and "not limited to" in the complaint. Defendants reason the broad and ambiguous language in the amended complaint provides them no fair notice of Plaintiff's claims and serves only to create the ground for a fishing expedition in discovery. Defendants identify seven paragraphs in the amended complaint and ...