Sierra Club v. City of Jackson MS ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60254
SIERRA CLUB of Mississippi, Inc., a Mississippi non-
profit corporation; LOUIS MILLER, an individual;
DEBORAH J. DAWKINS, an individual
Plaintiffs-Appellants-Cross-Appellees
v.
CITY OF JACKSON, MISSISSIPPI, a Municipal Corporation
Defendant-Appellee-Cross-Appellant
Appeals from the United States District Court
for the Southern District of Mississippi
(3:98-CV-153-BN)
March 19, 2002
Before ALDISERT*, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:**
The Sierra Club of Mississippi, Louis J. Miller, Legislative
*
Circuit Judge of the Third Circuit Court of Appeals,
sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.4.
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Director of the Sierra Club of Mississippi and Deborah J.
Dawkins, Chair of the Sierra Club of Mississippi (“Appellants”)
appeal from summary judgment entered in favor of the City of
Jackson, Mississippi We must decide whether Appellants have
standing to bring an action against the City of Jackson pursuant
to 33 U.S.C. § 1365 and whether the district court abused its
discretion in stating that City Attorney Terry Wallace failed to
adequately supervise a subordinate attorney.
I.
Appellants brought suit against the city alleging various
violations of the Water Pollution Prevention and Control Act, 33
U.S.C. §§ 1251 et seq. (“the Act”). Specifically, Appellants
alleged that the city had violated the parameters of certain
National Pollutant Discharge Elimination System (“NPDES”) permits
issued to it by the Mississippi Department of Environmental
Quality (“MDEQ”). These permits impose limitations on the
discharge of pollutants from three wastewater treatment
facilities operated by The city.
The Jackson sits atop a watershed, the east side of which
drains into the Pearl River and the west side of which drains
into the Bogue Chitto Creek, a tributary of the Black River. The
city operates three wastewater treatment facilities which
discharge into these two separate waterways. The Savannah
Wastewater Treatment Facility and the Trahon Wastewater Treatment
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Facility discharge effluent into the Pearl River while the
Presidential Hills Subdivision Wastewater Treatment Facility
empties into Bogue Chitto Creek. The MDEQ has issued a NPDES
permit to each of these facilities pursuant to Mississippi’s
state environmental program authorized by the Environmental
Protection Agency (“EPA”).
Wastewater is conveyed to each of these treatment facilities
through a system of gravity collection lines, lift stations and
force mains. This overall collection system covers an area which
drains approximately 115 square miles. Between January 28, 1995,
and December 1, 1997, The city reported to the Mississippi Office
of Pollution Control thirty-two spills of raw sewage from various
points in its sewage collection system. Record at 1-87.
Appellants subsequently filed their complaint in the
district court on February 24, 1998, relying on the thirty-two
reports to the Mississippi Office of Pollution Control and claim
that they are citations from MDEQ evidencing that the city has
violated the NPDES permit limitations for its three wastewater
treatment facilities.
On February 18, 2000, the parties informed the court that
they had reached a settlement agreement that would resolve the
case. The district court then issued an order stating that the
court would dismiss the lawsuit if the parties did not consummate
the settlement by May 1, 2000. During the interim period,
settlement negotiations broke down and Appellants filed a Motion
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to Enforce Settlement on March 29, 2000. On May 5, 2000 the
district court ordered an evidentiary hearing on the Motion to
Enforce Settlement and further required Attorneys for The city to
show cause why they should not be sanctioned pursuant to Rule
16(f) of the Federal Rules of Civil Procedure for making a
representation to the district court that a settlement
negotiation had been reached, when in fact counsel had not
received approval concerning the terms of the settlement from
their client.
Subsequently, on September 28, 2000, the court denied
Appellants’ Motion to Enforce Settlement because the agreement
had not been lawfully approved by the City of Jackson.
Furthermore, the court sanctioned Deputy City Attorney Terry
Williamson under Rule 16(f). The court concluded that City
Attorney Terry Wallace was not liable for sanctions because he
was merely acting in a supervisory capacity. However, the court
made a statement that Mr. Wallace’s supervision was “obviously .
. . inadequate.” Record at 519.
The court granted summary judgment in favor of the city,
determining that Appellants did not have standing to bring this
action. In addition, the court denied the city’s Motion to Seal
Records.
