Commonwealth of Pennsylvania v. Consol Energy, Inc. , 233 W. Va. 409 ( 2014 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2014 Term
FILED
May 8, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 13-0885 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
COMMONWEALTH OF PENNSYLVANIA,
PENNSYLVANIA FISH AND BOAT COMMISSION,
Plaintiff Below, Petitioner
v.
CONSOL ENERGY, INC.,
CONSOLIDATION COAL COMPANY,
Defendants Below, Respondents
Appeal from the Circuit Court of Monongalia County
The Honorable Russell M. Clawges, Jr., Judge
Civil Action No. 11-C-556
REVERSED AND REMANDED
Submitted: April 8, 2014
Filed: May 8, 2014
Robert P. Fitzsimmons, Esq. Christopher B. Power, Esq.
Fitzsimmons Law Firm Mychal S. Schulz, Esq.
Wheeling, West Virginia Jennifer J. Hicks, Esq.
and Dinsmore & Shohl LLP
Sharon Z. Hall, Esq. Charleston, West Virginia
Zimmer Kunz PLLC Counsel for Respondents
Pittsburgh, Pennsylvania
Counsel for Petitioner
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “Appellate review of a circuit court’s order granting a motion to
dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, 194 W.Va. 770, 461 S.E.2d 516 (1995).
2. “Standing is comprised of three elements: First, the party attempting
to establish standing must have suffered an ‘injury-in-fact’--an invasion of a legally
protected interest which is (a) concrete and particularized and (b) actual or imminent and
not conjectural or hypothetical. Second, there must be a causal connection between the
injury and the conduct forming the basis of the lawsuit. Third, it must be likely that the
injury will be redressed through a favorable decision of the court.” Syl. Pt. 5, Findley v.
State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).
3. “Although an express grant of powers to an administrative agency
will be determined to include such other powers as are necessarily or reasonably incident
to the powers granted, the agency’s powers should not be extended by implication
beyond what may be necessary for their just and reasonable execution.” Syl. Pt. 3, Walker
v. W.Va. Ethics Com’n, 201 W.Va. 108, 492 S.E.2d 167 (1997).
i
Per Curiam:
This action is before the Court upon the appeal of the Commonwealth of
Pennsylvania, Pennsylvania Fish and Boat Commission (“PFBC”), from the July 12,
2013, order of the Circuit Court of Monongalia County dismissing its complaint against
Consol Energy, Inc. and Consolidation Coal Company (collectively “Consol”). For the
reasons that follow, this Court concludes PFBC has standing to file this civil action in
West Virginia to seek recovery of damages for losses of fish and aquatic life allegedly
caused by Consol’s discharges of pollutants into a stream which flows between West
Virginia and Pennsylvania. We reverse the order of the circuit court and remand this
action for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
PFBC is an independent administrative agency of the Commonwealth of
Pennsylvania charged with protecting, preserving, and managing fish within the
Commonwealth and overseeing jurisdictional responsibility for fishing and recreational
boating. See 30 Pa. Cons. Stat. §§ 321, 322 (1980). Consol operates long wall coal
mining operations in West Virginia and Pennsylvania. As part of the mining operations,
Consol applied for and received National Pollution Discharge Elimination System
(“NPDES”) permits from the West Virginia Department of Environmental Protection
(“WVDEP”), which regulated the point source discharges from Consol’s mines into
certain waterways including Dunkard Creek.
1
In September of 2009, a massive fish kill occurred in Dunkard Creek, a
forty-five mile stream that runs across the Pennsylvania and West Virginia border. The
United States Environmental Protection Agency (“EPA”) immediately joined other state
and federal environmental agencies in the fish kill investigation, including the WVDEP,
the Pennsylvania Department of Environmental Protection, and PFBC. Water samples
taken during the investigation identified elevated levels of chloride and total dissolved
solids (“TDS”) in Dunkard Creek. Chad Harsh, a lead environmental scientist of the
EPA, stated:
the cause of the fish kill was the release of a toxin produced
by Prymnesium parvumi, also referred to as golden algae.
