Amer Canoe Assn v. Louisa Water & Sewer

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 04a0377p.06

UNITED STATES COURTS OF APPEALS

FOR THE SIXTH CIRCUIT

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AMERICAN CANOE ASSOCIATION, INCORPORATED;

Plaintiffs-Appellants, -

SIERRA CLUB,

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No. 02-6018

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v. >

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CITY OF LOUISA WATER & SEWER COMMISSION; LOUISA -

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WATER TREATMENT PLANT; CITY OF LOUISA,

Defendants-Appellees. -

KENTUCKY,

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Appeal from the United States District Court

for the Eastern District of Kentucky at Ashland.

No. 01-00099—Henry R. Wilhoit, Jr., District Judge.

Argued: December 4, 2003

Decided and Filed: November 1, 2004

Before: KENNEDY, MARTIN, and MOORE, Circuit Judges.

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COUNSEL

ARGUED: Sarah A. Adams, TERRIS, PRAVLIK & MILLIAN, Washington, D.C., for Appellants. Eldred

E. Adams, Jr., ADAMS & ADAMS, Louisa, Kentucky, for Appellees. ON BRIEF: Bruce J. Terris,

Demian Asa Schane, TERRIS, PRAVLIK & MILLIAN, Washington, D.C., for Appellants. Eldred E.

Adams, Jr., ADAMS & ADAMS, Louisa, Kentucky, for Appellees.

MARTIN, J., delivered the opinion of the court, in which MOORE, J., joined. KENNEDY, J.

(pp. 9-11), delivered a separate opinion concurring in part and dissenting in part.

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OPINION

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BOYCE F. MARTIN, JR., Circuit Judge. Pursuant to the citizen-suit provision of the Clean Water

Act, 33 U.S.C. § 1365, American Canoe Association and Sierra Club filed a complaint on both their own

behalf and their members’ behalf alleging that the defendants violated the terms of the National Pollutant

Discharge Elimination System permit issued to the City of Louisa Water & Sewer Commission and, in so

doing, also violated the Act. The district court dismissed the complaint pursuant to Federal Rule of Civil

Procedure 12(b)(1) for lack of standing. For the reasons that follow, we REVERSE the judgment of the

district court and REMAND for further proceedings consistent with this opinion.

1

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I.

A. Statutory Background

In 1972, Congress enacted the Clean Water Act with the stated objective of “restor[ing] and

maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

In order to achieve this laudable goal, “the Act prohibits ‘the discharge of any pollutant by any person’

unless done in compliance with some provision of the Act.” S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe,

124 S. Ct. 1537, 1541 (2004) (quoting 33 U.S.C. § 1311(a)). Thus, the Act authorizes the issuance of

National Pollutant Discharge Elimination System permits—commonly referred to as “NPDES

permits”—which “place limits on the type and quantity of pollutants that can be released into the Nation’s

waters.” Id. Additionally, permit-holders are generally required both to monitor their effluent discharges

and to report these results. See 33 U.S.C. § 1318(a) (noting that monitoring and reporting requirements may

be imposed when necessary to fulfill the objectives of the Act). If monitoring and reporting requirements

are imposed, the Act requires that the information collected be available to the public unless disclosure

would expose a trade secret. 33 U.S.C. § 1318(b).

“Congress enlisted the help of the public in attaining [the Act’s] goal by authorizing citizens to bring

suits against those who violated the Act.” Pub. Interest Res. Group of New Jersey, Inc. v. Magnesium

Elektron, Inc., 123 F.3d 111, 114 (3d Cir. 1997). “Citizen suits are merely intended to supplement, not

supplant, enforcement by state and federal government agencies.” Ailor v. City of Maynardville, Tenn., 368

F.3d 587, 591 (6th Cir. 2004). Noncompliance with a National Pollutant Discharge Elimination System

permit constitutes a violation of the Act, such that the citizen-suit provisions are triggered. Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 174 (2000).

B. Factual Background

On May 21, 2001, American Canoe and Sierra Club, which are national, not-for-profit organizations

dedicated to the protection of the environment, filed a complaint against the City of Louisa Water & Sewer

Commission and the Louisa Water Treatment Plant alleging violations of the Clean Water Act. On

August 17, the plaintiffs amended their complaint to add the City of Louisa as a defendant. This opinion

will collectively refer to these entities as the “defendants” unless further explanation is necessary. The

complaint alleged that the defendants failed to comply with the terms of the National Pollutant Discharge

Elimination System permit issued by the Kentucky Department for Environmental Protection to the City

of Louisa Water & Sewer Commission, which authorized the discharge of a specified level of effluents into

the Levisa Fork of the Big Sandy River and imposed monitoring and reporting requirements.