Following the final disposition of the merits of the action,
City Attorney Terry Wallace sought to expunge any references to
him.
4
The Sierra Club filed their Notice of Appeal on March 13,
2001. Record at 823-824. On April 30, 2001, City Attorney Terry
Wallace filed his Notice of Appeal from the March 30, 2001, order
denying both of his post judgment motions.
II.
The purpose of the Clean Water Act is to “restore and
maintain the chemical, physical, and biological integrity of the
Nation’s waters” with the goal “that the discharge of pollutants
into the navigable waters be eliminated by 1985.” 33 U.S.C.
§§ 1251(a), (a)(1). The citizen suit provision of the Act
provides for the type of enforcement action brought by Appellants
in this case. “As private attorneys general, citizens constitute
a special category of plaintiffs who ensure that [municipalities]
comply with the Act even when the government’s limited resources
prevent it from bringing an enforcement action.” Natural
Resources Defense Council, Inc. v. Texaco Refining and Marketing,
Inc., 2 F.3d 493, 503 (3d Cir. 1993) (citing Atlantic States
Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1136
(11th Cir. 1990)). However, the Act only confers standing on
plaintiffs in these cases to the “limits of the Constitution.”
Save Our Community v. EPA, 971 F.2d 1155, 1160 n.10 (5th Cir.
1992). On appeal, we “review a district court’s holding on the
issue of standing de novo.” Sierra Club v. Cedar Point Oil Co.,
Inc., 73 F.3d 546, 555 (5th Cir. 1996) (citing MD II
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Entertainment, Inc. v. City of Dallas, 28 F.3d 492, 497 (5th Cir.
1994); United States v. $38,570 U.S. Currency, 950 F.2d 1108,
1111 (5th Cir. 1992)).
The Court has determined:
An association has standing to bring suit on behalf of
its members when its members would otherwise have
standing to sue in their own right, the interests at
stake are germane to the organization’s purpose, and
neither the claim asserted nor the relief requested
requires participation of individual members in the
lawsuit.
Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528
U.S. 167, 181 (2000) (citing Hunt v. Washington State Apple
Adver. Comm’n, 432 U.S. 333, 343 (1977)). The city does not
contest Appellants’ assertion that the interests they seek to
protect are germane to the purpose of the Sierra Club, or that
the participation of the individual members of the Sierra Club is
not necessary. Instead, the city argues that none of the members
of the Sierra Club have standing to sue in their own right.
The Court has set forth three requirements for an individual
to satisfy Article III standing.
[T]o satisfy Article III’s standing requirements, a
plaintiff must show (1) it has suffered an ‘injury in
fact’ that is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528
U.S. 167, 180-181 (2000) (citing Lujan v. Defenders of Wildlife,
6
504 U.S. 555, 560-561 (1992)).
A.
First, Appellants assert that some of the club members are
riparian land owners along the Pearl River and its tributaries,
and that their property has been “adversely affected by the
discharge of pollutants.” Appellants’ Brief at 16. However,
Appellants have presented no evidence that any of its members
actually live on the Pearl River or the Bogue Chitto Creek or
that their property has suffered any damage. As the district
court determined below:
The only statement that remotely concerns where members
of the Sierra Club own land is as follows: “The Sierra
Club of Mississippi is a nonprofit Mississippi
Corporation with over 1,000 members, most of whom live
in the metropolitan Jackson area near the Pearl River
and its environs.” Nothing in this statement . . .
specifically asserts that any of the members of the
Sierra Club actually owns property that is located on
the Pearl River. Even if certain members do own such
property, nowhere in the Affidavit [do Appellants]
allege that such land owners have suffered damage as a
result of any pollutant. Accordingly, the court finds
that this Affidavit does not establish a genuine issue
of material fact as to whether members of the Sierra
Club own property along the Pearl, and whether such
property has suffered from the effects of pollution by
the City.
Sierra Club of Mississippi v. City of Jackson, No. 3:98-CV-153BN,
slip op. at 8-9 (S.D. Miss. Feb. 18, 2001) (internal citations
omitted).
