Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.

EARTH, THE INCOR FRIENDS OF

PORATED; Local Environ Citizens Network, Incorporated,

mental Action

Plaintiffs-Appellants, COPPER RECYCLING

GASTON

CORPORATION, Defendant-

Appellee. America,

United States Curiae.

Amicus

No. 98-1938. Appeals,

United Court of States

Fourth Circuit.

Argued 1999. Oct.

Decided Feb. Terris, Terris, Bruce

ARGUED: J. L.L.P., Millian, Washington, & Pravlik Smith, D.C., Rufus Justin Appellants. for Justice, Department United States D.C., Amicus for Curiae. Washington, Pruet, Jacobs, Nexsen, Weinberg Harold L.L.P., Columbia, Pollard, South & Jacobs Carolina, BRIEF: Appellee. ON Terris, Millian, Mil- L. Pravlik & Kathleen D.C.; lian, L.L.P., Washington, Robert Carolina, Guild, Columbia, Ap- South Schiffer, Lois J. Assistant Attor- pellants. Goldman, General, David ney S. Greer Shilton, Department of Jus- United States tice, D.C., for Amicus Curiae. Washington, WILKINSON, Judge, Chief Before: MURNAGHAN, WIDENER, NIEMEYER, LUTTIG, WILKINS, MOTZ, WILLIAMS, MICHAEL, TRAXLER, KING, Judges, Circuit HAMILTON, Judge. Circuit Senior by published and remanded Reversed wrote opinion. Judge Chief WILKINSON WIDENER, Judges opinion, which MURNAGHAN, WILKINS, WILLIAMS, MICHAEL, MOTZ, TRAXLER, and joined. Judge NIEMEYER wrote KING judgement. in the opinion concurring opinion wrote an Judge LUTTIG in which concurring judgment, in the joined. Judge Judge NIEMEYER Senior opinion concurring HAMILTON wrote an judgment. OPINION WILKINSON, Judge: Chief (FOE) and Citi- Friends of the Earth Action Network zens Local Environmental (CLEAN) brought against a citizen suit un- Copper Recycling Corporation Water Act. 33 U.S.C. der Clean 1997). (1994 Supp. §§ & Ill 1251-1387 allege that Gaston Plaintiffs discharging variety pol- illegally been waterway. lutants into a South Carolina Shealy, a member who Wilson CLEAN a lake four miles downstream owns Copper’s facility, testified from Gaston him illegal discharges caused of his family to reduce their use lake. The Clean Water Act therefore shifted federal, CLEAN also submitted various the focus of federal enforcement efforts state, and studies private as evidence that from water quality to direct standards lim pollutants released itations on the pollutants— adversely Shealy’s affected or threatened i.e., “effluent limitations.” See 33 U.S.C. lake. The district dismissed 1311; § Natural Resources Coun Defense case, holding plaintiffs lacked stand- cil, EPA, 1314, (9th Inc. v. 915 F.2d 1316 they ing because had not demonstrated Cir.1990). previous Whereas the scheme in Dismissing fact. sufficient required of proof actual to a body of action, however, congres- encroaches on violation, water to Congress establish authority erecting sional barriers to now a regime instituted of liability strict as high so to frustrate citizen illegal See, pollution discharges. e.g., enforcement of Clean Water Act. We Utils., United States Winchester Mun. CLEAN, Shealy, and hence hold (6th Cir.1991). 301, F.2d 944 304 Govern standing to sue. We thus reverse the regulators ment were therefore freed from judgment and remand for a determination the “need precise search for a [to] link whether discharged of pollution between quality” and water pollutants excess of its limits. enforcing pollution Rep. S. controls. No. 92-414, 8, reprinted 1972

I. Rather, they U.S.C.C.A.N. at 3675. could simply company determine whether a was A. emptying pollutants more into the water Congress enacted the Federal Water than the Act allowed order to detect a Pollution Control Act Amendments of violation of the statute. 1972, better as the known Clean Water of the centerpiece Clean Water Act Act, chemical, “to restore and maintain the 301(a). is section provides: This section biological physical, integrity “Except compliance inas with this section 1251(a). § Nation’s waters.” 33 U.S.C. Act], [other sections of the the dis- legislation major This constituted “a charge any pollutant by any person shall change in the enforcement mechanism of 1311(a). § unlawful.” 33 U.S.C. And pollution the Federal water pro control Act, Congress in section 402 of the estab- gram.” American Petroleum Inst. v. lished the National Pollutant Discharge Train, (10th Cir.1975) 1344 F.2d (NPDES), Elimination System which au- (internal omitted). quotation marks Prior thorizes the of permits issuance for the the focus federal efforts to discharge of limited amounts effluent. pollution abate water was measurement of § availability Id. 1342. The per- such See, quality receiving e.g., waters. simply recognizes mits pollution “that con- Quality

Water Act of Pub.L. No. 89- limits, tinues because of technological not 234, 79 Stat. But the great difficulty 903. because of rights inherent to use the reliable, in establishing precise limitations waterways nation’s purpose of dis- solely quality based on water posing wastes.” Natural Resources De- targets led to substantial enforcement Council, Costle, Inc. v. 568 F.2d problems. See EPA v. ex rel. fense California (D.C.Cir.1977) (internal quota- Bd., Water State Resources Control tion marks Permit holders must 202-03, L.Ed.2d (1976). comply fact, with limitations on the quali the use of water amount pollutants they ty discharge, standards a control mechanism was “inadequate every variety monitoring, found to be but also with a vital re test- See, spect.” (1971), ing, reporting No. Rep. requirements. e.g., S. § reprinted in 1972 U.S.C.C.A.N. 3674. U.S.C. Lexington County, South Carolina. ty Protection

