Recent Federal Court rulings continue to show that Article III standing can be a formidable defense against environmental citizen lawsuits, especially following the Supreme Court ruling Spokeo vs. Robins, 578 US 330 (2016) (setting aside the decision below and stressing that an alleged prejudice, in fact, must be “concrete and particularized ”). As recently as last week, for example, a North Carolina federal court dismissed almost all of the Clean Air Act plaintiffs’ claims against the University of North Carolina at Chapel Hill (UNC) on permanent grounds. . Center for Biological Diversity c. University of North Carolina, n ° 1: 19-CV-1179, 2021 US Dist. LEXIS 163459 (MDNC Aug 30, 2021). In their complaint, the complainants made nine claims, including seven for alleged breaches of record keeping, inspection of equipment, notification of permit deviations to government authorities and monitoring of pollution controls, as required by UNC Title V permit. In summary judgment, plaintiff citizen groups presented statements from two members who alleged “health, aesthetic and recreational interests in the air quality in Chapel Hill and in areas around the UNC campus. “.
Regarding the allegations relating to alleged violations of record keeping, reporting, monitoring and inspection, the court granted summary judgment to the UNC because the plaintiffs failed to demonstrate that any of their members had suffered sufficient tangible harm to justify Article III.
First, the plaintiffs argued that the alleged procedural violations caused tangible harm to the plaintiffs’ members by actually exposing them to harmful pollutants. The court concluded that the plaintiffs “offer[ed] no evidence ”to support this claim of harm, and had cited no cases to support their argument that the court should“ infer harm from excessive broadcasts ”on the basis of the alleged failure of the UNC to perform the required tasks. . Quoting Speak, the Court held that the alleged violations “amount to nothing more” than a “void procedural[s], divorced from any concrete harm.
The plaintiffs also attempted to satisfy the factual injury requirement by arguing that their members had suffered informational injury. According to the complainants’ statements and briefing, the UNC’s alleged non-compliance with monitoring and reporting requirements prevented its members from knowing whether the UNC was in compliance with emissions requirements. But the court also rejected this argument. The plaintiffs “have not identified a legal source which grants a right to this information, nor … explained how the denial of this information creates actual harm with a negative effect that Congress has sought to prevent by requiring disclosure.” Thus, the complainants had not met Speak informational harm standards for these claims.
This case is the most recent in a series of Federal Court opinions dismissing citizens’ environmental claims on permanent grounds. In June 2021, the Seventh Circuit confirmed the rejection of a complaint filed by a group of citizens against a utility claiming violations of the Clean Water Act. In doing so, the Seventh Circuit concluded that the “continuing allegations of the plaintiff [were] It sounds like an inadmissible speculation rather than an admissible presumption, “thus stopping far from the line between possibility and plausibility”. Prairie River System c. Dynegy Midwest, 2 F.4e 1002, 1010 (7th Cir. 2021). And as we have already done discussed, in 2018, the Middle District of North Carolina dismissed, for lack of quality, a citizen group’s claim that a utility company violated the federal rule on coal combustion residues by submitting plans allegedly insufficient to close basins of coal ash. In that case, the court explained that the group’s claim could not be pursued because the complaint was “completely devoid of any allegation that the [plaintiff group] and its wanted members, and ha[d] has been denied, access to the information required under the CCR rule, and such denial has[d] caused injury. Roanoke River Basin Ass’n v. Duke Energy Progress, n ° 17-cv-561, 2018 WL 1605022, at * 6 (MDNC March 29, 2018) (citing Speak).
These cases, along with other recent ones, highlight the challenges some groups may face in establishing Article III in environmental citizen prosecutions, particularly after the Supreme Court ruling in Speak.
Copyright © 2021, Hunton Andrews Kurth LLP. All rights reserved.Revue nationale de droit, volume XI, number 250