Summary
In Gordon, the court found that the plaintiff did not have standing because there was an "absence of any evidence of a path between the chromium spill on defendants' property and plaintiff Gordon's water supply or any location he uses for recreational purposes."
Summary of this case from Consolidated Companies, Inc. v. Union Pacific Railroad Co.Opinion
Cause No. IP00-1433-C-H/G
August 21, 2001
FINDINGS OF FACT AND CONCLUSIONS OF LAW ON DEFENDANTS' MOTION TO DISMISS
Plaintiff William Gordon lives about 3,200 feet from an industrial facility where chromium-laden wastewater leaked from an underground pipe in 1994. Gordon seeks equitable relief under 42 U.S.C. § 6972, the citizens' suit provision of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. Gordon alleges that the chromium contamination "presents an imminent and substantial endangerment to health and the environment."
Defendants General Motors Corporation and Guide Corporation have moved to dismiss for lack of subject matter jurisdiction. They contend that Gordon lacks standing because he cannot show any "injury in fact," i.e., he cannot show that the chromium contamination on the industrial site poses any substantial threat of injury to him. Gordon alleged in his complaint that the chromium has contaminated an aquifer under the facility. In response to defendants' motion, Gordon submitted an affidavit asserting that he uses well-water at his residence. With their reply brief, defendants submitted an affidavit from an expert stating that, in terms of ground water, Gordon's property is up-gradient from the contaminated industrial site, so that chromium released on the property should not pose a threat to Gordon's water supply even if it might threaten others.
A motion to dismiss for lack of jurisdiction may be addressed in terms of the pleadings, or affidavits and documentary evidence, or live testimony from witnesses as to contested facts. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 184 (1936); Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676-77 (7th Cir. 2001); Capital Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993); Crawford v. United States, 796 F.2d 924, 928-29 (7th Cir. 1986); Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979). When there are disputed issues of fact relevant to subject matter jurisdiction, the court is the trier of fact. Szabo, 249 F.3d at 676-77; Capital Leasing Co., 999 F.2d at 191; Grafon, 602 F.2d at 783; see also McNutt, 298 U.S. at 189-90.
Based on the factual issues posed by Gordon's affidavit about using well water and defendants' evidence that Gordon is "up-gradient" from the site of the spill (which was first presented with the reply brief), the court held an evidentiary hearing on defendants' motion to dismiss and gave the parties an opportunity to conduct discovery. The court now states its findings of fact and conclusions of law on the jurisdictional issue of standing.
Findings of Fact
Plaintiff William Gordon lives in Anderson, Indiana. His home is approximately 3,200 feet from an industrial facility that has been operated at relevant times by defendants General Motors Corporation and Guide Corporation. Gordon bought the home in 1997. Gordon uses well water at his home, drawn from aquifers containing ground water.
In August 1994, wastewater containing chromium leaked from an underground pipe in the industrial facility. The spill was discovered. Defendants had an outside environmental consulting company take 22 samples of ground water from the area around the leak. The samples were taken between August 23 and September 2, 1994.
The samples were tested for chromium. One sample showed concentrations of 80 milligrams per liter (mg/l) at a 21-foot depth and 120 mg/l at a 15-foot depth. The federal standard for chromium in drinking water is a maximum of 0.1 mg/l. Chromium concentrations of 40 to 80 mg/l were found at depths of six to 30 inches below ground close to the leaking pipe. The consultant concluded from the test results that chromium had reached an aquifer below the spill. More recent samples in 1997 and January of 2001 showed no detectable levels of chromium in the ground water close to the site of the spill.
From this later evidence, the consultant testified at the hearing that his 1 original conclusion about contamination of the aquifer was probably incorrect. He opined that the deeper samples, taken in 1994 using tubes called geoprobes, might have been contaminated by chromium-laden water from just below the surface. The later tests were done with monitoring wells that would have avoided such contamination of the samples. The court need not resolve this factual issue to decide the issue of Gordon's standing.
The evidence from both sides shows that the aquifers beneath the defendants' industrial property flow generally northeast — almost directly away from Gordon's residence. Gordon's expert witness on ground water flow, Dr. Hendrik M. Haitjema of Indiana University, testified it was "highly unlikely" that chromium would migrate from the area of the spill to Gordon's property by way of the ground water. Hearing Tr. 23.
Gordon has had the well-water in his home tested for chromium. There is no evidence of any levels that cause any reason for concern about the safety of the drinking water.
