Natural Resources Defense Council, Inc. v. Watkins

• Decision Date: 23 January 1992
• Docket Number: No. 91-2655,91-2655
• Citation: 954 F.2d 974
• Parties: Nuclear Reg. Rep. P 20,550, 34 ERC 1514, 22 Envtl. L. Rep. 20,368 NATURAL RESOURCES DEFENSE COUNCIL, INCORPORATED; Energy Research Foundation, Plaintiffs-Appellants, v. James WATKINS, Secretary of the Department of Energy; United States Department of Energy, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 974

954 F.2d 974

Nuclear Reg. Rep. P 20,550, 34 ERC 1514,

22 Envtl. L. Rep. 20,368

NATURAL RESOURCES DEFENSE COUNCIL, INCORPORATED; Energy

Research Foundation, Plaintiffs-Appellants, v. James WATKINS, Secretary of the Department of Energy;

United States Department of Energy, Defendants-Appellees.

No. 91-2655.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 5, 1991.

Decided Jan. 23, 1992.

James Frank Simon, Natural Resources Defense Council, Inc., New York City, argued, for plaintiffs-appellants (Dan W. Reicher, Nancy S. Marks, Katherine Kennedy, Natural Resources Defense Council, Inc., New York City, on brief, for plaintiff-appellant NRDC) and (James S. Chandler, Jr., South Carolina Environmental Law Project, Pawleys Island, S.C., on brief, for plaintiff-appellant Energy Research Foundation).

Ronald Mark Spritzer, Environment & Natural Resources Division, U.S. Dept. of Justice, Washington, D.C., argued (Barry M. Hartman, Acting Asst. Atty. Gen., Scott A. Schachter, Environment & Natural Resources Div., U.S. Dept. of Justice; Robin Henderson, Office of Gen. Counsel, U.S. Dept. of Energy, Washington, D.C.; and Nicks Williams, Office of Chief Counsel, U.S. Dept. of Energy, Aiken, S.C., on brief), for defendants-appellees.

Before ERVIN, Chief Judge, and PHILLIPS and SPROUSE, Circuit Judges.

OPINION

ERVIN, Chief Judge:

The Natural Resources Defense Council, Inc. and the Energy Research Foundation request an injunction and summary declaratory relief to block the Department of Energy's proposed reopening of a nuclear reactor at the Savannah River Site in South Carolina on the grounds that the operation of the reactor would be in violation of the Clean Water Act. The district court entered summary judgment against the plaintiffs on the issue of standing. We reverse the district court's imposition of summary judgment and remand the case for a factual hearing on the question of plaintiffs' standing. We affirm the district court's refusal to issue a preliminary injunction against operation of the reactor while this matter is pending.

I.

The K reactor at the Savannah River Site ("SRS") is a nuclear reactor that has been used by the Department of Energy ("DOE") since 1954 to produce tritium and plutonium for nuclear weapons. The K reactor and two other nuclear reactors at the SRS, the L and P reactors, are currently the nation's only source of tritium. Tritium, an essential component of nuclear fusion or "hydrogen" bombs, gradually decays over time, and thus must be periodically replenished in the weapons in which it is used. ¹

The K, L, and P reactors have been closed since April 1988 for maintenance and safety upgrades. In February 1991, DOE issued a formal decision announcing its plan to restart the K reactor in the Third Quarter of 1991. The restart date has been postponed several times, and current plans are to restart the reactor within the Fourth Quarter of 1991.

The K reactor is cooled by drawing water from the Savannah River, circulating it once through the reactor cooling system, and then discharging the water into Indian Grave Branch, a tributary of the Savannah River that eventually rejoins the river through Steel Creek, approximately six miles from the point of discharge. Pursuant to the Clean Water Act, 33 U.S.C. § 1311, DOE has a National Pollutant Discharge Elimination System ("NPDES") permit for the K reactor's cooling water discharge. DOE does not deny that the K reactor consistently violated the thermal limits of its NPDES permit from January 1, 1984 until it was shut down in April 1988, causing substantial environmental damage to approximately 670 acres of wetlands on SRS property. ² Further, DOE concedes that, if the K reactor is allowed to reopen as scheduled, the resulting effluent will still not meet the standards of the NPDES permit.

