Friends of the Earth v. Crown Central ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40835
FRIENDS OF THE EARTH, INC.,
Plaintiff-Appellant,
versus
CROWN CENTRAL PETROLEUM
CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
September 3, 1996
Before HIGGINBOTHAM, WIENER, and PARKER, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
This case presents the question whether an organization whose
membership includes individuals who birdwatch and fish at a lake
some 18 miles and three tributaries from the source of unlawful
water pollution meet the fairly traceable component of the standing
doctrine to sue for violations of the Federal Water Pollution
Control Act, 33 U.S.C. §§ 1251 et seq. We answer the question in
the negative and affirm.
I.
Crown Central Petroleum Corporation, d/b/a La Gloria Oil & Gas
Co., operates an oil refinery in Tyler, Texas. Pursuant to a
National Pollutant Discharge Elimination System permit issued by
the Environmental Protection Agency, La Gloria discharges storm-
water run-off into Black Fork Creek. That creek flows into Prairie
Creek, which joins the Neches River, which in turn flows into Lake
Palestine. Lake Palestine is 18 miles "downstream" from La
Gloria's refinery.
On April 18, 1994, Friends of the Earth, Inc., a not-for-
profit corporation dedicated to the protection of the environment,
sent a notice letter to La Gloria alleging that La Gloria was
violating Sections 301(a), 308(a), and 402 of the Federal Water
Pollution Control Act. See 33 U.S.C. §§ 1311(a), 1318(a), 1342.
Two months later, FOE filed a citizen suit against La Gloria
pursuant to Section 505 of the Act. See 33 U.S.C. § 1365(b). FOE
charged La Gloria with 344 violations of the discharge limitations
and monitoring requirements of its NPDES permit. FOE sought
declaratory and injunctive relief, along with civil penalties and
attorneys' fees.
FOE brought the suit on behalf of itself and its members.
According to FOE's complaint, "[m]embers of FOE reside in the
vicinity of, or own property or recreate in, on or near the waters
of Black Fork Creek, Prairie Creek, Palestine Lake, the Neches
River, the Neches River Basin and tidally related waters affected
by" La Gloria's discharges. FOE asserted that La Gloria's
allegedly unlawful conduct "directly affects the health, economic,
recreational, aesthetic and environmental interests of FOE's
members." To substantiate these allegations, FOE provided the
affidavits of three FOE members--Nathan Greene, Larry Pilgrim, and
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Judith Pilgrim--all of whom had joined FOE either immediately
before or soon after FOE filed its complaint.
La Gloria moved for summary judgment, arguing that FOE lacked
standing to bring the suit and that FOE's notice was insufficient
because none of the three affiants were FOE members at the time the
notice letter was sent to La Gloria. In response, FOE refiled its
complaint, which was consolidated with the first suit.
La Gloria moved to dismiss the second complaint on the grounds
that it was duplicative of the first. FOE filed a third complaint
on May 4, 1995, alleging additional NPDES permit violations. The
district court consolidated the third complaint with this suit.
The district court granted La Gloria's motion for summary
judgment, holding that FOE lacked standing to pursue the suit. The
court found that only one of the three affiants was a FOE member at
the time the first complaint was filed. The court held that this
member had suffered no injury-in-fact and that, even if he had, he
could not trace that injury to La Gloria's alleged NPDES permit
violations. The district court further held that FOE itself lacked
standing to sue La Gloria regarding its NPDES permit monitoring
violations since FOE had failed to demonstrate that it, as an
organization, had suffered an injury-in-fact. After dismissing
FOE's second complaint as duplicative of the first, the court
stayed consideration of La Gloria's motion for attorneys' fees and
costs pending this appeal. We have jurisdiction. 28 U.S.C.
§ 1291.
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II.
FOE claims it has standing to pursue this litigation both on
its own behalf and as an representational association with members
who have standing to assert these claims against La Gloria. We
address the latter claim first.
A.
An association has standing to bring a suit on behalf of its
members when: 1) its members would otherwise have standing to sue
in their own right; 2) the interest it seeks to protect are germane
to the organization's purpose; and, 3) neither the claim asserted
nor the relief requested requires the participation of individual
members. Hunt v. Washington State Apple Advertising Comm'n, 432
U.S. 333, 343 (1977); see also United Food & Commercial Workers
Union Local 751 v. Brown Group, Inc., 116 S. Ct. 1529, 1534 (1996).
There is no dispute regarding the latter two elements; rather, this
appeal focuses on the first: whether FOE's members have standing
to sue in their own right.
To demonstrate that FOE's members have standing, FOE must show
that: 1) its members have suffered an actual or threatened injury;
2) the injury is "fairly traceable" to the defendant's actions; and
3) the injury will likely be redressed if it prevails in the
lawsuit. Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136
(1992); Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc.,
73 F.3d 546, 556 (5th Cir. 1996), petition for cert. filed, 64
U.S.L.W. 3780 (May 10, 1996) (No. 95-1831). The district court
found for La Gloria on the first two elements. We do not address
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the first element because we conclude that plaintiffs fail on the
requirement that injury be "fairly traceable" to La Gloria's
discharges.
In Cedar Point, we affirmed summary judgment for an
environmental group that had brought suit on behalf of its members
against an oil company that was unlawfully discharging "produced
water" into Galveston Bay. The oil company challenged the group's
standing to bring the suit, claiming among other things that the
injury suffered by the group's members was not "fairly traceable"
to the oil company's discharges of produced water. Rejecting that
contention, we applied the three-part test from Public Interest
Research Group of New Jersey, Inc. v. Powell Duffryn Terminals
Inc., 913 F.2d 64, 72 (3d Cir. 1990), cert. denied, 498 U.S. 1109
(1991), to determine whether an injury is "fairly traceable" to a
defendant's discharges in a citizen suit under the Clean Water Act:
the 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.'" Id. at 557 (quoting Powell
Duffryn, 913 F.2d at 72).
