Gonzales v. Gorsuch

Decision Date28 September 1982
Docket NumberNo. 78-3729,78-3729
Citation688 F.2d 1263
Parties, 13 Envtl. L. Rep. 20,072 Robert E. GONZALES, et al., Plaintiffs-Appellants, v. Ann McGill GORSUCH, * Administrator of the United States Environmental Protection Agency, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Robin L. Rivett, Sacramento, Cal., for plaintiffs-appellants.

Jacques B. Gelin, Dept. of Justice, Washington, D.C., argued, for defendants-appellees; John Evans, Benner, Harris & Evans, Berkeley, Cal., Francis B. Boone, Asst. U.S. Atty., San Francisco, Cal., on brief.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE and KENNEDY, Circuit Judges, and BURNS, ** District Judge.

KENNEDY, Circuit Judge:

This suit challenges the propriety of expenditures approved by the Environmental Protection Agency (EPA) and made by the Association of Bay Area Governments (ABAG). 1 ABAG made the expenditures pursuant to a workplan under section 208 of the Federal Water Pollution Control Act (herein the Clean Water Act), 33 U.S.C. § 1288 (1976). EPA funded the plan through a $4.3 million grant authorized under section 208(f), 33 U.S.C. § 1288(f) (1976).

After the planning began, but before its completion, Gonzales 2 brought this suit. The theory of the suit was that some of the grant funds used by ABAG were for contracts not related to water pollution. These, it was contended, were improper expenditures under section 208, and hence could not be legally funded. After finding standing and reaching the merits, the court below denied the requested injunctive and declaratory relief and entered summary judgment for the EPA. Gonzales v. Costle, 463 F.Supp. 335 (N.D. Cal. 1978). Gonzales appeals, and we now affirm.

I.

In 1972, Congress amended the FWPCA. Pub. L. 92-500, 86 Stat. 839 (1972). The amendments provided for a comprehensive state and federal program to improve the nation's water quality. As part of the program, section 208 of the amended Act authorizes areawide waste treatment management plans, administered by local government and funded by the EPA.

In May of 1975, pursuant to section 208(a)(2) of the Clean Water Act, 33 U.S.C. § 1288(a)(2) (1976), ABAG was selected as the local entity responsible for developing a clean water plan for the San Francisco Bay Area. ABAG then applied for, and received, an EPA grant of $4.3 million to develop and implement a section 208 workplan.

In addition to the responsibility for developing a clean water plan, ABAG was also designated by the state as the local entity in charge of a Bay Area Air Quality Maintenance Plan (AQMP) 3 and, eventually, a Solid Waste Management Plan (SWMP). 4 Appropriate funding for development and implementation of these plans soon followed. 5 ABAG consolidated the three programs into one plan, the ABAG Environmental Management Plan. The EPA approved it in 1976. ABAG then began the planning period required by section 208. 6

Gonzales filed suit in September of 1976. After discovery, his claim was reduced to the assertion that approximately 5 percent of the contracts funded by the section 208 grant were for the regional AQMP and the SWMP, instead of for improvement of water quality. 7 He asked the court to declare the contracts illegal as in excess of 208 funding authority and for an injunction against their execution or payment.

No temporary restraining order or other preliminary relief was sought. Indeed, Gonzales waited almost one year before commencing discovery. When the court below ruled on the parties' cross-summary judgment motions, the two year planning period was over, and most of the original funds had been spent. In 1978 the EPA however, had granted ABAG an additional $180,000 for the final part of the workplan. The district court found that the plaintiffs had standing, that the case was not moot, and that section 208 authorized the expenditures. Gonzales v. Costle, 463 F.Supp. 335, 337-41 (N.D. Cal. 1978). We agree the suit should be dismissed but for a reason other than that adopted by the district court. We find the plaintiff has no standing to maintain the suit.

II.

Gonzales seeks to invoke the jurisdiction of the federal court under the citizen's suit provision of the Clean Water Act. The citizen-suit provision of the Clean Water Act, 33 U.S.C. § 1365(a)(2) (1976), provides:

(a) Except as provided in subsection (b) of this section (dealing with notice to the EPA) any citizen may commence a civil action on his own behalf-... (2) against the Administrator where there is an alleged failure of the Administrator to perform any act or duty under this chapter (ch. 26 of title 33, §§ 1251-1376) which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to ... order the Administrator to perform such act or duty, as the case may be ....

