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Ecological Rights Found. v. Pacific Lumber Co.

ELR Citation: 31 ELR 20246
Nos. 99-17076, 230 F.3d 1141/51 ERC 1545/(9th Cir., 10/30/2000)

The court reverses a district court decision holding that two environmental groups lacked standing to bring citizen suits against a lumber company for violating its Clean Water Act (CWA) national pollutant discharge elimination system (NPDES) permit. The district court held that spatial and temporal contacts that the members of the groups had with the creek at issue were too sporadic and attenuated to satisfy injury-in-fact. The court first holds that the groups have standing to file suit against the lumber company. The injury-in-fact requirement in environmental cases is not reducible to inflexible judicially mandated time or distance guidelines. Under Friends of the Earth v. Laidlaw, 528 U.S. 167, 30 ELR 20246 (2000), an individual can establish injury-in fact by showing a connection to the area of concern sufficient to make credible the contention that the person's future life will suffer in aesthetic or recreational satisfaction if the area in question remains or becomes degraded. Here, members of both groups use the affected area, and the challenged activity will lessen the aesthetic and recreational values of the area for them.

The court next holds that the groups need not demonstrate actual environmental harm to the creek to have standing. The threshold question of CWA citizen standing 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 that there has been actual imminent harm. The groups have clearly alleged that the company has violated conditions of its NPDES permits, and they have demonstrated that the company's alleged conduct has impaired their aesthetic and recreational interests in the creek. They need not prove with scientific certainty that the company, in fact, discharged in violation in order to obtain standing because such a showing is one of the merits of the case. The court also holds that the groups' asserted injuries are fairly traceable to the company's conduct. Members of the groups have claimed that their enjoyment of various activities they take part in on the creek is lessened due to the company's alleged violations of various CWA provisions. It requires no attenuated chain of conjecture to link the company's alleged illegal conduct to the members' diminished enjoyment. The court then holds that the case should not be dismissed as moot. Even if the groups' claims for violations of the company's 1992 NPDES permit became moot when the 1997 NPDES permit went into effect, the groups' claims for civil penalties and attorneys fees would remain viable. Therefore, the court remanded the case to the district court to adjudicate the merits of the case.

Counsel for Plaintiffs
William Verick
Klamath Environmental Law Center
424 First St., Eureka CA 95501
(707) 268-8900

Counsel for Defendant
Jared G. Carter, Michael D. Macomber
Carter, Behnke, Oglesby & Bacik
169 Mason St., Ste. 300, Ukiah CA 95482
(707) 462-6694

Berzon, J. (before Boochever and Trott, JJ.):