JOSEPH HOOD, District Judge
In this action brought pursuant to Section 505 of the Clean Water Act, 33 U.S.C. § 1365, the Defendants, Carrollton Utilities and Carollton Wastewater Treatment Facility, move to dismiss the complaint or stay this litigation in light of a subsequent administrative agreed order entered into between the Natural Resources and Environmental Protection Cabinet and the City of Carollton [Record No. 11]. Plaintiffs, American Canoe Association, Inc. and the Sierra Club, respond by moving for a Declaratory Judgment asserting standing for both parties, and for Summary Judgment as to the defendants' liability [Record No. 14]. These matters are before the Court along with the parties' joint motion to amend the scheduling order [Record No. 16]
The Plaintiff, Sierra Club, does indeed have standing in this suit. However, American Canoe Association lacks standing to assert any claim against the Defendants. Therefore, any claim asserted by the American Canoe Association is dismissed. For the reasons set forth below, the Defendants' motion to dismiss is granted as against American Canoe Association and denied as against Sierra Club. The Court also finds that granting the Motion for Stay would be inconsistent with the Congressional intent of the Clean Water Act. For this reason, the Court denies the Motion to Stay.
I. STANDING
In Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167 (2000), the Supreme Court set forth the applicable test for determining whether a plaintiff has standing under Article III of the United States Constitution. The Court held that a plaintiff must show:
(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Id. at 180-81 (citation omitted). The Court went on to state that:
An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
Id. at 181 (citation omitted). The facts of
Laidlaw are very similar to those in the instant case.
Laidlaw involved a civil action brought by various environmental groups pursuant to the citizen suit provisions of the Federal Water Pollution Control Act (hereinafter, the "Clean Water Act"). Id. at 167. The plaintiffs were seeking declaratory and injunctive relief, civil penalties, costs, and attorneys' fees. Id. In Laidlaw, the defendants argued that the environmental groups lacked standing based on their failure to show "injury in fact." Id. at 181. The Court held that affidavits and testimony offered by members of the various groups were sufficient to establish "injury in fact." Id. at 181-83.
A. The Sierra Club
The Sierra Club asserts a representational interest in the case based on the citizen suit provisions of the Clean Water Act. In Laidlaw, the Supreme Court held that an association may bring suit on behalf of its members where the members have standing to sue in their own right, the interests are germane to the organization's purpose, and neither the claim asserted nor relief requested requires the participation of individual members in the lawsuit. Id. at 181 (citation omitted). Although it would be difficult to argue that the lawsuit is not relevant to the interests of the Sierra Club, or that the remedy would require the participation of the defendant, it is questionable whether the member would have standing to file suit on her own.
The Sierra Club asserts an interest in the suit through long-time member Jolinda Buchanan. In support of their claim, the group offers the affidavit of Ms. Buchanan as evidence of the alleged injury. Ms. Buchanan's affidavit states that she is a resident of Columbus, Indiana. Buchanan Aff. ¶ 1. The document goes on to discuss the role the Ohio River has played in her family history, both past and present. Id. at ¶ 3-6. Ms. Buchanan's affidavit states:
I am very concerned about the effect of the pollution in the Kentucky and Ohio Rivers and in the Carollton, Milton, and Madison areas. Though the water looks "OK," my knowledge of the pollution discharged into these rivers affects my use and enjoyment.
Id. at ¶ 8. Ms. Buchanan's statement also provides that:
My enjoyment has been diminished by the pollution existing in the Ohio River. I would enjoy paddling down, hiking along, and picnicking next to the Ohio River, and engaging in other activities described above much more if the Ohio River were cleaner. I am an active person who enjoys the outdoors tremendously. I would engage in these activities more often if it were not as polluted.
Id. at ¶ 9. The Sierra Club has asserted standing based on the alleged injuries suffered by Ms. Buchanan.
As previously noted, in order to satisfy Article III's standing requirements a plaintiff must show an "injury in fact." Laidlaw, 528 U.S. at 180. The Court stated that "[t]he relevant showing for purposes of Article III standing is not injury to the environment, but injury to the plaintiff." Id. at 181. The Court went on to conclude that the sworn statements provided by the plaintiffs in support of their claim "adequately documented the injury in fact." Id. at 183. The Court held:
We have held that environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons "for whom the aesthetic and recreational values of the area will be lessened" by the challenged activity.
Id. at 183 (citations omitted). Based on the Court's decision in
Laidlaw, it would appear that the Sierra Club has standing through the injuries alleged by Ms. Buchanan. Therefore, the Sierra Club should be able to withstand the defendant's request for dismissal. However, this does not end the inquiry.
B. American Canoe Association, Inc.
The American Canoe Association, Inc. (hereinafter, the "ACA") asserts standing in their own right based on the defendants' monitoring and reporting violations. Accordingly, the ACA must be able to show standing through the test set forth in Laidlaw. Given the facts, it is difficult to see how the ACA can establish an "injury in fact."
