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Clean Water Act: Environmentalists Win Right to Sue Over Timber Company's Practices

Environmentalists were victorious in one of the U.S. Ninth Circuit Court of Appeals' first interpretations of a recent U.S. Supreme Court ruling on the Clean Water Act. The Ninth Circuit held that two environmental organizations could sue a Northern California lumber company for alleged Clean Water Act violations because the supposed pollution harmed members' recreational use of a creek. In January, the U.S. Supreme Court ruled that South Carolina citizens could sue the operator of a hazardous waste incinerator for violating the Clean Water Act (33 U.S.C. §1251 et seq.) because the company's illegal discharges into a river affected the citizens' recreational, aesthetic and economic interests. (Friends of the Earth v. Laidlaw, 528 U.S. 167; see CP&DR Legal Digest, February 2000.) The California case was similar. Members of the Ecological Rights Foundation and the Mateel Environmental Justice Foundation argued that they avoided some activities in Yager Creek, such as fishing and swimming, because of alleged pollution from a Pacific Lumber Company mill located upstream. In a 1997 lawsuit filed under the Clean Water Act's citizen suit provisions, the environmentalists claimed that Pacific Lumber allowed contaminated stormwater to flow offsite, had not prepared a required Storm Water Pollution Prevention Plan, failed to monitor and report conditions, did not collect water samples and was guilty of other violations. In a ruling before Laidlaw was decided, U.S. District Court Judge Marilyn Hall Patel held that the environmental groups did not have standing to sue and issued summary judgement for Pacific Lumber. The Ninth Circuit overturned Patel and remanded the case back to her for further proceedings on the merits. "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," Judge Marsha Berzon wrote for the unanimous three-judge panel of the Ninth Circuit. In this case, two individual members of the environmental groups stated long-standing interest in Yager Creek, and both complained that Pacific Lumber's conduct impaired their enjoyment of the creek. Those are sufficient statements to survive summary judgement on the standing issue, the court ruled. The Ninth Circuit also rejected Pacific Lumber's contention that the case should not go forward because the environmentalists had not proven the company caused any actual environmental harm. No scientific proof is needed in order to obtain standing, the court held. Finally, the court dismissed Pacific Lumber's arguments that the suit was moot because the company is now operating under revised general discharge requirements, and because the plaintiffs' 60-day notice of intent to sue was defective. The Case: Ecological Rights Foundation v. Pacific Lumber Company, No. 99-17076, 00 C.D.O.S. 8692, 2000 Daily Journal D.A.R. 11526, filed October 30, 2000. The Lawyers: For ERF: Sharon Duggan, (415) 566-5321. For Pacific Lumber: Jared Carter, 707 764-4216.
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