The opinion of the court was delivered by: Richard W. Roberts United States District Judge
for case management and discovery purposes
The Ecuadorian provinces of Sucumbios, Carchi, and Esmeraldas (collectively "provincial plaintiffs") and approximately 3,200 individual plaintiffs brought this action against the defendants, asserting violations of the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350, and international and domestic common law stemming from the defendants' contract with the U.S. government to spray pesticides over cocaine and heroin farms in Colombia. The defendants have moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) or, in the alternative, for summary judgment under Rule 56(c). They seek to dismiss the claims of the provincial plaintiffs on the grounds that the provincial plaintiffs lack standing to sue because their claims are too remote, the doctrine of parens patriae does not apply here to give the provincial plaintiffs standing, and they do not have the legal capacity to sue in U.S. courts. Because the provincial plaintiffs do not have Article III or parens patriae standing, the defendants' motion, treated as a jurisdictional motion under Rule 12(b)(1), will be granted and the provincial plaintiffs' claims will be dismissed.
In the late 1990s, the United States government entered into a contract with the government of the Republic of Colombia, under a plan called "Plan Colombia," to eradicate drug production and exportation from Colombia. (First Am. Consol. Compl. ("Consol. Compl.") ¶ 12.) The U.S. government then contracted with the defendants to conduct aerial spraying to eradicate Colombian coca and heroin poppy crops. (Id. ¶ 13.) The plaintiffs allege that during the course of the defendants' spraying, "[h]eavy clouds of liquid spray dropped from the planes, shifted with the wind, and repeatedly fell on the homes and lands of [p]laintiffs." (Id. ¶ 38.) The chemicals from the spraying allegedly went "beyond their intended Colombian targets," entered into Ecuador, and injured humans, livestock, vegetation, and water. (Id. ¶¶ 18, 20.)
As a result of the alleged harm caused by the spraying, the individual and provincial plaintiffs brought this action asserting violations of the ATCA and various international and domestic common law torts. The provincial plaintiffs bring suit "in their own right and in their parens patriae capacity on behalf of their citizens and residents." (Id. ¶ 7.) The provinces allege that they "have suffered damage to their natural resources and have expended, and will be required to expend in the future, funds to remediate the situation and to address their citizens' health, security, and property." (Id. ¶ 1.) The defendants move to dismiss the claims brought by the provincial plaintiffs, arguing that they lack both standing and the capacity to sue. The provincial plaintiffs oppose the dismissal.
"Before a court may address the merits of a complaint, it must assure that it has jurisdiction to entertain the claims." Marshall v. Honeywell Tech. Solutions, Inc., 675 F. Supp. 2d 22, 24 (D.D.C. 2009) (internal quotation marks omitted). "Lack of standing is a defect in subject matter jurisdiction." Teva Pharm. USA, Inc. v. Sebelius, 638 F. Supp. 2d 42, 54 (D.D.C. 2009) (reversed on other grounds) (citing Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Because the defendants challenge the provincial plaintiffs' standing, the defendants' motion will be treated as one to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1).
"In considering whether a plaintiff has standing, a court accepts as true all of the factual allegations contained in the complaint." Unity08 v. Fed. Election Comm'n, 583 F. Supp. 2d 50, 56 (D.D.C. 2008) (reversed on other grounds) (citing Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998)); see also Chavous v. D.C. Fin. Responsibility and Mgmt. Assistance Auth., 154 F. Supp. 2d 40, 44 (D.D.C. 2001) ("When reviewing a standing challenge... trial courts must accept as true all material allegations of the complaint[.]" (internal quotation marks omitted)). "Although the District Court may in appropriate cases dispose of a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) on the complaint standing alone, where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record[.]" Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation marks omitted).
Article III standing requires "(1) injury in fact, (2) causation, and (3) redressability." Fund for Animals, Inc. v. Norton, 322 F.3d 728, 732-33 (D.C. Cir. 2003) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). A plaintiff's alleged injury must be "concrete and particularized" and "actual or imminent" and fairly traceable to the defendant's action. Lujan, 504 U.S. at 560. "[T]he injury in fact test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured." Wilderness Soc'y v. Norton, 434 F.3d 584, 590 (D.C. Cir. 2006) (internal quotation marks omitted). In order to meet the Lujan standard, plaintiffs must establish standing as to each of its claims, id. at 589, and "[i]n reviewing the standing question, [a court] must be careful not to decide the questions on the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims." Amador County, Cal. v. Kempthorne, 592 F. Supp. 2d 101, 104 (D.D.C. 2009) (internal quotation marks omitted).
