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Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141 (2000)
51 ERC 1545, 31 Envtl. L. Rep. 20,246, 00 Cal. Daily Op. Serv. 8692...
which certiorari was granted than for any other reason. society.” Sierra Club, 405 U.S. at 734, 92 S.Ct. 1361.
See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 246 n. Yet, aesthetic perceptions are necessarily personal and
12, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (Supreme subjective, and different individuals who use the same
Court may address questions outside the scope of the area for recreational purposes may participate in widely
writ of certiorari when necessary to resolve a case). varying activities, according to different schedules.
Laidlaw confirms that the constitutional law of standing
[7] Under Laidlaw, then, an individual can establish so recognizes, and does not prescribe any particular
“injury in fact” by showing a connection to the area of formula for establishing a sufficiently “concrete and
concern sufficient to make credible the contention that the particularized,” Defenders of Wildlife, 504 U.S. at 560,
person’s future life will be less enjoyable—that he or she 112 S.Ct. 2130, aesthetic or recreational injury-in-fact.9
really has or will suffer in his or her degree of aesthetic or
recreational satisfaction—if the area in question remains 9 The few environmental standing cases decided by other
or becomes environmentally degraded. Factors of circuits since Laidlaw are consistent with our
residential contiguity and frequency of use may certainly understanding of the injury-in-fact requirement. See
be relevant to that determination, but are not to be Central & South West Servs., Inc. v. United States EPA,
evaluated in a one-size-fits-all, mechanistic manner. 220 F.3d 683, 698–702 (5th Cir.2000) (individual
affiants’ injuries were too speculative to merit standing
Daily geographical proximity, for instance, may make to challenge EPA’s final rule on PCB use and disposal
actual past recreational use less important in because their alleged injuries were predicated on a
substantiating an “injury in fact,” because a person who series of hypothetical events that had not occurred);
lives quite nearby is likely to notice and care about the Friends of the Earth, Inc. v. Gaston Copper Recycling
physical beauty of an area he passes often. See Laidlaw, Corp., 204 F.3d 149, 156–60 (4th Cir.2000) (en banc)
120 S.Ct. at 704 (FOE member alleged injury in fact (an affiant who lived adjacent to a creek four miles
because “he lived a half-mile from Laidlaw’s facility; ... downstream from an alleged polluter’s discharges
he occasionally drove over the North Tyger River, and ... stated an injury in fact sufficient to confer standing on
it looked and smelled polluted”); Friends of the Earth v. an environmental group to which he belonged, while
Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cir.1985) citing with approval cases from other circuits asserting
(affiant who passed the Hudson River regularly and found different but still specific and concrete connections
its pollution “offensive to his aesthetic values” stated between the plaintiff and the area concerned in the
injury in fact). On the other hand, a person who uses an litigation); American Petroleum Institute v. United
area for recreational purposes does not have to show that States EPA, 216 F.3d 50, 64–65 (D.C.Cir.2000) (a
he or she lives particularly nearby to establish an plaintiff environmental organization lacked standing
injury-in-fact due to possible or feared environmental because an individual affiant who otherwise would
degradation. Repeated recreational use itself, have satisfied Article III standing requirements failed to
accompanied by a credible allegation of desired future show that he was a member of the organization, a
use, can be sufficient, even if relatively infrequent, to defect not here at issue.).
demonstrate that environmental degradation of the area is
injurious to that person. Id. at 705 (finding that an 3. Injury in Fact in this Case
individual who has canoed in the river and would do so [8] [9] Evaluating the record in this case in accord with
again, closer to *1150 the discharge point, were it not for Laidlaw, there is no doubt that both plaintiff organizations
the discharges has made a sufficient “injury-in-fact” have come forward with sufficient factual averments to
showing). An individual who visits Yosemite National survive summary judgment on the standing issue. Both
Park once a year to hike or rock climb and regards that Hinderyckx, a member of Mateel, and Evenson, a
visit as the highlight of his year is not precluded from member of ERF, stated longstanding recreational and
litigating to protect the environmental quality of Yosemite aesthetic interests in Yager Creek, the specific place at
Valley simply because he cannot visit more often. issue in this case. Both have used the creek for
recreational activities several times in the past, and both
This flexible approach is the only one consistent with the have alleged that Pacific Lumber’s conduct has impaired
nature of the aesthetic and recreational interests that their enjoyment of those activities. Hinderyckx, like the
typically provide the basis for standing in environmental affiants in Laidlaw, testified that he is deterred from fully
cases. As the Supreme Court has explained, “[a]esthetic enjoying Yager Creek because of his concerns about
and environmental well-being, like economic well-being, pollutants discharged from Pacific Lumber’s facilities
are important ingredients of the quality of life in our adjacent to the creek; although he likes to fish, he refrains
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