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Case 2:08-cv-04986-SSV-JCW Document 48 Filed 12/01/2009 Page 1 of 14

UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF LOUISIANA

CONCERNED CITIZENS AROUND )


MURPHY, ) Case No.: 08-4986
) Section: R
Plaintiff, ) Judge: Vance
) Division: 2
v. ) Magistrate: Wilkinson
)
MURPHY OIL USA, INC., )
)
Defendant. )
)

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PARTIAL


SUMMARY JUDGMENT ON STANDING
______________________________________________________________________________

Plaintiff Concerned Citizens Around Murphy (“Concerned Citizens”) respectfully

submits its Opposition to Defendant Murphy Oil, U.S.A., Inc.’s (“Murphy”) “Motion for Partial

Summary Judgment on Standing,” filed on Nov. 19, 2009, Doc. 41-2.

INTRODUCTION

Having now admitted that it violates the Clean Air Act at its Mereaux, Louisiana

refinery, 1 Murphy argues that the refinery’s neighbors—people who live in or visit the same

community that Murphy pollutes and who must breathe the surrounding air—do not have legal

standing to challenge Murphy’s violations.

1
See Defendant's Statement of Contested Material Facts in Support of Opposition to Plaintiff's Motion for Partial
Summary Judgment on Liability and Standing (Nov. 19, 2009) (Doc. 41-2) (contesting only 6 of 24 alleged
violations); Local Rule LR56.2 (“All material facts set forth in the statement required to be served by the moving
party will be deemed admitted, for purposes of the motion, unless controverted as required by this rule.)
Case 2:08-cv-04986-SSV-JCW Document 48 Filed 12/01/2009 Page 2 of 14

First, Murphy argues that Concerned Citizens lacks associational standing because, as a

neighborhood organization, its membership requirements are relatively informal. But it is

indisputable that Concerned Citizens has actual members: people who have unambiguously

testified that they are members of the organization, have held meetings, have contributed money

to cover incorporation expenses, and have selected officers.

Murphy attempts to transform the “indicia of membership test”—a tool courts have used

to expand associational standing to a state agency without traditional members 2 and a

corporation that violated “state and internal rules for identification of its members” 3 —into a type

of corporate formality to defeat the standing of a grass-roots neighborhood organization.

Because the Concerned Citizens is a group that clearly has members, Murphy’s argument must

fail. See Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 342 (1977)

(“If the Commission were a voluntary membership organization . . . [rather than a state agency]

its standing to bring this action as the representative of its constituents would be clear . . . ”).

Murphy also argues that Concerned Citizen’s specific allegations of odors from Murphy

are not always precisely correlated with Murphy’s reports of emission incidents. But such

precise correlation is not part of the standing test. As the Fifth Circuit has noted in the context of

the Clean Water Act, the plaintiff must “show[ ] that a defendant has (1) discharged some

pollutant in concentrations greater than allowed by its permit (2) into a waterway in which the

plaintiffs have an interest that is or may be adversely affected by the pollutant and that (3) the

pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs.” Sierra Club,

Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 557 (5th Cir. 1996) (internal

quotation marks and citations omitted), cert. denied, 519 U.S. 811 (1996).

2
Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 344 (1977).
3
Friends of the Earth, Inc. v. Chevron Chemical Co., 129 F.3d 826, 828 (5th Cir.1997)

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Much of Murphy’s brief is devoted to ad hominem attacks against Concerned Citizens’

declarants for expressing concerns and frustration about changes to their community following

the devastation from Hurricane Katrina and from Murphy’s massive spill of oil into the

community. Whether Murphy chooses to seek to understand—or to belittle—these frustrations

ultimately is irrelevant to this litigation. Concerned Citizens’ declarants have standing to sue if

they have 1) suffered an “injury in fact,” 2) that is fairly traceable to the challenged action of the

defendant;” and 3) that will likely be “redressed by a favorable decision.” Friends of the Earth v.

Laidlaw Envtl. Serv., 528 U.S. 167, 180-81 (2000).

