Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. (6/2/1999, No. 98-1938)

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Rehearing en banc granted by unpublished

order 8/3/99; published opinion filed

6/2/99 is vacated.

Filed: June 15, 1999

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 98-1938

(CA-92-2574-3)

Friends of the Earth, Inc., et al,

Plaintiffs - Appellants,

versus

Gaston Copper Recycling Corp.,

Defendant - Appellee.

O R D E R

The court amends its opinion filed June 2, 1999, as follows:

On page 2, section 1, line 4 -- "Columbia, Maryland" is corrected to read "Columbia, South Carolina."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

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.

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: March 1, 1999

Decided: June 2, 1999

Before WILKINSON, Chief Judge, and HAMILTON and

WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Hamilton wrote the majority

opinion, in which Judge Williams joined. Chief Judge Wilkinson

wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

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

L.L.P., Washington, D.C., for Appellants. 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.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

Friends of the Earth, Inc. (FOE) and Citizens Local Environmental

Action Network, Inc. (CLEAN) brought this citizens suit against Gas-

ton Copper Recycling Corporation (Gaston Copper) pursuant to з 505

of the Federal Water Pollution Control Act, see 33 U.S.C. з 1365,

alleging that Gaston Copper committed various violations of a March

1, 1991 permit issued to Gaston Copper by the South Carolina

Department of Health and Environmental Control (DHEC). In the cit-

izens suit, FOE and CLEAN sought civil penalties, declaratory and

injunctive relief, as well as attorneys' fees, expert witness fees, and

costs. Following a bench trial, the district court dismissed the citizens

suit for lack of subject matter jurisdiction, concluding that FOE and

CLEAN lacked standing. For the reasons stated herein, we affirm the

district court's dismissal for lack of subject matter jurisdiction.

Congress enacted the Federal Water Pollution Control Act (Clean

Water Act or CWA), see 33 U.S.C. зз 1251-1376, to restore and

maintain the "chemical, physical, and biological integrity of the

Nation's waters." 33 U.S.C з 1251(a). To this end, the CWA prohibits

the discharge of pollutants into navigable waters without a permit. See

33 U.S.C. зз 1311(a), 1362(12)(A). Permits "place limitations on the

amount of effluent (pollution) corporations may discharge into the

water, and require permit-holders to monitor their effluent discharges,

to file test results and other data with the Environmental Protection

Agency, and to cooperate with state agencies by placing information

on Discharge Monitoring Reports (DMR's)." Public Interest

Research Group v. Magnesium Elektron, Inc., 123 F.3d 111, 115 (3d

Cir. 1997); see also 40 C.F.R. зз 122.41(j), 122.48. If a permit holder

fails to comply with any condition of its permit, the permit holder vio-

lates the CWA. See id. The Environmental Protection Agency (EPA)

and state agencies, or citizens may bring suits against those who vio-

late permits. See 33 U.S.C. з 1365; see also Magnesium, 123 F.3d at

114. In a citizens suit, citizens may request civil penalties, declaratory

and injunctive relief, as well as costs of litigation, "including reason-

able attorney and expert witness fees." 33 U.S.C.з 1365.

Gaston Copper "owns and operates a non-ferrous metals smelting

facility located in Gaston, Lexington County, South Carolina." (J.A.

70). The smelting facility (Facility) sits on Lake Watson, a fourteen

million gallon lake that is wholly contained, except for overflow.1

When Gaston Copper purchased its smelting facility in 1990, the

Facility was covered by a National Pollutant Discharge Elimination

System (NPDES) Permit issued by DHEC. Of relevance, on February

13, 1991, DHEC reissued the permit for the Facility, with an effective

date of March 1, 1991 (March 1, 1991 Permit). The March 1, 1991

Permit required contaminated storm water to be treated prior to dis-

charge into Lake Watson; authorized the discharge of limited quanti-

ties of effluents, including biochemical oxygen demand, cadmium,

copper, lead, zinc, and pH, after treatment from the Facility into Lake

Watson; contained a schedule for compliance with the effluent limita-

tions; and required monitoring and reporting for the effluent dis-

charges.

On September 14, 1991, FOE and CLEAN, two non-profit environ-

mental organizations dedicated to protecting and improving water

quality, brought, on their own behalf and on behalf of their members,

this citizens suit against Gaston Copper in the United States District

Court for the District of South Carolina pursuant to the citizens suit

_________________________________________________________________

1 The parties stipulated that Lake Watson flows into the Boggy Branch,

"a tributary of Bull Swamp Creek, which flows into the North Fork of

the Edisto River." (J.A. 70).

provision of the CWA, see 33 U.S.C. з 1365, alleging that Gaston

Copper violated its March 1, 1991 Permit. The citizens suit sought

civil penalties, declaratory and injunctive relief, as well as attorneys'

fees, expert witness fees, and costs. According to FOE and CLEAN,

Gaston Copper had violated and continued to violate its March 1,

1991 Permit by exceeding the effluent limitations for certain pollu-

tants, by failing to comply with certain monitoring and reporting

requirements, and by failing to comply with the schedule of compli-

ance with respect to the effluent limitations.

FOE and CLEAN averred that Gaston Copper's March 1, 1991

Permit violations affected their "ability to protect and improve the

waters of South Carolina" and also affected the "health, economic,

recreational, aesthetic and environmental interests" of their members,

who "reside in the vicinity of, or own property[near,] or recreate in

. . . the waters of the Boggy Branch of Bull Swamp Creek, the North

Fork of the Edisto River, and tidally related waters affected by the

[F]acility's discharge of pollutants." (J.A. 21, 23). Further, FOE and

CLEAN claimed that Gaston Copper's failure to monitor and report

in violation of its March 1, 1991 Permit "interfere[d] with efforts of

[FOE and CLEAN's] members to protect their health, economic, rec-

reational, aesthetic and environmental interests by interfering with

their ability to take action on their own behalf." (J.A. 21-22, 23).

Gaston Copper moved to dismiss the case on, inter alia, the ground

that FOE and CLEAN lacked standing to bring the suit, and the dis-

trict court denied the motion. Thereafter, FOE and CLEAN moved for

summary judgment on their claim that Gaston Copper had violated its

March 1, 1991 Permit. The district court denied the motion, and the

case proceeded to a bench trial on FOE and CLEAN's CWA claims.

