ORDERS:
ORDER GRANTING MOTION TO DISMISS FOR LACK OF STANDING
I. Introduction
Mr. and Mrs. Robert Morris, Mr. and Mrs. Walter Morgan, Mr. and Mrs. Benjamin DuPont, and Ms.
Barbara Bartoldus (Petitioners) challenge a decision by the South Carolina Department of Health and
Environmental Control (DHEC) to issue a landfill permit to T&T Disposal, LLC (T&T). After the
initial filings, T&T moved to dismiss the Petitioners’ challenge on the ground that the Petitioners lack
standing. The motion is granted.
II. Analysis
A. Introduction
In the absence of any specific promulgated rule establishing the requirements for standing, the
required elements are set by case law.
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351
(1992), the United States Supreme Court enunciated a stringent standing test. Lujan
set forth the "irreducible constitutional minimum of standing," which consists of the
following three elements:
First, the plaintiff must have suffered an 'injury in fact'--an invasion of
a legally protected interest which is (a) concrete and particularized and
(b) actual or imminent, not 'conjectural' or 'hypothetical'. Second,
there must be a causal connection between the injury and the conduct
complained of--the injury has to be "fairly ... trace[able] to the
challenged action of the defendant, and not ... th[e] result [of] the
independent action of some third party not before the court." Third,
it must be 'likely,' as opposed to merely 'speculative,' that the injury
will be 'redressed by a favorable decision.'
Id. at 559-61, 112 S.Ct. at 2136 (internal citations omitted); see also Beaufort Realty
Co. v. S.C. Coastal Conservation League, 346 S.C. 298, 551 S.E.2d 588 (S.C.
Ct.App. 2001).
Sea Pines Ass'n for Protection of Wildlife, Inc. v. South Carolina Dept. of Natural Resources, 345
S.C. 594, 550 S.E.2d 287 (2001).
B. Framework For Analysis
1. Burden of Proof
The Petitioners bear the burden of establishing standing. Id. In meeting that burden, standing “must
be supported in the same way as any other matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the successive stages of the litigation.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
2. Method of Proof
In South Carolina, a motion challenging standing addresses the jurisdiction of the adjudicating body.
See ALC Rule 68 and SCRCP Rule 12(b)(1); Blandon v. Coleman 285 S.C. 472, 330 S.E.2d 298
(1985) (in the absence of standing an individual may not invoke judicial power); Lennon v. South
Carolina Coastal Council, 330 S.C. 414, 498 S.E.2d 906 (Ct. App. 1998) (jurisdiction is not
invoked without standing). The stage of the litigation is an evidentiary stage since challenges to
jurisdiction require the adjudicating body to examine any factual concerns upon which jurisdiction
must rest with those facts being determined from the evidence presented by the parties. Woodard
v. Westvaco Corp., 315 S.C. 329, 332, 433 S.E.2d 890, 892 (Ct.App.1993), vacated on other
grounds by 319 S.C. 240, 460 S.E.2d 392 (1995); Baird v. Charleston County, 333 S.C. 519, 511
S.E.2d 69 (1999) (“motion to dismiss [for lack of jurisdiction] may be supported by, and the court
may consider, affidavits or other evidence proving lack of jurisdiction.”); Glass v. Dow Chemical
Co., 316 S.C. 116, 447 S.E.2d 209 (Ct. App. 1994) (“It stands to reason that the court may likewise
[in addition to affidavits seeking to prove lack of jurisdiction] consider affidavits and other evidence
submitted by the party opposing the motion.”).
When deciding such jurisdictional matters, the “court must evaluate the jurisdictional merits for itself
and need not attach any presumption of truthfulness to the non-moving party's allegations.” Carpet
Group Int'l v. Oriental Rug Importers Assoc., 227 F.3d 62, 69 (3d Cir.2000); Thornhill Publ'g
Co., Inc. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979) (explaining that a motion
to dismiss based on a factual attack to subject matter jurisdiction does not place any presumptive
truthfulness upon the plaintiff's allegations but instead the presence of disputed material facts requires
the trial court to evaluate for itself the existence of subject matter jurisdiction in fact); Mortensen v.
