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Friends of the Earth v. Gaston Copper Recycling Corp.

Citation: 29 ELR 21213
No. No. 98-1938, 179 F.3d 107/48 ERC 1641/(4th Cir., 06/02/1999) rev'd

The court holds that environmental groups lacked standing to pursue Federal Water Pollution Control Act (FWPCA) claims against a smelting facility that allegedly violated its national pollutant discharge elimination system (NPDES) permit. The groups alleged that the facility violated the FWPCA by exceeding the effluent limitations of its permit for certain pollutants, by failing to comply with certain monitoring and reporting requirements, and by failing to comply with the schedule of compliance with respect to its permit's effluent limitations.

The court first holds that the groups failed to establish injury-in-fact. Although the members' recreational and economic interests are legally protectable, the evidence failed to establish that the waters they recreated in or used were actually, or in imminent threat of being, adversely affected by pollution. The court then holds that, even assuming that the groups' members suffered injury-in-fact, the groups failed to establish that the alleged injuries were fairly traceable to the smelting facility's conduct. The groups offered no evidence that the allegedly affected waterways contained effluents of the type that the smelting facility discharges. Moreover, the distances between the facility and the waterways used by the groups' members is simply too great to infer causation.

A dissenting judge would hold that the groups demonstrated standing. The judge argues that the majority encroaches on congressional authority by erecting standing hurdles so high as to effectively excise the FWPCA's citizen suit provision.

Counsel for Plaintiffs
Bruce J. Terris
Terris, Pravlik & Millian
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant
Harold W. Jacobs
Nexsen, Pruet, Jacobs & Pollard
1441 Main St., 15th Fl., Columbia SC 29202
(803) 771-8900

Before Williams, J., with Wilkinson, J., dissenting