At trial, FOE and CLEAN presented evidence in support of their posi-

tion that they had standing and also in support of their claims that

Gaston Copper violated its March 1, 1991 Permit. Of relevance, FOE

and CLEAN claimed that they had representational standing because

their members suffered "injuries in fact" to protected interests in

allegedly affected waterways, and that such injuries were "fairly

traceable" to Gaston Copper's alleged violations of its March 1, 1991

Permit.

Specifically, in support of their claim that their members suffered

injury in fact, FOE and CLEAN presented the testimony of three

members asserting that they each had a legally protected interest in

the waterways that were allegedly harmed by Gaston Copper's

alleged violations of its March 1, 1991 Permit. First, Wilson Otto

Shealy, a member of CLEAN, testified that he lives four miles down-

stream from the Facility and that his property includes a sixty-seven

acre lake, in which he and his family fish and swim.2 Next, Guy

Jones, a member of FOE and CLEAN and owner/president of a canoe

company, testified that he guides trips on the Edisto River. Last, Wil-

liam McCullough, Jr., a member of FOE, testified that he scuba dives

in the Edisto River.

According to these members' testimony, their protected recre-

ational and economic interests in the waterways that they used were

injured in fact by Gaston Copper's alleged March 1, 1991 Permit vio-

lations. For example, Shealy testified that he believed that his lake

contained mercury because he read an article in the local newspaper

that all the lakes in his county, Lexington County, contained mercury.

Shealy also testified that his concern that his lake contained effluents

discharged by Gaston Copper in violation of its March 1, 1991 Permit

stemmed from the fact that DHEC tested his lake prior to the time

period relevant to this suit, and determined that there were effluents

in his lake.3 Shealy further testified that because of his concern that

Gaston Copper is discharging pollution, he only eats the fish he

catches from his lake "on occasion," and he only allows his grandchil-

dren to swim in the summer once per day. (J.A. 76). Also, according

to Shealy, his property value has diminished because of Gaston Cop-

per's alleged discharges, and he knows his property value has dimin-

ished because he has "had people [right outside the courthouse] . . .

refer to [his] place as the polluted pond." (J.A. 79).

_________________________________________________________________

2 According to Shealy, the source of his lake is Bull Swamp Creek and

several other tributaries, including Boggy Branch, but there are thirty-

one ponds between Bull Swamp Creek and his lake.

3 Shealy admitted, however, that his lake had not been tested since the

DHEC testing, performed in 1990. This action arises out of Gaston Cop-

per's conduct since 1991.

Next, Jones testified that he was concerned that the Edisto River

contained effluents discharged by Gaston Copper and from other non-

point sources such as fields and urban areas. Jones testified that his

concern that Gaston Copper and other sources are polluting the Edisto

River affects his enjoyment of canoeing and swimming because he

has "greater confidence in [his company's] ability to market [its] trips

to the general public when [the company is] taking people into an area

that [it knows its customers] are going to have a quality experience

and that [its customers'] health is going to be not threatened by the

quality of water." (J.A. 131).

Last, McCullough testified that he was "concerned about all waters

in South Carolina that [he] dive[s] having contaminants, especially

heavy metals, [and] pesticide runoff." (J.A. 144). According to

McCullough, "[I]f he knew that the water contained contaminants, he

would be "less likely to dive in it." (J.A. 145).4

To demonstrate that their members' protected recreational and eco-

nomic interests in waterways that they used were injured in fact, FOE

and CLEAN also relied on the testimony of their expert, Dr. Bruce

Bell, and two studies performed by Gaston Copper. Dr. Bell testified

that while Gaston Copper's March 1, 1991 Permit did not contain tox-

icity limits, it did contain water quality limits, and also required Gas-

ton Copper to monitor its toxicity by performing whole effluent

toxicity tests.5 According to Dr. Bell, in some months from 1991-

1995, Gaston Copper's laboratory toxicity tests revealed that the

effluents had "observable effects" on the test organism. (J.A. 179).

Dr. Bell, however, was unable to relate the toxicity tests to the alleged

March 1, 1991 Permit water quality effluent limit violations.

_________________________________________________________________

4 The members also testified that they relied on DHEC reports to know

whether Gaston Copper was discharging effluents in violation of its

March 1, 1991 Permit, and therefore were injured by Gaston Copper's

failure to monitor and report some of its effluent discharges, as required

by the March 1, 1991 Permit.

5 According to Dr. Bell, toxicity limits are the limits achievable with

technology, and water quality limits are the limits of effluents that the

permit holder may discharge into a waterway without violating EPA

standards.

The two studies performed by Gaston Copper for DHEC and relied

upon by FOE and CLEAN, the 1993 and 1994 "Water Quality Stud-

[ies] to Evaluate the Fish Tissue, the Macroinvertebrate Community

and Sediments at Gaston Copper Recycling Corporation," evaluated

the concentration of certain effluents in fish tissue in Lake Watson;

assessed the quality of the macroinvertebrate community in Lake

Watson, Boggy Branch, and Bull Swamp Creek; and determined the

concentrations of certain effluents in the sediments of Lake Watson,

Boggy Branch, and Bull Swamp Creek. (J.A. 942-967, 968-991).

First, the studies revealed "concentrations of certain heavy metals . . .

in fish tissue from Lake Watson," (J.A. 943); however, no fish studies

were performed on fish in Boggy Branch or Bull Swamp Creek. Sec-

ond, both studies concluded that there had not been any "apparent

degradation of the macroinvertebrate community due to the effluent

discharge of Gaston Copper Recycling Corporation to Lake Watson."

(J.A. 943, 971). Finally, while the studies "reflected detectable quanti-

ties of copper, lead, mercury . . . in Lake Watson," (J.A. 944, 972),

the studies indicated that only lead and copper were at detectable con-

centrations in the sediment of Boggy Branch and Bull Swamp Creek,

and these concentrations were less than previous years, and "similar

to values seen throughout South Carolina." (J.A. 944, 960, 972, 990).