We upheld the environmental group's standing on the basis of
affidavits filed by three of its members who used Galveston Bay.
Focusing on the second prong of the Powell Duffryn test, we noted
that all three affiants use Galveston Bay and that one of them
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"canoed and participated in educational trips in the vicinity of
[the oil company's] discharge, and . . . intends to continue these
activities in this area in the future." Id. at 558. That
affiant's use of the specific area of the Bay in which unlawful
discharges occurred played an important role in our decision to
affirm the judgment. We cautioned against a broad reading of our
opinion:
We note, however, that Douglas was the only affiant
who expressed an interest in that part of Galveston Bay
where Cedar Point's discharge is located. It is true
that a strict application of the Powell Duffryn test does
not demand that sort of specificity, because the
plaintiff need only show an interest in the 'waterway'
into which the defendant is discharging a pollutant;
nevertheless, such a literal reading of Powell Duffryn
may produce results incongruous with our usual
understanding of the Article III standing requirements.
For example, some 'waterways' covered by the CWA may be
so large that plaintiffs should rightfully demonstrate a
more specific geographic or other causative nexus in
order to satisfy the "fairly traceable" element of
standing. Therefore, while we find the Powell Duffryn
test useful for analyzing whether Douglas's affidavit
meets the 'fairly traceable' requirement, we recognize
that it may not be an appropriate standard in other CWA
cases.
Id. at 558 n.24 (emphasis in original).
We are persuaded that this case presents a situation in which
Powell Duffryn's focus on the plaintiff's interest in the
"waterway" into which unlawful pollution flows passes Article III
bounds. La Gloria discharges into Black Fork Creek. None of FOE's
members use that creek; nor do they use Prairie Creek; nor do they
use the Neches River. Rather, FOE's members use Lake Palestine.
In contrast to Sierra Club's members who used the affected part of
Galveston Bay, FOE's members use a body of water located three
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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. Cf. Friends of the Earth, Inc. v.
Chevron Chemical Co., 900 F. Supp. 67, 75 (E.D. Tex. 1995) (holding
that two- to four-mile distance between source of pollution and
waterway used by plaintiffs was not too great to infer causation).
No genuine issue of material fact exists regarding whether
FOE's members have suffered an injury that is "fairly traceable" to
La Gloria's discharges. We emphasize that FOE offered no competent
evidence that La Gloria's discharges have made their way to Lake
Palestine or would otherwise affect Lake Palestine. Cf. Watkins,
954 F.2d at 981. Rather, FOE points to the deposition testimony of
several of its members. When asked whether they knew that La
Gloria's discharges ended up in Lake Palestine, the members replied
they did not know but assumed it to be the case because "that's the
way water runs." In short, FOE and its members relied solely on
the truism that water flows downstream and inferred therefrom that
any injury suffered downstream is "fairly traceable" to unlawful
discharges upstream. At some point this common sense observation
becomes little more than surmise. At that point certainly the
requirements of Article III are not met.
FOE points to the absence of any evidence in the record that
the pollutants in La Gloria's discharges evaporate, are diluted to
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neutrality, or sink to the bottom before reaching Lake Palestine.
FOE has this backwards. Standing is an issue upon which the party
invoking federal jurisdiction, the plaintiff, bears the burden of
persuasion. Defenders of Wildlife, 112 S. Ct. at 2136. FOE does
not meet its burden by pointing to the absence of evidence showing
that it lacks standing. Because FOE did not offer competent
summary judgment evidence that its members' injuries are "fairly
traceable" to La Gloria's discharges into Black Fork Creek, it does
not have standing as a representational organization to sue La
Gloria for its discharge and reporting violations.
We emphasize the narrow scope of our holding. 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. See Cedar Point, 73 F.3d at 558
n.24. 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. At some point, however, we can no longer assume
that an injury is fairly traceable to a defendant’s conduct solely
on the basis of the observation that water runs downstream. Under
such circumstances, a plaintiff must produce some proof; here,
that proof was lacking.
B.
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Because FOE's members do not have standing to sue for La
Gloria's discharge violations, they do not have standing to sue for
the reporting violations. Simkins Industries establishes that an
individual's standing to sue for reporting violation depends upon
his standing to sue for discharge violations. See 847 F.2d at 1113
(noting that to establish standing to sue for reporting violation,
"Sierra Club must establish that one or more of its members use the
Patapsco River and would be adversely affected by its pollution").
Stated negatively, an individual without standing to sue for
discharge violations, a fortiori, lacks standing to sue for
reporting violations.
FOE also lacks standing on its own behalf to sue La Gloria for
reporting violations. Foundation on Economic Trends v. Lyng, 943
F.2d 79, 84 (D.C. Cir. 1991). FOE cites cases dealing with
statutory standing; none of these cases conflict with Lyng, which
involved Article III standing. We find the reasoning of Lyng
persuasive, and its holding disposes of this portion of FOE’s
appeal.
Finally, we find no error in the district court's order
dismissing FOE's second complaint as duplicative of the first.
Oliney v. Gardner, 771 F.2d 856 (5th Cir. 1985). "When a plaintiff
files a second complaint alleging the same cause of action as a
prior, pending, related action, the second complaint may be
dismissed." Id. at 859. This rule finds particular application
where, as here, the plaintiff files the second complaint to achieve
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procedural advantage by "circumventing the rules pertaining to the
amendment of complaints." Id.
III.
We conclude that FOE lacks standing under Article III to sue
La Gloria for discharge and reporting violations under the CWA. We
AFFIRM the judgment of the district court.
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