Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. (2/23/2000, No. 98-1938)

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRIENDS OF THE EARTH,

INCORPORATED; CITIZENS LOCAL

ENVIRONMENTAL ACTION NETWORK,

INCORPORATED,

Plaintiffs-Appellants,

No. 98-1938

GASTON COPPER RECYCLING

CORPORATION,

Defendant-Appellee.

UNITED STATES OF AMERICA,

Amicus Curiae.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Matthew J. Perry, Jr., Senior District Judge.

(CA-92-2574-3)

Argued: October 25, 1999

Decided: February 23, 2000

Before: WILKINSON, Chief Judge, and WIDENER,

MURNAGHAN, WILKINS, NIEMEYER, LUTTIG, WILLIAMS,

MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Reversed and remanded by published opinion. Chief Judge Wilkinson

wrote the opinion, in which Judges Widener, Murnaghan, Wilkins,

Williams, Michael, Motz, Traxler, and King joined. Judge Niemeyer

wrote an opinion concurring in the judgment. Judge Luttig wrote an

opinion concurring in the judgment, in which Judge Niemeyer joined.

Senior Judge Hamilton wrote an opinion concurring in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Bruce J. Terris, TERRIS, PRAVLIK & MILLIAN,

L.L.P., Washington, D.C., for Appellants. Rufus Justin Smith,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Amicus Curiae. Harold Weinberg Jacobs, NEXSEN,

PRUET, JACOBS & POLLARD, L.L.P., Columbia, South Carolina,

for Appellee. ON BRIEF: Kathleen L. Millian, TERRIS, PRAVLIK

& MILLIAN, L.L.P., Washington, D.C.; Robert Guild, Columbia,

South Carolina, for Appellants. Lois J. Schiffer, Assistant Attorney

General, Greer S. Goldman, David Shilton, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus

Curiae.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Friends of the Earth (FOE) and Citizens Local Environmental

Action Network (CLEAN) brought a citizen suit against Gaston Cop-

per Recycling Corporation under the Clean Water Act. 33 U.S.C.

зз 1251-1387 (1994 & Supp. III 1997). Plaintiffs allege that Gaston

Copper has been illegally discharging a variety of pollutants into a

South Carolina waterway. Wilson Shealy, a CLEAN member who

owns a lake only four miles downstream from Gaston Copper's facil-

ity, testified that the illegal discharges caused him and his family to

reduce their use of his lake. CLEAN also submitted various federal,

state, and private studies as evidence that the pollutants released by

Gaston Copper adversely affected or threatened Shealy's lake. The

district court dismissed the case, holding that plaintiffs lacked stand-

ing because they had not demonstrated sufficient injury in fact. Dis-

missing the action, however, encroaches on congressional authority

by erecting barriers to standing so high as to frustrate citizen enforce-

ment of the Clean Water Act. We hold that Shealy, and hence

CLEAN, have standing to sue. We thus reverse the judgment and

remand for a determination of whether Gaston Copper has discharged

pollutants in excess of its permit limits.

Congress enacted the Federal Water Pollution Control Act Amend-

ments of 1972, better known as the Clean Water Act,"to restore and

maintain the chemical, physical, and biological integrity of the

Nation's waters." 33 U.S.C. з 1251(a). This legislation constituted "a

major change in the enforcement mechanism of the Federal water pol-

lution control program." American Petroleum Inst. v. Train, 526 F.2d

1343, 1344 (10th Cir. 1975) (internal quotation marks omitted). Prior

to 1972, the focus of federal efforts to abate water pollution was mea-

surement of the quality of receiving waters. See, e.g., Water Quality

Act of 1965, Pub. L. No. 89-234, 79 Stat. 903. But the great difficulty

in establishing reliable, precise limitations on pollution based solely

on water quality targets led to substantial enforcement problems. See

EPA v. California ex rel. State Water Resources Control Bd., 426

U.S. 200, 202-03 (1976). In fact, the use of water quality standards

as a control mechanism was found to be "inadequate in every vital

respect." S. Rep. No. 92-414, at 7 (1971), reprinted in 1972

U.S.C.C.A.N. 3668, 3674.

The Clean Water Act therefore shifted the focus of federal enforce-

ment efforts from water quality standards to direct limitations on the

discharge of pollutants -- i.e., "effluent limitations." See 33 U.S.C.

з 1311; Natural Resources Defense Council, Inc. v. EPA, 915 F.2d

1314, 1316 (9th Cir. 1990). Whereas the previous scheme required

proof of actual injury to a body of water to establish a violation, Con-

gress now instituted a regime of strict liability for illegal pollution

discharges. See, e.g., United States v. Winchester Mun. Utils., 944

F.2d 301, 304 (6th Cir. 1991). Government regulators were therefore

freed from the "need [to] search for a precise link between pollution

and water quality" in enforcing pollution controls. S. Rep. No. 92-

414, at 8, reprinted in 1972 U.S.C.C.A.N. at 3675. Rather, they could

simply determine whether a company was emptying more pollutants

into the water than the Act allowed in order to detect a violation of

the statute.

The centerpiece of the Clean Water Act is section 301(a). This sec-

tion provides: "Except as in compliance with this section and [other

sections of the Act], the discharge of any pollutant by any person

shall be unlawful." 33 U.S.C. з 1311(a). And in section 402 of the

Act, Congress established the National Pollutant Discharge Elimina-

tion System (NPDES), which authorizes the issuance of permits for

the discharge of limited amounts of effluent. Id. з 1342. The avail-

ability of such permits simply recognizes "that pollution continues

because of technological limits, not because of any inherent rights to

use the nation's waterways for the purpose of disposing of wastes."

Natural Resources Defense Council, Inc. v. Costle , 568 F.2d 1369,

1375 (D.C. Cir. 1977) (internal quotation marks omitted). Permit

holders must comply not only with limitations on the amount of pol-

lutants they may discharge, but also with a variety of monitoring, test-

ing, and reporting requirements. See, e.g., 33 U.S.C. з 1318.

Both the Environmental Protection Agency (EPA) and individual

states (with EPA approval) may issue NPDES permits. See id.

з 1342(a), (b). Accordingly, the State of South Carolina has estab-

lished an NPDES permit program administered by the Department of

Health and Environmental Control (DHEC). See S.C. Code Ann.

зз 48-1-10 et seq. (Law. Co-op. 1976 & West Supp. 1998).