Next, in support of their claim that their members' injuries in fact

were fairly traceable to Gaston Copper's conduct, FOE and CLEAN's

theory was that because Gaston Copper discharged harmful effluents

into waterways upstream from the waterways in which Shealy, Jones,

and McCullough had protected interests, the injuries to these mem-

bers' protected interests were fairly traceable to Gaston Copper's dis-

charges. In support of their theory, FOE and CLEAN presented

evidence that during a 1990 public hearing for comment on the issu-

ance of Gaston Copper's March 1, 1991 Permit, the DHEC hearing

officer stated that runoff flows from Lake Watson to Boggy Branch,

to Bull Swamp Creek, and to the Edisto River. The 1990 DHEC state-

ment formed the basis of the parties' stipulation that Lake Watson

flows into the Boggy Branch, "a tributary of Bull Swamp Creek,

which flows into the North Fork of the Edisto River." (J.A. 70).

Essentially, based upon this stipulation, FOE and CLEAN argued that

the effluents that Gaston Copper discharged, allegedly in violation of

its March 1, 1991 Permit, flowed downstream and adversely affected

their members' protected recreational and economic interests.

At the conclusion of the bench trial, the district court determined

that FOE and CLEAN failed to establish standing in their own right

or representational standing to bring their claim representing the inter-

ests of their members. Of relevance, the district court noted that FOE

and CLEAN failed to present evidence that the types of effluents dis-

charged by Gaston Copper affected the waterways used by the mem-

bers who testified. Further, the district court determined that the

testimony of Shealy, Jones, and McCullough that they were con-

cerned that Gaston Copper violated its March 1, 1991 Permit, did not,

standing alone, establish that the waterways that they used were

adversely affected. Thus, the district court determined that FOE and

CLEAN failed to establish that any of their members suffered an

injury in fact that was fairly traceable to Gaston Copper's alleged per-

mit violations, and, therefore, dismissed their action for lack of juris-

diction. FOE and CLEAN noted a timely appeal.

On appeal, FOE and CLEAN contend that the district court erred

in dismissing their CWA citizens suit against Gaston Copper for

alleged violations of its March 1, 1991 Permit for lack of standing.

Specifically, FOE and CLEAN claim they established that their mem-

bers suffered injuries in fact that were fairly traceable to Gaston Cop-

per's conduct. We review a district court's dismissal of a case for lack

of standing de novo. See Marshall v. Meadows, 105 F.3d 904, 905-06

(4th Cir. 1997).

The United States Constitution provides that "'[t]he judicial Power'

of the federal courts of the United States extends only to specified

`Cases' and `Controversies.'" Friends of the Earth v. Laidlaw Envtl.

Servs., 149 F.3d 303, 306 (4th Cir. 1997) (quoting U.S. Const. art. III,

з 2, cl. 1). "The doctrine of standing has always been an essential

component of [the] case or controversy requirement of federal juris-

diction." Marshall, 105 F.3d at 906.

An association, such as FOE or CLEAN, "may have standing to

sue in federal courts based either on an injury to the organization in

its own right, or as the representative of its members who have been

harmed." Natural Resources Defense Council, Inc. v. Watkins, 954

F.2d 974, 978 (4th Cir. 1992). On appeal, FOE and CLEAN contend

that they have representational standing. In order for FOE and

CLEAN to have representational standing, they must establish that

"1) [their] own members would have standing to sue in their own

rights; 2) the interests the organization seeks to protect are germane

to the organization's purpose; and 3) neither the claim asserted nor

the relief sought requires the participation of individual members in

the lawsuit." Id.

Gaston Copper asserts that FOE and CLEAN have not established

the first prong of representational standing: that their members would

have an individual right to sue under the CWA for alleged violations

of Gaston Copper's March 1, 1991 Permit. The Supreme Court has

set forth the requirements for individual standing. See Valley Forge

Christian College v. Americans United for Separation of Church &

State, Inc., 454 U.S. 464, 472 (1982). The Supreme Court has stated:

[A]t an irreducible minimum, Art. III requires the party who

invokes the court's authority to "show [1] that he personally

has suffered some actual or threatened injury as a result of

the putatively illegal conduct of the defendant," and [2] that

the injury "fairly can be traced to the challenged action" and

[3] "is likely to be redressed by a favorable decision."

Id. (internal citations omitted).

We now turn to the first requirement: injury in fact. For injury in

fact, the injury must be "an invasion of a legally protected interest

which is (a) concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992) (internal citations, footnote, and quotations

omitted). The Supreme Court has recognized that invasions of eco-

nomic interests may constitute injury in fact. See Bennett v. Spear,

520 U.S. 154, 160 (1997). Additionally, this circuit recognizes that

invasions of aesthetic and environmental interests may constitute

injury in fact. See Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109,

1113 (4th Cir. 1988). Thus, for example, we have found standing

when a member of an organization has established that his interest in

using or recreating in an area is adversely affected by pollution that

is fairly traceable to the defendant. See, e.g., Watkins, 954 F.2d at 980

(holding that organization whose members recreated on affected

waters and noticed effects of pollution had standing if discharge in

violation of permit contributed to pollution of affected waters, thereby

interfering with recreational use).

In this case, FOE and CLEAN failed to establish injury in fact.

While we recognize that Shealy and McCullough's recreational inter-

ests and Jones' economic interest are legally protected interests, we

conclude that the evidence failed to establish that the waters in which

Shealy, Jones, and McCullough recreated or used were actually, or in

imminent threat of being, adversely affected by pollution. See Lujan,

504 U.S. at 560; Watkins, 954 F.2d at 979-80 (finding plaintiffs' affi-

davits, which stated, "While boating, swimming, and fishing, I

noticed that, although there is an abundance of aquatic life upstream

from the Site, the River downstream from the Site appears to be com-

paratively barren and sterile," and "When boating, I have noticed that

the Savannah River downstream of the Savannah River Site has an

unpleasant color and smell, which is different from the color and

smell of the River upstream of the Site," sufficient to confer standing

if plaintiffs could show pollution from defendant "in publicly accessi-

ble portions of the Savannah River basin"). In this case, no evidence

was presented that established that Shealy's lake or the portions of the

Edisto River that Jones and McCullough used were in fact adversely

affected by pollution, let alone by Gaston Copper's conduct. Indeed,

there were no toxicity tests, or tests or studies of any kind, performed

on waters from Shealy's lake or the portions of the Edisto River that

Jones and McCullough used. Further, none of the members even testi-

fied that there was an observable negative impact on the waters that

they used or the surrounding ecosystem of such water. Their concerns

were based on mere speculation as to the presence of pollution with-

out any evidence to support their fears or establish the presence of

pollutants in the allegedly affected waters.6

_________________________________________________________________

6 In concluding that Shealy's legally protected interests were actually,

or in imminent threat of being, injured, the dissent relies heavily on the

fact that Gaston Copper is "fouling" Lake Watson in that some of Gaston

To be sure, to establish injury in fact, FOE and CLEAN rely on the

testimony of Shealy, Jones, and McCullough. However, this testi-

mony falls well short of the water line for injury in fact. Shealy,

Jones, and McCullough merely testified that they were concerned that

Gaston Copper's conduct had resulted in pollution of water in which

Shealy and McCullough recreated and of the water in which Jones'

