Friends of the Earth, Inc. v. Gaston Copper, No. 98-1938

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: WILKINSON; NIEMEYER; LUTTIG; HAMILTON
• Citation: 204 F.3d 149
• Parties: (4th Cir. 2000) FRIENDS OF THE EARTH, INCORPORATED; CITIZENS LOCAL ENVIRONMENTAL ACTION NETWORK, INCORPORATED, Plaintiffs-Appellants, v. GASTON COPPER RECYCLING CORPORATION, Defendant-Appellee. UNITED STATES OF AMERICA, Amicu Curiae.
• Docket Number: No. 98-1938
• Decision Date: 25 October 1999

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204 F.3d 149 (4th Cir. 2000) FRIENDS OF THE EARTH, INCORPORATED; CITIZENS LOCAL ENVIRONMENTAL ACTION NETWORK, INCORPORATED, Plaintiffs-Appellants,
v.
GASTON COPPER RECYCLING CORPORATION, Defendant-Appellee. UNITED STATES OF AMERICA, Amicu Curiae. No. 98-1938. UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT. October 25, 1999, Argued.
February 23, 2000, Decided.

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ARGUED: Bruce J. Terris, TERRIS, PRAVLIK & MILLIAN, L.L.P., Washington, D.C., for Appellants. Rufus Justin Smith, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae. Harold Weinberg Jacobs, NEXSEN, PRUET, JACOBS & POLLARD, L.L.P., Columbia, South Carolina, for Appellee. ON BRIEF: Kathleen L. Millian, TERRIS, PRAVLIK & MILLIAN, L.L.P., Washington, D.C.; Robert Guild, Columbia, South Carolina, for Appellants. Lois J. Schiffer, Assistant Attorney General, Greer S. Goldman, David Shilton, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus Curiae.

Before: WILKINSON, Chief Judge, and WIDENER, MURNAGHAN, WILKINS, NIEMEYER, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Reversed and remanded by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judges Widener, Murnaghan, Wilkins, Williams, Michael, Motz, Traxler, and King joined. Judge Niemeyer wrote an opinion concurring in the judgment. Judge Luttig wrote an opinion concurring in the judgment, in which Judge Niemeyer joined. Senior Judge Hamilton wrote an opinion concurring in the judgment.

OPINION:

WILKINSON, Chief Judge:

Friends of the Earth (FOE) and Citizens Local Environmental Action Network (CLEAN) brought a citizen suit against Gaston Copper Recycling Corporation under the Clean Water Act. 33 U.S.C. 1251-1387 (1994 & Supp. III 1997). Plaintiffs allege that Gaston Copper has been illegally discharging a variety of pollutants into a South Carolina waterway. Wilson Shealy, a CLEAN member who owns a lake only four miles downstream from Gaston Copper's facility, testified that the illegal discharges caused him and

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his family to reduce their use of his lake. CLEAN also submitted various federal, state, and private studies as evidence that the pollutants released by Gaston Copper adversely affected or threatened Shealy's lake. The district court dismissed the case, holding that plaintiffs lacked standing because they had not demonstrated sufficient injury in fact. Dismissing the action, however, encroaches on congressional authority by erecting barriers to standing so high as to frustrate citizen enforcement of the Clean Water Act. We hold that Shealy, and hence CLEAN, have standing to sue. We thus reverse the judgment and remand for a determination of whether Gaston Copper has discharged pollutants in excess of its permit limits.

I.

A.

Congress enacted the Federal Water Pollution Control Act Amendments of 1972, better known as the Clean Water Act, "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. 1251(a). This legislation constituted "a major change in the enforcement mechanism of the Federal water pollution control program." American Petroleum Inst. v. Train, 526 F.2d 1343, 1344 (10th Cir. 1975) (internal quotation marks omitted). Prior to 1972, the focus of federal efforts to abate water pollution was measurement of the quality of receiving waters. See, e.g., Water Quality Act of 1965, Pub. L. No. 89-234, 79 Stat. 903. But the great difficulty in establishing reliable, precise limitations on pollution based solely on water quality targets led to substantial enforcement problems. See EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 202-03, 48 L. Ed. 2d 578, 96 S. Ct. 2022 (1976). In fact, the use of water quality standards as a control mechanism was found to be "inadequate in every vital respect." S. Rep. No. 92-414, at 7 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3674.

The Clean Water Act therefore shifted the focus of federal enforcement efforts from water quality standards to direct limitations on the discharge of pollutants -- i.e., "effluent limitations." See 33 U.S.C. 1311; Natural Resources Defense Council, Inc. v. EPA, 915 F.2d 1314, 1316 (9th Cir. 1990). Whereas the previous scheme required proof of actual injury to a body of water to establish a violation, Congress now instituted a regime of strict liability for illegal pollution discharges. See, e.g., United States v. Winchester Mun. Utils., 944 F.2d 301, 304 (6th Cir. 1991). Government regulators were therefore freed from the "need [to] search for a precise link between pollution and water quality" in enforcing pollution controls. S. Rep. No. 92-414, at 8, reprinted in 1972 U.S.C.C.A.N. at 3675. Rather, they could simply determine whether a company was emptying more pollutants into the water than the Act allowed in order to detect a violation of the statute.

