# Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals Inc.

> Court of Appeals for the Third Circuit · August 20, 1990 · 913 F.2d 64

URL: https://www.frixlaw.com/law-library/cases/8983837

## Case

- **Full name:** PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC. and Friends of the Earth v. POWELL DUFFRYN TERMINALS INC., United States Environmental Protection Agency, Intervenor PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC. and Friends of the Earth v. POWELL DUFFRYN TERMINALS INC. PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC. and Friends of the Earth v. POWELL DUFFRYN TERMINALS INC. Appeal of William B. REILLY, in his capacity as Administrator, United States Environmental Protection Agency
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** August 20, 1990
- **Citations:** 913 F.2d 64; 1990 WL 118919
- **Precedential status:** Published
- **Opinion:** Concurrence by Aldisert
- **Judges:** Aldisert, Nygaard, Scirica
- **Cited by:** 80 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8983837

## How later opinions describe it (automated extraction)

- holding that violation calculations should be analyzed "on a parameter by parameter basis" and that each type of effluent limit is "clearly separate" and there is "no reason why [a defendant] should not be penalized separately for violating each limitation"
- finding sufficient injury where plaintiff organization submitted affidavit of member who stated that he was offended by brown color and bad odor of water body adjacent to park where he went bird watching
- holding that, to have standing, plaintiffs must only show that the injunctive relief requested would “decrease” pollution, not that it would return a polluted waterway to “pristine condition”
- holding that to have standing plaintiffs must only show that the injunctive relief requested would “decrease” pollution, not that it would return a polluted waterway to “pristine condition”

## Opinion text

ALDISERT, Circuit Judge,
concurring.
I join in the opinion of the court and write separately only to express a nagging doubt about standing.
Throughout my extensive preparation of this case including close attention at argument and discussion with my colleagues at conference, I was persuaded that the member/plaintiffs had failed to show an actual injury that was traceable to the permit violations. I am now willing to join my colleagues’ view. But I feel somewhat like Lord Byron’s fair maiden in Don Juan, c 1, dedication cxvii,
A little more she strove, and much repented, And whispering “I will ne’er consent” — consented.
For the purposes of this case, I am willing to agree that the live bodies met the test. But barely. The standing case put in by the Public Interest Research Group (PIRG) and Friends of the Earth (FOE) is so skinny that I am concerned seriously our discussion will not survive careful Supreme Court review. I join in this opinion, therefore, with the shakiest of jurisprudential confidence. My intrepidity, questionable as it is, is the product of abject rationaliza *84 tion: If the Supreme Court does not agree to review and reverse, then perhaps, if we are not absolutely correct, at least we are not totally wrong.
I.
By enacting the Federal Water Pollution Control Act (FWPCA), especially the provisions that authorize any “person or persons having an interest which is or may be adversely affected” to bring a suit “against any person ... who is alleged to be in violation of [a discharge permit],” Congress has expressed its enthusiastic support for the cleansing of our nation’s waterways. 33 U.S.C. § 1365 (g) and (a)(1). My concern is that this enthusiasm has led environmental organizations and citizen/plaintiffs to mistakenly believe they have standing to sue any time a discharge permit is violated. The Constitution and decisions of the Supreme Court and this court clearly demonstrate this is not the case. Even where statutory standing has been established, the test of constitutional standing must still be met.
I have been extremely troubled because I have a strong desire to affirm the district court judgment. I am convinced that Powell Duffryn Terminals, Inc. was a deliberate polluter and deserved appropriate penalties for many acts in violation of the conditions of its discharge permit. I find standing here only on the most questionable of grounds — a belief that somehow the Supreme Court might be inclined to relax its stringent requirements of standing in environmental cases.