ARGUMENT

I. CONCERNED CITIZENS’ MEMBERS HAVE INDIVIDUAL STANDING

To prevail on the issue of standing, Concerned Citizens must show that at least one of its

members has standing to sue as an individual. Three Concerned Citizens’ declarants gave sworn

statements that establish the elements of standing. Therefore, Concerned Citizens members have

individual standing.

a. William Green, Jr. has individual standing to sue.

Murphy argues that William Green, Jr. lacks standing because he does not currently live

in Chalmette and that “[i]n order for an individual to be an adequate representative for the

purposes of neighborhood organizational standing, he or she must actually inhabit a home

affected by the polluter’s facility.” (Def. Mem. at 27 (citing Texans United for a Safe Econ.

Educ. Fund v. Crown Cent. Petroleum Corp., 207 F.3d 789, 792 (5th Cir. 2000)). Murphy’s

argument is dead wrong—there is no rule of law that limits standing to residents. The page in

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Texans United that Murphy cites notes that “breathing and smelling polluted air is sufficient to

demonstrate injury-in-fact,” it does not purport to limit standing to neighborhood residents.

Mr. Green does not currently live in Chalmette because his Chalmette home of almost 40

years flooded during Hurricane Katrina. (Green Depo. Doc. 41-12 p. 6, 14, 15) (“That is my

home. I’m temporarily relocated, but that is my home. That's . . . been my home for almost 40

years and that's not going to change I hope.”). Mr. Green goes to his home to repair “[e]very

day, sometimes every other day . . .” Id. at 16-17. His home is located “two streets west of the

Murphy Oil refinery.” (Green Decl. Doc. 30-24 ¶ 4). While rebuilding his home, “[t]he odors

sometimes prevent [Mr. Green] from having coffee breaks outside with neighbors.” Id. at ¶ 8.

Mr. Green explained: “I know that the noxious odors come from Murphy Oil because I have

worked in refineries, and I recognize the odors. Additionally, the odors are stronger when I am

walking or driving close to Murphy Oil, or when I am downwind from the Murphy Oil refinery.”

Id. at ¶ 9. It is therefore beyond dispute that Mr. Green suffers an “injury in fact” that is fairly

traceable to Murphy.

Murphy also argues that Mr. Green has not identified specific dates of injuries that

correspond to Murphy’s self-reported Clean Air Act violations. (Def. Mem. at 15-16). That,

however, is not the legal standard. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc.,

73 F.3d 546, 557 (5th Cir. 1996) (requiring proof that “a defendant has (1) discharged some

pollutant in concentrations greater than allowed by its permit (2) into a waterway in which the

plaintiffs have an interest that is or may be adversely affected by the pollutant and that (3) the

pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs."); see also

Chalmette Refining, 354 F. Supp. 2d at 703 (“Plaintiffs can prevail on the “fairly traceable”

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element by showing that there is a ‘substantial likelihood’ that the defendant's conduct caused

plaintiffs' injury.”) (citation omitted).

b. Suzanne Kneale has individual standing to sue.

Murphy expresses great frustration with Suzanne Kneale, providing a litany of

complaints about her. Because Murphy has now admitted that it does indeed violate the Clean

Air Act, 4 however, it is less than reasonable for Murphy to fault Ms. Kneale for complaining

about Murphy’s operations. Murphy attaches internet posts, purportedly from Ms. Kneale and

makes the inflammatory claim that Ms. Kneale has “personally attacked the integrity of Judge

Fallon.” (Def. Mem. at 9). Murphy’s claims are more shrill, however, than the posts themselves.

Because Murphy’s complaints about Ms. Kneale are irrelevant to her standing to sue for Clean

Air Act violations, the Plaintiff will not discuss each complaint separately. Plaintiffs simply note

that, given the circumstances in Ms. Kneale’s community over the last five years, a certain level

of frustration with pollutant corporations, lawyers, and even the legal system is understandable.

Murphy does not even come close to backing up its claim that Ms. Kneale is the “real party in

interest.”

