PRAIRIE RIVERS NETWORK v. DYNEGY MIDWEST GENERATION, LLC
No. 18-3644
United States Court of Appeals For the Seventh Circuit
ARGUED NOVEMBER 13, 2020 – DECIDED JUNE 28, 2021
Before FLAUM, ROVNER, and BRENNAN, Circuit Judges.
We need not assess County of Maui‘s reach, however, because PRN lacks standing. PRN has more than 1000 members yet fails to show
I
A
Located five miles north of Oakwood, Illinois, the Vermilion Power Station is a retired coal-fired power plant that operated from the mid-1950s until 2011. While in operation, the station burned coal and, as a result, generated coal ash. Dynegy, which currently owns the station, and its predecessors mixed this coal ash with water, depositing it into three unlined pits: the Old East Ash Pond, the North Ash Pond System, and the New East Ash Pond. Owned and maintained by Dynegy, these pits remain inactive but currently contain 3.33 million cubic yards of coal ash. The station and the coal ash pits sit close to the Middle Fork of the Vermilion River, a navigable water protected by the Clean Water Act.
Dynegy has a National Pollutant Discharge Elimination System permit to discharge wastewater from the station‘s operations
Instead, PRN sued Dynegy over indirect discharges from the coal ash pits. According to PRN, Dynegy‘s permit does not authorize the coal ash seepage from the North Ash Pond and Old East Pond into the groundwater, which then enters the Middle Fork. These groundwater discharges, PRN contends, contain pollutants-“including, but not limited to, arsenic, barium, boron, chromium, iron, lead, manganese, molybdenum, nickel, sulfate, and total dissolved solids” - and have been occurring since at least May 2013.2 Because its individual members “live near, study, work, and recreate in and around, the Middle Fork, including in the vicinity of the Vermilion Power Station,” PRN maintains it has an interest in stopping and remedying these alleged discharges, which degrade not only the Middle Fork‘s water quality, but also its “aesthetic beauty and ecological vitality.”3 By PRN‘s account, its individual members’ “use and enjoyment of the Middle Fork,” has been, and will continue to be, harmed by the groundwater seepage into the Middle Fork.4
B
In its citizen-suit under the Clean Water Act, PRN alleged Dynegy committed two violations of
The district court agreed. Based on Oconomowoc, the district court dismissed PRN‘s suit under Rule 12(b)(1) for lack of subject-matter jurisdiction. This court held in Oconomowoc that the Clean Water Act did not govern discharges from “artificial ponds.” 24 F.3d at 966. Although “[t]he possibility of a hydrological connection” between artificial ponds and ground waters “cannot be denied,” this court concluded that “neither the statute nor the regulations makes [sic] such a possibility a sufficient ground of regulation” under the Clean Water Act. Id. Applying Oconomowoc,
PRN timely appealed. After the Supreme Court granted certiorari in County of Maui, we granted PRN‘s unopposed motion to stay appellate proceedings pending that decision. In County of Maui, the Court held that the Clean Water Act “require[s] a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters.” 140 S. Ct. at 1468. PRN and Dynegy then filed position statements based on that decision, with PRN also moving for summary reversal. We denied PRN‘s motion and set a briefing schedule. When it filed its opening brief, PRN also moved for leave to file supplemental documents, attaching declarations from several of its individual members and staff to support standing. Dynegy opposed that motion, which we took with the case for resolution.
II
Although Dynegy moved to dismiss PRN‘s suit under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, that motion concerned coverage under the Clean Water Act, not standing. On appeal, Dynegy challenges PRN‘s standing for the first time. A standing challenge under Rule 12(b)(1) typically “can take the form of a facial or a factual attack on the plaintiff‘s allegations.” Bazile v. Fin. Sys. of Green Bay, Inc., 983 F.3d 274, 279 (7th Cir. 2020). A facial attack “tests whether the allegations, taken as true, support an inference that the elements of standing exist,” and a factual attack “test[s] the existence of jurisdictional facts underlying the allegations.” Id. We construe Dynegy‘s standing challenge on appeal as a facial attack, which “require[s] only that the court look to the complaint and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction.” Apex Digit., Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (emphasis omitted). We thus accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff, PRN. Silha v. ACT, Inc., 807 F.3d 169, 173 (7th Cir. 2015). Our review is de novo. Bazile, 983 F.3d at 278.
