Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Russell, S.J.
PHILIP MORRIS USA INC.
v. Record No. 060858
THE CHESAPEAKE BAY FOUNDATION, INC.
OPINION BY
JUSTICE LAWRENCE L. KOONTZ, JR.
April 20, 2007
COMMONWEALTH OF VIRGINIA, EX REL.
STATE WATER CONTROL BOARD, ET AL.
v. Record No. 060866
THE CHESAPEAKE BAY FOUNDATION, INC.
FROM THE COURT OF APPEALS OF VIRGINIA
In these appeals, we consider whether the Court of Appeals
of Virginia correctly determined that an environmental
conservation organization has standing to appeal the approval of
a wastewater discharge permit affecting the James River issued
by the State Water Control Board. Specifically, the issue
presented in these appeals is whether the organization has
representational and individual standing to request judicial
review to challenge the issuance of the permit pursuant to the
provisions of Code § 62.1-44.29.
BACKGROUND
Philip Morris USA Inc. (Philip Morris), with headquarters
in Richmond, Virginia, is the nation’s largest cigarette
manufacturer. Philip Morris’ Park 500 facility in Chester,
Virginia is used to produce a reconstituted tobacco product.
Since 1972, the Park 500 facility has held a discharge permit
allowing the disposal of treated wastewater into the James River
at a point below Richmond. On October 28, 2002, Philip Morris
filed a permit renewal application under the Virginia Pollution
Discharge Elimination System. Code § 62.1-44.15.
The discharge of pollutants into public waterways is
regulated by the federal Clean Water Act of 1977, 33 U.S.C
§ 1251 et seq. (2000 & Supp. IV 2004). The Clean Water Act
allows states to administer the issuance of wastewater discharge
permits within their territories. The State Water Control Board
administers the wastewater discharge permit program in Virginia
under the State Water Control Law. Code §§ 62.1-44.2 through
62.1-44.34:28.
The Chesapeake Bay Foundation (the Foundation), a
non-profit corporation registered with the Virginia State
Corporation Commission and dedicated to protecting the
Chesapeake Bay and its tributaries, participated in the public
comment process regarding the renewal of the Park 500 facility
permit. The Foundation contended that the levels of nitrogen
and phosphorus in the wastewater discharged by the Park 500
facility would impair the river’s designated uses and kill or
injure fish and aquatic plants. Following a public hearing, the
2
State Water Control Board approved the renewal of Philip Morris’
Park 500 facility permit.
Thereafter, the Foundation timely filed a petition for
appeal in the Circuit Court of Chesterfield County. The
petition alleged that the State Water Control Board’s decision
to issue the permit violated various provisions of the federal
Clean Water Act and the State Water Control Law, citing 33
U.S.C. §§ 1311 and 1342 and Code §§ 62.1-44.2, 62.1-44.4, and
62.1-44.15. The Foundation based its assertion of legal
standing in an individual capacity to seek judicial review of
the board’s decision upon fifteen educational, recreational, and
Chesapeake Bay restorative programs on the James River that the
Foundation operates downstream from the Park 500 facility and
that would be harmed by the permitted discharge. The Foundation
further asserted that it had representational standing based
upon injury to unidentified members of the Foundation who
regularly use and enjoy the James River for swimming, boating,
kayaking, canoeing, sport fishing, and other aesthetic,
educational, and recreational pursuits. The Foundation alleged
that, as a result of the unlawful issuance of the discharge
permit, it had “suffered and will continue to suffer actual
and/or imminent injury” and that it “represents members and
3
citizens of the Commonwealth who have suffered and will continue
to suffer actual and imminent injury.”
Philip Morris and the Commonwealth, acting on behalf of the
State Water Control Board, filed demurrers asserting that the
Foundation had failed to plead sufficient facts to establish its
standing in an individual capacity. Philip Morris and the
Commonwealth further asserted that the Foundation’s claims of
representational standing were not authorized under any relevant
statute.
