COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Senior Judge Coleman
Argued at Richmond, Virginia
CHESAPEAKE BAY FOUNDATION, INC.
OPINION BY
v. Record No. 1175-05-2 JUDGE LARRY G. ELDER
APRIL 4, 2006
COMMONWEALTH OF VIRGINIA, ex rel.
STATE WATER CONTROL BOARD,
DEPARTMENT OF ENVIRONMENTAL QUALITY,
ROBERT G. BURNLEY, DIRECTOR, DEPARTMENT OF
ENVIRONMENTAL QUALITY AND
PHILIP MORRIS USA INC.
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Frederick G. Rockwell, III, Judge
Jon A. Mueller (Brian L. Buniva; LeClair Ryan, on briefs), for
appellant.
John K. Byrum, Jr., Assistant Attorney General (Judith Williams
Jagdmann, Attorney General; Roger L. Chaffe, Senior Assistant
Attorney General, on brief), for appellee Commonwealth of
Virginia, ex rel. State Water Control Board, Department of
Environmental Quality, and Robert G. Burnley, Director,
Department of Environmental Quality.
Brooks M. Smith (Andrea W. Wortzel; Hunton & Williams LLP, on
brief), for appellee Philip Morris USA Inc.
The Chesapeake Bay Foundation, Inc. (CBF) appeals from a decision dismissing its
challenge to a permit issued to Philip Morris USA Inc. by the State Water Control Board
(SWCB), upon the recommendation of the Department of Environmental Quality (DEQ) and
Director Robert Burnley. CBF contends the circuit court erroneously granted the demurrers of
SWCB, DEQ, Burnley, and Philip Morris. CBF argues the court erroneously held that Virginia
law does not provide for representational standing and that CBF failed to plead sufficient facts to
demonstrate standing to sue in its own right. In the alternative, CBF contends the trial court
erroneously denied its motion for leave to amend its petition to allege additional facts sufficient
to establish standing. Based on this Court’s decision in Chesapeake Bay Foundation and
Citizens of Stumpy Lake v. Commonwealth, 46 Va. App. 104, 616 S.E.2d 39 (2005) [hereinafter
Stumpy Lake], we hold the trial court’s conclusion that Virginia law does not permit
representational standing was erroneous. We hold further the facts alleged in CBF’s petition for
appeal, accepted as true, were sufficient to survive the appellees’ demurrers. Thus, we reverse
the trial court’s dismissal of the petition with prejudice without addressing the trial court’s ruling
on CBF’s request for leave to amend, and we remand to the trial court for further proceedings
consistent with this opinion.
I.
BACKGROUND
Because this case involves the granting of a demurrer, we accept as true, for purposes of
reviewing this motion only, all facts alleged in the petition. See Code § 8.01-273; Runion v.
Helvestine, 256 Va. 1, 7, 501 S.E.2d 411, 415 (1998); Stumpy Lake, 46 Va. App. at 107, 616
S.E.2d at 41.
CBF is a nonprofit Maryland corporation that is registered to do business in Virginia;
maintains offices in Richmond and Norfolk; and has approximately 40,000 members who reside
in Virginia. It is the largest conservation organization dedicated solely to protecting the
Chesapeake Bay watershed and its tributaries, including the James River.
In 2004, the SWCB reissued to Philip Morris a permit under the Virginia Pollution
Discharge Elimination System (VPDES), allowing it to discharge into the James River, from its
Park 500 Plant in Chester, wastewater containing, inter alia, certain levels of nitrogen and
phosphorus. CBF actively participated in the public comment process related to the permit.
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After the permit’s reissuance, CBF filed a petition for appeal in the Circuit Court of Chesterfield
County alleging that the levels of certain substances Philip Morris was allowed to discharge
under the permit exceeded applicable state and federal standards.