Both the Environmental (with (EPA) con- and individual states treats Agency plant, At NPDES per- approval) EPA issue it into water and releases taminated storm (b). 1342(a), § Accordingly, mits. See id. Watson, impoundment on Gaston Lake South Carolina established the State of property. Lake Watson’s over- permit program administered an NPDES discharged into the environ- is then flow and Environ- Department of Health by the Branch, tributary by way Boggy ment (DHEC). See S.C.Code mental Control Swamp Swamp Bull Bull Creek Creek. (Law. Coop. §§ seq. et Ann. 48-1-10 into the North Fork in turn flows Supp.1998). & West River, which lies 16.5 miles down- E disto the Clean enforcement of Critical point. the discharge from stream provision suit Act is the citizen Water op- the Copper purchased When Gaston § in section 505. 33 U.S.C. found facility by was covered eration 505(a) “any may citizen states that Section to permit DHEC the an NPDES issued action on his own behalf a civil commence reissued plant’s previous owner. DHEC alleged ... to any person who is against with an effec- permit Copper to Gaston or of an effluent standard violation chapter.” permit Id. 1991. This limitation under this tive date of March 1365(a). limi- § An standard or “effluent Copper to waste- allowed Gaston term or to include tation” is defined quantities pol- limited containing water an id. approved permit. condition lutants, cadmium, iron, including copper, 1365(f). thus authorized to § Citizens are nickel, PCBs, zinc, lead, mercury, and permit bring against any NPDES suit Boggy Branch. from Lake Watson into allegedly per- has violated its holder who permit imposed pH limits as well. mit. A successful suit result permit and The terms conditions injunctive imposi- relief and the award of monitoring reporting included the and penalties payable to the United tion civil discharges. Copper Gaston was effluent 1365(a). § Treasury. See id. States required abide also to schedule statutory 505(g) sets forth the Section meeting limita- compliance for its effluent requirement the citizen suit tions. Act. Id. of the Clean provision .Water Plaintiffs FOE and are two CLEAN Specifically, § it defines “citizen” 1365(g). organizations environmental non-profit having person persons “a interest as protecting improving affected.” dedicated to adversely which is or provi indicated Congress Id. One of quality of resources. natural enforce the Clean sion confers “to objectives stated combat and FOE’s full allowed Act extent Water pollution.” water CLEAN exists eliminate County Constitution. See Middlesex Sew up environ- “to clean South Carolina’s erage Auth. National Sea Clammers and to Carolinians “educat[e] ment” South Ass’n, 453 U.S. affecting them environmental issues about (1981) (citing Rep. S. Conf. L.Ed.2d ways those is- as citizens address (1972), reprinted No. at 146 sues.” 3776, 3823, complaint tiffs’ for lack of standing, hold- he pollution, about would fish his lake ing plaintiffs’ of none members had often, more eat the he catches more fish injury shown in fact. See Friends of often, family and allow his to swim Earth, Inc. Copper v. Gaston Recycling lake alleges more often. He also that the (D.S.C.1998). Corp., F.Supp.2d 9 589 A actual or threatened pollution diminishes panel divided of affirmed the of property. the value his has judgment. district court’s See Friends of people heard refer to lake as “the Earth, v. Inc. Recy- polluted pond.” (4th Cir.1999). cling Corp., 179 F.3d 107 Guy a Jones is of both FOE member granted rehearing en We banc and now CLEAN. He presi- is the owner and reverse. of company dent a canoe that runs on trips the Edisto River. claims that his Jones II. concern that polluting is enjoyment the Edisto River affects his of A. canoeing and swimming. He also claims that his concern quality about water Article III of the Constitution restricts compa- undermines his confidence in his adjudication the federal courts to the of ny’s ability trips market its to the gen- “cases” “controversies.” The thresh- public. eral of requirement “perhaps old Jr., McCullough, William is a member of important” justicia- the most condition of FOE who scuba dives the Edisto River. 737, 750, bility. Wright, Allen v. U.S. 468 He claims he is concerned that the (1984). 104 82 S.Ct. L.Ed.2d 556 waters into which he dives contam- inquiry plain- The standing ensures that a McCullough particularly inated. trou- tiff a personal sufficient stake possible presence heavy bled dispute judicial appro- to render resolution metals. He that he states would be less 750-51, priate. See id. at S.Ct. likely to dive that he into water knows standing requirement The also “tends to contain pollutants. questions legal presented assure that the resolved, 14, 1992, not in September