American Canoe sued on behalf of its members alleging that their “health, economic, recreational,

aesthetic and environmental interests” are adversely affected by the defendants’ discharge, monitoring, and

reporting violations. Additionally, American Canoe sued on its own behalf alleging that the defendants’

monitoring and reporting violations adversely affected its organizational interests. In support of its

allegations, American Canoe provided the affidavit of David Jenkins, the Director of Conservation and

Public Policy for American Canoe, which stated that American Canoe and its members’ interests were

harmed by the defendants’ monitoring and reporting violations.

Sierra Club made similar allegations, but substantiated them with the affidavit of Daniel Hurst Kash,

a resident of Ashland, Kentucky and member of Sierra Club since 1975. Kash alleged that he had recreated

in the Big Sandy River near Louisa in the past and would like to do so in the future, but maintained that he

refuses to recreate there currently because of the pollution. The Sierra Club also provided the affidavit of

Lane E. Boldman, the Chair of its Cumberland Chapter, stating that the interests of Sierra Club were

adversely affected by the defendants’ monitoring and reporting violations.

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The defendants filed a motion to dismiss arguing that the plaintiffs lacked standing. The district

court granted the motion on June 11, 2002, holding that the plaintiffs lacked standing because none of its

members had standing to sue in their own right. Thereafter, the plaintiffs filed a motion for reconsideration

pursuant to Federal Rule of Civil Procedure 59(e), which the district court denied on July 25. This timely

appeal followed.

II.

This Court reviews a district court’s dismissal of a complaint for lack of standing as it reviews other

dismissals pursuant to Federal Rule of Civil Procedure 12(b): de novo. Jones v. City of Lakeland, Tenn.,

224 F.3d 518, 520 (6th Cir. 2000). Thus, this Court must accept as true all material allegations contained

in the complaint and liberally construe them in favor of the complaining party. Kardules v. City of

Columbus, 95 F.3d 1335, 1346 (6th Cir. 1996); Warth v. Seldin, 422 U.S. 490, 501 (1975).

A. Representational Standing

Plaintiff Sierra Club argues that it has standing to sue as the representative of its members. Although

American Canoe originally sued on its own behalf and in its representational capacity, it does not argue on

appeal that it has standing to sue in its representational capacity. Sierra Club has standing to sue on behalf

of its members when “its members would otherwise have standing to sue in their own right, the interests at

stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit.” Laidlaw, 528 U.S. at 181. A member of

Sierra Club would have standing to sue in his own right when he has suffered a concrete and particularized

injury in fact that is fairly traceable to the defendant’s actions and a favorable decision would redress his

injury. Ailor, 368 F.3d at 596. The district court concluded that Sierra Club did not have standing to sue

in its representational capacity because it could not establish that any of its members would have standing

to sue in their own right. We disagree.

Sierra Club provided the affidavit of a member, Daniel Kash, in support of its standing to sue as the

representative of its members for the defendants’ violations of the Act. Kash’s affidavit contained the

following pertinent averments:

¶ 3. For many years I traveled to Louisa, Kentucky, which borders the Big Sandy River,

as part of my duties as supervisor, Kentucky Division of Air Quality, State of Kentucky. I

made this trip once per week. On many of these occasions I thought to myself what a

terrible shame it was that the Big Sandy River was so polluted that I could not fish it, canoe

it, or swim in it. As an avid fisherman this was emotionally upsetting to me.

¶ 4. Almost from the beginning of these trips, I was aware that the Louisa Water

Treatment Plant was violating water pollution standards . . . . The river appeared to be dark

and oily and smelled like petroleum products . . . .

¶ 6. About 10 years ago, I went canoeing on the Big Sandy River near Louisa. However,

the water pollution and odor emanating from the River detracted from my enjoyment and,

for this reason, I have not attempted to recreate on the River since then.

¶ 7. I will not currently fish or canoe in the Big Sandy River near Louisa. I do fish in the

Ohio River about 12 miles downstream from the confluence of the Big Sandy River and the

Ohio River. If the Big Sandy River near Louisa were not as polluted as it currently is, I

would canoe and fish in it. In my opinion, not being able to canoe and fish on the Big Sandy

River is a great loss to me and every other citizen in Kentucky.

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¶ 8. Counsel for plaintiffs has informed me that the Louisa Waste Water Plant is violating

its permit discharge limits, including for total suspended solids and oil and grease. I am very

concerned about the harmful impacts that this pollution will continue to have on the water

quality of these waters, including its fish and plant life.

