Steven Pollack v. DOJ ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3857
S TEVEN B. P OLLACK AND B LUE E CO L EGAL C OUNCIL,
Plaintiffs-Appellants,
v.
U NITED S TATES D EPARTMENT OF JUSTICE, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08-CV-00320—Ronald A. Guzmán, Judge.
A RGUED M AY 8, 2009—D ECIDED A UGUST 13, 2009
Before C UDAHY, M ANION, and T INDER, Circuit Judges.
M ANION, Circuit Judge. The United States govern-
ment operates a gun range on the shores of Lake Michi-
gan. The plaintiffs brought suit against several govern-
mental agencies, alleging that the discharge of bullets
into the lake violates various environmental laws. The
district court dismissed the suit for want of jurisdiction
after concluding the plaintiffs lacked constitutional stand-
ing. The plaintiffs appeal, and we affirm.
2 No. 08-3857
I.
In 1918, the United States Navy and Marine Corps
began operating a gun range in North Chicago, Illinois.
Over the years, many discharged lead bullets from the
range landed in an area of Lake Michigan covering 2,975
acres. The military used the site until 1976 when the
Federal Bureau of Investigation (“FBI”) leased the range.
The FBI bought the site in 1987. At some point the
range was improved by adding an earthen berm
backstop to prevent bullets from landing in the lake.
Despite the berm, some bullets escaped into Lake
Michigan and nearby Foss Park.1
In addition to this gun range, the government also
operated a shotgun range on the site. Pellets from the
shotguns landed in Lake Michigan. However, the gov-
ernment no longer operates a shotgun range there. Addi-
tionally, in 2006 the United States Coast Guard con-
ducted live-fire exercises from boats on Lake Michigan
using lead bullets and bullets from those exercises
landed in the water. Lead is a toxic substance and, if
ingested in sufficient quantities, poses a threat to human
health.
Plaintiff Steven Pollack is an attorney who lives in
Highland Park, Illinois, thirteen miles south of the range.
1
After the FBI learned of bullets entering Foss Park, it closed
the range in April 2008. The FBI improved the range and
undertook further studies to prevent bullets from entering the
park. According to a May 11, 2009, letter sent to the court, the
FBI intends to reopen the range at the earliest possible date.
No. 08-3857 3
He is the executive director of plaintiff Blue Eco Legal
Council (“Blue Eco”), an environmental group “with an
interest in the environmental safety of the Great Lakes
watershed,” that, among other things, sues private and
governmental polluters to enforce environmental laws.
Pollack and Blue Eco brought this suit against the United
States Department of Justice, the United States
Coast Guard, the United States Department of the Navy,
the United States Marine Corps, and the United States
Department of Defense. The plaintiffs alleged that the
deterioration of the lead bullets in the water harmed the
environment, in violation of the Clean Water Act, the
Resource Conservation and Recovery Act, the Compre-
hensive Environmental Response, Compensation, and
Liability Act, and state nuisance law. Pollack and Blue Eco
sought $55.2 million in damages: $35.2 million to pay a
private company to remove bullets from the lake bottom
and $20 million in tort damages for public nuisance to
fund a “supplemental environmental project” to be ad-
ministered by environmental groups chosen by the court.
To establish standing, the plaintiffs relied on affidavits
submitted by Pollack and another Blue Eco member,
Darren Miller, who is also a resident of Highland Park.
Pollack’s affidavit stated that he enjoyed watching birds
in the Great Lakes watershed, visited public parks along
the Lake Michigan shoreline, drank water from Lake
Michigan at his home in Highland Park, and ate fresh-
water and ocean fish. Miller’s affidavit was nearly
identical to Pollack’s.
The defendants moved for dismissal under Federal Rule
of Civil Procedure 12(b)(1), arguing that the court lacked
4 No. 08-3857
subject-matter jurisdiction because Pollack and Blue Eco
did not possess constitutional standing to assert their
claims. The district court granted the motion, concluding
first that Pollack and Miller’s concern over drinking
water did not provide standing because the drinking
water in Highland Park was below the environmental
limit on lead pollution allowed by the city government,
thereby negating any claim of harm by Pollack and Miller.