Critical to the enforcement of the Clean Water Act is the citizen

suit provision found in section 505. 33 U.S.C. з 1365. Section 505(a)

states 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." Id. з 1365(a). An

"effluent standard or limitation" is defined to include any term or con-

dition of an approved permit. See id. з 1365(f). Citizens are thus

authorized to bring suit against any NPDES permit holder who has

allegedly violated its permit. A successful suit may result in the award

of injunctive relief and the imposition of civil penalties payable to the

United States Treasury. See id. з 1365(a).

Section 505(g) sets forth the statutory standing requirement for the

citizen suit provision of the Clean Water Act. Id. з 1365(g). Specifi-

cally, it defines "citizen" as "a person or persons having an interest

which is or may be adversely affected." Id. Congress has indicated

that this provision confers standing to enforce the Clean Water Act to

the full extent allowed by the Constitution. See Middlesex County

Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 16

(1981) (citing S. Conf. Rep. No. 92-1236, at 146 (1972), reprinted in

1972 U.S.C.C.A.N. 3776, 3823, which notes that the term "citizen"

in the Clean Water Act reflects the Supreme Court's decision in

Sierra Club v. Morton, 405 U.S. 727 (1972)).

Defendant Gaston Copper owns and operates a non-ferrous metals

smelting facility in Lexington County, South Carolina. At this plant,

Gaston Copper treats contaminated storm water and releases it into

Lake Watson, an impoundment on Gaston Copper's property. Lake

Watson's overflow is then discharged into the environment by way of

Boggy Branch, a tributary of Bull Swamp Creek. Bull Swamp Creek

in turn flows into the North Fork of the Edisto River, which lies 16.5

miles downstream from the discharge point.

When Gaston Copper purchased the operation in 1990, the facility

was covered by an NPDES permit issued by DHEC to the plant's pre-

vious owner. DHEC reissued the permit to Gaston Copper with an

effective date of March 1, 1991. This permit allowed Gaston Copper

to discharge wastewater containing limited quantities of pollutants,

including cadmium, copper, iron, lead, mercury, nickel, PCBs, and

zinc, from Lake Watson into Boggy Branch. The permit imposed pH

limits as well. The terms and conditions of the permit included the

monitoring and reporting of effluent discharges. Gaston Copper was

also required to abide by a schedule of compliance for meeting its

effluent limitations.

Plaintiffs FOE and CLEAN are two non-profit environmental orga-

nizations dedicated to protecting and improving the quality of natural

resources. One of FOE's stated objectives is "to combat and eliminate

water pollution." CLEAN exists "to clean up South Carolina's envi-

ronment" and to "educat[e] South Carolinians about environmental

issues affecting them as citizens and ways to address those issues."

Wilson Shealy is a member of CLEAN who lives with his family

four miles downstream from Gaston Copper's facility. Shealy has

resided on this property since 1964. His land contains a 67-acre lake

that was created by damming Bull Swamp Creek. Shealy and his fam-

ily fish, swim, and boat in the lake. Specifically, Shealy claims that

he fishes in the lake approximately every other week and swims in it

about twice per year. He occasionally eats the fish that he catches in

the lake. Further, Shealy's grandchildren, who live with him in the

summer, swim and fish in the lake nearly every summer day.

Shealy claims that the pollution or threat of pollution from Gaston

Copper's upstream facility has adversely affected his and his family's

use and enjoyment of the lake. He limits the amount of time that his

family swims in the lake because of his concern that the water is pol-

luted. He also limits the quantity of fish that they eat out of fear that

Gaston Copper's chemicals have lodged in the fish. Shealy states that

if it were not for this concern about pollution, he would fish in his

lake more often, eat the fish he catches more often, and allow his fam-

ily to swim in the lake more often. He also alleges that the actual or

threatened pollution diminishes the value of his property. Shealy has

heard people refer to his lake as "the polluted pond."

Guy Jones is a member of both FOE and CLEAN. He is the owner

and president of a canoe company that runs trips on the Edisto River.

Jones claims that his concern that Gaston Copper is polluting the

Edisto River affects his enjoyment of canoeing and swimming. He

also claims that his concern about the water quality undermines his

confidence in his company's ability to market its trips to the general

public.

William McCullough, Jr., is a member of FOE who scuba dives in

the Edisto River. He claims that he is concerned that the waters into

which he dives may be contaminated. McCullough is particularly

troubled by the possible presence of heavy metals. He states that he

would be less likely to dive into water that he knows to contain pollu-

tants.

On September 14, 1992, FOE and CLEAN filed a citizen suit in the

United States District Court for the District of South Carolina pursu-

ant to section 505 of the Clean Water Act. They alleged that Gaston

Copper had repeatedly violated the terms and conditions of its

NPDES permit at its Gaston facility. Specifically, plaintiffs claimed

that Gaston Copper had exceeded its permit's discharge limitations on

numerous occasions, failed to observe its permit's monitoring and

reporting requirements, and failed to meet its schedule of compliance.

Plaintiffs sought declaratory and injunctive relief to prevent further

permit violations, as well as the imposition of civil penalties and

costs.

Nearly six years after suit was filed and after a six-day bench trial,

the district court declined to rule on the merits of the case. The court

instead dismissed plaintiffs' complaint for lack of standing, holding

that none of plaintiffs' members had shown injury in fact. See Friends

of the Earth, Inc. v. Gaston Copper Recycling Corp. , 9 F. Supp. 2d

589 (D.S.C. 1998). A divided panel of this court affirmed the district

court's judgment. See Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp., 179 F.3d 107 (4th Cir. 1999). We granted rehearing

en banc and now reverse.

II.

Article III of the Constitution restricts the federal courts to the

adjudication of "cases" and "controversies." The threshold require-

ment of standing is "perhaps the most important" condition of justi-

ciability. Allen v. Wright, 468 U.S. 737, 750 (1984). The standing

inquiry ensures that a plaintiff has a sufficient personal stake in a dis-

pute to render judicial resolution appropriate. See id. at 750-51. The

standing requirement also "tends to assure that the legal questions

presented to the court will be resolved, not in the rarefied atmosphere

of a debating society, but in a concrete factual context conducive to

a realistic appreciation of the consequences of judicial action." Valley

Forge Christian College v. Americans United for Separation of

Church and State, Inc., 454 U.S. 464, 472 (1982).

