Robert E. Gonzales v. Ann McGill Gorsuch, Administrator of the United States Environmental Protection Agency

688 F.2d 1263, 17 ERC 2147

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 28, 1982
• Docket: 78-3729
• Status: Published

Opinions

KENNEDY, Circuit Judge:

This suit challenges the propriety of expenditures approved by the Environmental Protection Agency [EPA] and made by the Association of Bay Area Governments [ABAG].¹ ABAG made the expenditures pursuant to a workplan under section 208 of the Federal Water Pollution Control Act (herein the Clean Water Act), 33 U.S.C. § 1288 (1976). EPA funded the plan through a $4.3 million grant authorized under section 208(f), 33 U.S.C. § 1288(f) (1976).

After the planning began, but before its completion, Gonzales² brought this suit. The theory of the suit was that some of the grant funds used by ABAG were for contracts not related to water pollution. These, it was contended, were improper expenditures under section 208, and' hence could not be legally funded. After finding standing and reaching the merits, the court below denied the requested injunctive and declaratory relief and entered summary judgment for the EPA. Gonzales v. Costle, 463 F.Supp. 335 (N.D. Cal. 1978). Gonzales appeals, and we now affirm.

I.

In 1972, Congress amended the FWPCA. Pub. L. 92-500, 86 Stat. 839 (1972). The amendments provided for a comprehensive state and federal program to improve the nation’s water quality. As part of the program, section 208 of the amended Act authorizes areawide waste treatment management plans, administered by local government and funded by the EPA.

In May of 1975, pursuant to section 208(a)(2) of the Clean Water Act, 33 U.S.C. § 1288(a)(2) (1976), ABAG was selected as the local entity responsible for developing a clean water plan for the San Francisco Bay Area. ABAG then applied for, and received, an EPA grant of $4.3 million to develop and implement a section 208 work-plan.

In addition to the responsibility for developing a clean water plan, ABAG was also designated by the state as the local entity in charge of a Bay Area Air Quality Maintenance Plan [AQMP]³ and, eventually, a Solid Waste Management Plan [SWMP].⁴ Appropriate funding for development and implementation of these plans soon followed.⁵ ABAG consolidated the three programs into one plan, the ABAG Environmental Management Plan. The EPA approved it in 1976. ABAG then began the planning period required by section 208.⁶

Gonzales filed suit in September of 1976. After discovery, his claim was reduced to the assertion that approximately 5 percent of the contracts funded by the section 208 grant were for the regional AQMP and the SWMP, instead of for improvement of water quality.⁷ He asked the court to declare the contracts illegal as in excess of 208 funding authority and for an injunction against their execution or payment.

No temporary restraining order or other preliminary relief was sought. Indeed, Gonzales waited almost one year before commencing discovery. When the court below ruled on the parties’ cross-summary judgment motions, the two year planning period was over, and most of the original funds had been spent. In 1978 the EPA, however, had granted ABAG an additional $180,000 for the final part of the workplan. The district court found that the plaintiffs had standing, that the case was not moot, and that section 208 authorized the expenditures. Gonzales v. Costle, 463 F.Supp. 335, 337-41 (N.D. Cal. 1978). We agree the suit should be dismissed but for a reason other than that adopted by the district court. We find the plaintiff has no standing to maintain the suit.

II.

Gonzales seeks to invoke the jurisdiction of the federal court under the citizen’s suit provision of the Clean Water Act. The citizen-suit provision of the Clean Water Act, 33 U.S.C. § 1365(a)(2) (1976), provides:

(a) Except as provided in subsection (b) of this section [dealing with notice to the EPA] any citizen may commence a civil action on his own behalf — ... (2) against the Administrator where there is an alleged failure of the Administrator to perform any act or duty under this chapter [ch. 26 of title 33, §§ 1251-1376] which is not discretionary with the Administrator. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to . . . order the Administrator to perform such act or duty, as the case may be ... .

The legislative history reinforces the import of the statutory language that § 1365(a)(2) was intended to grant standing to a nationwide class, comprised of citizens who alleged an interest in clean water. Senators Bayh and Muskie, the latter, one of the Act’s principal draftsmen, discussed the Conference Report:

Mr. Bayh. Would an interest in a clean environment — which would be invaded by a violation of the Federal Water Pollution Control Act or a permit thereunder— be an “interest” for the purposes of this section?

