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Gulf Restoration Network v. United States Environmental Protection Agency

United States District Court, E.D. Louisiana

October 25, 2018

GULF RESTORATION NETWORK, ET AL
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL

         SECTION: "S" (5)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE.

         IT IS HEREBY ORDERED that plaintiffs' Motion to Strike Defendants' Answer as Nonresponsive (Rec. Doc. 9), is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED that defendants shall file an amended answer consistent with this order within 15 days of entry of this order.

         BACKGROUND

         Before the court is plaintiffs' Motion to Strike Defendants' Answer as Nonresponsive.

         In this case, plaintiffs challenge defendant, United States Environmental Protection Agency's ("EPA's") approval of Louisiana's lowered requirements for dissolved oxygen levels in thirty-one water bodies north and west of Lakes Ponchartrain and Maurepas, extending south and west to the Mississippi River. The affected water bodies include the Tchefuncte River, the Tickfaw River, the Amite River, the Tangipahoa River, Bayou Lacombe, Bayou Trepagnier, Cane Bayou, Bayou Labranche, Bayou Castine, Pontchatoula Creek, and Bayou Liberty. Plaintiffs allege that the lower dissolved oxygen criteria approved by EPA allow significantly more pollution than was previously allowed- including treated sewage - to be discharged into these rivers, streams, creeks, bays, and bayous, and that in approving nearly hypoxic standards, (1) the EPA disregarded Clean Water Act requirements that water quality criteria must protect the fish and wildlife which live in these water bodies, (2) relied on unsound science, and (3) lacked a rational basis for the approval. Plaintiffs further allege that the EPA approved these hypoxic water quality standards without insuring that the lowered criteria would not jeopardize the continued existence of species listed under the Endangered Species Act, like the Gulf sturgeon, or result in the adverse modification of their critical habitat.

         The EPA filed an answer to the original complaint, to which the instant motion to strike was originally directed. Subsequent to the filing of that motion, plaintiffs filed a First Amended Complaint (Rec. Doc. 13), to which a second answer was filed by the EPA. Plaintiff considered the second answer similarly non-responsive, and, instead of filing a renewed motion to strike, sought and was granted leave to file a supplemental memorandum in support of the original motion to strike. Thus, the motion is now directed to the answer to the amended complaint instead of the answer to the original complaint.

         ARGUMENTS OF THE PARTIES

         Plaintiffs contend that the EPA's Answer to the First Amended Complaint is nonresponsive and not properly pleaded, because for many of plaintiffs' allegations, the EPA did not admit or deny the facts stated in the amended complaint, but rather responded that the facts were based on documents or reports that “speak for themselves.” As well, the EPA also refused to respond to many of the allegations by contending they are “conclusions of law to which no response is required.” Accordingly, plaintiffs have moved under Rule 12(f) to strike defendants' answer as non-responsive.

         The EPA has countered that their answer satisfies the minimal pleading requirements of Federal Rule of Civil Procedure 8, and that plaintiffs have not alleged the required prejudice from the EPA's answer as pled, nor can they, because this is a record review case brought under the APA in which plaintiffs' claims will be resolved on the administrative record before the court, and which will involve no discovery nor the resolution of disputed fact issues.

         DISCUSSION

         I. Defendants' Answer does not meet the requirements of Rule 8(b).

         Federal Rule of Civil ...


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