IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-40835

 

FRIENDS OF THE EARTH, INC.,

Plaintiff-Appellant,

versus

CROWN CENTRAL PETROLEUM

CORPORATION,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Eastern District of Texas

 

September 3, 1996

Before HIGGINBOTHAM, WIENER, and PARKER, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

This case presents the question whether an organization whose

membership includes individuals who birdwatch and fish at a lake

some 18 miles and three tributaries from the source of unlawful

water pollution meet the fairly traceable component of the standing

doctrine to sue for violations of the Federal Water Pollution

Control Act, 33 U.S.C. §§ 1251 et seq. We answer the question in

the negative and affirm.

I.

Crown Central Petroleum Corporation, d/b/a La Gloria Oil & Gas

Co., operates an oil refinery in Tyler, Texas. Pursuant to a

National Pollutant Discharge Elimination System permit issued by
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the Environmental Protection Agency, La Gloria discharges stormwater run-off into Black Fork Creek. That creek flows into Prairie

Creek, which joins the Neches River, which in turn flows into Lake

Palestine. Lake Palestine is 18 miles "downstream" from La

Gloria's refinery.

On April 18, 1994, Friends of the Earth, Inc., a not-forprofit corporation dedicated to the protection of the environment,

sent a notice letter to La Gloria alleging that La Gloria was

violating Sections 301(a), 308(a), and 402 of the Federal Water

Pollution Control Act. See 33 U.S.C. §§ 1311(a), 1318(a), 1342.

Two months later, FOE filed a citizen suit against La Gloria

pursuant to Section 505 of the Act. See 33 U.S.C. § 1365(b). FOE

charged La Gloria with 344 violations of the discharge limitations

and monitoring requirements of its NPDES permit. FOE sought

declaratory and injunctive relief, along with civil penalties and

attorneys' fees.

FOE brought the suit on behalf of itself and its members.

According to FOE's complaint, "[m]embers of FOE reside in the

vicinity of, or own property or recreate in, on or near the waters

of Black Fork Creek, Prairie Creek, Palestine Lake, the Neches

River, the Neches River Basin and tidally related waters affected

by" La Gloria's discharges. FOE asserted that La Gloria's

allegedly unlawful conduct "directly affects the health, economic,

recreational, aesthetic and environmental interests of FOE's

members." To substantiate these allegations, FOE provided the

affidavits of three FOE members--Nathan Greene, Larry Pilgrim, and
3

Judith Pilgrim--all of whom had joined FOE either immediately

before or soon after FOE filed its complaint.

La Gloria moved for summary judgment, arguing that FOE lacked

standing to bring the suit and that FOE's notice was insufficient

because none of the three affiants were FOE members at the time the

notice letter was sent to La Gloria. In response, FOE refiled its

complaint, which was consolidated with the first suit.

La Gloria moved to dismiss the second complaint on the grounds

that it was duplicative of the first. FOE filed a third complaint

on May 4, 1995, alleging additional NPDES permit violations. The

district court consolidated the third complaint with this suit.

The district court granted La Gloria's motion for summary

judgment, holding that FOE lacked standing to pursue the suit. The

court found that only one of the three affiants was a FOE member at

the time the first complaint was filed. The court held that this

member had suffered no injury-in-fact and that, even if he had, he

could not trace that injury to La Gloria's alleged NPDES permit

violations. The district court further held that FOE itself lacked

standing to sue La Gloria regarding its NPDES permit monitoring

violations since FOE had failed to demonstrate that it, as an

organization, had suffered an injury-in-fact. After dismissing

FOE's second complaint as duplicative of the first, the court

stayed consideration of La Gloria's motion for attorneys' fees and

costs pending this appeal. We have jurisdiction. 28 U.S.C.

§ 1291.
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II.

FOE claims it has standing to pursue this litigation both on

its own behalf and as an representational association with members

who have standing to assert these claims against La Gloria. We

address the latter claim first.

A.

An association has standing to bring a suit on behalf of its

members when: 1) its members would otherwise have standing to sue

in their own right; 2) the interest it seeks to protect are germane

to the organization's purpose; and, 3) neither the claim asserted

nor the relief requested requires the participation of individual

members. Hunt v. Washington State Apple Advertising Comm'n, 432

U.S. 333, 343 (1977); see also United Food & Commercial Workers

Union Local 751 v. Brown Group, Inc., 116 S.Ct. 1529, 1534 (1996).

