ELR Citation: ELR 21340
No(s). 96-5049 (3d Cir. Aug 5, 1997)

The court holds that two environmental groups cannot prove injury or threat of injury under the Federal Water Pollution Control Act (FWPCA) and thus lack standing necessary to enforce an injunction or to bring an FWPCA §505 citizen suit against a manufacturer for violating its national pollution discharge elimination system (NPDES) permit. A circuit court had already affirmed the lower court's finding that the group had standing.

The court first holds that the law of the case does not preclude reconsideration of the issue of standing. When a district court issues findings that undermine an earlier conclusion that the plaintiffs before it have standing to sue, the court creates the type of extraordinary circumstances that warrant reconsideration of the standing issue.

The court next holds that environmental groups lack standing because they cannot show any actual injury or credible threat of injury to the Delaware River. The court rejects the groups' argument that under the FWPCA, organizations and individuals may sue to protect waterways even if the waterways have not yet been polluted. The FWPCA does not authorize private causes of action against polluters absent some showing of actual or threatened injury. The court also rejects group members' argument that their knowledge of pollution from the manufacturer's plant lessens their enjoyment of the Delaware River. The members' knowledge that the manufacturer exceeded the effluent limits set in its permits does not, by itself, demonstrate injury or threat of injury. The legal right to have corporations obey environmental laws cannot, by itself, support standing. And reduction in a person's recreational activity cannot support standing when a court also concludes that a polluter's violation of an effluent standard has not harmed the affected waterway and that it poses no threat to that waterway. The court also rejects the groups' argument that the manufacturer's violations posed a threat of injury to the members' recreational interests in the river. The threatened injury must be so imminent as to be certainly impending. The district court could not have reasonably concluded that the threat of injury to the Delaware River was certainly impending once the court accepted the manufacturer's evidence that its discharge violations posed no threat of harm.

Next, the court holds that the groups lack standing to pursue FWPCA citizen suit claims based on the manufacturer's monitoring and reporting violations. The members failed to allege a specific and concrete injury arising from the manufacturer's failure to monitor and report its effluent discharges. Therefore, the court reverses and vacates the district court's decision.

A dissenting judge would remand the case because the environmental groups did not have an opportunity to prove additional facts that would support standing between affirmance of the first case and remand of the second.

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

Counsel for Defendant
Lawrence A. Salibra
Alcan Aluminum Corporation
6060 Parkland Blvd., Mayfield Heights OH 44124
(216) 523-6800

Before Alito, Roth, and Lewis, JJ.