This species of algae thrive in saline conditions. Discharges
of mine pool water into Dunkard Creek with elevated levels
of chloride and TDS from Consol’s Blacksville No. 2 and St.
Leo mines contributed substantially to the conditions
favorable for the golden algae to bloom.
The United States Department of Justice and the EPA brought a civil action
against Consol in the United States District Court for the Northern District of West
Virginia pursuant to Section 309(b) and (d) of the Federal Water Pollution Control Act
(“Clean Water Act” or the “CWA”), 33 U.S.C. §§ 1319(b) and (d) (1990). They alleged
Consol discharged pollutants into Dunkard Creek and other waterways in violation of the
CWA and in violation of the conditions and limitations of the NPDES issued by West
Virginia that created and/or contributed to the conditions favorable for the golden algae
to thrive and bloom which ultimately led to the fish kill. That civil action was resolved by
a consent decree. Without admitting liability, Consol agreed to pay a $5.5 million civil
2
penalty. In addition to the civil penalty, the parties agreed Consol would spend over $200
million on a treatment facility to treat its mine water before it is discharged into
waterways of the United States. A separate consent decree required Consol to pay
WVDEP an additional $500,000 for loss of fish and aquatic life to West Virginia. The
federal agencies did not pursue any relief for the damages that occurred in the waters of
the Commonwealth of Pennsylvania.
By letter dated August 2, 2011, PFBC requested authorization from the
Pennsylvania Attorney General to initiate a civil action against Consol for damages
resulting from the 2009 fish kill. PFBC explained the federal preemption doctrine limits
state law claims where interstate water pollution is caused by a point source located in
another state. See Int’l Paper Co. v. Oulette, 479 U.S. 481, 494 (1987) (finding the CWA
does not completely preempt all state common law claims). PFBC stated: “the
Commonwealth’s claims must be based upon the law of the state where the point source
is located, in this case, West Virginia.” PFBC estimated the damage for loss of aquatic
life in the Commonwealth and loss of recreational opportunities for Pennsylvania anglers
exceeded $1 million. On August 4, 2011, the Pennsylvania Attorney General delegated
authority to PFBC to carry out this litigation.
PFBC filed suit in the Circuit Court of Monongalia County, West Virginia,
on September 2, 2011, against Consol for damages allegedly caused by Consol’s
discharge of waste water into Dunkard Creek in West Virginia which flows into
3
Pennsylvania. PFBC alleged that between May and November of 2009, Consol
discharged significant amounts of chloride through their mining operations into Dunkard
Creek near Greene County, Pennsylvania. PFBC alleged these levels exceeded daily
maximum effluent limitations within the NPDES permits. During this same period, high
levels of TDS were present in the receiving waters which led to and created the release of
toxins from golden algae within Dunkard Creek that were fatal to fish and other aquatic
wildlife. PFBC alleged the Commonwealth suffered significant losses of fish and aquatic
life. PFBC estimated its recorded share of the 2009 fish kill at over forty-two thousand
fish, comprised of forty species; over fifteen thousand freshwater mussels, comprised of
fourteen species; and over six thousand mudpuppies.1
In the complaint, PFBC set forth West Virginia common law tort claims
against Consol including nuisance (Count I), trespass (Count II), negligence and
negligence per se (Counts III and IV). PFBC seeks various damages including recovery
for the fish, freshwater mussels, and mudpuppies killed, the costs incurred in
investigating, cleaning up and documenting the fish kill, any future costs associated with
restoration of aquatic life in the Pennsylvania sections of Dunkard Creek, and punitive
damages in addition to attorney’s fees and costs.
1
A mudpuppy is an aquatic salamander commonly known as a waterdog.
4
Consol removed the civil action to the United States District Court for the
Northern District of West Virginia, based upon 28 United States Code § 1331 (1980),
federal jurisdiction, claiming all of PFBC’s West Virginia common law claims were
completely preempted by the CWA. PFBC filed a motion to remand to state court, which
the federal court granted on September 4, 2012. Following briefing and oral argument,
the federal court found PFBC’s West Virginia common law claims were not completely
preempted by the CWA, and, therefore, it lacked jurisdiction to adjudicate the action. The
federal court found the CWA governs actions based upon interstate water pollution, but it
specifically preserves the availability of state law causes of action brought by any
“person” as defined by the Act, 2 under the law of the source state. See Ouellette, 479
U.S. at 492. (“Although Congress intended to dominate the field of pollution regulation,
the saving clause negates the inference that Congress ‘left no room’ for state causes of
action.”).
