Actual and Conjectural? Injury-in-Fact in Glynn Environmental Coalition, Inc. v. Sea Island Acquisition

In March 2022, the Eleventh Circuit Court of Appeals reversed the decision of Southern District of Georgia, which had dismissed for lack of standing the suit of environmental plaintiffs regarding the fill of a wetland under the Clean Water Act (CWA). Glynn Environmental Coalition, Inc., et al. v. Sea Island Acquisition, LLC, 26 F.4th 1235 (11th Cir. 2022). In finding that the plaintiff had established injury-in-fact through the diminution of the aesthetic value she obtained from visiting the wetland in question after its fill, the court built on well-established precedent regarding standing under Article III. The court’s analysis went further, however, by suggesting the plaintiff would have suffered a cognizable aesthetic injury even if she had never visited the wetland prior to it being filled. Such an interpretation is generally not consistent with decisions in other circuits and represents a significant expansion of current standing jurisprudence.

The case involves a section 404 permit under the CWA issued by the U.S. Army Corps of Engineers to defendant developers in Glynn County, Georgia. Glynn Environmental, 26 F.4th at 1238. Plaintiffs, an environmental group joined by longtime local resident Ms. Jane Fraser, asserted standing through aesthetic and recreational injury to Fraser and associational standing for the group. Id. at 1239. In their suit, plaintiffs alleged defendants violated the CWA and Georgia state law by failing to comply with the terms of their permit and state certification and because they “intentionally and maliciously mislead the Corps” in their permit application. Id. The district court granted the defendant’s motion to dismiss for lack of standing finding that plaintiffs had offered only “conclusory and speculative assertions” regarding Fraser’s injury. Id. Specifically, the court rejected the claim of injury to aesthetic interests because Fraser had not visited the wetland prior to its fill. Id at 1240.

Reviewing the dismissal, the Eleventh Circuit found that Fraser’s affidavits indicated that she had in fact visited the wetland site prior to its fill. Id. at 1241. The court went on, however, to state that visiting the wetland prior to its fill was not necessary to establish injury-in-fact and that aesthetic injury existed so long as Fraser could “not derive aesthetic pleasure from [the wetland] because it was filled.” Id. To support this proposition, the court pointed to the U.S. Supreme Court’s decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), as standing for the proposition that plaintiffs may have suffered an injury sufficient for standing purposes where they “would have liked to” engage in some recreational activity but could not because of defendants alleged conduct. Glynn Environmental, 26 F.4th at 1241–42. Specifically, the Eleventh Circuit looked to Justice Scalia’s dissent in that case, which observed that the majority’s holding permitted standing where plaintiffs had never before used the affected area, or had done so only once or twice years before. Id.

As early as 1972, the Supreme Court has recognized that aesthetic interests can serve as the basis for Article III standing. Sierra Club v. Morton, 405 U.S. 727, 735 (1972). In 1992, the Court found that “conjectural and hypothetical” injury is insufficient to establish standing, and that to satisfy the standing requirement, the interest must be “concrete and particularized” and “actual or imminent.” Lujan v. Defenders of Wildlife, 504, U.S. 555, 560 (1992). In 2000, the Court provided additional guidance stating that “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.” Friends of the Earth, 528 U.S. at 183 (quoting Sierra Club, 405 U.S. at 735) (internal quotations removed)).

In applying these precedents, the various circuits seem to have added an implicit temporal element to the injury-in-fact analysis, namely that the plaintiff demonstrate some connection to area in question that precedes the challenged action. A survey of appellate decisions applying the aesthetic injury analysis from Friends of Earth indicates that courts tend to find injury-in-fact in two situations: 1. where plaintiffs allege that a proposed action will diminish the aesthetic value they obtain from an area they currently use; or 2. where plaintiffs allege defendant’s conduct has already diminished the aesthetic value they currently obtain from an area they used prior to the challenged action.

Some noteworthy examples stand out. The Second Circuit found standing was not present where litigants came to an affected area only for the purpose of alleging an injury, finding that their failure to reside, own property, or recreate in the affected area did not constitute “use” under Friends of the Earth. Mancuso v. Consol. Edison Co. of N.Y., 25 Fed. Appx. 12 (2d Cir. 2002). In 2005 the Eleventh Circuit found standing for past harm without explicitly stating that the plaintiff had used the resource prior to the challenged action, but this appears to be the exception that proves the rule. Sierra Club v. TVA, 430 F.3d 1337 (11th Cir. 2005). In general, however, courts have tended to find injury-in-fact only where plaintiffs have some connection to the affected area prior to the challenged action.

To some extent, both Lujan and Friends of the Earth point to this implied temporal element. The requirement from Lujan that injury be “actual or imminent” may be read to outline two categories: harm to a past interest (actual injury) and future harm to a current interest (imminent injury). Likewise, the language in Friends of the Earth recognizing standing for those who “use the affected area” (present tense) and whose enjoyment “will be lessened” (future tense) may also suggest that use must precede harm. Indeed, such a rule is perhaps somewhat intuitive. Absent some quantum of enjoyment that either has been—or will be—diminished, aesthetic injury may tend to resemble the “conjectural” and “hypothetical” injuries that Lujan excluded. The temporal requirement may also resonate with common law tort principles of “coming to a nuisance” and “assumption of risk,” which limit a plaintiff’s recovery where they never possessed an interest unencumbered by the allegedly tortious conduct.

Nevertheless, the facts of Glynn Environmental suggest that such a temporal element may be difficult to apply. If injury is based on aesthetic preference rather than mere personal familiarity—such as a preference for natural wetland grasses over unnatural flora as was the case with Fraser—a challenged action could arguably diminish a newcomer’s aesthetic pleasure just as much as it would that of a long-term resident. Moreover, the Supreme Court has never articulated the temporal element discussed here, and in his dissent to Friends of the Earth, Justice Scalia warned of the lenience of the plain language of the majority opinion. Friends of the Earth, 528 U.S. at 201. It is perhaps suggestive of the Eleventh Circuit’s ambition that the court cites only to this dissent to support its broad application of Friends of the Earth.

The practical implications of this decision are unclear. To the degree the holding is based on a factual mistake by the District Court, the decision sits comfortably within relevant Supreme Court precedent and general practice throughout the circuits. The explicit language interpreting Friends of the Earth to exclude a temporal element is something new. Moving forward, it should come of little surprise to see environmental litigants in the Eleventh Circuit expanding their pools of potential plaintiffs and environmental groups throughout the country paying close attention to developments in Article III standing arguments because of Glynn Environmental.