Murphy argues that there “is no certain correlation between Ms. Kneale’s complaints and

the alleged violations.” (Def. Mem. at 7-8). The legal standard, however, is not “certain

correlation.” Here, Ms. Kneale testified that on August 16, 2008, she “witnessed huge flames

coming from Murphy Oil.” (Kneale Decl. Doc. 30-23 at ¶ 8). On that same day, Murphy

violated its Clean Air Act permit. See Pl. Exs. F & G (Docs. 30-12 & 30-13) Also on that day,

Ms. Kneale says, “my son and I wished to throw a football in the yard and would have done so.

The odors from Murphy Oil, however, made it unpleasant to be outside in the yard and for that

reason we did not throw the football.” (Kneale Decl. Doc. 30-23 at ¶ 8). This testimony is at
4
See note 1, supra.

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least as strong as the testimony reviewed by the Supreme Court in Laidlaw. 528 U.S. at 181-183.

Similarly, in Chalmette Refining, this Court held that “evidence that [] odors were present during

admitted process upsets” satisfies the “fairly traceable” standard. Chalmette Refining, 354 F.

Supp. 2d at 703.

c. John Dalier, Jr. has individual standing to sue.

Murphy continues its pattern of ad hominem attacks when discussing John Dalier Jr..

Murphy claims that, in another case, “Ms. Ferrara testified that Mr. Dalier dumped Motor oil

along the fence line of her property in an apparent attempt to fraudulently create evidence . . .”

(Def. Mem. at 13). This is a mischaracterization of the (irrelevant) testimony. Ms. Ferrara in fact

said nothing about an attempt to create evidence. She said “I told John, I said, "I mentioned to

the gentleman about the stain on the fence." And he goes, "I poured oil back there to stop the

grass from growing on our side." (Doc. 41-22 at 122). Further, “John actually mentioned it to

Jesse, that he had poured it there, but he -- with no intent. That had been a couple of days ago

before he -- you know, he even knew they were coming out.” Id. There is simply no excuse for

Murphy’s mischaracterization of this evidence, which is not even relevant to the issues before

this Court. In general, Murphy’s characterizations of deposition testimony in its brief are not

reliable.

Mr. Dalier became a member of concerned citizens “sometime, perhaps, in the last

quarter of 2007.” (Dalier Depo., Doc. 41-13 at 93.) He testified that he “often smell[s] noxious

and chemical odors coming from Murphy Oil. These odors vary in smell. Sometimes they smell

like sulfur; sometimes they smell like petroleum. The odors are particularly bad when there is an

east-southeast wind. After it rains, the petroleum smell is sometimes particularly strong and

unpleasant.” (Id. ¶ 5). Further, “I enjoy playing with my dog, but sometimes the odors coming

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from the Murphy Oil refinery are so strong that I am unable to do so.” (Id., ¶ 6). “I know that

the nauseating odors come from Murphy Oil because I sometimes see black smoke emanating

from the refinery at the same time that I smell the odors.” (Id., ¶ 7).

II. MURPHY’S AFFIDAVITS ARE IRRELEVANT.

a. The Affidavit of Matthew S. Dobbins is irrelevant.

Murphy’s Affidavit of Matthew S. Dobbins (Doc. 41-18) consists primarily of

inadmissible hearsay (without foundation) about what Mr. Dobbins “is aware of” or “has

learned” and Mr. Dobbin’s opinions about Ms. Kneale and his theories about her motivations.

Murphy’s lawyers have made no attempt to craft this affidavit as admissible evidence and the

Affidavit of Matthew S. Dobbins is not worthy of this Court’s consideration.

b. The Affidavit of Barbara D. Beck is irrelevant.

Murphy’s Affidavit of Barbara D. Beck, Ph.D. purports to be expert testimony but the

testimony is not relevant to the issues before this Court. The affiant testifies as to her opinions

about the lack of health impacts from Murphy’s violations. But the Concerned Citizen’s

allegations of standing are not based on proof of health impacts. See Chalmette Refining, 354 F.

Supp. 2d at 702 (“plaintiffs need not show … that they suffer a bodily injury caused by the

pollution. Rather, plaintiffs can demonstrate a cognizable injury by showing that they breathe

and smell polluted air.”). To require citizen-enforcers to reverse-engineer the permitting process

and quantify the individual risk that would flow from each permit violation would turn every

enforcement action into a toxic tort case. This would defeat the statutory purpose to create

enforceable standards.

