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Friends of the Earth v. Gaston Copper Recycling Corp.

ELR Citation: 30 ELR 20369
Nos. No. 98-1938, 204 F.3d 149/50 ERC 1108/(4th Cir., 02/23/2000) district court decision rev'd

The court reverses a district court decision that environmental groups failed to demonstrate injury-in-fact and, therefore, do not have standing to bring a citizen suit under the Clean Water Act against a nonferrous metal smelting facility for violations of its national pollutant discharge elimination system permit. The court fist holds that a member of the environmental groups demonstrated injury-in-fact, thereby conferring representational standing on the environmental groups. The member reported a decrease in his and his family's swimming and fishing in the lake due to fears of pollution from the facility's permit exceedances. Additionally, the environmental groups provided ample evidence that the member's concerns were reasonable and not based on mere conjecture and that the facility's permit exceedances could and did cause environmental degradation. The member's reasonable fear and concern about the effects of the facility's discharge, supported by objective evidence, directly affect his recreational and economic interest and this impact constitutes injury-in-fact. By producing evidence that the facility is polluting the member's nearby water source, the environmental groups have shown an increased risk to their members' downstream uses. The court next holds that the environmental groups have established that their injuries are fairly traceable to the facility. The member's testimony, buttressed by objective evidence from the state environmental agency, show that injuries can be traced to the facility. Moreover, there is no suggestion that any entity other than the facility is responsible for the injury-in-fact that the groups have established. The court further holds that the groups have standing because a favorable decision by the district court will redress the groups' injuries.

[A prior decision in this litigation is published at 29 ELR 21213.]

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

Joined by Widener, Murnaghan, Wilkins, Williams, Michael, Motz,Traxler, and King, JJ., with Niemeyer, J., concurring, Luttig, J., joined by Niemeyer, J., concurring, and Hamilton, J., concurring