Friends of The Earth v. Gaston Copper, 4th Cir. (2000)
Friends of The Earth v. Gaston Copper, 4th Cir. (2000)
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRIENDS OF THE EARTH,
INCORPORATED; CITIZENS LOCAL
ENVIRONMENTAL ACTION NETWORK,
INCORPORATED,
Plaintiffs-Appellants,
v.
No. 98-1938
GASTON COPPER RECYCLING
CORPORATION,
Defendant-Appellee.
UNITED STATES OF AMERICA,
Amicus Curiae.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CA-92-2574-3)
Argued: October 25, 1999
Decided: February 23, 2000
Before: WILKINSON, Chief Judge, and WIDENER,
MURNAGHAN, WILKINS, NIEMEYER, LUTTIG, WILLIAMS,
MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
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Reversed and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judges Widener, Murnaghan, Wilkins,
Williams, Michael, Motz, Traxler, and King joined. Judge Niemeyer
wrote an opinion concurring in the judgment. Judge Luttig wrote an
into the water than the Act allowed in order to detect a violation of
the statute.
The centerpiece of the Clean Water Act is section 301(a). This section provides: "Except as in compliance with this section and [other
sections of the Act], the discharge of any pollutant by any person
shall be unlawful." 33 U.S.C. 1311(a). And in section 402 of the
Act, Congress established the National Pollutant Discharge Elimination System (NPDES), which authorizes the issuance of permits for
the discharge of limited amounts of effluent. Id. 1342. The availability of such permits simply recognizes "that pollution continues
because of technological limits, not because of any inherent rights to
use the nation's waterways for the purpose of disposing of wastes."
Natural Resources Defense Council, Inc. v. Costle , 568 F.2d 1369,
1375 (D.C. Cir. 1977) (internal quotation marks omitted). Permit
holders must comply not only with limitations on the amount of pollutants they may discharge, but also with a variety of monitoring, testing, and reporting requirements. See, e.g., 33 U.S.C. 1318.
Both the Environmental Protection Agency (EPA) and individual
states (with EPA approval) may issue NPDES permits. See id.
1342(a), (b). Accordingly, the State of South Carolina has established an NPDES permit program administered by the Department of
Health and Environmental Control (DHEC). See S.C. Code Ann.
48-1-10 et seq. (Law. Co-op. 1976 & West Supp. 1998).
Critical to the enforcement of the Clean Water Act is the citizen
suit provision found in section 505. 33 U.S.C. 1365. Section 505(a)
states that "any citizen may commence a civil action on his own
behalf against any person . . . who is alleged to be in violation of an
effluent standard or limitation under this chapter." Id. 1365(a). An
"effluent standard or limitation" is defined to include any term or condition of an approved permit. See id. 1365(f). Citizens are thus
authorized to bring suit against any NPDES permit holder who has
allegedly violated its permit. A successful suit may result in the award
of injunctive relief and the imposition of civil penalties payable to the
United States Treasury. See id. 1365(a).
Section 505(g) sets forth the statutory standing requirement for the
citizen suit provision of the Clean Water Act. Id. 1365(g). Specifi4
(1) injury in fact; (2) traceability; and (3) redressability. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The injury in fact
prong requires that a plaintiff suffer an invasion of a legally protected
interest which is concrete and particularized, as well as actual or
imminent. See id. at 560. The traceability prong means it must be
likely that the injury was caused by the conduct complained of and
not by the independent action of some third party not before the court.
See id. Finally, the redressability prong entails that it must be likely,
and not merely speculative, that a favorable decision will remedy the
injury. See id. at 561.
While each of the three prongs of standing should be analyzed distinctly, their proof often overlaps. Moreover, these requirements share
a common purpose -- namely, to ensure that the judiciary, and not
another branch of government, is the appropriate forum in which to
address a plaintiff's complaint. See Allen, 468 U.S. at 752.
In most kinds of litigation, there is scant need for courts to pause
over the standing inquiry. One can readily recognize that the victim
of an automobile accident or a party to a breached contract bears the
kind of claim that he may press in court. In other sorts of cases, however, the nexus between the legal claim and the individual asserting
the claim may not be so self-evident. Standing inquiry in environmental cases, for example, must reflect the context in which the suit is
brought. In some instances, environmental injury can be demarcated
as a traditional trespass on property or tortious injury to a person. In
other cases, however, the damage is to an individual's aesthetic or
recreational interests. The Supreme Court has made it clear that such
interests may be vindicated in the federal courts. See, e.g., Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 120 S. Ct. 693,
705 (2000) (effect on "recreational, aesthetic, and economic interests"
is cognizable injury for purposes of standing); Lujan v. Defenders of
Wildlife, 504 U.S. at 562-63 (purely aesthetic interest is cognizable
for purposes of standing); Sierra Club v. Morton , 405 U.S. at 734
("Aesthetic and environmental well-being, like economic well-being,
are important ingredients of the quality of life in our society . . .
deserving of legal protection through the judicial process.");
Association of Data Processing Serv. Orgs. v. Camp , 397 U.S. 150,
154 (1970) (interest supporting standing "may reflect aesthetic, conservational, and recreational as well as economic values" (internal
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Bull Swamp Creek only four miles downstream from the polluting
facility. DHEC has indicated that the runoff will reach at least as far
as the Edisto, which lies 12.5 miles beyond Shealy's property. Shealy's lake and home therefore lie more than four times closer to Gaston
Copper than the acknowledged outer perimeter of the discharge zone.