In its twenty-five page petition, CBF alleged that it
meets the legal standing standards required for obtaining judicial
review [of the permit] under Va. Code Ann. § 62.1-44.29. The
CBF has suffered and will continue to suffer actual and/or
imminent injury and represents members and citizens of the
Commonwealth who have suffered and will continue to suffer
actual and imminent injury:
a. resulting from the unlawful re-issuance of the Permit
and authorizing Philip Morris to discharge nitrogen and
phosphorus pollution to this water quality limited and “impaired
waters” segment of the James River in amounts and concentrations
that do not ensure that Virginia [water quality standards] WQS will
be maintained;
b. the injuries suffered are directly traceable to the
unlawful “case decision” rendered by the SWCB and implemented
by Burnley by its decision to re-issue the Permit to Philip Morris;
and
c. the injuries suffered by CBF and its members are
capable of effective and meaningful redress by a favorable
decision of this Court setting aside the Permit, and remanding the
“case decision” to the SWCB with instructions to re-issue the
Permit . . . and ordering the Permit to include numeric effluent
limitations for nitrogen and phosphorus in concentrations and
amounts that will ensure that the Virginia WQS for this segment of
the James River will be maintained as is required by law and valid
regulations.
CBF provided more detailed information regarding the ways in which it alleged it and its
members would be harmed by the permit. It also alleged an equal protection violation,
contending Philip Morris’s permit was more favorable than one issued to the Crooked Run
Sewage Treatment Facility on the same day. CBF asked the court to suspend the challenged
permit and requested various other forms of relief.
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Philip Morris and the Commonwealth filed demurrers and motions to dismiss,
contending, inter alia, that no relevant statute authorized CBF to sue in a representational
capacity; that CBF failed to plead sufficient facts to show standing to sue in its own right; that
the equal protection claim failed to state a claim upon which relief could be granted; that DEQ
and Director Burnley were improper parties; and that much of the relief sought was beyond that
authorized by the Administrative Process Act.
On January 4, 2005, after hearing argument on the motions, the circuit court granted the
motions, reasoning as follows:
[CBF] has not alleged any . . . specific injury-in-fact.
While the CBF asserts that the “permitted discharges will cause
injury to the CBF and its programs as well as its members,” (Pet.
P. 5), the CBF fails to state what impact the discharge will have on
its educational or restorative programs, the operation of its vessel,
the recreational or aesthetic activities of its members or its
replenishment of underwater grasses in segments of the James
River.5
5
To the contrary, the CBF states that phosphorus, nitrogen, and
other effluent contents will foster plant growth. (Pet. 8-9).
Consequently, the Court finds that the CBF does not have standing
as an individual to sue.
The court ruled that no Virginia statute authorized CBF to sue in a representative capacity. The
court also refused to grant CBF leave to amend its petition. The court granted the demurrers and
noted that it was not necessary to “address the ancillary issues of equal protection, unavailability
of relief prayed for, and misjoinder of parties.”
CBF then filed a motion for reconsideration or, in the alternative, for leave to amend its
petition for appeal “to allege in greater detail its Article III ‘case’ or ‘controversy’ standing
element required by Va. Code § 62.1-44.29.” The trial court denied the motion, again rejecting
CBF’s representational standing claim and its request for leave to amend. On the latter issue, the
court reasoned that CBF “failed to initially plead any [injuries in fact],” that “any allegation of
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specific injury to the CBF will be new,” and that “[s]uch an addition is impermissible.” On April
28, 2005, the court entered an order denying the motion to amend and granting appellees’
motions to dismiss with prejudice.
II.
ANALYSIS
“A demurrer admits the truth of all material facts properly pleaded. . . . [T]he facts
admitted are those expressly alleged, those which fairly can be viewed as impliedly alleged, and
those which may be fairly and justly inferred from the facts alleged.” Rosillo v. Winters, 235
Va. 268, 270, 367 S.E.2d 717, 717 (1988) (emphases added). A demurrer does not “admit
‘inferences or conclusions from facts not stated.’” Arlington Yellow Cab v. Transp., Inc., 207
Va. 313, 319, 149 S.E.2d 877, 881 (1966) (quoting 71 C.J.S. Pleading § 261, at 528, 529).
A demurrer “does not admit the correctness of the pleader’s conclusions of law. [Its]
function . . . is to test the legal sufficiency of the facts. Because our review of a circuit court’s
decision sustaining a demurrer addresses that same legal question, we review the circuit court’s
judgment de novo.” Stumpy Lake, 46 Va. App. at 110-11, 616 S.E.2d at 42 (citations omitted).
