Philip Morris USA v. CHESAOEAJE BAY

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



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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.

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