In addition, Appellants contend that another class of its
members has sustained injury of a “recreational” and “aesthetic”
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nature. They argue that certain members “who would otherwise
enjoy various activities in, on and along the river such as
canoeing, fishing, hiking, camping, hunting, and nature studies
are unable to do so because of the river’s current condition.”
Appellants’ Brief at 16. As Appellants correctly point out,
“harm to aesthetic and recreational interests is sufficient to
confer standing . . . These injuries need not be large, an
‘identifiable trifle’ will suffice.” Pub. Interest Research
Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913
F.2d 64, 71 (3d Cir. 1990) (citing Sierra Club, 405 U.S. at 735;
United States v. Students Challenging Regulatory Agency
Procedures, 412 U.S. 669, 689 n.14 (1973)). Although admittedly
recreational and aesthetic interests are enough to pass
constitutional standing muster, the Court has said that “[t]he
relevant showing . . . is not injury to the environment but
injury to the plaintiff.” Friends of the Earth, Inc., 528 U.S.
at 181. Here is where Appellants fall short.
In Sierra Club v. Cedar Point Oil Co., Inc., 73 F.3d 546
(5th Cir. 1996), this court determined that members of the Sierra
Club’s Lone Star Chapter had standing to bring suit to enjoin the
discharge of “produced water” into Galveston Bay. In finding
that the members had standing, this court concluded that their
concern that the discharge of produced water would hinder their
ability to engage in certain recreational activity was sufficient
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“injury in fact.” Id. at 556-557. However, vital to the court’s
decision was the fact that all of the group members actually used
the specific area of Galveston Bay subject to the discharge for
recreational activity.
Similarly, in Friends of the Earth, Inc. v. Crown Cent.
Petroleum Corp., 95 F.3d 358 (5th Cir. 1996), we considered
whether an organization whose membership included individuals who
birdwatch some 18 miles and three tributaries from the source of
an unlawful discharge had standing to sue to for violations of
the Act. In finding a lack of standing, this court found
determinative that no members used the waterway into which
pollutants were being discharged. Id.
In the case at bar, the only two examples of recreational or
aesthetic harm to individual members of the Sierra Club comes in
the form of testimony from Appellants Miller and Dawkins.
Appellant Miller asserts that he “has for some time enjoyed
recreations [sic] activities upon and near the Pearl River and
its environs.” Record at 553. However, Miller testified that he
fishes, boats and camps on an area of the Pearl River located in
Madison County, well north and upstream of Jackson, Mississippi.
Record at 330-332. This is an area that physically could not be
affected by the discharges from The city’s treatment facilities.
Similarly, Dawkins argues that she “has for some time enjoyed
recreational activities upon and near the Pearl River and its
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environs.” Record at 553. However, Dawkins testified in her
deposition that the last time she used Pearl River was in 1985.
Record at 323. Such examples of harm are too remote to fulfill
the “injury in fact” requirement for standing purposes.
B.
In addition to demonstrating an “injury in fact,” to have
standing to bring an action under 33 U.S.C. § 1365, Appellants
must show that any injury suffered by its individual members is
“fairly traceable” to The city’s unlawful conduct. In their
attempt to link their members’ alleged injury to The city’s
conduct, Appellants rely on a three-prong test espoused by the
Court of Appeals for the Third Circuit, and later adopted by this
court.
[T]he plaintiff must demonstrate that “a defendant has
(1) discharged some pollutant in concentrations greater
than allowed by its permit (2) into a waterway in which
the plaintiffs have an interest that is or may be
adversely affected by the pollutant and that (3) the
pollutant causes or contributes to the kinds of
injuries alleged by the plaintiffs.”
Friends of the Earth, Inc., 95 F.3d at 360-361 (citing Powell
Duffryn, 913 F.2d at 72).
In Friends of the Earth, Inc., this court considered whether
an organization whose membership included individuals who
birdwatch some 18 miles and three tributaries from the source of
an unlawful discharge had standing to sue to for violations of
the Act. In determining that any alleged injury to plaintiffs
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could not be linked to conduct of the defendant, we considered
that no plaintiff utilized the body of water where the alleged
discharge occurred.
[M]embers use a body of water located three tributaries
and 18 miles “downstream” from La Gloria’s refinery.