There is no dispute regarding the latter two elements; rather, this

appeal focuses on the first: whether FOE's members have standing

to sue in their own right.

To demonstrate that FOE's members have standing, FOE must show

that: 1) its members have suffered an actual or threatened injury;

2) the injury is "fairly traceable" to the defendant's actions; and

3) the injury will likely be redressed if it prevails in the

lawsuit. Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136

(1992); Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc.,

73 F.3d 546, 556 (5th Cir. 1996), petition for cert. filed, 64

U.S.L.W. 3780 (May 10, 1996) (No. 95-1831). The district court

found for La Gloria on the first two elements. We do not address
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the first element because we conclude that plaintiffs fail on the

requirement that injury be "fairly traceable" to La Gloria's

discharges.

In Cedar Point, we affirmed summary judgment for an

environmental group that had brought suit on behalf of its members

against an oil company that was unlawfully discharging "produced

water" into Galveston Bay. The oil company challenged the group's

standing to bring the suit, claiming among other things that the

injury suffered by the group's members was not "fairly traceable"

to the oil company's discharges of produced water. Rejecting that

contention, we applied the three-part test from Public Interest

Research Group of New Jersey, Inc. v. Powell Duffryn Terminals

Inc., 913 F.2d 64, 72 (3d Cir. 1990), cert. denied, 498 U.S. 1109

(1991), to determine whether an injury is "fairly traceable" to a

defendant's discharges in a citizen suit under the Clean Water Act:

the plaintiff must demonstrate that "'a defendant has (1)

discharged some pollutant in concentrations greater than allowed by

its permit (2) into a waterway in which the plaintiffs have an

interest that is or may be adversely affected by the pollutant and

that (3) the pollutant causes or contributes to the kinds of

injuries alleged by the plaintiffs.'" Id. at 557 (quoting Powell

Duffryn, 913 F.2d at 72).

We upheld the environmental group's standing on the basis of

affidavits filed by three of its members who used Galveston Bay.

Focusing on the second prong of the Powell Duffryn test, we noted

that all three affiants use Galveston Bay and that one of them
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"canoed and participated in educational trips in the vicinity of

[the oil company's] discharge, and . . . intends to continue these

activities in this area in the future." Id. at 558. That

affiant's use of the specific area of the Bay in which unlawful

discharges occurred played an important role in our decision to

affirm the judgment. We cautioned against a broad reading of our

opinion:

We note, however, that Douglas was the only affiant

who expressed an interest in that part of Galveston Bay

where Cedar Point's discharge is located. It is true

that a strict application of the Powell Duffryn test does

not demand that sort of specificity, because the

plaintiff need only show an interest in the 'waterway'

into which the defendant is discharging a pollutant;

nevertheless, such a literal reading of Powell Duffryn

may produce results incongruous with our usual

understanding of the Article III standing requirements.

For example, some 'waterways' covered by the CWA may be

so large that plaintiffs should rightfully demonstrate a

more specific geographic or other causative nexus in

order to satisfy the "fairly traceable" element of

standing. Therefore, while we find the Powell Duffryn

test useful for analyzing whether Douglas's affidavit

meets the 'fairly traceable' requirement, we recognize

that it may not be an appropriate standard in other CWA

cases.

Id. at 558 n.24 (emphasis in original).

We are persuaded that this case presents a situation in which

Powell Duffryn's focus on the plaintiff's interest in the

"waterway" into which unlawful pollution flows passes Article III

bounds. La Gloria discharges into Black Fork Creek. None of FOE's

members use that creek; nor do they use Prairie Creek; nor do they

use the Neches River. Rather, FOE's members use Lake Palestine.

In contrast to Sierra Club's members who used the affected part of

Galveston Bay, FOE's members use a body of water located three
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tributaries and 18 miles "downstream" from La Gloria's refinery.

Assuming without deciding that Lake Palestine is part of the same

"waterway" as Black Fork Creek for purposes of the Powell Duffryn

test, that "waterway" is too large to infer causation solely from

the use of some portion of it. Cf. Friends of the Earth, Inc. v.