A
Establishing standing is the plaintiff‘s burden and “must be secured at each stage of the litigation.” Bazile, 983 F.3d at 278. This is because the elements
Associational standing allows an organization to sue on behalf of its members “even without a showing of injury to the association itself.” United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 552 (1996); but cf. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982) (concluding that an organization had standing to sue in its own right based on institutional interests). To sue on behalf of its members, an association must show that: (1) at least one of its members would “have standing to sue in their own right“; (2) “the interests it seeks to protect are germane to the organization‘s purpose“; and (3) “neither the claim asserted nor the relief requested requires the participation of individual members.” Hunt v. Wash. State Apple Advert. Com‘n, 432 U.S. 333, 343 (1977); see Speech First, Inc. v. Killeen, 968 F.3d 628, 638 (7th Cir.), as amended on denial of reh‘g and reh‘g en banc (Sept. 4, 2020). This three-part test for associational standing “guarantees the satisfaction” of Article III “by requiring an organization suing as representative to include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association.” United Food, 517 U.S. at 555. Associational standing, then, is derivative of-and not independent from-individual standing. See id. (“As Hunt‘s most direct address to Article III standing, this first prong [of individual member standing] can only be seen as itself an Article III necessity for an association‘s representative suit.“).
Two seminal environmental standing cases show the limits of associational standing. In Summers v. Earth Island Institute, 555 U.S. 488, 490-92 (2009), the Supreme Court addressed, on an appeal from summary judgment, whether several environmental organizations had associational standing for an injunctive challenge to land management regulations promulgated under the Forest Service Decisionmaking and Appeals Reform Act,
Lujan is also instructive. In that case, the Court considered whether several environmental organizations had associational standing to challenge a rule concerning foreign wildlife funding promulgated under the Endangered Species Act of 1973,
To be sure, Summers and Lujan, as appeals from summary judgment, involved different stages of litigation than this case. PRN appeals here from the district court‘s grant of Dynegy‘s motion to dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction. As we have said, how standing is shown changes as the litigation progresses. Lujan, 504 U.S. at 561; Spuhler, 983 F.3d at 285. Recall also that at the pleading stage, we presume general allegations include the specific facts supporting the claim. Lujan, 504 U.S. at 561. From all this, PRN insists it has associational standing, contending that it need not provide names of any individual members at the pleading stage.
We still hold that PRN lacks associational standing. In its complaint, PRN maintains it has more than 1000 members yet fails to show at least one who has individual standing. Although “[i]ndividual members of PRN live near, study, work, and recreate in and around the Middle Fork, including in the vicinity of the Vermilion Power Station,” we do not know-based on the face of the complaint-who these members are or how exactly the alleged discharges will harm them individually. PRN speaks of its individual members only as a collective, claiming that Dynegy‘s alleged discharges have harmed, and will continue to harm, “[t]he individuals’ use and enjoyment of the Middle Fork.” But presuming that at least one of these individual members has standing to sue on their own, as PRN invites us to do
On the face of PRN‘s complaint, we cannot assure ourselves that at least one individual member-and not those individual members as a group-has standing to sue. Under the “plausibility” framework for facial standing challenges, PRN‘s associational standing allegations are akin to impermissible speculation rather than permissible presumption, thus “stop[ping] short of the line between possibility and plausibility.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Just as “generalized harm to the forest or the environment will not alone support standing,” generalized harm to a group of individual members will not do so for associational standing. Summers, 555 U.S. at 494. By failing to allege facts sufficient to show that at least one of its members could sue in their own right, PRN has failed to show that it could sue on their behalf. See Spokeo, 136 S. Ct. at 1547 (“Where a case is at the pleading stage, the plaintiff must clearly ... allege facts demonstrating each element.” (footnote and internal quotation marks omitted)).
PRN‘s position is also in tension with the Federal Rules of Civil Procedure. Allowing an association to avoid showing an individual member‘s standing at the pleading stage would effectively shift a defendant‘s Rule 12(b)(1) motion into summary judgment, permitting associational plaintiffs to proceed to discovery in nearly every case. Even though courts have “an independent obligation to assure that standing exists” at each stage, Summers, 555 U.S. at 499, a defendant should be able to make its own standing challenge as soon as the Federal Rules of Civil Procedure permit it to do so-at the pleadings, not summary judgment. See
This court came to a similar conclusion in Disability Rights Wisconsin, Inc. v. Walworth County Board of Supervisors, 522 F.3d 796 (7th Cir. 2008). After dismissal of its suit against the Walworth County Board of Supervisors for alleged unequal treatment of disabled children, Disability Rights Wisconsin-“a non-profit corporation created under Wisconsin law in order to ‘[p]ursue legal, administrative and other appropriate remedies to ensure the protection of the rights of persons with developmental disabilities or mental illness‘” - appealed the district court‘s determination that it lacked associational
A comparison to our recent decision in Shakman v. Clerk of Cook County, 994 F.3d 832 (7th Cir. 2021), where associational standing was satisfied, also shows what PRN is missing. Id. at 840-41. That case concerned a pair of decades-old consent decrees monitoring political patronage practices in Chicago. Id. at 835-37. In analyzing the associational standing of a voters organization to enforce the consent decrees, we first examined the individual standing for one of its members, George Tserotas. Id. at 840-41. Because Tserotas “ha[d] an interest in a workplace free of patronage and has sustained or faced the threat of injury-in-fact,” the voters organization met associational standing‘s first requirement that one of its members have individual standing. Id. at 841. Although Shakman had a different procedural posture, that decision underscores the importance of an individual member‘s standing to associational standing.
