(Fell Aff. PP 5-7); and the affidavit of one of plaintiff's members, Robert B. Hodes, who also regularly fishes in the affected waters, averring that "the fishing has deteriorated markedly, particularly over the past five years" (Hodes Aff. P5).
From these submissions, it is clear that many of plaintiff's claims to standing are premised on conjecture and surmise, raising doubts as to whether plaintiff has shown the "sufficient stake" and "injury in fact" that entitle a party to obtain judicial resolution of an otherwise justiciable controversy. See Sierra Club v. Morton, 405 U.S. 727, 732-33, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). This is not to say that past or present injury must be proven; threatened injury may be sufficient to confer standing, see Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979). But the threat must be "imminent, not conjectural." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1972). Likewise, while an "injury to aesthetic and environmental well being" is sufficient in appropriate circumstances to confer standing, see Sierra Club v. SCM Corp., 747 F.2d 99, 104 (2d Cir. 1984), "offense" taken at the mere "possibility" of contamination is insufficient to support standing at the summary judgment stage. See Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990).
Nonetheless, it cannot be forgotten that Congress, in affording the statutory right to sue under the Clean Water Act to any "person or persons having an interest which is or may be affected" by, inter alia, any violation of any state order setting an effluent standard or limitation, see 33 U.S.C. § 1365, seemingly intended to confer standing on as broad a range of affected persons as is consistent with the dictates of Article III of the Constitution. Against this background, the Second Circuit in Friends Of the Earth v. Consolidated Rail Corp., 768 F.2d 57 (1985) -- a case involving similar permit violations -- found adequate evidence of standing in affidavits only slightly less vague and conclusory than the affidavits submitted here. See Friends of the Earth, 768 F.2d at 61. Indeed, at least one of the affiants here, Mr. Hodes, arguably makes out a better case for actual injury than the affiants in Friends of the Earth, for he avers that he is a regular trout fisherman in the waters into which the defendants' pollutants are directly discharged and that the fishing has steadily worsened over the period of these discharges (see Hodes Aff. PP 3-6). When this is coupled with Dr. Bell's averments that the excess discharges are particularly toxic to trout (see Bell Aff. PP 19-26), adequate evidence has been offered to avoid summary judgment for lack of standing.
Turning to plaintiff's motions, however, the Court takes note that "injury" for purposes of standing does not necessarily correspond to the kind of "irreparable injury" required for preliminary injunctive relief. While defendants do not contest plaintiff's allegation that the quantities of contaminants discharged from the Yorktown facility regularly exceed legally permissible limits -- thereby entitling plaintiff to partial summary judgment on the issue of liability -- they strenuously dispute whether this efflux, which they characterize as minimal, has had a material environmental impact. In the absence of harder proof of real and immediate injury, plaintiff fails to qualify for preliminary injunctive relief.
For the foregoing reasons, the Court hereby confirms its prior telephonic orders denying defendants' motion for summary judgment on standing, granting plaintiff's motion for partial summary judgment on liability, and denying plaintiff's motion for a preliminary injunction. In view of the parties' submission of their executed stipulation of settlement, the trial of this case, previously scheduled for December 30, 1996, is adjourned sine die in contemplation of dismissal of the action in February, 1997 upon notification of the appropriate approvals by the Department of Justice.
JED S. RAKOFF, U.S.D.J.
Dated: White Plains, New York
December 27, 1996
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