95 F.3d 358 (5th Cir. 1996), 95-40835, Friends of the Earth, Inc. v. Crown Cent. Petroleum Corp.

Docket Nº:95-40835.
Citation:95 F.3d 358
Party Name:FRIENDS OF THE EARTH, INC., Plaintiff-Appellant, v. CROWN CENTRAL PETROLEUM CORPORATION, Defendant-Appellee.
Case Date:September 03, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 358

95 F.3d 358 (5th Cir. 1996)

FRIENDS OF THE EARTH, INC., Plaintiff-Appellant,

v.

CROWN CENTRAL PETROLEUM CORPORATION, Defendant-Appellee.

No. 95-40835.

United States Court of Appeals, Fifth Circuit

September 3, 1996

Rehearing Denied Oct. 3, 1996.

Page 359

Bruce Jerome Terris, David Gabriel Bookbinder, Terris, Pravlik & Wagner, Washington, DC, for plaintiff-appellant.

Louis S. Zimmerman, Marcy Hogan Greer, Bruce Allen Morris, Fulbright & Jaworski, Austin, TX, M. Michael Meyer, Bayko, Gibson, Carnegie, Hagan, Schoonmaker & Meyer, Houston, TX, for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before PATRICK E. HIGGINBOTHAM, WIENER and PARKER, Circuit Judges.

PATRICK E. 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 Judith

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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...

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