The legislative history reinforces the import of the statutory language that § 1365(a)(2) was intended to grant standing to a nationwide class, comprised of citizens who alleged an interest in clean water. Senators Bayh and Muskie, the latter, one of the Act's principal draftsmen, discussed the Conference Report:

Mr. Bayh. Would an interest in a clean environment-which would be invaded by a violation of the Federal Water Pollution Control Act or a permit thereunder-be an "interest" for the purposes of this section?

Mr. Muskie. That is the intent of the conference... The conference report states: "It is the understanding of the conferees that the conference substitute relating to the definition of the term 'citizen' reflects the decision of the U.S. Supreme Court in the case of Sierra Club v. Morton (405 U.S. 727 (92 S.Ct. 1361, 31 L.Ed.2d 636) (1972) )." ... It is clear that under the language agreed to by the conference, a noneconomic interest in the environment, in clean water, is a sufficient base for a citizen suit under section 505.

Further, every citizen of the United States has a legitimate and established interest in the use and quality of the navigable waters of the United States. Thus, I would presume that a citizen of the United States, regardless of residence, would have an interest as defined in this bill regardless of the location of the waterway and regardless of the issue involved.

Mr. Bayh. I thank my good friend from Maine. I believe that the conference provision will not prevent any person or group with a legitimate concern about water quality from bringing suit against those who violate the act or a permit, or against the Administrator if he fails to perform a nondiscretionary act. These sorts of citizen suits-in which a citizen can obtain an injunction but cannot obtain money damages for himself-are a very useful additional tool in enforcing environmental protection laws. I am glad to see that authority for such suits is included in this bill.

Committee on Public Works, A Legislative History of the Water Pollution Control Act Amendments of 1972, 221 (1973).

Congress by section 1365(a)(2) thus granted every citizen a litigable interest in the enforcement of all nondiscretionary acts and duties of the EPA.

A personal stake in the outcome is central to the question of standing. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962) ("a personal stake in the outcome-is the gist of the question of standing"). Plaintiff's interest as one who uses and enjoys the Bay is sufficient to meet the liberal personal stake requirement applicable to environmental plaintiffs. See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72-74, 98 S.Ct. 2620, 2629-2631, 57 L.Ed.2d 595 (1978); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 678, 687, 93 S.Ct. 2405, 2411, 2416, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972).

Plaintiff's standing fails, nevertheless, as the relief sought will not redress the inquiries alleged. It is a prerequisite of justiciability that judicial relief will prevent or redress the claimed injury, or that there is a significant likelihood of such redress. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38-39, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Pacific Legal Foundation v. State Energy Resources Conservation and Development Comm'n, 659 F.2d 903 at 910 (9th Cir. October 15, 1981); Bowker v. Morton, 541 F.2d 1347, 1347 (9th Cir. 1976). Redressability in this sense is an aspect of standing.

There is a close relation between the requirement of power to redress a claimed injury and the requirement of a causal link between the injury asserted and the relief claimed. See, e.g., Duke Power Co., 438 U.S. at 74, 98 S.Ct. at 2631. The two requirements, however, do diverge. On the one hand, the causal connection requirement focuses upon the relation between the defendant or the defendant's conduct and the plaintiff's injury. Redressability requires an analysis of whether the court has the power to right or to prevent the claimed injury. In this respect, the potential for redress assures that the plaintiff's stake in the lawsuit's outcome remains high throughout the litigation.

The tie between the causation requirement and the court's power to afford appropriate relief is usually strong enough to permit an "infer(ence) that correction of the defendant's improper conduct will relieve the injury caused thereby," Legal Aid Soc'y of Alameda County v. Brennan, 608 F.2d 1319, 1335 (9th Cir. 1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980); see also Davis v. U.S. Dept. of Housing and Urban Development, 627 F.2d 942 at 945, but the inference is broken if the injury alleged and the redress sought are so remote that no connection at all may be discerned. Boating Indus. Ass'ns v. Marshall, 601 F.2d 1376,...

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