ORDERS:
ORDER ON STANDING
I. Introduction
Effie Evans (Evans) and Mamie Davenport (Davenport) seek to dismiss this matter since they assert
Thomas R. Norris (Norris) has no standing to challenge the South Carolina Department of Health and
Environmental Control's (DHEC) granting of a 401 Water Quality Certification to Evans and
Davenport. DHEC joins in the motion.
In particular, DHEC, Evans, and Davenport argue that Norris does not allege a particularized injury
from the 401 certification and thus no standing is present. Norris opposes the motion and argues that he
has made specific allegations that he is injured by the 401 certification and thus has standing.
After notice to all parties and after a hearing held on June 28, 2001, I conclude Norris does not have
standing. Thus, the motion is granted and this contested case action is dismissed.
II. Analysis
Standing
A proper party to a contested case may challenge an agency decision with a proper party defined as any
"person . . . properly seeking and entitled as of right to be admitted as a party." S.C. Code Ann. § 1-23-310(4) (Supp. 2000). While no applicable statute or regulation specifies who is "entitled as of right" to
be admitted as a party in this proceeding, at a minimum the complaining party must have "standing" to
proceed with the litigation since an individual complaining of a wrong fails to invoke the jurisdiction of
an adjudicatory body if the complaining individual lacks standing. Lennon v. South Carolina Coastal
Council, 330 S.C. 414, 498 S.E.2d 906 (S.C.App., 1998) (explaining that a lack of standing fails to
invoke jurisdiction since "South Carolina courts, like the federal courts, require a justiciable case or
controversy before any decision on the merits can be reached."); see also Lawrence Brunoli, Inc. v.
Branford, 247 Conn. 407, 411, 722 A.2d 271 (1999) ("Standing is the legal right to set judicial
machinery in motion [since] [o]ne cannot rightfully invoke the jurisdiction of the court unless he has, in
an individual or representative capacity, some real interest in the cause of action, or a legal or equitable
right, title or interest in the subject matter of the controversy.").
Standing, in a dispute with DHEC, "[s]hall be determined on the basis of applicable statutes,
regulations, case law and Board orders." 25 S.C. Code Ann. Regs. 61-72.401 (Supp. 2000). While no
specific statute or regulation identifies the elements of standing for this proceeding, case law has.
A complaining individual must show that he has suffered "an injury in fact--a harm suffered by the
plaintiff that is concrete and actual or imminent, not conjectural or hypothetical." Steel Co. v. Citizens
for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1016, 140 L.Ed.2d 210 (1998). Second, the
complaining individual must establish "causation--a fairly traceable connection between the plaintiff's
injury and the complained-of conduct of the defendant." Id. Lastly, "there must be redressability--a
likelihood that the requested relief will redress the alleged injury." Id. In this case, Norris fails the first
element and thus Norris fails to establish standing.
The only document before this tribunal for consideration in evaluating standing is Norris' Petition for
Administrative Review. In that document, Norris alleges that he owns property that is adjacent to the
proposed project and that his property "will be adversely affected by the Governor's Lake project."
(Petition for Administrative Review, ¶ 3). Norris also alleges that the proposed action for which
Respondents seek Section 401 water quality certification does not meet applicable regulatory standards
including, but not limited to the project's adverse impact on water quality "on adjacent properties . . . ."
(Petition for Administrative Review, ¶ 5).
While Norris has alleged generally that his property will be adversely affected by the project, he does
not state with sufficient particularity what the adverse impact on his property will be. In other words,
Norris' Petition does not set forth specific facts which would allow the ALJ to identify Norris'
individualized injury. Although Norris alleges that one of the regulatory standards which would be
violated by the proposed project is that "the project will adversely impact water quality on adjacent
properties and in the vicinity of the project," he does not allege which adjacent properties will suffer
water quality degradation or whether his property will be one of those properties.
Because the Petition for Administrative Review does not contain any allegations of a concrete and
particularized injury, there has been no showing that Norris has standing to challenge DHEC's issuance
of the Section 401 water quality certification to Respondents. Energy Research Foundation v.
Waddell, 295 S.C. 100, 367 S.E.2d 419 (1988) (where the allegation of injury must be "an
individualized injury; a mere interest in a problem is not enough."); see Lujan v. Defenders of
Wildlife, 112 S.Ct. 2130, 2136 (1992) (An "injury in fact" is "an invasion of a legally protected interest
which is (a) concrete and particularized . . . and (b) 'actual or imminent, not 'conjectural' or
'hypothetical'.'") (emphasis added)(citations omitted).
As a final explanatory comment, one should note that normally, in an administrative proceeding, a
party's request for a contested case hearing need not set forth anything more than what is required under
ALJD Rule 11 unless the presiding ALJ orders the filing of formal pleadings pursuant to ALJD Rule 18.
However, when an opponent files a motion to dismiss for lack of standing, it is then incumbent on the
party claiming standing to either amend the document requesting the contested case hearing or to submit
a comparable document setting forth facts necessary to establish standing. Cf. Carlough v. Amchem
Products, Inc., 834 F. Supp. 1437 (E.D. Penn. 1993) (The plaintiff always bears the burden of
establishing the elements of standing).
Because I conclude that Norris has shown no injury in fact, it is unnecessary to address the remaining
elements of standing in this case.
III. Order
The Motion to Dismiss filed by Evans and Davenport and joined in by DHEC is granted and this
contested case action is dismissed.
AND IT IS SO ORDERED
______________________
RAY N. STEVENS
Administrative Law Judge
Dated: June 28, 2001
Columbia, South Carolina |
