IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
FOOD & WATER WATCH,
Appellant,

V. C.A. NO.: N17A-03-006 AML
DELAWARE DEPARTMENT OF
NATURAL RESOURCES AND

ENVIRONMENTAL CONTROL,

\/\/\/\/\/\/\./\./\./\_/\-/

Appellee.

Submitted: June 8, 2018
Decided: August 24, 2018

MEMORANDUM OPINION

Kenneth T. Kristl, Esquire, of the ENVIRONMENTAL & NATURAL
RESOURCES LAW CLINIC, WIDENER UNIVERSITY DELAWARE LAW
SCHOOL, Wilrnington, Delaware, Attorney for Appellant.

William J. Kassab, Esquire, of the STATE OF DELAWARE DEPARTMENT OF
JUSTICE, Wilmington, Delaware, Attorney for Appellee.

LeGroW, J.

An environmental interest group appeals from an Environmental Appeals
Board’s (the “Board”) decision finding the group lacked organizational standing to
challenge an order issued jointly by the State’s environmental and agricultural
agencies. The order relieved poultry farms of the duty to monitor Water on-site and
in nearby streams for pollutants generated by those farms. The issues before the
Court at this stage of the proceedings are Whether an individual’s loss of
previously-enjoyed recreational and aesthetic enjoyment of an area affected by
government action sufficiently establishes injury in fact, Whether that loss of
recreational and aesthetic enjoyment is traceable to the challenged order, and
Whether a favorable decision Would redress the injury. Because l fmd such loss
does establish injury in fact, is traceable to the challenged order, and likely Would
be redressed if the order Was revoked, l flnd the interest group’s individual
members have standing and, by extension, the group as a Whole has organizational
standing.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2011, the DelaWare Department of Natural Resources and
Environmental Control (“DNREC”) and the DelaWare Department of Agriculture
(“DDA”) established a permit program for Concentrated Animal Feeding
Operations (“CAFOS”) in compliance With a national system. The program Was

designed to allow eligible poultry CAFOS to obtain a general permit (“General

Permit”) after submitting a “Notice of Intent” and “Nutrient Management
Program” to DNREC and DDA.

On October 28, 2015, DNREC published a draft for a revised General
Permit. On March 30, 2016, the Secretary of DNREC and the Secretary of DDA
jointly issued Order No. 2016-W-0008 (the “Order”), approving the General
Permit’s final draft. The General Permit establishes standards for CAFOS to
operate in DelaWare, but does not require CAFOs to monitor Water on-site or in
nearby streams for CAFO-generated pollutants. The lack of site-specific pollutant
monitoring requirements in the General Permit raised the concerns of Kathlyn
Phillips and Maria Payan, both of Whom are members of Food & Water Watch
(“F&WW”).

According to affidavits submitted to the Board, the truth to Which DNREC
stipulated for purposes of resolving F&WW’s standing, Phillips is a resident of
Ocean City, Maryland. In the past, Phillips enjoyed recreating in the lndian River
and other DelaWare Waterways by swimming, boating, kayaking, birdwatching and
hiking. The General Permit’s lack of pollutant monitoring requirements raised
Phillips’ concerns about unknown quantities of bacteria proliferating in DelaWare’s
Waterways. As a result of these concems, Phillips is reluctant to continue her

recreational activities and has ceased her activities in some areas altogether.

Payan is a resident of Selbyville, Delaware. Payan visited Delaware’s
beaches regularly, including Bethany State Park and Prime Hook State Park, and
enjoyed swimming and eating crabs and fish she caught in those areas. Payan has
observed that ditches leading away from CAFOs “frequently smell like animal
waste and contain visible algae.”1 Due to the lack of monitoring requirements in
the General Permit, Payan no longer intends to engage in her previous recreational
activities at Delaware’s beaches.