As if this were not enough, Shealy has also presented uncontroverted testimony that the types of chemicals released into the water
by Gaston Copper had been previously found in his lake. DHEC
employees visited Shealy's property in the 1980s, analyzed the water
quality of his lake, and reported the presence of copper, zinc, nickel,
iron, and PCBs. These are the same chemicals that the plant released
in its wastewater during the tenures of both Gaston Copper and its
predecessor. Although these tests were conducted before Gaston Copper took control of the facility in 1990, Gaston Copper operated the
smelting facility using a similar wastewater treatment system to that
of its predecessor. The evidence of past pollution is therefore directly
relevant to the question of whether Gaston Copper subsequently
affected or could affect Shealy's lake. Shealy's testimony that pollution of the type discharged by this system has reached his lake in the
past shows that his fears are based on more than mere speculation.
In sum, the evidence paints a stark picture: Gaston Copper has been
accused of violating its discharge permit. Its discharge affects or has
the potential to affect the waterway for 16.5 miles downstream. Wilson Shealy sits a mere four miles from the mouth of the discharge
pipe. The state has found the kinds of chemicals discharged by Gaston
Copper in Shealy's lake in the past. And federal and private studies
demonstrate the harmful environmental and health impacts of the
toxic chemicals released by Gaston Copper. When this evidence is
viewed in light of the legal threshold for standing, it is clear that the
district court erroneously dismissed plaintiffs' suit. Shealy's claim is
not a "generalized grievance" that relegates him to the status of a
"concerned bystander" with a mere abstract interest in the environment. Gaston Copper Recycling, 9 F. Supp. 2d at 600. While Shealy
is unquestionably "concerned," he is no mere"bystander." See Cedar
Point Oil Co., 73 F.3d at 556.
It is instructive to contrast Shealy's injury with the injuries alleged
by the plaintiffs in Lujan v. Defenders of Wildlife, 504 U.S. 555. In
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observe" the Mississippi River and "from time to time . . . use these
waters for recreational purposes." 883 F.2d 54, 56 (8th Cir. 1989). In
none of these cases -- where incidentally the claims of standing were
weaker than the one before us -- did the court require further specific
allegations or evidence of the actual level of pollution in the waterway.
Courts have also left no doubt that threatened injury to Shealy is
by itself injury in fact. The Supreme Court has consistently recognized that threatened rather than actual injury can satisfy Article III
standing requirements. See, e.g., Valley Forge, 454 U.S. at 472;
Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979).
"[O]ne does not have to await the consummation of threatened injury
to obtain preventive relief. If the injury is certainly impending that is
enough." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289,
298 (1979) (internal quotation marks omitted).
Threats or increased risk thus constitutes cognizable harm. Threatened environmental injury is by nature probabilistic. And yet other
circuits have had no trouble understanding the injurious nature of risk
itself. For example, in Village of Elk Grove Village v. Evans, the Seventh Circuit found standing because "[t]he Village is in the path of a
potential flood" and "even a small probability of injury is sufficient
to create a case or controversy." 997 F.2d 328, 329 (7th Cir. 1993).
Similarly, the District of Columbia Circuit in Mountain States Legal
Found. v. Glickman held that an increased risk of wildfire from certain logging practices constitutes injury in fact. 92 F.3d 1228, 123435 (D.C. Cir. 1996). And the Fifth Circuit in Cedar Point Oil Co. did
not require evidence of actual harm to the waterway, noting: "That
this injury is couched in terms of future impairment rather than past
impairment is of no moment." 73 F.3d at 556.
In this case, Gaston Copper's alleged permit violations threaten the
waters within the acknowledged range of its discharge, including the
lake on Shealy's property. By producing evidence that Gaston Copper
is polluting Shealy's nearby water source, CLEAN has shown an
increased risk to its member's downstream uses. This threatened
injury is sufficient to provide injury in fact. Shealy need not wait until
his lake becomes barren and sterile or assumes an unpleasant color
and smell before he can invoke the protections of the Clean Water
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Act. Such a novel demand would eliminate the claims of those who
are directly threatened but not yet engulfed by an unlawful discharge.
Article III does not bar such concrete disputes from court. See Lujan
v. Defenders of Wildlife, 504 U.S. at 560-61.
Gaston Copper contends that Shealy has not supplied adequate
proof of environmental degradation to show injury in fact. "The relevant showing for purposes of Article III standing, however, is not
injury to the environment but injury to the plaintiff. To insist upon the
former rather than the latter as part of the standing inquiry . . . is to
raise the standing hurdle higher than the necessary showing for success on the merits in an action alleging noncompliance with an
NPDES permit." Laidlaw, 120 S. Ct. at 704. Shealy's reasonable fear
and concern about the effects of Gaston Copper's discharge, supported by objective evidence, directly affect his recreational and economic interests. This impact constitutes injury in fact. See id. at 70506. It requires no abstraction or conjecture to understand the harm that
confronts Shealy. We therefore have no doubt that Shealy can be
counted "among the injured" for standing purposes. Lujan v. Defenders of Wildlife, 504 U.S. at 563 (internal quotation marks omitted).
