ELR Citation: ELR 20193
No(s). 95-40835 (5th Cir. Sep 3, 1996)

The court holds that an environmental organization whose members use a lake located 18 miles and three tributaries downstream from an oil refinery lack standing to bring a Federal Water Pollution Control Act (FWPCA) citizen suit for discharge and reporting violations. The court holds that no genuine issue of material fact exists regarding whether the group's members have suffered an injury that is "fairly traceable" to the refinery's discharges. The environmental group offered no competent evidence that the refinery's effluents flowed into or affected the lake. The group's reliance on the truism that water flows downstream does not meet the requirements of Article III standing. Moreover, the group does not meet its burden of persuasion regarding standing by pointing to the absence of evidence showing that it lacks standing. The court emphasizes that it is not imposing a mileage or tributary limit for citizen suits under the FWPCA.However, a citizen must produce some evidence that pollution upstream contributes to a perceivable effect in the water that the plaintiff uses. The court also holds that because the group does not have standing to sue for the refinery's discharge violations, it does not have standing to sue for the reporting violations.

Counsel for Plaintiff
Bruce J. Terris
Terris, Pravlik & Wagner
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant
Marcy H. Greer
Fulbright & Jaworski
600 Congress Ave., Ste. 2400, Austin TX 78701
(512) 474-5201

Before HIGGINBOTHAM, WIENER, and PARKER, Circuit Judges.