Prairie Rivers Network v. Dynegy Midwest Generation, LLC

• Decision Date: 28 June 2021
• Docket Number: No. 18-3644,18-3644
• Citation: 2 F.4th 1002
• Parties: PRAIRIE RIVERS NETWORK, Plaintiff-Appellant, v. DYNEGY MIDWEST GENERATION, LLC, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

2 F.4th 1002

PRAIRIE RIVERS NETWORK, Plaintiff-Appellant,

v.DYNEGY MIDWEST GENERATION, LLC, Defendant-Appellee.

No. 18-3644

United States Court of Appeals, Seventh Circuit.

Argued November 13, 2020

Decided June 28, 2021

Ellyn J. Bullock, Attorney, Solberg & Bullock LLC, Champaign, IL, Thomas Joseph Cmar, Attorney, Jennifer Cassel, Attorney, Earthjustice, Chicago, IL, Melissa Legge, Attorney, Earthjustice, New York, NY, Mychal Ozaeta, Attorney, Earthjustice, Los Angeles, CA, for Plaintiff-Appellant.

Daniel J. Deeb, Attorney, Ryan Cullen Granholm, Attorney, Joshua More, Attorney, Schiff Hardin LLP, Chicago, IL, Philip Stephen Gidiere, III, Attorney, Birmingham, AL, Michael L. Raiff, Attorney, Allyson Newton Ho, Attorney, Gibson, Dunn & Crutcher LLP, Dallas, TX, for Defendant-Appellee.

Stephen R. Kaufmann, Attorney, Hepler Broom, LLC, Springfield, IL, for Amicus Curiae Illinois Environmental Regulatory Group.

Amanda Shafer Berman, Attorney, David Chung, Attorney, Crowell & Moring LLP, Washington, DC, for Amicus Curiae Chamber of Commerce of the United States of America.

F. William Brownell, Attorney, Hunton Andrews Kurth LLP, Washington, DC, for Amicus Curiae Washington Legal Foundation.

Before Flaum, Rovner, and Brennan, Circuit Judges.

Brennan, Circuit Judge.

Prairie Rivers Network is an Illinois non-profit organization that advocates for clean water and healthy rivers. Under the Clean Water Act's citizen-suit provision, PRN sued Dynegy Midwest Generation, LLC, alleging that Dynegy illegally discharged coal ash pollutants into groundwater, which in turn entered the Middle Fork of the Vermilion River. The district court held that the Clean Water Act did not cover these groundwater discharges, so it dismissed PRN's suit for lack of jurisdiction. We then stayed PRN's appeal pending the Supreme Court's decision in County of Maui v. Hawaii Wildlife Fund , ––– U.S. ––––, 140 S. Ct. 1462, 206 L.Ed.2d 640 (2020). In that case, the Court established a multi-factor test to determine whether groundwater discharges fall under the Clean Water Act's ambit. Id. at 1476–77.

We need not assess County of Maui ’s reach, however, because PRN lacks standing. PRN has more than 1000 members yet fails to show that at least one of those individual members has standing. Associational standing, which PRN asserts, requires more specificity. Without at least one individual member who can sue in their own right, PRN cannot sue on their behalf. Because PRN cannot cure that defect via declarations on appeal, we affirm the district court's dismissal for lack of jurisdiction.

I

A

Located five miles north of Oakwood, Illinois, the Vermilion Power Station is a retired coal-fired power plant that operated from the mid-1950s until 2011. While in operation, the station burned coal and, as a result, generated coal ash. Dynegy, which currently owns the station, and its predecessors mixed this coal ash with water, depositing it into three unlined pits: the Old East Ash Pond, the North Ash Pond System, and the New East Ash Pond. Owned and maintained by Dynegy, these pits remain inactive but currently contain 3.33 million cubic yards of coal ash. The station and the coal ash pits sit close to the Middle Fork of the Vermilion River, a navigable water protected by the Clean Water Act.

Dynegy has a National Pollutant Discharge Elimination System permit to discharge wastewater from the station's operations into the Middle Fork. Under the Act, Congress delegated permit-issuing authority to the states through 33 U.S.C. § 1342(b). Dynegy's permit, granted by the Illinois Environmental Protection Agency, sets effluent limitations as well as monitoring and reporting conditions under Illinois state law.¹ It also allows for direct discharges into the Middle Fork through nine external outfalls from the station. These nine outfalls, however, are not at issue in this case.

