Ctr. for Biological Diversity & Sierra Club v. Univ. of N. Carolina at Chapel Hill

CENTER FOR BIOLOGICAL DIVERSITY and SIERRA CLUB, Plaintiffs, v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, Defendant.

No. 1:19-CV-1179

United States District Court, M.D. North Carolina

August 30, 2021

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, District Judge.

The defendant University of North Carolina operates multiple sources of air pollution that are regulated by the Clean Air Act. Pursuant to permits issued by the North Carolina Division of Air Quality, UNC is authorized to emit limited amounts of certain air pollutants. The plaintiffs, Center for Biological Diversity and Sierra Club, contend that UNC has violated various permit conditions related to the recordkeeping, reporting, monitoring, inspection, and operation of some of its major air pollution sources.

UNC is entitled to summary judgment on all nine claims. The plaintiffs lack standing to bring Claims Two through Eight and the uncontroverted extrinsic evidence as to Claim One shows that the ambiguous heat input capacity term of Section 2.1.A in the permit is not an enforceable limit. As for Claim Nine, the undisputed evidence shows that UNC's violation of Section 2.2 was not repeated. UNC's motion for summary judgment will be granted and the plaintiffs' cross-motion will be denied.

I. The Pollution Sources and UNC's Permit

UNC operates multiple major stationary sources of air pollution that are regulated by Title V of the Clean Air Act on its Chapel Hill campus. Doc. 58 at § I ¶ 1; Doc. 42-10 at 713. UNC must operate these stationary pollution sources in compliance with an air pollution permit issued by North Carolina's Division of Air Quality. 42 U.S.C. §§ 7661a(a), 7661c(a); 40 C.F.R. § 70.6(a)(1). UNC has operated its major stationary air pollution sources under four different permits over the relevant time period, identical in relevant part. See Docs. 42-7, 428, 42-9, 42-10. For ease of reference, the Court will cite Permit No. 03069T35 as the operative permit. Doc. 42-10.^[1]

The permit authorizes UNC to use coal, natural gas, No. 2 fuel oil, wood, and torrified wood to fire two circulating fluidized combustion boilers, identified in the permit as Boilers 6 and 7.^[2] See Doc. 42-10 at 7, 14-24. The permit also authorizes UNC to operate an emergency diesel-fired generator, identified as ES-Gen-12. Doc. 42-10 at 10, 48. These air pollution sources emit a variety of air pollutants, including particulate matter (PM), sulfur dioxide (SO2), Carbon Monoxide (CO), Hydrochloric acid (HCl), Mercury (Hg), and nitrogen oxides (NOx). Doc. 42-10 at 14-15; Doc. 42-11 at 2; Doc. 43-5 at 1.

II. Citizen Suits under the Clean Air Act

In 1990, Congress amended the Clean Air Act to authorize citizen suits against any person “alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of . . . an emission standard or limitation under this chapter ....” 42 U.S.C. § 7604(a)(1). An “emission standard or limitation under this chapter” includes “any. . . standard, limitation, or schedule established under any permit issued . . . under any applicable State implementation plan approved by the [EPA] Administrator, any permit term or condition, and any requirement to obtain a permit as a condition of operations.” Id. § 7604(f)(4); Nat'l Parks Conservation Ass 'n. v. Tenn. Valley Auth., 480 F.3d 410, 418 (6th Cir. 2007).

An action alleging wholly past violations can be maintained if the plaintiff asserts at least two violations of the same standard, even if the violations are not ongoing. See Env't Tex. Citizen Lobby v. ExxonMobil Corp., 968 F.3d 357, 365 (5th Cir. 2020) .

III. Standing

UNC contends that the plaintiffs lack standing to bring their claims because they have not shown concrete injuries traceable to the alleged violations. See Doc. 40 at 17-27; Doc. 46 at 7-14; Doc. 50 at 6-13. The Court also has an “independent duty to assure that standing exists.” Ctr. for Biological Diversity v. EPA, 90 F.Supp.3d 1177, 1186 (W.D. Wa. 2015) (relying on Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009)). Plaintiffs must demonstrate standing for each claim, for each form of relief sought, see DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006), and at each stage of the litigation. See Lujan v. Defs. Of Wildlife, 504 U.S. 555, 561 (1992).