Mr. Muskie. That is the intent of the conference. .. The conference report states: “It is the understanding of the conferees that the conference substitute relating to the definition of the term ‘citizen’ reflects the decision of the U.S. Supreme Court in the case of Sierra Club v. Morton [405 U.S. 727 [92 S.Ct. 1361, 31 L.Ed.2d 636] (1972)].” ... It is clear that under the language agreed to by the conference, a noneconomic interest in the environment, in clean water, is a sufficient base for a citizen suit under section 505.

Further, every citizen of the United States has a legitimate and established interest in the use and quality of the navigable waters of the United States. Thus, I would presume that a citizen of the United States, regardless of residence, would have an interest as defined in this bill reg'ardless of the location of the waterway and regardless of the issue involved.

Mr. Bayh. I thank my good friend from Maine. I believe that the conference provision will not prevent any person or group with a legitimate concern about water quality from bringing suit against those who violate the act or a permit, or against the Administrator if he fails to perform a nondiscretionary act. These sorts of citizen suits — in which a citizen can obtain an injunction but cannot obtain money damages for himself — are a very useful additional tool in enforcing environmental protection laws. I am glad to see that authority for such suits is included in this bill.

Committee on Public Works, A Legislative History of the Water Pollution Control Act Amendments of 1972, 221 (1973).

Congress by section 1365(a)(2) thus granted every citizen a litigable interest in the enforcement of all nondiscretionary acts and duties of the EPA.

A personal stake in the outcome is central to the question of standing. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962) (“a personal stake in the outcome — is the gist of the question of standing”). Plaintiff’s interest as one who uses and enjoys the Bay is sufficient to meet the liberal personal stake requirement applicable to environmental plaintiffs. See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72-74, 98 S.Ct. 2620, 2629-2631, 57 L.Ed.2d 595 (1978); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 678, 687, 93 S.Ct. 2405, 2411, 2416, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972).

Plaintiff’s standing fails, nevertheless, as the relief sought will not redress the inquiries alleged. It is a prerequisite of justiciability that judicial relief will prevent or redress the claimed injury, or that there is a significant likelihood of such redress. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38-39, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Pacific Legal Foundation v. State Energy Resources Conservation and Development Comm’n, 659 F.2d 903 at 910 (9th Cir. October 15, 1981); Bowker v. Morton, 541 F.2d 1347, 1347 (9th Cir. 1976). Redressability in this sense is an aspect of standing.

There is a close relation between the requirement of power to redress a claimed injury and the requirement of a causal link between the injury asserted and the relief claimed. See, eg., Duke Power Co., 438 U.S. at 74, 98 S.Ct. at 2631. The two requirements, however, do diverge. On the one hand, the causal connection requirement focuses upon the relation between the defendant or the defendant’s conduct and the plaintiff’s injury. Redressability requires an analysis of whether the court has the power to right or to prevent the claimed injury. In this respect, the potential for redress assures that the plaintiff’s stake in the lawsuit’s outcome remains high throughout the litigation.

The tie between the causation requirement and the court’s power to afford appropriate relief is usually strong enough to permit an “infer[ence] that correction of the defendant’s improper conduct will relieve the injury caused thereby,” Legal Aid Soc’y of Alameda County v. Brennan, 608 F.2d 1319, 1335 (9th Cir. 1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980); see also Davis v. U.S. Dept. of Housing and Urban Development, 627 F.2d 942 at 945, but the inference is broken if the injury alleged and the redress sought are so remote that no connection at all may be discerned. Boating Indus. Ass’ns v. Marshall, 601 F.2d 1376, 1379-80 (9th Cir. 1979); Bowker, 541 F.2d at 1349.

The court’s inability to redress the claimed injury may be manifest in various ways. Circumstances may indicate that the requested relief will actually worsen the plaintiff’s position. See, eg., NAACP, Boston Chapter v. Harris, 607 F.2d 514, 520 (1st Cir. 1979) (challenge to block grant recipient’s eligibility, if successful, would entail that grant program’s purposes would never be implemented in plaintiff’s city). The requested relief may be insufficient because of the court’s inability to formulate any meaningful decree. See, eg., Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d 258, 263-64 (D.C. Cir. 1980) (invalidation of international executive agreement will not redress injury because act of foreign sovereign necessary for relief); Boating Indus. Ass’ns v. Marshall, 601 F.2d 1376 (9th Cir. 1979) (rescission of administrative interpretive notice would not redress injury because no guarantee existed that rescission would later bind court). The focus, however, is always upon the ability of the court to redress the injury suffered by the plaintiff; if the wrong parties are before the court, or if the requested relief would worsen the plaintiff’s position, or if the court is unable to grant the relief that relates to the harm, the plaintiff lacks standing. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 at 100, 99 S.Ct. 1601 at 1608, 60 L.Ed.2d 66; Duke Power Co., 438 U.S. at 78, 98 S.Ct. at 2633; Bowker, 549 F.2d at 1349.