Moreover, the district court held that their concerns
over birds, fish, and wildlife were too general and did not
allege any particular or specific harm that had been
caused by the bullets. The district court concluded that
because Pollack and Miller did not possess standing, Blue
Eco did not possess standing on their behalf. Accordingly,
the district court dismissed the suit for lack of subject-
matter jurisdiction. The plaintiffs appeal.
II.
At issue in this case is Pollack’s and Blue Eco’s con-
stitutional standing to bring this lawsuit. Under Article III
of the Constitution, federal courts are limited to hearing
“Cases” and “Controversies.” This provision limits the
judicial power “to the traditional role of Anglo-American
courts, which is to redress or prevent actual or imminently
threatened injury to persons caused by private or official
violation of law.” Summers v. Earth Island Inst., 129 S. Ct.
1142, 1148 (2009). This restriction on the power of the
courts “ ‘is founded on concern about the proper—and
properly limited—role of the courts in a democratic soci-
ety.’ ” Id. (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).
No. 08-3857 5
Permitting a court to decide a case where the plaintiff
does not have standing would “allow[] courts to oversee
legislative and executive action” and thus “significantly
alter the allocation of power . . . away from a democratic
form of government.” Id. at 1149 (quotation omitted).
In order to show standing,
a plaintiff must show that he is under threat of suffer-
ing “injury in fact” that is concrete and particularized;
the threat must be actual and imminent, not con-
jectural or hypothetical; it must be fairly traceable to
the challenged action of the defendant; and it must
be likely that a favorable judicial decision will
prevent or redress the injury.
Id.; accord Sierra Club v. Franklin County Power of Ill., LLC,
546 F.3d 918, 925 (7th Cir. 2008). An organization has
standing when any of its members has standing, the
lawsuit involves interests “germane to the organization’s
purpose,” and neither the claim asserted nor the relief
requested requires an individual to participate in the
lawsuit. Sierra Club, 546 F.3d at 924. At issue here is (a)
whether Pollack has standing; and (b) whether Blue
Eco has standing through Pollack or Miller. The plain-
tiffs bear the burden of proving standing. Wisconsin
Right to Life, Inc. v. Schober, 366 F.3d 485, 489 (7th Cir.
2004). We review a district court’s decision on standing
de novo. Id.
Several Supreme Court decisions guide our analysis. In
Summers, several environmental organizations challenged
a decision of the United States Forest Service to permit
a salvage sale of 238 acres of timber in Sequoia National
6 No. 08-3857
Forest that had been damaged in a fire, without pro-
viding notice, a period for public comment, or an appeal
process. 129 S. Ct. at 1147-48. The Forest Service acted
according to its own regulations, which permit it to
exempt from these requirements salvage sales of timber
located on less than 250 acres. Id. at 1147. The environ-
mental organizations filed suit to challenge the regula-
tions. Id. at 1149. The organizations contended they
possessed standing based on their members’ “recreational
interest in the National Forests.” Id. at 1149. The gov-
ernment conceded that one member of the organizations
had standing to challenge the sale of the 238 acres and
the parties settled the claim relating to that particular
salvage sale. Id. The organizations still asserted the facial
challenge to the regulations themselves. The organiza-
tions submitted an affidavit of Jim Bensman, who
asserted “that he has visited many National Forests and
plans to visit several unnamed National Forests in the
future.” Id. at 1150. Summers held that this affidavit was
insufficient to provide standing, stating that it failed “to
allege that any particular timber sale or other project
claimed to be unlawfully subject to the regulations will
impede a specific and concrete plan of Bensman’s to
enjoy the National Forests.” Id. Although Bensman’s
affidavit did reference particular sales in the Allegheny
National Forest, there was no “firm intention” to visit that
area. Id. Summers stated that “[t]his vague desire to
return is insufficient to satisfy the requirement of
imminent injury.” Id. at 1150-51.
