Conservation Law Foundation of New England, Inc. v. Reilly, s. 91-1257

• Decision Date: 29 July 1991
• Docket Number: 91-1269,Nos. 91-1257,s. 91-1257
• Citation: 950 F.2d 38
• Parties: , 60 USLW 2364, 22 Envtl. L. Rep. 20,494 CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Plaintiffs, Appellees, v. William K. REILLY, as he is Administrator of the United States Environmental Protection Agency, Defendant, Appellant. CONSERVATION LAW FOUNDATION OF NEW ENGLAND, etc., et al., Plaintiffs, Appellants, v. William K. REILLY, as he is Administrator of the United States Environmental Protection Agency, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 38

950 F.2d 38

34 ERC 1089, 60 USLW 2364, 22 Envtl.

L. Rep. 20,494

CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., et al., Plaintiffs, Appellees, v. William K. REILLY, as he is Administrator of the United

States Environmental Protection Agency, Defendant,

Appellant.

CONSERVATION LAW FOUNDATION OF NEW ENGLAND, etc., et al., Plaintiffs, Appellants, v. William K. REILLY, as he is Administrator of the United

States Environmental Protection Agency, Defendant, Appellee.

Nos. 91-1257, 91-1269.

United States Court of Appeals First Circuit.

Heard July 29, 1991.

Decided Nov. 25, 1991.

Rehearing and Rehearing En Banc Denied Dec. 30, 1991.

Anne S. Almy, Atty., Dept. of Justice, Environmental and Natural Resources Div., Washington, D.C., with whom Richard B. Stewart, Asst. Atty. Gen., Wayne A. Budd, U.S. Atty., George Bunker Henderson, Asst. U.S. Atty., Boston, Mass., John A. Bryson, W. Christian Schumann, and Vicki L. Plaut, Attys., Dept. of Justice, Environmental and Natural Resources Div., Washington, D.C., were on brief for William K. Reilly, Adm'r, U.S.E.P.A.

Stephen H. Burrington, Boston, Mass., for plaintiffs Conservation Law Foundation of New England, Inc.

Before TORRUELLA, Circuit Judge, BOWNES and HILL, ^* Senior Circuit Judges.

TORRUELLA, Circuit Judge.

This appeal raises the question of whether plaintiffs, two New England-based environmental organizations, have standing to obtain nationwide injunctive relief against the Administrator of the Environmental Protection Agency (EPA) for his failure to assess and evaluate the hazardous waste problems in each of approximately 840 federal waste sites, scattered throughout the country, as allegedly required under section 120(d) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9620.

I

CERCLA is essentially a remedial statute designed to address the "serious problem of hazardous substance [activity]." Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1078 (1st Cir.1986). Section 105 of CERCLA directs the President to maintain a plan for responding to releases of hazardous substances. 42 U.S.C. § 9605. This plan is called the National Contingency Plan. Section 105 also directs the President to compile a list setting forth national priorities among actual or threatened releases of hazardous substances. Id. This list is called the National Priorities List.

Section 120 provides that CERCLA applies to federal facilities, and imposes a number of deadlines and requirements governing releases at such facilities. 42 U.S.C. § 9620(a)-(h). Section 120(c) of the CERCLA requires the Administrator of the EPA to establish a Federal Agency Hazardous Waste Compliance Docket and to update the docket every six months. The Administrator has established the docket and on the last update, identified a total of 1296 federal facilities that manage hazardous waste or have potential hazardous waste problems. See 55 Fed.Reg. 34492 (1990). ¹

Once a facility has been listed on the docket, the Administrator must by

[n]ot later than 18 months after October 17, 1986, ... take steps to assure that a preliminary assessment is conducted for each facility on the docket. Following such preliminary assessment, the Administrator shall, where appropriate--

(1) evaluate such facilities in accordance with the criteria established in accordance with section [105 of CERCLA] under the National Contingency Plan for determining priorities among releases; and

(2) include such facilities on the National Priorities List if the facility meets such criteria ... Evaluation and listing under this subsection shall be completed not later than 30 months after October 17, 1986.

42 U.S.C. § 9620(d).

Plaintiffs Conservation Law Foundation of New England, Inc., and Watertown Citizens for Environmental Safety, brought suit under the citizen-suit provision of CERCLA, 42 U.S.C. § 9659, alleging that the EPA's Administrator failed to comply with the mandate of Section 120(d) of CERCLA, namely, that "evaluation and listing [of the facilities on the Federal Agency Hazardous Waste Compliance Docket] shall be completed not later than 30 months after October 17, 1986." 42 U.S.C. § 9620(d). ²

The Administrator acknowledges that full preliminary assessments have been completed for only 615 of the approximately 840 sites from the original docket. Of these 615, 88 sites have been listed on the National Priorities List and 273 have been determined to need no further remedial action.