Following remand to state court, Consol filed a motion to dismiss the
complaint pursuant to Rule 12(b)(1) of the West Virginia Rules of Civil Procedure on the
ground that the circuit court lacked subject matter jurisdiction. Consol argued: 1) PFBC’s
legal authority to allege claims for loss of aquatic life is limited to Pennsylvania causes of
2
In the definitions section of the CWA, subsection five defines the term “person”
to include the following: “individual, corporation, partnership, association, State,
municipality, commission, or political subdivision of a state, or any interstate body.” 33
U.S.C. § 1362(5).
5
action for losses caused by violations of Pennsylvania law; and 2) the West Virginia
Water Pollution Control Act (“WVWPCA”), West Virginia Code § 22-11-25 (2009), is
the exclusive basis for seeking recovery for loss of fish or aquatic life in West Virginia
courts and PFBC had no authority to bring an action under the WVWPCA.
By order entered July 12, 2013, the circuit court granted Consol’s motion to
dismiss. The circuit court found PFBC is “only authorized to bring civil suits for damages
as a result of violations of Pennsylvania law, based on the language of 30 Pa. C.S. §
2506(b) [1980]” and the “narrow and explicit language does not allow . . . any implied
right” to bring a cause of action under West Virginia common law.3 PFBC appeals this
order.
II. STANDARD OF REVIEW
Consol’s motion to dismiss the complaint, granted by the circuit court, was
filed under Rule 12(b)(1) of the West Virginia Rules of Civil Procedure, concerning lack
3
The circuit court rejected Consol’s argument regarding the WVWPCA and
stated:
Even if West Virginia Code § 22-11-25 creates the only
available cause of action for loss of fish under the jurisdiction
of West Virginia, it does not protect fish or aquatic life of
another State. [PFBC] is pursuing this action for the loss of
aquatic life inhabiting waters of Pennsylvania only.
Therefore, this argument is not applicable and has no bearing
on [PFBC’s] authority to seek recovery under West Virginia
common law.
6
of subject matter jurisdiction. Thus, this Court’s review of the ruling of the circuit court is
de novo. We held in syllabus point two of State ex rel. McGraw v. Scott Runyan Pontiac-
Buick, 194 W.Va. 770, 461 S.E.2d 516 (1995): “Appellate review of a circuit court’s
order granting a motion to dismiss a complaint is de novo.” See Cleckley, Davis and
Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(1) at 328
(4th ed. 2012) (confirming that appellate review of a dismissal under a Rule 12(b)(1)
facial attack is de novo).
The de novo standard is particularly applicable in this matter insofar as the
circuit court’s order raises a purely legal issue: whether a Pennsylvania state agency has
standing to bring its West Virginia common law tort claims of nuisance, trespass, and
negligence in a West Virginia circuit court. As this Court held in syllabus point two of
State ex rel. Orlofske v. City of Wheeling, 212 W.Va. 538, 575 S.E.2d 148 (2002):
“‘Where the issue on an appeal from the circuit court is clearly a question of law . . . we
apply a de novo standard of review’ Syllabus point 1, in part, Chrystal R.M. v. Charlie
A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).” With these principles in mind, we consider
the arguments of the parties.
III. DISCUSSION
As a preliminary matter, this Court notes that Consol filed its motion to
dismiss PFBC’s complaint alleging lack of subject matter jurisdiction. See Rule 12(b)(1)
W.Va. R. Civ. Pro. Jurisdiction is the inherent power of a court to decide a case. See Syl.