On June 27, 1990, however, the Court did not assuage my concern in handing down its decision in Lujan v. National Wildlife Federation, — U.S.-, 110 S.Ct. 3177 , 111 L.Ed.2d 695 (1990). I am quick to recognize that Lujan is not precise prece-dential authority, but it does nevertheless constitute a direction that the Court desires us to travel in environmental law cases. In Lujan the Court faced a question of statutory, as distinguished from constitutional, standing. Moreover, the Court construed the Federal Land Policy and Management Act of 1976, the National Environmental Policy Act of 1969 and the Administrative Procedure Act, and not the FWPCA. Yet, the Court’s action sent a strong signal to all of us: It was not, repeat not, totally relaxing its standing requirements in cases affecting the environment.
The Court held that the affidavits of the National Wildlife Federation member/plaintiffs were factually insufficient to confer standing to challenge a decision of the Bureau of Land Management. It determined that because of the lack of specificity in the affidavits of its members, the National Wildlife Federation had failed to establish that the interests of the two member/plaintiffs were affected by the bureau’s actions.
The Court insisted that affidavits of the member/plaintiffs show that the “injury [the affiant] complains of (his aggrievement, or the adverse effect upon him) falls within the ‘zone of interests’ sought to be protected by the statutory provisions whose violation forms the legal bases for his complaint.” Id. at -, 110 S.Ct. at 3180 . The Court directed us not to “assume[] that general averments embrace the ‘specific facts’ needed to sustain” standing. Id. at-, 110 S.Ct. at 3182 . If such are the Court’s requirements to prove standing under a statute, it follows, a forti-ori, that the Court requires some stringency in meeting Article III standing, the issue before us here. Nevertheless, I still am inclined to find standing. Perhaps my wish to find standing is father to the thought, but in view of Lujan , I hope it is not, as John Greenleaf Whittier put it, a “wish that failed of act.”
I see PIRG and FOE in the position of the old-time vaudeville performer’s ad in Variety: “Have tux, will travel.” PIRG and FOE advertised: “Have case, need live-bodied members/plaintiffs.” The questions for this court are: Were the recruited live bodies sufficiently injured to sustain this action, or more specifically, was theirs an “injury [that] fairly can be traced to the challenged action,” or otherwise stated, did they “show injury in fact resulting from the action which they seek to have the court adjudicate?” Valley Forge Chris *85 tian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 473 , 102 S.Ct. 752, 758, 759 , 70 L.Ed.2d 700 (1982).
Maybe the wrong plaintiffs were recruited. Or, perhaps the plaintiffs were not sufficiently coached before their depositions. Whatever the case, constitutional standing is a serious question here.
II.
There is no doubt that standing can be based on environmental, aesthetic and non-economic injury. Sierra Club v. Morton, 405 U.S. 727, 738 , 92 S.Ct. 1361, 1368 , 31 L.Ed.2d 636 (1972). The more important question, however, is whether the individuals recruited by PIRG and FOE alleged injuries sufficient to sustain standing to bring this ease.
The doctrine of standing limits the court’s power to adjudicate conflicts pursuant to the “case or controversy” requirement of Article III of the Constitution. Warth v. Seldin, 422 U.S. 490 , 95 S.Ct. 2197 , 45 L.Ed.2d 343 (1975). It was plaintiffs’ burden, which cannot be waived, to establish standing as a threshold matter. Id. Citizen suits under the FWPCA are expressly subject to this standing requirement. Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1 , 101 S.Ct. 2615 , 69 L.Ed.2d 435 (1981). Even when Congress has acted to confer standing to litigate a statutory claim, “the requirements of Article III remain: ‘the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.’ ” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 , 41 n. 22, 96 S.Ct. 1917 , 1926 n. 22, 48 L.Ed.2d 450 (1976) (quoting Warth v. Seldin, 422 U.S. 490, 501 , 95 S.Ct. 2197, 2206 , 45 L.Ed.2d 343 (1973)).
The essence of the standing inquiry is whether the parties seeking to invoke the court’s jurisdiction have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204 , 82 S.Ct. 691, 703 , 7 L.Ed.2d 663 (1962). As refined by subsequent reformulation, this requirement of a “personal stake” has come to be understood to require a plaintiff to:
[1] “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,”
... and [2] that the injury “fairly can be traced to the challenged action” and [3] “is likely to be redressed by a favorable decision.”