Our resolution of this appeal turns first on whether CBF pleaded sufficient facts to
demonstrate standing to challenge SWCB’s issuance of the VPDES permit to Philip Morris.
“A plaintiff has standing to institute a . . . proceeding if it has a
‘justiciable interest’ in the subject matter of the proceeding, either
in its own right or in a representative capacity. In order to have a
‘justiciable interest’ in a proceeding, the plaintiff must demonstrate
an actual controversy between the plaintiff and the defendant, such
that his rights will be affected by the outcome of the case.”
Id. at 119-20, 616 S.E.2d at 47 (quoting W.S. Carnes, Inc. v. Bd. of Supers., 252 Va. 377, 383,
478 S.E.2d 295, 299 (1996) (citations omitted)) (emphasis added). CBF asserts the trial court
incorrectly ruled that Virginia does not recognize representational standing and that it has
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pleaded facts sufficient to prove both standing to sue in its own right and representational
standing on behalf of its members. We agree on all counts.
A.
STANDING OF CBF TO SUE IN ITS OWN RIGHT
Code § 62.1-44.29, the State Water Control Law’s judicial review provision, provides as
follows:
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 [various
provisions of the State Water Control Law], whether such decision
is affirmative or negative, is entitled to judicial review thereof in
accordance with the provisions of the Administrative Process Act
. . . 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.
The parties agree that in order for CBF to plead sufficient facts to establish standing to sue in its
own right, it must meet this three-part test. “While each of the three prongs of standing should
be analyzed distinctly, their proof often overlaps.” Friends of the Earth, Inc. [(FOE)] v. Gaston
Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000) (reversing dismissal, following
six-day bench trial, for lack of standing based on “holding that none of plaintiffs’ members had
shown injury in fact”).
1. Injury in Fact
The injury alleged to support a claim of standing must be both (a) concrete and
particularized and (b) actual or imminent, thereby “preclud[ing] those with merely generalized
grievances from bringing suit to vindicate an interest common to the entire public.” Id. at 156.
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Such an injury may be to the plaintiff’s economic interests, but it may also be to the plaintiff’s
“aesthetic or recreational interests.” Id. at 154. “Aesthetic and environmental well-being, like
economic well-being, are important ingredients of the quality of life in our society, and the fact
that particular environmental interests are shared by the many rather than the few does not make
them less deserving of legal protection through the judicial process” as long as “the party seeking
review [is] himself among the injured.” Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S. Ct.
1361, 1366, 31 L. Ed. 2d 636, 643 (1972). Thus, “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.” FOE
v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 183, 120 S. Ct. 693, 705, 145
L. Ed. 2d 610, 628 (2000); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 562-63, 112 S. Ct.
2130, 2137, 119 L. Ed. 2d 351, 365 (1992) (“[T]he desire to use or observe an animal species,
even for purely aesthetic purposes, is undeniably a cognizable interest for purpose of standing.”).
Although the injury alleged must be concrete and particularized, it “‘need not be large[;]
an identifiable trifle will suffice.’” Gaston Copper, 204 F.3d at 156 (quoting Sierra Club v.
Cedar Point Oil Co., 73 F.3d 546, 557 (5th Cir. 1996) (internal quotation marks omitted)).
Further, “[t]he Supreme Court has consistently recognized that threatened rather than actual
injury can satisfy Article III standing requirements. ‘One does not have to await the
consummation of threatened injury to obtain preventive relief. If the injury is certainly
impending that is enough.’” Id. at 160 (quoting Babbitt v. United Farm Workers Nat’l Union,
442 U.S. 289, 298, 99 S. Ct. 2301, 2308, 60 L. Ed. 2d 895, 906 (1979) (internal quotation marks
omitted)) (citations omitted). Where the claim of injury is based on allegations that a company is
discharging chemicals in quantities that exceed those specified in a permit and the discharge
restrictions were “set at the level necessary to protect the designated uses of the receiving
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waterways, the[] violation [of the discharge restrictions] necessarily means that these
[designated] uses may be harmed.” Id. at 156-57.
Here, CBF has alleged sufficient facts to claim both the existence of an injury in fact and
to allege the injury is to itself as an organization.
