Page 238 - California Stormwater Workshop Handouts

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...
from fishing in the creek because of concerns about
pollution, and he is less likely to swim at some places
along the creek than he used to be. And both Hinderyckx
and Evenson, like the affiants in Laidlaw, expressed an
interest in participating in recreational activities in and
around Yager Creek in the future, and in continuing to
enjoy the beauty of the area.10
10 The district court also suggested that for an
organization to obtain standing based on a single
member’s allegations, the individual asserting an injury
to an aesthetic or recreational interest in a natural
resource must have regular or “continuous” contacts
with the resource. 61 F.Supp.2d at 1058. However,
Laidlaw clarifies that there is no such requirement. In
Laidlaw, the Supreme Court found that the Sierra Club
had standing even though, at least so far as the Court
tells us, the only Sierra Club member submitting an
affidavit for standing testified only to canoeing once on
the affected river some 40 miles from the challenged
discharges of pollutants. 120 S.Ct. at 705. If the sole
affiant could have brought a citizen suit as an
individual, then he has stated an injury in fact sufficient has already suffered physical injury, but allow her to
to confer standing on an organization that seeks to sue
on his behalf. Hunt requires nothing more. 432 U.S. at
343, 97 S.Ct. 2434.
*1151 Like the affiants on whom standing was based in
Laidlaw, then, Hinderyckx and Evenson “use the affected
area and are persons for whom the aesthetic and
recreational values of the area will be lessened by the
challenged activity.” Laidlaw, 120 S.Ct. at 705 (internal
citations omitted). We conclude that ERF and Mateel
have standing to sue based on the injuries alleged by
Hinderyckx and Evenson.
4. Other Standing Issues Raised in this Appeal
[10] One last point requires mention: Pacific Lumber
argues that the plaintiffs lack standing because they have
demonstrated neither actual environmental harm to Yager
Creek itself, nor that the company caused any such harm.
As the district court correctly recognized, however, see 61
F.Supp.2d at 1055, the threshold question of citizen
standing under the CWA is whether an individual can
show that she has been injured in her use of a particular
area because of concerns about violations of
environmental laws, not whether the plaintiff can show
there has been actual environmental harm. See Laidlaw,
120 S.Ct. at 704; Friends of the Earth, Inc. v. Gaston
Copper Recycling Corp., 204 F.3d 149, 163–64 (4th
Cir.2000) (en banc). This is so for at least two reasons.
[11] First, under many environmental protection statutes,
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harm to the environment need not ever be proved; the
Clean Water Act allows citizen suits based on violations
of any conditions of an NPDES permit, even those which
are purely procedural. See 33 U.S.C. § 1365(f)(6) (citizen
suit may allege violation of permit or condition thereof);
33 U.S.C. § 1318 (outlining procedural requirements of
NPDES permits, including reporting, monitoring, and
record-keeping). As the Laidlaw Court explained,
requiring a plaintiff to demonstrate actual environmental
harm in order to obtain standing would, in many Clean
Water Act lawsuits, compel the plaintiff to prove more to
show standing than she would have to prove to succeed
on the merits. 120 S.Ct. at 704. Requiring the plaintiff to
show actual environmental harm as a condition for
standing confuses the jurisdictional inquiry (does the
court have power under Article III to hear the case?) with
the merits inquiry (did the defendant violate the law?).
Second, Laidlaw recognized that an increased risk of
harm can itself be injury in fact sufficient for standing.
The “irreducible constitutional minimum” conditions for
standing do not require a plaintiff to demonstrate that she
obtain standing based on an injury that is “imminent, not
conjectural or hypothetical.” Laidlaw, 120 S.Ct. at 704
(quoting Defenders of Wildlife, 504 U.S. at 560–61, 112
S.Ct. 2130); see also Gaston Copper, 204 F.3d at 160. In
the wake of Laidlaw, for example, the en banc Fourth
Circuit held that an affiant sufficiently alleged injury in
fact under the Clean Water Act when the defendant’s
alleged NPDES permit violations threatened the
environmental quality of waters adjoining the affiant’s
property, although the plaintiff environmental
organizations had not produced evidence of actual
environmental degradation. Gaston Copper, 204 F.3d at
155–61. As the Gaston Copper court cogently explained,
to require actual evidence of environmental harm, rather
than an increased risk based on a violation of the statute,
misunderstands the nature of environmental harm, and
would undermine enforcement of the Clean Water Act:
The Supreme Court has
consistently recognized that
threatened rather than actual injury
can satisfy Article III standing
requirements.... Threatened
environmental injury is by nature
probabilistic. And yet other circuits
have had no trouble understanding
the injurious nature of risk itself....
[A plaintiff] need not wait until his
lake becomes barren and sterile or
assumes an unpleasant color and
smell before he can *1152 invoke
10