Valley Forge, 454 U.S. at 471 , 102 S.Ct. at 758 (citations omitted).
I am even willing to concede that plaintiffs in this case have established an injury-in-fact that is redressable. My concern is with the second tier of the standing analysis mandated by Valley Forge, supra. We must decide if there is sufficient immediacy and reality to the allegations such that the injury alleged can be “fairly traced” to Powell Duffryn. To do this we must apply these constitutional standards to the findings of the district court.
III.
What makes this case so difficult is that Powell Duffryn Terminals, Inc. is an egregious wrongdoer. A persuasive argument can be made that, as a business decision, it deliberately chose to exceed the discharges allowed under the permit because, from a financial standpoint, normal profits from its operations were such as to offset any financial penalty imposed from violating terms of its permit.
The district court held that from September 1977 through November 1988, Powell Duffryn committed 386 violations involving 11 pollutants of the effluent limitations in its National Pollutant Discharge Elimination System permits:
Number of Parameter Violations
Total Organic Carbon (TOC) 8
pH 63
Total Suspended Solids (TSS) 66
Bioassay 1
*86
Number of Parameter Violations
Oil and Grease 48
Hexavalent Chromium 2
Petroleum Hydrocarbons 27
Methylene Chloride 9
Phenol 1
Biochemical Oxygen Demand (BOD) 80
Chemical Oxygen Demand (COD) 81
TOTAL 386
PIRG v. Powell Duffryn Terminals, 720 F.Supp. 1158, 1160-61 (1989). Many of its violations exceeded the effluent limitations in its permit by great amounts. Of the 386 violations, 260 exceeded the applicable permit limitation by over 100 percent and 86 violations exceeded the limits by more than 1,000 percent. A-19, A-3824 to A-3834. Powell Duffryn’s violations involved toxic pollutants and pollutants which EPA has determined to be harmful to aquatic life.
If the receiving waters of Powell-Duf-fryn’s discharge were crystal clear waters of a sylvan lake or an uncontaminated mountain stream, it would be easy to relate the alleged injury sustained by the member/plaintiffs to the company’s discharge. But, the Kill is not the river once so eloquently described by Justice Douglas:
The river, for example, is the living symbol of all the life it sustains or nourishes —fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water — whether it be a fisherman, a canoeist, a zoologist, or a logger — must be able to speak for the values which the river represents and which are threatened with destruction.
Morton, 405 U.S. at 743 , 92 S.Ct. at 1370 (Douglas, J., dissenting). And complainants do not allege an injury like that once described by Justice Holmes:
The nuisance set forth in the bill was one which would be of international importance, — a visible change of a great river from a pure stream into a polluted and poisoned ditch.
Missouri v. Illinois, 200 U.S. 496, 518 , 26 S.Ct. 268, 269 , 50 L.Ed. 572 (1906). The brute fact is that Powell Duffryn illegally discharged pollutants into the Kill Van Kull, one of the most industrialized waterways in the United States, if not the world.
The Kill lies between Staten Island, New York and the northern shore of New Jersey. It is part of the very busy greater Port of New Jersey and New York Channel complex and it links Newark Bay, to the east, with Arthur Kill Channel to the west. The entire shore is industrialized with the exception of Kill Van Kull Park, located two miles to the west of the facility. On the shore are the Bayonne Sewage Treatment Plant and the Port Richmond Sewage Treatment Plant. These two plants discharge up to 60 million gallons of treated sewage per day on the Kill and are located within 200-300 yards of the park. A-621-622, 121.
The Kill lost its pristine beauty many years ago. It is not the same body of water that greeted Hendrick Hudson and Peter Stuyvesant. Recent history best describes the state of the Kill today. During the period between submission of this case and the writing of these opinions the Kill has been the site of repeated gigantic oil spills from the many tankers that ply its waters. For example, on June 7, a British flag oil tanker ran aground while docking in the New Jersey side of the Kill Van Kull in New York Harbor, spilling 260,000 gallons of fuel oil into the waterway. New York Times, June 8, 1990, at Al, col. 5.