¶ 9. I am interested in obtaining correct information about the amount of pollution in the

Big Sandy River near Louisa so that I can make decisions about whether it is safe to fish,

paddle, and recreate in this waterway. If the Louisa Water Treatment Plant and other

dischargers do not monitor and report the pollution they discharge in accordance with their

permits, this information will not be available . . . .

1. Aesthetic/Recreational Injury

The district court concluded that Kash had alleged only a generalized grievance and not an actual,

individualized injury because it apparently found that Kash was not a person “for whom the aesthetic and

recreational values of the area will be lessened by the challenged activity.” Laidlaw, 528 U.S. at 183

(internal quotation marks omitted). We conclude otherwise.

The plaintiffs in Laidlaw, Friends of Earth and Citizens Local Environmental Action Network,

brought a complaint against Laidlaw Environmental Services, Inc., alleging that Laidlaw had violated its

National Pollutant Discharge Elimination System permit and seeking injunctive and monetary relief for the

violation. Id. at 175-76. The Court found that the affidavits supplied by the plaintiffs’ members had

established an injury in fact. Id. at 183-84. In this case, Kash’s averments are virtually indistinguishable

from those that the Court found sufficient to establish an injury in fact in Laidlaw.

For example, in Laidlaw, the Court upheld the standing of Friends of the Earth member, Norman

Sharp, who averred that he “canoed approximately 40 miles downstream of the Laidlaw facility and would

like to canoe in the North Tyger River closer to Laidlaw’s discharge point, but did not do so because he was

concerned that the water contained harmful pollutants.” Id. at 183. Similarly, Kash averred that he fished

twelve miles downstream, but would canoe on the Big Sandy River had it not been so polluted. Moreover,

although Kash lives in Ashland, Kentucky, and not in Louisa, Kentucky, such a fact is not dispositive under

Laidlaw because Kash has demonstrated an interest in canoeing and fishing in the affected area. See id. at

182 (noting that affiant Linda Moore lived twenty miles from the area in question, but that she would like

to use the affected area). Kash averred that he had recreated in the affected area in the past and that he

would recreate there currently, were it not for the pollution caused by the defendants’ discharge of effluents

in excess of the limitations imposed by the National Pollutant Discharge Elimination System permit. Under

the Court’s current environmental standing doctrine, Kash’s averments adequately alleged that he suffered

an injury in fact to his aesthetic and recreational values. See id. at 183 (“We have held that environmental

plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for

whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.”) (citing

Sierra Club v. Morton, 405 U.S. 727, 735 (1972)).

2. Informational Injury

We also conclude that Sierra Club has standing to sue for its members’ informational injuries. The

averments of its member, Kash, establish that the lack of information caused an injury beyond the “common

concern for obedience to law.” L. Singer & Sons v. Union Pac. R. Co., 311 U.S. 295, 303 (1940). Kash

attested that the lack of information deprived him of the ability to make choices about whether it was “safe

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to fish, paddle, and recreate in this waterway.” These allegations are sufficient to establish that Kash has

suffered a concrete and particularized injury sufficient to confer Article III standing.1

3. Causation & Redressability

Sierra Club has also demonstrated that the injury in fact suffered by Kash is “fairly traceable to the

. . . allegedly unlawful conduct [of the defendants] and likely to be redressed by the requested relief.” Allen

v. Wright, 468 U.S. 737, 751 (1984). The causation requirement of the constitutional standing doctrine

exists to eliminate those cases in which a third party and not a party before the court causes the injury. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“[T]he 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.’”) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)).

The defendants argue that the Sierra Club has not sufficiently alleged causation because “[t]here is

absolutely no evidence of any connection between anything going on at the Louisa Water Plant and the

various things in the river that are so troubling to Mr. Kash.” This argument lacks merit.

Sierra Club has alleged an ongoing violation of the Clean Water Act in that the defendants

repeatedly violated the terms of the National Pollutant Discharge Elimination System permit issued to the

City of Louisa Water & Sewer Commission by exceeding the effluent limitations and failing to monitor and

report the effluent discharges. Notably, the defendants have not challenged these allegations and, given the

procedural posture of this case, we must accept these allegations as true. As to Kash’s informational injury,

because the injury itself is the lack of information, it necessarily follows that the defendants’ actions in

failing to follow its monitoring and reporting obligations, which deprived Kash of the information, “caused”

or is “fairly traceable” to the alleged injury.