CBF’s claim of injury is similar to the claim made in Gaston Copper. Gaston Copper
involved an allegation that the company was violating its permit, which contained limits
formulated to protect the statutorily designated uses of the receiving waterways. Id. Here,
CBF’s allegation is that the permit itself fails to comply with federal and state statutory limits
formulated to protect the designated uses of the receiving waterways, thereby involving tacit
governmental approval of the alleged polluting via issuance of the permit. CBF cites 9 VAC
25-260-10(A), which provides that all state waters, which necessarily include the James River
segment into which the subject Philip Morris facility discharges its wastewater, are designated
for certain “recreational uses, e.g., swimming and boating; the propagation 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.” Further, the SWCB is charged with developing “water quality standards” or
“criteria” which, if met, “will generally 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. The SWCB’s general criteria
provide that
[s]tate waters . . . shall be free from substances attributable to
sewage, industrial waste, or other waste in concentrations,
amounts, or combinations which contravene established standards
or interfere directly or indirectly with designated uses of such
water or which are inimical or harmful to human, animal, plant, or
aquatic life. Specific substances to be controlled include . . .
substances that produce . . . turbidity . . . and substances which
nourish undesirable or nuisance aquatic plant life.
9 VAC 25-260-20(A).
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Thus, here, as in Gaston Copper, an allegation of “the[] violation [of the discharge
restrictions, if proved,] necessarily means that these [designated] uses may be harmed.” Gaston
Copper, 204 F.3d at 156-57. Further, CBF alleged with specificity that the unlawful discharges
of nitrogen and phosphorus “nourish undesirable or nuisance aquatic plant life” by “assisting in
the formation of nuisance algae blooms” and increase chlorophyll-a, turbidity and other things
that contribute to the failure of the relevant segment of the James River to meet state and federal
water quality standards. These statements allege a concrete and imminent threat of harm to “the
propagation and growth of a balanced, indigenous population of aquatic life, including game
fish, which might reasonably be expected to inhabit [the subject waters].” See 9 VAC
25-260-10(A).
CBF further alleged with particularity that the organization itself is “among [those]
injured” by the alleged violation. Morton, 405 U.S. at 735, 92 S. Ct. at 1366, 31 L. Ed. 2d at
643. CBF, sometimes using its own vessel, “The Chesapeake,” “travels the James River
impaired waters around and downstream from the [Philip Morris] facility for its educational,
recreational, and Bay restorative efforts, all of which are harmed by the continuing excessive
discharge of nutrients . . . as authorized by the challenged permit.” CBF detailed one particular
program that “[is] and will continue to be adversely affected by the unlawful nutrient
discharges”--its “replenishment of underwater aquatic grasses in the vicinity of and downstream
from the Philip Morris facility.” CBF explained that it
has and continues to operate programs designed to reduce the
effect of [discharges such as Philip Morris’s], including in and
downstream from the water quality impaired segment of the James
River where Philip Morris discharges its wastewater, including
planting underwater aquatic grasses necessary for the healthy
maintenance and replenishment of aquatic plant, fish and animal
life destroyed in part by [the excessive effluent discharges allowed
under the permit].
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CBF also alleged that it expended over $100,000 on its James River replanting program during
the previous fiscal year and that it sponsored an average of 84 trips each year for that purpose, in
which approximately 1,800 volunteers participate. Sufficiently implicit, if not explicit, in these
allegations is that the allegedly excessive discharge of effluents allowed by the permit has
contributed to the destruction of indigenous aquatic plant, fish and animal life, and that the
discharge, if allowed to continue, threatens to do the same to the grasses CBF has planted in an
effort to combat the harm caused by the allegedly unlawful ongoing discharges. Thus, CBF has
alleged sufficient economic, aesthetic, and recreational injuries to itself, injuries that are both
concrete and particularized and actual or imminent, to establish standing to maintain suit.
2. Causal Connection
To withstand the appellees’ demurrer, the petition must also allege the claimed 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.
The “fairly traceable” requirement ensures that there is a 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.’” . . . Rather than
pinpointing the origins of particular molecules, a plaintiff “must
merely [allege] that a defendant discharges a pollutant that causes
or contributes to the kinds of injuries alleged” in the specific
geographic area of concern. In this way a plaintiff demonstrates
that a particular defendant’s discharge has affected or has the
potential to affect his interests.