Patty Lovera is an Assistant Director of F&WW. She has held this position
since 2005 and is “intimately familiar” with the organization’s purpose.2 Lovera
describes F&WW as a non-profit, public interest consumer advocacy organization
with the primary purpose of educating the public and advocating for policies that
promote “environmental protection and the long-term well-being of
communities.”3

On April 25, 2016, F&WW filed an appeal with the Board, claiming the
Order violated the Clean Water Act4 by failing to mandate surface water discharge
compliance monitoring mechanisms F&WW argued the Order improperly was

issued because DNREC failed to regulate pollutant discharge from the CAFOS. On

 

1 Appellant’s App. 78.

2 Appellant App. 83.

3 id. at 34.

4 33 U.s.C. §§ 1251 erseq.

October 18, 2016, DNREC moved for summary judgment, arguing F&WW lacked
standing to challenge the Order.

The Board heard arguments on DNREC’s motion for summary judgment,
and on March l, 2017, the Board issued its decision finding F&WW lacked
standing to appeal the Order. ln its decision, the Board found that, under
Oceanport Industries, lnc. v. Wilmington Stevedores, Inc.,5 F&WW failed to
establish the Order “substantially affected” F&WW’s members. The Board found
the F&WW members’ fear that agricultural pollution “may cause harm” to their
health was conjectural or hypothetical as opposed to concrete and particularized6
Additionally, the Board found F&WW failed to establish its members’ injuries
fairly were traceable to the Order because the alleged injuries could be caused by
multiple sources of pollution as opposed to pollution exclusively caused by
CAFOS. Finally, the Board found the alleged injuries, i.e., curtailing recreational
activities due to fear of pollution, were those shared by the public generally
because other members of the public also may suffer those injuries.

THE PARTIES’ CONTENTIONS

On appeal, F&WW argues one or more of its members has standing to sue in
their own right and F&WW therefore has organizational standing to challenge the

Order. Particularly, F&WW contends its members have standing because damage

 

5 636 A.zd 892 (Dei. 1994).
6 Board Decision at 18.

to aesthetic or recreational interests constitute an injury in fact under the Delaware
Supreme Court’s decision in Dover Historical Society v. Dover Planning
Commz`ssz`on.7 F&WW contends the Board applied the wrong legal standard by
requiring the members to show physical harm in order to demonstrate standing.
F&WW also argues the Board ignored the stipulated facts by concluding Phillips
and Payan had not suffered injury because they still enjoyed some recreational
activities.

Additionally, F&WW asserts the Board erred by finding the injuries at issue
were not traceable to the Order. The injury, F&WW maintains, is the individual
affiant’s decreased enjoyment and use of affected waterways due to the Order’s
lack of pollution monitoring requirements, and that injury, F&WW argues, fairly is
traceable to the Order. Additionally, F&WW asserts the injury is redressable
because a favorable decision from the Board would require CAFOs to resume
pollution monitoring. Finally, F&WW contends it satisfies the other two
requirements for organizational standing because the claim does not require the
participation of its individual members and the suit is germane to F&WW’s
purpose.

In response, DNREC argues F&WW’s members have failed to establish an

injury in fact because the Order does not affect Phillips and Payan in a personal

 

7 838 A.2d 1103 (Dcl. 2003).

and individualized manner. DNREC contends Phillips’ and Payan’s recreational
enjoyment is more akin to interests shared by the public at large as opposed to an
individual interest. In its brief and at oral argument, DNREC suggested that under
the Delaware Supreme Court’s decision in Dover Historical Society, a plaintiff
would need to own property in the affected area in order to establish injury in fact,

DNREC next argues that Phillips’ and Payan’s injuries are not traceable to
the Order because their actual injury is pollution in Delaware’s Waterways, not lack
of CAFO pollution monitoring8 DNREC contends this injury could not be
redressed by a favorable decision from the Board because reimposing the
monitoring requirements would not erase the other forms of pollution in
Delaware’s waterways. DNREC concedes that F&WW otherwise satisfies the
requirements for organizational standing.

ANALYSIS

An appellate court’s review of a Board decision is limited. The Court
merely determines whether the decision was supported by substantial evidence and
free of legal error.9 Upon review of an administrative agency’s findings, the Court
“will not substitute its judgment for that of an administrative body where there is

substantial evidence to support the decision and subordinate findings of the

 

8 By this argument, DNREC directly recliaracterizes the injury alleged by Phillips and Payan.
9 Ward v. De[) ’t q/"Ei*ecri`ons, 2009 WL 2244413, at *1 (Dcl. July 22, 2009).