On FOE and the court will be debating society, atmosphere CLEAN filed a citizen suit in the United rarefied States in a factual context District Court for the District but concrete conducive pursuant appreciation South Carolina to a section 505 realistic of the conse- In brought. the suit is Forge context which judicial Valley action.” quences instances, injury environmental can College v. Americans United some Christian for State, Inc., trespass as a traditional on Church and be demarcated Separation of 464, 472, person. 70 L.Ed.2d injury or tortious property U.S. (1982). cases, however, damage is to an other aesthetic recreational inter individual’s minimum for To meet the constitutional it Court made ests. allege personal must standing, plaintiff “[a] may be vindicated clear that such interests fairly injury traceable the defendant’s See, e.g., in the federal courts. Friends of likely to allegedly unlawful conduct and Earth, Inc. Laidlaw Envtl. Servs. Allen, by the relief.” requested redressed — (TOC), Inc., U.S. -, This 104 S.Ct. 3315. U.S. (2000) (effect 145 L.Ed.2d 610 “re (1) inju- formula includes three elements: creational, aesthetic, and economic inter (3) (2) fact; traceability; and re- ry purposes cognizable ests” is dressability. Lujan v. Defenders of standing); Lujan 555, 560-61, 112 Wildlife, 504 U.S. Defenders of (purely S.Ct. 2130 (1992). cognizable pur interest aesthetic requires plaintiff that a suf- prong fact Morton, standing); poses of Sierra Club v. inter- legally protected fer an invasion of (“Aesthetic 734, 92 particularized, which is est concrete well-being, like econom environmental actual imminent. See id. at well as important ingredients ic are well-being, traceability prong 112 S.Ct. 2130. The society life in our ... de quality likely must be was means it legal protection through ju serving complained conduct of and caused process.”); Data Pro dicial Association independent action of some 150, cessing Orgs. Camp, Serv. 397 U.S. third not before the court. See id. party (1970) 827, 90 25 L.Ed.2d S.Ct. redressability Finally, prong the entails (interest standing “may reflect supporting likely, merely not it must be and aesthetic, conservational, and recreational will speculative, that favorable decision (internal quo as well as economic values” injury. the at remedy See id. omitted)). But because these tation 2130. S.Ct. may and other noneconomic interests be prongs the three of stand- While each of shared, widely Supreme the Court has cau distinctly, their ing analyzed should be must plaintiffs tioned that environmental Moreover, proof overlaps. these re- often injured.” “among be Sier themselves quirements purpose— share a common Morton, ra Club judiciary, namely, ensure otherwise, 1361. If it were the Arti government, not another is the branch controversy requirement cle III or case appropriate forum in which to address a meaningless would be reduced to a formal Allen, plaintiffs complaint. See 468 U.S. ity. 104 S.Ct. 3315. there examine the alle- litigation, In most kinds of is scant Courts must therefore “to pause standing gations need for over the such cases ascertain whether courts readily inquiry. recognize plaintiff can is entitled an particular One adjudication particular as- of an accident or a claims victim automobile Allen, U.S. at party to a breached contract bears the serted.” may press scrutiny necessary kind claim that in court. Such filter he however, cases, abstractly truly In afflicted from the dis- other sorts of the nexus duty by legal claim the individual tressed. this between Courts “Is asserting asking questions the claim not be so self- such as: abstract, appropriate, too or Standing inquiry evident. environmen- otherwise cases, judicially cognizable? considered Is example, tal must reflect the illegal organization the line of causation between representational standing (1) conduct and too attenuated? Is the when at least one of its members would obtaining standing (2) relief have sue in prospect right; from his own organization specu- as a result of a favorable too seeks to ruling protect interests plaintiff germane organization’s lative?” Id. If the can to the purpose; show that (3) his claim neither claim to relief free from excessive asserted nor the abstraction, attenuation, sought relief requires participation undue and unbri- individual speculation, dled members places the Constitution lawsuit. See Washington Hunt v. Apple no further State plaintiff barriers between the Adver. Comm’n, 333, 343, 432 U.S. adjudication rights. (1977). B. FOE and CLEAN representa- assert tional standing on behalf of their members meeting addition to the “irreducible” who been harmed or threatened by minimum, Lujan constitutional v. Defend Copper’s discharge. parties ers U.S. at this case contest whether the first 2130, an satisfy any individual must also prong of representational standing i.e.,— statutory requirements standing before any whether member of FOE or CLEAN bringing earlier, As suit. noted the citizen standing- individual been satis- —has provision suit of the Clean Act con Water fied. any fers standing “person persons having an interest which III. § adversely affected.” 33 1365(g). U.S.C. The district court held that FOE and The language chosen Congress confers CLEAN lacked under Article III category potential on a “broad they because failed to establish that plaintiffs” who “can claim some sort of their members an injury fairly suffered threatened, injury,” be it actual or econom traceable to alleged per- ic or noneconomic. National Sea Clam mit violations. The pointed to the mers, 101 S.Ct. 2615. supposed absence certain of evi- types Court recognized Na- presented dence: “No evidence was con- grant tional Sea Clammers that cerning the chemical content of the water- standing the outer reaches limits of Article ways by affected facility. defendant’s (“It 16, III. Id. at 101 S.Ct. 2615 is clear any evidence of salinity No increase in the Report from the Senate Conference that negative of the waterways, other phrase this by Congress was intended to change ecosystem in waterway persons allow suits by possessing all stand- presented.” Copper Recy- was ing under in this Court’s decision Sierra cling, 9 F.Supp.2d 600. The district Morton.”). Thus, v. Club if a Clean Water court therefore concluded that evi- “[n]o Act plaintiff meets the constitutional re- presented any plaintiff dence was that quirements standing, ipso then he facto adversely has by member been affected statutory satisfies the as well. threshold conduct.” defendant’s Id. We disagree. surpassed CLEAN has

C. the threshold that Article III Finally, an establishing association have Clean Water Act set for standing controversy. to Shealy sue federal court either case or Wilson is a injury on an organization based to the an example classic who individual has right its own as the representative injury of its suffered an environmental fact members have been fairly who harmed. See to a traceable defendant’s conduct Seldin, 490, 511, Warth v. likely 95 and to redressed the relief be (1975). sought. An The trial court erred therefore Co., v. Cedar Point Oil to Sierra Club creating evidentiary barriers Cir.1996) (5th (internal quo F.3d require does not Constitution omitted); fact, marks see also Conserva tation In Congress has not embraced. v. Costan tion North Carolina Council precisely invited branch has legislative Cir.1974) (“The (4th zo, F.2d The brought CLEAN. type suit or sub injury great claimed need not liberty impede judicial is not at to branch trifle, stantial; if an actual identifiable on the merits. its resolution (internal genuine, gives standing.” rise to omitted)). marks quotation A. then examine each proceed

