concluding that law of the case did not prevent reconsideration of standing decision because “the concerns implicated by the issue of standing ... trump the prudential goals of preserving judicial economy and finality”
How later courts described this case
- concluding that law of the case did not prevent reconsideration of standing decision because “the concerns implicated by the issue of standing ... trump the prudential goals of preserving judicial economy and finality”
- explaining that a supervening change of law is a type of extraordinary circumstance that would justify reconsideration of an issue previously decided
- identifying several ‘extraordinary circumstances’ that warrant a court’s reconsideration of an issue decided earlier
- “When a plaintiff claims that a defendant's threatened injury is the source of his standing, he must show that the threatened injury is so imminent as to be ‘certainly impending.’ The imminence requirement ensures that courts do not entertain suits based on speculative or hypothetical harms.”
Written by the judges who cited it.
The opinion
LEWIS, Circuit Judge,
dissenting.
The district court originally found that PIRG had standing in PIRG v. MEI, 34 E.R.C.2077, 1992 WL 16314 (D.N.J.1992) {“MEI I”). We affirmed by judgment order in PIRG v. MEI, 983 F.2d 1052 (3d Cir.1992). The majority now correctly finds that findings of fact made in PIRG v. MEI, No. 89-3193 (D.N.J. March 9, 1995) (“MEI II”), undermine the original finding of standing. PIRG, however, was not on notice at any time between the affirmance of MEI I and the reversal of MEI II that standing remained a live issue. I believe that, given the opportunity, it is possible for PIRG to prove additional facts that would support standing. Because PIRG did not have an opportunity to prove such additional facts, I would remand. The majority, however, reverses, withholding from PIRG the opportunity to make its case. Thus, I respectfully dissent.
In MEI I, the district court found that the PIRG members had standing based on a number of injuries or threatened injuries that they suffered because of MEI’s actions. These actions included MEI’s unlawful discharge of sodium, oil and TOC. The majority notes that in MEI II the district court found that the discharges did not have a negative effect on the Creek. However, it fails to demonstrate that PIRG would be incapable of proving that its members had standing if the case were remanded.
While the majority identifies a number of issues that might be relevant to PIRG’s standing, it declines to give PIRG the opportunity to address them. For instance, in response to PIRG’s position, taken at oral argument, that the salt emitted by MEI could combine with other sources of salt and thus damage the Delaware River’s aquatic life, the majority notes that
[although this argument may be sound under some circumstances, it lacks any factual basis in the record before us. PIRG has not offered any evidence to date that the sodium levels of the Delaware River are at or beyond the point of satu *126 ration. Nor has PIRG offered any evidence that the aquatic life of the River has suffered from excess salinity or is somehow more vulnerable to MEI’s sodium discharges than are those organisms that occupy the Creek.
Majority Op. at 123. See also Majority Op. at 124 (“[T]he affiant makes no attempt to show how MEI’s salt excursions affect the level of salinity of the water that comes out of the treatment plant. Thus, even if MEI were to report all of its excursions faithfully, he still would lack information concerning the potability of his drinking water. Similarly, the other affiants would continue to lack information regarding the toxicity of fish from the Delaware River.”).
The majority also dismisses PIRG’s argument that high TOC levels could have a negative impact on the Delaware River, noting that “[i]f the TOC in this case benefitted the Wickecheoke Creek by adding nutrients and oxygen to its waters, we cannot understand how it could, at the same time, harm the Delaware River.” Majority Op. at 123.
Ultimately, the majority criticizes PIRG for not producing evidence to support standing, but PIRG was not on notice during the penalty phase of this litigation that standing-remained a live issue. As there may be certain evidence that is relevant to prove standing, but not to prove damages, I would remand. On remand, PIRG could introduce evidence regarding the effect of increased salinity on the Delaware River and on the affiants. It could also attempt to explain how an increase in nutrients in a nutrient-poor portion of an ecosystem may have a negative impact on the remainder of a nutrient-rich ecosystem. Clearly, it is not for us to decide such fact-intensive issues.
As the Ninth Circuit noted in Presbyterian Church v. U.S., 870 F.2d 518 (9th Cir.1989), a district court is in a better position than an appellate court to make findings of fact regarding standing. In that case, after finding that the allegations in a complaint provided an adequate foundation for standing, the court remanded to the district court to determine whether the allegations could be proved. It did this in spite of its suspicion that the “case should be dismissed on standing or mootness grounds.” It concluded that it was, “as an appellate court, ill-equipped to decide these questions in the first instance.” Presbyterian Church, 870 F.2d at 529 .
PIRG’s goal during the penalty phase was not to document particular harms to its members. Now that standing is again a live issue, it should be given the opportunity to do so. Given that PIRG might be able to prove facts sufficient to support its position, I am, like the Presbyterian court, “persuaded that the prudent course of action is to remand to the district court for further proceedings” regarding the basis of its standing. Id. at 528 .