Following a hearing on these demurrers, the circuit court
issued an opinion letter dated January 4, 2005 in which it
concluded that the Foundation had neither individual nor
representational standing to pursue an appeal of the decision of
the State Water Control Board to issue the renewed permit. In
the opinion letter, subsequently incorporated by reference into
a final order entered on April 28, 2005, the circuit court found
that the Foundation had “suffered no particularized injury in
fact and does not have the authority to sue on behalf of a class
as required by the legislature.”1
1
The circuit court further found that the Foundation would
not be able to cure these defects by amending the petition for
appeal and, accordingly, although the Foundation had not yet
requested leave to amend, prospectively opined that such a
request would not be granted. The Foundation subsequently filed
a motion for reconsideration and request for leave to amend. On
4
The Foundation appealed the judgment of the circuit court
to the Court of Appeals. In that appeal, the Foundation
asserted that the circuit court incorrectly ruled that Virginia
does not recognize representational standing and contended that
it had pled sufficient facts to establish both representational
and individual standing under Code § 62.1-44.29.
Philip Morris and the Commonwealth contended, based on
prior Court of Appeals precedent, that representational standing
is not recognized in Virginia unless it is specifically
authorized by statute. See Pearsall v. Virginia Racing
Commission, 26 Va. App. 376, 381, 494 S.E.2d 879, 882 (1998).
They contended that Code § 62.1-44.29 does not expressly
authorize representational standing and that such standing may
not be implied from the statute. They further asserted that the
Foundation’s claims of injury were merely allegations of harm to
the environment which do not establish a basis for individual
standing. See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (hereinafter
“Laidlaw”).
April 8, 2005, the circuit court issued a second opinion letter
reiterating its findings from the January 4, 2005 opinion letter
and rejecting further authority cited by the Foundation. In
denying the motion for reconsideration in the final order, the
circuit court incorporated by reference this second opinion
letter.
5
On April 4, 2006, the Court of Appeals issued a published
opinion reversing the judgment of the circuit court. Chesapeake
Bay Foundation, Inc. v. Commonwealth, 48 Va. App. 35, 628 S.E.2d
63 (2006). The Court of Appeals concluded that the Foundation
had alleged sufficient facts in the petition filed in the
circuit court to establish individual standing. Id. at 57, 628
S.E.2d at 74. Additionally, the Court of Appeals noted that it
had already resolved the issue of whether Code § 62.1-44.29
provided for representational standing in a decision announced
after the circuit court had entered final judgment in this case.
Under nearly identical circumstances, the Court of Appeals had
determined that “Virginia recognizes representational standing
. . . and that Code § 62.1-44.29 confers this representational
standing in cases meeting its requirements.” Id. at 53, 628
S.E.2d at 72 (quoting The Chesapeake Bay Foundation, Inc. and
Citizens for Stumpy Lake v. Commonwealth, 46 Va. App. 104, 118,
616 S.E.2d 39, 46 (2005) (hereinafter “Stumpy Lake”)). Applying
that decision, the Court of Appeals held that sufficient facts
had been pled in the petition filed in the circuit court to
support the Foundation’s claim to have representational standing
for its members. Id. at 54, 628 S.E.2d at 73. Accordingly, the
Court of Appeals reversed the judgment of the circuit court
6
sustaining the respondents’ demurrers and remanded the case for
further proceedings. Id. at 57, 628 S.E.2d at 74.
Philip Morris and the Commonwealth filed separate petitions
for appeal in this Court challenging the judgment of the Court
of Appeals. We awarded appeals to both and consolidated the
appeals for argument.
DISCUSSION
The principles of appellate review that guide our
consideration of a circuit court’s judgment granting a demurrer
are well-established and do not need repetition at length here.
A demurrer admits the truth of the facts alleged in the pleading
to which it is addressed, as well as any facts that may be
reasonably and fairly implied and inferred from those facts.
See, e.g., Mattaponi Indian Tribe v. Commonwealth, 261 Va. 366,
370, 541 S.E.2d 920, 922 (2001); Rosillo v. Winters, 235 Va.