company used. Obviously, the three members' "concerns," without

some evidence concerning an observable negative impact on the

waterways in which the members recreated or used, is not enough to

establish that the waterways in which the members recreated or used,

were in fact adversely affected by pollution. In sum, there was simply

no evidence that the waterways in which the members each had a

legally protected interest were adversely affected; the members' con-

cerns, standing alone, simply fail to establish that their legally pro-

tected interests were actually, or imminently threatened of being,

adversely affected. See Magnesium, 123 F.3d at 123 (finding plain-

tiffs lacked standing when plaintiffs alleged that they had reduced

_________________________________________________________________

Copper's laboratory toxicity tests showed that Gaston Copper's effluents

from Lake Watson affected test organisms; DHEC stated that "runoff"

from Gaston Copper reaches the Edisto River; and DHEC tested Shealy's

lake prior to the time relevant to this action and found pollutants in his

lake.

We fail to see how the evidence relied upon by the dissent demon-

strates that Shealy's interests in his lake were actually, or in imminent

threat of being, injured. The fact that Gaston Copper is "fouling" Lake

Watson simply does not establish that Shealy's lake is actually, or in

imminent threat of being, injured. This is true even though DHEC stated

that "runoff" flowed from Boggy Branch to Bull Swamp Creek and into

the Edisto River. DHEC's statement simply does not establish that pollu-

tants actually reached, or will imminently reach, Shealy's lake. Further,

the fact that DHEC tested Shealy's lake in 1990 and found pollutants in

the lake does not establish that Shealy's interests in his lake were actu-

ally, or in imminent threat of being, injured. The dissent again relies on

the stipulation that water flows from Boggy Branch to Bull Swamp

Creek and into the Edisto River. However, no evidence was admitted that

the pollutants found in Shealy's lake by DHEC in 1990 were traceable

to Gaston Copper's predecessor. Thus, the DHEC 1990 test does not sug-

gest, nor let alone prove, that Gaston Copper's discharges after 1991

actually injured, or will imminently injure, Shealy's lake.

their recreation in waterways because of concern of pollution, but

plaintiffs failed to establish that defendant's admitted violations of

permit's effluent standards harmed the waterway or posed a threat to

the waterway); Simkins, 847 F.2d at 1112 n.3 (finding standing when

member's affidavit stated, "My [recreational] activities and interests

with respect to the Patapsco River have been adversely affected phys-

ically, aesthetically and emotionally by [the defendant's] failure to

comply with its NPDES permit and resulting [odorous and unsightly]

illegal pollution.").

Even assuming arguendo that FOE and CLEAN established that

their members suffered injuries in fact, e.g. that the waterways in

which Shealy and McCullough recreated and which Jones used were

adversely affected, we conclude that FOE and CLEAN failed to

establish that the alleged injuries in fact were fairly traceable to Gas-

ton Copper's conduct. In other words, FOE and CLEAN did not show

that the waterways in which Shealy and McCullough recreated and

which Jones used contained effluents of the type discharged by Gas-

ton Copper, allegedly in violation of its March 1, 1991 Permit.

"The requirement that plaintiff's injuries be `fairly traceable' to the

defendant's conduct does not mean that plaintiffs must show to a sci-

entific certainty that defendant's effluent, and defendant's effluent

alone caused the precise harm suffered by the plaintiffs." Watkins,

954 F.2d at 980 n.7 (quoting Public Interest Research Group, Inc. v.

Powell Duffryn Terminals, Inc., 913 F.2d 64, 72 (3rd Cir. 1990)). The

fairly traceable requirement does, however, require the plaintiff to

show that there is a "substantial likelihood" that the defendant's con-

duct caused the plaintiff's harm. Watkins, 954 F.2d at 983; Powell

Duffryn, 913 F.2d at 72. Three requirements are necessary to establish

that there is a substantial likelihood that the defendant's conduct

caused the plaintiff's harm:

In a Clean Water Act case, this likelihood may be estab-

lished by showing that a defendant had (1) discharged some

pollutant in concentrations greater than allowed by its per-

mit (2) into a waterway in which the plaintiffs have an inter-

est that is or may be adversely affected by the pollutant and

that (3) this pollutant causes or contributes to the kinds of

injuries alleged by the plaintiffs.

Id. To meet these requirements, a plaintiff must show more than "a

mere exceedance of a permit limit." Id.

In the present case, FOE and CLEAN failed to establish the second

requirement of the substantial likelihood analysis: that Gaston Cop-

per's discharges were present in a waterway in which FOE and

CLEAN's members had an interest that is or may be adversely

affected by the effluent. First, FOE and CLEAN did not present evi-

dence that the allegedly affected waterways--Shealy's lake and por-

tions of the Edisto River--contained effluents of the type that Gaston

Copper discharges. Neither Gaston Copper's laboratory toxicity tests,

nor its 1993 and 1994 studies, was performed on Shealy's lake or por-

tions of the Edisto River. Second, while it is true that Lake Watson

flows into the Boggy Branch, "a tributary of Bull Swamp Creek,

which flows into the North Fork of the Edisto River," (J.A. 70), the

Edisto River is ten to fifteen miles from Gaston Copper, and Shealy's

lake is four miles downstream from Gaston Copper (with thirty-one

intervening ponds and three other tributaries running into his lake).