Assuming without deciding that Lake Palestine is part
of the same “waterway” as Black Fork Creek for purposes
of the Powell Duffryn test, that “waterway” is too
large to infer causation solely from the use of some
portion of it.
* * * * *
We do not impose a mileage or tributary limit for
plaintiffs proceeding under the citizen suit provision
of the CWA. To the contrary, plaintiffs who use
“waterways” far downstream from the source of unlawful
pollution may satisfy the “fairly traceable” element by
relying on alternative types of evidence. For example,
plaintiffs may produce water samples showing the
presence of a pollutant of the type discharged by the
defendant upstream or rely on expert testimony
suggesting that pollution upstream contributes to a
perceivable effect in the water that the plaintiffs
use.
Friends of the Earth, Inc., 95 F.3d at 361-362 (internal
citations omitted).
Appellants here are unable to show a sufficient nexus
between any injury to individual members and the city’s conduct.
None of the Appellants have indicated that they use the portion
of the waterway allegedly affected by the discharge of
pollutants. In addition, and possibly more important, however,
Appellants have made no indication that a single discharge from
the city’s facilities has actually reached any waterway. The
city has presented testimony from the Acting Division Manager of
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the Water/Sewer Utilities Division and the Regional Waste Water
Treatment Manager that each of the thirty-two discharges occurred
in the collection system leading to the treatment facilities and
not at the facilities themselves. Accordingly, they maintain
that none of the pollutants were released into any waterway, but
instead were absorbed by the ground where the leaks occurred.
This evidence was accepted by the district court and was not
contradicted by Appellants. Sierra Club of Mississippi v. City
of Jackson, No. 3:98-CV-153BN, slip op. at 14-16 (S.D. Miss. Feb.
18, 2001).
Consequently, we hold that the court did not err in deciding
that Appellants also failed to meet the “fairly Traceable”
requirement of standing.
III.
Because we determine that Appellants in this case lack
standing to bring suit under 33 U.S.C. § 1365, we need not
determine whether Appellants had failed to establish a violation
of the Act or whether The city was entitled to summary judgment
concerning the affirmative defense of upset.
IV.
The court also determined that City Attorney Terry Wallace
was not liable for sanctions because he was merely acting in a
supervisory capacity, but did go on to state that Mr. Wallace’s
supervision was “obviously . . . inadequate.” Record at 519.
Mr. Wallace contests this determination by the district court and
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seeks to have the relevant language expunged.
We appreciate the frustration, annoyance and irritation that
the district court experienced when informed by the Deputy City
Attorney that the city had approved the settlement when in fact
it had not. There is no question that the deputy deserved the
sanctions imposed. But as regards City Attorney Wallace, an
independent review of the record troubles us. What we know as
men and women we must not forget as judges. We know several
things about the office of City Attorney of any major city. He
or she is both a lawyer and an administrator. Moreover, the
office is often a stepping stone to other government positions
that involve supervision. Thus, the reference to Wallace’s
supervision as “obviously . . .inadequate” is a major smear or
blemish on his escutcheon that must not be treated lightly. It
is an evaluation of his administrative skills in government
service that may far exceed the imposition of sanctions. Without
belaboring the point, we simply say this. The district court
made reference to a lack of supervision in three separate orders.
However justified the court may have felt “smelling the smoke of
battle” to make such a statement, the possible far reaching
consequences are such that this kind of statement should have
been made only after affording the City Attorney notice that his
supervisory skills were to be called into question, a record
made, facts found, and conclusions drawn therefrom. We believe
that it is not a permissible inference, let alone a compellable
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one, that a dereliction of a subordinate has been caused by lack
of supervision by the highest authority in the office. To hold
otherwise is to commit what the logicians call either the
informal fallacy of hasty generalization or the more familiar
fallacy of post hoc propter hoc. Accordingly, while
understanding actions by the distinguished district judge, we
believe that it is necessary to expunge this evaluation of the
City Attorney’s supervisory skills from the record.
* * * * *
We therefore conclude that Appellants in this case lack
standing to bring an action under 33 U.S.C. § 1365. In this
respect the judgment of the district court is affirmed. We
remand these proceedings, however, to the district court to
expunge the district court’s statements relating to City Attorney
Wallace, described above, wherever they appear in the record.
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