Instead, PRN sued Dynegy over indirect discharges from the coal ash pits. According to PRN, Dynegy's permit does not authorize the coal ash seepage from the North Ash Pond and Old East Pond into the groundwater, which then enters the Middle Fork. These groundwater discharges, PRN contends, contain pollutants—"including, but not limited to, arsenic, barium, boron, chromium, iron, lead, manganese, molybdenum, nickel, sulfate, and total dissolved solids"—and have been occurring since at least May 2013.² Because its individual members "live near, study, work, and recreate in and around, the Middle Fork, including in the vicinity of the Vermilion Power Station," PRN maintains it has an interest in stopping and remedying these alleged discharges, which degrade not only the Middle Fork's water quality, but also its "aesthetic beauty and ecological vitality."³ By PRN's account, its individual members’ "use and enjoyment of the Middle Fork," has been, and will continue to be, harmed by the groundwater seepage into the Middle Fork.⁴

B

In its citizen-suit under the Clean Water Act, PRN alleged Dynegy committed two violations of 33 U.S.C. § 1311(a), which prohibits "the discharge of any pollutant" except as otherwise permitted. For Count I, Dynegy's groundwater seepage from the coal ash pits allegedly constituted an unpermitted discharge of pollutants into the Middle Fork. For Count II, this same seepage also allegedly violated two state-law conditions of Dynegy's permit. Dynegy then moved to dismiss both counts under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Relying on Village of Oconomowoc Lake v. Dayton Hudson Corp. , 24 F.3d 962 (7th Cir. 1994), Dynegy asserted that the Clean Water Act does not regulate groundwater discharges, even when that groundwater connects to surface waters regulated under the Act.

The district court agreed. Based on Oconomowoc , the district court dismissed PRN's suit under Rule 12(b)(1) for lack of subject-matter jurisdiction. This court held in Oconomowoc that the Clean Water Act did not govern discharges from "artificial ponds." 24 F.3d at 966. Although "[t]he possibility of a hydrological connection" between artificial ponds and ground waters "cannot be denied," this court concluded that "neither the statute nor the regulations makes [sic] such a possibility a sufficient ground of regulation" under the Clean Water Act. Id. Applying Oconomowoc , the district court dismissed Count I and held that the Clean Water Act did not govern the groundwater seepage from the coal ash into the Middle Fork. Because Count I and Count II contained identical factual allegations, the district court also dismissed Count II, holding that the Clean Water Act could not provide federal jurisdiction for Dynegy's alleged violations of state-law conditions within its permit.

PRN timely appealed. After the Supreme Court granted certiorari in County of Maui , we granted PRN's unopposed motion to stay appellate proceedings pending that decision. In County of Maui , the Court held that the Clean Water Act "require[s] a permit if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters." 140 S. Ct. at 1468. PRN and Dynegy then filed position statements based on that decision, with PRN also moving for summary reversal. We denied PRN's motion and set a briefing schedule. When it filed its opening brief, PRN also moved for leave to file supplemental documents, attaching declarations from several of its individual members and staff to support standing. Dynegy opposed that motion, which we took with the case for resolution.

II

Although Dynegy moved to dismiss PRN's suit under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, that motion concerned coverage under the Clean Water Act, not standing. On appeal, Dynegy challenges PRN's standing for the first time. A standing challenge under Rule 12(b)(1) typically "can take the form of a facial or a factual attack on the plaintiff's allegations." Bazile v. Fin. Sys. of Green Bay, Inc. , 983 F.3d 274, 279 (7th Cir. 2020). A facial attack "tests whether the allegations, taken as true, support an inference that the elements of standing exist," and a factual attack "test[s] the existence of jurisdictional facts underlying the allegations." Id. We construe Dynegy's standing challenge on appeal as a facial attack, which "require[s] only that the court look to the complaint and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction." Apex Digit., Inc. v. Sears, Roebuck & Co. , 572 F.3d 440, 443 (7th Cir. 2009) (emphasis omitted). We thus accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of the plaintiff, PRN. Silha v. ACT, Inc. , 807 F.3d 169, 173 (7th Cir. 2015). Our review is de novo. Bazile , 983 F.3d at 278.

A

Article III of the Constitution limits the federal judicial power to deciding "Cases" and "Controversies." As an essential part of a federal court's authority under Article III, standing doctrine ensures respect for these jurisdictional bounds, "confin[ing] the federal courts to a properly judicial role" and "limit[ing] the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). For standing under Article III, a plaintiff must have: (1) suffered an injury in fact; (2) that is fairly traceable to the challenged conduct of the defendant; and (3) that is likely to be redressed by a favorable judicial decision. Id. When a plaintiff lacks standing, a federal court lacks jurisdiction. See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 101–02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

Establishing standing is the plaintiff's burden and "must be secured at each stage of the litigation." Bazile , 983 F.3d at 278. This is because the elements of standing are "not mere pleading requirements but rather an indispensable part of the plaintiff's...