To meet the constitutional minimum for standing,"[a] plaintiff

must allege personal injury fairly traceable to the defendant's alleg-

edly unlawful conduct and likely to be redressed by the requested

relief." Allen, 468 U.S. at 751. This formula includes three elements:

(1) injury in fact; (2) traceability; and (3) redressability. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The injury in fact

prong requires that a plaintiff suffer an invasion of a legally protected

interest which is concrete and particularized, as well as actual or

imminent. See id. at 560. The traceability prong means it must be

likely that the injury was caused by the conduct complained of and

not by the independent action of some third party not before the court.

See id. Finally, the redressability prong entails that it must be likely,

and not merely speculative, that a favorable decision will remedy the

injury. See id. at 561.

While each of the three prongs of standing should be analyzed dis-

tinctly, their proof often overlaps. Moreover, these requirements share

a common purpose -- namely, to ensure that the judiciary, and not

another branch of government, is the appropriate forum in which to

address a plaintiff's complaint. See Allen, 468 U.S. at 752.

In most kinds of litigation, there is scant need for courts to pause

over the standing inquiry. One can readily recognize that the victim

of an automobile accident or a party to a breached contract bears the

kind of claim that he may press in court. In other sorts of cases, how-

ever, the nexus between the legal claim and the individual asserting

the claim may not be so self-evident. Standing inquiry in environmen-

tal cases, for example, must reflect the context in which the suit is

brought. In some instances, environmental injury can be demarcated

as a traditional trespass on property or tortious injury to a person. In

other cases, however, the damage is to an individual's aesthetic or

recreational interests. The Supreme Court has made it clear that such

interests may be vindicated in the federal courts. See, e.g., Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 120 S. Ct. 693,

705 (2000) (effect on "recreational, aesthetic, and economic interests"

is cognizable injury for purposes of standing); Lujan v. Defenders of

Wildlife, 504 U.S. at 562-63 (purely aesthetic interest is cognizable

for purposes of standing); Sierra Club v. Morton , 405 U.S. at 734

("Aesthetic and environmental well-being, like economic well-being,

are important ingredients of the quality of life in our society . . .

deserving of legal protection through the judicial process.");

Association of Data Processing Serv. Orgs. v. Camp , 397 U.S. 150,

154 (1970) (interest supporting standing "may reflect aesthetic, con-

servational, and recreational as well as economic values" (internal

quotation marks omitted)). But because these and other noneconomic

interests may be widely shared, the Supreme Court has cautioned that

environmental plaintiffs must themselves be "among the injured."

Sierra Club v. Morton, 405 U.S. at 735. If it were otherwise, the Arti-

cle III case or controversy requirement would be reduced to a mean-

ingless formality.

Courts must therefore examine the allegations in such cases "to

ascertain whether the particular plaintiff is entitled to an adjudication

of the particular claims asserted." Allen, 468 U.S. at 752. Such scru-

tiny is necessary to filter the truly afflicted from the abstractly dis-

tressed. Courts discharge this duty by asking such questions as: "Is

the injury too abstract, or otherwise not appropriate, to be considered

judicially cognizable? Is the line of causation between the illegal con-

duct and injury too attenuated? Is the prospect of obtaining relief from

the injury as a result of a favorable ruling too speculative?" Id. If the

plaintiff can show that his claim to relief is free from excessive

abstraction, undue attenuation, and unbridled speculation, the Consti-

tution places no further barriers between the plaintiff and an adjudica-

tion of his rights.

In addition to meeting the "irreducible" constitutional minimum,

Lujan v. Defenders of Wildlife, 504 U.S. at 560, an individual must

also satisfy any statutory requirements for standing before bringing

suit. As noted earlier, the citizen suit provision of the Clean Water

Act confers standing on any "person or persons having an interest

which is or may be adversely affected." 33 U.S.C.з 1365(g). The lan-

guage chosen by Congress confers standing on a "broad category of

potential plaintiffs" who "can claim some sort of injury," be it actual

or threatened, economic or noneconomic. National Sea Clammers,

453 U.S. at 16-17.

The Supreme Court recognized in National Sea Clammers that this

grant of standing reaches the outer limits of Article III. Id. at 16 ("It

is clear from the Senate Conference Report that this phrase was

intended by Congress to allow suits by all persons possessing stand-

ing under this Court's decision in Sierra Club v. Morton."). Thus, if

a Clean Water Act plaintiff meets the constitutional requirements for

standing, then he ipso facto satisfies the statutory threshold as well.

Finally, an association may have standing to sue in federal court

either based on an injury to the organization in its own right or as the

representative of its members who have been harmed. See Warth v.

Seldin, 422 U.S. 490, 511 (1975). An organization has representa-

tional standing when (1) at least one of its members would have

standing to sue in his own right; (2) the organization seeks to protect

interests germane to the organization's purpose; and (3) neither the

claim asserted nor the relief sought requires the participation of indi-

vidual members in the lawsuit. See Hunt v. Washington State Apple

Adver. Comm'n, 432 U.S. 333, 343 (1977).

FOE and CLEAN assert representational standing on behalf of

their members who have been harmed or threatened by Gaston Cop-

per's discharge. The parties in this case contest only whether the first

prong of representational standing -- i.e., whether any member of

FOE or CLEAN has individual standing -- has been satisfied.

III.

The district court held that FOE and CLEAN lacked standing under

Article III because they failed to establish that any of their members

suffered an injury fairly traceable to Gaston Copper's alleged permit

violations. The court pointed to the supposed absence of certain types

of evidence: "No evidence was presented concerning the chemical

content of the waterways affected by the defendant's facility. No evi-

dence of any increase in the salinity of the waterways, or any other

negative change in the ecosystem of the waterway was presented."

Gaston Copper Recycling, 9 F. Supp. 2d at 600. The district court

therefore concluded that "[n]o evidence was presented that any plain-

tiff member has been adversely affected by the defendant's conduct."

Id.

We disagree. CLEAN has surpassed the threshold that Article III

and the Clean Water Act set for establishing a case or controversy.

Wilson Shealy is a classic example of an individual who has suffered

an environmental injury in fact fairly traceable to a defendant's con-

duct and likely to be redressed by the relief sought. The trial court

erred therefore in creating evidentiary barriers to standing that the

Constitution does not require and Congress has not embraced. In fact,

the legislative branch has invited precisely the type of suit brought by

CLEAN. The judicial branch is not at liberty to impede its resolution

on the merits.