There also is no evidence that any chromium spilled in 1994 has actually formed a "plume" in the ground water flowing toward the northeast. Tests of ground water down-gradient from the leak showed no detectable amount of chromium using a detection threshold of 10 micrograms per liter, which is one-tenth the maximum level for drinking water (0.1 milligrams per liter, which equals 100 micrograms per liter). Nor is there any evidence that any chromium has migrated beyond the boundaries of defendants' facility or is likely to do so in the foreseeable future. (The evidence from John Bassett shows that chromium tends to "bind" with clay when it is spilled in the ground, which might explain the absence of such migration.)
Gordon enjoys being outdoors. He enjoys hunting wild mushrooms. One place he has enjoyed hunting mushrooms is a railroad right of way southwest of the defendants' facility. (The railroad right of way appears on Exhibit 52, running from south-southwest to north-northeast, between Gordon's home and the Guide facility.) The location is also up-gradient from the site of the chromium spill. After Gordon learned of the earlier chromium spill, however, he stopped hunting wild mushrooms along that right of way because he was worried about the pollution. There is no evidence actually supporting this worry.
Gordon also testified that he drives by the defendants' facility every day. There is no evidence or even suggestion that he experiences any harm from doing so as a result of the 1994 chromium spill. Unlike discharges of pollutants into the air or surface waters, for example, the chromium spill has not generated noxious odors or even unsightly spots on the landscape.
Conclusions of Law
Whether this court has jurisdiction over this action depends on proof of a case or controversy within the meaning of Article III of the Constitution, which requires proof that the plaintiff has standing to bring the action. The Supreme Court has explained that "the irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Those elements are:
First, the plaintiff must have suffered an "injury in fact" — an invasion of a legally protected interest which is (a) concrete and particularized, see [Allen v. Wright, 468 U.S. 737, 756 (1984)]; Warth v. Seldin, 422 U.S. 490, 508 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16 (1972); and (b) "actual or imminent, not `conjectural' or `hypothetical,'" Whitmore [v. Arkansas, 495 U.S. 149, 155 (1990)], (quoting Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).
Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court." Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Id., at 38.504 U.S. at 560-61. When standing is challenged, the party seeking to invoke the court's jurisdiction must be able to prove, not merely plead, each of these elements before a judgment can be entered for that party. Id. at 561.
The statute under which Gordon sues, 42 U.S.C. § 6972(a)(1)(B), authorizes suits addressing threats that "may present an imminent and substantial endangerment to health or the environment." To the extent that the statute might attempt to authorize lawsuits by persons without the constitutional minimum of injury in fact, it would encounter constitutional difficulties. The court construes § 6972(a)(1)(B) as extending standing as far as the Constitution allows, which still requires the plaintiff to show injury in fact — an injury that is, in terms of Lujan, "actual or imminent, not `conjectural' or `hypothetical.'" See Citizens for a Better Environment v. Caterpillar, Inc., 30 F. Supp.2d 1053, 1060 (C.D.Ill. 1998) (applying constitutional "injury in fact" standard under § 6972).
The Seventh Circuit briefly addressed standing under § 6972 in Supporters 2 to Oppose Pollution, Inc. v. Heritage Group, 973 F.2d 1320 (7th Cir. 1992), a case seeking relief in connection with a landfill. The court wrote that the plaintiff organization "represents persons living close to the garbage, which has at least the potential to injure them, so the Constitution permits it to litigate." 973 F.2d at 1322, inviting a comparison between Lujan, supra, and Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59 (1978). The Seventh Circuit's opinion did not address any details or evidence regarding the standing issue, and it is apparent that landfills can have real effects on neighbors that can support standing under the Constitution. See, e.g., No Damaging or Unsightly Mun. Pollution, Inc. v. King County, 1986 WL 12088, at *6 (W.D.Wash. March 6, 1986) (evidence showed that landfill contaminated surface waters that plaintiffs used, assailed them with "noxious odors and flocks of birds" (near a small airport, endangering airplanes), and property values had dropped). Gordon has not made any similar showing here.
A plaintiff need not show that injury is certain to occur, but some realistic threat of injury to the plaintiff remains essential for standing. See Village of Elk Grove v. Evans, 997 F.2d 328, 329 (7th Cir. 1993) (plaintiff village had standing based on realistic increase in the probability of flood damage as a result of construction of slab of concrete that would reduce drainage), citing Pennell v. San Jose, 485 U.S. 1, 8 (1988), where the Supreme Court observed that a "plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement," quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979) (emphasis added by this court).