The district court's error lies in asking too much-- namely, in constructing barriers to an injured citizen's vindication of indisputably
private interests in the use of his property and in the health of his family. Article III does not command such a judicial evisceration of the
Clean Water Act's protections. And separation of powers principles
will not countenance it.1
B.
CLEAN also satisfies the second prong of the standing inquiry.
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1 It is clear that CLEAN member Shealy has demonstrated injury in
fact. The claims to injury of FOE members Jones and McCullough, however, present closer questions. The district court has not had an opportunity to consider their claims in light of the Supreme Court's standing
analysis in Laidlaw, 120 S. Ct. at 704-06. We therefore remand Jones'
and McCullough's assertions of standing to the district court for evaluation in light of Laidlaw. We leave to the discretion of the district court
whether to reopen the record for further testimony on the question of
FOE's standing.
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squarely in the discharge zone of a polluting facility seems more calculated "to negate the strict liability standard of the [Clean Water]
Act" than to articulate any meaningful distinction. Powell Duffryn
Terminals, 913 F.2d at 73 n.10. CLEAN has charged that (1) Gaston
Copper exceeds its discharge permit limits for chemicals that cause
the types of injuries Shealy alleges and that (2) Shealy's lake lies
within the range of that discharge. No court has required additional
proof of causation in such a case.
C.
Finally, CLEAN has standing because a favorable decision by the
district court will redress Shealy's injuries. The redressability requirement ensures that a plaintiff "personally would benefit in a tangible
way from the court's intervention." Warth, 422 U.S. at 508. A plaintiff seeking injunctive relief shows redressability by "alleg[ing] a continuing violation or the imminence of a future violation" of the statute
at issue. Steel Co. v. Citizens for a Better Env't, 118 S. Ct. 1003, 1019
(1998); see also Laidlaw, 120 S. Ct. at 707-08 (noting that Steel Co.
held that private plaintiffs may not sue to assess penalties for wholly
past violations).
Here CLEAN seeks injunctive and other relief for Gaston Copper's
continuing and threatened future violations of its permit. Not only did
CLEAN allege continuing violations in its complaint, but over 350 of
the alleged discharge violations and over 650 of the alleged monitoring and reporting violations occurred after the complaint was filed. In
fact, some of the alleged violations occurred in 1997, the last period
for which the record contains evidence. CLEAN has sought relief for
continuing and threatened future violations at every stage of this litigation, including this appeal. We hold therefore that CLEAN presents
claims of redressable injury.2
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2 Because Shealy used a waterway adversely affected or capable of
being adversely affected by Gaston Copper's conduct, Gaston Copper's
monitoring and reporting violations also cause him injury in fact.
CLEAN alleges that these violations continue and requests injunctive
and other relief to stop them. CLEAN thus has standing to pursue its
monitoring and reporting claims under a straightforward application of
this circuit's precedent in Sierra Club v. Simkins Indus., Inc., 847 F.2d
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IV.
This case illustrates at heart the importance of judicial restraint.
Courts are not at liberty to write their own rules of evidence for environmental standing by crediting only direct evidence of impairment.
Such elevated evidentiary hurdles are in no way mandated by Article
III. Nor are they permitted by the Federal Rules of Evidence or the
text of the Clean Water Act. It is in fact difficult to see how one can
move from the section 505(g) standard of "an interest which is or may
be adversely affected" to a standard of direct scientific proof of an
observable negative impact on a waterway.
Litigants routinely rely on circumstantial evidence to prove any
number of contested issues. And if a prosecutor may rely wholly on
circumstantial evidence to prove that a criminal defendant is guilty
beyond a reasonable doubt, there is no apparent reason -- and certainly not a reason apparent from the Constitution, the Federal Rules,
or the Clean Water Act itself -- to regard this type of proof as per
se deficient for establishing standing in a Clean Water Act case. Citizens may thus rely on circumstantial evidence such as proximity to
polluting sources, predictions of discharge influence, and past pollution to prove both injury in fact and traceability. This is what Wilson
Shealy did. To require more would impose on Clean Water Act suits
a set of singularly difficult evidentiary standards.
To deny standing to Shealy here would further thwart congressional intent by recreating the old system of water quality standards
whose failure led to the enactment of the Clean Water Act in the first
place. See, e.g., Water Quality Act of 1965, Pub. L. No. 89-234, 79
Stat. 903. An important reason for Congress' shift to end-of-pipe standards was to eliminate the need to address complex questions of environmental abasement and scientific traceability in enforcement
proceedings. To have standing now turn on direct evidence of such
things as the chemical composition and salinity of receiving waters
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1109, 1112-13 (4th Cir. 1988) (defendant's failure to monitor and report
effluent discharges as required by permit causes injury in fact to plaintiff's interests in protecting environmental integrity of and curtailing
ongoing unlawful discharges into waterway).
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