The centerpiece of the Clean Water Act is section 301(a). This section provides: "Except as in compliance with this section and [other sections of the Act], the discharge of any pollutant by any person shall be unlawful." 33 U.S.C. 1311(a). And in section 402 of the Act, Congress established the National Pollutant Discharge Elimination System (NPDES), which authorizes the issuance of permits for the discharge of limited amounts of effluent. Id. 1342. The availability of such permits simply recognizes "that pollution continues because of technological limits, not because of any inherent rights to use the nation's waterways for the purpose of disposing of wastes." Natural Resources Defense Council, Inc. v. Costle, 186 U.S. App. D.C. 147, 568 F.2d 1369, 1375 (D.C. Cir. 1977) (internal quotation marks omitted). Permit holders must comply not only with limitations on the amount of pollutants they may discharge, but also with a variety of monitoring, testing, and reporting requirements. See, e.g., 33 U.S.C. 1318.

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Both the Environmental Protection Agency (EPA) and individual states (with EPA approval) may issue NPDES permits. See id. 1342(a), (b). Accordingly, the State of South Carolina has established an NPDES permit program administered by the Department of Health and Environmental Control (DHEC). See S.C. Code Ann. 48-1-10 et seq. (Law. Co-op. 1976 & West Supp. 1998).

Critical to the enforcement of the Clean Water Act is the citizen suit provision found in section 505. 33 U.S.C. 1365. Section 505(a) states that "any citizen may commence a civil action on his own behalf against any person . . . who is alleged to be in violation of an effluent standard or limitation under this chapter." Id. 1365(a). An "effluent standard or limitation" is defined to include any term or condition of an approved permit. See id. 1365(f). Citizens are thus authorized to bring suit against any NPDES permit holder who has allegedly violated its permit. A successful suit may result in the award of injunctive relief and the imposition of civil penalties payable to the United States Treasury. See id. 1365(a).

Section 505(g) sets forth the statutory standing requirement for the citizen suit provision of the Clean Water Act. Id. 1365(g). Specifically, it defines "citizen" as "a person or persons having an interest which is or may be adversely affected." Id. Congress has indicated that this provision confers standing to enforce the Clean Water Act to the full extent allowed by the Constitution. See Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 16, 69 L. Ed. 2d 435, 101 S. Ct. 2615 (1981) (citing S. Conf. Rep. No. 92-1236, at 146 (1972), reprinted in 1972 U.S.C.C.A.N. 3776, 3823, which notes that the term "citizen" in the Clean Water Act reflects the Supreme Court's decision in Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972)).

B.

Defendant Gaston Copper owns and operates a non-ferrous metals smelting facility in Lexington County, South Carolina. At this plant, Gaston Copper treats contaminated storm water and releases it into Lake Watson, an impoundment on Gaston Copper's property. Lake Watson's overflow is then discharged into the environment by way of Boggy Branch, a tributary of Bull Swamp Creek. Bull Swamp Creek in turn flows into the North Fork of the Edisto River, which lies 16.5 miles downstream from the discharge point.

When Gaston Copper purchased the operation in 1990, the facility was covered by an NPDES permit issued by DHEC to the plant's previous owner. DHEC reissued the permit to Gaston Copper with an effective date of March 1, 1991. This permit allowed Gaston Copper to discharge wastewater containing limited quantities of pollutants, including cadmium, copper, iron, lead, mercury, nickel, PCBs, and zinc, from Lake Watson into Boggy Branch. The permit imposed pH limits as well. The terms and conditions of the permit included the monitoring and reporting of effluent discharges. Gaston Copper was also required to abide by a schedule of compliance for meeting its effluent limitations.

Plaintiffs FOE and CLEAN are two non-profit environmental organizations dedicated to protecting and improving the quality of natural resources. One of FOE's stated objectives is "to combat and eliminate water pollution." CLEAN exists "to clean up South Carolina's environment" and to "educate South Carolinians about environmental issues affecting them as citizens and ways to address those issues."

Wilson Shealy is a member of CLEAN who lives with his family four miles downstream from Gaston Copper's facility. Shealy has resided on this property since 1964. His land contains a 67-acre lake that was created by damming Bull Swamp Creek. Shealy and his family fish, swim, and boat in the lake. Specifically, Shealy

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claims that he fishes in the lake approximately every other week and swims in it about twice per year. He occasionally eats the fish that he catches in the lake....