It then acknowledges that the allegations of standing in the complaint, taken alone, might be sufficient for CBF and NRDC to sue on behalf of some of their members. But Gwaltney argues that no such standing has been established because plaintiffs did not present evidence of standing at trial, even though Gwaltney denied plaintiffs standing allegations in its answer and Gwaltney's counsel demanded prior to trial that plaintiffs counsel establish at trial that plaintiffs meet the Clean Water Act's standing requirements as articulated in Sierra Club v. SCM Corp., 747 F.2d 99 (2d Cir. 1984). Plaintiffs, on the other hand, argue that they have established standing to sue both in their own right and on behalf of their members.
Discovery on the issue would therefore be substantially complete, and the evidentiary adequacy of the Trades Council's standing allegations could be tested. Cf. Sierra Club v. SCM Corp., 747 F.2d 99, 103, 107-08 (2d Cir. 1984) (affirming dismissal of complaint after plaintiff organization refused to answer interrogatories with respect to individual standing, indicating to the district court "that it did not intend to identify any of its members who might have been harmed by the alleged violation" and "would refuse to provide such information"). But the Trades Council's contention is unpersuasive on a motion to dismiss, where standing is challenged based on the pleadings alone.
A. Sloop Clearwater's Standing to Sue On the basis of Sierra Club v. SCM Corp., 747 F.2d 99 (2d Cir. 1984), which also involved a citizen suit under the Clean Water Act, we reject Conrail's challenge to Sloop Clearwater's standing. Sierra Club, like Sloop Clearwater, was the sole plaintiff in its suit. In the complaint, Sierra Club alleged that its members, none of whom were identified by name, lived in the vicinity of, owned property near or recreated in or near the waterway into which the defendant was discharging pollutants.
While defendant correctly notes that there is a presumption against construing a statute as containing superfluous or meaningless words, see United States v. Blasius, 397 F.2d 203, 207 n. 9 (2d Cir. 1968), cert. dismissed, 393 U.S. 1008, 89 S.Ct. 615, 21 L.Ed.2d 557 (1969), this Court concludes that the phrase "on his own behalf" is not mere surplusage but rather was intended only to exclude class action suits.Id. at 847-48 (citing Brown v. Ruckelshaus, 364 F. Supp. 258, 265 (C.D.Cal. 1973) and City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 1146 (E.D.Pa. 1982)); Sierra Club v. SCM Corp., 747 F.2d 99, 104 (2d Cir. 1984) (organizations may establish standing under section 1365(g) by showing actual, concrete injury to organization or one or more of its members). PALCO urges this court not to follow ALCOA because, it argues, ALCOA's conclusion that the phrase "on his own behalf" was intended only to exclude class action suits under the CWA was rejected by the court in Conservation Law Foundation of New England, Inc. v. Browner, 840 F. Supp. 171, 176 (D.Mass. 1993).
. . ." Sierra Club v. SCM Corp., 747 F.2d 99, 104 (2d Cir. 1984). The Morton Court wrote:
"At the very least, the identity of the party suffering an injury in fact must be firmly established." Am. Chemistry Council, 468 F.3d at 820; see also United States v. AVXCorp., 962 F.2d 108, 117 (1st Cir. 1992) (no associational standing where injured members were unidentified); Sierra Club v. SCM Corp., 747 F.2d 99, 103, 107-08 (2nd Cir. 1984) (same); Revell v. Port Authority of N.Y. and N.J., 321 Fed.Appx. 113, 117 n. 2 (3rd Cir. 2009) (failure to identify affected members causes standing to "evaporate quickly"). But see Doe v. Stincer, lib F.3d 879, 882 (11th Cir. 1999) (taking contrary position).
Persons who have suffered an "injury in fact" under Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), satisfy the requirements of the CWA. See Middlesex County Sewerage Auth., 453 U.S. at 16, 101 S.Ct. at 2625; Sierra Club. v. SCM Corp., 747 F.2d 99, 105 (2d Cir. 1984). Economic harm is not required to confer standing in environmental pollution cases; "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.'"
Nor is such a condition a final order, since it leaves all pending issues unresolved. See, e.g., id.; cf. Sierra Club v. SCM Corp., 747 F.2d 99, 108 (2d Cir. 1984) (order permitting plaintiff to proceed with its suit only on condition that it disclose information needed for determination of standing would not be appealable). Nor is the condition that a party post a bond in order to proceed with the suit an order that is appealable under the "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), since no sufficiently important rights of the party are affected, see, e.g., Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 430-31, 105 S.Ct. 2757, 2760-61, 86 L.Ed.2d 340 (1985); Coopers Lybrand v. Livesay, 437 U.S. at 468, 98 S.Ct. at 2457-58; H S Plumbing Supplies, Inc. v. BancAmerica Commercial Corp., 830 F.2d 4, 6 (2d Cir. 1987) (the "burdens imposed by . . . posting [a] bond . . . are not sufficient" to warrant appealability under Cohen doctrine (internal quotation marks omitted)).
Sierra Club v. Morton, 405 U.S. 727, 734-35, 92 S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). Of course, Congress' provision for citizens suits does not, in itself, establish Article III standing; Sierra Club must establish that one or more of its members use the Patapsco River and would be adversely affected by its pollution. See Sierra Club v. SCM Corp., 747 F.2d 99, 107 (2 Cir. 1984) (to establish standing under ยง 505 of the Act, Sierra Club required to demonstrate actual injury within the meaning of Morton). John Railey's affidavit adequately establishes injury and the threat of future injury, stemming from both Simkins' failure to report concerning harmful effluents for which its permit contained maximum discharge levels and Simkins' failure to report concerning the levels of other effluents for which it was not subject to discharge limitations.
Hence it is not a final order. See, e.g., Sierra Club v. SCM Corp., 747 F.2d 99, 108 (2d Cir. 1984) (order permitting plaintiff to proceed with its suit on condition that it disclose information about its members in order to test standing to sue "would not have been appealable"). Finally, a disclosure order is not effectively unreviewable on appeal.