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Sierra Club v. SCM Corp.

ELR Citation: 14 ELR 20890
Nos. Nos. 84-7241, -7261, 747 F.2d 99/21 ERC 1898/(2d Cir., 10/29/1984) Aff'd

The court rules that an organization with an interest in water pollution control lacks standing to bring a citizen enforcement action under §505 of the Federal Water Pollution Control Act (FWPCA) absent allegations that the group or some of its members were in fact injured as a result of the defendant's pollution. The court reads the legislative history to incorporate in §505 the constitutional standing requirement of an injury-in-fact found by the Supreme Court in Sierra Club v. Morton, 2 ELR 20192. Fragments of legislative history cited by Sierra Club in support of a less-restrictive requirement are consistent with Sierra Club v. Morton, because they concern the nature of the interest injured, not the necessity of an injury-in-fact. Congress intended to allow §505 suits by parties with noneconomic interests, e.g., aesthetic or conservationist concerns, but not to do away with the requirement that the plaintiff show an actual injury to that interest caused by the defendant's illegal pollution. The court holds that Sierra Club's general allegations—that it has members living in the area of defendant's factory who use the polluted stream and others nearby for recreation—fail to establish standing, because they do not specify any injury caused by defendant's pollution. The court declines to consider Sierra Club's argument that to identify specific members injured would violate their First Amendment rights of association by subjecting them to burdensome discovery requests and appearance demands. Sierra Club failed to raise the issue in the district court and thus waived it. Since the Sierra Club made clear below that it would not provide additional information, the court also rejects its request to revise the complaint. To do so at this stage would violate the final judgment rule.

Counsel for Plaintiff
Anthony Z. Roisman
Trial Lawyers for Public Justice
2000 P St. NW, Washington DC 20036
(202) 463-8600

Counsel for Defendant
Ragna Henrichs, Richard M. Cogen, M. Kathryn Sedor, Judy A. Toyer
Nixon, Hargrave, Devans & Doyle
Lincoln First Tower, Rochester NY 14603
(716) 546-8000

Counsel for Amici Curiae
Robert Abrams, Attorney General; Kathleen Liston Morrison
Department of Law, Capitol, Albany NY 12224
(518) 474-7330

William B. Ellis, William L. Rosbe, K. Dennis Sisk
Hunton & Williams
P.O. Box 1535, Richmond VA 23212
(804) 788-8200

Before Pierce and Markey,* JJ.