Appeal from a judgment of the United States District Court for the Western District of New York, Michael A. Telesca, Judge, dismissing suit under the Clean Water Act, 33 U.S.C. §§ 1251-1376 (1982), for lack of standing. See 580 F. Supp. 862 (1984). Cross-appeal from order denying motion to dismiss on other grounds. Judgment affirmed; cross-appeal dismissed as moot.
Before: KEARSE, PIERCE, and MARKEY,*fn* Circuit Judges.
Plaintiff Sierra Club ("Sierra") appeals from a judgment of the United States District Court for the Western District of New York, Michael A. Telesca, Judge, dismissing for lack of standing its suit against defendant SCM Corporation ("SCM") for discharge of excessive pollutants into a tributary of Wolcott Creek in Wolcott, New York, in violation of the Clean Water Act, 33 U.S.C. §§ 1251-1376 (1982) (the "Act"). In an opinion reported at 580 F. Supp. 862 (1984), the court held that Sierra lacked standing to bring suit under § 505 of the Act, 33 U.S.C. § 1365, because Sierra neither alleged that it suffered an appropriate "injury in fact" nor identified any of its members alleged to have suffered such injury. On appeal, Sierra argues principally that, as an organization committed to preventing unpermitted pollution of the aquatic environment, it has been given standing by the Act to bring suit, and that any requirement that it identify a Sierra Club member injured by SCM's alleged pollution would violate that member's First Amendment rights to privacy and freedom of association. SCM cross-appeals, urging that if we conclude that plaintiff has standing, we should reverse the district court's denial of SCM's motion under 33 U.S.C. § 1365(b)(1)(B) to dismiss on the ground that state proceedings on the same facts have deprived the federal court of jurisdiction. For the reasons below, we affirm the judgment of the district court, and we therefore dismiss the cross-appeal as moot.
According to the complaint, Sierra is a national non-profit conservation organization with more than 300,000 members dedicated to protecting natural resources, including water. SCM, through its Durkee Famous Foods Division ("Durkee"), owns and operates an onion and potato processing plant in Wolcott, New York. SCM has a National Pollutant Discharge Elimination System/State Pollutant Discharge Elimination System ("NPDES/SPDES") permit, issued pursuant to § 402 of the Act, 33 U.S.C. § 1342, allowing it to discharge limited amounts of pollutants. The complaint alleged that SCM had repeatedly discharged into a tributary of Wolcott Creek pollutants in volumes exceeding those allowed by its permit.
Sierra predicated federal jurisdiction on § 505 of the Act, 33 U.S.C. § 1365, which authorizes a citizen to bring a suit in the district court "on his own behalf" against a person alleged to be in violation of the Act.*fn1 Sierra set out its interest in the present suit as follows:
Members of the Sierra Club reside in New York, in the vicinity of the unnamed tributary of Wolcott Creek into which Defendant's wastes are discharged, or own property or recreate in, on or near the unnamed tributary of Wolcott Creek. The quality of the nation's waters and the waters of the State of New York directly affects the health, economic, recreational, aesthetic, and environmental interest of the Sierra Club's members. The interests of Sierra Club's members have been, are being and will be adversely affected by the Defendant SCM Corporation -- Durkee Famous Foods Division's failure to comply with its NPDES/SPDES permit requirements.
(Complaint P7.) Sierra requested declaratory and injunctive relief; the imposition on SCM of civil penalties of $10,000 per day of violation, payable to the government; and an award to Sierra of costs, including fees for attorneys, witnesses, and consultants.
SCM moved to dismiss the complaint on the grounds, inter alia, that the court lacked jurisdiction by reason of the conclusion of state proceedings on the same facts. It asserted that prior to the present suit, the New York State Department of Environmental Conservation ("NYDEC") had commenced an administrative proceeding against SCM resulting in the entry against SCM of a consent order resolving all of the violations alleged in Sierra's complaint. SCM argued that Sierra's action was thus precluded by § 505(b)(1)(B) of the Act, 33 U.S.C. § 1365(b)(1)(B), see note 1 supra which provides that a private civil action may not be maintained if the appropriate state agency has commenced and is diligently prosecuting a civil action in stat or federal court to require compliance with the Act.
