Page 239 - 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...
the protections of the Clean Water
Act.
Id. at 160 (internal citations omitted).
Mateel and ERF have clearly alleged that Pacific Lumber
has violated conditions of its NPDES permits at Yager
Camp and Carlotta.11 Hinderyckx and Evenson have
demonstrated that Pacific Lumber’s alleged conduct has
impaired their aesthetic and recreational interests in Yager
Creek. Each has averred that he enjoys the area less than
he otherwise would, and is reluctant to swim and fish
there, because of concerns about the effects of pollutant
discharges from Pacific Lumber’s facilities adjoining the
creek. They need not prove to a scientific certainty that
Pacific Lumber has, in fact, discharged pollutants in
violation of its permits in order to obtain standing; this,
as just explained, is one of the merits questions in the
case.
11 Pacific Lumber has argued that the plaintiffs did not
claim that the company was discharging pollutants in
violation of its NPDES permit. Appellee’s Ans. Brf. at
19 n. 10. This assertion is puzzling, because both
complaints at issue in this case do, in fact, allege
various discharges of pollutants in violation of the
General Permit at the Carlotta Mill (First Amd. Cplt. at waters before it occurs. It requires no attenuated chain of
13; Cplt. at 10–11) and Yager Camp (First Amd. Cplt.
at 18; Cplt. at 16–17), in addition to many other
violations of permit conditions.
[12] [13] Pacific Lumber further argues that the plaintiffs
have failed to demonstrate that their asserted injuries are
fairly traceable to any conduct by the company. We
disagree. The issue in the causation inquiry is whether the
alleged injury can be traced to the defendant’s challenged
conduct, rather than to that of some other actor not before
the court. See Defenders of Wildlife, 504 U.S. at 560, 112
S.Ct. 2130 (quoting Simon v. Eastern Kentucky Welfare
Rights Organization, 426 U.S. 26, 41–42, 96 S.Ct. 1917,
48 L.Ed.2d 450 (1976)); cf. American Petroleum Institute
v. United States EPA, 216 F.3d 50, 66–68 (D.C.Cir.2000)
(plaintiffs failed to show causation in challenge to EPA
rule governing hazardous wastes where their asserted
injury relied on speculation that particular facilities would
actually introduce the pollutants into the air).12 Thus, the
causal connection put forward for standing purposes
cannot be too speculative, or rely on conjecture about the
behavior of other parties, but need not be so airtight at this
stage of the litigation as to demonstrate that the plaintiffs
would succeed on the merits. See, e.g., Public Interest
Research Group of New Jersey, Inc. v. Powell Duffryn
Terminals, Inc., 913 F.2d 64, 72 (3d Cir.1990).
© 2015 Thomson Reuters. No claim to original U.S. Government Works.
12 American Petroleum concerned a direct challenge to an
EPA regulation exempting several specific pollutants
from being classified as hazardous wastes under the
Resource Conservation and Recovery Act. 216 F.3d at
62. In that context, it was important to the standing
inquiry that the asserted pollution be fairly traceable
both to the substances covered by the challenged
regulation, and not to some other pollutants, and to the
facilities that the plaintiffs complained about. Id. at
65–68. The plaintiffs’ failure to show the actual or
imminent presence of those specific substances,
coupled with mere speculation that particular facilities
would actually release those substances, was therefore
fatal to their bid for standing. The Clean Water Act, in
contrast, not only regulates actual water pollution, but
embodies a range of prophylactic, procedural rules
designed to reduce the risk of pollution. It is not
necessary for a plaintiff challenging violations of rules
designed to reduce the risk of pollution to show the
presence of actual pollution in order to obtain standing.
Hinderyckx and Evenson have claimed that their
enjoyment of various activities they take part in on Yager
Creek and waterways downstream is lessened due to
Pacific Lumber’s alleged violations of various provisions
of the Clean Water Act designed precisely to prevent the
irreparable environmental degradation of the nation’s
conjecture, and no presumptions that other actors will
behave in any particular way, to link Pacific Lumber’s
alleged illegal conduct to Hinderyckx’s and Evenson’s
diminished enjoyment of Yager Creek. Therefore, we
conclude that Hinderyckx and Evenson *1153 have
satisfied the causation element of Article III standing.
III.
Other Asserted Bases for Affirmance
Pacific Lumber suggests that even if we disagree, as we
do, with the district court’s grant of summary judgment in
its favor on standing grounds, we should for other reasons
affirm the district court’s dismissal of the case. See, e.g.,
First Pacific Bank v. Gilleran, 40 F.3d 1023, 1024–25
(9th Cir.1994) (district court judgment may be affirmed
on any ground supported by the record). Specifically,
Pacific Lumber maintains, first, that the case became
moot when the 1997 General Permit went into effect six
months after the plaintiffs filed their complaint based on
the 1992 General Permit, and second, that the plaintiffs’
Yager Camp 60–day notice letter was defective. Neither
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