6

agency.”10 When reviewing the Board’s conclusions of law, the Court’s review is

de novo.ll

The Board held F&WW lacked organizational standing because it could not
show its members would have standing to sue in their individual capacity. “An
organization may sue on behalf of its members if 1) the interests to be protected by
the suit are germane to the organization’s purpose; and 2) neither the claim
asserted nor the relief requested requires the participation of individual members;
and 3) the organization’s members would otherwise have standing.”12 Both before
the Board and on this appeal, DNREC conceded the first two elements of this
test.13 Accordingly, F&WW’s standing turns on whether F&WW’s members
individually could maintain this suit.

The Board found F&WW’s members could not sue in their own right
because they failed to show they substantially were affected by the Order. The
Board concluded neither Phillips nor Payan demonstrated their alleged injuries
were actual or imminent as opposed to conjectural or hypothetical. The Board also

held the injuries were not fairly traceable to the Order because other pollutants may

 

10 amey v. Cooch, 425 A.2d 610, 613 (Dei. 1981).

11 Wm-d, 2009 WL 2244413, at *i.

12 c)¢-e¢mp(m mdm.»., lnc. v. Wizm. Srevedores, lnc., 636 A.2d 892, 902 (Dei. 1994).
13 Appellee’s Answcr Br. 18.

contaminate the affected waters. Finally, the Board concluded the members’
recreational injuries are more like those suffered by the public generally.14

In order to determine an individual’s standing to challenge an administrative
decision, the Court must look to the statutory language that confers a party’s right
to appeal that decision.15 Title 7, Section 6008(a) of the Delaware Code provides
“[a]ny person whose interest is substantially affected by any action of the Secretary
may appeal to the Environmental Appeals Board within 20 days after receipt of the
Secretary’s decision or publication of the decision.”16 ln Oceanport Industries, the
Delaware Supreme Court held Section 6008(a)’s “substantially affected”
requirement can be established by applying the three-pronged Data Processing
Test,17 which initially was formulated in Association of Data Processz`ng Service
Organizations, Inc. v. Camp.18 First, the party must have suffered an injury in
fact,19 ln other words, the injury must be concrete and particularized, not
conjectural or hypothetical. Second, the injury must be fairly traceable to the
challenged action of the defendant. Third, “it must be likely that the injury will be

redressed by a favorable decision, rather than merely speculative.”ZO

 

14 The Board did not address whether the injuries were redressable.
15 161 61900.

16 7 Del. C. § 6008(6).

17 Oceanport lndust., Inc., 636 A.2d at 903.

18 397 U.s. 150 (1970).

19 161 61904.

20 lai

A. Phillips and Payan suffered an injury in fact.

The Delaware Supreme Court addressed the requirements for establishing
injury in fact in Dover Historical Society v. Dover Planning Commz`ssion.21 In
Dover Historical Society, the Supreme Court held “[i]n order to achieve standing,
the plaintiffs interest in the controversy must be distinguished from the interest
shared by other members of a class or the public in general.”22 In that case, the
petitioners, which included an historical organization, residents who owned
property within the Historic District of Dover, and property owners within the
larger city of Dover, challenged the Dover Planning Commission’s decision
granting a permit to build a new structure in Dover’s historic district.23

The Supreme Court held the group of petitioners who owned property within
the historic district had standing because “injuries asserted by owners of land in the
Historic District of Dover do not arise from a ‘common concern for obedience to
the law’ but from individual concerns about the integrity and cohesiveness of
historical sites in their own backyard.”24 Conversely, the Court denied standing to
the group of petitioners who owned property in the greater city of Dover because
“the remaining petitioners had not alleged facts that demonstrated they have an

interest that is distinguishable from the public at large or that they will realize a

 

21 838 A.2d 1103 (D61.2003).