We in plainly has demonstrated Shealy in of the three elements He has evidence of jury produced in fact. pre requirement in fact quiry. waterway threatened actual or merely generalized with cludes those legally protected he inter which has to vindicate grievances bringing from suit whose property est. owner public. to the entire an interest common path lake of Gaston lies and his fam discharge. toxic chemical He Defenders of 575, 112 A plaintiff S.Ct. 2130. this ily fish in lake. swim and legally an of a family suffer invasion he and his swim less must instead testified that is “concrete and in fish the lake because protected interest and eat less from Cop ac particularized” bring pollution he can from Gaston before of his fears of Shealy further Id. 2130. He must exceedances. per’s tion. 112 S.Ct. pollu or threat differentiate himself from claims somehow of his prop find conduct tion diminished the value people mass of who objectionable erty. Indeed, complains others referred to which he words, In “the polluted pond.” in an abstract sense. other lake as alleged injury plaintiff “must affect the fact, Shealy alleged precisely way.” Id. at personal in a and individual injuries Congress in types of those re n. 112 S.Ct. 2130. this Without prevent by enacting tended Clean judicial process quirement, the federal well-recognized Act. One of the Water transformed into “no more than a would be the Act is ensure that aims of the vindication of the value vehicle for waterways are “fishable and nation’s bystanders.” Val interests of concerned See, e.g., Shanty Town As swimmable.” Forge, 454 U.S. at ley EPA, 843 F.2d Partnership socs. Ltd. (internal (4th Cir.1988). Congress pro provide pro “for the requirement goal in fact also claimed fish, shellfish, allegations propagation tection blocks suit those whose conjecture provide! rath ] mere and and recreation are based on wildlife 1251(a)(2). § an threatened and on the water.” 33 U.S.C. er than actual or invasion “injury- Lu And it is well legally protected interests. See established their by by jan required solely Article III exist 504 U.S. at Defenders jurisdiction creating legal rights, the virtue of statutes S.Ct. 2130. Federal standing.” injury merely of which creates alleged lie if the is invasion cannot Warth, in at 95 S.Ct. 2197 ingenious academic “an exercise omitted). (internal quotation marks More United States v. conceivable.” Students over, Regulatory developed Proce Gaston Challenging Agency DHEC (SCRAP), 669, 688, statutory a pursuant limits to com dures 412 U.S. (1973). health, fish, protect public and But mand to and allow recreational activities degree. of kind and not of wildlife to standard is one 1312(a). § Indeed, not be on the water. See 33 U.S.C. the claimed “need are health and recreational interests an identifiable trifle will suffice.” These large, cognizable formation, to constitutionally recognized as leads rust in which turn de- See, Laidlaw, e.g., in fact. grades bases for quality aesthetic of the lake. 705; Morton, at Sierra Club v. at 186. disruption J.A. And S.Ct. 1361. acceptable level a pH waterway may increase toxicity of certain chemicals anything roving is thus but fish. See J.A. 482-83. seeking environmental ombudsman right wrongs wherever he environmental Plaintiffs submitted further evi might person find them. He a real is who dence Gaston Copper’s permit excee- proxim owns a real home and lake close dances could and did cause environmental ity Copper. to Gaston These facts un with, degradation. To begin many of Ga- questionably differentiate from the ston Copper’s discharge limits were es general public. company’s discharge tablished DHEC in order to attain concrete, violations affect the particular particular quality. water Because these legal ized rights specific of this citizen. discharge are set restrictions at the level brings private He his this suit vindicate necessary protect the designated uses family’s and interests his well-be receiving waterways, their violation ing public some ethereal interest. —-not necessarily means that these uses presented We in turn are with issue See, harmed. e.g., Public Group Interest “traditionally thought be capable of res Rice, Jersey, New Inc. v. F.Supp. through judicial process.” olution Al (D.N.J.1991). 317, 328 This fact was con len, (inter 468 U.S. at 104 S.Ct. 3315 firmed employee DHEC called nal the stand Gaston Copper at trial: Further, presented ample CLEAN has assumed, [Q:] not, And it’s also it is Shealy’s evidence that fears are reasonable if you do not meet those [water- conjecture. and not based on mere limits, quality-based discharge] you may replete with record evidence that Gaston interfering with the designated uses fouling receiving waters. waterways? of those Plaintiffs discharge submitted monitoring [A:] That’s correct. reports spanning years more than four [Q:] And if designated therefore use Copper’s operations. They allege is swimming you don’t meet those reports these show over 500 violations limits, you may very interfering well be limits, of the company’s includ- safety with the swimming that wa- cadmium, ing copper, unlawful releases of terway? iron, lead, zinc, well pH as viola- tions. correct. [A:] That’s addition,

Plaintiffs also offered evidence forty-one failed EPA expert form of studies testimony forty- whole toxicity effluent tests in the of the adverse health and environmental nine months between March 1991 and effects of example, these chemicals. For March 1995. These tests consisted copper particularly aquatic placing toxic to or- organisms small effluent sam- ganisms prevent spawning and can ples counting fish. the number that sicken. Appendix See Joint eight toxicity 439. Human And at least of these failures beings are days sensitive to lead poisoning, samples were based taken on which in can result company allegedly irreversible brain dam- when its the violated age neurological to children and other im- Even the company’s effluent limits. own pairment. See J.A. at 448. Cadmium quantities studies showed elevated of cad- mium, is variety lead, also toxic and cause a copper, mercury of in and sedi- humans, health in problems including facility’s receiving can- ment taken from the cer. J.A. at 412-15. Iron waters and is unnatural concentrations chronically aquatic toxic to organisms Cop- metals in the tissue of fish. and Gaston in plant the thus chemicals that released permit violations bear direct same

per’s waterway’s during the health. wastewater tenures both relationship to its .the Al- Copper predecessor. its and Gaston Moreover, af- Copper’s discharge Gaston though these tests were conducted before signifi- for a or can affect the waters fects facility the control of Copper took Gaston parties distance downstream. cant the Copper operated Gaston that the from stipulated overflow smelting facility using a similar wastewa- Branch, a Boggy into pours Lake Watson system prede- of its ter treatment that Creek, Swamp tributary of Bull which past pollution The evidence of cessor. Yet plain- the Edisto River. empties into directly question therefore relevant to the stipulated than the tiffs offer far more Copper subsequently of whether Gaston the flow the description of downstream Shealy’s lake. or could affect affected During period the comment water. Shealy’s testimony that the permit, officially DHEC Copper’s Gaston by system has type discharged responded writing one downstream past lake in the that his reached his shows question as follows: property owner’s specu- are than mere fears based more [Q:] property Swamp I where Bull own lation. River, like goes the Edisto and I’d into know, go the runoff that far? would sum, paints pic- In the evidence a stark -Yes, go Boggy the runoff will

