The opinion of the court was delivered by: J. Phil Gilbert, District Judge
This matter comes before the Court on defendant Syngenta Crop Protection, Inc.'s ("Syngenta"), Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) (Doc. 22). Because parts of the motion request dismissal for lack of subject matter jurisdiction, Federal Rule of Civil Procedure 12(b)(1) is also relevant. The plaintiffs have responded to the motion (Doc. 68). In addition, Syngenta has submitted supplemental authority (Doc. 102), and the plaintiffs have responded to that authority (Doc. 104).
The plaintiffs, who are all providers of water to the public, are obligated under the Safe Drinking Water Act, 42 U.S.C. § 300f et seq., and the regulations promulgated thereunder, to test the finished water -- that is, the water after the plaintiffs have processed it from their raw water -- they provide to the public to ensure it does not contain contaminants in concentrations that exceed maximum contaminant levels ("MCLs") deemed acceptable by the United States Environmental Protection Agency ("EPA"). One of the contaminants that can be found in raw water is atrazine, an herbicide used by farmers. The MCL for atrazine is 3 parts per billion ("pbb") on an average annualized basis. See 40 C.F.R. § 141.50(b). The best available technology to remove atrazine from raw water is a granular activated carbon ("GAC") filtration system. See 40 C.F.R. § 142.62.
The plaintiffs filed this lawsuit alleging that Syngenta manufactured atrazine and sold it to farmers knowing it had great potential to run off of crop land and into bodies of water, including the bodies of water from which water providers like the plaintiffs draw their raw water. The plaintiffs seek to hold Syngenta and its parent company, Syngenta AG, liable for the costs they have incurred to test and monitor levels of atrazine and to remove it from their raw water. They also seek to recover the costs that will be required for each plaintiff to construct, install, operate and maintain a GAC filtration system, or its equivalent, to filter atrazine from its raw water in the future, and to collect punitive damages. They assert state law causes of action for trespass onto their rights to possess the raw water (Count 1), public nuisance by unreasonably interfering with their use and enjoyment of their raw water sources (Count II), strict liability for manufacturing, marketing and selling an unreasonably dangerous product (Count III) and negligence for breaching various duties to the plaintiffs to avoid contaminating their raw water sources (Count IV). The plaintiffs plead their complaint as a class action.
Syngenta asks the Court to dismiss the plaintiffs' claims against it on the grounds that the plaintiffs do not have standing to bring this action because they have suffered no injury from Syngenta's actions. It also seeks to chip away at individual claims because they are have no merit under certain states' laws and to dismiss claims for damages based on future events or based on events that occurred more than five years before the plaintiffs filed this lawsuit.
The plaintiffs counter all Syngenta's arguments except one -- that Indiana law, which would apply to the claims of plaintiffs City of Jasper, Indiana, and Indiana-American Water Company, does not provide a cause of action for strict products liability for design defects.
The Court addresses each argument in turn, beginning, of course, with the issue of standing.
The doctrine of Article III standing is a component of the Constitution's restriction of federal courts' jurisdiction to actual cases or controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see U.S. Const. art. III, § 2. Standing contains three elements:
First, the plaintiff 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, not conjectural or hypothetical. . . . Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court. . . . . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Id. at 560-61 (internal citations, quotations and footnotes omitted). The party asserting federal jurisdiction bears the burden of establishing it "with the manner and degree of evidence required at the successive stages of the litigation." Id. at 561 (citing Lujan v. National Wildlife Federation, 497 U.S. 871, 883-89 (1990)). Thus, at the pleading stage, the plaintiffs must sufficiently allege facts to support their standing to sue. Syngenta's standing challenge centers on the plaintiffs' pleading of the first element -- injury in fact.
The Court considers Syngenta's standing argument under Federal Rule of Civil Procedure 12(b)(1) because it challenges the Court's subject matter jurisdiction. When considering a motion to dismiss under Rule 12(b)(1), the Court "must accept as true all well-pleaded factual ...