22 Id. at 1116 (quoting Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1382 (Del. 1991)).
23 161 611105-06.

24 Id. at 1114 (quoting Pye v. U.S., 269 F.3d 459, 469 (4th Cir. 2001)).

9

”25 ln other words,

direct harm from the decision of the Planning Commission.
under the Dover Historical Sociely decision, a petitioner whose standing is
challenged must demonstrate they have an interest distinguishable from the public
at large or that they will realize a direct harm from the challenged government
action.

The ability to demonstrate an interest distinct from the public or a direct
harm resulting from government action depends on the context of the interest at
stake. In the context of challenging the decision of a planning commission, such as
the one in Dover Historical Sociel;\),26 some sort of property interest arguably is

required to set the petitioner’s interest apart from the public at large.27

Contrary,
however, to DNREC’s arguments in this case, the Dover Historical Society Court
did not hold that a property interest is required to establish injury in fact in every
context.

By taking Dover Historical Sociely out of its context and according it an

unreasonable interpretation, DNREC effectively argues there is no standard by

 

25 Ia'. at 1116 (emphasis added).

26 See also Harvey v. Zoning Bd. of Adjustment of Odessa, 2000 WL 33111028 (Del. Super. Nov.
27, 2000), Healy v. Bd. of Adjustmenl of the Cily of New Castle, 2003 WL 21500330 (Del. Super.
June 20, 2003), Socie!y Hill waer.s' ()wners Ass ’n v. Rendell, 210 F.31’d 168 (3d Cir. 2000).

27 Even that argument is inconsistent with the Dover Hz'sroi'ical Socie!y Court’s opinion. While
denying standing on the existing record to plaintiffs who did not own property within the historic
district, the Court remanded the case and allowed those plaintiffs ten days to file an amended
petition in the Superior Court alleging a concrete and particularized injury. 838 A.2d at 1116.

10

which a non-property owner may show injury in fact under Section 6008(a).28
DNREC compares Phillips and Payan to the non-property owners in Dover
Historical Society, suggesting a party must establish a particularized harm through
loss of property value in order to show Standing.29 DNREC’s property interest
argument fails to recognize the myriad injuries unrelated to property value that
potentially are at issue in an environmental claim, including harm to livestock,
contaminated water supplies, and decreased recreational activities of active
individuals

A more reasonable view of standing in the context of an environmental
claim, and one endorsed by the Delaware Supreme Court, is the one expounded in
the United States Supreme Court’s decision in Sierra Club v. Morton.30 There, the
Supreme Court held that a party seeking review must show “that the alleged injury
[actually affects] the plaintiff in a personal and individual manner . . . .”31 The
effect on the plaintiff, however, need not be a property, economic, or tangible
interest. Rather, “[i]njury due to loss of benefits that might be derived from natural

resources such as camping, hiking, fishing, sightseeing and the like is similarly of

 

211 Appellee‘s Answer Br. 19-24.

29 ld. at 23 (citing Dover His!orz`ca!` Soc., 838 A.2d at 1114).

211 405 u.s. 727 (1972).

3' Oceanporf hidtts.'., fnc. v. Wi`fni. S!evea'ores, Inc., 636 A.2d 892 (1994).

11

an intangible character and yet potential injury to such interests was found . . . to
be enough to support standing.”32

The United States Supreme Court’s decision in Friends of the Earth, Inc. v.
Laidlaw Envz`ronmental Ser'vices (TOC), lnc.,33 further elucidated the parameters to
standing based on an alleged environmental injury. In Friends of the Earth, the
Court held that “environmental plaintiffs adequately allege injury in fact when they
aver that they use the affected area and are persons ‘for whom the aesthetic and
recreational values of the area will be lessened’ by the challenged activity.”34 In
Friends of the Earth, an environmental group brought an action against the
operator of a wastewater treatment plant, claiming the plant repeatedly discharged
mercury in the Tyger River in excess of the limits under its permit.35 ln support of
its standing argument, the group submitted several affidavits from its members.
The affidavits detailed how members of the group previously swam, camped,
picnicked, waded, birdwatched, hiked, and canoed on the river, but no longer

would do so because of feared mercury contamination The Court held these

affidavits asserted that the mercury discharges “directly affected th[e] affiants’

 

22 Harvey v. Zonmg Bd. OfAdjusrmen¢ of Odessa, 2000 WL 33111028, at *7 (Dei. super. Nov.
27, 2001) (quoting Save the Courthouse Commz'ttee v. Lynn, 408 F.Supp. 1323, 1332 (S.D.N.Y.
1975)).