[A:] Copper ture: has been accused of Gaston Swamp Branch to Bull to the Edisto violating discharge permit. Its dis- Bull Swamp River. The confluence of charge potential the to affect affects Edisto River is 16.5 miles. [the] waterway for downstream. the 16.5 miles Shealy sits a mere from Wilson four miles purpose dictates that the Common sense pipe. mouth discharge the just was determine how far question the has found the of chemicals state kinds Copper’s discharge Gaston downstream discharged by Shealy’s Copper Gaston property affect owners. And would private past. lake And federal implication response clear DHEC’s the harmful studies demonstrate environ- can im- discharges that Gaston impacts mental and health toxic receiving pact waterway good by Copper. chemicals released past Shealy’s downstream —well distance light evidence is When this viewed property and on down to the Edisto River legal it standing, threshold for is clear Swamp fed Bull Shealy’s itself. lake is erroneously the district court dis- from Creek four miles downstream plaintiffs’ Shealy’s missed suit. claim is facility. has indicated polluting DHEC “generalized grievance” not a that rele- will as far as runoff reach least of a gates him to status “concerned Edisto, beyond lies 12.5 miles which bystander” with mere abstract interest lake Shealy’s property. Shealy’s Copper Recy- in the environment. Gaston therefore lie more than four times home cling, F.Supp.2d at 600. While closer to Gaston than the acknowl- “concerned,” is no mere unquestionably he edged perimeter outer Co., “bystander.” See Cedar Point Oil zone. F.3d at 556. if enough, Shealy As this were not Shealy’s inju- presented testimony It is instructive to contrast also uncontroverted injuries alleged ry plain- of chemicals released into with the types had tiffs in the water been Defenders of previously lake. found DHEC em- U.S. 119 L.Ed.2d case, Shealy’s ployees property visited Defenders Wildlife 1980s, challenge government analyzed quality sought regula- the water of his lake, Endangered Spe- that rendered the reported presence copper, tion iron, zinc, nickel, inapplicable PCBs. cies Act to American actions and These are

159 557-558, day” id. 112 enjoy nations. See at “some intends to foreign in the use of his Rather, group lake. he is owner property S.Ct. 2130. Two members in alleged foreign path had traveled to of a toxic they injury whose ongoing. the habitats of cer He is thus precisely type countries observed endangered species. plaintiff Supreme tain id. at See envi Court They professed also an in 112 S.Ct. 2130. sioned Defenders of Wildlife— return countries at who namely, intent to to those some one acting protect a seeing time in the hope indefinite future “threatened interest of his” concrete own. 563-64, 8, 112 at the animals themselves. See id. 504 U.S. at 573 n. S.Ct. 2130. feared, 112 S.Ct. 2130. The members court, however, required The district however, that American involvement in de plaintiffs present further evidence velopment projects damage abroad would concerning one or more of the following: habitats, species’ thereby ex risking (1) “the chemical content waterways causing tinction and harm. members (2) facility”; affected the defendant’s 563, 112 id. See at S.Ct. 2130. “any in salinity increase of the water (3) ways”; Court the case Supreme negative change dismissed “other in of standing plaintiffs ecosystem for lack because waterway.” allegations Copper Recycling, members’ were insufficient to 9 at F.Supp.2d 600. injury in at establish fact. See id. But the require Court does not Laidlaw, proof. S.Ct. 2130. The members failed to such at S.Ct. 704- damage the species show how would the Court that several found citizen injury produce attesting imminent to themselves. affidavits to reduced use of a They waterway See id. at 112 S.Ct. 2130. could out of reasonable fear con any injury “apart pollution “adequately not demonstrate from cern of documented special subject.” their interest in the Id. fact.” Each of the citizens al (internal quotation leged at greater S.Ct. that he she would make omitted). day” marks Their “some inten recreational part use of some of the affect they waterway tions to return to the areas had visit ed were not it for their concern enough. simply ed were not id. at about the harmful See effects the defen rejected discharges. S.Ct. 2130. Court also a dant’s id. The Court re variety connecting quired no theories distant evidence actual harm to plaintiffs impact waterway, on endangered noting: areas have held that en “We species “ingenious plaintiffs allege as academic vironmental adequately exercise[s] in jury they they the conceivable.” at in fact Id. when aver that use (internal persons the affected area and are ‘for expansive The most of these theories whom the aesthetic and recreational values recognized injury would have fact to the area will be lessened’ chal “anyone lenged activity.” (quoting who observes works with Id. Sier Morton, anywhere endangered species, ra Club v. 1361). resulting single project

world” from “a affecting species with portion some Nor has circuit required additional which he has no more specific connection.” proof scientific where there was a direct 567, 112 Id. and the nexus between claimant area contrast,

Shealy, by impairment. need not resort of environmental In Cedar Co., hypothetical example, such harms to demonstrate Point the Fifth Oil Cir- asserting cuit fact. He held that citizens’ concern about water philosophical quality Bay mere academic or interest Galveston sufficed protection of the South water- in fact where of the affiants “[t]wo Carolina live ways all Copper’s pollu- Bay affected near Galveston of them use the merely he he bay tion. Nor does claim that for recreational activities.” 73 F.3d at 160 risk thus consti enough that affiants ex- Threats increased It was “the

