1. Injury in Fact
The Supreme Court has held that a cognizable injury can implicate aesthetic, recreational, or environmental, as well as economic, interests. Sierra Club v. Morton, 405 U.S. 727, 734, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). The magnitude of the harm is not relevant to the standing inquiry, and thus, the injury need not be large: an "identifiable trifle" is sufficient. United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n. 14 (1973). But plaintiffs must assert more than a generalized interest in environmental conservation. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 110 S. Ct. 3177, 3189, 111 L. Ed. 2d 695 (1990). They must show some connection with the geographical area that is the subject of suit. Sierra Club, 405 U.S. at 734-35.
Plaintiffs submitted with their complaint affidavits by five of their members asserting aesthetic, recreational, and health interests in Makepeace Lake and bodies of water downstream therefrom, including Great Egg Harbor River, Great Egg Harbor, and Lake Lenape. These affiants state, inter alia, that they engage in recreational activities in and around these waters, including nature walking, bird watching, boating, swimming, and fishing. They state that these waters smell and appear polluted, and that they would recreate in these areas more often if the waters were not so polluted. Three affiants also state that they avoid eating fish caught in these waters because of concerns that those fish are contaminated with harmful pollutants. Finally, all state that they are interested in obtaining accurate information regarding the amount of pollution discharged into these waters so that they can make informed decisions as to what kind of recreational activities involving these waters are safe.
These assertions have not been contradicted by defendant and thus stand as undisputed facts. We find these assertions to be sufficient to satisfy the injury in fact prong of the standing inquiry. Indeed, the Third Circuit, as well as many judges of this court, have reached the same conclusion based on very similar kinds of injury. See, e.g., PIRG v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3d Cir. 1990), cert. denied, 498 U.S. 1109, 112 L. Ed. 2d 1100, 111 S. Ct. 1018 (1991); PIRG v. Star Enterprise, 771 F. Supp. 655, 662 (D.N.J. 1991); PIRG v. Rice, 774 F. Supp. 317, 322 (D.N.J. 1991); SPIRG v. Jersey Central Power & Light Co., 642 F. Supp. 103, 106 (D.N.J. 1986); SPIRG v. AT&T Bell Laboratories, 617 F. Supp. 1190, 1200 (D.N.J. 1985).
2. Fairly Traceable
In PIRG v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3d Cir. 1990), cert. denied, 498 U.S. 1109, 112 L. Ed. 2d 1100, 111 S. Ct. 1018 (1991), the Third Circuit discussed the application of the "fairly traceable" prong of the Valley Forge test to Clean Water Act cases such as this one. The court held that although plaintiffs must do more than simply show violations of defendants' permits in order to meet the fairly traceable requirement, they need not "show to a scientific certainty that defendant's effluent and defendant's effluent alone, caused the precise harm suffered by the plaintiffs." Id. at 70. Rather, a plaintiff can prevail on summary judgment simply by showing a "substantial likelihood" that the conduct of defendant caused plaintiff's injury.
Id. This may be done by showing that defendant has:
1) discharged some pollutant in concentrations greater than allowed by its permit