All told, standing for at least one individual member remains an essential component of associational standing at each stage of litigation. See United Food, 517 U.S. at 555; Hunt, 432 U.S. at 343. True, in Disability Rights Wisconsin, Inc., this court noted that the requirement for an individual member to have standing “still allows for the member on whose behalf the suit is filed to remain unnamed by the organization.” 522 F.3d at 802 (citing Doe v. Stincer, 175 F.3d 879, 882 (11th Cir. 1999)). We reserve for another day whether that statement survives Summers, which followed Disability Rights Wisconsin, Inc. and Stincer. Indeed, other courts have read Summers to expressly require names for associational standing on the pleadings. See, e.g., Draper, 827 F.3d at 3 (noting, on an appeal from a motion to dismiss, that for associational standing, “the association must, at the very least, ‘identify [a] member[] who ha[s] suffered the requisite harm.‘“” (alterations in original) (quoting Summers, 555 U.S. at 499)); S. Walk at Broadlands Homeowner‘s Ass‘n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013) (explaining, on an appeal from a motion to dismiss, that a homeowners association had “failed to identify a single specific member” and that “[t]his failure to follow the requirement articulated in Summers would seem to doom its representational standing claim” while rejecting attempts to evade Summers). But even without names, PRN has failed to show associational standing on the face of its complaint.
B
When PRN filed its opening brief, it moved for leave to file documents and attached supplemental declarations from several of its individual members and staff. In a footnote in Summers, the Supreme Court declined to consider the same type of documents submitted here. 555 U.S. at 495 n.* (“After the District Court had entered judgment, and after the Government had filed its notice of appeal, respondents submitted additional affidavits to the District Court. We do not consider
But PRN misapprehends its standing burden. Even though PRN faults Dynegy for not challenging standing in the district court, the plaintiff, not the defendant, must establish standing “at each stage of the litigation.” Bazile, 983 F.3d at 278; see Warth v. Seldin, 422 U.S. 490, 518 (1975) (“It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court‘s remedial powers.“). And like any other plaintiff, PRN “is the master of [its] own complaint.” Mordi v. Zeigler, 870 F.3d 703, 707 (7th Cir. 2017). So we take PRN at its word: If it could have filed similar supplemental declarations (or even made similar allegations in the complaint) at the pleading stage, then it should have done so. See Summers, 555 U.S. at 500 (noting that
In other words, Dynegy‘s failure to challenge standing in the district court does not excuse PRN‘s lack of standing on the face of its complaint and does not permit PRN to supplement that complaint on appeal. Cf. Am. Bottom Conservancy v. U.S. Army Corps of Eng‘rs, 650 F.3d 652, 656 (7th Cir. 2011) (“[A] plaintiff, to establish Article III standing to sue, must allege, and if the allegation is contested must present evidence, that the relief he seeks will if granted avert or mitigate or compensate him for an injury-though not necessarily a great injury-caused or likely to be caused by the defendant.” (emphasis omitted)). As discussed, even without contest in the district court, PRN‘s complaint is facially deficient as to associational standing. In its motion for leave to file declarations, which came at the same time as its opening brief, PRN even recognized the standing defect in its complaint: “To meet its burden to demonstrate Article III standing before this Court, Prairie Rivers Network seeks leave to file the attached declarations as a supplement to the appellate record.”5 Like the Court in Summers, we will not let PRN “remedy the defect retroactively” after the district court entered final judgment. 555 U.S. at 495 n.*
Our conclusion is also in harmony with the plain text of
If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the record has been forwarded; or
(C) by the court of appeals.
III
For these reasons, we DENY Prairie River Network‘s motion for leave to file documents and AFFIRM on different grounds the district court‘s dismissal for lack of jurisdiction. A jurisdictional dismissal is without prejudice, Lewert v. P.F. Chang‘s China Bistro, Inc., 819 F.3d 963, 969 (7th Cir. 2016), so PRN may file a new complaint.