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) (quoting Public Interest Group of New Jersey, Inc. v.
Powell Duffryn Terms., Inc., 913 F.3d 64, 72 (3d Cir. 1990))) (internal quotation marks omitted
from and emphasis added in last quoted passage).
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The same allegations cited above as being sufficient to plead injury in fact also constitute
facts sufficient to plead the necessary causal nexus in this case. CBF alleges that SWCB’s
issuance of the permit allows the discharge of effluents at levels in excess of those permitted by
state and federal law and that Philip Morris’s discharge of nitrogen and phosphorus in
concentrations and amounts authorized by the permit (1) contributes to the growth of
“undesirable or nuisance plant life” by “assisting in the formation of nuisance algae blooms” and
increasing chlorophyll-a, turbidity and other things that contribute to the failure of the relevant
segment of the James River to meet state and federal water quality standards, (2) contributes to
the destruction of “aquatic plant, fish and animal life,” and (3) contributes to the destruction of
aquatic grasses planted by CBF in an effort to foster “the healthy maintenance of replenishment
of aquatic plant, fish and animal life.” CBF need not allege that Philip Morris’s Park 500 Plant is
the only facility discharging effluents capable of causing this harm. “It would be strange indeed
if polluters were protected from suit simply by virtue of the fact that others are also engaging in
the illegal activity.” American Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 520 (4th Cir.
2003).
3. Redressability
Finally, a plaintiff must allege sufficient facts to support the conclusion that his injury
“will likely be redressed by a favorable decision by the court.” Code § 62.1-44.29. He also
“must demonstrate standing separately for each form of relief sought.” Laidlaw, 528 U.S. at 185,
120 S. Ct. at 706, 145 L. Ed. 2d at 629. “The redressability requirement ensures that a plaintiff
‘personally would benefit in a tangible way from the court’s intervention.’” Gaston Copper, 204
F.3d at 162 (quoting Warth v. Seldin, 422 U.S. 490, 508, 95 S. Ct. 2197, 2210, 45 L. Ed. 2d 343,
360 (1975)). This benefit need not be monetary to be sufficiently tangible. Laidlaw, 528 U.S. at
185-87, 120 S. Ct. at 706-07, 145 L. Ed. 2d at 629-31. The Supreme Court has recognized that
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“citizen plaintiffs facing ongoing violations” have standing to seek civil penalties in appropriate
cases. Id. “To the extent [civil penalties] encourage defendants to discontinue current violations
and deter them from committing future ones, they afford redress to citizen plaintiffs who are
injured or threatened with injury as a consequence of ongoing unlawful conduct.” Id. at 186, 120
S. Ct. at 706-07, 145 L. Ed. 2d at 630.
Appellees contend the harm alleged by CBF is not redressable by a decision vacating the
permit because CBF’s allegations concede that Philip Morris is not the sole or even the primary
contributor of nutrients to the James River. We disagree. As discussed above, the harm or
threatened harm may be an “‘identifiable trifle.’” Gaston Copper, 204 F.3d at 156 (quoting
Cedar Point Oil Co., 73 F.3d at 557). Thus, as long as the relief CBF seeks would redress the
part of the harm caused by Philip Morris, that harm is, in fact, redressable to the extent required
to demonstrate standing. As quoted above, “[I]t would be strange indeed if polluters were
protected from suit simply by virtue of the fact that others are also engaging in the illegal
activity.” American Canoe Ass’n, 326 F.3d at 520.
Thus, we hold the harm alleged is redressable to the extent that CBF seeks to have the
permit set aside and re-issued only if it complies with applicable laws necessary to ensure that
water quality standards shall be maintained.1
B.
REPRESENTATIONAL STANDING
1. Legal Validity of Doctrine in Virginia
By letter opinions of January 4 and April 8, 2005, incorporated into its order of April 28,
2005, the trial court ruled that Code § 62.1-44.29 of the State Water Control law did not confer
1
We do not address in this appeal whether the trial court has the authority to render the
other forms of relief CBF seeks.