The provincial plaintiffs bring suit, in part, on their own behalf, stating that they "have been damaged in their economies, provincial lands, waters and budgets[,]... [that] [t]hey have suffered increased housing costs, education costs, costs associated with the housing and feeding of refugees[,]... [and that,] as the political subdivisions responsible for protecting the environment, [they] face remediation costs." (Consol. Compl. ¶ 32.) The defendants argue that the provinces' injuries derive from the individual plaintiffs' injuries and are too remote to establish standing. For support, the defendants rely primarily on cases that examine the question of whether a plaintiff had pled an injury that is sufficiently direct to survive a motion to dismiss for failure to state claim. (See Defs.' Reply Brief in Supp. of Their Mot. to Dismiss the Three Provincial Pls. at 7-8.) For example, in In re Tobacco/Governmental Health Care Costs Litig., 83 F. Supp. 2d 125 (D.D.C. 1999), the Republic of Guatemala brought tort and negligence claims against several tobacco companies seeking to recover health care costs it incurred in treating its citizens' smoking-related injuries. Id. at 127. The district court dismissed Guatemala's claims because "all of Guatemala's alleged injuries [were] too remote to have been proximately caused by defendants' misconduct." Id. at 128. While this analysis could address a motion asserting that a complaint fails to state a traditional tort claim, a "defect in the merits of a party's claim is not the basis upon which to determine standing." Wilderness Soc'y, 434 F.3d at 595.
The defendants also rely on cases where courts have used the proximate cause standard to determine whether a plaintiff's injuries were too remote to confer standing. (See Defs.' Revised Reply Brief in Supp. of Their Mot. to Dismiss the Three Provincial Pls. at 9-10.) In Ganim v. Smith and Wesson Corp., 780 A.2d 98 (Conn. 2001), for example, the City of Bridgeport, Connecticut and its Mayor sued gun manufacturers, trade associations and gun retailers, alleging that as a result of the defendants' failure to design handguns to prevent unauthorized and unintended gun use, screen the distributors's and retailers's background and business practices, and adequately warn users of gun danger, the city suffered increased police, court and prison costs and had to impose increased tax burdens on taxpayers. Id. at 101-02, 118. The plaintiffs also claimed loss of investment, economic development and tax revenues due to lost productivity, and victimization of their citizens. Id. at 118. The court held that the plaintiffs lacked standing to assert their claims because the link connecting the defendants' alleged misconduct to the plaintiffs' alleged harm involved an attenuated connection between gun manufacturers, distributors, wholesalers, retailers, and unauthorized buyers and users. Id. at 123, 129. Similarly, in Penelas v. Arms Tech., Inc., No. 99-1941 CA-06, 1999 WL 1204353 (Fla. Cir. Ct. Dec. 13, 1999), the Mayor of Miami-Dade County brought an action against gun manufacturers, a gun distributor, and three trade associations, asserting various negligence claims and seeking to recover the costs incurred in providing police, fire, emergency, court, prison and other related services as a result of various homicidal, suicidal and accidental shootings in the county. Id. at *1. The court held that the county lacked standing because the damages were purely derivative of damages suffered by third parties and too remote to be recoverable. Id. at *2; see also Camden County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 123 F. Supp. 2d 245, 257-58 (D.N.J. 2000) (holding that county lacked constitutional standing to assert against gun manufacturers negligence claims seeking compensation for manufacturers' alleged reckless and negligent handgun marketing and distribution because its theory of causation involved "a great number of links in the causal chain" and county would have been required to show that causation was not severed by distributor, retailer, or purchaser illegal conduct, or gun theft); District of Columbia v. Beretta U.S.A. Corp., No. Civ. A. 0428-00, 2002 WL 31811717, at *27 (D.C. Super. Dec. 16, 2002) (reversed in part on other grounds) (dismissing District of Columbia's claims against gun manufacturers seeking monetary damages and injunctive relief for economic impact of gun violence in the District because claims were too remote to confer standing).
The provincial plaintiffs allege three category of harms, including (1) direct monetary damages flowing from reduced revenues, increased costs, or a combination of the two; (2) environmental damage; and (3) remediation and relocation costs. (Pls.' Revised Opp'n to Defs.' Mot. to Dismiss the Three Provincial Pls. on the Pleadings or, in the Alternative, for Summ. J. ("Pls.' Revised Opp'n"), Ex. B ¶ 8.) Monetary damages may constitute an injury-in-fact to satisfy the first prong of the standing analysis. See, e.g., Info. Sciences Corp. v. United States, 85 Fed. Cl. 195, 199 (Fed. Cl. 2008) (noting that plaintiff's alleged monetary damages establish injury-in-fact where plaintiff challenged government's award of government contract to another company after plaintiff spent $1.625 million in preparing for bid procurement, submitting initial and revised proposals, and participating in procurement activities). The provincial plaintiffs assert monetary damages reflected here in budget deficits that were "quantified by examining the budgets for the Plaintiffs and for the other Ecuadorian Provinces from 1990-2007." (Pls.' Revised Opp'n, Ex. B ¶ 22.) ...