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Food & Water Watch v. Delaware Department of Natural Resources and Environmental Control

Superior Court of Delaware

August 24, 2018

FOOD & WATER WATCH, Appellant,

          Submitted: June 8, 2018

          Kenneth T. Kristl, Esquire, of the ENVIRONMENTAL & NATURAL RESOURCES LAW CLINIC, WIDENER UNIVERSITY DELAWARE LAW SCHOOL, Wilmington, Delaware, Attorney for Appellant.

          William J. Kassab, Esquire, of the STATE OF DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, Attorney for Appellee.


          LEGROW, JUDGE

          An environmental interest group appeals from an Environmental Appeals Board's (the "Board") decision finding the group lacked organizational standing to challenge an order issued jointly by the State's environmental and agricultural agencies. The order relieved poultry farms of the duty to monitor water on-site and in nearby streams for pollutants generated by those farms. The issues before the Court at this stage of the proceedings are whether an individual's loss of previously-enjoyed recreational and aesthetic enjoyment of an area affected by government action sufficiently establishes injury in fact, whether that loss of recreational and aesthetic enjoyment is traceable to the challenged order, and whether a favorable decision would redress the injury. Because I find such loss does establish injury in fact, is traceable to the challenged order, and likely would be redressed if the order was revoked, I find the interest group's individual members have standing and, by extension, the group as a whole has organizational standing.


         In November 2011, the Delaware Department of Natural Resources and Environmental Control ("DNREC") and the Delaware Department of Agriculture ("DDA") established a permit program for Concentrated Animal Feeding Operations ("CAFOs") in compliance with a national system. The program was designed to allow eligible poultry CAFOs to obtain a general permit ("General Permit") after submitting a "Notice of Intent" and "Nutrient Management Program" to DNREC and DDA.

         On October 28, 2015, DNREC published a draft for a revised General Permit. On March 30, 2016, the Secretary of DNREC and the Secretary of DDA jointly issued Order No. 2016-W-0008 (the "Order"), approving the General Permit's final draft. The General Permit establishes standards for CAFOs to operate in Delaware, but does not require CAFOs to monitor water on-site or in nearby streams for CAFO-generated pollutants. The lack of site-specific pollutant monitoring requirements in the General Permit raised the concerns of Kathlyn Phillips and Maria Payan, both of whom are members of Food & Water Watch ("F&WW").

         According to affidavits submitted to the Board, the truth to which DNREC stipulated for purposes of resolving F&WW's standing, Phillips is a resident of Ocean City, Maryland. In the past, Phillips enjoyed recreating in the Indian River and other Delaware waterways by swimming, boating, kayaking, birdwatching and hiking. The General Permit's lack of pollutant monitoring requirements raised Phillips' concerns about unknown quantities of bacteria proliferating in Delaware's waterways. As a result of these concerns, Phillips is reluctant to continue her recreational activities and has ceased her activities in some areas altogether.

         Payan is a resident of Se1byvi11e, Delaware. Payan visited Delaware's beaches regularly, including Bethany State Park and Prime Hook State Park, and enjoyed swimming and eating crabs and fish she caught in those areas. Payan has observed that ditches leading away from CAFOs "frequently smell like animal waste and contain visible algae."[1] Due to the lack of monitoring requirements in the General Permit, Payan no longer intends to engage in her previous recreational activities at Delaware's beaches.

         Patty Lovera is an Assistant Director of F&WW. She has held this position since 2005 and is "intimately familiar" with the organization's purpose.[2] Lovera describes F&WW as a non-profit, public interest consumer advocacy organization with the primary purpose of educating the public and advocating for policies that promote "environmental protection and the long-term well-being of communities."[3]

         On April 25, 2016, F&WW filed an appeal with the Board, claiming the Order violated the Clean Water Act[4] by failing to mandate surface water discharge compliance monitoring mechanisms. F&WW argued the Order improperly was issued because DNREC failed to regulate pollutant discharge from the CAFOs. On October 18, 2016, DNREC moved for summary judgment, arguing F&WW lacked standing to challenge the Order.

         The Board heard arguments on DNREC's motion for summary judgment, and on March 1, 2017, the Board issued its decision finding F&WW lacked standing to appeal the Order. In its decision, the Board found that, under Oceanport Industries, Inc. v. Wilmington Stevedores, Inc., [5] F&WW failed to establish the Order "substantially affected" F& WW's members. The Board found the F&WW members' fear that agricultural pollution "may cause harm" to their health was conjectural or hypothetical as opposed to concrete and particularized.[6]Additionally, the Board found F&WW failed to establish its members' injuries fairly were traceable to the Order because the alleged injuries could be caused by multiple sources of pollution as opposed to pollution exclusively caused by CAFOs. Finally, the Board found the alleged injuries, i.e., curtailing recreational activities due to fear of pollution, were those shared by the public generally because other members of the public also may suffer those injuries.