268, 270, 367 S.E.2d 717, 717 (1988). Accordingly, in reviewing
the judgment of the circuit court, an appellate court looks
solely to the allegations in the pleading to which the demurrer
was sustained. Moreover, because the issues in this case
present pure questions of law, we do not accord a presumption of
correctness to the judgment below, but review the issues de
novo. Board of Zoning Appeals v. Caselin Sys., 256 Va. 206,
211, 501 S.E.2d 397, 400 (1998); see also Crawford v. Haddock,
7
270 Va. 524, 528, 621 S.E.2d 127, 129 (2005); Ainslie v. Inman,
265 Va. 347, 352, 577 S.E.2d 246, 248 (2003).
Representational Standing
As they did in the circuit court and before the Court of
Appeals, Philip Morris and the Commonwealth contend principally
that representational standing to seek judicial review is not
recognized in Virginia unless expressly granted by statute.
With regard to the provisions of Code § 62.1-44.29 entitling
“any person” under specific circumstances to judicial review of
a State Water Control Board decision, they maintain that the
language of the statute tracks the requirements for finding
individual standing to challenge an administrative agency’s
action and, thus, they conclude that Code § 62.1-44.29 does not
grant representational standing to seek judicial review of the
decision of the State Water Control Board in this case.
Accordingly, they maintain that the Court of Appeals erred in
its previous holding in Stumpy Lake that Code § 62.1-44.29
grants representational standing in cases meeting its
requirements and in reiterating that holding in the present
case.
Initially, we think it helpful to clarify the procedural
history regarding Stumpy Lake. The Court of Appeals noted in
its opinion in the present case that “[a]lthough a petition for
8
appeal of the Stumpy Lake decision was filed, the Supreme Court
ultimately refused to consider the appeal on the merits.”
Chesapeake Bay Foundation, 48 Va. App. at 53, 628 S.E.2d at 72
(emphasis added). Accordingly, the Court of Appeals further
noted that its “decision in Stumpy Lake remains binding legal
precedent.” Id. Although the refusal of a petition for appeal
by this Court usually constitutes a decision on the merits, see
Sheets v. Castle, 263 Va. 407, 411, 559 S.E.2d 616, 619 (2002),
in this instance the Court of Appeals correctly discerned that
this Court dismissed the petition for appeal in Stumpy Lake as
procedurally barred under Rule 5:17(c) without reaching the
merits. The Court of Appeals based its holding in Stumpy Lake,
that the Commonwealth recognizes representational standing
generally, on its prior determination of that issue in Concerned
Taxpayers of Brunswick County v. Department of Environmental
Quality, 31 Va. App. 788, 525 S.E.2d 628 (2000). We accepted a
petition for appeal in that case and reversed the judgment of
the Court of Appeals on other grounds, without addressing the
issue of representational standing. Aegis Waste Solutions v.
Concerned Taxpayers of Brunswick County, 261 Va. 395, 544 S.E.2d
660 (2001).2 Accordingly, while the Court of Appeals is correct
2
As in this case, both the Commonwealth and the permit-
holder, Aegis Waste Solutions, brought independent appeals from
9
that its prior panel decisions are binding precedent, unless and
until reversed by the Court of Appeals sitting en banc or by
this Court on appeal, the present case presents the first
opportunity for this Court to review whether representational
standing is recognized in Virginia, and if so, under what
circumstances.
The authority to issue wastewater discharge permits is
granted to Virginia pursuant to the federal Clean Water Act, 33
U.S.C. § 1342(b)(2000 & Supp. IV 2004). The Clean Water Act is
administered by the Environmental Protection Agency (EPA). The
EPA’s stated policy governing the delegation of authority to the
states to issue wastewater discharge permits provides that:
All States that administer or seek to administer
a program under this part shall provide an opportunity
for judicial review in State Court of the final
approval or denial of permits by the State that is
sufficient to provide for, encourage, and assist
public participation in the permitting process. A
State will meet this standard if State law allows an
opportunity for judicial review that is the same as
that available to obtain judicial review in federal
court of a federally-issued NPDES permit (see § 509 of
the Clean Water Act). A State will not meet this
standard if it narrowly restricts the class of persons
who may challenge the approval or denial of permits.
