Environmental Law
| Publication year | 2023 |
Environmental Law
Travis M. Trimble
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In 2022,1 the United States Court of Appeals for the Eleventh Circuit held that a plaintiff and the organization to which she belonged had standing, based on her claimed injury to her aesthetic well-being, to bring a Clean Water Act (CWA)2 citizen suit against a developer who had allegedly filled a wetland in violation of its permit, even though the plaintiff had never visited the wetland and even though the wetland was on private property not accessible to the plaintiff.3 The United States District Court for the Northern District of Alabama concluded that acid mine leachate from a refuse pile into groundwater, and from there into the Locust Fork of the Black Warrior River, was a point source discharge requiring a permit under the Clean Water Act.4 The United States District for the Northern District of Georgia, in a case involving claims arising out of the contamination of drinking water in Summerville, Georgia, with per and polyfluoroalkyl substances used in textile manufacturing, among other applications, addressed motions to dismiss on numerous grounds made by the defendants in the case and for the most part denied those motions.5 Finally, in an oil spill remediation and cost recovery contribution action brought by a private company who claimed that the United States Army Corps of Engineers was solely at fault in causing the spill, the United States District Court for the Eleventh Circuit, in an issue of first impression for the Court, held that
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the Oil Pollution Act (OPA)6 provides the exclusive remedy for parties seeking cost recovery due to an oil spill, that the OPA does not allow for a claim against the United States, superseding the Suits in Admiralty Act,7 and that the OPA does not provide a defense to liability for a responsible party based on the spill being the sole fault of the United States.8
In Glynn Environmental Coalition, Inc. v. Sea Island Acquisition, LLC,9 the United States Court of Appeals for the Eleventh Circuit held that a plaintiff member and the organization to which she belonged established an "injury in fact" for the purpose of standing to bring a Clean Water Act (CWA) citizen-suit claim10 against the defendant, the developer of a wetland on the Georgia coast, because the member plaintiff alleged an aesthetic injury, even though the plaintiff did not allege she had ever visited the wetland or had ever entered upon the wetland, and even though the wetland was on private property such that the plaintiff had no right to enter the wetland.11
The wetland at issue was a 0.49-acre tract in Glynn County, Georgia, adjacent to the defendant's existing hotel and near Dunbar Creek.12 In 2013, the defendant notified the Corps of Engineers that it intended to fill the wetland in order to construct a building pursuant to Nationwide Permit (NWP) 39,13 a general permit that allows for the filling of wetlands of a half-acre or less for the construction of commercial buildings.14 The defendant then filled the wetland but never began any construction on the area.15
The plaintiffs filed suit in the United States District Court for the Southern District of Georgia, alleging that the defendant intentionally misrepresented its intentions regarding the wetland and that it only ever intended to landscape the area for the benefit of its adjacent hotel, a use
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not permitted under NWP 39.16 The plaintiffs sought an order requiring the defendant to restore the area to its original state, among other things.17 With respect to standing, the member-plaintiff alleged that she "recreate[d] in and enjoye[d] the aesthetics of the wetlands and marshes" in the area around the defendant's tract and that she "'derived aesthetic pleasure'" from the wetland," which she described in her complaint as a "pleasing natural resource."18 She alleged that the recreational and aesthetic value she derived from the wetland had been destroyed by the defendant's filling the wetland and covering with "unnatural" grasses and lawn.19 She alleged that she drives over Dunbar Creek daily and has "noticed a [deterioration of] the water clarity" of the creek following the filling of the wetland.20
The defendant moved to dismiss the claim on the ground that the plaintiffs lacked standing.21 The district court granted the motion on the ground that the plaintiffs had not shown an injury-in-fact sufficient to show standing. The district court concluded that the member-plaintiff had not adequately alleged an aesthetic interest that has been harmed because she had not alleged that she ever used or visited the wetland prior to its being filled. The court also concluded that the plaintiff had not alleged how her recreational interests were harmed because she did not explain what activities were inhibited, or how. Finally, because the member-plaintiff lacked standing, the organizational plaintiffs lacked associational standing.22