The ACA asserts "injury in fact" based on the defendants' monitoring and reporting violations. In support of this contention, the ACA offers the affidavit of their president, David Jenkins. Specifically, the ACA states that it reviews discharge and monitoring reports submitted to government agencies. Jenkins Aff. ¶ 5. The ACA further asserts that it "has advised members nationally through its newsletter and web page that it is conducting an enforcement program under the Clean Water Act to protect [their] interests" and it "has also recruited new members, including members in Kentucky, by making statements in promotional mailings that it is conducting such a program." Id. at ¶ 8. These are the only arguments set forth by the ACA in support of an "injury in fact" and subsequent right to standing.
As previously noted, the Court has held that an injury must be both concrete and particularized to the plaintiff to satisfy the requirements of Article III standing. Laidlaw, 528 U.S. at 180. In order for an injury to be "particularized", the plaintiff must show that they were affected in a personal and individual way. Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992). Furthermore, the test requires that the "party seeking review be himself among the injured." Id. (citation omitted). The Court also held that a plaintiff must be "directly" affected by the defendant's actions, apart from their "special interest" in the subject. Id. (citation omitted). The Supreme Court has held that injury to the environment is insufficient to establish standing. Id. at 181.
It is clear that the ACA has failed to establish an injury in fact. The ACA offers no evidence in support of such harm to the group in general or any of its individual members. Based on these factors, the ACA lacks standing to assert a claim against the defendants.
II. MOTION TO STAY
The Defendants argue that the Motion for Stay should be granted on the basis that the City of Carollton is now in substantial compliance and has entered into an agreed order with the Natural Resources and Environmental Protection Cabinet of the Commonwealth of Kentucky (NREPC). However, the Defendants' "substantial compliance" with the Clean Water Act ("Act") remains in dispute. Although improved, even the Defendants concede the fact of continued violations. The Defendants place great reliance on the recent decision in American Canoe Association, Inc. v. City of Louisa Water and Sewer Commission, Civil No. 01-99 (E.D.Ky., Oct. 9, 2001). In City of Louisa, the defendant entered into a similar administrative order with the NREPC after the filing of a citizens' suit. There, however, the administrative order mandated a civil penalty in the amount of $6,000 for each failure to comply with any requirement of the order. In contrast, the agreed order entered into by the Carollton Defendants has no such penalty for noncompliance. The order is written so that Carollton could violate the Act continually until September 30, 2003 without incurring any penalties.
The Defendants also stress the expense and effort that the City has already put forth to come close to compliance and that further litigation could limit the City's ability to fund a new treatment plant. Although the Court appreciates the financial strain of the instant litigation, such strain in no way immunizes the Defendants from the liability associated with their violations of the Clean Water Act. The Defendants speculate that if they were to achieve complete compliance in the near future, then the citizens' suit would be rendered moot.
But this is contrary to a recent and apposite decision of the Court of Appeals for the Sixth Circuit, Tamaska v. City of Bluff City, 2002 U.S. App. LEXIS 381 (Jan. 4, 2002). In Tamaska, the City argued that the case was moot because, when the district court imposed the penalty, the City had ceased to operate the facility and thus there was no possibility that it would continue to violate the Act. The court rejected this argument, stating:
We believe that a defendant's voluntary cessation of a challenged practice after the filing of suit, but before entry of judgment, should not deprive the court of the ability to impose civil penalties for violations of the act . . . [T]old otherwise would encourage polluters to delay in litigation as long as possible, knowing that they could escape all liability for even post-complaint violations by simply coming into compliance with the Act before the suit came to trial.
Id. at *11. Under Tamaska, this Court retains jurisdiction to
hear this case and to impose civil penalties for violations of the Act that occurred both before and after the Complaint was filed. Applying these principles to the case at bar, it is clear that a stay of the instant action serves no purpose except to delay the resolution of the litigation indefinitely.
Accordingly,
IT IS ORDERED
(1) That the Defendants' motion to dismiss for lack of standing [Record No. 11] be, and the same hereby is, GRANTED as to American Canoe Association;
(2) That the Defendants' motion to dismiss for lack of standing [Record No. 11] be, and the same hereby is, DENIED as to Sierra Club;
(3) That the Defendants' motion to stay [Record No. 11] be, and the same hereby is, DENIED;
(4) That the Plaintiffs' motion for declaratory judgment that they have standing [Record No. 14] be, and the same hereby is, GRANTED as to Sierra Club;
(5) That the plaintiffs' motion for declaratory judgment that they have standing [Record No. 14] be, and the same hereby is, DENIED as to American Canoe Association;
(5) That he parties joint motion to amend the scheduling order [Record No. 16] be, and the same hereby is, GRANTED. The new dates are as follows: Completion of Factual Discovery — 4/15/02; Plaintiffs' Experts Reports 6/15/02; Defendants' Expert Reports — 8/15/02; Supplementations for Reports — 9/15/02; Discovery Completion — 10/15/02; Dispositive Motions Deadline — 11/15/02; Motions to Amend Pleadings — 11/15/02; Motions in Limine 12/15/02; Pretrial Brief — 3/18/03; Final Pretrial Conference — 3/25/03; Trial — 4/29/03;
(6) That plaintiffs' motion for leave to file sur-reply [Record No. 19] be, and the same hereby is, GRANTED.
So ordered