Argued and Submitted August 8, 2000 — Pasadena, California.
Opinion by Judge Berzon.
OPINION
BERZON, Circuit Judge:
Plaintiff organizations Ecological Rights Foundation ("ERF") and Mateel Environmental Justice Foundation ("Mateel") brought this lawsuit against Pacific Lumber Company alleging various violations of the Federal Water Pollution Control Act of 1972, better known as the Clean Water Act, see 33 U.S.C. § 1251 et seq., at Pacific Lumber's Yager Camp and Carlotta mill operations in Humboldt County, California. The district court granted Pacific Lumber's motion for summary judgment on the ground that the plaintiffs lacked standing to sue. ERF and Mateel appeal the district court's standing ruling. We conclude that the district court's approach to standing cannot be squared with Friends of the Earth v. Laidlaw, 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), decided after the district court judgment issued in this case, and that applying Laidlaw, the two plaintiff organizations do have standing to pursue this litigation. Because Pacific Lumber's other arguments, whether valid or not, would not support dismissal of this case, we reverse the judgment and remand the case for further district court proceedings.
I.
Background
1. Yager Creek
Yager Camp and the Carlotta sawmill both abut Yager Creek. Runoff from these two facilities drains into the creek and waterways further downstream. The creek flows through Yager Camp, a 150-acre site that includes a truck wash operation, a composting area, and log decks to store logs before they are sent to the Carlotta sawmill. The mill, located just downstream of Yager Camp, occupies more than 70 acres alongside the creek. The mill facility also includes truck shops, an aggregate crusher, and more log decks.
Yager Creek flows into the Van Duzen River about a mile below the Carlotta mill. The Van Duzen in turn empties into the Eel River, and the Eel reaches the Pacific Ocean about 12 miles from Pacific Lumber's facilities. Yager Creek and the other rivers in the Eel River system are used for swimming, boating, and other recreational activities. Various forms of wildlife inhabit the area nourished by Yager Creek, and fish use the creek to migrate to their spawning grounds.
Several members of ERF and Mateel use Yager Creek for recreation. They particularly enjoy their visits because they can view wildlife in and around the creek. The organizations' members avoid some activities they would otherwise enjoy in and around Yager Creek, however, because they fear that runoff from Pacific Lumber's two facilities is damaging the creek and its wildlife, and enjoy other activities less than they would if there were no such runoff. Among the several members of the plaintiff organizations who use the creek for recreational activities, two are particularly significant for this case.
Christopher Hinderyckx, a member of Mateel, began visiting the creek in 1989 when he was commuting from his home in southern Humboldt County to attend classes at the College of the Redwoods in Arcata. Since completing his coursework, he has continued to drive to Arcata often, sometimes stopping along the creek. Over the years, Hinderyckx has gone swimming in Yager Creek at least a dozen times. Although Hinderyckx has enjoyed swimming in Yager Creek, he is less likely to swim there in the future, because he now has information that suggests to him that the creek may be polluted. Hinderyckx also hesitates to fish in the creek because he is concerned about harmful pollutants in the water. And because the creek is not as clean as it should be, Hinderyckx maintains, he aesthetically enjoys his recreational
Similarly, Frederic Evenson, a Humboldt County resident since 1990 and an ERF member, takes part in various recreational activities on and downstream of Yager Creek, including swimming and snorkeling in the creek near Carlotta and observing wildlife. He "derive[s] immense pleasure, strength and inspiration" from these visits. Evenson plans to continue these visits to Yager Creek, but his enjoyment of Yager Creek and the downstream waterways is impaired by discharges of pollutants from Carlotta and Yager Camp.
2. Statutory Background
Yager Camp and the Carlotta sawmill are subject to the mandates of the Clean Water Act ("CWA"). See 33 U.S.C. § 1251 et seq. A linchpin of the CWA's regulatory scheme is the National Pollution Discharge Elimination System ("NPDES") permit program, which allows certain discharges of pollutants only if in compliance with government-issued permits, and imposes related monitoring and reporting requirements. See 33 U.S.C. § 1342. The Clean Water Act makes illegal any discharges of pollutants that are not specifically allowed by an NPDES permit. 33 U.S.C. § 1311(a).
Under the Clean Water Act, the states, with EPA's approval, may issue and administer NPDES permits. See 33 U.S.C. § 1342(b); see also Cal. Water Code § 13370 (expressing California's intent to implement an NPDES program at the state level). In California, the State Water Resources Control Board ("SWRCB") issues and administers a so-called General Permit that regulates discharges of pollutants into California's waters. Industrial facilities in California subject to the Clean Water Act must either comply with the General Permit or obtain individualized NPDES permits. See SWRCB Water Quality Order No. 97-03-DWQ, NPDES General Permit No. CAS000001 at 2 ¶ 5 (hereinafter "General Permit").