Conversely, the Supreme Court found standing to sue
in Friends of the Earth, Inc. v. Laidlaw Environmental Services,
No. 08-3857 7
528 U.S. 167 (2000). In Laidlaw, a wastewater treatment
plant obtained a state permit to discharge treated water
containing known pollutants into a river. Id. at 175-76.
Three environmental organizations sued, basing their
standing on members affected by the pollution. For
example, one member stated that she lived two miles from
the river and that she had picnicked, walked, watched
birds, and waded in the river before the pollution and
because of the pollution had since ceased those activities.
Id. at 182. Laidlaw held that this and similar statements
“adequately documented injury in fact.” Id. at 183. Laidlaw
explained that “environmental plaintiffs adequately allege
injury in fact when they aver that they use the affected area
and are persons for whom the aesthetic and recreational
values of the area will be lessened by the challenged
activity.” Id.
On the other hand, the Supreme Court held that en-
vironmental plaintiffs did not have standing in Lujan v.
National Wildlife Federation, 497 U.S. 871 (1990). In Lujan,
an environmental organization challenged a govern-
mental action that allegedly opened public lands for
mining. Id. at 879. The affidavit of one member stated:
My recreational use and aesthetic enjoyment of federal
lands, particularly those in the vicinity of South
Pass-Green Mountain, Wyoming have been and
continue to be adversely affected in fact by the un-
lawful actions of the Bureau and the Department. In
particular, the South Pass-Green Mountain area of
Wyoming has been opened to the staking of mining
claims and oil and gas leasing, an action which threat-
8 No. 08-3857
ens the aesthetic beauty and wildlife habitat poten-
tial of these lands.
Id. at 886 (emphasis added). Lujan held that standing was
not established by “averments which state only that one
of respondent’s members uses unspecified portions of
an immense tract of territory, on some portions of
which mining activity has occurred or probably will
occur by virtue of the governmental action.” Id. at 889.
In addition to these Supreme Court cases, Pollack
directs our attention to our recent decision in Sierra Club
v. Franklin County Power of Ill., in which we held that
an environmental organization possessed standing to
seek an injunction against a power company that had
obtained a state permit to build a coal power plant in
southern Illinois. 546 F.3d at 923. The environmental
organization claimed standing based on a member who
had vacationed every two years since 1987 on a lake
three miles from the proposed site. Id. at 925. The
member stated that she fished, kayaked, camped, and
enjoyed the beauty of the lake, and that she would cease
her trips if the power plant was built. Id. Franklin County
held that the member had established injury-in-fact
based on her “likely exposure” to pollutants from the
coal power plant and the cessation of her vacation trips.
Id. at 925-26. Moreover, the claimed injury was fairly
traceable to the proposed power plant. Although the
extent of pollution was unclear, we stated:
We agree that no one knows the ultimate magnitude of
McKasson’s injury—for example, we don’t know if
the particulate matter from the plant will blot out the
No. 08-3857 9
sky or merely create a thin haze that’s not visible to
the naked eye, or if the airborne mercury will
actually spread 45 miles to poison fish that McKasson
currently consumes from a pond near her home
(which is another harm she claims she will suffer). We
do know, however, that the plant will release some
pollutants and that McKasson believes these
pollutants will ruin her ability to enjoy Rend Lake
and taint the surrounding area.
Id. at 927. Accordingly, we held that the member and thus
the plaintiff organization had standing to challenge the
building of the power plant.
Pollack also relies heavily on Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000),
in which the Fourth Circuit held that two individuals
had standing to sue a smelting plant that was dumping
pollutants upstream from them. One individual owned
a home on the affected water where he fished, swam,
and boated. Id. at 152-53. Another individual operated a
canoeing company on the polluted river. Id. at 153. Based
on these individuals’ standing, Gaston Copper held that
their organizations had standing to challenge the release
of the pollutants. Id. at 160.