Consequently, even though water flows downstream, the distances

between the source of the alleged pollution (Gaston Copper), and the

waterways used by Shealy, Jones, and McCullough (Shealy's lake

and the Edisto River), is simply too great to infer causation.7 See

Friends of the Earth v. Crown Cent. Petroleum, 95 F.3d 358, 361-62

(5th Cir. 1996) (concluding that because the source of discharge,

eighteen miles and three tributaries from the allegedly affected water-

ways, was too far upstream from the waterways used by the plaintiffs

to infer causation, the plaintiffs were required to establish the fairly

traceable element of standing by producing water samples or expert

_________________________________________________________________

7 We are not requiring that a plaintiff establish a certain mileage or trib-

utary limit in order to satisfy the fairly traceable prong of standing. FOE

and CLEAN's reliance on the proposition that water flows downstream

is, however, simply insufficient to establish the fairly traceable element

of standing.

testimony to establish "the presence of a pollutant of the type dis-

charged by the defendant upstream").8

In sum, even assuming that FOE and CLEAN established injury in

fact, because FOE and CLEAN failed to establish that Gaston Cop-

per's discharges contributed to the alleged pollution that interferes

with their members' use of Shealy's lake or the Edisto River, we con-

clude that FOE and CLEAN lack standing to pursue their citizens suit.9

_________________________________________________________________

8 In concluding that Shealy established traceability, the dissent again

relies on DHEC's statement that "runoff" from Gaston Copper reaches

the Edisto River and the fact that DHEC tested Shealy's lake prior to the

time relevant to this action and found pollutants in his lake.

We fail to see how this evidence relied upon by the dissent demon-

strates that there was a substantial likelihood that Gaston Copper's con-

duct caused Shealy's alleged injury. DHEC's statement simply does not

establish that there was a substantial likelihood that pollutants traveled

from Lake Watson into Boggy Branch into Bull Swamp Creek into

thirty-one ponds and then into Shealy's lake. DHEC's statement simply

states the truism that water flows downstream. Further, the fact that

DHEC tested Shealy's lake in 1990 and found pollutants in the lake does

not establish that there was a substantial likelihood that Gaston Copper's

subsequent conduct caused Shealy's alleged injury. No evidence was

admitted that the pollutants found in Shealy's lake by DHEC in 1990

were traceable to Gaston Copper's predecessor. Thus, the DHEC 1990

test does not establish that there was a substantial likelihood that Gaston

Copper's subsequent discharges after 1991 caused Shealy's alleged

harm.

9 FOE and CLEAN contend that under Sierra Club v. Simkins Indus-

tries, Inc., 847 F.2d 1109 (4th Cir. 1988), they have standing to bring a

CWA claim for Gaston Copper's alleged monitoring and reporting viola-

tions. We disagree. In Simkins, the plaintiff organization brought a CWA

claim for monitoring and reporting violations, but did not bring a CWA

claim for effluent discharge violations. See 847 F.2d at 1112. We con-

cluded in Simkins that the plaintiff organization had standing to bring an

action for the defendant's admitted monitoring and reporting violations

because the plaintiff organization established that one of its members

used the affected waterway, had a desire to protect the affected waterway

that he used, and that these interests could be adversely affected by the

defendant's failure to monitor and report its effluent discharges. See id.

at 1113. With regard to whether the plaintiff organization established that

III

One final word regarding the dissent. The dissent suggests our

decision will unnecessarily create minitrials on the issue of standing.

To the contrary, our opinion simply stands for the basic proposition

that if a plaintiff organization craves standing, it must allege sufficient

facts, which if proven, would entitle it to standing. Nothing more;

nothing less. We have not raised the threshold for establishing stand-

ing; rather, we are simply requiring a plaintiff organization to allege

sufficient facts demonstrating actual or imminent injury fairly trace-

able to the defendant's conduct before standing attaches. In this case,

FOE and CLEAN failed to meet this fairly low threshold.

In sum, because we hold that FOE and CLEAN lacked standing to

pursue their CWA claims against Gaston Copper, we affirm the dis-

trict court's judgment dismissing FOE and CLEAN's action for lack

of jurisdiction.

AFFIRMED

WILKINSON, Chief Judge, dissenting:

I respectfully dissent. The majority encroaches on congressional

authority by erecting standing hurdles so high as to effectively excise

_________________________________________________________________

its desire to protect the affected waterway was adversely affected, we

concluded that the plaintiff organization did indeed establish such. See

id. (finding "information on any harmful level of pollutants in the area

of [the defendant's] plant during this time period is forever lost to . . .

those who might undertake to remedy the effects of any pollution" and

the lack of information threatens the interests of the member, who

attested that he used the affected waterway, in protecting the affected

waterway and curtailing pollution into such waterway).

Unlike the plaintiff organization in Simkins, FOE and CLEAN failed

to establish that their members recreated or used a waterway adversely

affected or capable of being adversely affected by the defendant's (Gas-

ton Copper's) conduct. As discussed supra, FOE and CLEAN failed to

show that the Shealy's lake and the Edisto River contained effluents of

the type Gaston Copper discharged. FOE and CLEAN also failed to sub-

mit expert testimony that the effluents discharged from Gaston Copper

could adversely affect the waterways in which the members recreated or

used. Accordingly, Simkins is of no help to FOE and CLEAN.

the citizen suit provision from the Clean Water Act. The majority also

departs from other circuits by refusing to consider the claims of a citi-

zen living within the known discharge range of a polluting industrial

facility. Article III does not command this evisceration of the Act's

protections, and separation-of-powers principles positively oppose it.

Appellant Citizens Local Environmental Action Group (CLEAN)

accuses Gaston Copper Recycling Corporation of pumping illegal

chemical concentrations from its smelting plant into Lake Watson on

over five hundred occasions. From Lake Watson, Gaston Copper's

discharge flows to Boggy Branch, through Bull Swamp Creek, and on

to the Edisto River. The South Carolina Department of Health and

Environmental Control (DHEC) has stated publicly that Gaston Cop-

per's discharge will flow to the Edisto, 16.5 miles downstream. Yet

only four miles away, Wilson Shealy swims and fishes with his

grandchildren in a lake next to his home that is fed by Bull Swamp

Creek.1

The majority would require Shealy to present laboratory tests to

prove both the existence of injury in fact and its traceability to Gaston

Copper. Alternatively, the majority would postpone Shealy's claim

until his lake becomes so polluted as to show "observable negative

impact." Ante at 10. Nothing in Article III suggests that our jurisdic-

tion hinges on such elevated standards of proof.

