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
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. …