Among the conditions imposed by the 1997 General Permit are prohibitions on non-storm water discharges of pollutants into the state's waterways except those specifically allowed, as well as strict limits on the discharge of pollutants into storm water.
3. This Litigation
The plaintiff organizations brought this action pursuant to the CWA's citizen suit provision, claiming violations of the General Permit. The Clean Water Act allows any citizen to sue "any person ... who is alleged to be in violation of ... an effluent standard or limitation under this chapter or ... an order issued by the [EPA] Administrator or a State with respect to such a standard or limitation." 33 U.S.C. § 1365. An "effluent standard or limitation" is further defined to include "a permit or condition thereof issued under section 1342 of this title." 33 U.S.C. § 1365(f)(6).
At least 60 days before filing a lawsuit, a potential plaintiff must notify the alleged violator of her intent to sue. See 33 U.S.C. § 1365(b)(1)(A); see also National Environmental Foundation v. ABC Rail Corp.,
40 C.F.R. § 135.3.
To comply with this notice requirement, ERF and Mateel sent letters to Pacific Lumber on October 30 and November 12, 1996, giving notice of intent to sue regarding alleged CWA violations at Yager Camp and Carlotta, respectively. The Yager Camp letter alleged the following violations of the 1992 General Permit: unpermitted discharges of contaminated storm water; failure to prepare and implement an adequate SWPPP;
On January 28, 1997, ERF and Mateel filed a complaint against Pacific Lumber, reiterating the allegations of 1992 General Permit violations that were set forth in the Yager Camp and Carlotta letters.
On cross-motions for summary judgment, the district court concluded that ERF and Mateel lacked standing, and dismissed their lawsuit. Ecological Rights Foundation v. Pacific Lumber Co., 61 F.Supp.2d 1042, 1058 (N.D.Cal.1999). Because the district court dismissed the case, it had no reason to and did not reach the other issues raised by the parties in their summary judgment motions. The plaintiffs seek reversal of the district court's decision on standing, while Pacific Lumber urges us to affirm the district court either on standing grounds or on the mootness or inadequate notice arguments raised but not decided in the district court.
Standing Issue
The CWA's citizen suit provision extends standing to the outer boundaries set by the "case or controversy" requirement of Article III of the Constitution. See Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 16, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). Because the statutory and constitutional standing issues therefore merge, the only standing issue before us, which we determine de novo, is whether the plaintiffs have standing under Article III to proceed to the merits of their lawsuit. Alaska Wildlife Alliance v. Jensen, 108 F.3d 1065, 1068 (9th Cir.1997). We conclude that Mateel and ERF have Article III standing based on Hinderyckx's and Evenson's use, respectively, of Yager Creek, and therefore do not address the plaintiffs' alternative standing theory based on direct injuries to the plaintiff groups' organizational interests.
1. Organizational Standing in Environmental Cases
An organization has standing to bring suit on behalf of its members when: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purposes; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advertising Com'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); see also International Union, United Auto., Aerospace and Agricultural Implement Workers of America v. Brock, 477 U.S. 274, 290, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986).
The "injury in fact" requirement in environmental cases is satisfied if an individual adequately shows that she has an aesthetic or recreational interest in a particular place, or animal, or plant species and that that interest is impaired by a defendant's conduct. See, e.g., Laidlaw, 120 S.Ct. at 705; Defenders of Wildlife, 504 U.S. at 562-63, 112 S.Ct. 2130; Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092, 1094 (9th Cir.1998). The district court in this case so recognized, but concluded nonetheless that none of the members of ERF and Mateel who submitted affidavits in support of the organizations' standing alleged contacts with Yager Creek sufficient to state an injury in fact to their recreational and aesthetic interests, explaining its decision as follows:
61 F.Supp.2d at 1057.
The district court's standing ruling, it thus appears, turned on the supposition that a plaintiff can only establish standing in an environmental case on the basis of aesthetic or recreational interests if she lives some specified distance from the area covered by the lawsuit and repeats her use of the area at some prescribed interval. The "injury in fact" requirement in environmental cases is not, however, reducible to inflexible, judicially mandated time or distance guidelines, as Laidlaw makes clear.