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upon CBF standing to sue in a representational capacity. However, by decision rendered July 19,
2005, a panel of this Court reached the opposite conclusion. See Stumpy Lake, 46 Va. App. at
111-18, 616 S.E.2d at 42-46. Following an extended analysis in Stumpy Lake, we held that
“Virginia recognizes representational standing . . . and that Code § 62.1-44.29 confers this
representational standing” in cases meeting its requirements. Id. (relying on Concerned
Taxpayers of Brunswick County v. DEQ, 31 Va. App. 788, 525 S.E.2d 628 (2000) (holding
almost identical judicial review provision in Solid Waste Management Act authorized
representational standing in case meeting its requirements), rev’d on other grounds sub nom.,
Aegis Waste Solutions v. Concerned Taxpayers of Brunswick County, 261 Va. 395, 544 S.E.2d
660 (2001)). Although a petition for appeal of the Stumpy Lake decision was filed, the Supreme
Court ultimately refused to consider the appeal on the merits. See Commonwealth v. CBF, No.
051767 (Va. Sup. Ct. Jan. 25, 2006). Thus, our decision in Stumpy Lake remains binding legal
precedent.
Appellees recognize that stare decisis may bind us to follow the decision in Stumpy
Lake. Nevertheless, quoting Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456, 457
(1990), they argue we are not so bound if we find that the decision in Stumpy Lake was based on
“‘flagrant error or mistake.’” Appellees misconstrue the holding in Burns, which permits this
Court to correct “‘flagrant error or mistake’ in a panel decision . . . through the en banc hearing
process.” Burns, 240 Va. at 174, 395 S.E.2d at 457. Contrary to appellees’ assertions, Burns
affirms the principle that the decision of one panel is binding on all other panels unless and until
reversed by the Court sitting en banc or by a higher court on appeal. Id.; see Johnson v.
Commonwealth, 252 Va. 425, 429-30, 478 S.E.2d 539, 541 (1996). Thus, we are not at liberty to
revisit the holding of the panel in Stumpy Lake that “Virginia recognizes representational
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standing . . . and that Code § 62.1-44.29 confers this representational standing” in cases meeting
its requirements. 46 Va. App. at 118, 616 S.E.2d at 46.
2. Sufficiency of Facts Pleaded to Establish Representational Standing2
“[A]n association has Article III standing to sue on behalf of its members 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.’” Stumpy Lake,
46 Va. App. at 114, 616 S.E.2d at 44 (quoting Hunt v. Wash. State Apple Advertising Comm’n,
432 U.S. 333, 343, 97 S. Ct. 2434, 2441, 53 L. Ed. 2d 383, 394 (1977)).
(a) Standing of Members to Sue in Their Own Right
As our holding in Stumpy Lake, 46 Va. App. at 116, 616 S.E.2d at 45, reiterates, the first
prong of the representational standing test requires that “at least one member of the association,
but not all of its members,” satisfy the three-part test for Article III standing set out in Lujan, 504
U.S. at 560-61, 112 S. Ct. at 2136, 119 L. Ed. 2d at 364, and adopted in Code § 62.1-44.29:
First, there must be an injury in fact that is both “(a) concrete and particularized[] and (b) actual
or imminent.” Stumpy Lake, 46 Va. App. at 112, 616 S.E.2d at 43. Second, “a causal
connection must exist between the injury and the conduct complained of.” Id. Third, “it must be
likely that the injury would be redressed by a favorable decision.” Id. We hold CBF’s petition
contains sufficient allegations to plead injury in fact, causation and redressability as to at least
one of its members.
2
The record does not make clear whether the trial court considered the sufficiency of the
facts pleaded to establish representational standing. Regardless, because this question involves a
demurrer and, thus, does not require the resolution of any disputed factual issues, we may
consider it in this appeal. Cf. Stumpy Lake, 46 Va. App. at 111, 616 S.E.2d at 42 (noting review
of circuit court ruling on demurrer is de novo).