The district court denied SCM's motion to dismiss, in an opinion reported at 572 F. Supp. 828 (1983), and a number of procedural maneuvers followed. SCM sought certification of the jurisdiction issue for immediate appeal pursuant to 28 U.S.C. § 1292(b). Sierra Club responded with a motion for partial summary judgment on the issue of SCM's liability. SCM then served on Sierra a set of "Interrogatories Related to Standing," requesting identification of each Sierra Club member who resided, owned property, or recreated in the vicinity of the tributary; or whose health or economic, recreation, or aesthetic interests had been adversely affected by its pollution. For each person listed in response, SCM asked the dates and places of the uses made of the tributary and the manner in which SCM's conduct had affected those users. Sierra did not answer the interrogatories, but instead sought a protective order and moved for partial summary judgment on the standing issue. Sierra contended that the interrogatories were burdensome and irrelevant and would be moot upon the granting of Sierra's motions for partial summary judgment.
In support of its motion on the standing issue Sierra submitted the affidavit of its litigation coordinator, stating, inter alia, that more than 2,200 members of Sierra resided within 70 miles of the Durkee plant and that one Sierra member resided in Wolcott. Sierra also submitted copies of its bylaws and other materials describing its activities and the manner in which it decided to undertake litigation. In response, SCM argued that, as Sierra apparently did not intend to come forth with any factual showing of injury to itself or to identify any of its members claimed to suffer injury as a result of the alleged pollution, Sierra's motion for summary judgment on the issue of standing should be denied, and summary judgment on that issue should be entered in favor of SCM. At oral argument, Sierra argued that it had standing because it was interested in preserving the environment, that harm to Sierra was shown simply by the failure of SCM to comply with the Act, and that Congress had given any person with an interest such as that of Sierra a right to sue any person alleged to have violated the Act. Sierra indicated that it did not intend to identify any of its members who might have been harmed by the alleged violation. After hypothesizing the burdens to any member so identified and subjected to discovery proceedings, counsel for Sierra responded as follows to probing by the court:
THE COURT: But there is no question that you haven't identified the parties who are harmed, nor do you intend to.
MR. ROISMAN: Let me be clear about this Your Honor. Our position is that the parties who have been harmed do not have to be identified for any legitimate purposes the defendant has. . . .
(Transcript of hearing, February 23, 1984, at 11.)
The district judge rejected Sierra's arguments and ruled that it lacked standing to bring the suit. Relying on Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972), the court concluded that since "plaintiff has failed to show that any particular member of its organization has or may be adversely affected in any specific way by defendant's actions," Sierra's assertions of injury in fact were unsupported. 580 F. Supp. at 865. Accordingly, the court denied Sierra's motions for summary judgment. On the premise that "it would be a poor utilization of judicial resources to allow plaintiff yet another chance to come forward with" factual support, the court dismissed the complaint. Id. Sierra promptly appealed.
On appeal, Sierra contends that Congress intended § 505 of the Clean Water Act to confer standing on an organization such as Sierra to bring suit on the basis of its institutional interest in the preservation of the environment and that that institutional interest constitutes "injury in fact" within the meaning of standing doctrine. It also contends that any requirement that it disclose the names of members directly injured by the alleged pollution would violate the First Amendment rights of those individuals to privacy and freedom of association. SCM has cross-appealed, contending that the district court should have granted its motion to dismiss for lack of jurisdiction in light of the NYDEC consent order.
For the reasons below, we conclude that a general interest in environmental preservation as shown here by Sierra does not constitute injury in fact or satisfy the standing requirements of the Act. Any contention that Sierra is excused from making a proper showing of injury in fact by reason of the First Amendment rights of its members has been waived by Sierra's failure to make such an argument in the district court. ...