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

-- the idea of separation of powers." Allen v. Wright, 468 U.S. 737,

752 (1984). But today's holding is an expansive act, not one of

restraint. This case is not, as the majority implies, simply "a vehicle

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

Valley Forge Christian College v. Americans United for Separation

of Church & State, 454 U.S. 464, 473 (1982) (internal quotation

marks omitted). Shealy is not a roving ombudsman seeking to right

environmental wrongs wherever he might find them. He is a real per-

son who owns a real home and lake in close proximity to Gaston Cop-

per. The company's discharge violations thus affect the concrete,

_________________________________________________________________

1 Since there is no evidence that Guy Jones and William McCullough

used the waterway within this discharge zone, the district court correctly

dismissed the claims of appellant Friends of the Earth.

particularized legal rights of this specific, actual citizen -- an issue

"traditionally thought to be capable of resolution through the judicial

process." Allen, 468 U.S. at 752 (internal quotation marks omitted).

By turning away this garden-variety Clean Water Act claim, the court

overshoots standing doctrine's legitimate constitutional boundaries to

gut a legislative act and thwart the will of representative government.

The majority's failure to uphold Gaston Copper's obligations also

"profoundly affect[s] the lives, liberty, and property" of those, like

Shealy, who count on the quality of their waters. Valley Forge, 454

U.S. at 473. The Clean Water Act commands that companies such as

Gaston Copper shall not discharge dangerous chemical concentrations

into our nation's waters, and grants citizens in the path of that efflux

a cause of action to control it. See 33 U.S.C. з 1365. The "injury

required by Art[icle] III may exist solely by virtue of statutes creating

legal rights, the invasion of which creates standing." Lujan v. Defend-

ers of Wildlife, 504 U.S. 555, 578 (1992) (internal quotation marks

omitted). Yet the majority's super-standing requirement renders Shea-

ly's legal rights -- and hence Gaston Copper's legal obligations --

null in all but word.

There is also a practical drawback. Today's holding sets courts up

for the litigation of scientific facts as a matter of standing -- facts

unnecessary to the ultimate questions presented in these cases. Under

the majority's regime, standing requirements will assume a compli-

cated life of their own. As defendants concentrate on undermining

plaintiffs' claims of injury or traceability, courts should now prepare

for threshold "battles of the experts" over matters of degree. What

concentration of a given dissolved chemical is sufficient to cause "ob-

servable negative impact"? To what extent does a given toxin cause

injurious health effects? The exhaustive exposition and proof of such

matters will create expensive, lengthy sideshows to the straightfor-

ward issue under the Clean Water Act -- namely, whether a defen-

dant is violating its discharge permit.

It may be that CLEAN's interpretation of Gaston Copper's dis-

charge permit is incorrect and that the company thus has not violated

the Clean Water Act. But that is a merits question. Unlike the major-

ity, I believe that Wilson Shealy -- and hence appellant CLEAN --

has standing to pursue that question. I would reverse the judgment of

the district court.

Lost in the majority's rendition of the record is a simple reality:

Gaston Copper has been accused of violating its discharge permit, its

discharge affects or has the potential to affect the waterway for 16.5

downstream miles, and Wilson Shealy sits a mere four miles from the

mouth of the discharge pipe. Whether we characterize the harm as the

actual pollution of the waterway, Shealy's reasonable fear and con-

cern, or Gaston Copper's threat to the waterway is unimportant.

Shealy has proven injury in fact. In holding otherwise, the majority

ignores facts in the record, averts its gaze from this downstream citi-

zen's legitimate health and environmental concerns, and raises the bar

for all citizens seeking relief from their neighbors' pollution.

The record is replete with evidence that Gaston Copper is fouling

its receiving waters. The plaintiffs submitted discharge monitoring

reports spanning four years of Gaston Copper's operations, which

they claim show over five hundred violations of the company's dis-

charge limits -- including its limits for copper, cadmium, zinc, lead,

and pH. The plaintiffs also offered evidence as to the adverse health

and environmental effects of these chemicals. For example, copper is

particularly toxic to aquatic organisms and can prevent spawning in

fish, while cadmium and lead cause a variety of adverse human health

effects including neurological damage and cancer. Indeed, EPA and

DHEC developed the company's permit limits pursuant to a statutory

command to protect public health, fish, and wildlife and to "allow rec-

reational activities in and on the water." 33 U.S.C. з 1312(a).

Furthermore, the plaintiffs submitted evidence that these excee-

dences could and did cause environmental degradation. Gaston Cop-

per failed fully forty-one whole effluent toxicity tests in the forty-nine

months between March 1991 and March 1995 -- tests that consist of

placing small organisms in samples of the effluent and counting the

number that sicken.2 Even the company's own studies showed ele-

_________________________________________________________________

2 Although the majority claims that the plaintiffs' expert "was unable

to relate the toxicity tests to the alleged March 1, 1991 Permit water

vated quantities of copper, cadmium, lead, and mercury in sediment

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

centrations in the tissue of fish. Gaston Copper's permit exceedences

thus bear a direct relationship to the river's downstream health.

The majority stresses that Gaston Copper's annual studies found no

"apparent degradation" of macroinvertebrate life and that downstream

sediment concentrations were "less than previous years" and "similar

to values seen throughout South Carolina." Ante at 7. These studies,

however, present only year-to-year comparisons. They thus show at

most that Gaston Copper is not performing worse than in previous

years, not that its current discharge has no injurious effect. The facili-

ty's past violations do not immunize Gaston Copper's current defalca-

tions. As for the comparison to other locations in South Carolina, the

Clean Water Act requires Gaston Copper not to meet other denomina-

tors, but to discharge at safe levels established by its permit.

Moreover, Gaston Copper's discharge affects or can affect a signif-

icant distance downstream. Although the majority persistently denies

that the plaintiffs submitted any evidence on this score -- and implies

that Gaston Copper's discharge may never leave Lake Watson -- the

record establishes the company's potential downstream plume with

unusual specificity. In the comment period for Gaston Copper's own

permit a DHEC representative answered one downstream property

owner's query 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.

_________________________________________________________________

quality effluent limit violations," ante at 6, that expert testified only that

he had not cross-checked the two sets of data and therefore that he sim-

ply did not know if a relationship existed. Moreover, CLEAN notes that

the record data show that eight of the company's toxicity failures

occurred on days when the company also violated its water quality efflu-

ent limits.