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(1) Injury in Fact
As discussed above, “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, 120
S. Ct. at 705, 145 L. Ed. 2d at 628. The injury “‘need not be large[;] an identifiable trifle will
suffice.’” Gaston Copper, 204 F.3d at 156 (quoting Cedar Point Oil Co., 73 F.3d at 557 (internal
quotation marks omitted)). Further, “threatened rather than actual injury can satisfy Article III
standing requirements. ‘One does not have to await the consummation of threatened injury to
obtain preventive relief. If the injury is certainly impending that is enough.’” Id. at 160 (quoting
Babbitt, 442 U.S. at 298, 99 S. Ct. at 2308, 60 L. Ed. 2d at 906 (internal quotation marks
omitted)) (citations omitted). Where the claim of injury is based on allegations that a company is
discharging chemicals in quantities that exceed those specified in a permit and the discharge
restrictions were “set at the level necessary to protect the designated uses of the receiving
waterways, the[] violation [of the discharge restrictions] necessarily means that these
[designated] uses may be harmed.” Id. at 156-57.
As with the allegation of harm to CBF as an organization, the claim of injury to CBF’s
members as individuals rests on allegations that the permit allows the discharge of chemicals in
amounts greater than those set by applicable law to protect the designated uses of the receiving
waterway. As set out above, relevant water quality regulations provide that all state waters,
which necessarily include the James River segment into which the subject Philip Morris facility
discharges its wastewater, are designated for certain “recreational uses, e.g., swimming and
boating; the propagation 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.” 9 VAC 25-260-10(A). Thus,
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here, as in Gaston Copper, an allegation of “the[] violation [of the discharge restrictions, if
proved,] necessarily means that these [designated] uses may be harmed.” Gaston Copper, 204
F.3d at 156-57.
CBF further alleged with particularity that its members are “among [those] injured” by
this alleged violation. Morton, 405 U.S. at 735, 92 S. Ct. at 1366, 31 L. Ed. 2d at 643. It
expressly asserted as follows:
The discharge of nutrients in amounts and concentrations
authorized by the unlawful Permit, which does not ensure that the
Virginia WQS [water quality standards] for this stream segment
will be maintained, has and will continue to cause injury to . . .
[CBF’s] members who regularly use and enjoy the James River . . .
for swimming, boating, kayaking, canoeing, sport fishing, and
other educational and recreational pursuits.
CBF need not, at the pleading stage, name those members or further specify how they have been
harmed. Laidlaw, 528 U.S. at 183, 120 S. Ct. at 705, 145 L. Ed. 2d at 628.
(2) Causal Connection
These same allegations provide a sufficient causal connection between the act and the
harm under the standards set out in Part II.A.2, supra.
(3) Redressability
For the reasons set out in Part II.A.3, supra, we hold the harm alleged is redressable to
the extent that CBF seeks to have the permit set aside and re-issued only if it complies with
applicable laws necessary to ensure that water quality standards shall be maintained.3
(b) and (c) Nature of Interests and Requested Relief
Appellees do not expressly challenge parts (b) and (c) of the representational standing
test, which require that “‘(b) the interests [the organization] seeks to protect are germane to [its]
3
We do not address in this appeal whether the trial court has the authority to render the
other forms of relief CBF seeks.
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purpose[] and (c) neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.’” Stumpy Lake, 46 Va. App. at 114, 616 S.E.2d at 44
(quoting Hunt, 432 U.S. at 343, 97 S. Ct. at 2241, 53 L. Ed. 2d at 394). We hold that the facts
alleged satisfy all prongs of the test for representational standing.
Thus, we conclude that CBF has alleged sufficient facts to establish standing to sue in
both an individual and a representative capacity.
C.
RULING ON MOTION FOR LEAVE TO AMEND TO
CORRECT DEFICIENCIES IN PLEADING
Because we hold CBF alleged sufficient facts to establish standing to sue in both an
individual and a representative capacity, we need not consider the trial court’s ruling on CBF’s
request for leave to amend its petition for appeal.
III.
For these reasons, we hold the trial court’s conclusion that Virginia law does not permit
representational standing was erroneous. We hold further the facts alleged in CBF’s petition for
appeal, accepted as true, were sufficient to survive the appellees’ demurrers. Thus, we reverse
the trial court’s dismissal of the petition with prejudice without addressing the trial court’s ruling
on CBF’s request for leave to amend, and we remand to the trial court for further proceedings
consistent with this opinion.
Reversed and remanded.
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