556. harm. Threatened envi cognizable ... tutes that will pressed fear the is injury probabilistic. nature enjoyment ronmental their of these activities impair have had no trouble yet And other circuits dependent are because these activities understanding injurious nature of risk quality.” Id. upon good water example, Village Elk itself. For Likewise, in the Earth v. Friends of Evans, v. Cir Village Grove Seventh Corp., Consolidated Rail Second Cir standing Village “[t]he cuit found because “quite found that two citizen affidavits cuit flood” and potential is in the of a path satisfy standing threshold.” adequately injury is probability a small suffi “even Cir.1985). (2d In the first 768 F.2d 61 controversy.” 997 cient to a case or create affidavit, passes stated that “he citizen (7th Cir.1993). Similarly, F.2d 329 regularly find[s] Hudson [River] the District of Columbia Circuit Moun to [his] in the river offensive pollution v. held Legal States Found. Glickman tain (internal quotation values.” Id. aesthetic an increased risk of wildfire from that omitted). second, a In the father marks practices injury constitutes logging certain in the that his children swim “averred (D.C.Cir. in fact. 92 F.3d 1234-35 river, occasionally in the fishes son 1996). the Fifth Circuit Cedar And family and will continue river and his require did not evidence of Point Oil Co. along to the river.” Id. And picnic waterway, noting: to actual harm Metropolitan St. Louis United States injury “That this in terms of is couched Dist., approved Eighth Sewer Circuit im past future rather than impairment whose standing group citizens’ pairment is of no moment.” 73 F.3d cross, “visit, they alleged members 556. frequently Mississippi observe” case, Copper’s alleged In this ... use and “from time to time these River permit violations threaten the waters with- purposes.” waters l-ecreational range of acknowledged its dis- (8th Cir.1989). F.2d In none Shealy’s charge, including the lake on incidentally the claims these cases—where property. producing that Ga- By evidence weaker than the one were be polluting Shealy’s nearby is ston require spe further fore us—did the source, CLEAN has shown an in- water allegations cific or evidence of the actual creased member’s downstream risk waterway. level of injury uses. This threatened is sufficient injury Shealy in fact. not provide need no have also left doubt Courts until his lake barren and wait becomes injury threatened itself unpleasant color and sterile or assumes an injury in fact. The Court has can protections smell before he invoke the consistently recognized that threatened Act. novel Clean Water Such satisfy injury rather than can Arti actual eliminate the claims of demand would See, e.g., cle III requirements. directly who are threatened but not those Valley Forge, 454 U.S. yet engulfed by discharge. an unlawful 752; v. Village Gladstone Realtors Bell Article III does not bar such concrete wood, 91, 99, disputes from court. Defend- (1979). L.Ed.2d does “[0]ne ers U.S. at threatened await the consummation of If injury preventive to obtain relief. certainly impending contends that adequate proof of enough.” supplied Babbitt v. Farm Work not environ- United Union, 289, 298, show in fact. degradation ers Nat’l 99 mental (1979) (internal showing purposes relevant of Ar- “The however, standing, III is not ticle 1992) but to the plaintiff. (quoting the environment Public Interest Group of Jersey, New Inc. v. upon Duffryn former rather than the Powell To insist Termi nals, Inc., (3d Cir.1990)). 913 F.2d part standing ... is inquiry latter as certainty standard, If scientific were the standing higher hurdle than raise plaintiffs then be required would to supply necessary showing for success costly, proof strict of causation to a in an meet alleging noncompliance merits action jurisdictional Laidlaw, requirement threshold permit.” with an NPDES —even where, here, the asserted cause ac of Shealy’s S.Ct. at reasonable fear and tion require does not itself proof. such Cop- concern about the effects Gaston Thus, “fairly traceable” standard by objective per’s discharge, supported ev- “ ‘not a equivalent requirement of tort idence, directly affect his recreational and ” causation.’ Id. (quoting Duffryn Powell impact economic interests. This consti- Terminals, 72). at F.2d Other circuits injury in tutes fact. See id. 705-06. It have interpret refused to it as such. See requires conjecture no abstraction Co., 557-58; Cedar Point Oil 73 F.3d at the harm that confronts Shea- understand Council, Natural Resources Inc. ly. doubt that Shea- We therefore no Defense Inc., Mktg., Texaco & 2 F.3d ly injured” can Ref. “among be counted (3d Cir.1993); Duffryn Powell Termi Lujan v. purposes. Defenders nals, 913 F.2d at 72-73. 563, 112 Wildlife, 504 U.S. at (internal omitted). The Rather than pinpointing origins in asking district court’s error lies too molecules, particular plaintiff a “must namely, constructing barriers to merely show that a defendant discharges much— an injured citizen’s of indisput- vindication pollutant that causes contributes to the ably private interests use his injuries alleged” kinds of specific property family. the health of Watkins, his geographic area of concern. (internal judi- Article III not command does such F.2d at 980 quotation marks cial evisceration Clean Water Act’s In way plaintiff demon- protections. separation powers particular And strates that a dis- defendant’s principles charge potential will not countenance it.1 has affected or has the

