In light of the Supreme Court's decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (Laidlaw),[1] the Ninth Circuit reversed the district court's grant of summary judgment for plaintiff's lack of standing and remanded the case to the district court for further proceedings.

The Pacific Lumber Company (Pacific Lumber) owns and operates a log storage facility and sawmill, both of which abut Yager Creek in northern California and are subject to the requirements of the Clean Water Act (CWA).[2] California, a state authorized to issue and administer National Pollution Discharge Elimination System (NPDES) permits,[3] requires a facility to either comply with the requirements of a general permit or obtain an individual NPDES permit. Pacific Lumber operates both facilities under a general permit. In 1996, two environmental organizations sent letters notifying Pacific Lumber of their intent to sue for violations of the CWA at the company's Yager Creek facilities. In January 1997, the organizations filed a citizen suit against Pacific Lumber alleging violations of the general permit at both facilities. In August 1998, without first sending a new sixty-day notice letter to the defendant, the environmental organizations filed an amended complaint alleging violations of the 1997 general permit. Pacific Lumber sought dismissal of the suit based on lack of standing, mootness, and insufficiency of notice. The district court granted Pacific Lumber's motion for summary judgment after concluding that the environmental organizations lacked standing to sue.[4] Because the district court dismissed the case on standing grounds it did not reach the other issues raised by the parties. The Ninth Circuit reversed the district court, holding that in light of the Supreme Court's decision in Laidlaw, the plaintiffs had Article III standing based on the affidavits of two individual members.

Because organizational standing depends in part on whether any individual member has alleged an "injury in fact," the Ninth Circuit examined in detail whether the plaintiff's individual members had met this requirement. To satisfy the "injury in fact" requirement in environmental cases, an individual must show that the defendant's conduct has impaired an "aesthetic or recreational interest in a particular place, or animal, or plant species."[5] The district court focused on the fact that the individual members did not allege that they lived near Yager Creek, nor that they regularly used the creek for recreational or aesthetic purposes.[6] The Ninth Circuit disagreed and determined that the individual members satisfied the "injury in fact" requirement.

Employing the analysis set out in Laidlaw, the Ninth Circuit concluded that both plaintiff organizations provided sufficient factual averments to defeat a motion for summary judgment on the standing issue. The affidavits submitted by members of the organizations clearly alleged that the members' enjoyment of recreational and aesthetic activities would be harmed if the area was allowed to be environmentally degraded. Specifically, the affidavits established that 1) individual members had used Yager Creek for recreational activities in the past, 2) Pacific Lumber's conduct impaired the enjoyment of those activities, 3) individual members' concerns about pollution from the facilities had deterred individuals from fully enjoying activities at Yager Creek, including fishing and swimming in the creek, and 4) individual members planned to participate in activities in and around Yager Creek in the future. Therefore, the court concluded the plaintiffs' members "use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity."[7]

Pacific Lumber also argued that the plaintiffs lacked standing because they failed to show actual environmental harm to Yager Creek. The Ninth Circuit quickly rejected this argument, pointing out that the threshold for citizen standing under the CWA is not whether the plaintiff can show actual environmental harm, but whether concerns about violations of environmental laws have injured an individual's use of a particular area. The court advanced two reasons for this holding. First, some environmental statutes do not require plaintiffs to prove actual harm.[8] Second, the Supreme Court in Laidlaw recognized that an increased risk of harm is enough of an injury in some cases to be sufficient for standing purposes.[9] Therefore, to obtain standing, plaintiffs do not have to prove "with a scientific certainty" that a defendant actually discharged pollutants in violation of its permit.[10]

Pacific Lumber next argued that the plaintiffs failed to show that the company caused the alleged harms. The Ninth Circuit rejected this argument, holding that the Plaintiffs satisfied the causation element of Article III standing. As long as the alleged injury can be tracked to the challenged conduct of the defendant, rather than to some other party not before the court, the causation element is satisfied. The affidavits of plaintiffs' members satisfied the causation requirement because they alleged that they enjoy activities less because of the pollution produced at Pacific Lumber's facilities. Because it takes no "attenuated chain of conjecture" to link the alleged illegal conduct to the reduced enjoyment of the plaintiffs' members' use of Yager Creek, the causation element was satisfied.[11]

Finally, Pacific Lumber argued that the court should nevertheless affirm the district court's dismissal of the case on other grounds. First, the defendants contended 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. The court disagreed, concluding that the plaintiffs' claims for civil penalties and attorney's fees remained viable even if the claims for injunctive or declaratory relief became moot when the 1997 general permit became effective. Civil penalties remain viable as effective relief because they serve a deterrent purpose and continue to do so even if a new permit is issued because they deter further violations of the CWA. In short, when effective relief is still possible, the controversy is still live and the case is not moot.

Pacific Lumber also claimed that the notice letter regarding violations at the log storage facility was deficient. The Ninth Circuit held that even if the notice was deficient, dismissal of the case was still not appropriate. The defendants did not allege that the notice relating to the violations at the sawmill was deficient; therefore, the case could continue with respect to the alleged violations at the mill. As a result, the court concluded that dismissal of the entire case was not appropriate.