22 528 U.s. 167 (2000).

24 161 at 183 (quoting Sierm Club v. Mor¢on, 405 U.s. 727, 735 (1972)).

22 Id. 61167.

12

recreational [and] aesthetic[] interests . . . .”36 The Court found the affidavits
“present[ed] dispositively more than . . . mere ‘ general averments’ and ‘conclusory
allegations . . . .”’37

The Delaware Supreme Court cited the Friends of the Earth framework in
Dover Historical Sociei_‘y, noting “aesthetic injuries can constitute an injury in fact

that is sufficient to support a plaintiffs standing.”38

Environmental plaintiffs
therefore may establish injury in fact “when they aver that they use the affected
area and are persons ‘for whom the aesthetic and recreational values of the area
will be lessened’ by the challenged activity.”39

Phillips’ and Payan’s affidavits meet that standard. In her affidavit, Phillips
averred that she previously enjoyed swimming, boating, kayaking, birdwatching,
and hiking in the lndian River and other DelaWare waterways. Phillips stated that
fear of contamination due to lack of CAFO discharge monitoring has decreased her
enjoyment of these activities and she has decided to avoid recreating in certain
areas altogether.

Similarly, Payan’s affidavit noted how she used to enjoy visiting Bethany

State Park and Prime Hook State Park, which are near her residence, as well as

 

26 161 61184.

37 ld

38 Dover Historical Soc. v. Dover Planning Comm’n, 838 A.2d 1103, 1113 n.42 (Del. 2003)
(citing Friend.s‘ ofthe Earth, Inc. v. Laidfaw Envt!. Serv, (TOC), Inc., 528 U.S. 167, 183 (2000)).
29 Friends 611th Ear¢h, 528 U.s. at 183 (quoting sierra mb v. Morron, 405 U.S. 727, 735
(1972)).

13

swimming and eating crabs and fish that she caught in the area. Payan averred that
due to the Order’s lack of monitoring requirements, she no longer intends to swim
or fish in these state parks for fear of CAFO-generated pollutants. Phillips and
Payan therefore have established injury in fact because their aesthetic and
recreational enjoyment of the affected areas has been lessened by the General
Permit’s lack of monitoring requirements These injuries are distinct from injuries
suffered by the public at large because the threat of water pollution has affected
their activities in an individual and personal manner.

The Board’s conclusion that Phillips’ and Payan’s injuries were conjectural
and hypothetical misapplied Delaware law. The Board noted Phillips has not
ceased her recreational activities entirely and held that Payan’s injury was
hypothetical because Payan was concerned that the pollution “may cause harm to
her health.” The Board missed the mark on both points. First, although Phillips
has not ceased all her recreational activities, her injuries were actual because her
activities have diminished and her enjoyment of affected areas is lessened. Under
Friends of the Earth, an environmental plaintiff does not need to exhaust all
possible outlets for recreational activity before she may challenge the government
action.40 Second, Payan’s injuries are not the potential harm to her health, but

rather the actual injury of lessened recreational and aesthetic enjoyment of the

 

401d

14

affected areas. Under Frz`ends of the Earth and Dover Historical Sociely, that
lessened recreational activity is not hypothetical or conjectural In denying Phillips
and Payan standing, the Board applied an impermissibly high standard inconsistent
with Friends of the Earth and Dover Historical Society.

B. Phillips’ and Payan’s injuries fairly are traceable to the General Permit
and may be redressed by a favorable decision.

Phillips’ and Payan’s recreational and aesthetic injuries are traceable to the
lack of pollution monitoring in the General Permit’s provisions. Both the Phillips
and Payan affidavits expressed concern that their health negatively will be affected
by bacterial pollution while they recreate and fish in Delaware waterways and the
absence of site-specific CAFO-generated pollutant monitoring makes it impossible
to pinpoint affected areas. As a result of the lack of information regarding the
contamination of the affected waters, Phillips and Payan allege they are injured
because they have reduced or ceased their recreational activities.