2. Injury in Fact Under Laidlaw
Before Laidlaw, the Supreme Court examined the "injury in fact" requirement in environmental cases in detail in two cases. See Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130 (affirming grant of summary judgment for lack of standing because plaintiffs did not meet their obligation under Fed.R.Civ.P. 56(e) to allege sufficiently specific facts demonstrating their use of the contested area); Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (denying standing because plaintiffs could show only "speculative `someday' intentions to visit endangered species halfway around the world").
Laidlaw, on the other hand, involved a situation, like this one, in which the litigation was narrowly focused and the
Under Laidlaw, then, an individual can establish "injury in fact" by showing a connection to the area of concern sufficient to make credible the contention that the person's future life will be less enjoyable — that he or she really has or will suffer in his or her degree of aesthetic or recreational satisfaction — if the area in question remains or becomes environmentally degraded. Factors of residential contiguity and frequency of use may certainly be relevant to that determination, but are not to be evaluated in a one-size-fits-all, mechanistic manner.
Daily geographical proximity, for instance, may make actual past recreational use less important in substantiating an "injury in fact," because a person who lives quite nearby is likely to notice and care about the physical beauty of an area he passes often. See Laidlaw, 120 S.Ct. at 704 (FOE member alleged injury in fact because "he lived a half-mile from Laidlaw's facility; ... he occasionally drove over the North Tyger River, and ... it looked and smelled polluted"); Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cir.1985) (affiant who passed the Hudson River regularly and found its pollution "offensive to his aesthetic values" stated injury in fact). On the other hand, a person who uses an area for recreational purposes does not have to show that he or she lives particularly nearby to establish an injury-in-fact due to possible or feared environmental degradation. Repeated recreational use itself, accompanied by a credible allegation of desired future use, can be sufficient, even if relatively infrequent, to demonstrate that environmental degradation of the area is injurious to that person. Id. at 705 (finding that an individual who has canoed in the river and would do so again, closer to
This flexible approach is the only one consistent with the nature of the aesthetic and recreational interests that typically provide the basis for standing in environmental cases. As the Supreme Court has explained, "[a]esthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society." Sierra Club, 405 U.S. at 734, 92 S.Ct. 1361. Yet, aesthetic perceptions are necessarily personal and subjective, and different individuals who use the same area for recreational purposes may participate in widely varying activities, according to different schedules. Laidlaw confirms that the constitutional law of standing so recognizes, and does not prescribe any particular formula for establishing a sufficiently "concrete and particularized," Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130, aesthetic or recreational injury-in-fact.
3. Injury in Fact in this Case
Evaluating the record in this case in accord with Laidlaw, there is no doubt that both plaintiff organizations have come forward with sufficient factual averments to survive summary judgment on the standing issue. Both Hinderyckx, a member of Mateel, and Evenson, a member of ERF, stated longstanding recreational and aesthetic interests in Yager Creek, the specific place at issue in this case. Both have used the creek for recreational activities several times in the past, and both have alleged that Pacific Lumber's conduct has impaired their enjoyment of those activities. Hinderyckx, like the affiants in Laidlaw, testified that he is deterred from fully enjoying Yager Creek because of his concerns about pollutants discharged from Pacific Lumber's facilities adjacent to the creek; although he likes to fish, he refrains from fishing in the creek because of concerns about pollution, and he is less likely to swim at some places along the creek than he used to be. And both Hinderyckx and Evenson, like the affiants in Laidlaw, expressed an interest in participating in recreational activities in and around Yager Creek in the future, and in continuing to enjoy the beauty of the area.
4. Other Standing Issues Raised in this Appeal
One last point requires mention: Pacific Lumber argues that the plaintiffs lack standing because they have demonstrated neither actual environmental harm to Yager Creek itself, nor that the company caused any such harm. As the district court correctly recognized, however, see 61 F.Supp.2d at 1055, the threshold question of citizen standing under the CWA is whether an individual can show that she has been injured in her use of a particular area because of concerns about violations of environmental laws, not whether the plaintiff can show there has been actual environmental harm. See Laidlaw, 120 S.Ct. at 704; Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 163-64 (4th Cir.2000) (en banc). This is so for at least two reasons.
First, under many environmental protection statutes, harm to the environment need not ever be proved; the Clean Water Act allows citizen suits based on violations of any conditions of an NPDES permit, even those which are purely procedural. See 33 U.S.C. § 1365(f)(6) (citizen suit may allege violation of permit or condition thereof); 33 U.S.C. § 1318 (outlining procedural requirements of NPDES permits, including reporting, monitoring, and record-keeping). As the Laidlaw Court explained, requiring a plaintiff to demonstrate actual environmental harm in order to obtain standing would, in many Clean Water Act lawsuits, compel the plaintiff to prove more to show standing than she would have to prove to succeed on the merits. 120 S.Ct. at 704. Requiring the plaintiff to show actual environmental harm as a condition for standing confuses the jurisdictional inquiry (does the court have power under Article III to hear the case?) with the merits inquiry (did the defendant violate the law?).
