American Canoe Association, Incorporated Sierra Club v. City of Louisa Water & Sewer Commission Louisa Water Treatment Plant City of Louisa, Kentucky

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 Ill’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 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (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 de *548 velop 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 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 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (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 , 118 S.Ct. 1777 , 141 L.Ed.2d 10 (1998) and Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440 , 109 S.Ct. 2558 , 105 L.Ed.2d 377 (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 *549 in fact requirement of Article III. See Lujan, 504 U.S. at 563-68 , 112 S.Ct. 2130 . 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 , 118 S.Ct. 1777 (“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 , 109 S.Ct. 2558 (“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 (C.A.D.C.1997) (“To hold that a plaintiff can establish injury in fact merely by alleging that he has been deprived of the knowledge as to 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 Havens Realty Corp. v. Coleman, 455 U.S. 363 , 102 S.Ct. 1114 , 71 L.Ed.2d 214 (1982). In that case, the Supreme Court found that Housing Opportunities Made Equal (HOME), a public interest organization, had assoeia-tional 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 , 102 S.Ct. 1114 . The Court found that this type of injury satisfied the concerns laid out in Morton because it: “constitutes far more than simply a set *550 back 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.