We proceed then to examine each of the three elements of the

standing inquiry. The injury in fact requirement precludes those with

merely generalized grievances from bringing suit to vindicate an

interest common to the entire public. See Lujan v. Defenders of

Wildlife, 504 U.S. at 575. A plaintiff must instead suffer an invasion

of a legally protected interest that is "concrete and particularized"

before he can bring an action. Id. at 560. He must somehow differen-

tiate himself from the mass of people who may find the conduct of

which he complains to be objectionable only in an abstract sense. In

other words, the alleged injury "must affect the plaintiff in a personal

and individual way." Id. at 560 n.1. Without this requirement, the fed-

eral judicial process would be transformed into"no more than a vehi-

cle for the vindication of the value interests of concerned bystanders."

Valley Forge, 454 U.S. at 473 (internal quotation marks omitted).

The injury in fact requirement also blocks suit by those whose alle-

gations of injury are based on mere conjecture rather than an actual

or threatened invasion of their legally protected interests. See Lujan

v. Defenders of Wildlife, 504 U.S. at 560. Federal jurisdiction cannot

lie if the alleged injury is merely "an ingenious academic exercise in

the conceivable." United States v. Students Challenging Regulatory

Agency Procedures (SCRAP), 412 U.S. 669, 688 (1973). But this

standard is one of kind and not of degree. Indeed, the claimed injury

"need not be large, an identifiable trifle will suffice." Sierra Club v.

Cedar Point Oil Co., 73 F.3d 546, 557 (5th Cir. 1996) (internal quota-

tion marks omitted); see also Conservation Council of North Carolina

v. Costanzo, 505 F.2d 498, 501 (4th Cir. 1974) ("The claimed injury

need not be great or substantial; an identifiable trifle, if actual and

genuine, gives rise to standing." (internal quotation marks omitted)).

Shealy has plainly demonstrated injury in fact. He has produced

evidence of actual or threatened injury to a waterway in which he has

a legally protected interest. Shealy is a property owner whose lake lies

in the path of Gaston Copper's toxic chemical discharge. He and his

family swim and fish in this lake. Shealy testified that he and his fam-

ily swim less in and eat less fish from the lake because of his fears

of pollution from Gaston Copper's permit exceedances. Shealy fur-

ther claims that the pollution or threat of pollution has diminished the

value of his property. Indeed, others have referred to his lake as "the

polluted pond."

In fact, Shealy has alleged precisely those types of injuries that

Congress intended to prevent by enacting the Clean Water Act. One

of the well-recognized aims of the Act is to ensure that the nation's

waterways are "fishable and swimmable." See, e.g., Shanty Town

Assocs. Ltd. Partnership v. EPA, 843 F.2d 782, 784 (4th Cir. 1988).

Congress proclaimed this goal to provide "for the protection and

propagation of fish, shellfish, and wildlife and provide[ ] for recre-

ation in and on the water." 33 U.S.C. з 1251(a)(2). And it is well

established that the "injury required by Article III may exist solely by

virtue of statutes creating legal rights, the invasion of which creates

standing." Warth, 422 U.S. at 500 (internal quotation marks omitted).

Moreover, DHEC developed Gaston Copper's permit limits pursuant

to a statutory command to protect public health, fish, and wildlife and

to allow recreational activities on the water. See 33 U.S.C. з 1312(a).

These health and recreational interests are constitutionally recognized

as cognizable bases for injury in fact. See, e.g., Laidlaw, 120 S. Ct.

at 705; Sierra Club v. Morton, 405 U.S. at 734.

Shealy is thus anything but a roving environmental ombudsman

seeking to right environmental wrongs wherever he might find them.

He is a real person who owns a real home and lake in close proximity

to Gaston Copper. These facts unquestionably differentiate Shealy

from the general public. The company's discharge violations affect

the concrete, particularized legal rights of this specific citizen. He

brings this suit to vindicate his private interests in his and his family's

well-being -- not some ethereal public interest. We in turn are pre-

sented with an issue "traditionally thought to be capable of resolution

through the judicial process." Allen, 468 U.S. at 752 (internal quota-

tion marks omitted).

Further, CLEAN has presented ample evidence that Shealy's fears

are reasonable and not based on mere conjecture. The record is replete

with evidence that Gaston Copper is fouling its receiving waters.

Plaintiffs submitted discharge monitoring reports spanning more than

four years of Gaston Copper's operations. They allege that these

reports show over 500 violations of the company's discharge limits,

including unlawful releases of cadmium, copper, iron, lead, and zinc,

as well as pH violations.

Plaintiffs also offered evidence in the form of EPA studies and

expert testimony of the adverse health and environmental effects of

these chemicals. For example, copper is particularly toxic to aquatic

organisms and can prevent spawning in fish. See Joint Appendix at

183, 439. Human beings are sensitive to lead poisoning, which can

result in irreversible brain damage to children and other neurological

impairment. See J.A. at 185, 448. Cadmium is also toxic and may

cause a variety of health problems in humans, including cancer. See

J.A. at 186, 412-15. Iron is chronically toxic to aquatic organisms and

leads to rust formation, which in turn degrades the aesthetic quality

of the lake. See J.A. at 186. And disruption of the acceptable pH level

of a waterway may increase the toxicity of certain chemicals to fish.

See J.A. at 482-83.

Plaintiffs submitted further evidence that Gaston Copper's permit

exceedances could and did cause environmental degradation. To

begin with, many of Gaston Copper's discharge limits were estab-

lished by DHEC in order to attain a particular water quality. Because

these discharge restrictions are set at the level necessary to protect the

designated uses of the receiving waterways, their violation necessarily

means that these uses may be harmed. See, e.g. , Public Interest Group

of New Jersey, Inc. v. Rice, 774 F. Supp. 317, 328 (D.N.J. 1991). This

fact was confirmed by a DHEC employee called to the stand by Gas-

ton Copper at trial:

[Q:] And it's also assumed, is it not, that if you do not meet

those [water-quality-based discharge] limits, you may be

interfering with the designated uses of those waterways?

[A:] That's correct.

[Q:] And therefore if a designated use is swimming and you

don't meet those limits, you may very well be interfering

with the safety of swimming in that waterway?

[A:] That's correct.

In addition, Gaston Copper failed forty-one whole effluent toxicity

tests in the forty-nine months between March 1991 and March 1995.