Second, Laidlaw recognized that an increased risk of harm can itself be injury in fact sufficient for standing. The "irreducible constitutional minimum" conditions for standing do not require a plaintiff to demonstrate that she has already suffered physical injury, but allow her to obtain standing based on an injury that is "imminent, not conjectural or hypothetical." Laidlaw, 120 S.Ct. at 704 (quoting Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130); see also Gaston Copper, 204 F.3d at 160. In the wake of Laidlaw, for example, the en banc Fourth Circuit held that an affiant sufficiently alleged injury in fact under the Clean Water Act when the defendant's alleged NPDES permit violations threatened the environmental quality of waters adjoining the affiant's property, although the plaintiff environmental organizations had not produced evidence of actual environmental degradation. Gaston Copper, 204 F.3d at 155-61. As the Gaston Copper court cogently explained, to require actual evidence of environmental harm, rather than an increased risk based on a violation of the statute, misunderstands the nature of environmental harm, and would undermine enforcement of the Clean Water Act:
Id. at 160 (internal citations omitted).
Mateel and ERF have clearly alleged that Pacific Lumber has violated conditions of its NPDES permits at Yager Camp and Carlotta.
Pacific Lumber further argues that the plaintiffs have failed to demonstrate that their asserted injuries are fairly traceable to any conduct by the company. We disagree. The issue in the causation inquiry is whether the alleged injury can be traced to the defendant's challenged conduct, rather than to that of some other actor not before the court. See Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130 (quoting Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)); cf. American Petroleum Institute v. United States EPA, 216 F.3d 50, 66-68 (D.C.Cir.2000) (plaintiffs failed to show causation in challenge to EPA rule governing hazardous wastes where their asserted injury relied on speculation that particular facilities would actually introduce the pollutants into the air).
Hinderyckx and Evenson have claimed that their enjoyment of various activities they take part in on Yager Creek and waterways downstream is lessened due to Pacific Lumber's alleged violations of various provisions of the Clean Water Act designed precisely to prevent the irreparable environmental degradation of the nation's waters before it occurs. It requires no attenuated chain of conjecture, and no presumptions that other actors will behave in any particular way, to link Pacific Lumber's alleged illegal conduct to Hinderyckx's and Evenson's diminished enjoyment of Yager Creek. Therefore, we conclude that Hinderyckx and Evenson
III.
Other Asserted Bases for Affirmance
Pacific Lumber suggests that even if we disagree, as we do, with the district court's grant of summary judgment in its favor on standing grounds, we should for other reasons affirm the district court's dismissal of the case. See, e.g., First Pacific Bank v. Gilleran, 40 F.3d 1023, 1024-25 (9th Cir.1994) (district court judgment may be affirmed on any ground supported by the record). Specifically, Pacific Lumber maintains, first, that the case became moot when the 1997 General Permit went into effect six months after the plaintiffs filed their complaint based on the 1992 General Permit, and second, that the plaintiffs' Yager Camp 60-day notice letter was defective. Neither of these contentions, however, would justify the dismissal of the entire case.
As to the first, new permit issue: Even if the plaintiffs' claims for injunctive or declaratory relief for violations of the earlier General Permit became moot when the 1997 General Permit went into effect — an issue we do not decide — the plaintiffs' claims for civil penalties and attorneys' fees would remain viable. See Laidlaw, 120 S.Ct. at 706-10; Northwest Environmental Advocates v. City of Portland, 56 F.3d 979, 990 (9th Cir.1995) (changes to defendant's NPDES permit did not moot claims for attorney's fees based on alleged violations of old permit).
An action becomes moot if the controversy is no longer live because an event occurs that precludes the court from ordering effective relief, a circumstance that is not before us. American Rivers v. National Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir.1997). The district court retained subject matter jurisdiction in this case whether or not the alleged violations persist throughout the duration of the litigation, because Mateel and ERF alleged violations of the Clean Water Act that were ongoing at the time the complaint was filed. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 64, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Therefore, we cannot say that the controversy as regards Pacific Lumber's violations of the 1992 General Permit are no longer live even if the plaintiffs have not properly claimed violations of the 1997 General Permit, as long as effective relief is possible.