40 C.F.R. § 123.30 (emphasis added).
the decision of the Court of Appeals in Concerned Taxpayers of
Brunswick County.
10
Code § 62.1-44.29 provides for judicial review of decisions
of the State Water Control Board. The current version of Code
§ 62.1-44.29 provides that:
Any owner aggrieved by, or any person who has
participated, in person or by submittal of written
comments, in the public comment process related to, a
final decision of the Board under §§ 62.1-44.15(5),
62.1-44.15(8a), (8b), and (8c), 62.1-44.15:5, 62.1-
44.16, 62.1-44.17, 62.1-44.19 or § 62.1-44.25, whether
such decision is affirmative or negative, is entitled
to judicial review thereof in accordance with the
provisions of the Administrative Process Act (§ 2.2-
4000 et seq.) if such person meets the standard for
obtaining judicial review of a case or controversy
pursuant to Article III of the United States
Constitution. A person shall be deemed to meet such
standard if (i) such person has suffered an actual or
imminent injury which is an invasion of a legally
protected interest and which is concrete and
particularized; (ii) such injury is fairly traceable
to the decision of the Board and not the result of the
independent action of some third party not before the
court; and (iii) such injury will likely be redressed
by a favorable decision by the court.
However, prior to 1996, Code § 62.1-44.29 limited the right
to seek judicial review of a decision of the State Water Control
Board to aggrieved owners of permitted facilities. See Stumpy
Lake, 46 Va. App. at 111-12, 616 S.E.2d at 43; former Code
§ 62.1-44.29(1)(1992). In 1996, the federal government began to
voice its concerns that several states, including Virginia, had
judicial review standing requirements for various programs
administered by the states under delegatory authority of a
federal agency that did not comply with 40 C.F.R. § 123.30 and
11
similar provisions because they narrowly restricted the class of
persons who may challenge the approval or denial of permits.
See, e.g., 61 Fed. Reg. 20972 (May 8, 1996).
Also in 1996, the United States Court of Appeals for the
Fourth Circuit issued its opinion in Virginia v. Browner, 80
F.3d 869 (4th Cir. 1996), cert. denied, 519 U.S. 1090 (1997).3
In Browner, Virginia challenged the EPA’s refusal to approve the
State’s proposed plan for delegation of authority to administer
the federal Clean Air Act to the Virginia Air Pollution Control
Board. In late 1993, and again in early 1994, the Commonwealth
had submitted a proposed permit program under the Clean Air Act
to the EPA. Id. at 873-75. The EPA found the proposal to be
deficient in several respects, including a failure to provide
for adequate judicial review under Code § 10.1-1318. See id. at
875.
Like the then effective language of Code § 62.1-44.29, the
judicial review provisions of Code § 10.1-1318 limited standing
for judicial review to owners aggrieved by decisions of the
state’s permitting agency. Id. at 876. The Fourth Circuit held
that the EPA’s interpretation that a state must, at a minimum,
provide judicial review of permitting decisions to any person
3
Carol M. Browner was the Administrator of the EPA and was
sued in her official capacity.
12
who would have standing under Article III of the United States
Constitution was correct and, accordingly, the EPA’s decision
denying delegatory permitting authority under the existing
statutory scheme was proper. Browner, 80 F.3d at 876-77.
In response to Browner, but while that decision was on
appeal to the United States Supreme Court, the General Assembly
amended both Code § 10.1-1318 and Code § 62.1-44.29, as well as
Code § 10.1-1457, the judicial review provision of the Virginia
Waste Management Act, to include nearly identical provisions
allowing any person aggrieved of a decision of the respective
permitting authority to seek judicial review. These amendments
were made effective on the condition that any subsequent
reversal of the decision in Browner would repeal the amendments
and revert the statutes to their original forms. 1996 Acts ch.
1032. The General Assembly subsequently and appropriately
acknowledged that the Supreme Court’s denial of certiorari in
Browner effectively invalidated the prior provisions of Code
§ 10.1-1318, and by implication those of Code § 10.1-1457 and
Code § 62.1-44.29, and, accordingly, the 1996 amendments to
those statutes became final. 1997 Acts ch. 520.
