Court Victory May Aid Citizen Enforcement Of Clean Water Act

Subject: Victory for environmental groups
Date: 11/11/2004 1:55:57 PM Eastern Standard Time
From: MarianR451
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BCC: Reysmont


Court Victory May Aid Citizen Enforcement Of Clean Water Act

A federal appeals court has for the first time clearly stated that environmental groups have standing to sue water dischargers to disclose monitoring and reporting data under the Clean Water Act.

A ruling earlier this month by the U.S. Court of Appeals for the Sixth Circuit is “critically important” to the ability of environmentalists and other citizen groups to enforce the water act, an environmental attorney familiar with the case says, noting that the discharge permitting program is a self-monitoring system. “We think it is an important victory for environmental groups.”

A district court had earlier dismissed the case, American Canoe Association, et al. v. City of Louisa Water & Sewer Commission, et al., which alleged the water commission had violated the terms of a National Pollutant Discharge Elimination System (NPDES) permit for its water treatment plant by failing dozens of times to complete monitoring reports. The lower court said the plaintiffs, American Canoe Association and the Sierra Club, lacked standing to bring the suit.

But in a precedent-setting 2-1 decision, the Sixth Circuit ruled the organizations have standing to sue both on behalf of their members and on their own behalf for a so-called informational injury. The court agreed with the environmental groups that if a statute has a reporting requirement and those reports must be made public, the plaintiffs have suffered an injury if they are denied this information by the defendants’ failure to issue the reports.

The court accepted environmentalists’ arguments that related Supreme Court precedents addressing the Federal Election Committee Act (FECA) and Federal Advisory Committee Act (FACA) show that failure to disclose reportable data is an “informational injury” that is akin to an “injury in fact,” which is one of three tests plaintiffs must meet to demonstrate standing to sue.

But in a dissenting opinion, Senior Judge Cornelia G. Kennedy said granting the environmental groups standing based on an informational injury “impermissibly expands the Supreme Court’s jurisprudence on the subject” and “raises significant public policy concerns.” Additionally, Kennedy said that because it is clear the groups have standing to represent their members, there is no need to address the issue of informational standing.

“To be clear, the majority’s novel read of [past legal precedents] makes the Sixth Circuit the only circuit in the country to read these two cases so broadly,” Kennedy said. “The majority interprets these cases as creating a permissive standard that lower courts must use in deciding when citizens and organizations have the right to information. Reading [past precedents] in such a manner reads them in isolation from other important cases on the subject of standing.”

FECA and FACA were both specifically drafted to provide information to the public about the workings of government, Kennedy said. But the water act “in contrast, although it requires public disclosure of the permit compliance process, focuses instead on environmental protection, not on creating broad rights to information.” There is a “significant and important difference” between the information rights recognized in the past precedents and the information rights at issue in this case, Kennedy said.



Date: November 10, 2004
© Inside Washington Publishers



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