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San Francisco�Although the Earth’s thinning ozone layer affects millions of people, the damage is concrete enough that an individual can sue violators of the Clean Air Act, according to a 9th U.S. Circuit Court of Appeals judge. In a concurrence he penned and attached to his own opinion in Covington v. Jefferson County, No. 04 C.D.O.S. 1067, Judge Ronald Gould presented a theory giving individuals standing to sue for damages as a result of ozone degradation. In his main decision, Gould gave the plaintiffs standing to sue an Idaho county and a district health department under the Clean Air Act (CAA), on the ground that evidence of an improperly maintained landfill next door to their house was sufficient to demonstrate damage. “A credible threat of risks to their home yields a loss of enjoyment of property,” wrote Gould. “That is enough injury in fact for the CAA claim.” Gould then went a step further in his concurrence, offering an alternative theory under which the Covingtons-and anyone else-might have standing to sue under the act. “The judge grappled with a very significant question that has really never been addressed before,” said Margaret Hinman, an Idaho attorney who represented the plaintiffs. While the act has provisions that permit lawsuits for damages to the environment, plaintiffs must still demonstrate that they have suffered damages. A ‘wrong theory’ Gould opined that an individual can have standing to sue for global injuries that affect millions of people, such as ozone depletion, despite some precedent holding that widely shared injuries are so broad that they preclude individual damages. “A theory that ‘injury to all is injury to none’ seems wrong in theory,” wrote Gould, “for it would deny standing to every citizen such that no matter how badly the whole may be hurt, none of the parts could ever have standing to go to court to cure a harmful violation.” Gould said recent U.S. Supreme Court decisions seemed to recognize that widespread injury was not in itself a bar to individual standing. Even a general injury can give an individual standing as long as there is evidence of “concrete” damage, wrote Gould. “The landfill has increased the Covingtons’ risk of UV-B [ultraviolet-B] related health maladies,” wrote Gould. “I see nothing in the Constitution or the Supreme Court precedent that would prevent the Covingtons from having constitutional standing on that basis alone.” The dump next door The Covington family sued Jefferson County and Idaho’s District 7 Health Department in 2001 for a range of violations involving the county dump, which the family lived next door to. In addition to having been set ablaze on at least two occasions, the dump was replete with biological and hazardous waste, ranging from rotting cow carcasses to car batteries. In addition, the Covingtons presented evidence that household appliances, including refrigerators and dishwashers, were improperly dumped at the site and were leaking chlorofluorocarbon chemicals into the atmosphere. Under federal law, appliances containing chlorofluorocarbons�a key degrader of the ozone layer�must be treated in a specific manner. Gould, along with judges Kim McLane Wardlaw and Richard Paez, unanimously reversed the Idaho district court in part, and remanded the case.

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