As noted above, in this case Blue Eco bases its standing
on nearly identical affidavits from two of its members,
Pollack and Miller. Pollack essentially claims four
injuries: (1) that he drinks water drawn from Lake Michi-
gan for Highland Park and “other local municipalities” and
the shooting of lead bullets pollutes this water; (2) that
he enjoys “watching wildlife in the Great Lakes water-
10 No. 08-3857
shed” and that he “is concerned” about the effect on birds
from the shooting; (3) that he enjoys “the public areas
along the Illinois portion of Lake Michigan” and he is
concerned that people in Foss Park and the adjoining
beach will be hurt, thereby making it “less likely that [he]
will visit” that park; and (4) that he enjoys “eating fresh-
water and ocean fish” and he is concerned that bullets fired
into the water will “enter[] the water column and bio-
accumulat[e] in the tissues and organs of fish,” thereby
lessening his desire to eat fish.
Pollack’s intention to drink water and his fear that his
water has been contaminated by lead from bullets does not
give rise to standing. He relies on Franklin County and
Gaston Copper to argue that his drinking water taken from
Lake Michigan gives him standing. However, this case
is materially distinguishable from those because Pollack
is not downstream from the alleged pollutants and it is
unclear whether their presence affects him. In Gaston
Copper, the individuals were downstream from the entry
point for the pollutants. Here, the ricocheting bullets
from the Foss Park site and the shotgun range enter Lake
Michigan at North Chicago, Illinois. Highland Park is
approximately thirteen miles from North Chicago and
draws its water from a different section of Lake Michigan
than North Chicago. It is unclear if any pollution from
bullets discharged into Lake Michigan will travel the
thirteen miles from Foss Park to Highland Park. To clarify
this point, Pollack alleges that sediment in the region
travels in a counter-clockwise direction, from Foss Park
to Highland Park, and cites a report of the Environ-
mental Protection Agency. However, that report does not
No. 08-3857 11
suggest that such a pattern of movement exists. See U.S.
Envtl. Prot. Agency & Gov’t of Canada, The Great Lakes:
An Environmental Atlas and Resource Book, ch. 2, § 4
(3d ed. 1995), available at http://www.epa.gov/glnpo/atlas/
index.html. Hence, Pollack has not satisfied his burden
of showing that decaying bullets near North Chicago
will affect his water supply in Highland Park. Pollack’s
belief that the bullets affect him is also unlike the air
pollution at issue in Franklin County, because it is com-
monly understood that air pollution can travel three
miles through the air and different wind conditions
could easily blow the pollution onto land at that distance.
In contrast, it is not readily apparent that Pollack would
be affected by the shooting at issue here.
Taken to its extreme, Pollack’s argument would permit
any person living on or near Lake Michigan to assert that
he has been harmed by the bullets, because the lead
could potentially have been carried to every part of the
lake. However, Lujan makes clear that when a vast en-
vironmental area is involved and the pollution affects
one discrete area while a plaintiff intends to visit a differ-
ent discrete area, that plaintiff does not have standing.
Similarly, Pollack drinks treated water from one discrete
area while the defendants’ activities affect a different
discrete area. Without some support for the assertion
that he will be affected by the drift of polluted sediment
or water, Pollack has not shown that he has standing to
pursue this lawsuit. Thus, because it is not readily ap-
parent that Pollack would be affected by the discharge
of bullets, he does not have standing based on Highland
Park’s drinking water taken from Lake Michigan.