As to Kash’s aesthetic and recreational injury, we similarly conclude that the alleged injury is fairly

traceable to the defendants’ actions. Kash’s affidavit noted that the Big Sandy River appeared “dark and

oily and smelled like petroleum products” and that it had an unpleasant odor. Sierra Club alleged that the

defendants exceeded the effluent limitations contained in the discharge permit on numerous occasions and

presented evidence that these specific types of effluent discharges could cause conditions similar to that

complained of by Kash. See J.A. 157 (affidavit of Dr. Bruce A. Bell attesting that oil and grease discharges

could cause the discoloration of the water and an unpleasant odor). Under these circumstances, we conclude

that Sierra Club has sufficiently alleged that the injury is caused by or fairly traceable to the defendants’

actions to survive the defendants’ motion to dismiss for lack of standing. See Piney Run Pres. Ass’n v.

County Comm’rs of Carroll County, 268 F.3d 255, 263-64 (4th Cir. 2001) (“Traceability does not mean that

plaintiffs must show to a scientific certainty that defendant’s effluent . . . caused the precise harm suffered

by the plaintiffs. Rather, a plaintiff must merely show that a defendant discharges a pollutant that causes

or contributes to the kinds of injuries alleged.”) (internal quotation marks and citations omitted).

The defendants also argue that a favorable decision in this case will not redress the plaintiff’s injuries

because by the time the case is remanded for a judgment on the merits, the City will have completed a

1

Notably, there appears to be some disagreement between the Circuit Courts of Appeals as to whether a plaintiff alleging

a violation of the Clean Water Act has standing to sue for a defendant’s monitoring and reporting violations absent standing to

sue for a defendant’s discharge violations. Compare Friends of the Earth, Inc. v. Crown Central Petroleum Corp., 95 F.3d 358,

362 (5th Cir. 1996) (“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.”) with Magnesium Elektron, Inc., 123 F.3d at 124 (“Because we think that it is at least

possible that some plaintiff in the future might allege a specific and concrete injury arising from a defendant’s failure to monitor

and report its effluent discharges, we will not adopt the Fifth Circuit’s bright line rule.”) (footnote omitted). See also Sierra Club

v. Simkins Indus., Inc., 847 F.2d 1109, 1113 (4th Cir. 1988). However, given our conclusion that the Sierra Club, as the

representative of its members, has standing to sue for defendants’ discharge violations, we find no reason to analyze the merits

of this argument.

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renovation project that will eliminate the pollution discharge problems. Relatedly, the City argues that this

renovation project also makes this entire controversy moot. Again, we are unpersuaded.

As the Court reiterated in Laidlaw, the voluntary cessation of the allegedly unlawful behavior is

generally insufficient to moot a case determining the legality of that behavior. 528 U.S. at 189 (citing City

of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). Indeed, “determining whether a case has

been mooted by the defendant’s voluntary conduct is stringent: ‘A case might become moot if subsequent

events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to

recur.’” Id. (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)).

From the record in this case, we cannot conclude that the defendants have made this showing. Furthermore,

even if the renovation project made it reasonably likely that the discharge violations would not recur, this

hypothetical situation tells nothing about the likelihood that the defendants’ violations of the monitoring

or reporting requirements of the discharge permit would recur.

B. Organizational Standing

American Canoe and Sierra Club also allege that they have standing to sue on their own behalf for

the defendants’ monitoring and reporting violations. The district court’s opinion does not directly address

this argument.

Unquestionably, an association may have standing to assert an injury to itself regardless of whether

its members also have standing. Warth, 422 U.S. at 511. As the Supreme Court has held: “There is no

question that an association may have standing in its own right to seek judicial relief from injury to itself

and to vindicate whatever rights and immunities the association itself may enjoy.” Id. In this case,

American Canoe and Sierra Club have alleged that the defendants’ monitoring and reporting violations

affected its efforts to “research the compliance status of Kentucky dischargers . . . and to report the results

of that research to [its] members; to propose legislation . . . ; and to bring litigation to prevent violation of

the discharge limitations in the permit and thereby protect the waters affected by the facility’s discharge.”

Thus, American Canoe and Sierra Club base their claim of standing purely on a theory of “informational

injury.” They argue that if a statute has a reporting requirement and those reports are obligated to be made

public they have suffered an injury in fact for Article III purposes, if they are denied this information by the

defendants’ failure to report in the first instance. American Canoe and Sierra Club rely on FEC v. Akins,

524 U.S. 11 (1998), where the Supreme Court found a cognizable informational injury under the Federal

Election Campaign Act, and Public Citizen v. United States Department of Justice, 491 U.S. 440 (1989),

where the Court found a cognizable informational injury under the Federal Advisory Committee Act. Under

the circumstances of this case, we agree that American Canoe and Sierra Club have demonstrated a

comparable informational injury under the Clean Water Act.