There is no reason the district court could not order effective relief in this case. As is ordinarily the case with monetary relief, liability for civil penalties under the Clean Water Act attaches at the time the violations occur, not at the time of the judgment. See 33 U.S.C. § 1319(d) ("Any person who violates [various sections of the Clean Water Act or permits issued under the Act] shall be subject to a civil penalty not to exceed $25,000 per day for each violation."). Further, such monetary penalties continue to fulfill their purpose after the issuance of a new permit: Civil penalties deter future violations of the Clean Water Act even when injunctive relief is inappropriate. See Laidlaw, 120 S.Ct. at 706 ("civil penalties in Clean Water Act cases do more than promote immediate compliance ...; they also deter future violations"); id. at 710. Monetary penalties can serve their general deterrent function as well now that Pacific Lumber's discharges are regulated under a new, stricter permit as they could under the old permit. The underlying statutory rule appellants seek to enforce in this case precludes any discharges except in compliance with an applicable permit. 33 U.S.C. § 1311(a). There is no basis for believing that the bare fact of a new, stricter permit makes future permit violations any less likely, deterrence any less necessary, or the deterrent effect of civil penalties any less potent. We must conclude that civil penalties, if appropriate on the merits, would serve their deterrent purpose in this case.
Nor does Pacific Lumber's claim that the Yager Camp 60-day notice letter
We cannot, therefore, affirm the district court's outright dismissal of the plaintiffs' lawsuit on the basis of Pacific Lumber's alternative arguments. Under these circumstances, it would be entirely improper for us to address those arguments any more extensively than we have, for two reasons.
First, the rule that a case may be affirmed on any ground supported by the record is one driven by efficiency considerations. Where precisely the same result could have been reached on other grounds apparent from the record, sending the case back to the district court is wasteful both for the courts and for the litigants. See SEC v. Chenery, 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943).
At the same time, the affirm-on-any-ground rule does disregard the usual relationship between trial and appellate courts. Usually, an appellate court does not consider legal issues in the first instance but instead has the benefit of the district judge's initial analysis. Our judicial system generally assumes that consideration of an issue at both the trial court and appellate court level is more likely to yield the correct result, because the issue will be more fully aired and analyzed by the parties, because more judges will consider it, and because trial judges often bring a perspective to an issue different from that of appellate judges. It is to assure two-level consideration that issues usually cannot be raised in appellate courts in the first instance, but instead are waived (or reviewed only for plain error) if not raised before the district court. See, e.g., In re E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir.1989) (issue is waived on appeal unless it was raised below "sufficiently for the trial court to rule on it"). When the efficiency interest no longer obtains because the case will have to be remanded in any event, there is no reason to forego the usual preference for prior trial court consideration of all issues in a case.
Second, to decide Pacific Lumber's alternative arguments at this juncture would be tantamount to allowing an interlocutory appeal of those issues. As noted above, Pacific Lumber's arguments would, at most, support narrowing this case, not dismissing it. Consequently, had the district court correctly decided the standing issue in this case and then turned to Pacific Lumber's alternative arguments, the losing party could not have taken an appeal to this court from the court's decision on those questions until final judgment issued in the case as a whole. See 28 U.S.C. § 1291. Nor would we have the power to hear a premature appeal on those questions. Id. Just as there is no reason to alter the usual division of initial responsibility between the trial and appellate courts because a threshold, potentially dispositive issue was decided incorrectly, so there is no ground for allowing otherwise unavailable appellate consideration of nondispositive issues for that reason.
Rather than adjudicating this case piecemeal, we reverse on the standing issue and remand to allow the district court to adjudicate all the issues in the case in the first instance.
REVERSED AND REMANDED for proceedings consistent with this opinion.
FootNotes
In Lujan v. National Wildlife Federation, the Court denied standing to two environmental organizations because their members attested only to taking part in recreational activities "in the vicinity of" vast tracts of land, small sections of which would be opened to mining by a challenged Bureau of Land Management order. 497 U.S. at 886-89, 110 S.Ct. 3177. The plaintiffs' declarations, that is, were too vague to establish that any of their members had any ascertainable aesthetic or recreational interest, past or future, in the exact areas affected by the challenged environmental decision.
In Lujan v. Defenders of Wildlife, two members of Defenders of Wildlife averred that they had in the past visited the habitats of certain endangered species halfway around the world, and were harmed by the Agency for International Development's (AID) plans to help finance foreign development projects that would threaten the animals' habitats. Although the two women had visited these areas before, they had no specific plans to travel the huge distances involved again. It was therefore entirely speculative, at best, and unlikely, at worst, that the AID's actions would actually affect their future lives. 504 U.S. at 564, 112 S.Ct. 2130.
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