12 No. 08-3857
Similarly, Pollack has failed to connect his desire to eat
fish with the bullets in the water. For one, his desire to
eat ocean fish is not implicated because Lake Michigan
is not the ocean. Moreover, Pollack never avers that he
will eat fish from Lake Michigan itself; instead, he refers
generally to “freshwater fish.” Hence, Pollack has not
even claimed that he will eat fish from the affected
region. This statement is unlike Laidlaw and Franklin
County, where the individuals actually used the areas
affected by pollution. Indeed, Pollack’s averment that he
eats freshwater fish from some unnamed source is less
suggestive of standing than the statements in Lujan and
Summers, where the individuals at least visited the
general region affected by pollution. Accordingly,
Pollack’s intention to eat freshwater fish from an unspeci-
fied source does not provide a basis for standing to sue.
Pollack’s desire to view wildlife and to visit local parks
may both be considered a claim that he will suffer
aesthetic harm from the gun range. While the Supreme
Court clearly recognizes that aesthetic harms may give
rise to standing, Summers, 129 S. Ct. at 1149, Lujan and
Summers demonstrate that a plaintiff must show that he
has actual aesthetic interest in the area affected by the
pollution. When governmental action affects a discrete
natural area, and a plaintiff merely states that he “uses
unspecified portions of an immense tract of territory,” such
averments are insufficient to establish standing. Lujan, 497
U.S. at 889. Here, Pollack claims generally that he
enjoys watching birds in the “Great Lakes watershed” and
visiting public parks “along the Illinois portion of Lake
Michigan.” However, he never claims that he visits Foss
No. 08-3857 13
Park or watches birds in that area.2 Instead, Pollack claims
that he visits parks and watches birds within a vast
territory. This claim is similar to the statements in Lujan
and Summers, where the individuals never claimed to
have a specific interest in the actual area affected by
pollution. Summers, 129 S. Ct. at 1150; Lujan, 497 U.S. at 886.
Pollack fails to demonstrate that his interest in bird-
watching along an unspecified portion of the Great
Lakes watershed—a region stretching from Minnesota to
New York—will be affected by the shooting activities in
a confined area of North Chicago. Similarly, the section
of Lake Michigan bordering Illinois stretches for approxi-
mately 70 miles, and Pollack never specifies where
along that shoreline he visits. Accordingly, his gen-
eralized statements that he visits the Illinois shoreline
of Lake Michigan and watches birds in the Great Lakes
watershed do not give rise to standing to challenge the
shooting activities at issue here.
In short, Pollack’s and Miller’s interests are too general-
ized to give rise to standing. “At bottom [the plaintiffs]
appear to seek the simple satisfaction of seeing the [envi-
ronmental] laws enforced.” Jaramillo v. FCC, 162 F.3d 675,
2
Although Pollack visited Foss Park after he commenced suit,
a plaintiff must establish standing at the time suit is filed and
cannot manufacture standing afterwards. Laidlaw, 528 U.S. at 180
(stating that the court considers whether a plaintiff had
standing “at the outset of the litigation”); Perry v. Village of
Arlington Heights, 186 F.3d 826, 830 (7th Cir. 1999) (stating that
“[t]he requirements of standing must be satisfied from the
outset”).
14 No. 08-3857
677 (D.C. Cir. 1998). However meritorious their case
may be, the plaintiffs lacked a constitutional basis to
bring this lawsuit.
III.
Because neither Pollack nor Miller has demonstrated
that they were concretely affected by the shooting
activities they challenge, neither individual has standing
to pursue this case. Accordingly, neither Pollack nor
Blue Eco has standing. The district court’s dismissal of
this suit for lack of subject-matter jurisdiction is A FFIRMED.
C UDAHY, Circuit Judge, concurring. This is without
question a close case. As the case law laid out by the
majority suggests, “injury in fact” can be an elusive
phenomenon. Although in the present case an injury is
arguably traceable to the deposit of toxic substances in
potable water, such phenomena appear and disappear
from one case to the next depending on subtle twists in the
allegations, turning between the real and the hypothetical.