It is black-letter law that standing requirements come in two flavors: first, as noted, the irreducible

Article III minimum of an injury in fact, fairly traceable to the conduct of the defendants, and redressible

by a favorable judicial decision; and second, prudential requirements–i.e., self-imposed (or, perhaps more

accurately in this court, Supreme Court-imposed) limits on the federal judicial power. See, e.g., Elk Grove

Unified Sch. Dist. v. Newdow, 124 S. Ct. 2301, 2308 (2004). The prohibition on a plaintiff seeking redress

for a “generalized grievance” has often been numbered among the latter. See id. at 2309; Devlin v.

Scardelletti, 536 U.S. 1, 7 (2002); Allen v. Wright, 468 U.S. 737, 751 (1984); Sec’y of Md. v. Joseph H.

Munson Co., 467 U.S. 947, 955 n.5 (1984); Valley Forge Christian Coll. v. Ams. United for Separation of

Church & State, 454 U.S. 464, 475 (1982); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 120

(1979) (Rehnquist, J., dissenting); Warth, 422 U.S. at 499; Duke Power Co. v. Carolina Envtl. Study Group,

Inc., 438 U.S. 59, 80 (1978); United States v. Richardson, 418 U.S. 166, 196 & n.18 (1974) (Powell, J.,

concurring). See also CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, 13 FEDERAL

PRACTICE & PROCEDURE § 3531, at 347 (2d ed. 1984). It is therefore somewhat odd that the Court in Akins

noted first that “respondents satisf[ied] ‘prudential’ standing requirements” because Congress had granted

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standing to all citizens who could demonstrate an Article III injury, 524 U.S. at 19-20, but then went on to

discuss the “strongest argument” of the Federal Election Commission, that the lawsuit in Akins “involve[d]

only a ‘generalized grievance.’” Id. at 23-25. Akins went on to reason, however, that the “generalized”

quality of the grievance at issue—that the Federal Election Commission had failed to classify a particular

group as a political committee, triggering certain disclosure requirements—was irrelevant so long as the

grievance was “concrete.” The concreteness of the injury in Akins—the withholding of information relating

to voting—was contrasted to the “‘abstract and indefinite nature’” of “harm to the ‘common concern for

obedience to law.’” Id. at 23. Where the grievance is general because it represents only the common interest

in seeing the law obeyed, Congress cannot create standing because the injury is not concrete; where some

actual injury befalls every member of the community, Congress can create standing regardless of the

universality of that injury. See id. at 20-25.

But Akins seems to require some additional “plus” to make an informational injury cognizable in the

federal courts. See id. at 24-25 (“We conclude that . . . the informational injury at issue here, directly related

to voting, the most basic of political rights, is sufficiently concrete and specific such that the fact that it is

widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal

courts.”). This seems to be at some odds with the Court’s previous indication that “those requesting

information under [the Freedom of Information Act] need [not] show more than that they sought and were

denied specific agency records” to demonstrate standing, as well as its holding that an organization that

wishes to force compliance with the Federal Advisory Committee Act can demonstrate a sufficient Article

III injury through a federal agency’s failure “to permit [plaintiffs] to scrutinize [an alleged Advisory

Committee’s] activities to the extent FACA allows . . . .” Pub. Citizen, 491 U.S. at 449. Thus, all that is

necessary to demonstrate standing under the Freedom of Information Act and the Federal Advisory

Committee Act is that a request for information has been rebuffed. It is difficult to see how those cases can

be distinguished from Akins such that we should read into the Akins holding a firm requirement that to

establish standing, a plaintiff must adequately allege more than the withholding of the required information

from the citizenry.

Under these circumstances, it becomes very difficult to distinguish the present case from those cases.