In interpreting a statute, we presume that the General
Assembly acted with full knowledge of the law in the area in
which it dealt. United Masonry, Inc. v. Riggs National Bank,
13
233 Va. 476, 480, 357 S.E.2d 509, 512 (1987); Powers v. County
School Board, 148 Va. 661, 669, 139 S.E. 262, 264 (1927). It is
clear from its language that the 1996 amendment to Code § 62.1-
44.29 was intended to expand the availability of judicial review
of permitting decisions to be coextensive with the federal
requirements for judicial review of “a case or controversy
pursuant to Article III of the United States Constitution.” The
three requirements for making such a determination are expressly
provided in the statute. The issue before us then becomes
whether in adopting those requirements, the General Assembly
intended to grant not only individual standing for persons other
than aggrieved permit holders, which it unquestionably did, but
for representational standing as well.
Representational standing essentially allows an
organization to bring a suit on behalf of its members and was a
well-established principle in federal law at the time of the
1996 amendment of Code § 62.1-44.29. We presume that the
General Assembly was aware of this circumstance when it amended
Code § 62.1-44.29. Accordingly, we will look to the federal
court’s requirements for establishing representational standing
to determine whether the Foundation may claim representational
standing in seeking judicial review of the decision of the State
Water Control Board under this statute.
14
In Warth v. Seldin, 422 U.S. 490 (1975), the United States
Supreme Court addressed the requirements for representational
standing. The Court held that an organization may bring suit on
behalf of its members where those members suffer immediate or
threatened injury as a result of the challenged action and there
would be a justiciable case had the members themselves brought
the action. Id. at 511. Further, the Court held that the
nature of the claim and the relief sought must not require the
individual participation of the injured members in order to
properly resolve the case. Id.
In Hunt v. Washington State Apple Advertising Comm’n, 432
U.S. 333 (1977), the Supreme Court further clarified
representational standing and provided a three prong test based
on the holding in Warth. The Court explained that an
organization will have representational standing when “(a) its
members would otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane to the
organization’s purpose; and (c) neither the claim asserted nor
the relief requested requires the participation of individual
members in the lawsuit.” Id. at 343.
The first prong of the representational standing test
requires that the representing organization include “at least
one member with standing to present, in his or her own right,
15
the claim . . . pleaded by the association.” United Food and
Commercial Workers Union Local 751 v. Brown Group, Inc., 517
U.S. 544, 555 (1996). This is simply a requirement that any
claim of standing be fundamentally based on the individual
standing test laid out in Lujan v. Defenders of Wildlife, 504
U.S. 555 (1992), the requirements of which are reiterated in
Code § 62.1-44.29.
We begin by examining whether the Foundation has alleged
sufficient facts to establish individual standing for at least
one of its members. In order to satisfy the first prong of the
Lujan test a plaintiff must have pled that at least one of its
members has an “injury in fact.” In an environmental suit,
allegations of injury to the environment are not sufficient to
show a legally protected interest. Laidlaw, 528 U.S. at 181;
Piney Run Pres. Ass’n v. County Comm’rs. of Carroll County, 268
F.3d 255, 263 (4th Cir. 2001). However, “environmental
plaintiffs adequately allege injury in fact when they aver that
they use the affected area and are persons ‘for whom the
aesthetic and recreational values of the area will be lessened’
by the challenged activity.” Laidlaw, 528 U.S. at 183 (quoting
Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). Only an
imminent injury is required. A plaintiff is not obligated to
“await the consummation of a threatened injury to obtain
16
preventive relief.” Friends of the Earth, Inc. v. Gaston Copper
Recycling Corp., 204 F.3d 149, 160 (4th Cir. 2000)(hereinafter
“Gaston Copper”).
In their petition filed in the circuit court, the
Foundation alleges that “[t]he discharge of nutrients in amounts
and concentrations authorized by the unlawful [p]ermit . . . has
and will continue to cause injury to the [Foundation] and . . .
its members who regularly use and enjoy the James River, a
tributary of the Chesapeake Bay[,] for swimming, boating,
kayaking, canoeing, sport fishing, and other educational and
recreational pursuits.” (Emphasis added.) These constitute
allegations of an actual and ongoing injury to the recreational
interests of members of the Foundation sufficient to satisfy the
injury in fact prong of Lujan.
