Friends of the Earth v. Crown Central ( 1996 )

                          FOR THE FIFTH CIRCUIT
                                 No. 95-40835
              Appeal from the United States District Court
                    for the Eastern District of Texas
                               September 3, 1996
    Before HIGGINBOTHAM, WIENER, and PARKER, Circuit Judges.
    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.
         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 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 complaint
    on May 4, 1995, alleging additional NPDES permit violations.    The
    district court consolidated the third complaint with this suit.
         The district court granted La Gloria's motion for summary
    judgment, holding that FOE lacked standing to pursue the suit. The
    court found that only one of the three affiants was a FOE member at
    the time the first complaint was filed.    The court held that this
    member had suffered no injury-in-fact and that, even if he had, he
    could not trace that injury to La Gloria's alleged NPDES permit
    violations. The district court further held that FOE itself lacked
    standing to sue La Gloria regarding its NPDES permit monitoring
    violations since FOE had failed to demonstrate that it, as an
    organization, had suffered an injury-in-fact.      After dismissing
    FOE's second complaint as duplicative of the first, the court
    stayed consideration of La Gloria's motion for attorneys' fees and
    costs pending this appeal.     We have jurisdiction.      28 U.S.C.
    § 1291.
         FOE claims it has standing to pursue this litigation both on
    its own behalf and as an representational association with members
    who have standing to assert these claims against La Gloria.     We
    address the latter claim first.
         An association has standing to bring a suit on behalf of its
    members when:   1) its members would otherwise have standing to sue
    in their own right; 2) the interest it seeks to protect are germane
    to the organization's purpose; and, 3) neither the claim asserted
    nor the relief requested requires the participation of individual
    members.   Hunt v. Washington State Apple Advertising Comm'n, 
    432 U.S. 333
    , 343 (1977); see also United Food & Commercial Workers
    Union Local 751 v. Brown Group, Inc., 
    116 S. Ct. 1529
    , 1534 (1996).
    There is no dispute regarding the latter two elements; rather, this
    appeal focuses on the first:   whether FOE's members have standing
    to sue in their own right.
         To demonstrate that FOE's members have standing, FOE must show
    that: 1) its members have suffered an actual or threatened injury;
    2) the injury is "fairly traceable" to the defendant's actions; and
    3) the injury will likely be redressed if it prevails in the
    lawsuit. Lujan v. Defenders of Wildlife, 
    112 S. Ct. 2130
    , 2136
    (1992); Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc.,
    73 F.3d 546
    , 556 (5th Cir. 1996), petition for cert. filed, 
    64 U.S.L.W. 3780
     (May 10, 1996) (No. 95-1831).      The district court
    found for La Gloria on the first two elements.    We do not address
    the first element because we conclude that plaintiffs fail on the
    requirement that injury be "fairly traceable" to La Gloria's
          In   Cedar   Point,   we   affirmed   summary     judgment   for   an
    environmental group that had brought suit on behalf of its members
    against an oil company that was unlawfully discharging "produced
    water" into Galveston Bay.       The oil company challenged the group's
    standing to bring the suit, claiming among other things that the
    injury suffered by the group's members was not "fairly traceable"
    to the oil company's discharges of produced water.          Rejecting that
    contention, we applied the three-part test from Public Interest
    Research Group of New Jersey, Inc. v. Powell Duffryn Terminals
    913 F.2d 64
    , 72 (3d Cir. 1990), cert. denied, 
    498 U.S. 1109
    (1991), to determine whether an injury is "fairly traceable" to a
    defendant's discharges in a citizen suit under the Clean Water Act:
    the   plaintiff    must   demonstrate    that    "'a   defendant   has   (1)
    discharged some pollutant in concentrations greater than allowed by
    its permit (2) into a waterway in which the plaintiffs have an
    interest that is or may be adversely affected by the pollutant and
    that (3) the pollutant causes or contributes to the kinds of
    injuries alleged by the plaintiffs.'"           Id. at 557 (quoting Powell
    Duffryn, 913 F.2d at 72).
          We upheld the environmental group's standing on the basis of
    affidavits filed by three of its members who used Galveston Bay.
    Focusing on the second prong of the Powell Duffryn test, we noted
    that all three affiants use Galveston Bay and that one of them
    "canoed and participated in educational trips in the vicinity of
    [the oil company's] discharge, and . . . intends to continue these
    activities in this area in the future."           Id. at 558.         That
    affiant's use of the specific area of the Bay in which unlawful
    discharges occurred played an important role in our decision to
    affirm the judgment.    We cautioned against a broad reading of our
              We note, however, that Douglas was the only affiant
         who expressed an interest in that part of Galveston Bay
         where Cedar Point's discharge is located. It is true
         that a strict application of the Powell Duffryn test does
         not demand that sort of specificity, because the
         plaintiff need only show an interest in the 'waterway'
         into which the defendant is discharging a pollutant;
         nevertheless, such a literal reading of Powell Duffryn
         may   produce   results  incongruous   with   our   usual
         understanding of the Article III standing requirements.
         For example, some 'waterways' covered by the CWA may be
         so large that plaintiffs should rightfully demonstrate a
         more specific geographic or other causative nexus in
         order to satisfy the "fairly traceable" element of
         standing. Therefore, while we find the Powell Duffryn
         test useful for analyzing whether Douglas's affidavit
         meets the 'fairly traceable' requirement, we recognize
         that it may not be an appropriate standard in other CWA
    Id. at 558 n.24 (emphasis in original).