Although this case involves a situation in which no agency previously denied the information desired to the

plaintiffs, the injury remains the same. The question of a previous agency denial may be relevant to

principles of exhaustion, but as for the injury alleged, American Canoe and Sierra Club desire certain

information that the defendants are allegedly under a legal obligation to provide. This is precisely the injury

alleged in Public Citizen and in the Freedom of Information Act cases. This might be a “generalized

grievance” in the sense that up to the point they request it, the plaintiffs have an interest in the information

shared by every other person, but it is not an abstract grievance in the sense condemned in Akins: the injury

alleged is not that the defendants are merely failing to obey the law, it is that they are disobeying the law

in failing to provide information that the plaintiffs desire and allegedly need. This is all that plaintiffs

should have to allege to demonstrate informational standing where Congress has provided a broad right of

action to vindicate that informational right. See Cass R. Sunstein, Informational Regulation and

Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613, 643 n.154 (“All that is clear is that

after Akins a deprivation of information consists of an injury in fact if Congress has said so.”).2

To the extent that Akins requires some additional “plus”—some reason that plaintiffs need the

information, in addition to a Congressionally-bestowed right to sue to acquire it—that requirement is

liberally construed, and we believe it is easily met in this case. Indeed, the plus found in Akins and that

found by the majority in Public Citizen are each themselves extraordinarily general; it is difficult to imagine

2

Congress in enacting the Clean Water Act and its citizen-suit provisions relied upon in this case “intended . . . to allow suits

by all persons possessing standing under [the Supreme Court’s] decision[s].” Middlesex County Sewerage Auth. v. Nat’l Sea

Clammers Ass’n, 453 U.S. 1, 16 (1981).

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what information would not make a citizen a better-informed voter, or would not affect her ability to

participate in some workings of government. See Akins, 524 U.S. at 21; Pub. Citizen, 491 U.S. at 449. In

this case, it is difficult to see how the organizations’ interest in “proposing legislation” is less concrete and

particularized than “participating in the judicial nomination process,” which was the interest involved in

Public Citizen. The interests alleged by American Canoe and Sierra Club are more like those interests

alleged in Public Citizen and Akins than they are not. In determining whether an informational injury is

sufficiently concrete, the universe of interests that will create a “plus” is larger than those that would support

standing on their own (as evidenced by Akins’s reliance on voting, which is an interest shared by every

citizen in America).

In sum, we hold that American Canoe and Sierra Club have sufficiently alleged an injury in fact.

Although these organizations devote themselves to the protection and preservation of the environment, their

claims are not based upon a purely ideological or societal interest. Cf. Morton, 405 U.S. at 739. Rather,

their claims rest upon their organizational interests which are negatively affected by the defendants’ failure

to fulfill its monitoring and reporting obligations. Without this information, as noted, American Canoe’s

and Sierra Club’s daily operations are stymied to the extent that they can no longer honor their own

monitoring and reporting obligations to their members. Moreover, their ability to propose legislation and

to bring litigation based upon the information collected by the defendants is clearly hampered. These

activities are essential to their daily organizational activities and to fulfilling their institutional goals, and

are sufficient to satisfy Akins. Although the defendant’s failure to fulfill its monitoring and reporting

violations surely injures American Canoe’s and Sierra Club’s societal interest in seeing that the

environmental laws are faithfully executed, this does not nullify the fact that these violations also prevent

these organizations from performing their daily operations. As the Supreme Court found in Havens Realty

Corp. v. Coleman, 455 U.S. 363, 379 (1982), “[s]uch concrete an demonstrable injury to the organization’s

activities–with the consequent drain on the organization’s resources–constitutes far more than simply a

setback to the organization’s abstract social interest . . . .” See also Sunstein, supra, at 654. (“[S]tanding

is clearly available” where “an individual or institution is interested in obtaining information relating to

enforcement of [an act of Congress], and that individual or organization has a demonstrable interest in the

[subject matter and purpose of the act].”).

American Canoe and Sierra Club also meet the other requirements of constitutional standing. The

analysis with regard to the causation and redressability requirements for establishing the constitutional

standing of Sierra Club to sue on behalf of its member applies with equal force here such that it is

unnecessary to address it further.

III.

For the foregoing reasons, we REVERSE the judgment of the district court and REMAND for

further proceedings consistent with this opinion.3

3

Given our holding, we need not address the plaintiffs’ argument that the district court erred in denying its motion for

reconsideration filed pursuant to Federal Rule of Civil Procedure 59(e).

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CONCURRING IN PART, DISSENTING IN PART

__________________________________________________

KENNEDY, Circuit Judge, concurring in part, and dissenting in part. I agree with the majority that

the Sierra Club has representational standing because one of its members suffered an injury. However, I

believe that the majority’s discussion of associational standing based on informational injury impermissibly

expands the Supreme Court’s jurisprudence on the subject. I also believe that it raises significant public

policy concerns. I therefore dissent from the portion of the majority’s opinion that grants the American

Canoe Association (“American Canoe”) “informational standing.” Additionally, because we hold that the

Sierra Club has representational standing, I see no need to pass on the question of whether it has

informational standing.

