LEGAL: Environmentalists Gain a Legal Footing

Conservation groups and other citizen plaintiffs are buoyed by a significant pro-environment ruling from a historically conservative federal appeals court.

The Richmond, Va.-based U.S. Court of Appeals for the Fourth Circuit ruled unanimously that environmental groups had standing to sue a South Carolina copper smelter under the Clean Water Act for violations of the company's wastewater discharge permit. [Friends of the Earth v. Gaston Copper Recycling Corp., No. 98-1938, 4th Cir., Feb. 23, 2000]

The ruling by the full 17-member tribunal overturns a June 1999 decision by a three-judge panel of the court that denied two environmental groups an opportunity to bring suit. The February ruling undoubtedly was influenced by an important citizens rights decision handed down six weeks earlier by the U.S. Supreme Court. [Friends of the Earth v. Laidlaw Environmental Services, No. 98-282, Jan. 12, 2000].

The appeals court said that the suit brought by Friends of the Earth and Citizens Local Environmental Action Network against the company was "precisely the type of suit" that Congress had authorized.

The plaintiff group included a downstream property owner who claimed that pollution from the facility limited his use of his lake for swimming and fishing. A canoe outfitter also alleged that his business was harmed by river pollution from the facility's process wastewater.

The court record contains copies of state discharge monitoring reports showing Gaston violated its National Pollutant Discharge Elimination System (NPDES) permit hundreds of times in four years, exceeding permissible releases of metals and pH limits.

A federal district court and the three-judge panel ruled that the plaintiffs did not prove sufficient environmental injury to warrant a judicial remedy. However, the full appeals court disagreed. "[The case presents] a classic example of an individual who has suffered an environmental injury ... fairly traceable to a defendant's conduct and likely to be redressed by the relief sought," the court said. Where a plaintiff has a "reasonable fear and concern about the effects of [the] discharge," he has shown the required injury, the court continued.

Thus, a citizen plaintiff only needs to show that the defendant discharged pollutants that cause or contribute to the kinds of injuries alleged. "Citizens may ... rely on circumstantial evidence such as proximity to polluting sources, predictions of discharge influence and past pollution to prove both injury in fact and traceability," the opinion concluded.

In the wake of this decision, managers of solid waste management facilities with NPDES or stormwater discharge permits must redouble their compliance efforts.