Philip Morris and the Commonwealth contend that the alleged
injury does not represent a legally protected interest and that
generalized grievances of the public are not sufficient to grant
standing. See Gaston Copper, 204 F.3d at 156. However, the
Foundation’s petition alleges that the issued permit fails to
comply with federal and state statutory limits for the
protection of designated uses of waterways. Under 9 VAC § 25-
260-10(A), all state waters are designated for certain
“recreational uses, e.g., swimming and boating; the propagation
17
and growth of a balanced, indigenous population of aquatic life,
including game fish, which might reasonably be expected to
inhabit them; and the production of edible and marketable
natural resources, e.g., fish and shellfish.” Additionally,
the State Water Control Board is required to develop “water
quality standards” or “criteria” in order to “protect the
designated use[s]” of the body of water to which they apply.
See 9 VAC § 25-260-5; 9 VAC § 25-260-20. Thus, if true, the
Foundation’s petition shows that the alleged injury comes as a
result of a failure by the State Water Control Board to protect
the designated uses of the James River.
We therefore hold that the Foundation has sufficiently pled
a concrete, particularized and legally protected injury to at
least one of its members. At the pleading stage, the Foundation
is not required to name those members.
The second prong of Lujan requires a causal connection
between the injury alleged and the actions of defendants. More
specifically, in the context of a challenge to a State Water
Control Board decision, a plaintiff must allege that the “injury
is fairly traceable to the decision of the Board and not the
result of the independent action of some third party not before
the court.” Code § 62.1-44.29(ii); see also Lujan, 504 U.S. at
560. The “fairly traceable” requirement ensures that there is a
18
genuine nexus between a plaintiff’s injury and a defendant’s
alleged illegal conduct. But traceability “ ‘does not mean that
plaintiffs must show to a scientific certainty that defendant’s
effluent . . . caused the precise harm suffered by the
plaintiffs.’ ” Gaston Copper, 204 F.3d at 161 (quoting Natural
Resources Defense Council, Inc. v. Watkins, 954 F.2d 974, 980 &
n.7 (4th Cir. 1992)).
The Foundation’s petition alleges that the State Water
Control Board’s decision to issue the permit will excessively
increase the amount of nutrients in the James River. The
increase in nutrients causes algae blooms that harm aquatic life
and increase the turbidity of the James River. As a direct
result, the James River is changed in such a way as to harm the
interest of the Foundation’s members. As is common in
environmental cases, there is admittedly more than one step in
the causal chain. Despite this, the petition alleges sufficient
facts, if true, to support the conclusion that there is a clear
connection between the injury asserted and the decision of the
State Water Control Board. See Mattaponi Indian Tribe, 261 Va.
at 370, 541 S.E.2d at 922 (stating that in a demurrer “the facts
alleged, and all reasonable inferences flowing from those facts”
are taken as true).
19
The final prong of the individual standing test requires an
injury that “will likely be redressed by a favorable decision by
the court.” Code § 62.1-44.29(iii); see also Lujan, 504 U.S. at
561. Standing is limited to injuries where a court may
reasonably be expected to find a remedy. Claims must be such
that a plaintiff “personally would benefit in a tangible way
from the court’s intervention.” Warth, 422 U.S. at 508. In
appropriate cases civil penalties may be used to “encourage
defendants to discontinue current violations and deter them from
committing future ones.” Laidlaw, 528 U.S. at 186. A complete
solution to the alleged injury is not required. It is enough to
be able to address the harms of the named defendants. See
American Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 520
(4th Cir. 2003).
The Foundation seeks to have the discharge permit set aside
and for the discharge into the James River to cease until such
time as Philip Morris demonstrates that it is able to comply
with the state designated use for the waterway. This result is
a civil remedy that is available to an appropriate court of
review. As such, the injury is redressable through a favorable
decision by the court.