First Federal Sav. and Loan Ass'n, 549 F.2d 884 (3rd Cir. 1977) (“That the [trial] court is free to
determine facts relevant to its jurisdiction has long been clear.”).
In making its evaluation of the facts needed to establish jurisdiction, the adjudicating body has broad
discretion in deciding the method by which such facts may be proven For example, a long accepted
exercise of discretion permits the determination of facts by the use of affidavits. Land v. Dollar, 330
U.S. 731, 735 n. 4 (1947) (“the court may inquire by affidavits or otherwise, into the facts as they
exist.”); Berardi v. Swanson Memorial Lodge No. 48 of the Fraternal Order of Police, 920 F.2d
198 (Pa. 3rd Cir. (1990) (an opportunity to the non-moving party to present facts by affidavit in
support of the jurisdictional position is appropriate).
3. Proof Provided
In the instance matter, the Petitioners chose not to submit any affidavits. Instead, they rely upon their
previously filed request for a contested case dated January 29, 2004 and their Prehearing Statement
of March 12, 2004.
Under the record made here, I find two independent grounds require dismissal
of the instant action.
a. Lack of Proper Allegations
Both the Petitioners’ request for a contested case and the Prehearing Statement explain that “[w]e
believe that DHEC did not properly determine that the landfill is consistent with the state and local
solid waste plan.” Second, “[w]e also believe that this landfill is going to be located too close to
groundwater” and “that the groundwater will be contaminated by the new landfill.”
Such assertions are insufficient for standing. While they may allege reasons for denying the permit,
the assertions do not allege an injury in fact to the Petitioners. Indeed, at best, the assertions allege
that granting the landfill permit will harm the environment. However, harm to the environment does
not confer standing; standing requires harm to the Petitioners themselves. Friends of the Earth, Inc.
v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000). Accordingly, standing is
lacking here since no allegation of an injury in fact has been made.
b. Lack of Proof of Injury to Petitioners
Moreover, even if one could construe the Petitioners’ allegations of harm to the water table to imply
a harm to themselves, the evidence does not establish an injury in fact to the Petitioners.
T&T presented the affidavit of Deepal Eliatamby, a South Carolina Professional Engineer and
designer of the landfill facility here under review. He states that none of the residences near the site
are located downgradient of the proposed facility and, thus, the groundwater under the site runs in
the opposite direction of the Petitioners' properties, toward the south, into nearby Wig Swamp.
Further, he states that the movement of water under the surface of the earth is very slow and that the
facility is to be located in an area where a clay layer is naturally present. From his experience and
knowledge of the area, he discounts any impact upon the Petitioners.
The Petitioners, on the other hand, presented no evidence of an injury in fact. Indeed, unlike T&T,
Petitioners filed no affidavits explaining the impact granting the landfill permit will have on their use
of the water table in question. Given the record made in this case, Petitioners are asking the Court
to find standing based upon mere speculation. Such is an improper basis for standing. Sea Pines
Ass'n for Protection of Wildlife, Inc. v. South Carolina Dept. of Natural Resources, 345 S.C. 594,
550 S.E.2d 287 (2001) (“Appellants presented no evidence their opportunity to view and enjoy the
deer would be diminished by the permits [thus establishing [t]]he Appellant's injury is conjectural
because it is not certain that reducing the size of the herd would decrease the number of deer actually
viewed by the residents each day.”); Sierra Club v. Robertson, 28 F.3d 753 (8th Cir.1994) (mere
assertions of potential future injury will not satisfy the injury-in-fact requirement); Whitmore v.
Arkansas, 495 U.S. 149 (1990) (before an injury which is yet to occur can constitute an injury-in-fact, the injury must be "certainly impending").
III. Order
There being no injury in fact sufficient to support standing, the Motion to Dismiss is GRANTED.
AND IT IS SO ORDERED
______________________
RAY N. STEVENS
Administrative Law Judge
Dated: June 24, 2004
Columbia, South Carolina |