         We are persuaded that this case presents a situation in which
    Powell   Duffryn's   focus   on   the   plaintiff's   interest   in   the
    "waterway" into which unlawful pollution flows passes Article III
    bounds. La Gloria discharges into Black Fork Creek.       None of FOE's
    members use that creek; nor do they use Prairie Creek; nor do they
    use the Neches River.    Rather, FOE's members use Lake Palestine.
    In contrast to Sierra Club's members who used the affected part of
    Galveston Bay, FOE's members use a body of water located three
    tributaries and 18 miles "downstream" from La Gloria's refinery.
    Assuming without deciding that Lake Palestine is part of the same
    "waterway" as Black Fork Creek for purposes of the Powell Duffryn
    test, that "waterway" is too large to infer causation solely from
    the use of some portion of it.    Cf. Friends of the Earth, Inc. v.
    Chevron Chemical Co., 
    900 F. Supp. 67
    , 75 (E.D. Tex. 1995) (holding
    that two- to four-mile distance between source of pollution and
    waterway used by plaintiffs was not too great to infer causation).
         No genuine issue of material fact exists regarding whether
    FOE's members have suffered an injury that is "fairly traceable" to
    La Gloria's discharges. We emphasize that FOE offered no competent
    evidence that La Gloria's discharges have made their way to Lake
    Palestine or would otherwise affect Lake Palestine.    Cf. Watkins,
    954 F.2d at 981.   Rather, FOE points to the deposition testimony of
    several of its members.     When asked whether they knew that La
    Gloria's discharges ended up in Lake Palestine, the members replied
    they did not know but assumed it to be the case because "that's the
    way water runs."    In short, FOE and its members relied solely on
    the truism that water flows downstream and inferred therefrom that
    any injury suffered downstream is "fairly traceable" to unlawful
    discharges upstream.   At some point this common sense observation
    becomes little more than surmise.      At that point certainly the
    requirements of Article III are not met.
         FOE points to the absence of any evidence in the record that
    the pollutants in La Gloria's discharges evaporate, are diluted to
    neutrality, or sink to the bottom before reaching Lake Palestine.
    FOE has this backwards.   Standing is an issue upon which the party
    invoking federal jurisdiction, the plaintiff, bears the burden of
    persuasion.   Defenders of Wildlife, 112 S.Ct. at 2136.    FOE does
    not meet its burden by pointing to the absence of evidence showing
    that it lacks standing.     Because FOE did not offer competent
    summary judgment evidence that its members' injuries are "fairly
    traceable" to La Gloria's discharges into Black Fork Creek, it does
    not have standing as a representational organization to sue La
    Gloria for its discharge and reporting violations.
         We emphasize the narrow scope of our holding.        We do not
    impose a mileage or tributary limit for plaintiffs proceeding under
    the citizen suit provision of the CWA. To the contrary, plaintiffs
    who use "waterways" far downstream from the source of unlawful
    pollution may satisfy the "fairly traceable" element by relying on
    alternative types of evidence.    See Cedar Point, 73 F.3d at 558
    n.24.   For example, plaintiffs may produce water samples showing
    the presence of a pollutant of the type discharged by the defendant
    upstream or rely on expert testimony suggesting that pollution
    upstream contributes to a perceivable effect in the water that the
    plaintiffs use.   At some point, however, we can no longer assume
    that an injury is fairly traceable to a defendant’s conduct solely
    on the basis of the observation that water runs downstream.   Under
    such circumstances, a plaintiff must produce some proof; here,
    that proof was lacking.
         Because FOE's members do not have standing to sue for La
    Gloria's discharge violations, they do not have standing to sue for
    the reporting violations.      Simkins Industries establishes that an
    individual's standing to sue for reporting violation depends upon
    his standing to sue for discharge violations.       See 847 F.2d at 1113
    (noting that to establish standing to sue for reporting violation,
    "Sierra Club must establish that one or more of its members use the
    Patapsco River and would be adversely affected by its pollution").
    Stated negatively, an individual without standing to sue for
    discharge    violations,   a   fortiori,   lacks   standing   to    sue    for
    reporting violations.
         FOE also lacks standing on its own behalf to sue La Gloria for
    reporting violations.      Foundation on Economic Trends v. Lyng, 
    943 F.2d 79
    , 84 (D.C. Cir. 1991).            FOE cites cases dealing with
    statutory standing; none of these cases conflict with Lyng, which
    involved Article III standing.           We find the reasoning of Lyng
    persuasive, and its holding disposes of this portion of FOE’s
         Finally, we find no error in the district court's order
    dismissing FOE's second complaint as duplicative of the first.
    Oliney v. Gardner, 
    771 F.2d 856
     (5th Cir. 1985).        "When a plaintiff
    files a second complaint alleging the same cause of action as a
    prior,    pending,   related   action,   the   second   complaint    may    be
    dismissed."    Id. at 859.     This rule finds particular application
    where, as here, the plaintiff files the second complaint to achieve
    procedural advantage by "circumventing the rules pertaining to the
    amendment of complaints."   Id.
         We conclude that FOE lacks standing under Article III to sue
    La Gloria for discharge and reporting violations under the CWA. We
    AFFIRM the judgment of the district court.