The citizen who submitted this query knew full well the "truism that

water flows downstream." Ante at 14 n.8. Indeed, this property

owner's question and DHEC's response presuppose such downstream

flow. Common sense dictates that the question had a further purpose:

to determine 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 illegal discharges can impact the

receiving waterway for a good distance downstream-- well past

Shealy's property and on down to the Edisto River itself. In fact,

Shealy's lake and home lie much closer to Gaston Copper than to the

Edisto River.

The majority claims that "there are thirty-one ponds between Bull

Swamp Creek and [Shealy's] lake," as if to negate the implication of

the lake's proximity to Gaston Copper. Ante at 5 n.2. But since the

evidence shows that Gaston Copper's discharge can reach Shealy's

lake, the number of "intervening ponds," ante at 13, is simply irrele-

vant. Indeed, Shealy's uncontroverted testimony established at trial

that chemicals from the plant had been found in his lake. Shealy

explained that DHEC employees had visited his property, analyzed

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

iron, and PCBs -- the same chemicals the plant has in the past

released in its wastewater.

Shealy has limited his use and enjoyment of his lake out of concern

for the quality of its water. As he testified at trial: "I limit the fish I

can eat, I limit the amount of time that I let my children and grand-

children swim in the water." He claimed that he would catch and eat

more fish if he could be more confident that his lake were not pol-

luted, and that he would let his children and grandchildren swim in

the lake more often. He further testified that others had referred to his

lake as "the polluted pond," and that this reputation diminished the

value of his property.

Shealy's standing to sue thus does not rest, as the majority sug-

gests, solely on amorphous or generalized concern. Ante at 11. He has

shown not only that Gaston Copper's violations harm the waterway,

but also that he is "himself among the injured." Sierra Club v.

Morton, 405 U.S. 727, 735 (1972). As the majority recognizes,

"[a]esthetic and environmental well-being, like economic well-being,

are important ingredients of the quality of life in our society." Id. at

734; accord Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109, 1113

(4th Cir. 1988). The importance of human health concerns is likewise

beyond question. And we have direct evidence of Shealy's nexus with

these harms, including his location in the recognized path of the Gas-

ton Copper's discharge and his experience of past pollution from the

plant.

Nevertheless, the majority believes that Shealy lacks an injury in

fact. Indeed, the majority rejects Shealy's evidence of past pollution

on the sole ground that DHEC's tests occurred before Gaston Copper

purchased the smelting facility in 1990. Ante at 5 n.3. But this evi-

dence is directly relevant to the question of whether Gaston Copper's

plant is affecting or could affect Shealy's property. This suit was filed

in 1992, not long after Gaston Copper purchased the plant. And from

1990 through 1993 Gaston Copper operated the smelting facility

using the very same treatment system to process its wastewater as its

predecessor had. The purpose of the injury-in-fact requirement is sim-

ply to ascertain whether Shealy's interests "were actually, or [are] in

imminent threat of being, adversely affected by pollution" from this

facility. Ante at 10. In testifying that the pollution from this exact sys-

tem has in the past reached his lake, Shealy showed that his current

fears are based on much more than "mere speculation." Ante at 10.3

More surprising still is the majority's denial that Gaston Copper's

discharge even poses a threat to the downstream waterway. "[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). The purpose of the

imminence requirement, when properly applied, is simply to ensure

that the injury is concrete and "not too speculative for Article III pur-

poses." Defenders of Wildlife, 504 U.S. at 564-65 n.2. That is plainly

_________________________________________________________________

3 The majority denies that these pollutants are traceable to Gaston Cop-

per's predecessor. Ante at 10-11 n.6, 14 n.8. But DHEC's testing shows

that the plant has in the past (1) discharged a pollutant into the upstream

waterway (2) of the type that appeared in Shealy's lake and (3) of the

type that causes the injury of which he complains. See ante at 12-13. I

am not sure what additional evidence the majority would require.

the case here. Gaston Copper's permit violations ipso facto pose a

concrete threat to the receiving waters within the range of its dis-

charge, including the lake on Shealy's property. By establishing that

Gaston Copper is polluting Shealy's nearby water source, CLEAN

has proven an increased risk to its member's downstream uses. This

threatened injury is sufficient to provide injury in fact.4

The majority would, however, require evidence that it can touch

and feel before it is willing to acknowledge Shealy's threatened

injury. But the Constitution does not require Shealy to wait until his

lake becomes "barren and sterile" or assumes an "unpleasant color

and smell" before he may seek relief in court. Ante at 10. Nor must

Shealy produce tests to prove that his injury is imminent. Indeed, he

cannot -- for if an injury is threatened it by definition has not yet

occurred.

Citizens can rely on circumstantial evidence such as proximity to

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

tion to prove injury in fact, just as they would to prove any other con-

tested issue. To require Shealy to fish individual copper molecules out

of his lake and haul them into court serves no useful purpose, spawns

complicated collateral litigation, and undermines the protections Con-

gress sought to provide in the Clean Water Act.

II.

The majority's traceability analysis is equally misguided. "`The

`fairly traceable' requirement . . . is not equivalent to a requirement

of tort causation.'" Natural Resources Defense Council v. Watkins,

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

Research Group v. Powell Duffryn Terminals Inc., 913 F.2d 64, 72

_________________________________________________________________

4 Because Shealy "recreated or used a waterway adversely affected or

capable of being adversely affected by the defendant's (Gaston Cop-

per's) conduct," ante at 14-15 n.9, Gaston Copper's monitoring and

reporting violations also cause him injury in fact. CLEAN thus has stand-

ing to pursue its monitoring and reporting claims-- regardless of

whether any actual toxins have yet reached Shealy's lake -- under a

straightforward application of this circuit's precedent in Simkins

Industries, 847 F.2d at 1113.

(3d Cir. 1990)). Instead, "to demonstrate that they are more than con-

cerned bystanders, plaintiffs need only show that there is a substantial

likelihood that defendant's conduct caused plaintiffs' harm." Powell

Duffryn Terminals, 913 F.2d at 72 (internal quotation marks omitted).

To establish traceability, plaintiffs simply must demonstrate that a

discharge has affected or has the potential to affect the specific geo-

graphic areas of concern. Watkins, 954 F.2d at 980-81.

I believe that Wilson Shealy, sitting a scant four miles downstream

from this smelting plant, is close enough to that facility for a court to

infer traceability. But the plaintiffs in this case have gone farther.

