By Geremy Holm and Rebecca Andrews
The U.S. District Court for the Southern District of Georgia recently granted a motion to dismiss a Clean Water Act citizen suit. The ruling held that plaintiffs failed to establish Article III standing due to the failure to plead a specific injury-in-fact. [Glynn Environmental Coalition, Inc., et al. v. Sea Island Acquisition, LLC, ___F.Supp.3d___, Case No. 2:2019-cv-00050 (S.D. Ga. Jan. 29, 2021).]
Factual and Procedural Background
On February 20, 2013, the U.S. Army Corps of Engineers (Corps) authorized defendant Sea Island, LLC to fill 0.49 acres of wetland (Subject Wetland) located on St. Simons Island, Georgia. Plaintiffs, the Glynn Environmental Coalition (GEC) and Center for a Sustainable Coast (CSC), initially filed suit against Sea Island on April 17, 2019 for alleged violations of the federal Clean Water Act (CWA), alleging that defendant failed to construct a commercial structure on the Subject Wetland in violation of their Nationwide Permit. Plaintiffs further alleged that defendant was required to obtain an individual § 401 certification and § 404 permit to fill the Subject Wetland, requiring a more stringent permitting process. By filling the Subject Wetland, plaintiffs contended that defendant harmed the surrounding vegetation and habitat as well as the aesthetic and recreational uses of Dunbar Creek, a body of water downstream of the Subject Wetland.
The U.S. District Court found that the plaintiffs failed to show standing and granted leave to amend their complaint. On March 23, 2020, the plaintiffs filed an amended complaint, joining Jane Fraser (Fraser) as a plaintiff to the suit. According to the amended complaint, Fraser is a member of GEC and CSC who owns interests in real property in the immediate vicinity of the Subject Wetland. Fraser further alleged that she recreates in and enjoys the aesthetics of the Subject Wetland. In response to the amended complaint, defendant moved to dismiss the amended complaint for lack of standing and failure to state a claim.
The District Court’s Decision
To establish standing under Article III of the United States Constitution, plaintiffs have the burden to show: 1) they have suffered an “injury in fact” that is actual or imminent; 2) the injury is traceable to the challenged action of the defendant; and 3) it is likely that the injury will be redressed by a favorable decision. An organization has standing to sue on behalf of its members when: 1) one of its members would have standing to sue individually; 2) the member’s interests at stake in the suit are germane to the organization’s purpose; and 3) neither the claim asserted nor the relief requested requires participation of individual members in the lawsuit. Plaintiffs asserted standing was proper in this action because Fraser had standing to sue in her individual capacity and GEC and CSC had associational standing.
Issue of Individual Standing
Based on the elements of Article III standing and organizational standing, the District Court reasoned that the motion to dismiss turned on whether Fraser had individual standing to sue. As a result, the District Court analyzed whether Fraser suffered an “injury in fact.” In the amended complaint, Fraser alleged that she suffered environmental and procedural injuries.
With regards to environmental injuries, the plaintiffs generally alleged that the filling in of the Subject Wetland allowed non-point source pollutants to make their way into Dunbar Creek. The District Court found that plaintiffs offered no specific factual allegations that the fill of the Subject Wetland has caused pollution in Dunbar Creek. While there may be a possibility of an increase in pollution, the mere possibility is not an “actual or imminent” injury. Fraser also claimed that she owns real property that adjoins and is located in the immediate vicinity of the Subject Wetland. She asserted that filling the Subject Wetland disturbed habitats surrounding the Subject Wetland, impacting her real property. Again, the District Court found these allegations to be conjectural and conclusory because Fraser do not allege that any specific disturbance to her property interest had or will occur. The allegations merely speculated the type of harm generally associated with the fill of wetlands.
While generalized harm will not support standing alone, environmental plaintiffs can adequately allege injury in fact when the aver that they use the affect area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity. Fraser alleged that she regularly recreated in and enjoyed the aesthetics of the Subject Wetlands. The District Court found that Fraser failed to allege a specific recreation, distinguishing Fraser’s allegations from the body of case law providing for a recreational injury. Fraser also alleged that while driving, she noticed a significant difference in the water quality in Dunbar Creek. However, the District Court again found this allegation to be broad and conclusory because Fraser failed to establish how this allegation led to an environmental injury suffered by Fraser.
Conclusion and Implications
As a result, Fraser failed to show an environmental injury sufficient to confer standing. Because the District Court found that Fraser failed to show standing, GEC and CSC did not have organization standing, and the motion to dismiss was granted.
It remains to be seen if this matter will be appealed. However, this case highlights the importance of pleading with particularity in order to avoid a motion to dismiss. For environmental cases, potential plaintiffs should take care to avoid merely stating conclusory statements in allegations in order to establish a specific injury.