Congress explained that citizen enforcement “would not require reanalysis of

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technological or other considerations at the enforcement stage.” This is because:

These matters would have been settled in the administrative procedure leading to
an implementation plan or emission control provision. . . .

***
Enforcement of pollution regulations is not a technical matter beyond the
competence of the courts. The citizen suit provision is consistent with principles
underlying the Clean Air Act, that is the development of identifiable standards of
air quality and control measures to implement such standards. Such standards
provide manageable and precise benchmarks for enforcement.

S. Rep. No. 1196, 91st Cong. 2nd Sess. 36-39, reprinted in Natural Resources Defense Council,

Inc. v. Train, 510 F.2d 692, 723-25 (D.C. Cir. 1974) (emphasis added).

The affiant also testifies about odor, but she is “a toxicologist specializing in human

health risk assessment,” not an expert on odors. Moreover, any testimony she provides about

odors relates only to whether odors, in her opinion, would result solely from specific chemicals

released by Murphy (“due to NOx or S02 released from the facility in exceedance of their

permitted levels”). But “[t]o establish standing to redress an environmental injury, plaintiffs

need not show that a particular defendant [or a particular release] is the only cause of their

injury.” 5 Under Fifth Circuit precedent, it is enough to show that a defendant “contributes to the

pollution.” 6 As a matter of common sense, any person who has ever been around a refinery

knows that these facilities are not odor-free. Here, we have a refinery that admittedly operates

outside of the law, 7 and neighbors of that refinery who are annoyed by the refinery’s odors.

In Laidlaw, the Supreme Court rejected the defendant’s argument that there was no

standing where district court had found that “there had been no demonstrated proof of harm to

the environment.” 528 U.S. at 181. This is because the “relevant showing for purposes of

5
Natural Resources Defense Council, Inc. v. Watkins, 954 F.2d 974, 980 (4th Cir. 1992) (emphasis added).
6
Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546, 558 (5th Cir.1996); see also Natural
Resources Defense Council, Inc. v. Watkins, 954 F.2d at 980 (“plaintiffs must merely show that a defendant
discharges a pollutant that "causes or contributes to the kinds of injuries alleged by the plaintiffs.").
7
See note 1, supra.

8
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Article III standing, however, is not injury to the environment but injury to the plaintiff.” Id.

And that injury is demonstrated not by expert testimony but—for example—by showing that

concern about the defendant’s pollution causes the plaintiff to curtail activities. Id. at 181-183. 8

Thus, for example, the reasonable decision not to play ball with a child in the yard because of

concerns about belching smoke from a refinery seven blocks away, establishes standing to sue.

c. The Affidavit of Lewis Strate is irrelevant.

The Affidavit of Lew Strate (Doc. 41-21) is irrelevant for the same reasons, discussed

above, that the affidavit of Matthew S. Dobbins is irrelevant.

III. CONCERNED CITIZENS HAS ASSOCIATIONAL STANDING.

a. Concerned Citizens is a grass roots organization.

Murphy spends much of its “Law and Argument” section attempting to delegitimize

Concerned Citizens as a membership organization. But read in context, the deposition testimony

reveals a fairly typical neighborhood, grass roots organization. There are numerous meetings,

but not a lot of recordkeeping or documentation. Murphy complains about the lack of “regular

8
The Supreme Court held:
The relevant showing for purposes of Article III standing, however, is not injury to the
environment but injury to the plaintiff. To insist upon the former rather than the latter as part of
the standing inquiry (as the dissent in essence does, post, at 713-714) is to raise the standing
hurdle higher than the necessary showing for success on the merits in an action alleging
noncompliance with an NPDES permit. Focusing properly on injury to the plaintiff, the District
Court found that FOE had demonstrated sufficient injury to establish standing. . . . For example,
FOE member Kenneth Lee Curtis averred in affidavits that he lived a half-mile from Laidlaw's
facility; that he occasionally drove over the North Tyger River, and that it looked and smelled
polluted; and that he would like to fish, camp, swim, and picnic in and near the river between 3
and 15 miles downstream from the facility, as he did when he was a teenager, but would not do so
because he was concerned that the water was polluted by Laidlaw's discharges. . . . Curtis
reaffirmed these statements in extensive deposition testimony. For example, he testified that he
would like to fish in the river at a specific spot he used as a boy, but that he would not do so now
because of his concerns about Laidlaw's discharges.
Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181-182 (2000)

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meeting dates” or “CCAM records” (Def. Mem. at 4), but never explains why it would expect to

find such formalism in a neighborhood group.

