Federal Court Deems “Identifiable Trifle” to Be Sufficient Harm for Environmental Citizen-Suit Standing

sboxermanFeatured Expert Column – Environmental Law and Policy

By Samuel B. Boxerman, Sidley Austin LLP with Katharine Falahee Newman, Sidley Austin LLP

In late August, the United States District Court for the Central District of Illinois held that the owner and operator of a coal-fired power plant was liable for violations of the Clean Air Act (CAA) related to particulate matter emissions. See National Resources Defense Council et al. v. Illinois Power Resources, et al.  While the decision ultimately reached and decided the merits of the CAA violations largely in Plaintiffs’ favor, the case is also notable for its discussion of whether Plaintiffs—the Natural Resource Defense Council, Respiratory Health Association, and Sierra Club—have standing to sue under the CAA’s citizen-suit provision, 42 U.S.C. § 7604.  The court held that they do, and specifically that all that was required to establish injury was an “identifiable trifle.”  Defendants in environmental citizen suits will have an increasingly difficult time challenging plaintiffs’ standing if more judges embrace this court’s exceedingly low standard for what constitutes a “case or controversy.”

This case involved the E.D. Edwards Power Plant (the Edwards Plant), owned and operated by Illinois Power Resources Generating, LLC in Bartonville, Illinois. Plaintiffs alleged that the Edwards Plant was out of compliance with CAA particulate matter and opacity standards on nearly 3,000 occasions between 2008 and 2014. Defendants argued that two regulatory defenses limited its liability. In particular, they argued that many of the alleged instances of noncompliance should be excused as startup, shutdown, or malfunction events, and that even when the Edwards Plant was out of compliance with opacity limitations, it was still in compliance with particulate matter limits. The court eventually decided the merits of these defenses in the plaintiffs’ favor, but before doing so, it engaged in a lengthy analysis of the plaintiffs’ standing to sue.

In general, it is well established that organizations have standing to sue only if they meet three criteria: (1) at least one member would have standing, (2) the interests at stake in the litigation are connected to the purpose of the organization, and (3) neither the claim nor the requested relief requires an individual member to participate directly in the lawsuit. Here, the parties agreed that the second and third criteria were satisfied but filed cross-motions for summary judgment on the first element—whether members of the plaintiffs’ organizations would have standing to sue on their own. To satisfy this element, it is necessary that a plaintiff organization demonstrate that at least one member (1) has suffered an “injury in fact” that is concrete, actual, or imminent and not merely hypothetical, 2) that the injury is traceable to the alleged noncompliance and (3) that a favorable decision will redress the injury.

Plaintiffs put forth a handful of standing members through declarations and deposition testimony to demonstrate injury in fact. The members live, work, or engage in recreational activities within 8 to 20 miles of the Edwards Plant. They testified that poor air quality near the Edwards Plant caused them health concerns and diminished their enjoyment of the outdoors. The court found these facts were sufficient to confer standing after holding that all that is required to establish an injury in fact is an identifiable trifle. “Standing witnesses need not show that they have totally abandoned a site because of pollution; they just need to show that their pleasure is diminished. In the case of air pollution, simple exposure to pollutants can establish the necessary injury in fact.”

Defendants additionally argued that the standing members’ concerns were unreasonable and presented expert opinions to demonstrate the emissions at issue could not cause the health consequences that the members feared.  The court rejected this argument as setting the bar too high. “A fear need not be based on medical or scientific evidence of probable consequences in order to be reasonable. Rather, a fear cannot be so irrational that it can simply be discredited.” Because there is no dispute that particulate matter emissions can be harmful and that the members live, work, or recreate in the Edwards Plant vicinity, the members’ fears were reasonable.

bartonvilleThe court also rejected arguments that the members’ alleged injuries were not traceable to the Edwards Plant. Interestingly, in their testimony, several of the members identified other nearby particulate emission sources such as leaf burning and the highway and could not distinguish between or among the sources. The court held that where there are multiple potential emission sources, citizen plaintiffs are not required to show with scientific certainty that the defendants’ conduct alone caused the harm. Demonstrating that the defendant has discharged a pollutant that causes or contributes to the kinds of injuries alleged in the area is sufficient.

Finally, the court found that the relief requested by plaintiffs—declaratory and injunctive relief, and civil penalties—will redress the members’ injuries. The court held that injunctive relief and civil penalties will address the injuries by deterring future violations and discontinuing ongoing conduct.  Evidence of past, continuing wrongs is sufficient to establish that the injuries are redressable by injunctive relief. Because the plaintiffs alleged that the Edwards Plant had opacity and particulate matter violations that started before the lawsuit and continued after it was filed, redressability was established.

Read together, the logical implication of these holdings is this:  According to the court, only the reasonable perception or fear of being harmed is a sufficient injury.  Moreover, a plaintiff is not required to show the emissions in question caused the perceived injury.  Yet, at the same time, it is presumed that injunctive relief imposed on the plant will redress the plaintiffs’ perceived injuries.  That is presumed to be the case, even without proof that the injuries have even been caused by the plant’s operations in the first place. That is a remarkable outcome.

As such, this decision significantly narrows the path for defendants who challenge a plaintiff organization’s standing to sue. If sustained, this ruling would add further support to the proposition that a citizen plaintiff need only put forth very limited evidence of concern over a defendants’ alleged conduct. The court made clear that changing a marathon training route, keeping windows closed at a home, or taking diminished pleasure in outdoor activities are enough—even when there is no specific evidence of actual risk from the emissions that warrants these measures. Risks don’t need to be scientifically proven, just reasonably feared.

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