Summary of a Recent
Judicial Development in
Environmental Law

Clean Water Act Does Not Preempt All State Common Law Claims

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Wyatt v. Sussex Surry, LLC, 482 F. Supp. 2d 740 (E.D. Va. 2007), the United States District Court for the Eastern District of Virginia granted the landowners' motion to remand their state court action filed against a biosolids recycling company and a corporate landowner. The landowners filed the instant action due to the defendants' alleged dispersal of by-product from wastewater treatment facilities. The court held that the Clean Water Act (CWA) did not preempt the landowners' state law claims.

Background

Asserting claims of negligence, private nuisance, and trespass, a group of Virginia landowners sued Sussex Surry, LLC (Sussex) and Synagro Central, Inc. (Central) in state court. Id. at 741-42. Sussex, a Virginia corporation with its principle place of business in Virginia, owned a forest abutting the landowners' properties. Id. at 742. Central, a Delaware corporation with its principle place of business in Maryland, operated a biosolids recycling facility, involving "the [land] application . . . of the byproduct of wastewater treatment plant processing." Id. On August 31, 2006, the landowners began contacting state agencies to complain about the offensive odors created by Central's spreading operations on Sussex's land, and to inform the agencies about the respiratory problems some of the landowners had developed, allegedly due to the defendants' operations. Id. at 742. Thereafter, on November 22, 2006, the landowners brought suit against Sussex and Central in state court, alleging "that they suffer[ed] severe health problems as a result of [Central's] application of biosolids to [Sussex's] land." Id. at 741-42. On December 20, 2006, Central removed the case to federal court. Id. at 742. In response, the landowners motioned to remand. Id.

Arguments

The defendants opposed the landowners' motion for remand, arguing that federal subject matter jurisdiction existed for two reasons: (1) Sussex was an "improper party" and the case should be dismissed "under the doctrine of fraudulent joinder," and (2) the CWA preempted the plaintiffs' state law claims under the CWA. Id. The defendants also argued that Virginia's Right to Farm law, Va. Code §§ 3.1-22.29, precluded the landowner's nuisance suit against Sussex. Id. at 744.

Analysis and Holdings

The defendants argued that Sussex was fraudulently joined by the landowners to destroy diversity of citizenship federal subject matter jurisdiction. Id. The burden rested with the defendants to prove "that a nondiverse party [was] fraudulently joined, by showing that either 'there [was] no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court; or that there [was] outright fraud in the plaintiff's pleading of jurisdictional facts.'" Id. (quoting Mayes v. Rapoport, 198 F.3d 457, 464 (4th Cir. 1999)). To satisfy their burden, the defendants alleged that Sussex could not "'reasonably' be held liable for [Central's] allegedly tortious conduct because it [was] a mere 'passive landowner.'" Id. The court disagreed with the defendants because Sussex "affirmatively granted permission to [Central] to spread biosolids on the forested property" and "remained in control of the property at all times." Id. at 743. Additionally, Sussex allowed Central to continue applying biosolids even after it became aware of the landowners' alleged injuries. Id. Therefore, the court held that Sussex was not a "passive landowner" and could not be "written out" of the lawsuit. Id.

The defendants also argued that Virginia's Right to Farm law precluded the landowners' nuisance action; however, the court held that the law was not applicable "whenever a nuisance results from the negligent or improper operation of any . . . agricultural operation or its appurtenances . . . ." Id. at 744 (quoting Va. Code Ann. § 3.1-22.29(A)). Because the landowners alleged that the defendants acted negligently in spreading the biosolids, the right-to-farm protection did not protect the defendants from liability. Id.

Ultimately, the court held that the defendants had not shown that the landowners could not maintain a cause of action against Sussex; therefore, Sussex was a proper party. Id. With Sussex and the landowners, all citizens of Virginia, on opposite sides of the lawsuit, the court lacked diversity of citizenship jurisdiction. Id.

Alternatively, the defendants argued, "removal jurisdiction exist[ed] because any resolution of [p]laintiffs' claims would [have] necessarily implicate[d] the question of whether [Central] was in compliance with 40 C.F.R. Part 503, which regulate[d] the use and disposal of sewage sludge . . . ." Id. at 745. In other words, the defendants argued that the landowners presented a substantial federal question. However, the court held that Central's "alleged compliance with state or federal regulations constitute[d] an affirmative defense, not a part of the plaintiffs' complaint." Id. Therefore, the court lacked federal question jurisdiction as well.

Finally, the defendants argued that the CWA preempted state common-law claims. Id. However, the court held that "both the Supreme Court and the Fourth Circuit have expressly found that the [CWA] does not preempt state common-law claims." Id.

The case was decided on April 3, 2007.