Gordon cannot show "injury in fact" in this case. In his original brief, he sought to show standing by relying primarily on the fact that he uses well-water at his house. The apparent theory was that the chromium threatened Gordon's own water supply. The evidence now shows that the likelihood of that prospect is vanishingly small. First, there is no evidence of any lateral migration of chromium beyond defendants' boundaries. Second, even if such migration were to occur, it would not go anywhere near Gordon's well. The ground water flows the opposite direction. Gordon's own expert agreed that the aquifers flow away from Gordon's property toward the defendants' facilities.
After the evidence of the ground water's direction of flow emerged, Gordon shifted gears. He now relies on a more general environmental, aesthetic, and/or recreational injury to show standing. See generally Sierra Club v. Morton, 405 U.S. 727, 735 (1972). Hence the evidence on hunting mushrooms on the railroad right of way.
Gordon's theory does not establish standing in the absence of evidence of something other than subjective worry. Even in cases that explore the limits of constitutional standing, plaintiffs have provided proof that a path existed by which pollution could have posed at least some realistic threat to them.
Friends of the Earth, Inc. v. Laidlaw Environmental Servcies (TOC), Inc., 528 U.S. 167 (2000), first cited by Gordon after the hearing in this case, was a citizen suit under the Clean Water Act asserting that the defendant had polluted a river. The Supreme Court held that the plaintiff organization had standing based on testimony from its members about their desire to use waters and land downstream from the defendant's discharges. 528 U.S. at 181-83. In other words, the path from the pollution to harm to the plaintiffs' recreational, aesthetic, and environmental interests was apparent. The Court also noted that the plaintiffs' concerns about the effects the pollution might have on them were "reasonable." "[W]e see nothing `improbable' about the proposition that a company's continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms." Id. at 184.
The Laidlaw Court also indicated that damage to property values could 3 support standing. 528 U.S. at 182-83. In this case, Gordon testified he had an "interest" in the value of his property, but there is no evidence of any damage to property values. See Hearing Tr. at 7.
Decisions after Laidlaw have similarly relied upon evidence of a path between the defendant's pollution and the plaintiffs. In Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1152 (9th Cir. 2000), which Gordon also submitted after the hearing in this case, the defendant had a permit to discharge pollutants into a creek that plaintiffs used for recreational purposes downstream from the defendant's discharges. Whether the discharges violated the applicable permits was an issue going to the merits rather than standing, so the Ninth Circuit held that the plaintiffs could establish standing without proving actual violations. That reasoning does not substitute for proof of a path from the pollution to the plaintiff claiming an injury.
Similarly, in Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 155-56 (4th Cir. 2000) (en banc), the Fourth Circuit held that an organization had standing based on injury to member who lived along, fished, and swam in a dammed creek four miles downstream from defendant's discharges. The court pointed out that the plaintiff had "presented ample evidence that Shealy's fears are reasonable and not based on mere conjecture." 204 F.3d at 157. In a similar case that pre-dates Laidlaw, in Citizens for a Better Environment v. Caterpillar, Inc., the district court took care to explain the evidence showing the pathways between the levee where cyanide was dumped and the Illinois River, which plaintiffs used downstream from the dump site. See 30 F. Supp. 2d at 1064-70.
The railroad right of way where Gordon likes to hunt mushrooms is also up-gradient from the chromium spill, and there is no showing here of any path from the spill to any location that would interfere with Gordon's recreational interests. This case also does not present any evidence of damage to aesthetic interests, such as generating offensive odors or fouling pristine landscapes or waterscapes.
There may well be significant practical differences for standing purposes between surface water and air pollution and pollution of ground water. The alleged harm here involves an underground spill of chromium. In the absence of any evidence of a path between the chromium spill on defendants' property and plaintiff Gordon's water supply or any location he uses for recreational purposes, he does not have sufficient standing under the Constitution to bring this case.
In his last submission, filed June 15, 2001, plaintiff argued: "It is merely necessary for the Plaintiff to indicate that his future life will be less enjoyable, which is compounded by his geographical proximity, for him to have standing under Article III." No case has stretched the requirements of standing so thinly, nor will this one. Defendants' motion to dismiss for lack of subject matter jurisdiction is granted. Final judgment shall be entered accordingly.
So ordered.