         On appeal, F&WW argues one or more of its members has standing to sue in their own right and F&WW therefore has organizational standing to challenge the Order. Particularly, F&WW contends its members have standing because damage to aesthetic or recreational interests constitute an injury in fact under the Delaware Supreme Court's decision in Dover Historical Society v. Dover Planning Commission.[7] F&WW contends the Board applied the wrong legal standard by requiring the members to show physical harm in order to demonstrate standing. F&WW also argues the Board ignored the stipulated facts by concluding Phillips and Payan had not suffered injury because they still enjoyed some recreational activities.

         Additionally, F&WW asserts the Board erred by finding the injuries at issue were not traceable to the Order. The injury, F&WW maintains, is the individual affiant's decreased enjoyment and use of affected waterways due to the Order's lack of pollution monitoring requirements, and that injury, F&WW argues, fairly is traceable to the Order. Additionally, F&WW asserts the injury is redressable because a favorable decision from the Board would require CAFOs to resume pollution monitoring. Finally, F&WW contends it satisfies the other two requirements for organizational standing because the claim does not require the participation of its individual members and the suit is germane to F& WW's purpose.

         In response, DNREC argues F&WW's members have failed to establish an injury in fact because the Order does not affect Phillips and Payan in a personal and individualized manner. DNREC contends Phillips' and Payan's recreational enjoyment is more akin to interests shared by the public at large as opposed to an individual interest. In its brief and at oral argument, DNREC suggested that under the Delaware Supreme Court's decision in Dover Historical Society, a plaintiff would need to own property in the affected area in order to establish injury in fact.

         DNREC next argues that Phillips' and Payan's injuries are not traceable to the Order because their actual injury is pollution in Delaware's waterways, not lack of CAFO pollution monitoring.[8] DNREC contends this injury could not be redressed by a favorable decision from the Board because reimposing the monitoring requirements would not erase the other forms of pollution in Delaware's waterways. DNREC concedes that F&WW otherwise satisfies the requirements for organizational standing.


         An appellate court's review of a Board decision is limited. The Court merely determines whether the decision was supported by substantial evidence and free of legal error.[9] Upon review of an administrative agency's findings, the Court "will not substitute its judgment for that of an administrative body where there is substantial evidence to support the decision and subordinate findings of the agency."[10] When reviewing the Board's conclusions of law, the Court's review is de novo.[11]

         The Board held F&WW lacked organizational standing because it could not show its members would have standing to sue in their individual capacity. "An organization may sue on behalf of its members if 1) the interests to be protected by the suit are germane to the organization's purpose; and 2) neither the claim asserted nor the relief requested requires the participation of individual members; and 3) the organization's members would otherwise have standing."[12] Both before the Board and on this appeal, DNREC conceded the first two elements of this test.[13] Accordingly, F& WW's standing turns on whether F& WW's members individually could maintain this suit.

         The Board found F& WW's members could not sue in their own right because they failed to show they substantially were affected by the Order. The Board concluded neither Phillips nor Payan demonstrated their alleged injuries were actual or imminent as opposed to conjectural or hypothetical. The Board also held the injuries were not fairly traceable to the Order because other pollutants may contaminate the affected waters. Finally, the Board concluded the members' recreational injuries are more like those suffered by the public generally.[14]

         In order to determine an individual's standing to challenge an administrative decision, the Court must look to the statutory language that confers a party's right to appeal that decision.[15] Title 7, Section 6008(a) of the Delaware Code provides "[a]ny person whose interest is substantially affected by any action of the Secretary may appeal to the Environmental Appeals Board within 20 days after receipt of the Secretary's decision or publication of the decision."[16] In Oceanport Industries, the Delaware Supreme Court held Section 6008(a)'s "substantially affected" requirement can be established by applying the three-pronged Data Processing Test, [17] which initially was formulated in Association of Data Processing Service Organizations, Inc. v. Camp.[18] First, the party must have suffered an injury in fact.[19] In other words, the injury must be concrete and particularized, not conjectural or hypothetical. Second, the injury must be fairly traceable to the challenged action of the defendant. Third, "it must be likely that the injury will be redressed by a favorable decision, rather than merely speculative."[20]

         A. Phillips and Payan suffered an injury in fact.

The Delaware Supreme Court addressed the requirements for establishing injury in fact in Dover Historical Society v. Dover Planning Commission.[21] In Dover Historical Society, the Supreme Court held "[i]n order to achieve standing, the plaintiffs interest in the controversy must be distinguished from the interest shared by other members of a class or the public in general."[22] In that case, the petitioners, which included an historical organization, residents who owned property within the Historic District of Dover, and property owners within the larger city of Dover, ...

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