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Ongoing Injuries Confer Standing

The Court of Appeals reverses the circuit court’s dismissal of an appeal by landowners and an environmental conservation nonprofit because their pleadings established standing based on allegations of ongoing injury to legally protected interests after reissuance of the challenged pollution permit in 2008.

A couple owns a working farm on 218 acres 400 yards downstream from a lake impoundment into which treated water from a sewage treatment plant is disbursed before being released into a creek that bisects and runs through the farm. A nonprofit conservation organization holds conservation easements on parcels through which the creek flows, including the farm. The State Water Control Board (SWCB) issued the plant a pollution permit in 2002 that was renewed in 2008 at the recommendation of the Department of Environmental Quality (DEQ) with a minerals restriction and four-year period for compliance. After opposing the renewal, the couple and the nonprofit appealed to the circuit court. They argued the limits were insufficient, that other landowners and the US EPA were not properly notified and sought a remand to DEQ.

After the circuit court sustained demurrers for insufficient pleading to show standing under Va. Code § 62.1-44.29, the couple amended their petition for appeal with affidavits that the creek water was less clear, had a “brown foamy scum,” dried up altogether in 2008 harming their farm operations, and had become unsuitable for swimming or cattle drinking. The circuit court again sustained demurrers on the basis that the couple and nonprofit failed to establish their alleged injuries were fairly traceable to the reissued permit or that a favorable decision would redress them.

On appeal the couple and nonprofit argue they were entitled to a hearing on standing. We disagree but reverse because the pleadings were sufficient to establish standing. Section 62.1-44.29 codifies federal Article III standing requirements defined in Lujan v. Defenders of Wildlife, 504 US 555 (1992). Our decision allowing a hearing on standing was reversed in Va. Marine Res. Comm’n v. Clark, 281 Va. 679 (2011). The allegations that the renewal perpetuated actual and ongoing injuries to legally protected interests in the creek nudge their claims across the line from conceivable to plausible. If proven these injuries likely could be redressed by the circuit court ordering compliance with federal and state water quality standards. We reverse and remand for further proceedings consistent with this opinion.

The Historic Green Springs, Inc. v. Va. Dep’t of Environmental Quality (Felton) No. 2082-10-2, Aug. 2, 2011, Louisa Cir. Ct. (Sanner) David S. Bailey for appellant; J. Tracey Walker, IV for appellees. VLW 011-7-257(UP), 9 pp.

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