These tests consisted of placing small organisms in effluent samples

and counting the number that sicken. And at least eight of these toxic-

ity failures were based on samples taken on days when the company

allegedly violated its effluent limits. Even the company's own studies

showed elevated quantities of cadmium, copper, lead, and mercury in

sediment taken from the facility's receiving waters and unnatural con-

centrations of metals in the tissue of fish. Gaston Copper's permit vio-

lations thus bear a direct relationship to the waterway's health.

Moreover, Gaston Copper's discharge affects or can affect the

waters for a significant distance downstream. The parties have stipu-

lated that the overflow from Lake Watson pours into Boggy Branch,

a tributary of Bull Swamp Creek, which empties into the Edisto

River. Yet plaintiffs offer far more than the stipulated description of

the downstream flow of the water. During the comment period for

Gaston Copper's permit, DHEC officially responded in writing to one

downstream property owner's question as follows:

[Q:] I own property where Bull Swamp goes into the Edisto

River, and I'd like to know, would the runoff go that far?

[A:] Yes, the runoff will go to Boggy Branch to Bull

Swamp to the Edisto River. The confluence of Bull Swamp

and [the] Edisto River is 16.5 miles.

Common sense dictates that the purpose of the question was to deter-

mine just how far downstream Gaston Copper's discharge would

affect property owners. And the clear implication of DHEC's

response is that Gaston Copper's discharges can impact the receiving

waterway for a good distance downstream -- well past Shealy's prop-

erty and on down to the Edisto River itself. Shealy's lake is fed by

Bull Swamp Creek only four miles downstream from the polluting

facility. DHEC has indicated that the runoff will reach at least as far

as the Edisto, which lies 12.5 miles beyond Shealy's property. Shea-

ly's lake and home therefore lie more than four times closer to Gaston

Copper than the acknowledged outer perimeter of the discharge zone.

As if this were not enough, Shealy has also presented uncontro-

verted testimony that the types of chemicals released into the water

by Gaston Copper had been previously found in his lake. DHEC

employees visited Shealy's property in the 1980s, analyzed the water

quality of his lake, and reported the presence of copper, zinc, nickel,

iron, and PCBs. These are the same chemicals that the plant released

in its wastewater during the tenures of both Gaston Copper and its

predecessor. Although these tests were conducted before Gaston Cop-

per took control of the facility in 1990, Gaston Copper operated the

smelting facility using a similar wastewater treatment system to that

of its predecessor. The evidence of past pollution is therefore directly

relevant to the question of whether Gaston Copper subsequently

affected or could affect Shealy's lake. Shealy's testimony that pollu-

tion of the type discharged by this system has reached his lake in the

past shows that his fears are based on more than mere speculation.

In sum, the evidence paints a stark picture: Gaston Copper has been

accused of violating its discharge permit. Its discharge affects or has

the potential to affect the waterway for 16.5 miles downstream. Wil-

son Shealy sits a mere four miles from the mouth of the discharge

pipe. The state has found the kinds of chemicals discharged by Gaston

Copper in Shealy's lake in the past. And federal and private studies

demonstrate the harmful environmental and health impacts of the

toxic chemicals released by Gaston Copper. When this evidence is

viewed in light of the legal threshold for standing, it is clear that the

district court erroneously dismissed plaintiffs' suit. Shealy's claim is

not a "generalized grievance" that relegates him to the status of a

"concerned bystander" with a mere abstract interest in the environ-

ment. Gaston Copper Recycling, 9 F. Supp. 2d at 600. While Shealy

is unquestionably "concerned," he is no mere"bystander." See Cedar

Point Oil Co., 73 F.3d at 556.

It is instructive to contrast Shealy's injury with the injuries alleged

by the plaintiffs in Lujan v. Defenders of Wildlife, 504 U.S. 555. In

that case, the Defenders of Wildlife sought to challenge a government

regulation that rendered the Endangered Species Act inapplicable to

American actions in foreign nations. See id. at 557-558. Two mem-

bers of the group alleged that they had traveled to foreign countries

and observed the habitats of certain endangered species. See id. at

563. They also professed an intent to return to those countries at some

indefinite future time in the hope of seeing the animals themselves.

See id. at 563-64. The members feared, however, that American

involvement in development projects abroad would damage the spe-

cies' habitats, thereby risking extinction and causing the members

harm. See id. at 563.

The Supreme Court dismissed the case for lack of standing because

plaintiff's members' allegations were insufficient to establish injury

in fact. See id. at 564-66. The members failed to show how damage

to the species would produce imminent injury to themselves. See id.

at 564. They could not demonstrate any injury "apart from their spe-

cial interest in the subject." Id. at 563 (internal quotation marks omit-

ted). Their "some day" intentions to return to the areas they had

visited were simply not enough. See id. at 564. The Court also

rejected a variety of theories connecting distant plaintiffs to areas of

impact on endangered species as "ingenious academic exercise[s] in

the conceivable." Id. at 566 (internal quotation marks omitted). The

most expansive of these theories would have recognized injury in fact

to "anyone who observes or works with an endangered species, any-

where in the world" resulting from "a single project affecting some

portion of that species with which he has no more specific connec-

tion." Id. at 567.

Shealy, by contrast, need not resort to such hypothetical harms to

demonstrate his injury in fact. He is not asserting a mere academic or

philosophical interest in the protection of the South Carolina water-

ways affected by Gaston Copper's pollution. Nor does he claim that

he merely "some day" intends to enjoy the use of his lake. Rather, he

is a property owner in the path of a toxic discharge whose injury is

ongoing. He is thus precisely the type of plaintiff that the Supreme

Court envisioned in Lujan v. Defenders of Wildlife -- namely, one

who is acting to protect a "threatened concrete interest of his" own.

504 U.S. at 573 n.8.

The district court, however, required that plaintiffs present further

evidence concerning one or more of the following: (1) "the chemical

content of the waterways affected by the defendant's facility"; (2)

"any increase in the salinity of the waterways"; and (3) "other nega-

tive change in the ecosystem of the waterway." Gaston Copper

Recycling, 9 F. Supp. 2d at 600. But the Supreme Court does not

require such proof. In Laidlaw, 120 S. Ct. at 704-05, the Court found

that several citizen affidavits attesting to reduced use of a waterway

out of reasonable fear and concern of pollution"adequately docu-

mented injury in fact." Each of the citizens alleged that he or she

would make greater recreational use of some part of the affected

waterway were it not for their concern about the harmful effects of

the defendant's discharges. See id. The Court required no evidence of

actual harm to the waterway, noting: "We have held that environmen-

tal plaintiffs adequately allege injury in fact when they aver that they

use the affected area and are persons `for whom the aesthetic and rec-

reational values of the area will be lessened' by the challenged activ-

ity." Id. at 705 (quoting Sierra Club v. Morton, 405 U.S. at 735).