20
Based on the preceding analysis, we hold that the
Foundation has sufficiently pled an injury to at least one
member that would grant Article III standing.
The additional two prongs for representational standing
described in Hunt are not significant issues in this case.
Philip Morris and the Commonwealth have not contested that the
interests the Foundation seeks to protect are germane to its
purpose or that the relief requested requires the participation
of the individual members. The Foundation is an organization
established to protect the waterways of the Chesapeake Bay, of
which the James River is one. An action to protect the James
River from wastewater discharge that may be harmful to the river
and bay is within that organizational purpose. Additionally,
the remedy sought by the Foundation will address the asserted
injury and will not require the participation of individual
members. Accordingly, we hold that the second and third prongs
of the test for representational standing have been met.
Having concluded that the petition filed in the circuit
court has met, under the criteria of Code § 62.1-44.29, all the
requirements that would grant Article III standing for an
organization seeking representational standing, we hold that the
statute authorizes representational standing to a corporate
person to seek judicial review of a decision of the State Water
21
Control Board and that the Foundation’s petition was thus
sufficient to survive the demurrers of Philip Morris and the
Commonwealth.
We emphasize that our holding in this case is limited to
instances where representational standing is provided for by a
statute requiring Article III standing to seek judicial review
of an action by a state agency under delegatory authority from
the federal government. We are not called upon to consider
under the facts of this case whether Virginia would recognize
representational standing under any circumstances other than
those presented by the facts of this case.
Individual Standing
We turn now to consider the assertion of Philip Morris and
the Commonwealth that the Foundation lacked individual standing
to seek judicial review in this case. Code 62.1-44.29 allows
“any person who has participated, in person or by submittal of
written comments, in the public comment process related to, a
final decision of the Board” to obtain judicial review where
there is Article III standing. Code § 62.1-44.3 defines a
“‘Person’” as “an individual, corporation, partnership,
association, governmental body, municipal corporation or any
other legal entity.” The Foundation is a registered corporation
and therefore falls within the relevant definition of person.
22
In order to have Article III individual standing, the
Foundation must have pled facts sufficient to meet the test in
Lujan and Code § 62.1-44.29 as previously described. The
analysis is substantially similar to the analysis for individual
standing of the organization’s members.
The Foundation has alleged injury to itself as an
organization separate and apart from any injury to its members.
In its petition, the Foundation alleges that it “operates
fifteen (15) educational programs, which include projects in and
around the segment of the James River impacted by the unlawful
nutrient discharges authorized by the challenged Permit. Among
the [Foundation’s] programs that are and will continue to be
adversely affected by the unlawful nutrient discharges . . . is
the replenishment of underwater aquatic grasses in the vicinity
of and downstream from the Philip Morris facility.” The
Foundation’s petition further alleges that the excessive
nitrates and phosphates in the wastewater discharge cause algae
blooms that impact the usefulness of the James River for the
Foundation’s educational and recreational programs. The
wastewater discharge also harms aquatic plants such as the ones
included in the Foundation’s planting activities. Based on
these allegations, we hold that the Foundation has alleged
23
sufficient facts to establish an “injury in fact” to itself as
an organization.
The harms alleged on an individual and representational
basis are similar. The reasoning in the previous discussion of
causal connection and redressability also applies to the
Foundation’s assertion of individual standing and does not need
to be repeated here. The facts alleged in the Foundation’s
petition, if true, establish a causal connection with its injury
and that the relief sought is redressable by the courts.
CONCLUSION
In sum, we hold that Code § 62.1-44.29 provides for
representational standing, by an appropriate entity, to seek
judicial review of a case decision by the State Water Control
Board, as well as for individual standing. We further hold that
in the present case the Foundation’s petition adequately
establishes, for purposes of surviving the demurrers filed by
Philip Morris and the Commonwealth, its representational and
individual standing to seek judicial review of the State Water
Control Board’s decision to renew the permit with regard to
Philip Morris’ Park 500 facility.
For these reasons, the judgment of the Court of Appeals
will be affirmed.
Affirmed.
24