Murphy argues that Concerned Citizens’ “stated purposes are . . . too general and vague

to give CCAM the focus it needs to be a real party in a Clean Air Act case.” (Def. Mem. at 26).

But Mr. Dalier testified that his understanding of the organization’s purpose is to “try to help the

community out” by making it “[e]nvironmentally better.” (Dalier Depo., Doc. 41-13 at 94.). Mr.

Green testified as follows:

Q. So CCAM is really only a clean air organization; is that right?


A. That's what we -- Well, clean air and quality of life, yes. We got involved in
some other things. When they had the asbestos burns and dump, we kind of
protested with that and different things. Anything to improve the quality of life is
what we're geared at. Our main focus at this time is the clean air because we feel
that that is something that needs to be taken care of. That's the front burner.

(Green Depo. Doc. 41-12 at 53-54).

Ms. Kneale testified that Concerned Citizens is “committed to protecting the

organization’s members and other St. Bernard Parish residents from pollution coming from the

surrounding petrochemical industry,” and “to affect the decisions that impact its community by

encouraging citizen participation and providing advocacy for all residents who are committed to

return, rebuild and remain in St. Bernard Parish, Louisiana.” (Kneale Decl. Doc. 30-23 at ¶ 4).

Ms. Kneale explained the origins of the organization:

As people returned to St. Bernard Parish after Rita and Katrina, there was a need
for a unique neighborhood watch, as one could imagine. We were camping out or
we were down at our homes for day visits, and as we began to repopulate our
neighborhoods, we formed block captains. We formed unique associations and
relationships with our neighbors, as one can imagine, to address the unique
concerns of the neighborhood at that time.

(Kneale Depo., Doc. 41-5, at 19). As for officers,

There were general meetings beginning in May of 2007, and I don't recall
specifically at which meetings prior to the filing of this paper in July 2007. But at

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general meetings, it was discussed who would serve as officers, and these three
officers were nominated and voted on.

(Id., Doc. 41-5, at 23).

Q. And I want to ask you some questions about the process of the meetings, and
what goes on. How did you notify people of the meeting?
A. Word-of-mouth, fliers, knocking on doors, telephone calls, other means of
communicating.

(Id., Doc. 41-5, at 26).

Q. When was the last time there was a meeting?


A. I think our last meeting was two or three weeks ago.
Q. Do you remember where that meeting was?
A. I do remember where that meeting was.
Q. Where was that?
A. That meeting was in the driveway on Despaux Drive.

(Id., Doc. 41-5, at 25). Mr. Green explained:

[Member attendance] varies from meeting to meeting, you know but our members
talk. Let me clarify that. Our members talk among each other and are in contact
with each other and so we get input from members that might not make a
particular meeting. Someone else would bring their viewpoints with them. So it's
actually a consensus of the whole membership.

(Green Depo. Doc. 41-12 at 48-49).

Murphy’s claims that “Ms. Kneale’s interests alone fuel this lawsuit” (Def. Mem. at 30)

are not supported by the facts. Concerned Citizens members other than Ms. Kneale have

testified about their participation. When Murphy’s counsel asked Mr. Dalier why Concerned

Citizens decided to file suit, he responded:

Because it seems like the consensus was that we weren't getting assistance. We
are not getting assistance from the DEQ on matters that were involving us,
disrupting our lives. We have tried to speak—I mean, I have tried to speak to the
old fox that’s watching the henhouse for us, to get them to help us. Or get DEQ
to resolve some things for us, for years, and nothing was happening.

(Dalier Depo. Doc. 41-13 at 114-15). Mr. Green testified that Concerned Citizens originally

“didn’t want to sue,” and hoped that something would happen during the 60-day notice period.