Compare generally Lujan v. Defenders of Wildlife, 504 U.S. 555
(1992) (Scalia, J.), and Summers v. Earth Island Institute, 129
S. Ct. 1142 (2009) (Scalia, J.), with Friends of the Earth v.
Laidlaw, 528 U.S. 167 (2000) (Ginsburg, J.). I write separately
No. 08-3857 15
to make the point that the Supreme Court’s case law on
this subject is both unclear in purpose and extra-
ordinarily difficult to reconcile. Close cases like this one
ought to make that point clearly. In particular, where a
citizen-suit provision potentially sets the bar for
proving the merits lower than the bar for proving
standing, it is incumbent upon us to carefully examine
why the plaintiff before us either has or has not estab-
lished “injury in fact.” Perhaps more important, this
plaintiff’s case has procedural flaws not addressed by
the majority.
The Clean Water Act includes a citizen-suit provision
stating 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.” 33 U.S.C. § 1365(a)(1). An “effluent
standard or limitation” is defined to include any term or
condition of an approved permit. See id., § 1365(f). Citizens
are therefore authorized to bring suit against any NPDES
permit holder who has allegedly violated its permit. See
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204
F.3d 149, 152 (4th Cir. 2000). The Act also includes a
statutory standing requirement, which defines “citizen” as
“a person or persons having an interest which is or may
be adversely affected.” 33 U.S.C. § 1365(g). Congress has
explained that this standing requirement confers
standing to its constitutional limits. See Gaston Copper,
204 F.3d at 152 (citation omitted). Even so, the broad
nature of the citizen-suit provision means that in many
cases, like this one, the real test will be proof of standing,
not of the merits.
16 No. 08-3857
To have standing under the “case or controversy”
requirement of Article III of the Constitution, an
individual must show an injury in fact that is both
concrete and particularized and actual or imminent, not
conjectural or hypothetical; that the injury is traceable to
the challenged action; and that it is redressable. Defenders
of Wildlife, 504 U.S. at 560–61; Sierra Club v. Franklin County
Power of Illinois, LLC, 546 F.3d 918, 925 (7th Cir. 2008)
(Franklin County Power). “Because these elements ‘are not
mere pleading requirements but rather an indispensable
part of the . . . case, each element must be supported . . .
with the manner and degree of evidence required at the
successive stages of the litigation.’ ” Franklin County
Power, 546 F.3d at 925 (quoting Defenders of Wildlife, 504
U.S. at 561).
Though the test for showing injury in fact is easy enough
to state, it is almost hopelessly confusing to apply. We are
told that “environmental plaintiffs adequately allege
injury in fact when they aver that they use the affected area
and are persons ‘for whom the aesthetic and recreational
values of the area will be lessened’ by the challenged
activity.” Laidlaw, 528 U.S. at 183 (quoting Sierra Club v.
Morton, 405 U.S. 727, 735 (1972)). “Of course, the desire
to use or observe an animal species, even for purely
esthetic purposes, is undeniably a cognizable interest
for purposes of standing.” Defenders of Wildlife, 504 U.S.
at 562–63 (citing Morton, 405 U.S. at 734). But the injury
in fact test requires more than an injury to a cognizable
interest. It requires that the plaintiff be “among the in-
jured.” Id. Nevertheless, the “ ‘injury-in-fact necessary for
standing need not be large, an identifiable trifle will
No. 08-3857 17
suffice.’ ” Franklin County Power, 546 F.3d at 925 (quoting
LaFleur v. Whitman, 300 F.3d 256, 270 (2d Cir. 2002))
(further internal quotation marks and citations omitted).
These statements raise more questions than they answer.
What is the “affected area”? How do we determine
whether someone’s aesthetic or recreational values will
be “lessened” other than by their say-so? What counts as
a “trifle” sufficient to place someone “among the injured”?
This guidance is particularly difficult to follow where
the plaintiff is on the bubble: Pollack does not live in
North Chicago, where the drinking water is concededly
drawn from the “affected area” of the lake, but he doesn’t
live in East Chicago 1 either, or even as far as Evanston.2 Is
Highland Park, thirteen miles away, close enough to be
“among the injured”?