7
Pt. 2, Vanover v. Stonewall Cas. Co., 169 W.Va. 759, 289 S.E.2d 505 (1982)
(“‘Jurisdiction deals with the power of the court, while venue deals with the place in
which an action may be tried.’ Syllabus Point 7, Lester v. Rose, 147 W.Va. 575, 130
S.E.2d 80 (1963).”). Without question, the circuit court has jurisdiction to decide PFBC’s
West Virginia common law tort claims under the general powers set forth in article VIII,
§ 6 of the Constitution of West Virginia. Considering the amount in controversy, the
circuit court has original and general jurisdiction of this matter. See W.Va. Code § 51-2-2
(2008). As the federal court found in remanding this case to state court, PFBC’s West
Virginia common law causes of action of nuisance, trespass, and negligence were not
preempted by the CWA because the claims were asserted under the law of the source
state.
On appeal to this Court, the parties focus on PFBC’s standing. PFBC
maintains it has standing to bring this cause of action against Consol in West Virginia for
the killing of the Commonwealth’s fish and aquatic life. PFBC raises two assignments of
error. First, PFBC argues the circuit court erred in holding it lacked standing under the
pertinent statute and the general authority and powers of the agency. Second, PFBC
contends the circuit court erred by holding that the delegation of authority by the
Pennsylvania Attorney General for PFBC to bring the action in West Virginia did not
establish standing. In response, Consol claims the circuit court’s ruling should be
affirmed because PFBC lacked standing under the controlling statute and the delegation
8
of authority by the Pennsylvania Attorney General did not create any additional rights in
PFBC beyond that statute.
Therefore, the sole issue on appeal is whether PFBC has standing to bring
this action. The question of standing is whether PFBC is entitled to have a West Virginia
circuit court decide the merits of the dispute. In other words, the question is whether
PFBC is a proper party to request an adjudication of the claims. “Further, standing is
gauged by the specific common law, statutory or constitutional claims that a party
presents.” Cleckley, Davis and Palmer, Litigation Handbook on West Virginia Rules of
Civil Procedure § 12(b)(1) at 329. To resolve this issue, we begin with the general rule
that
[s]tanding is comprised of three elements: First, the party
attempting to establish standing must have suffered an
“injury-in-fact”--an invasion of a legally protected interest
which is (a) concrete and particularized and (b) actual or
imminent and not conjectural or hypothetical. Second, there
must be a causal connection between the injury and the
conduct forming the basis of the lawsuit. Third, it must be
likely that the injury will be redressed through a favorable
decision of the court.
Syl. Pt. 5, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807(2002).
9
Viewing the complaint in the light most favorable to PFBC, 4 we readily
conclude that it has met the three elements set forth in Findley to establish standing. First,
the factual allegations in the complaint demonstrate PFBC suffered an actual and
concrete injury as a result of the 2009 fish kill. PFBC alleges the Commonwealth
suffered significant losses of fish and aquatic life. Second, PFBC alleges a causal
connection between the fish kill and Consol’s discharge of pollutants into Dunkard Creek
in violation of the limitations of the NPDES issued by West Virginia that affected
Pennsylvania waters. Third, it is likely that the injury will be redressed through a
favorable decision of the circuit court should a jury award damages to PFBC for the loss
of fish and aquatic life, the costs incurred in investigating, cleaning up and documenting
the fish kill, and any future costs associated with stream restoration.
Having found PFBC meets the Findley factors, we now address the specific
question of whether PFBC, as an agency of the Commonwealth of Pennsylvania, has
statutory authority and/or implicit power to bring a cause of action in West Virginia
under West Virginia common law. PFBC’s authority to bring this action must be either
expressly conferred by the legislature or given by necessary implication. See
4
See generally Collia v. McJunkin, 178 W.Va. 158, 159, 358 S.E.2d 242, 243
(1987) (“[m]otions to dismiss are generally viewed with disfavor because the complaint
is to be construed in the light most favorable to the plaintiff and its allegations are to be
taken as true.”); and Courtney v. Smith, 297 F.3d 455, 459 (6th Cir. 2002) (stating for
purposes of ruling on a motion to dismiss for lack of standing, a complaint must be
viewed in the light most favorable to the plaintiff; all material allegations of the
complaint must be accepted as true).