Plaintiffs have identified at least ten individual facilities in New England near which individual members of plaintiffs organizations resided, worked, or carried out recreational activities. The Administrator concedes that plaintiffs have standing to pursue their claim with respect to these local federal facilities. However, the Administrator asserts that plaintiffs have no standing to obtain a nationwide injunction directing the EPA, on a court-ordered schedule, to assess and evaluate for listing on the National Priorities List, all of the federal facilities that manage hazardous waste or have hazardous waste problems.

In the district court, the Administrator moved for partial summary judgment arguing that plaintiffs lacked standing to obtain nationwide injunctive relief against the EPA because they failed to assert injury-in-fact with respect to all of the federal facility sites. Plaintiffs also moved for summary judgment asserting that the citizen provision of CERCLA authorized nationwide relief in a private suit against the EPA to protect the public interest in EPA's full compliance with the mandate of section 120.

After a hearing on the parties' motions, the district court held that since some of the individual members of plaintiffs organizations had alleged injury-in-fact with respect to some of the facilities where they live, work or carried on recreational activities, the plaintiffs organizations had standing to "pursue the legal rights of the general public and request a remedy for all of the national sites for which the Administrator is responsible." Conservation Law Foundation, Inc. v. Reilly, 743 F.Supp. 933, 940 (D.Mass.1990). In a subsequent opinion, the district court ordered the Administrator to comply with the mandate of section 120(d) by a specific date. Conservation Law Foundation, Inc. v. Reilly, 755 F.Supp. 475, 481 (D.Mass.1991).

We reverse.

II

The standing doctrine reflects prudential and constitutional limitations upon the exercise of federal jurisdiction. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The constitutional limitations derive directly from Article III and require a plaintiff to "allege that as a result of the defendant's actions he has suffered 'a distinct and palpable injury.' " Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975)). This concept of "distinct and palpable" injury, or "injury-in-fact," is grounded on Article III's restriction of federal court jurisdiction to cases or controversies, which manifests the "concern about the proper--and properly limited--role of the courts in a democratic society." Allen, supra, 468 U.S. at 750, 104 S.Ct. at 3324 (quoting Warth, supra, 422 U.S. at 498, 95 S.Ct. at 2205); Munoz-Mendoza v. Pierce, 711 F.2d 421, 424 (1st Cir.1983) ("The constitutional standing rules seek to ensure that a concrete Article III 'case or controversy' exists by focusing on plaintiff's 'harm'.").

The prudential standing limitations prevent a court from adjudicating "questions of broad social import where no individual rights would be vindicated and ... limit access to the federal courts to those litigants best suited to assert a particular claim." Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804, 105 S.Ct. 2965, 2970, 86 L.Ed.2d 628 (1985) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-100, 99 S.Ct. 1601, 1607-08, 60 L.Ed.2d 66 (1979)).

The citizen-suit provision of CERCLA, Section 310, provides in pertinent part:

[A]ny person may commence a civil action on his own behalf--

....

(2) against the President or any other officer of the United States (including the Administrator of the Environmental Protection Agency ... where there is alleged a failure of the President or of such other officer to perform any act or duty under this chapter, including an [nondiscretionary] act or duty under section 9620 of this title....

42 U.S.C. § 9659(a).

The district court held that CERCLA's citizen-suit provision "remove the prudential limits on standing, including the general rule that a party may not pursue a third party's rights." 743 F.Supp. at 940. Admittedly, Congress may grant a right to sue to persons that might otherwise be barred by prudential limitations. Warth, 422 U.S. at 501, 95 S.Ct. at 2206. But Congress may not expand by statute the standing limitations imposed upon it by Article III. Gladstone, Realtors, supra, 441 U.S. at 100, 99 S.Ct. at 1608 (Congress may define standing as broadly as permitted by Article III); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 366, 34 L.Ed.2d 415 (1972) (same).

Organizations such as plaintiffs have standing to bring suit on behalf of their members if:

(a) [the] members would otherwise have standing to sue in their own right; (b) the interest [they] seeks to protect are germane to the organization[s'] purpose; (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Hunt v. Washington State Apple Advertising Com., 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); see also International Union, United Auto., etc. v. Brock, 477 U.S. 274, 286, 106 S.Ct. 2523, 2531, 91 L.Ed.2d 228 (1986). In this case, plaintiffs have offered the affidavit of ten of their members who reside, work or carry out...