Summary of a Recent
Judicial Development in
Environmental Law

Plaintiffs Suing Hog
Companies Lack Standing

Harrison M. Pittman
Staff Attorney

In an action brought by environmental groups and other individuals against three hog companies for several state law claims based on pollution and contamination of three rivers that allegedly occurred as a result of the companies' mishandling of hog waste, the North Carolina Court of Appeals has ruled that the plaintiffs lacked standing to bring its action. Neuse River Foundation, Inc. v. Smithfield Foods, Inc., 574 S.E.2d 48, 50-55 (N.C. Ct. App. 2002).

There were five categories of plaintiffs in this action: (1) the river assocations consisting of the Neuse River Foundation, Inc., The New River Foundation, Inc., and the Water Keeper Alliance; (2) the river keepers, several persons who were employed by nonprofit organizations as monitors of the rivers; (3) noncommercial users of the rivers; (4) riparian landowners downstream from the alleged pollution; and (5) the commercial users of the rivers (collectively "plaintiffs"). See id. at 50. The plaintiffs brought an action for "negligence, trespass, strict liability, public nuisance, unfair and deceptive trade practices, private nuisance, and the public trust doctrine" against "three hog farming companies, the companies' corporate parent, and some of the current and former officers" of the three companies (collectively, "defendants"). Id. at 50-51. The plaintiffs alleged that the defendants "improperly handled hog waste, resulting in massive pollution and contamination of the Neuse, New, and Cape Fear Rivers, and those rivers' tributaries and estuaries." Id. at 50. They sought a judgment that would prohibit the defendants' use of sprayfields and cesspools and monetary damages to restore the condition of the rivers.

The trial court dismissed the plaintiffs' claims, concluding that "'all plaintiffs lack standing to prosecute any claims before this Court, that this Court lacks subject matter jurisdiction as to any claims pending, and that the complaint fails to state a single claim upon which this Court by law is authorized to grant relief.'" Id. The plaintiffs appealed the trial court's decision to the North Carolina Court of Appeals. See id.

The appeals court explained that

[t]he "irreducible constitutional minimum" of standing contains three elements: (1) "injury in fact"-an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Id. at 51-52.

It also explained that "[u]nder North Carolina law, an environmental plaintiff must allege (1) injury to a protected interest that cannot be considered merged in the general public right; (2) causation; and (3) proper, or individualized, forms of relief." Id. at 53 (citations omitted).

The plaintiffs asserted that because each of them "owns property adjacent to, works on, protects, or has concern for the welfare of the rivers allegedly polluted by the defendants, they all suffer special damages to a degree different from those suffered by the general public." Id. "However," the court stated, "there is no North Carolina authority supporting the contention that injury to aesthetic or recreational interests alone, regardless of degree, confers standing on an environmental plaintiff." Id. (citing Hampton v. Pulp Co., 27 S.E.2d 538, 542 (N.C. 1943) (emphasizing the difference between a fishery business owner, who has standing in an action opposing the proposed location of a bridge on the river, and recreational anglers, who do not)). Thus, the court concluded that the environmental river associations, river keepers, and recreational fisherman lacked standing to maintain an action against the defendants. See id.

The court noted that several of the plaintiffs, including eight riparian landowners, two commercial fisherman, and a marina owner, claimed injury "to their riparian property or businesses." Id. With respect to these plaintiffs the court stated that they "conceivably could have standing to pursue individual recovery under North Carolina law for injury to their 'more particular and more important personal right[s].'" Id. (citation omitted). It added, however, that "none of these plaintiffs seeks individual compensation for the 'invasion of a more particular and more personal right' that cannot be considered 'merged in the general public right.'" Id. (citation omitted).

The court also examined the defendants' argument that the plaintiffs lacked standing to seek the forms of relief they had requested. See id. (citing Friends of the Earth, Inc., v. Laidlaw Enc. S., 528 U.S. 167, 185 (2000) (stating that "'a plaintiff must demonstrate standing separately for each form or relief sought'")). It noted that the issue for the plaintiffs "becomes, therefore, whether they are seeking proper, or individualized forms of relief." Id.

The court noted that the defendants' lagoon waste systems existed pursuant to express legislative authority. See id. (citation omitted). It also noted that under North Carolina law, courts will not enjoin as a nuisance an action that is authorized by valid legislative authority. See id. (citation omitted). The court added that

[i]t is not the role of the judicial branch of government to pre-empt the legislative branch's policy considerations and appropriate authorization of an activity. Wisely, the citizens of this state have not granted judges wide latitude to dictate public policy . . . . Plaintiffs do not contend the General Assembly exceeded its authority in violation of our state's constitution. Were that the case, it would be incumbent on us to fully examine the issue as part of our independent governmental function. Under the circumstances, we decline to prohibit an activity the legislature has legally allowed.

Id.

Next, the court examined the plaintiffs' "demand that defendants pay the complete cost of clean-up and remediation of the named public waters with the funds to be deposited into a court-approved trust." Id. The court explained that

[t]he state is the sole party able to seek non-individualized, or public, remedies for alleged harm to public waters. Under the public trust doctrine, the State holds title to the submerged lands under navigable waters, "but it is a title of a different character than that which it holds in other lands. It is a title held in trust for people of the state so that they may navigate, fish, and carry on commerce in the waters involved . . . ." Only the state . . . is authorized to bring "in a representative capacity for and on behalf of the using and consuming public of this State" actions deemed to be "advisable in the public interest." The state's exclusive authority to regulate its public trust waters thus limits the private rights of riparian landowners bordering such waters, subjecting them to "such general rules and regulations as the Legislature, in the exercise of its powers, may prescribe for the protection of the public rights in rivers and navigable waters."

Id. at 54-55 (citations omitted).

The case was decided on December 31, 2002; this summary was posted May, 2003