The standing conferred by the statute before us is comprehensive, but nothing in the legislative history indicates that Congress intended to ignore or to test the conventional requisites of justiciability. We find no congressional intent to confer standing to seek relief that will not actually redress the injuries the parties have incurred.⁸

In the instant case, redress for the wrong alleged by the plaintiff is beyond the limits of a judicial decree properly issued based on the allegations of the complaint. A temporary restraining order or other preliminary relief was sought. Gonzales waited almost one year before commencing discovery and, as a consequence, by the time the court below ruled on cross-motions for summary judgment, the two year planning period was over, and most of the original sums had been spent. The court below proceeded on the assumption that it could order ABAG to refund any illegally spent funds, but even if this were so it would not redress the claimed injury, and the court would not bring about the water pollution planning Gonzales sought. Any injunction against future action, moreover, would proceed necessarily on an unsubstantiated assumption that more grants would be forthcoming. The district court found that one additional grant had been made since commencement of the suit, but its purpose was to complete the work planned. Section 208 workplans have a limited life, and plaintiffs did not allege that defendants would require or receive further grants. “Plaintiffs may not rely on ‘the remote possibility, unsubstantiated by allegations of fact, that their situations might have been better had respondents acted otherwise, and might improve were the court to afford relief.’ ” Bowker v. Morton, 541 F.2d 1347, 1349 (9th Cir. 1976), quoting Warth v. Seldin, 422 U.S. 490, 507, 95 S.Ct. 2197, 2209, 45 L.Ed.2d 343 (1975). Such speculation is contrary to the requirement that it be “substantially likely” redress will occur. Duke Power Co., 438 U.S. at 79, 98 S.Ct. at 2633.

Allegations of unauthorized spending are not necessarily inconsistent with justiciability. We do not address the case where Congress has sought to subject misappropriations by a wayward bureaucracy to judicial review at the insistence of a member of a statutory class. Here the purpose of the statute is to insure that an interest in the environment and clean water, whether or not economically based, is a sufficient basis for a citizen suit. This grant of standing does not extend to a review of appropriations where the review and any judicial decree would be ineffective to vindicate environmental concerns. Accordingly, appellant lacks standing to maintain the action. Although the district court dismissed the action for reasons other than those we have addressed, the ultimate judgment of dismissal, was correct.

AFFIRMED.

1 . ABAG is a public entity comprised of 92 local governments. It is formed under California’s Joint Exercise of Powers Act. Cal. Gov’t Code §§ 6500-6516 (West 1980 & Supp. 1981).

2 . As the complaint originally was filed, Gonzales was joined by six other individuals and an agency which had competed with ABAG for the EPA grant. As the suit progressed, the agency and four of the individuals withdrew, leaving Gonzales and two others. Because all three plaintiffs have alleged identical interests here, that of injury to the environment, we will hereinafter refer to Gonzales only.

3 . This designation was made pursuant to the Clean Air Act, 42 U.S.C. §§ 7401 -7642 (1976).

4 . This designation was made pursuant to the Solid Waste Disposal Act, 42 U.S.C. §§ 6901 - 6956 (1976).

5 . In its brief, the EPA has informed us that ABAG has received at least $4,000,000 for the AQMP and $689,000 for the SWMP from sources other than section 208 grants.

6 . Under section 208(f)(2), 33 U.S.C. § 1288(f)(2), Congress provided full funding for “developing and operating a continuing area-wide waste treatment and management planning process” for two years. ABAG completed this two-year process on June 10, 1978. EPA gave its final approval in January of 1979.

7 . Gonzales points to four contracts, paid for with section 208 funds, which he claims are unrelated to water pollution planning. These contracts were let to: the Bay Area Air Pollution Control District (for $119,000); the Metropolitan Transportation Commission (for $86,-000); Comsis, Inc. (for $5,000); and Systems Applications, Inc. (for $7,000).

The total amount involved is $211,000, although Gonzales claims further misappropriations allegedly masked by ABAG’s accounting procedures.

8 . We therefore do not reach the issue addressed by Judge Wallace in his concurring opinion, the extent of constitutional limits on Congress’ ability to confer standing by statute. See generally Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982).