In was the fifth major oil spill in the area since January.... The recent rash of spills in Kill Van Kull and connecting Arthur Kill has brought harsh criticism of the oil industry from environmentalists and state officials. The waterways separate New Jersey from New York’s Staten Island, and are along industrialized areas.
Los Angeles Times, June 8, 1990, at A3, col. 1.
What we have here is an acknowledged egregious polluter discharging into an already polluted industrial waterway located in a severely threatened ecosystem. *87 Against this backdrop we must decide whether the pollution complained of by PIRG’s and FOE’s member/plaintiffs can be traced to the pollution discharged by Powell Duffryn.
IV.
At best, the testimony of PIRG’s and FOE’s member/plaintiffs constitutes only a gossamer case of standing. The member/plaintiffs may have been injured, but there is very shaky proof that the stated injuries were traceable to this polluter.
A.
Cheryl Cummings, whose family home in Bayonne, New Jersey, is one block from the Kill Van Kull, has used Kill Van Kull Park for biking and jogging for 19 years. Ms. Cummings testified that the pollution of the Kill Van Kull has diminished her enjoyment of the Park. She described the water of the Kill Van Kull as having “a film” which is “sometimes like a rainbow or sometimes like greenish-yellow.” A-483, 253. “The park is often not a pleasant place to be.” A-483, 2423. Student Public Interest Research Group of New Jersey v. P.D. Oil & Chemical Storage, Inc., 627 F.Supp. 1074, 1085 (D.C.N.J., 1986) [hereinafter D.Ct. Op. I]. However, when Ms. Cummings was deposed by counsel for Powell Duffryn, she admitted:
Q. [By Mr. Edelstein] To you personally then the outcome of this lawsuit won’t affect your use of the park, right?
A. [By Ms. Cummings] Correct.
In fact, she further testified that she had never read the allegations of the complaint and—
Q. [By Mr. Edelstein] If you had been read paragraph #7 by any representative of Terris & Sunderland, would you have authorized them to use you as a person on whom they could rely for standing?
A. [By Ms. Cummings] No.
A.-257. The testimony continues:
Q. [By Mr. Edelstein] If ... it was important that the allegations of Paragraph #7 have to be correct as to you, would you object to participating in this lawsuit?
A. [By Ms. Cummings] Yes.
A-259. Ms. Cummings in further testimony stated,
Q. [By Mr. Edelstein] Did Barbara [plaintiffs’ paralegal] explain to you that the allegations in this suit were that there was a direct adverse effect on your aesthetic, environmental, economic, recreational activities due to Powell Duf-fryn’s discharge?
A. [By Ms. Cummings] No.
Q. If [the allegations in the suit] had been explained to you, would you have been able to join in this suit?
A. No.
Q. Would you have been able to sign the affidavit?
A. No.
A-248 to A-249.
B.
Sheldon Abrams, a member of Friends of the Earth, has noticed that the shores of the Kill Van Kull “are black and there is an oily sheen on the water” during his regular drives there. A-483, 2425. Mr. Abrams boats in Lower New York Bay, into which the Kill Van Kull flows. He stated that he would enjoy boating in New York Bay more if the water flowing into it from the Kill Van Kull were cleaner, and that he would boat and fish in the Kill Van Kull itself if it were cleaner. D.Ct.Op. 1 at 1085-86.
Again the testimony at the deposition indicates less facts supporting standing than was found by the district court. Mr. Abrams testified that he does not own property in the vicinity of the Kill Van Kull, Upper New York Bay or Lower New York Bay and that:
Q. [By Mr. Edelstein] You don’t engage in any activities along the Kill Van Kull, do you?
A. [By Mr. Abrams] No.
Mr. Abrams occasionally fishes approximately ten miles south of the Powell Duf-fryn site. He further testified that his *88 alleged interest was “very generalized” and that,
Q. [By Mr. Edelstein] You can answer this specifically. Do you have any facts on which to base a personal claim that you as an individual ... have been, are being, and will be adversely affected by this defendant’s discharge?
