2020 Environmental Real Estate Issues

An environmental group filed a Clean Water Act citizen suit, alleging a company did not comply with the permitting process before filling a half-acre of wetlands.

Group Must Adequately Plead an Injury in Fact to Establish Standing
Among the requirements to establish standing to sue, the group had to allege one of its members suffered an injury in fact because of the alleged violation. The district (trial level) court dismissed the case, ruling the allegations did not meet standing requirements. Specifically, the district court ruled allegations of aesthetic and recreational injuries were inadequate. Further, the district court ruled the allegations lacked enough particular facts to meet the requirement to establish a “concrete injury.”

Aesthetic Injuries Can Establish Injury in Fact
The 11th Circuit Court of Appeals reversed, holding allegations that the member regularly visited the area and that filling in the wetland diminished the pleasure of viewing met the “injury in fact” requirement for standing. The Court also held that the member’s allegations that she derived aesthetic pleasure from the wetland prior to it being filled, even though the member never physically walked on or used the wetland, were adequate to allege “a concrete injury to her aesthetic interest in the wetland.”

The 11th Circuit remanded the case to the district court for further proceedings.

To see the 11th Circuit’s opinion https://media.ca11.uscourts.gov/opinions/pub/files/202110676.pdf