Article III standing requires a plaintiff to have "'suffered an injury in fact . . . that is fairly traceable to the challenged conduct of the defendant . . . and that is likely to be redressed by a favorable judicial decision.'"23 "An injury in fact must be 'concrete, particularized, and actual or imminent.' An injury that is 'conjectural or hypothetical' is constitutionally insufficient."24 "An individual suffers an aesthetic injury when she 'uses the affected area' and is a person 'for whom the aesthetic . . . value of the area will be lessened by the challenged
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activity.'"25 "An individual can meet her burden of establishing that injury at the pleading stage 'by attesting that she uses . . . an [affected] area . . . and that her aesthetic interests in the area have been harmed.'"26 "'Aesthetic well-being' is an 'important ingredient of . . . quality of life in our society' and is a recognized interest even though it is often 'shared by the many rather than the few.'"27
The Eleventh Circuit held that the member-plaintiff had "plausibly and clearly alleged a concrete injury" to her aesthetic interest because she "gains aesthetic pleasure from viewing wetlands in the natural habitat," "regularly recreates in the area and sees the wetland," and "after the wetland was replaced with sodding, she derived less pleasure from the wetland because the habitat and vegetation were unnatural."28 The court also held that these allegations were sufficiently factual to survive a motion dismissal at the pleading stage.29
The court addressed and rejected three arguments by the defendant as to why the member-plaintiff lacked standing.30 First, that the plaintiff must have actually visited the wetland prior its being filled in order to have suffered an injury from its being filled. Second, that the plaintiff must have actually entered upon the wetland in order to have an aesthetic interest in it. Third, that in any event the plaintiffs could have no interest of any kind in the wetland because it is private property.31
First, the court explained that the plaintiff was not required to have visited the wetland prior to its being filled in order to have an interest in it, because a plaintiff has suffered an injury in fact if she cannot now derive pleasure from the affected area because of the defendant's actions, even if the plaintiff has not used the area before.32
Second, the court concluded that the plaintiff need not have physically stepped foot on the wetland in order to have an aesthetic interest in it.33 The defendant relied on Lujan v. Defenders of Wildlife,34 characterizing that case to hold that "a plaintiff claiming environmental damage must use the area affected by the challenged activity and not an area roughly
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in the vicinity of it."35 The Eleventh Circuit distinguished Lujan, explaining that there the plaintiff challenged the government's opening 4,500 acres to oil and gas leasing within a two-million-acre area of federal land, almost all of which had already been open to leasing.36 The plaintiffs alleged only that they used an unspecified part of the two-million-acre area "in the vicinity of" the 4,500-acre tract.37 The Supreme Court held the plaintiffs lacked standing because "averments that the plaintiffs used unspecified portions of an immense tract of territory" were insufficient at the summary judgment stage of the case to show that the new lease had "harmed their recreational use and aesthetic enjoyment of federal lands."38
In contrast, the Eleventh Circuit explained, the member-plaintiff here alleged that she "derived pleasure from the half-acre wetland that [the defendant] filled, that she also ha[d] seen it after it was filled, and that she . . . observed the immediate area surrounding the wetland."39 These allegations are different from "an averment that a person's aesthetic interest is harmed solely because he uses part of a two-million-acre area, a small portion of which was opened to mining and oil and gas leases."40 The court said the defendant's position would require a plaintiff "to have climbed on top of the arches in Arches National Park" or to have "stepped on the Old Faithful geyser" in order to challenge their destruction, a position which has "no support in case law."41
Finally, the court rejected the defendant's argument that the plaintiffs could have no interest in the wetland because it is private property that they could not legally access.42 The court analogized the plaintiff's aesthetic injury from the filling of the wetland to the various ways a person may be injured by another's use of his or her private property, particularly in the nuisance context.43 The court explained that "[a] person can suffer an injury from the unsightly nature of private property under well-settled tort law, even if he cannot always prevail on his underlying claim."44
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