In its decision, the Board found that F&WW failed to show Phillips’ and
Payan’s injuries fairly were traceable to the General Permit because they presented
no evidence that the CAFOS have polluted the state waterways. The Board
concluded that because “it is recognized” that there are many forms of pollution in

Delaware’s waters, F&WW would need to present evidence that the pollution was

15

caused by CAFOs directly.41 The Board went so far as to question the sincerity of
Phillips’ and Payan’s affidavits, suggesting their fear of water pollution actually
stemmed from alternate sources of pollution as opposed to CAFO-generated
pollution,42 By considering other sources of pollution and discounting the
affidavits, the Board improperly weighed the merits of the case, introduced new
facts not in the record, and drew inferences that were not appropriate at this stage
of the proceedings and that contradicted DNREC’s stipulation to the truth of the
affidavits

First, it was improper for the Board to consider whether alternate forms of
pollution could have been the source of Phillips’ and Payan’s injuries. As noted
above, the injury at issue is not injury to the members’ health, but rather loss in

recreational and aesthetic value due to lack of information about site-specific

 

41 Board Decision at 19.

42 Compare Board Decision at 19 (“The members’ fears of water pollution may have caused
them to curtail their recreational activities, but such fears did not stem from a direct correlation
between water pollution caused by CAFOS and water pollution caused by some third party.”),
with Appellant’s App. 72-73 (“My concerns about Delaware’s CAFO pollution are also affecting
my recreational activities. My knowledge and awareness of the various types of pollution in
these waterways, including fecal coliform and nutrient pollution from poultry CAFOS, make it
much less enjoyable for me when I . . . personally recreate on rivers like the Pocomoke and
elsewhere in the Coastal Bays watershed. . . . Because the ocean cannot flush contaminants from
the Delaware Inland Bays as easily as the Atlantic Coastal Bays, l am now reluctant to recreate
in them for fear of CAFO pollution and intend to avoid certain areas in the future that I would
have continued to recreate in if not for my concerns about CAF 0 industry pollution.”) (emphasis
added), and Appellant’s App. 80 (“Until recently, l would regularly swim in the ocean, crab off
of the docks, fish, and eat the crabs and fish I caught. Bethany State Park is only about twenty
minutes from my house, and l am also close to Prime Hook State Park, and I would visit them
often if l felt it was safe. But because of my knowledge of CAF O water pollution and the threats
it poses to public health, l will no longer swim in these beaches or eat locally caught fish or
crabs.”) (emphasis added).

16

CAFO pollution, By speculating that the water is polluted by additional sources,
the Board improperly weighed the merits of the case and mischaracterized the
members’ injuries.

Second, by “recognizing” additional sources of pollution, the Board
improperly alluded to alleged facts not contained in the record. The Board’s
decision denied F&WW’s standing on DNREC’s motion for summary judgment,
and the Board therefore was required to draw all reasonable inferences in
F&WW’s favor and accept the averments that the members’ injuries stemmed from
a lack of information on CAFO pollution caused by the General Permit’s new
provisions. Moreover, DNREC stipulated to the averments in those affidavits and
agreed to accept their truth for purposes of determining F&WW’s standing.

Finally, Phillips’ and Payan’s injuries could be redressed by a favorable
decision from the Board. Were F&WW to succeed on the merits, the Order would
be reversed, and the CAFOs would be required to monitor the water on-site and in
nearby streams for CAFO-generated pollutants. lnformation from the results of the
CAFOS’ monitoring would be available to F&WW and its members, allowing the
members to resume their recreational activities without fear of pollution at
particular sites due to lack of monitoring In sum, Phillips and Payan suffered
injuries in fact that fairly are traceable to the Order and are capable of redress by a

favorable decision of the Board. Accordingly, F&WW’s members have standing

17

to sue in their own right and F&WW therefore satisfies all three requirements for
organizational standing.

CONCLUSION

For the foregoing reasons, the Environmental Appeals Board’s decision is

REVERSED and REMANDED. IT IS SO ORDERED.

18

