Rumors of Conley's Demise Have Been Greatly Exaggerated: The Impact of Bell Atlantic Corporation V. Twombly on Pleading Standards in Environmental Litigation

By Detterman, Brook | Environmental Law, Winter 2010 | Go to article overview

Rumors of Conley's Demise Have Been Greatly Exaggerated: The Impact of Bell Atlantic Corporation V. Twombly on Pleading Standards in Environmental Litigation


Detterman, Brook, Environmental Law


  I. INTRODUCTION
 II. PLEADING STANDARDS: PURPOSE AND EVOLUTION
     A. Evolution of the Federal Pleading Standards
     B. Conley v. Gibson: A Landmark Decision
     C. Post-Conley Judicial Efforts to Elevate Pleading Standards in
        Complex Fields
        1. Antitrust Litigation
        2. Civil Rights Claims
        3. Environmental Law
        4. Distinguishing Procedure, Substance, and Prudential Concerns
III. BELL ATLANTIC V. TWOMBLY
     A. Conscious Parallelism Evidentiary Standards
     B. Clarifying Pleading Standards Under Conley
     C. The Interaction Of Antitrust Substance and Procedure
     D. Parsing Twombly
 IV. THE IMPACT OF TWOMBLY ON ENVIRONMENTAL LAW PRACTICE AND PROCEDURE
     A. CERCLA Claims
     B. Command and Control Statutes
     C Common Law Claims and Toxic Torts
  V. CONCLUSION

I. INTRODUCTION

If Conleys "no set of facts" language is to be interred, let it not be without a eulogy. (1)

If there was truth in the assertion that Conley v. Gibson (2) rang the death knell of pleadings practice in federal courts, (3) the Supreme Court's decision in Bell Atlantic Corporation v. Twombly has allayed any such fears. In Twombly, the Court abrogated Conleys venerable "no set of facts" language (4) and dismissed the plaintiffs' Sherman Act (5) claim because they had not "nudged their claims across the line from conceivable to plausible." (6) In doing so, the Court cast doubt on what plaintiffs must plead to survive a motion to dismiss for failure to state a claim upon which relief can be granted, and revived what was perhaps becoming a lost art--the pleadings practice.

Or did it? The Twombly court itself claimed no intention to elevate pleading standards above those required by the Federal Rules, (7) which mandate only a "short and plain statement showing that the pleader is entitled to relief." (8) Nor, in fact, could it. As the Court admits, a modification of generally applicable civil pleading standards can occur only through congressional amendment of the Federal Rules. (9) Nonetheless, by announcing a shift away from the Conley Court's liberal interpretation of Rule 8(a), the Court has potentially created what is variously referred to as a new "plausibility" (10) or "notice-plus" (11) standard for pleading in federal courts. This possibility is magnified by the Court's recent decision in Ashcroft v. Iqbal, (12) which declares that Twomblys discussion of pleading standards is applicable to all civil cases. (13) One thing is certain: With over 12,000 citations by lower courts in the year following the decision, in a wide range of contexts, (14) Twombly merits consideration by the cautious litigator.

Caution is especially warranted in the environmental law arena. Although Twombly was a Sherman Act antitrust case, the procedural nature of the decision leaves the door open to its application in other substantive areas. (15) The primary prudential concerns driving the Twombly majority were the threat of costly discovery and judicial efficiency, (16) factors that are highly relevant in complex environmental claims where causation is at issue. Past decisions also indicate a judicial tendency to place environmental claims alongside antitrust and civil rights claims in that unhappy cadre of cases periodically subjected to elevated pleading standards. (17)

This Note examines the Twombly decision and its application to civil environmental claims, arguing first that the decision does not create a new general pleading standard under the Federal Rules, but instead redefines the elements that a plaintiff must plead to state a claim for relief in a Sherman Act section 1 conspiracy case grounded on a theory of conscious parallelism. Second, even if the Court did indicate a shift in its interpretation of pleading standards in certain cases, the prudential concerns underlying antitrust claims do not extend to the environmental context because environmental plaintiffs have fewer incentives to file unmeritorious claims, and because both statutory and common law claims have well-defined elements that are amenable to limited discovery and early summary judgment motions, in sharp contrast to the highly generalized language and broad mandate of the Sherman Act. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Rumors of Conley's Demise Have Been Greatly Exaggerated: The Impact of Bell Atlantic Corporation V. Twombly on Pleading Standards in Environmental Litigation
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.