Organizational plaintiffs, like the Center and the Sierra Club, can show standing to sue in two ways: (1) on their own behalf (organizational standing) or (2) on behalf of their members (representational or associational standing). Guilford Coll. v. McAleenan, 389 F.Supp.3d 377, 388 (M.D. N.C. 2019) (citing White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir. 2005)). Here, the plaintiffs rely on representational standing to sue on behalf of individual members Sonia Desai and Bridget Farrell.^[3]

An organization has representational standing if “at least one of its ‘identified' members ‘would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.'” Outdoor Amusement Bus. Ass'n, Inc. v. Dep't of Homeland Sec., 983 F.3d 671, 683 (4th Cir. 2020) (quoting Friends of the Earth, Inc. v. Laidlaw Env't. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)); Guilford Coll., 389 F.Supp.3d at 388.

UNC does not challenge the existence of the latter two factors, and the Court finds that the interests at stake are germane to the purposes of these two organizations and that neither the claims asserted, nor the relief requested, require the participation of individual members beyond their role as witnesses. Both organizations are conservation groups committed to preservation and protection of the environment and its ecosystems and resources. Doc. 42-5 at ¶ 2 (Center for Biological Diversity); Doc. 42-4 at ¶¶ 2-3 (Center for Biological Diversity and the Sierra Club). UNC challenges the first requirement, contending that the individual members do not have standing to sue in their own right. An individual has standing “in their own right” if they can show an “injury-in-fact” that is “fairly traceable” to the defendant's conduct and is “likely to be redressed by a favorable decision.” Lujan, 504 U.S. at 560-61 (cleaned up).

The plaintiffs' claims can be usefully divided into “recordkeeping” and “operating” claims. The Court will consider standing for each group separately. See TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2208 (2021) (“[S]tanding is not dispensed in gross; rather plaintiffs must demonstrate standing for each claim that they press ....”).

A. Claims Related to Recordkeeping, Reporting, Inspecting, and Monitoring

Claims Two through Eight assert various failures to maintain records, ^[4] inspect equipment, ^[5] report permit deviations to government authorities, ^[6] and monitor pollution controls, ^[7] as required by UNC's permit. To demonstrate that Ms. Desai and Ms. Farrell suffered an “injury-in-fact, ” the plaintiffs must show a concrete injury; it may be tangible^[8] or intangible, ^[9] but in every case, it “must be de facto; that is, it must actually exist.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548 (2016) (cleaned up).

“Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 1549. “Only those plaintiffs who have been concretely harmed by a defendant's statutory violation may sue that private defendant over that violation in federal court.” TransUnion, 141 S.Ct. at 2205. While Congress's views are “instructive” in deciding whether a harm is sufficiently concrete to qualify as an injury-in-fact, a plaintiff does not automatically satisfy the injury-in-fact requirement when a statute creates a private cause of action. See Spokeo, 136 S.Ct. at 1549.

The plaintiffs asserted at oral argument that UNC's various failures to record, inspect, report, and monitor its emission sources concretely injured Ms. Desai and Ms. Farrell by exposing them to illegal and harmful pollutants. Minute Entry 6/30/2021. The plaintiffs offer no evidence to support this contention. Rather, they ask the Court to infer harm from excessive emissions based on the fact that these tasks were never completed, just as the permit itself authorizes the North Carolina DAQ to presume that, had they been completed, the results would have shown emissions in excess of those authorized by the permit.^[10] The plaintiffs do not offer any case law to support this stacked-inference approach, which amounts to nothing more than “a bare procedural violation, divorced from any concrete harm.” Baehr v. Creig Northrop Team, P.C., 953 F.3d 244, 258 (4th Cir. 2020) (citing Spokeo, 136 S.Ct. at 1549).

In the alternative, the plaintiffs contend that Ms. Desai and Ms Farrell were injured because UNC's failure to comply with the monitoring and reporting requirements prevents them from knowing whether UNC is complying with emissions requirements and that this causes harm. See Doc. 42-4 at ¶¶ 10-11 (testifying that failure to comply with permit requirements makes “it difficult if not impossible to know whether permit requirements are being met.”); Doc. 42-5 at ¶ 9 (describing a “professional interest in seeing the successful implementation of beneficial air quality initiatives.”). But they fail to address the standards set by the Supreme Court for informational injuries. See Fed. Election Comm'n v. Akins, 524 U.S. 11, 21 (1998) (recognizing an informational injury for standing). They do not identify a statutory source that provides a right to this information, nor do they explain how denial of that information creates a real harm with an adverse effect that Congress sought to prevent by requiring disclosure....