10
Commonwealth v. Am. Ice Co., 178 A.2d 768, 773 (Pa. 1962) (“Only those powers within
the legislative grant, either express or necessarily implied, can be exercised by the
administrative body.”); see also Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex.,
253 S.W.3d 184, 192 (Tex. 2007) (recognizing a state agency’s powers are limited to: 1)
powers expressly conferred by the legislature; and 2) implied powers that are reasonably
necessary to carry out its express responsibilities). This Court has held: “Although an
express grant of powers to an administrative agency will be determined to include such
other powers as are necessarily or reasonably incident to the powers granted, the agency’s
powers should not be extended by implication beyond what may be necessary for their
just and reasonable execution.” Syl. Pt. 3, Walker v. W.Va. Ethics Comm’n, 201 W.Va.
108, 492 S.E.2d 167 (1997).
Consol argues PFBC is only authorized to bring civil suits for damages as a
result of violations of Pennsylvania law. Consol focuses primarily on the following
sentence from the Pennsylvania Fish and Boat Code:
The commission, as an agency of the Commonwealth
authorized to regulate, control, manage and perpetuate fish
may, in addition to criminal penalties provided in this title,
bring civil suits in trespass on behalf of the Commonwealth
for the value of any fish killed or any stream or streambed
destroyed or injured in violation of this chapter.
30 Pa. Const. Stat. § 2506(b), in part (1980)(emphasis added).
11
PFBC refutes this restrictive reading of the statute. PFBC states it has the
authority to bring this cause of action under the powers expressly conferred to it under
the entirety of the Pennsylvania Fish and Boat Code and related Pennsylvania case law
explaining the implicit powers held by governmental agencies. We agree. The applicable
statute provides, in its totality:
§ 2506. Commonwealth actions for damage to fish.
(a) Declaration of policy.--The Commonwealth has
sufficient interest in fish living in a free state to give it
standing, through its authorized agencies, to recover
damages in a civil action against any person who kills any
fish or who injures any streams or streambeds by pollution or
littering. The proprietary ownership, jurisdiction and control
of fish, living free in nature, are vested in this Commonwealth
by virtue of the continued expenditure of its funds and its
efforts to protect, perpetuate, propagate and maintain the fish
population as a renewable natural resource of this
Commonwealth.
(b) General rule.--The commission, as an agency of
the Commonwealth authorized to regulate, control, manage
and perpetuate fish may, in addition to criminal penalties
provided in this title, bring civil suits in trespass on behalf of
the Commonwealth for the value of any fish killed or any
stream or streambed destroyed or injured in violation of this
chapter. In determining the value of fish killed, the
commission may consider all factors that give value to such
fish. These factors may include, but need not be limited to,
the commercial resale value, the replacement costs or the
recreational value of angling for the fish killed. In addition,
the commission is entitled to recover the costs of gathering
the evidence, including expert testimony, in any civil suit
brought under this section where the defendant is found
otherwise liable for damages.
Id. (emphasis added).
12
A plain reading of the statute demonstrates PFBC possesses broad statutory
authority to commence “a civil action against any person who kills any fish[.]” Id. The
very purpose and function of PFBC is to manage and protect the fish and aquatic life of
the Commonwealth. The statute clearly accords PFBC the authority to pursue litigation to
seek redress on behalf of the citizens of the Commonwealth when fish are killed by the
actions of others.5
PFBC is charged with enforcing the laws of the Commonwealth of
Pennsylvania with regard to the protection of fish. Under subsection (b) of § 2506 of the
Pennsylvania Fish and Boat Code, PFBC may bring civil suits in trespass, in addition to
criminal penalties, for the value of any fish killed or any stream of streambed destroyed
or injured in violation of the Pennsylvania Fish and Boat Code. However, subsection (b)
does not contain limiting language that restricts PFBC’s standing to litigate only those
actions. We reject Consol’s argument that subsection (b) does so because it is in direct
contradiction to the stated policy and purpose of the agency and the standing specifically
conferred to PFBC by subsection (a) that it may bring a civil action against “any person
who kills any fish[.]” Id. In refusing a similarly narrow interpretation of an agency’s
5
When a West Virginia statute has such express language as exists in this case,
this Court applies its plain meaning as it is not necessary to resort to any interpretation.