A. The majority’s elimination of Article III’s “injury in fact” requirement.

Any type of injury, even informational injury, still must meet the Article III requirements of

standing:

Article III requires the party who invokes the court’s authority to show that he has personally

suffered some actual or threatened injury as a result of the putatively illegal conduct of the

defendant, and that the injury fairly can be traced to the challenged action and is likely to be

redressed in a favorable decision.

Lujan v. Defenders of Wildlife, et al., 504 U.S. 555, 563 (1992). In particular, in informational injury cases,

the D.C. Circuit has expressed skepticism that informational injury alone can meet the Article III injury in

fact requirement:

[W]e have never sustained an organization’s standing in a NEPA case solely on the basis of

“informational injury,” that is, damage to the organizations’ interest in disseminating the

environmental data an impact statement could be expected to contain. We recognize the

logical appeal of doing so in terms of the three constitutional standing requirements: if the

injury in fact is the lack of information about the environmental impact of agency action, it

follows that the injury is caused by the agency’s failure to develop such information in an

impact statement and can be redressed by ordering the agency to prepare one. Such a broad

approach, however, raises “complex and difficult considerations.” It would potentially

eliminate any standing requirement in NEPA cases, save when an organization was foolish

enough to allege that it wanted the information for reasons having nothing to do with the

environment. The proposition that an organization’s desire to supply environmental

information to its members, and the consequent “injury” it suffers when the information is

not forthcoming in an impact statement, establishes standing without more also encounters

the obstacle of Sierra Club v. Morton.

Foundation on Economic Trends, et al. v. Lyng, et al., 943 F.2d 79, 84-5 (D.C. Cir. 1991) (citations omitted,

italics in original). The D.C. Circuit went on to deny standing to the plaintiffs in their NEPA action. In

Sierra Club v. Morton, the Supreme Court expressed concerns about allowing informational injuries to

satisfy the injury in fact requirement for standing:

But a mere "interest in a problem," no matter how longstanding the interest and no matter

how qualified the organization is in evaluating the problem, is not sufficient by itself to

render the organization "adversely affected" or "aggrieved" within the meaning of the APA.

The Sierra Club is a large and long-established organization, with a historic commitment to

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the cause of protecting our Nation's natural heritage from man's depredations. But if a

"special interest" in this subject were enough to entitle the Sierra Club to commence this

litigation, there would appear to be no objective basis upon which to disallow a suit by any

other bona fide "special interest" organization, however small or short-lived. And if any

group with a bona fide "special interest" could initiate such litigation, it is difficult to

perceive why any individual citizen with the same bona fide special interest would not also

be entitled to do so.

Sierra Club v. Morton, 405 U.S. 727, 739 (1972) (superseded by statute on other grounds). Both the

Supreme Court in Morton and the D.C. Circuit in Lyng raise a concern that the majority never truly

addresses: how can a court that grants standing to an association that premises its injury on lack of

information on a problem in which it has a special interest avoid entirely eliminating Article III standing

requirements for other organizations and citizens?

The majority avoids this concern by relying on two decisions from the Supreme Court: FEC v.

Akins, 524 U.S. 11 (1998) and Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440 (1989). To be clear, the

majority’s novel read of Akins and Public Citizen makes the Sixth Circuit the only Circuit in the country

to read these two cases so broadly. The majority interprets these cases as creating a permissive standard

that lower courts must use in deciding when citizens and organizations have the right to information.

Reading Akins and Public Citizen in such a manner reads them in isolation from other important cases on

the subject of standing, particularly Lujan and Morton. In so reading Akins and Public Citizen the majority

goes well beyond the limited holdings the Supreme Court intended.

Lujan limited injury in fact by finding that Sierra Club members, although they had a special interest

in the habitats of animals in other countries, did not have an injury in fact because any injury related to that

special interest was too indefinite, or alternately, too remote to satisfy the injury in fact requirement of

Article III. See Lujan, 504 U.S. at 563-68. Akins and Public Citizen, in contrast, found a specific injury

based on a lack of information. However, those cases involved statutes that specifically granted individuals

and groups the right to the information they sought. See Akins, 524 U.S. at 20-25 (“The injury of which

respondents complain–their failure to obtain relevant information–is injury of a kind that FECA seeks to

address.”). See also Public Citizen, 491 U.S. at 445-46, 449-50 (“FACA was born of a desire [that]...the

public remain apprised of [advisory committees] existence, activities, and cost).