Nor has any circuit required additional scientific proof where there

was a direct nexus between the claimant and the area of environmen-

tal impairment. In Cedar Point Oil Co., for example, the Fifth Circuit

held that citizens' concern about water quality in Galveston Bay suf-

ficed as injury in fact where "[t]wo of the affiants live near Galveston

Bay and all of them use the bay for recreational activities." 73 F.3d

at 556. It was enough that "the affiants expressed fear that the dis-

charge . . . will impair their enjoyment of these activities because

these activities are dependent upon good water quality." Id.

Likewise, in Friends of the Earth v. Consolidated Rail Corp., the

Second Circuit found that two citizen affidavits"quite adequately sat-

isfy the standing threshold." 768 F.2d 57, 61 (2d Cir. 1985). In the

first affidavit, a citizen stated that "he passes the Hudson [River] reg-

ularly and find[s] the pollution in the river offensive to [his] aesthetic

values." Id. (internal quotation marks omitted). In the second, a father

"averred that his children swim in the river, his son occasionally

fishes in the river and his family has and will continue to picnic along

the river." Id. And in United States v. Metropolitan St. Louis Sewer

Dist., the Eighth Circuit approved the standing of a citizens' group

whose members alleged that they "visit, cross, and frequently

observe" the Mississippi River and "from time to time . . . use these

waters for recreational purposes." 883 F.2d 54, 56 (8th Cir. 1989). In

none of these cases -- where incidentally the claims of standing were

weaker than the one before us -- did the court require further specific

allegations or evidence of the actual level of pollution in the water-

way.

Courts have also left no doubt that threatened injury to Shealy is

by itself injury in fact. The Supreme Court has consistently recog-

nized that threatened rather than actual injury can satisfy Article III

standing requirements. See, e.g., Valley Forge, 454 U.S. at 472;

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979).

"[O]ne does not have to await the consummation of threatened injury

to obtain preventive relief. If the injury is certainly impending that is

enough." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289,

298 (1979) (internal quotation marks omitted).

Threats or increased risk thus constitutes cognizable harm. Threat-

ened environmental injury is by nature probabilistic. And yet other

circuits have had no trouble understanding the injurious nature of risk

itself. For example, in Village of Elk Grove Village v. Evans, the Sev-

enth Circuit found standing because "[t]he Village is in the path of a

potential flood" and "even a small probability of injury is sufficient

to create a case or controversy." 997 F.2d 328, 329 (7th Cir. 1993).

Similarly, the District of Columbia Circuit in Mountain States Legal

Found. v. Glickman held that an increased risk of wildfire from cer-

tain logging practices constitutes injury in fact. 92 F.3d 1228, 1234-

35 (D.C. Cir. 1996). And the Fifth Circuit in Cedar Point Oil Co. did

not require evidence of actual harm to the waterway, noting: "That

this injury is couched in terms of future impairment rather than past

impairment is of no moment." 73 F.3d at 556.

In this case, Gaston Copper's alleged permit violations threaten the

waters within the acknowledged range of its discharge, including the

lake on Shealy's property. By producing evidence that Gaston Copper

is polluting Shealy's nearby water source, CLEAN has shown an

increased risk to its member's downstream uses. This threatened

injury is sufficient to provide injury in fact. Shealy need not wait until

his lake becomes barren and sterile or assumes an unpleasant color

and smell before he can invoke the protections of the Clean Water

Act. Such a novel demand would eliminate the claims of those who

are directly threatened but not yet engulfed by an unlawful discharge.

Article III does not bar such concrete disputes from court. See Lujan

v. Defenders of Wildlife, 504 U.S. at 560-61.

Gaston Copper contends that Shealy has not supplied adequate

proof of environmental degradation to show injury in fact. "The rele-

vant showing for purposes of Article III standing, however, is not

injury to the environment but injury to the plaintiff. To insist upon the

former rather than the latter as part of the standing inquiry . . . is to

raise the standing hurdle higher than the necessary showing for suc-

cess on the merits in an action alleging noncompliance with an

NPDES permit." Laidlaw, 120 S. Ct. at 704. Shealy's reasonable fear

and concern about the effects of Gaston Copper's discharge, sup-

ported by objective evidence, directly affect his recreational and eco-

nomic interests. This impact constitutes injury in fact. See id. at 705-

06. It requires no abstraction or conjecture to understand the harm that

confronts Shealy. We therefore have no doubt that Shealy can be

counted "among the injured" for standing purposes. Lujan v. Defend-

ers of Wildlife, 504 U.S. at 563 (internal quotation marks omitted).

The district court's error lies in asking too much-- namely, in con-

structing barriers to an injured citizen's vindication of indisputably

private interests in the use of his property and in the health of his fam-

ily. Article III does not command such a judicial evisceration of the

Clean Water Act's protections. And separation of powers principles

will not countenance it.1

CLEAN also satisfies the second prong of the standing inquiry.

_________________________________________________________________

1 It is clear that CLEAN member Shealy has demonstrated injury in

fact. The claims to injury of FOE members Jones and McCullough, how-

ever, present closer questions. The district court has not had an opportu-

nity to consider their claims in light of the Supreme Court's standing

analysis in Laidlaw, 120 S. Ct. at 704-06. We therefore remand Jones'

and McCullough's assertions of standing to the district court for evalua-

tion in light of Laidlaw. We leave to the discretion of the district court

whether to reopen the record for further testimony on the question of

FOE's standing.

The "fairly traceable" requirement ensures that there is a genuine

nexus between a plaintiff's injury and a defendant's alleged illegal

conduct. See Lujan v. Defenders of Wildlife, 504 U.S. at 560. But

traceability "`does not mean that plaintiffs must show to a scientific

certainty that defendant's effluent . . . caused the precise harm suf-

fered by the plaintiffs.'" Natural Resources Defense Council, Inc. v.

Watkins, 954 F.2d 974, 980 n.7 (4th Cir. 1992) (quoting Public Inter-

est Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913

F.2d 64, 72 (3d Cir. 1990)). If scientific certainty were the standard,

then plaintiffs would be required to supply costly, strict proof of cau-

sation to meet a threshold jurisdictional requirement -- even where,

as here, the asserted cause of action does not itself require such proof.