The majority recites the relevant case law without really
engaging with it in a way that gives an answer to this
question. The majority quotes Franklin County Power at
length, for instance, including the court’s explanation
that, although “we don’t know if the particulate matter
from the plant will blot out the sky or merely create a
thin haze that’s not visible to the naked eye, . . . . [w]e do
know . . . that the plant will release some pollutants and
that McKasson believes these pollutants will ruin her
ability to enjoy Rend Lake and taint the surrounding area.”
Franklin County Power, 546 F.3d at 927. The same can be
1
East Chicago, Indiana is 60 miles south of the gun range by
car.
2
Evanston, Illinois is 26 miles south of the gun range.
18 No. 08-3857
said here—we know that the gun range has discharged
lead in the lake, and we know that Pollack believes that
lead in the lake will ruin his ability to enjoy drinking his
water, eating fish and watching waterfowl in the Great
Lakes watershed. In fact, this case is arguably an easier
case for standing than Franklin County Power. There, the
power plant in question had yet to be built—the injury
was, almost by definition, hypothetical. Here, not only
has the firing range admitted to discharging lead into the
lake, it has admitted to doing so without a permit over
the course of decades. And whatever else can be said
about Pollack’s injury, it is beyond cavil that lead is a
toxic substance that even in very small amounts causes
harm when ingested by the human body. The majority
appears to depart from Franklin County Power’s capacious
standard, and to settle on a narrower, more demanding
requirement.
This is particularly unfortunate here, where the plain-
tiffs’ case is flawed for procedural reasons that may not
require us to revisit Franklin County Power’s recent pro-
nouncements on standing. The plaintiffs arguably failed to
meet their burden of proof. Pollack correctly argues that he
need not show environmental degradation to establish
standing for a permit violation under the Clean Water Act.
See Gaston Copper, 204 F.3d at 159. “[T]he Supreme Court
does not require such proof.” Id. Gaston Copper explained
that in Laidlaw, the Court found that “several citizen
affidavits attesting to reduced use of a waterway out of
reasonable fear and concern of pollution ‘adequately
documented injury in fact.’ ” Id. (quoting Laidlaw, 528 U.S.
No. 08-3857 19
at 183). “The Court required no evidence of actual harm to
the waterway . . .” Id. Nevertheless, because the defendants
here have challenged the factual basis for the plaintiffs’
standing to sue, Pollack was required to present some
competent proof of his injuries, and his proof is subject to
refutation by the defendants.
On a factual challenge to a plaintiff’s standing, “ ‘the
district court may properly look beyond the jurisdictional
allegations of the complaint and view whatever evidence
has been submitted on the issue to determine whether
in fact subject matter jurisdiction exists.’ ” Apex Digital, Inc.
v. Sears, Roebuck & Co., 572 F.3d 440, at *3 (7th Cir. 2009)
(quoting Evers v. Astrue, 536 F.3d 651, 656–57 (7th Cir.
2008)) (further internal quotation marks and citations
omitted). Indeed, “ ‘the trial court is free to weigh the
evidence and satisfy itself as to the existence of its power
to hear the case.’ ” Id. (quoting Mortenson v. First Fed. Sav.
& Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). Again, it is
undisputed that the defendants regularly discharged
lead bullets into Lake Michigan without a permit and
that lead is a toxic chemical that can affect drinking water.
The narrow question is whether Pollack had a “reasonable
fear” that his drinking water was unsafe.