A. [By Mr. Abrams] I have no personal claim.
A-286 to A-287.
C.
Andrew Gerbino, also a Friends of the Earth member, lives on the Staten Island side of the Kill Van Kull. He believes that the pollution of the Kill Van Kull and Lower New York Bay has decreased the value of his home. A-484, 2427.
Mr. Gerbino used to walk along the Staten Island side of the Kill Van Kull, but he no longer does because it is so polluted. Mr. Gerbino also stated that he can no longer eat any crabs or clams caught in the area, although in the past “all these waters used to be used for lobster catching, clamming, and crab catching. You don’t see anyone doing that anymore.” D.Ct.Op. I at 1086.
Mr. Gerbino testified that occasionally he drives over the Bayonne Bridge approximately two miles west of Powell Duffryn Terminals. His only recreational activities are south of South Beach, New York, approximately thirteen miles from Powell Duffryn and the Kill Van Kull, and thus unaffected by its discharge. He agreed that his generalized assertion in this ease is actually that only, “any discharge from anywhere that finds its way to Lower New York Bay adversely affects [him]....” A-323.
D.
Melissa Ven Ditti testified that she has never used the Kill Van Kull for recreational purposes. A-395. Her only involvement is that she occasionally walks at the Kill Van Kull Park, four blocks from her family home, at a location that is approximately 1.8 miles to the west of Powell Duffryn, and there is no access from the park to the Kill. The only environmental concern affecting her use of the park is a smell. She stated that “the water in the Kill Van Kull looks polluted and greasy. It has garbage floating in it and is brown. On some days it smells. If the water were not polluted, I would swim in it.” A-2431. Powell Duffryn does not cause the smell, A-2018 to A-2020, and there is no allegation or evidence that it dumped garbage in the water.
When Ms. Ven Ditti was asked by defendant, “[A]re you claiming that you have an interest which is being or will be adversely affected by this defendant’s discharge,” her answer was “No.” A-426.
E.
Douglas MacNeil said that his activities were birdwatching at the park about five times a year, almost two miles from Powell Duffryn. His major complaint:
As a birdwatcher, which is my main recreational activity in this area, if the waters are a certain quality, there will be more or less wildlife. If there’s more, than it’s better for me.
Besides that, if the waters are unappealing to me as an individual, it will inhibit me from using the area for birdwatching. In fact, it does. I don’t come here as often as I might if I felt the water was better.
A-357.
He further testified, however, that he possessed no facts indicating that Powell Duffryn’s discharge adversely affected him, and that “no one said that its discharge directly [injures him] and I don’t assert it.” A-347 to A-348.
V.
What troubles me from the testimony is any indication that the injury-in-fact was fairly traceable. Each member/plaintiff complained of pollution in general. There was very little, if any, attempt to link the injuries alleged to the pollution caused by Powell Duffryn. Even if I concede that *89 the individual plaintiffs were injured by the pollution in the Kill, no individual plaintiff was able to say that in this highly polluted waterway, the specific condition that was the object of his or her complaint was caused by Powell Duffryn.
The two sewage treatment plants’ daily run-off consisted of 60 million gallons of treated sewage. The oil spills, the chemical processing facilities and the heavy ocean traffic have all contributed to this pollution. Yet, we as a court are faced with a lone defendant.
I believe that the foregoing is a fair summary of the evidence of the injuries and the “injury in fact resulting from the action they seek to have the court adjudicate.” Valley Forge, 454 U.S. at 472-474 , 102 S.Ct. at 757-59 . Is it enough? I’m not sure. Were this not an environment case, it certainly would not be. I come down on the side of standing with stated qualms that are soothed somewhat by the notion that the evolving precepts of standing are perhaps expanded a bit when at stake are the great public policy considerations of insults to our environment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8983837. Public record. Not legal advice.