affect his interests. See id. at 980-81. B. CLEAN has satisfied this stan prong CLEAN also satisfies the second already dard. Much of the evidence cited inquiry. “fairly trace Shealy’s injury proves in fact also requirement able” ensures there is a traceability Copper. tes Gaston genuine plaintiffs injury nexus between a tified past presence to the of metals in his and a alleged illegal defendant’s conduct. type discharged lake of the Gaston Wildlife, 504 Copper. Plaintiffs have also submitted Defenders of 560, 112 U.S. at 2130. But traceabili toxicity tests that show Gaston “ ty plaintiffs ‘does not mean that must discharging pollutants levels that cause certainty show to scientific that defen addition, degradation. environmental ... dant’s effluent caused the precise plaintiffs submitted evidence com ” plaintiffs.’ harm suffered Natu discharge will 16.5 miles pany’s travel Council, ral Resources Inc. v. beyond downstream —well the four-mile Defense Watkins, (4th point Shealy’s Shealy’s F.2d 980 n. 7 Cir. lake. testi- 1. It is clear that CLEAN We member 704-06. therefore remand McCullough's demonstrated in fact. claims to Jones’ and assertions of stand- ing light of FOE Jones members and McCul- to the district court for evaluation in however, lough, present questions. closer We leave to the discretion Laidlaw. opportunity reopen The district court has not had an district whether record light testimony question to consider their claims in of the Su- for further on the of FOE's Laidlaw, preme standing analysis standing. Court’s objective gation complicated evidence issues scientific mony, buttressed DHEC, inju- entirely ques- collateral to the establishes that fact that are from thus namely, fairly Copper. Congress traceable to tion wished ries are resolved— per- a defendant has exceeded its whether Moreover, suggestion is no there mit limits. entity than other re “fairly In traceable” applying in fact that injury for the responsible course, distinction, quirement, of some “fairly Shealy has established. The trace plaintiffs between who lie must be made requirement large part designed able” polluter a discharge within the zone of injury complained of is to ensure far that those who are so downstream independent action of “not the result of injuries fairly cannot be traced their the court.” party some third before Compare Friends that defendant. at Wildlife, 504 U.S. of Defenders of Earth, (internal Inc. v. Crown Cent. Petroleum 560, 2130 Cir.1996) (5th 358, Corp., 95 361-62 F.3d plaintiff a has Where “too (finding eighteen-mile distance polluting to a source as the seed of pointed causation”), polluting large to infer with Friends injury, and the owner of the Earth, Co., 900 supplied culprit, no alternative Inc. v. Chevron Chem. source has (E.D.Tex.1995) a requirement F.Supp. (finding can be “fairly traceable” is the case fairly said to be met. This distance sufficient to show two-to-four-mile held, causation). away here. we has shown As But to turn citizen who must, course, in fact. squarely discharge This of a sits zone something. to someone or “to polluting facility attributable seems more calculated Shealy points polluting a definite liability the strict negate standard namely, sup any [Clean Act” than to articulate Water] source— —and objective ports this contention with evi meaningful Duffryn distinction. Powell Terminals, no Copper points to other dence. Gaston F.2d n. 10. at 73 CLEAN (1) polluting response. source in Its efforts to charged that ex traceability Shealy’s injury contest its limits chem discharge ceeds for facility to its therefore fail. types injuries that icals cause the Shea (2) ly alleges Shealy’s lake lies “fairly We transform the decline to range discharge. of that No within requirement into the kind of traceable” cau required proof court has additional inquiry scientific that neither the sation such a case. Congress Court nor intended. The ab- analysis the chemi- laboratory sence of C. content, ecosystem cal salinity, Shea- ly’s simple Finally, is of moment for one be lake no CLEAN require reason: The law does not such cause favorable decision the district injuries. Shealy’s evidence. Article III the mini- court will redress While sets standing, redressability requirement that a requirements Congress mum for ensures exacting plaintiff “personally more in a impose entitled stand- would benefit ing requirements tangible way the vindication of fed- from the court’s interven Warth, if it statutory eral wishes. Here the 95 S.Ct. rights tion.” A legislature go plaintiff seeking injunctive full of 2197. relief chose to extent conferring standing redressability by III in on a con “alleging] Article shows may tinuing “an interest is or violation or the imminence of person with which adversely future violation” of at issue. affected.” 33 U.S.C. the statute Env’t, Clammers, § 453 Steel a Better 1365(g); National Sea Co. Citizens for 2615. To have L.Ed.2d stand- U.S. (1998); Laidlaw, ing hinge anything on more in see also Clean (noting Water Act case necessitate the liti- 707-08 Steel Co. held would apparent Constitution, not sue to private plaintiffs assess son from the violations). wholly past Rules, penalties Federal the Clean Water Act regard itself—to type proof per injunctive Here CLEAN seeks and oth- se establishing standing deficient for in a continuing er relief for Gaston Clean Water Act case. Citizens thus per- and threatened future violations its rely circumstantial evidence such as allege continu- mit. Not did CLEAN sources, proximity to polluting predictions ing complaint, violations but over 350 discharge influence, past violations and over alleged prove both alleged monitoring report- 650 of fact and traceabili- ing complaint ty. occurred after the This is violations what Wilson did. To fact, some of the alleged was filed. require more impose would on Clean Wa- period violations occurred in the last ter Act singularly suits a set of difficult for which the record contains evidence. evidentiary standards. sought continuing CLEAN has relief for deny standing To to here would every and future threatened violations congressional by further thwart intent re- stage litigation, including of ap- this this creating the system quality old of water

peal. hold therefore that CLEAN We standards to whose failure led the enact- injury.2 claims of redressable presents of ment Act Clean Water in the first See, place. e.g., Quality Water Act

IV. of No. Pub.L. 903. An im- Stat. impor- This case illustrates at heart the portant reason for Congress’ shift to end- judicial tance of restraint. are not Courts of-pipe standards was to eliminate the' to liberty write their own rules of evi- complex questions need address envi- of standing by dence for environmental cred- ronmental abasement scientific and tracea- iting only impairment. direct of evidence bility proceedings. enforcement To evidentiary Such elevated hurdles are turn standing now on direct evidence way by no mandated Article III. Nor are of things composition such as the chemical they permitted by the of Federal Rules salinity and receiving of waters would or of Evidence the text Water Clean legislative throw federal efforts to control Act. It in fact difficult to see how one judi- 505(g) water into a time warp by can move from the section standard “an cially previous statutory of interest which is or reinstating adverse- re- ly affected” to a of standard direct scienti- gime standing the form of escalated fic proof negative impact of observable requirements. en- Courts would become waterway. on a meshed scientific discussions abstruse standing questions compli- as a assumed Litigants rely routinely on circumstan- danger cated life of their own. This prove any tial evidence to number of con- case, very in- illustrated this where the tested if a prosecutor issues. And stations, of depth discussion control macro- rely on wholly circumstantial evidence to sampling, milligrams per invertebrate and a prove guilty that criminal defendant is doubt, beyond kilogram has taken us far afield from the a reasonable there is no apparent certainly straightforward reason —and not a Clean Act rea- Water issue waterway adversely application precedent a Because used of this in Sier- circuit’s Indus., capable being adversely Inc., affected affected ra F.2d Club Simkins conduct, Copper's Copper's (4th Cir.1988) (defendant's 1112-13 monitoring reporting violations also report failure monitor and effluent dis- injury alleges cause him in fact. CLEAN that charges required as causes requests injunc- these violations continue and plaintiff’s protecting fact interests in envi- stop tive and other relief them. CLEAN integrity curtailing ongoing ronmental of and pursue monitoring thus its discharges waterway). unlawful into reporting straightforward under claims injury, have not subjective Copper has violated