Thus, the "fairly traceable" standard is "`not equivalent to a require-

ment of tort causation.'" Id. (quoting Powell Duffryn Terminals, 913

F.2d at 72). Other circuits have refused to interpret it as such. See

Cedar Point Oil Co., 73 F.3d at 557-58; Natural Resources Defense

Council, Inc. v. Texaco Ref. & Mktg., Inc., 2 F.3d 493, 505 (3d Cir.

1993); Powell Duffryn Terminals, 913 F.2d at 72-73.

Rather than pinpointing the origins of particular molecules, a plain-

tiff "must merely show that a defendant discharges a pollutant that

causes or contributes to the kinds of injuries alleged" in the specific

geographic area of concern. Watkins, 954 F.2d at 980 (internal quota-

tion marks omitted). In this way a plaintiff demonstrates that a partic-

ular defendant's discharge has affected or has the potential to affect

his interests. See id. at 980-81.

CLEAN has satisfied this standard. Much of the evidence already

cited for Shealy's injury in fact also proves traceability to Gaston

Copper. Shealy testified to the past presence of metals in his lake of

the type discharged by Gaston Copper. Plaintiffs have also submitted

toxicity tests that show Gaston Copper is discharging pollutants at

levels that cause environmental degradation. In addition, plaintiffs

submitted evidence that the company's discharge will travel 16.5

miles downstream -- well beyond the four-mile point that is Shealy's

lake. Shealy's testimony, buttressed by objective evidence from

DHEC, thus establishes that his injuries are fairly traceable to Gaston

Copper.

Moreover, there is no suggestion that any entity other than Gaston

Copper is responsible for the injury in fact that Shealy has estab-

lished. The "fairly traceable" requirement is in large part designed to

ensure that the injury complained of is "not the result of the indepen-

dent action of some third party not before the court." Lujan v. Defend-

ers of Wildlife, 504 U.S. at 560 (internal quotation marks omitted).

Where a plaintiff has pointed to a polluting source as the seed of his

injury, and the owner of the polluting source has supplied no alterna-

tive culprit, the "fairly traceable" requirement can be said to be fairly

met. This is the case here. As we have held, Shealy has shown injury

in fact. This injury must, of course, be attributable to someone or

something. Shealy points to a definite polluting source -- namely,

Gaston Copper -- and supports this contention with objective evi-

dence. Gaston Copper points to no other polluting source in response.

Its efforts to contest the traceability of Shealy's injury to its facility

therefore fail.

We decline to transform the "fairly traceable" requirement into the

kind of scientific inquiry that neither the Supreme Court nor Congress

intended. The absence of laboratory analysis of the chemical content,

salinity, or ecosystem of Shealy's lake is of no moment for one sim-

ple reason: The law does not require such evidence. While Article III

sets the minimum requirements for standing, Congress is entitled to

impose more exacting standing requirements for the vindication of

federal statutory rights if it wishes. Here the legislature chose to go

to the full extent of Article III in conferring standing on any person

with "an interest which is or may be adversely affected." 33 U.S.C.

з 1365(g); National Sea Clammers, 453 U.S. at 16. To have standing

hinge on anything more in a Clean Water Act case would necessitate

the litigation of complicated issues of scientific fact that are entirely

collateral to the question Congress wished resolved-- namely,

whether a defendant has exceeded its permit limits.

In applying the "fairly traceable" requirement, some distinction, of

course, must be made between plaintiffs who lie within the discharge

zone of a polluter and those who are so far downstream that their inju-

ries cannot fairly be traced to that defendant. Compare Friends of the

Earth, Inc. v. Crown Cent. Petroleum Corp., 95 F.3d 358, 361-62 (5th

Cir. 1996) (finding an eighteen-mile distance "too large to infer cau-

sation"), with Friends of the Earth, Inc. v. Chevron Chem. Co., 900

F. Supp. 67, 75 (E.D. Tex. 1995) (finding a two-to-four-mile distance

sufficient to show causation). But to turn away a citizen who sits

squarely in the discharge zone of a polluting facility seems more cal-

culated "to negate the strict liability standard of the [Clean Water]

Act" than to articulate any meaningful distinction. Powell Duffryn

Terminals, 913 F.2d at 73 n.10. CLEAN has charged that (1) Gaston

Copper exceeds its discharge permit limits for chemicals that cause

the types of injuries Shealy alleges and that (2) Shealy's lake lies

within the range of that discharge. No court has required additional

proof of causation in such a case.

Finally, CLEAN has standing because a favorable decision by the

district court will redress Shealy's injuries. The redressability require-

ment ensures that a plaintiff "personally would benefit in a tangible

way from the court's intervention." Warth, 422 U.S. at 508. A plain-

tiff seeking injunctive relief shows redressability by "alleg[ing] a con-

tinuing violation or the imminence of a future violation" of the statute

at issue. Steel Co. v. Citizens for a Better Env't, 118 S. Ct. 1003, 1019

(1998); see also Laidlaw, 120 S. Ct. at 707-08 (noting that Steel Co.

held that private plaintiffs may not sue to assess penalties for wholly

past violations).

Here CLEAN seeks injunctive and other relief for Gaston Copper's

continuing and threatened future violations of its permit. Not only did

CLEAN allege continuing violations in its complaint, but over 350 of

the alleged discharge violations and over 650 of the alleged monitor-

ing and reporting violations occurred after the complaint was filed. In

fact, some of the alleged violations occurred in 1997, the last period

for which the record contains evidence. CLEAN has sought relief for

continuing and threatened future violations at every stage of this liti-

gation, including this appeal. We hold therefore that CLEAN presents

claims of redressable injury.2

_________________________________________________________________

2 Because Shealy used a waterway adversely affected or capable of

being adversely affected by Gaston Copper's conduct, Gaston Copper's

monitoring and reporting violations also cause him injury in fact.

CLEAN alleges that these violations continue and requests injunctive

and other relief to stop them. CLEAN thus has standing to pursue its

monitoring and reporting claims under a straightforward application of

this circuit's precedent in Sierra Club v. Simkins Indus., Inc., 847 F.2d

IV.

This case illustrates at heart the importance of judicial restraint.

Courts are not at liberty to write their own rules of evidence for envi-

ronmental standing by crediting only direct evidence of impairment.

