Citizen Lacks Standing To Bring Environmental Suit Against Gun Range When He Fails To Establish An Actual Impact On His Drinking Water
POLLOCK v. UNITED STATES DEPARTMENT OF JUSTICE (August 13, 2009)
For almost 100 years, the United States government has operated a gun range on the shores of Lake Michigan just north of Chicago. Bullets and shotgun pellets ended up in the lake. These bullets and pellets contain lead, a toxic substance potentially harmful to human health. Steven Pollock is an attorney who lives approximately 13 miles from the range. He is also the executive director of an environmental group interested in the protection of Lake Michigan. Pollock and the environmental group brought a suit against the United States, alleging that the release of lead into the lake violated several federal environmental laws. The plaintiffs supported their standing by submitting the affidavits of Pollock and another group member. They stated that they enjoyed watching birds and visiting parks in the general vicinity of the range, they drank water from the lake and they ate fresh and saltwater fish. The district court dismissed the complaint for lack of standing. Plaintiffs appeal.
In their opinion, Judges Cudahy, Manion and Tinder affirmed. The only issue before the Court was standing. The Court recited the general standing requirements -- a concrete threat of injury, an injury that is actual and not hypothetical, an injury traceable to the defendant's conduct, and an injury likely to be redressed through a favorable decision of a court. After reviewing some of the Supreme Court jurisprudence on standing, the Court addressed each of the injuries listed in the affidavits. First, the fact that Pollock drinks water from the lake does not support standing. He failed to carry his burden of showing that any alleged pollution affected his particular water supply. Second, Pollack’s statement that he eats "fresh water and ocean" fish does not even implicate Lake Michigan and does not support standing. Third, his general allegations that he enjoys "watching wildlife" and enjoys the "public areas" in and near Lake Michigan are not specific enough geographically to support standing. Since Pollock cannot establish his own standing, the environmental group cannot either.
Judge Cudahy concurred in a separate opinion. He criticized the Supreme Court for developing an "injury in fact" test that was "hopelessly confusing" to apply. Although he concurred, he found the alleged injury relating to drinking water to be a much closer question than the majority. Instead of relying on the failure of the allegations to create standing, Judge Cudahy looked at the evidence presented. Instead of a mere facial challenge to standing, the defendants here challenged the factual basis for Pollock's alleged injury. Judge Cudahy cited the government’s evidence that Pollock's community draws its drinking water from outside the area of the lake affected by the range and that the community has attributed the small amount of lead in its drinking water to pipes, not bullets. Relying on that evidence, Judge Cudahy concurred.
