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HomeMy Public PortalAboutExhibit MSD 18H2 Counterclaim 112007 Doc 26Exhibit MSD 18H2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION UNITED STATES OF AMERICA, and STATE OF MISSOURI, Plaintiffs, v. Case No. 4:07 -CV -1120 (JCH) THE METROPOLITAN ST. LOUIS SEWER DISTRICT, Defendant. State of Missouri's Motion to Dismiss Metropolitan St. Louis Sewer District's Counterclaim and to Strike Affirmative Defenses In its counterclaims and affirmative defenses, Defendant Metropolitan St. Louis Sewer District ("MSD") tries to shift liability to the State of Missouri ("State"). Under Section 309(e) of the Clean Water Act ("CWA"), 33 U.S.C. 1319(e), ("309(e)"), if a state's laws prevent a municipality from paying a judgment or expenses arising from a CWA enforcement case, then that state is liable.' MSD alleges that Missouri law prevents prevent MSD from raising revenue, thereby preventing MSD from paying the judgment and expenses that will result from this action. Section 309(e) of the Clean Water Act ("CWA"), 33 U.S.C. 1319(e) reads as follows: State liability for judgments and expenses Whenever a municipality is a party to a civil action brought by the United States under this section, the State in which such municipality is located shall be joined as a party. Such State shall be liable for payment of any judgment, or any expenses incurred as a result of complying with any judgment, entered against the municipality in such action to the extent that the laws of that State prevent the municipality from raising revenues needed to comply with such judgment. Put simply, this is not the case. After years of litigation challenging MSD's rates under a prior rate structure, MSD obtained a final decision in state appellate court establishing that under its current rate structure it can raise the revenue needed operate its system, and these operations necessarily include the cost of complying with federal water pollution laws and any judgment of this court. As a consequence, the State has no possible liability under § 309(e) for the judgment and expenses incurred by MSD in this case. In addition, the Hancock Amendment to the Missouri Constitution, which MSD relies upon, has no application to the federal requirements cited in the complaint, and MSD cannot raise the Hancock Amendment because MSD lacks standing and state sovereign immunity applies. Thus, the counterclaims fail to state a claim and the affirmative defenses lack merit. Finally, this court lacks jurisdiction to hear MSD's counterclaims because of Eleventh Amendment immunity. Therefore, for these and other reasons established in the Memorandum in Support, this court should dismiss MSD's counterclaims against the State and strike those affirmative defenses that are based on the same or similar grounds. Respectfully Submitted, JEREMIAH W. (JAY) NIXON Attorney General /s/Joseph P. Bindbeutel JOSEPH P. BINDBEUTEL Senior Chief Counsel Agriculture and Environment Division Missouri Bar Number: 28656 P.O. Box 899 Jefferson City, MO 65102 (573) 751-8805 phone (573) 751-8796 facsimile ATTORNEYS FOR PLAINTIFF STATE OF MISSOURI Document 2Fi CERTIFICATE OF SERVICE I hereby certify that on this 20`h day of November, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which sent electronic notification to the following: Terry J. Satterlee MO Bar # 23695 Thomas J. Greyer MO Bar # 53487 SHOOK, HARDY & BACON L.L.P. 2555 Grand Boulevard Kansas City, Missouri 64108-2613 Telephone: (816) 474-6550 Telecopier: (816) 421-5547 Email: Email: Attorney for Defendant Metropolitan St. Louis Sewer District Robert F. Murray #36547 John Gianoulakis #3207 KOH7 , SHANDS, ELBERT, GIANOULAKIS & GILJUM, LLP One US Bank Plaza, 24th Floor St. Louis, Missouri 63101 Telephone: (314) 241-3963 Telecopier: (314) 241-2509 Email: Email: Co -Counsel for Defendant The Metropolitan St. Louis Sewer District Kathryn MacDonald U.S. DEPARTMENT OF JUSTICE P.O. Box 7611 Washington, DC 20044 202-353-7397 Email: _. Attorney for Plaintiff United States of America Edward J. Heisel WASHINGTON UNIVERSITY SCHOOL OF LAW One Brookings Drive Campus Box 1120 St. Louis, MO 63130 314-935-8760 Fax: 314-935-5171 Email: Attorney for Intervening Plaintiff Missouri Coalition for the Environment Foundation /s/Joseph P. Bindbeutel JOSEPH P. BINDBEUTEL