First, as noted, Shealy testified to the presence of metals in his lake

of the type discharged by Gaston Copper -- direct evidence that his

interest "is or may be adversely affected" by the upstream smelting

plant. Ante at 13. Second, the 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. CLEAN thus relies

on more than just "the proposition that water flows downstream" to

prove traceability. Ante at 13 n.7. Shealy's testimony, buttressed by

objective evidence from DHEC, establishes that his injuries are trace-

able to Gaston Copper.

The majority opinion holds, however, that Shealy's injury is not

traceable to Gaston Copper's discharge -- again primarily because

CLEAN did not submit any laboratory analysis showing "that Gaston

Copper's discharges were present" in Shealy's lake. Ante at 13

(emphasis added). This is not the law. I agree that some distinction

must be made between plaintiffs who lie within the discharge zone of

a polluter and those who are so far downstream that their injuries can-

not reasonably be traced to that defendant. Compare Friends of the

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

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

tion"), with Friends of the Earth v. Chevron Chemical 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 in

the acknowledged discharge zone of an industrial plant seems more

calculated "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. Indeed, to require scientific proof that

the discharge has already reached the plaintiff would eliminate the

claims of those who are directly threatened but not yet engulfed by

a company's illegal discharge. I cannot believe that Article III bars

such concrete disputes from court.

III.

The majority's approach also splits from the path of our sister cir-

cuits in three distinct ways. First, no circuit has required additional

scientific proof where there was a direct nexus between the claimant

and the area of environmental impairment. In Sierra Club v. Cedar

Point Oil Co., for example, the Fifth Circuit held that citizens' con-

cern about water quality in the Galveston Bay was sufficient to make

out an 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

546, 556 (5th Cir. 1996). It was enough that "the affiants expressed

fear that the discharge . . . will impair their enjoyment of these activi-

ties because these activities are dependent upon good water quality."

Id.

Other circuits have analyzed such claims in a similarly straightfor-

ward manner. For instance, in Friends of the Earth v. Consolidated

Rail Corp., the Second Circuit discussed two citizen affidavits that it

found "quite adequately satisfy the standing threshold." 768 F.2d 57,

61 (2d Cir. 1985). In the first, a citizen stated that "he passes the Hud-

son [River] regularly and find[s] the pollution in the river offensive

to [his] aesthetic values." Id. 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. Like-

wise, in United States v. Metropolitan St. Louis Sewer District the

Eighth Circuit approved the standing of a citizens' group whose mem-

bers alleged that they "visit, cross, and frequently observe" the Mis-

sissippi River and "from time to time . . . use these waters for

recreational purposes." 883 F.2d 54, 56 (8th Cir. 1989).5 In neither of

these cases -- where the claims of standing were weaker than the one

_________________________________________________________________

5 The citizens in these cases, which were decided before Lujan v.

Defenders of Wildlife, satisfy Lujan's requirement that they "be directly

affected apart from their special interest in th[e] subject" of the litigation.

504 U.S. at 563 (internal quotation marks omitted).

before us -- did the court require further specific allegations or evi-

dence of the actual level of pollution in the water body.6

Second, the majority's virtual silence on the issue of threatened

injury is at odds with the wide recognition that threats or increased

risk constitute cognizable harm. See, e.g., Cedar Point Oil Co., 73

F.3d at 556 ("That this injury is couched in terms of future impair-

ment rather than past impairment is of no moment."). Threatened

injury is by nature probabilistic and not susceptible to proof through

laboratory analysis. And yet other circuits have had no trouble under-

standing the injurious nature of risk. See Village of Elk Grove Village

v. Evans, 997 F.2d 328, 329 (7th Cir. 1993) ("[E]ven a small probabil-

ity of injury is sufficient to create a case or controversy . . . .");

Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1234-35

(D.C. Cir. 1996) (increased risk of wildfire from certain logging prac-

tices constitutes injury in fact).

Third, other circuits have stressed that traceability does not require

tort-like causation. See Cedar Point Oil Co., 73 F.3d at 557-58;

Natural Resources Defense Council v. Texaco Ref. & Mktg., Inc., 2

F.3d 493, 505 (3d Cir. 1993); Powell Duffryn Terminals, 913 F.2d at

72-73. CLEAN has charged (1) that Gaston Copper exceeds its dis-

charge permit limits for chemicals that cause the types of injuries of

concern, and (2) that Shealy's lake lies in the range of that discharge.

No court has required additional proof of causation in such a case.

Crown Central Petroleum Corp., on which the majority heavily relies,

is not to the contrary. See 95 F.3d at 361 ("We emphasize that FOE

offered no competent evidence that [the] discharges have made their

way to Lake Palestine or would otherwise effect Lake Palestine."

(emphasis added)).

_________________________________________________________________

6 Although the majority leans on the Third Circuit's holding in Public

Interest Research Group v. Magnesium Elektron, Inc. (MEI), 123 F.3d

111 (3d Cir. 1997), that case does not support today's extension. In MEI,

not only did the plaintiffs "not allege in their complaint or affidavits any

injury" to the water body of interest, id. at 121, the district court specifi-

cally found that the defendant's discharge did not injure and did not

threaten that waterway, id. at 116. That express finding foreclosed the

recognition of injury and threat of injury that the evidence in this case

commands.

In short, no court has seen fit to restrict citizens such as Wilson

Shealy from vindicating their legal rights under the Clean Water Act,

and many routinely consider similar claims. In finding that this claim

fails to confer standing, the majority stands alone.

IV.

"We have no more right to decline the exercise of jurisdiction

which is given, than to usurp that which is not given." Cohens v.

Virginia, 19 U.S. (6 Wheat) 264, 404 (1821). As a doctrine of

restraint, the requirements of standing prevent the courts from decid-

ing abstract questions. My good colleagues, however, have trans-

formed these requirements of restraint into a sword. Wielding this

weapon against the obligations of the Clean Water Act, the majority

cleaves the Act's citizen enforcement provision as certainly as by

striking it from the statute altogether.

Wilson Shealy presents claims of private damage as concrete as

those "matters that were the traditional concern of the courts at West-

minster." Coleman v. Miller, 307 U.S. 433, 460 (1939) (opinion of

Frankfurter, J.). This case satisfies the case-or-controversy require-

ment of Article III and should be heard on its merits. I would reverse

the judgment and remand for a determination of whether Gaston Cop-

per has discharged pollutants in excess of its permit limits.

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