Such elevated evidentiary hurdles are in no way mandated by Article

III. Nor are they permitted by the Federal Rules of Evidence or the

text of the Clean Water Act. It is in fact difficult to see how one can

move from the section 505(g) standard of "an interest which is or may

be adversely affected" to a standard of direct scientific proof of an

observable negative impact on a waterway.

Litigants routinely rely on circumstantial evidence to prove any

number of contested issues. And if a prosecutor may rely wholly on

circumstantial evidence to prove that a criminal defendant is guilty

beyond a reasonable doubt, there is no apparent reason -- and cer-

tainly not a reason apparent from the Constitution, the Federal Rules,

or the Clean Water Act itself -- to regard this type of proof as per

se deficient for establishing standing in a Clean Water Act case. Citi-

zens may thus rely on circumstantial evidence such as proximity to

polluting sources, predictions of discharge influence, and past pollu-

tion to prove both injury in fact and traceability. This is what Wilson

Shealy did. To require more would impose on Clean Water Act suits

a set of singularly difficult evidentiary standards.

To deny standing to Shealy here would further thwart congressio-

nal intent by recreating the old system of water quality standards

whose failure led to the enactment of the Clean Water Act in the first

place. See, e.g., Water Quality Act of 1965, Pub. L. No. 89-234, 79

Stat. 903. An important reason for Congress' shift to end-of-pipe stan-

dards was to eliminate the need to address complex questions of envi-

ronmental abasement and scientific traceability in enforcement

proceedings. To have standing now turn on direct evidence of such

things as the chemical composition and salinity of receiving waters

_________________________________________________________________

1109, 1112-13 (4th Cir. 1988) (defendant's failure to monitor and report

effluent discharges as required by permit causes injury in fact to plain-

tiff's interests in protecting environmental integrity of and curtailing

ongoing unlawful discharges into waterway).

would throw federal legislative efforts to control water pollution into

a time warp by judicially reinstating the previous statutory regime in

the form of escalated standing requirements. Courts would become

enmeshed in abstruse scientific discussions as standing questions

assumed a complicated life of their own. This danger is illustrated by

this very case, where the in-depth discussion of control stations,

macroinvertebrate sampling, and milligrams per kilogram has taken

us far afield from the straightforward Clean Water Act issue of

whether Gaston Copper has violated its permit limitations.

"[T]he law of Article III standing is built on a single basic idea --

the idea of separation of powers." Allen, 468 U.S. at 752. Courts must

avoid infringing this principle either by reaching beyond jurisdictional

limitations to decide abstract questions or by refusing to decide con-

crete cases that Congress wants adjudicated. This case presents a con-

crete controversy in which courts are left with no other choice but to

effectuate Congress' clearly expressed language and intent. To bar the

courthouse door to Shealy's claims of private injury would undermine

the citizen suit provision of the Clean Water Act. We therefore

reverse the judgment of the district court and remand this case for a

determination of whether Gaston Copper has discharged pollutants in

excess of its permit limits.

REVERSED AND REMANDED

NIEMEYER, Circuit Judge, concurring in the judgment and in the

concurring opinion of Judge Luttig:

For the reasons that follow, I concur in the judgment and join

Judge Luttig's concurring opinion.

The concept of constitutional standing lies at the heart of the judi-

cial power conferred on courts by Article III of the Constitution. As

the articulation of that standing requirement is relaxed, the scope of

Article III power expands, moving it to a position where it could be

exercised to resolve contests over legislation simply because citizens

disagree with its interpretation. With a continuation of this trend,

courts would ultimately become a super-legislative body, arbitrating

the conflicts of the views of its citizenry generally.

Before the Supreme Court's recent decision in Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 120 S. Ct. 693 (2000), I

would have affirmed the district court in this case because the plain-

tiffs, who expressed only a subjective belief of injury, have not shown

that they "personally [have] suffered some actual or threatened injury

as a result of the putatively illegal conduct of the defendant and that

the injury fairly can be traced to the challenged action." Valley Forge

Christian College v. Americans United for Separation of Church and

State, Inc., 454 U.S. 464, 472 (1982) (citations and internal quotation

marks omitted). These minimal requirements of Article III assured

that legal issues would not be resolved "in the rarified atmosphere of

a debating society." Id. The Supreme Court recognized in Valley

Forge that federal courts are not "publicly funded forums for the ven-

tilation of public grievances or the refinement of jurisprudential

understanding." Id. at 473; see also Lujan v. Defenders of Wildlife,

504 U.S. 555, 559-60 (1992) (standing is "an essential and unchang-

ing part of the case-or-controversy requirement of Article III" and the

separation of powers).

As my concurrence in Judge Luttig's opinion indicates, I believe

that the decision in Laidlaw represents a sea change in constitutional

standing principles, and in view of that decision I agree that we are

now required to reverse.

LUTTIG, Circuit Judge, with whom Judge Niemeyer joins, concur-

ring in the judgment:

I concur in the judgment of the court, but not in its opinion.

Through no fault of this court, the Supreme Court's recent decision

in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.,

120 S. Ct. 693 (2000), has rendered much of the discussion in today's

opinion not merely unnecessary, but affirmatively confusing. Rather

than persist in the fiction (as we do in the court's opinion) that

Laidlaw was part of the fabric of standing jurisprudence at the time

of argument in this case, or worse (as we also do) that that decision

was merely an unexceptional reaffirmation of the Court's previous

precedents, I would simply reverse the district court's judgment on

the specific reasoning of the Supreme Court in Laidlaw and say little

else. The unfortunate implication left by the court's failure to address

the significant change in environmental standing doctrine worked by

the Supreme Court's recent decision in Laidlaw (and by the court's

comfortable, but mistaken, assumption that the Supreme Court's deci-

sions prior to Laidlaw themselves dictated the conclusion we reach

today), is that the district court seriously erred in its application of the

standing doctrine extant at the time that it ruled-- which it did not.

HAMILTON, Senior Circuit Judge, concurring in the judgment:

The Supreme Court's decision in Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 120 S. Ct. 693 (2000), has unnec-

essarily opened the standing floodgates, rendering our standing

inquiry "a sham," id. at 715 (Scalia, J., dissenting). However, being

bound by Laidlaw Envtl. Servs., I concur in the court's judgment

reversing the district court's judgment and remanding the case for a

determination as to whether Gaston Copper has discharged pollutants

in excess of its permit limits.

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