whether Gaston belief they “personally suf- [have] shown permit limitations. or threatened fered some actual III is built law Article “[T]he putatively illegal conduct result separa- idea of single basic idea—the fairly the defendant Allen, 468 U.S. at powers.” tion of challenged action.” can be traced to infring- avoid 3315. Courts must Forge College v. Ameri- Valley Christian ing principle by reaching either be- Separation Church and cans United for 454 U.S. ab- yond jurisdictional limitations decide Inc., State, by refusing to questions or decide stract (1982) (citations Congress adjudi- cases that wants concrete omitted). These internal a concrete con- presents cated. This case Article III as- requirements minimal with no troversy in which courts are left not re- legal issues would sured Congress’ but to other choice effectuate “in of a atmosphere the rarifled solved intent. To expressed language and clearly debating society.” Id. The Court Shealy’s claims bar the courthouse door to Valley Forge that federal recognized citi- private injury would undermine the “publicly courts are funded forums Water Act. provision zen suit Clean public grievances the ventilation judgment We therefore reverse jurisprudential refinement of understand- court remand this case for district 752; Id. at see also ing.” determination of whether Gaston v. Defenders its discharged pollutants in excess of 112 S.Ct. L.Ed.2d permit limits. (1992) (standing essential and is “an AND REMANDED REVERSED case-or-controversy unchanging of the part sepa- Article requirement of III” the NIEMEYER, concurring Judge, Circuit powers). ration judgment concurring in and in the the my Judge Luttig’s in As concurrence opinion Judge Luttig: indicates, I that opinion believe the deci- follow, I For the that concur in reasons in represents change in Laidlaw sea sion Luttig’s join the con- judgment Judge in standing principles, and constitutional opinion. curring I that we are agree view of decision concept standing The of constitutional required now to reverse. judicial power

lies at the heart of the LUTTIG, Article III of the Judge, conferred courts Circuit with whom concurring Niemeyer joins, Constitution. As the articulation of Judge relaxed, the standing requirement scope judgment: power expands, moving of Article III it to court, judgment I concur in the position it could where be exercised Through in fault of opinion. but not its no legislation simply be- resolve contests over court, Supreme recent de this Court’s disagree interpreta- citizens with its cause Earth, in Inc. cision Friends of trend, this tion. With continuation of Services, Inc., Laidlaw Environmental ultimately a super- courts would become — U.S. -, 693, 145 L.Ed.2d legislative body, arbitrating the conflicts (2000), much of the dis has rendered citizenry generally. views of opinion merely in un today’s cussion affirmatively confusing. necessary, Before the Court’s recent deci Supreme but (as Earth, sion Friends Inc. v. Laid than in fiction we do persist Rather — Servs., Inc., U.S. -, opinion) law 120 in the that Laidlaw was Envtl. court’s (2000), I part standing jurispru of the fabric L.Ed.2d 610 would case, the time of argument have affirmed the district court this case dence at (as do) also that decision plaintiffs, expressed because who or worse we Sheppard, Department merely Lisa unexceptional reaffirmation of Public was Safety Agent, Danny Contreras, I De precedents, would previous of the Court’s partment Safety Agent, of Public De judg- simply reverse the district court’s fendants-Appellees. reasoning specific ment on Su- say preme Laidlaw and little else. Court No. 99-40160. implication left by unfortunate United States Court of Appeals, significant court’s to address the failure Fifth Circuit. change in environmental doctrine Feb. 2000. Supreme

worked Court’s recent (and Rehearing Rehearing decision in the court’s En Laidlaw Banc comfortable, mistaken, Denied March assumption but Supreme prior Court’s decisions to Laidlaio dictated the conclu- themselves today),

sion we reach is that the district seriously application in its erred doctrine extant the time

that it it ruled —which did not.

HAMILTON, Judge, Circuit Senior

concurring judgment: Court’s decision Earth,

Friends Inc. Laidlaw — (TOC), Inc., -, Envtl. Servs. (2000), 145 L.Ed.2d

unnecessarily opened flood-

gates, “a rendering standing inquiry our

sham,” J., (Scalia, id. 120 at 715 However,

dissenting). being bound Servs.,

Laidlaw Envtl. I concur in the judgment reversing

court’s the district judgment remanding

court’s the case

for a determination to whether Gaston discharged pollutants in excess

of its limits. WALLACE, doing

Joe business as Liquidators,

Video Plaintiff-

Appellant, WELLBORN,

Michael E. al., Defendants,

et notes 1972 U.S.C.C.A.N. which Shealy a member Wilson of CLEAN term “citizen” in the Water Clean family four miles down- who lives with Court’s Act reflects the decision Copper’s facility. from Gaston Morton, stream in Sierra Club v. (1972)). Shealy property on this since has resided lake 1964. His land contains 67-acre B. by damming Swamp that was created Bull fish, swim, Shealy family and his Creek. Copper op- owns and Defendant Gaston Shealy smelting Specifically, in the lake. metals facili- and boat erates non-ferrous approxi- he in the lake They claims that fishes Clean Water Act. alleged that mately every it other week and swims in repeatedly Gaston had violated the per year. occasionally twice He eats about terms and permit conditions its NPDES fish that he catches the lake. Fur- facility. at its Gaston Specifically, plain- ther, Shealy’s with grandchildren, who live tiffs claimed that Gaston had ex- summer, him the swim and fish in the permit’s ceeded its discharge limitations nearly every day. lake summer occasions, on numerous failed observe permit’s monitoring reporting re- pollution claims that quirements, and failed meet its schedule threat from Copper’s of compliance. sought Plaintiffs declarato- upstream facility adversely affected ry injunctive prevent relief to further enjoyment family’s his and his use and violations, as the imposition He limits the well lake. amount of time of civil penalties and costs. family that his in the lake swims because polluted. of his concern that the water is Nearly years six after suit was filed and He limits the quantity also of fish that trial, after a six-day bench the district they eat out of fear that declined rule merits lodged chemicals have in the fish. plain- case. The court instead dismissed if states that it were not for this concern

Case Details

Case Name: Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 23, 2000

Citation: 204 F.3d 149

Docket Number: 98-1938

Court Abbreviation: 4th Cir.