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Georgia conservationists get new shot to sue developer over wetland damage

While they welcome an order reinstating their case, Georgia environmental groups have been frustrated with how different judges can have such varying interpretations of the same law.

ATLANTA (CN) — Environmentalists are hopeful for stricter enforcement of the Clean Water Act after the 11th Circuit reinstated a lawsuit against a real estate developer they say landscaped over a wetland without proper permits.

David Kyler, executive director of the Center for a Sustainable Coast, hopes Thursday’s ruling will pave the way for courts to hear more cases like the one brought by his group and the Glynn Environmental Coalition.

"One of the biggest problems for environmental cases is the difficulty of getting standing to even argue the case," Kyler said in an interview. "Hopefully this will lead to more even-handed, correct interpretations of a citizen's right to challenge the decisions that are viewed as contrary to the clean water act."

Kyler also expressed frustration with the justice system and different federal judges having different interpretations of the same law in the same case.

"This decision is the epitome of that. Considering that a federal judge denied our standing and then we appeal and three other federal judges unanimously disagree with that opinion. How much digression to interpreting the law can there be when there's such extremely different views on the same law on the same case," Kyler said.

The Glynn Environmental Coalition and Center for a Sustainable Coast, along with local resident Jane Fraser, sued real estate developer Sea Island Acquisition in 2019, claiming that the developer’s move to fill nearly half an acre of wetland on Georgia's St. Simons Island was not compliant with a permit issued under the Clean Water Act by the U.S. Army Corps of Engineers.

U.S. District Judge J. Randall Hall ruled in 2021 that the groups failed to show they suffered any concrete environmental injury based on recreational or aesthetic harm, prompting their appeal to the Atlanta-based 11th Circuit.

After hearing oral arguments in February, a three-judge panel unanimously vacated the lower court's ruling Thursday.

Chief U.S. Circuit Judge William Pryor, a George W. Bush appointee, wrote that Fraser's allegations of the developer depriving her of the aesthetic pleasure of the wetland's natural habitat are sufficient to establish an injury.

"Fraser explained how and why she derived aesthetic pleasure from the wetland that Sea Island filled. She then explained why her aesthetic interest in the wetland was harmed," Pryor wrote.

The panel cited the U.S. Supreme Court's 1992 decision in Lujan v. Defenders of Wildlife, which says enjoying nature even for purely aesthetic purposes is "undeniably a cognizable interest for purpose of standing."

Kyler said the lower court ignored that precedent, "yet it was the whole basis for the unanimous reversal of the appeals court opinion."

"Many people cannot afford appealing a case once they're denied standing in first instance," he said. "So, if they're turned away they have no fair chance of arguing a case which might be quite legitimate and their standing was unfairly denied."

Pryor was joined on the 11th Circuit panel by U.S. Circuit Judges Adalberto Jordan, a Barack Obama-appointee and Judge Michael Brown, a Donald Trump appointee,

Sea Island Acquisition's 0.49-acre parcel of land next to the parking lot for its nearby hotel in Glynn County is considered a wetland under the Clean Water Act.

The permit the developer obtained approved construction of an office building, but it instead landscaped over the wetland area, which allegedly harmed the surrounding habitat and decreased the water quality of a nearby creek.

Fraser and the environmental groups claim Sea Island never intended to comply with the permit and has no intention to erect any buildings or structures. The wetlands have now been filled with "unnatural grassed areas," they say.

In addition to trouble with how courts interpret the law, Kyler said the Clean Water Act's wetlands compensatory mitigation methods are also insufficient in preventing environmental damage.

"Local wetlands are unique to the area and have unique value where they are, and by destroying them you cannot compensate by acquiring some wetlands somewhere else," he said. "Wetlands that are of unique value, in a number of instances, can be lost forever. That effect is in a way promoted by this mitigation banking procedure policy that the court has established."

According to Scientific American, 85% of North America's wetlands have been destroyed.

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Categories / Appeals, Business, Environment

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