Chevron Chemical Co., 900 F.Supp. 67, 75 (E.D. Tex. 1995) (holding

that two- to four-mile distance between source of pollution and

waterway used by plaintiffs was not too great to infer causation).

No genuine issue of material fact exists regarding whether

FOE's members have suffered an injury that is "fairly traceable" to

La Gloria's discharges. We emphasize that FOE offered no competent

evidence that La Gloria's discharges have made their way to Lake

Palestine or would otherwise affect Lake Palestine. Cf. Watkins,

954 F.2d at 981. Rather, FOE points to the deposition testimony of

several of its members. When asked whether they knew that La

Gloria's discharges ended up in Lake Palestine, the members replied

they did not know but assumed it to be the case because "that's the

way water runs." In short, FOE and its members relied solely on

the truism that water flows downstream and inferred therefrom that

any injury suffered downstream is "fairly traceable" to unlawful

discharges upstream. At some point this common sense observation

becomes little more than surmise. At that point certainly the

requirements of Article III are not met.

FOE points to the absence of any evidence in the record that

the pollutants in La Gloria's discharges evaporate, are diluted to
8

neutrality, or sink to the bottom before reaching Lake Palestine.

FOE has this backwards. Standing is an issue upon which the party

invoking federal jurisdiction, the plaintiff, bears the burden of

persuasion. Defenders of Wildlife, 112 S.Ct. at 2136. FOE does

not meet its burden by pointing to the absence of evidence showing

that it lacks standing. Because FOE did not offer competent

summary judgment evidence that its members' injuries are "fairly

traceable" to La Gloria's discharges into Black Fork Creek, it does

not have standing as a representational organization to sue La

Gloria for its discharge and reporting violations. 

We emphasize the narrow scope of our holding. We do not

impose a mileage or tributary limit for plaintiffs proceeding under

the citizen suit provision of the CWA. To the contrary, plaintiffs

who use "waterways" far downstream from the source of unlawful

pollution may satisfy the "fairly traceable" element by relying on

alternative types of evidence. See Cedar Point, 73 F.3d at 558

n.24. For example, plaintiffs may produce water samples showing

the presence of a pollutant of the type discharged by the defendant

upstream or rely on expert testimony suggesting that pollution

upstream contributes to a perceivable effect in the water that the

plaintiffs use. At some point, however, we can no longer assume

that an injury is fairly traceable to a defendant’s conduct solely

on the basis of the observation that water runs downstream. Under

such circumstances, a plaintiff must produce some proof; here,

that proof was lacking.

B.
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Because FOE's members do not have standing to sue for La

Gloria's discharge violations, they do not have standing to sue for

the reporting violations. Simkins Industries establishes that an

individual's standing to sue for reporting violation depends upon

his standing to sue for discharge violations. See 847 F.2d at 1113

(noting that to establish standing to sue for reporting violation,

"Sierra Club must establish that one or more of its members use the

Patapsco River and would be adversely affected by its pollution").

Stated negatively, an individual without standing to sue for

discharge violations, a fortiori, lacks standing to sue for

reporting violations.

FOE also lacks standing on its own behalf to sue La Gloria for

reporting violations. Foundation on Economic Trends v. Lyng, 943

F.2d 79, 84 (D.C. Cir. 1991). FOE cites cases dealing with

statutory standing; none of these cases conflict with Lyng, which

involved Article III standing. We find the reasoning of Lyng

persuasive, and its holding disposes of this portion of FOE’s

appeal.

Finally, we find no error in the district court's order

dismissing FOE's second complaint as duplicative of the first.

Oliney v. Gardner, 771 F.2d 856 (5th Cir. 1985). "When a plaintiff

files a second complaint alleging the same cause of action as a

prior, pending, related action, the second complaint may be

dismissed." Id. at 859. This rule finds particular application

where, as here, the plaintiff files the second complaint to achieve
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procedural advantage by "circumventing the rules pertaining to the

amendment of complaints." Id.

III.

We conclude that FOE lacks standing under Article III to sue

La Gloria for discharge and reporting violations under the CWA. We

AFFIRM the judgment of the district court.