See Syl. Pt. 3, Subcarrier Commc’ns, Inc. v. Nield, 218 W.Va. 292, 624 S.E.2d 729(2005) (“‘Where the language of a statute is free from ambiguity, its plain meaning is to
be accepted and applied without resort to interpretation.’ Syllabus point 2, Crockett v.
Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970).”).
13
powers, the Supreme Court of Pennsylvania held it was “inappropriate to determine the
power of an administrative agency in a linguistic vacuum” and “the power of
administrative agencies includes such powers as are implied necessarily.”
Commonwealth, Dep’t of Envtl. Res. v. Butler Cnty Mushroom Farm, 454 A.2d 1, 6 (Pa.
1982).
In addition to the Pennsylvania legislature’s express grant of powers to
PFBC, its authority to bring this civil action is reasonably incident to the agency’s duties
and responsibilities to protect, preserve, and manage fish within the Commonwealth of
Pennsylvania. The Supreme Court of Pennsylvania has stated:
Although our law of standing is generally articulated
in terms of whether a would-be litigant has a “substantial
interest” in the controverted matter, and whether he has been
“aggrieved” or “adversely affected” by the action in question,
we must remain mindful that the purpose of the “standing”
requirement is to insure that a legal challenge is by a proper
party. Application of Biester [409 A.2d 848 (Pa. 1979)]. The
terms “substantial interest”, “aggrieved” and “adversely
affected” are the general, usual guides in that regard, but they
are not the only ones. For example, when the legislature
statutorily invests an agency with certain functions, duties and
responsibilities, the agency has a legislatively conferred
interest in such matters. From this it must follow that, unless
the legislature has provided otherwise, such an agency has an
implicit power to be a litigant in matters touching upon its
concerns. In such circumstances the legislature has implicitly
ordained that such an agency is a proper party litigant, i.e.,
that it has “standing.”
Commonwealth, Pa. Game Comm’n v. Commonwealth, Dep’t of Envtl. Res., 555 A.2d
812, 815-16 (Pa. 1989). Accord Commonwealth v. Beam, 788 A.2d 357, 360 (Pa. 2002).
14
See also U.S. ex rel. Chapman v. Fed. Power Comm’n, 345 U.S. 153, 173 (1953) (finding
Secretary of Interior had standing to challenge the licensing of a new hydroelectric
generating station because it impacted upon the Department of Interior’s general statutory
duties relating to the conservation of the nation’s water resources); and Racine Fire and
Police Comm’n v. Stanfield, 234 N.W.2d 307, 309 (Wis. 1975) (explaining that a
particular power or duty conferred by statute, may, of necessity, require the additional
power to maintain or defend an action arising out of that power or duty).
Based on the foregoing, we find that PFBC has a substantial interest in the
fish and aquatic life under its control sufficient to give it standing to file suit in West
Virginia and bring West Virginia common law tort claims against Consol in the Circuit
Court of Monongalia County to seek recovery of damages as a result of the 2009 fish kill.
The pertinent statute confers standing to PFBC “to recover damages in a civil action
against any person who kills any fish.” 30 Pa. Const. Stat. § 2506(a). Further, PFBC is a
Commonwealth agency explicitly charged by statute with the obligation and authority to
regulate, protect, manage and preserve the fish and aquatic life of the Commonwealth and
the waters entrusted to its care. See Pa. Const. Stat. §§ 321, 322. Therefore, PFBC is a
15
proper party litigant in this civil action because it has a legislatively conferred interest in
this matter. 6
IV. CONCLUSION
For the reasons set forth above, the July 12, 2013, order of the Circuit Court
of Monongalia County is reversed, and this action is remanded for further proceedings.
Reversed and remanded.
6
We have resolved the matter on appeal by addressing PFBC’s statutory authority
and implicit power to bring this cause of action; it is therefore not necessary that we reach
the merits of PFBC’s second assignment of error.
16