Pollack presented evidence of the “dynamic nature” of
the waters in Lake Michigan, suggesting that the lead in
the water next to North Chicago can migrate thirteen
miles south to Highland Park. The majority brushes this
evidence aside, stating that the EPA report Pollack offered
in support does not say what he said it says. The
majority asserts that “it is commonly understood that air
20 No. 08-3857
pollution can travel three miles through the air . . . . [but]
it is not readily apparent that Pollack would be affected
by the shooting at issue here.” Supra at 11. The majority
goes outside the record and cites no authority for its
assertion regarding what is commonly understood about
air pollution. Even accepting this assertion, it is also
commonly understood (at least among boaters in Lake
Michigan) that the currents at the foot of the lake, as
distinguished from the larger body of water generally, do
travel counter-clockwise at least part of the year, and
therefore the plaintiffs’ logic does not implicate the
entire lake or every point on its shoreline. It also misses
the mark to take Pollack’s argument “to its extreme” and
to posit whether someone on the other side of Lake Michi-
gan would have standing here—Pollack is the plaintiff
before us, and the facts and circumstances of his case,
namely his distance thirteen miles from the source of
pollution, are what we must address. Setting all of that
aside, the district court assumed that Pollack’s assertions
regarding the lake’s currents were true. It is not for us
to find otherwise.3
More to the point is the fact that the defendants pre-
sented their own evidence tending to rebut what little
3
The majority also focuses on the fact that the lead level in
Highland Park’s water is not high enough to violate federal
standards. This may be beside the point, given that Pollack
was not required to show any environmental degradation to
satisfy the requirements of standing. See Gaston Copper, 204
F.3d at 160. Lead is toxic in any amount, and the administrative
limit cited by the majority is a practical rather than an
ideal ceiling.
No. 08-3857 21
evidence that Pollack did put forth. The defendants
showed not only that Highland Park (unlike North Chi-
cago) draws its drinking water from intakes outside
the roughly 3,000-acre area presumably affected by the
firing range, but also that Highland Park and North
Chicago have attributed the small amount of lead in
their drinking water to corrosive pipes, not to the firing
range at issue here. In this respect, then, our case is
unlike Gaston Copper, where there was competent evi-
dence that the pollutants in question would travel more
than 16 miles downstream, passing through the plain-
tiff’s private lake on the way. Here, Pollack’s limited
evidence that lead has traveled or will travel south to
Highland Park and enter the plaintiff’s drinking water
was outweighed in the view of the district court by the
defendants’ evidence of an alternative cause for lead in
the water—the corrosive pipes just mentioned. The
district court properly exercised its fact-finding role and
concluded that the defendants had rebutted Pollack’s
evidence of standing. See Apex Digital, Inc., 572 F.3d 440,
at *3. This is what really seems to tip the balance in Pol-
lack’s case.
Perhaps what we can say here, then, is that the farther
the plaintiff is from the “area of injury,” the more
evidence he generally must put forth to prove that he is
“among the injured.” Perhaps, however, this case
resolves as it does merely because of the procedural
turns it took. If the defendants had made a facial
challenge rather than a factual challenge to Pollack’s
standing, or if Pollack had put forth more evidence of
lead’s likelihood of traveling thirteen miles south from
North Chicago, then the complaint may have withstood
22 No. 08-3857
the motion to dismiss. The caselaw is so unclear, how-
ever, that we cannot say more than that.
Pollack’s claims regarding aesthetic and recreational
injuries are less persuasive and the majority addresses
them adequately. Pollack does not allege that he uses the
affected area. See Laidlaw, 528 U.S. at 183 (quoting Morton,
405 U.S. at 735). Instead, he says he enjoys watching the
wildlife “in the Great Lakes watershed,” and that he uses
public areas “along the Illinois portion of Lake Michigan,”
and that he enjoys “eating freshwater and ocean fish.”
These interests are far broader than an interest in the area
affected by the firing range, however that area might be
defined. As the district court pointed out, and the
majority reprises, the Illinois shoreline Pollack claims to
use is 61 miles long, and the Great Lakes watershed
encompasses all five of the Great Lakes and is 750 miles
wide. Pollack never alleges that he used the beach at Foss
Park, adjacent to the range, or any beach near there.
Pollack’s averments are thus barely—but only barely—
insufficient to establish injury in fact, and unfortunately
may impair the salutary significance of Franklin County
Power.
For these reasons, with some reluctance, I concur.
8-13-09