DOE is presently constructing a cooling tower that will allow the K reactor to meet the requirements of the NPDES permit. ³ DOE represents that the tower will be completed no later than December 1992, and possibly earlier. Once construction of the tower is completed, the operation of the reactor must be temporarily suspended to allow the cooling system of the reactor to be tied in to the cooling tower. DOE represented to the trial court that this also would be accomplished by December 1992. DOE has pledged not to run the K reactor at over 50% of full power until the cooling tower is completed, but admits that even under this proviso, the effluent will not fall within the NPDES permit's thermal limitations.

Plaintiffs, the National Resources Defense Council, Inc. and the Energy Research Foundation (collectively, hereinafter, "NRDC"), contend that operation of the K reactor without the cooling tower would cause irreparable damage to the ecological system of the Savannah River. Specifically, NRDC claims that restarting the reactor would destroy the modest recovery that has been made in the 670 acres of wetlands that were previously damaged by the operation of the reactor. Also, NRDC contends that damage will spread to adjoining areas of the wetlands at the rate of up to 10-12 acres per year. Finally, NRDC claims that operation of the reactor will render up to 3000 additional acres of wetlands inhospitable as a habitat for various species of wildlife indigenous to the wetlands. ⁴

NRDC brought a citizen suit under the Clean Water Act, 33 U.S.C. § 1365(a), in the United States District Court for the District of South Carolina on June 11, 1990, to block DOE's reopening of the K reactor before completion of the cooling tower. ⁵ On June 27, 1991, NRDC filed a motion for declaratory judgment, preliminary injunction, and partial summary judgment. On July 10, 1991, DOE filed a motion for summary judgment on the issue of standing. On August 14, 1991, the district court issued an order concluding that NRDC lacked standing. Noting the probability of appeal, the district court also addressed the preliminary injunction and declaratory relief questions on the merits and declined to issue either form of relief. NRDC appeals on each of these issues.

II.

An association, such as either of the plaintiffs in this case, may have standing to sue in federal courts based either on an injury to the organization in its own right, or as the representative of its members who have been harmed. Maryland Highways Contractors Ass'n, Inc. v. Maryland, 933 F.2d 1246, 1250 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 373, 116 L.Ed.2d 325 (1991). In the instant case, there is no allegation that either the Natural Resources Defense Council or the Energy Research Foundation has been harmed in its own capacity; instead, the groups contend that they have representational standing.

An organization has representational standing when: 1) its own members would have standing to sue in their own rights; 2) the interests the organization seeks to protect are germane to the organization's purpose; and 3) neither the claim asserted nor the relief sought requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). In this case, the parties contest the first prong of this definition, whether members of the plaintiff organizations would have an individual right to sue under the Clean Water Act with regard to the discharge of the K reactor.

The requirements for individual standing were laid out by the Supreme Court in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). In that case, the Court stated:

[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," ... and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision...."

Id. (citations omitted). In this case, the organizations assert their standing based on affidavits provided by three individual members of the Natural Resources Defense Council. ⁶

The trial court entered summary judgment against NRDC on the issue of standing on two grounds. First, the trial court ruled that the members' affidavits did not allege with sufficient specificity that the affiants utilized portions of the Savannah River which were affected by the K reactor discharge. Second, the trial court held that any environmental damage resulting from the K reactor discharge would be confined to the property limits of the SRS, from which members of the general public were restricted access, and therefore could not confer standing for a citizens' suit brought by any member of the public.

A.

The trial court's first assertion is wrong. The Annis and Mareska affidavits (which are substantially the same) allege:

My avocations have long included boating, fishing, and scuba diving. Since 1982 [Mareska affidavit says 1962] I have enjoyed boating daily on the Savannah River both upstream and downstream of the Savannah River Site. As part of our boating excursions, my friends and I used to enjoy picknicking on the sandbars right by the plant and swimming in the River near the plant. For many years I used to fish and scuba dive extensively in the Savannah River both upstream and downstream of the Savannah River Site.... In the past three years, I have continued to boat, swim, and fish in the Savannah river, but not downstream from the new Savannah Bluff Lock and Dam.... The reason that I have stopped these activities is because of the effects of pollution.... I noticed that, although there is an abundance of aquatic plant life upstream from the Site, the River downstream from the Site appears comparatively barren and sterile.

Similarly, the Blumfield affidavit alleges:

For approximately fifteen years, I frequently went...