The opinion of the court was delivered by: TELESCA
MEMORANDUM DECISION AND ORDER
This is an action commenced by Sierra Club, against the defendant, SCM Corporation, alleging that the defendant has violated its water pollution discharge permit issued pursuant to the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. Section 1365. Plaintiff seeks injunctive relief to stop the discharge and further, requests the imposition of fines against defendant for past wrongdoing.
Defendant had previously moved to dismiss the complaint for lack of jurisdiction contending that a consent agreement entered into between defendant and the New York State Department of Environmental Conservation (DEC)
(after an administrative enforcement proceeding commenced by DEC), effectively precluded the imposition of this action under Section 505 of the Act. See 33 U.S.C. Section 1365(b)(1)(B). In a decision dated October 17, 1983 this Court denied defendant's motion and allowed the action to continue. 572 F. Supp. 828.
Presently before the Court are a series of motions and cross-motions as follows: (1) Defendant moves for certification of the jurisdictional question to the Second Circuit Court of Appeals pursuant to 28 U.S.C. Section 1292(b). (2) Plaintiff moves for partial summary judgment on the issues of liability and standing to sue, and also seeks a protective order to relieve it of the obligation of answering the interrogatories propounded by defendants to plaintiff concerning the issue of standing.
I hold that plaintiff lacks standing to bring this action, and therefore, the complaint is dismissed.
Defendant, SCM Corporation-Durkee Famous Foods Division, operates a potato and onion processing facility in Wolcott, Wayne County, New York. This facility discharges treated wastes into an unnamed tributary of a waterway known as the Wolcott Creek. Defendant was issued a permit to discharge effluent into this tributary at certain fixed levels. Plaintiff's complaint, and the papers submitted in support of its motion for summary judgment on liability, allege that from September, 1977 through February, 1982 defendant has violated its permit some 182 times. Plaintiff further alleges that "[t]he interests of the Sierra Club's members have been, are being and will be adversely affected by defendant[s] . . . failure to comply with its . . . permit requirements". (Complaint para. 7).
Moreover, in support of its motion for summary judgment on the issue of standing, plaintiff submits an affidavit which indicates that the Sierra Club has approximately 347,000 voting members, 2,200 of which reside within a 70 mile radius of defendant's plant. Additionally, plaintiff asserts that one of its members resides in the town of Wolcott.
Finally, plaintiff submits various pamphlets and by-laws which inform members of the Sierra Club's policy to litigate issues which affect the environment.
In support of its motion for summary judgment on the issue of standing plaintiff makes two alternative arguments, (1) that the complaint and material submitted in support of this motion, set forth sufficient allegations of "injury in fact" to its members to confer standing upon plaintiff, see Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977), and (2) that by the enactment of Section 505 of the Act, Congress specifically intended to eliminate the "injury in fact" requirement of standing to sue, and thus, plaintiff, and its members in the area, have standing to sue regardless of any actual or prospective injuries resulting from defendant's conduct. These alternative arguments will be dealt with in reverse order.
Put simply, "standing to sue" represents the constitutional requirement that a party must have a sufficient stake in the outcome of an otherwise justiciable controversy to obtain a judicial resolution of that controversy. Sierra Club v. Morton, 405 U.S. 727, 731-732, 92 S. Ct. 1361, 1364, 31 L. Ed. 2d 636 (1972). In Morton, the 9th Circuit had held that the Sierra Club lacked standing to bring an action under the Administrative Procedure Act because "there was no allegation in the complaint that members of the Sierra Club would be affected by the actions of [the Respondents] other than the fact that the actions are personally displeasing or distasteful to them". Sierra Club v. Hickel, 433 F.2d 24, 33 (9th Cir.1971). The Supreme Court affirmed, holding that "the party seeking review [must] himself be among the injured". Sierra Club v. Morton, supra, 405 U.S. at 735, 92 S. Ct. at 1366.
Plaintiff seeks to distinguish Morton from the present case relying upon the Supreme Court's own distinction in the Morton case between parties who "rely upon specific statute[s] authorizing invocation of the judicial process" and those that do not. Id. at 732, 92 S. Ct. at 1364. Plaintiff also relies upon Rite-Research v. Costle, 650 F.2d 1312 (5th Cir.1981) which had initially expounded upon this distinction. In Rite-Research the Fifth Circuit held that the plaintiffs had two alternative grounds for standing. First, the court found that the plaintiffs had satisfied the "injury in fact" analysis set forth in Morton. The court went on to hold, however, that the plaintiffs in Rite-Research presented an "even stronger claim of standing" from that alleged by the Sierra Club litigants. Id. at 1319. The Rite-Research court reasoned that the Supreme Court's holding in Morton would have been different if the plaintiff therein had been able to point to some specific statutory provision authorizing federal suit. In Rite-Research, however, the court pointed to Section 505 of the F.W.P.C.A., 33 U.S.C. Section 1365, as a statute which legislatively created standing and ...