holding that “the possibility of future injury may be sufficient to confer standing on plaintiffs” and concluding that plaintiffs could proceed with their suit where they “raised a material question of fact ... [as to] whether they will suffer a substantial risk of harm as a result of [the government’s] policies”
How later courts described this case
- holding that “the possibility of future injury may be sufficient to confer standing on plaintiffs” and concluding that plaintiffs could proceed with their suit where they “raised a material question of fact ... [as to] whether they will suffer a substantial risk of harm as a result of [the government’s] policies”
- holding that “ ‘to require actual evidence of environmental harm, rather than an increased risk based on a violation of the statute, misunderstands the nature of environmental harm’ .... a credible threat of harm is sufficient to constitute actual injury for standing purposes”
- stating that “ ‘public agency has standing to seek judicial review of governmental action that affects performance of its duties;’ ” there the plaintiffs were agencies charged with protecting state’s water supply and therefore had standing
- concluding that plaintiffs successfully alleged a credible threat of future injury based, in part, on the defendant agency's own estimate that salinity standards would be violated under its proposed operational plan
Written by the judges who cited it.
The opinion
FERNANDEZ, Circuit Judge,
Dissenting:
Because I do not believe that Central Delta Water Agency 1 has demonstrated that it has standing, I respectfully dissent. What is significant here is the fact that the United States has not violated any law, rule, regulation, or contract. . Nor has it threatened that it will do so in the future. *954 There is not a scintilla of evidence of any kind of minatory behavior.
For its part, Central Delta has no right whatsoever to require that a certain amount of water be kept behind the New Melones Dam; likewise, it has no right to the water stored in that dam during the period of storage. It only has a right to have sufficient water supplied to maintain water quality downstream. That right has not been violated, and the government has no intention of violating it. Thus, this case is not at all like cases where some sort of wrongdoing has endangered the existing rights of a party. 2 Of course, when there is any kind of relationship between parties, it is always possible that somebody will not perform a duty someday. But if standing is to mean anything, we must not confer it upon those whose rights are not being affected at all, especially when their alleged antagonist insists that it fully intends to respect those rights. Again, the government has indicated that it will do whatever is required to keep the water at the proper level of quality. It will even acquire water elsewhere, if that becomes necessary. Thus, Central Delta’s speculation that under some conditions at some later time the government may breach its legal duty to supply water is entirely insufficient to show that “invasion of a legally protected interest” is more than “ ‘conjectural’ or ‘hypothetical.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 , 112 S.Ct. 2130, 2136 , 119 L.Ed.2d 351 (1992) (citation omitted). Central Delta simply cannot prove that “the irreducible constitutional minimum of standing” exists. Id. In other words, one does not have to be afflicted with misocainea in order to reject the new and expanded standing doctrine pressed upon us in this case.
Thus, I respectfully dissent.
. What I say here about Central Delta applies equally to South Delta Water Agency, Alexander Hildebrand, and R.C. Farms, Inc.
. For example, this is not a case where the government has arbitrarily and capriciously selected a forest plan that could, at any moment, lead to eruption of a destructive conflagration. Cf. Mountain States Legal Found, v. Glickman, 92 F.3d 1228, 1231 (D.C.Cir.1996). Nor is it a case where an improperly issued construction permit may result in a devastating flood. Cf. Village of Elk Grove Village v. Evans, 997 F.2d 328, 328-29 (7th Cir.1993). Nor, again, is it a situation where prisoners are housed under dangerously defective conditions. Cf. Dimarzo v. Cahill, 575 F.2d 15, 16, 18 (1st Cir.1978). Finally, it is not a case where a defendant is (or has been) violating a statute by polluting the environment. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 175-76 , 120 S.Ct. 693, 701-02 , 145 L.Ed.2d 610 (2000); Ecological Rights Found, v. Pac. Lumber Co., 230 F.3d 1141, 1145 (9th Cir.2000); Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 150-51 (4th Cir.2000) (en banc).