In this case, although the defendant must file permit compliance information with the state and those

filings are public records under the statute, the statute nowhere grants a specific right to the information.

The Federal Elections Campaign Act at issue in Akins and the Federal Advisory Committee Act in Public

Citizen were both specifically drafted to provide information to the public about the workings of

government. The Clean Water Act, in contrast, although it requires public disclosure of the permit

compliance process, focuses instead on environmental protection, not on creating broad rights to

information. Thus, a significant and important difference exists between the information rights recognized

in Akins and Public Citizen and the information rights developed here.

Given that Akins and Public Citizen do not control the outcome in this case, I fail to see how the

majority can extricate itself from the conclusion that its holding effectively vitiates standing requirements

in cases such as these. American Canoe is an organization with an interest in environmental protection.

However, how does that interest differentiate it sufficiently from the interest of any other environmentally

concerned citizen or organization in the country? What would stop any other national organization with

a passing interest in rivers or the environment from prosecuting a claim under the majority’s holding? Is

not the interest that the majority seeks to uphold, when boiled down to its most basic form, simply concern

for upholding the rule of law, a goal and desire that every responsible citizen and every organization shares?

Common Cause v. Federal Election Commission, 108 F.3d 413, 418 (D.D. Cir. 1997) (“To hold that a

plaintiff can establish injury in fact merely by alleging that he has been deprived of the knowledge as to

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whether a violation of the law has occurred would be tantamount to recognizing a justiciable interest in the

enforcement of the law.”). Lujan and Morton clearly counsel against such a broad grant of standing. I

cannot read Akins and Public Citizen as demanding it.

Although the majority opinion does not raise this point, because of my position, I believe that I am

compelled to address the Supreme Court’s holding in Haven Realty Corp. v. Coleman, 455 U.S. 363 (1982).

In that case, the Supreme Court found that Housing Opportunities Made Equal (HOME), a public interest

organization, had associational standing under the Fair Housing Act to challenge what it claimed were

racially discriminatory housing practices in an area it served. The Supreme Court granted HOME standing

because it felt that HOME suffered a sufficient injury in the form of a “drain on the organization’s

resources” because HOME “had to devote significant resources to identify and counteract defendants’

racially discriminatory steering practices.” Havens Realty Corp., 455 U.S. at 379. The Court found that

this type of injury satisfied the concerns laid out in Morton because it: “constitutes far more than simply

a setback to the organization’s abstract social interests.” Id. Although the interests alleged in Haven are

similar to the interests alleged by American Canoe, the key differences remain that HOME encountered

significant difficulty helping individual plaintiffs counteract discrimination directed at them in a localized

area. HOME also incurred additional costs as a result of these racial steering practices. In this case,

although American Canoe’s national goals may be impeded, they are no more impeded than any other group

or individual that has a “special interest” in general environmental protection. Thus, HOME’s injury is

more specific, cognizable, and particular than the injury suffered by American Canoe.

B. Injury at all?

Finally, the above objections are premised on the assumption that the permit violations constitute

a “concrete and particularized” injury-in-fact to American Canoe. Ailor v. City of Maynardville, Tenn., 368

F.3d 587, 596 (6th Cir. 2004). I question whether the conduct in question actually constitutes an injury to

American Canoe at all. According to the majority, American Canoe claims that they will not be able to:

“research the compliance status of Kentucky dischargers...and to report the results of that research to its

members; to propose legislation...; and to bring litigation to prevent violation of the discharge limitations

in the permit and thereby protect the waters affected by the facility’s discharge.” In effect, American Canoe

argues, and the majority holds, that the informational injury they suffer stems from the defendants’ failure

to comply with its permit. However, the amended complaint identifies 405 instances in which defendants

exceeded the discharge limitations of its permit, 93 monitoring violations, and only 12 reporting violations.

As a result, it seems reasonably clear that American Canoe could sufficiently research defendants’

compliance status to report on discharge violations to its members. Additionally, although there were 12

reporting violations, the defendants likely had more than enough information to make judgments on future

legislation, and, if the organization or any of its members were directly injured by the pollution in some

concrete fashion (similar to the direct injury that Sierra Club can and did claim), the organization could

easily use the 405 violations to provide the basis for a lawsuit.

C. Conclusion

Because I do not believe that the alleged injury is sufficiently particular to satisfy the injury in fact

requirement absent raising the same public policy concerns raised by Morton, and because I question

whether American Canoe suffered a concrete injury, I respectfully dissent from the portion of the majority’s

opinion related to informational standing.