Friday, August 14, 2009

Steven Pollack v. DOJ

Aug 13: In the U.S. Court of Appeals, Seventh Circuit, Case No. 08-3857. The case involves a gun range that the United States government operates on the shores of Lake Michigan. The plaintiffs brought suit against several governmental agencies, alleging that the discharge of bullets into the lake violates various environmental laws. The district court dismissed the suit for want of jurisdiction after concluding the plaintiffs lacked constitutional standing. The Appeals Court affirmed the district court decision.

Plaintiff, Steven Pollack is an attorney who lives in Highland Park, Illinois, thirteen miles south of the range. He is the executive director of plaintiff Blue Eco Legal Council (Blue Eco), an environmental group “with an interest in the environmental safety of the Great Lakes watershed,” that, among other things, sues private and governmental polluters to enforce environmental laws.

To establish standing, the plaintiffs relied on affidavits submitted by Pollack and another Blue Eco member, Darren Miller, who is also a resident of Highland Park. Pollack’s affidavit stated that he enjoyed watching birds in the Great Lakes watershed, visited public parks along the Lake Michigan shoreline, drank water from Lake Michigan at his home in Highland Park, and ate freshwater and ocean fish. Miller’s affidavit was nearly identical to Pollack’s.

The district court dismissed the suit for lack of subject matter jurisdiction saying that plaintiffs concern over drinking water did not provide standing because the drinking water in Highland Park was below the environmental limit on lead pollution allowed by the city government, thereby negating any claim of harm. Additionally, the district court held that expressed concerns over birds, fish, and wildlife were "too general and did not allege any particular or specific harm" that had been caused by the bullets at the gun range.

The Appeals Court concluded, "Because neither Pollack nor Miller has demonstrated that they were concretely affected by the shooting activities they challenge, neither individual has standing to pursue this case. Accordingly, neither Pollack nor Blue Eco has standing. The district court’s dismissal of this suit for lack of subject-matter jurisdiction is affirmed."

In a separate concurring opinion, one Judge wrote, "This is without question a close case. As the case law laid out by the majority suggests, 'injury in fact' can be an elusive phenomenon. Although in the present case an injury is arguably traceable to the deposit of toxic substances in potable water, such phenomena appear and disappear from one case to the next depending on subtle twists in the allegations, turning between the real and the hypothetical."

Access the complete opinion (
click here).

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