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(Green Depo. Doc. 41-12 at 147-48). He said that after the 60 days expired, “we took another

vote and then we decided to go ahead with the lawsuit.” Id. Mr. Green explained,

Well, our mission as a group is to hopefully get Murphy to abide by the pure air
laws and acts that are on the books established by the EPA and the DEQ. We
want them to comply with those, to give us clean air. The families living there
should be entitled to that. That's why we sued. That's what we seek.

(Green Depo. Doc. 41-12 at 38).

b. Concerned Citizens has members.

Murphy claims that Concerned Citizens’ lacks “indicia of membership.” (Def. Mem. at

18-19). In doing so, Murphy relies on Hunt and Friends of the Earth, Inc. v. Chevron Chemical

Co., in which the courts used an “indicia of membership” test. 129 F.3d 826 (5th Cir. 1997). In

Chevron, the Fifth Circuit found that an environmental organization had standing to bring a

citizen suit despite the fact that “it had no legal members under the corporate laws of the District

of Columbia.” See id. at 827-29.

In contrast, Concerned Citizens clearly has members, as Concerned Citizens’ declarants

have testified. Further, Concerned Citizens is a non-profit corporation under the laws of the

State of Louisiana, and Murphy makes no discernable argument to the contrary. Nonetheless,

even if Concerned Citizens were not a non-profit corporation, it would still meet state

requirements as an association. See, e.g., Ermert v. Hartford Ins., Co., 559 So.2d 467 (La. 1990)

(all that is needed is the intent to create such an association by two or more people); see also

Bogue Lusa Waterworks District v. The Louisiana Department of Environmental Quality, 897

So.2d 726, 727 (La. 1st Cir. 2004).

No precedent supports Murphy’s position that Concerned Citizens is not a traditional

voluntary membership organization. Murphy relies on only three, non-environmental and non-

applicable cases.

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American Legal Foundation v. FCC, 808 F.2d 84 (D.C. Cir. 1987) involved a plaintiff,

ALF, seeking standing on behalf of “all television viewers who watch ABC News.” (Def. Mem.

at 21). ALF never claimed to have any actual members and admitted to having none. 808 F.2d at

88 (“ALF has no members. In fact, the Foundation's corporate charter expressly prohibits it from

having any.”). Instead, ALF claimed that it was bringing suit on behalf of its “supporters,” who,

it alleged, were the public at-large. Id. Similarly, in Health Research Group, a food-and-drug

case, the plaintiffs brought suit on behalf of multiple public-interest groups. Health Research

Group v. Kennedy, 82 F.R.D. 21, 24 (D.C. Cir. 1979). The Health Research Group plaintiffs

alleged no injury to any interest of their own and sought to establish standing “solely in a

representational capacity” and on behalf of “‘contributors’ and ‘supporters’” Id. (“Plaintiffs do

not…seek standing as the representatives of their Members. Indeed, plaintiffs concede that they

have no members, having been intentionally structured as non-membership organizations…”).

Finally, Association for Retarded Citizens of Dallas v. Dallas County Mental Health & Mental

Retardation Center Bd. of Trustees, 19 F.3d 241, 244 (5th Cir. 1994) involved an organization

that purported “to sue on behalf of individuals with developmental disabilities” rather than on

behalf of members.

CONCLUSION

For the foregoing reasons, Murphy’s Motion for Partial Summary Judgment on Standing

should be denied.

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Respectfully submitted on December 1, 2009,

s/ Matthew Altaras
______________________________________
Matthew Altaras, Student Attorney

s/ Matthew B. Miller
______________________________________
Matthew B. Miller, Student Attorney

s/ Adam Babich
______________________________________
Adam Babich, La. Bar No. 27177
Tulane Environmental Law Clinic
6329 Freret Street
New Orleans, LA 70118-6321
Phone: (504) 865-5789; direct dial 862-8800
Fax: (504) 862-8721
Counsel for Concerned Citizens Around Murphy

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing pleading has been served upon counsel of record by

electronic means on December 1, 2009.

s/ Adam Babich
______________________________________
Adam Babich, SBN: 27177

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