Friends of the Earth v. Mosbacher
In a suit by environmental plaintiffs to compel OPIC and the U.S. Export-Import Bank to assess the environmental impacts of projects they support, court rejects defendants’ argument that plaintiffs lack standing
Status: Pending in the U.S. District Court for the Northern District of California (No. C-02-04106-JSW)
Discussion & Analysis: Two environmental organizations and three cities sued the Overseas Private Investment Corporation (OPIC) and the Export-Import Bank of the United States (Ex-Im) for failure to comply with the National Environmental Policy Act (NEPA). OPIC is an independent government corporation that insures and guarantees loans for projects in developing countries; Ex-Im is an independent governmental agency and wholly-owned government corporation that provides financing support for American exports. Plaintiffs offered evidence that projects supported by OPIC and Ex-Im contribute to climate change by generating 1.9 billion tons of carbon dioxide and methane emissions annually. Defendants, however, have failed to assess the environmental impacts of their actions under NEPA. OPIC and Ex-Im asked the court to dismiss the case for lack of standing.
Following Ninth Circuit precedent for “procedural injury” cases, the court concluded that plaintiffs did have standing. To show an “injury in fact,” a plaintiff must demonstrate (1) that the government violated certain procedural rules; (2) that these rules protect the plaintiff’s concrete interests (requiring, in NEPA cases, “a geographic nexus between the individual asserting the claim and the location suffering an environmental impact ”); and (3) that it is reasonably probable that the challenged action will threaten the plaintiff’s concrete interests. At issue in Mosbacher was whether the plaintiffs could show that it was reasonably probable that emissions from projects supported by OPIC and Ex-Im would affect areas used and owned by the plaintiffs. The court found that the evidence supported such a finding. The court then explained that in cases asserting a procedural injury, once a plaintiff has established its “injury in fact,” the “causation” and “redressability” requirements of standing are “relaxed.” The causation element is implicated only where the concern is that an injury caused by a third party is too tenuously connected to the acts of the defendant. Here, however, the court found little or no attenuation, based on evidence that certain projects would not go forward absent Ex-Im or OPIC support. The court further found that the redressability requirement was met, because plaintiffs had demonstrated that the ultimate decisions of OPIC and Ex-Im “could be influenced” by further environmental studies.
Mosbacher serves to highlight an existing circuit split on the important question of how standing is to be proven in cases involving claims for procedural injuries. The DC Circuit’s highly restrictive test for proving standing in NEPA cases stands in sharp contrast to the Ninth Circuit's expansive approach to procedural injury (and a similarly inclusive approach endorsed by the Tenth Circuit). To establish an “injury in fact” in the DC Circuit, a plaintiff must show that the challenged omission or insufficiency of an environmental impact statement may cause the agency to overlook the creation of a demonstrable risk of serious environmental impacts that imperil the plaintiff’s particularized interest. That interest, in turn, must be shown through a geographic nexus between the government’s action and the location of plaintiff’s injury. Additionally, in a case involving a “broad rulemaking”—that is, a case where the challenged government action is not located at a particular “site”—the court will apply “even more exacting scrutiny” in determining whether there is a particularized risk of injury actually threatening this plaintiff’s particular interests. Moreover, the plaintiff can only satisfy the “causation” requirement by showing a substantial probability that the substantive agency action that disregarded a procedural requirement created the demonstrable risk. One DC Circuit judge dissenting from her circuit’s cramped approach wrote that this rule essentially requires a plaintiff to conduct the same environmental investigation that the plaintiff seeks, through its lawsuit, to compel the agency to make. (Note: the DC Circuit uses a similar “substantial probability” standard in its analysis of standing in “Increased Risk of Harm” cases.)
Although there is no indication that the U.S. Supreme Court is poised to resolve this circuit split, the Court did recently address the issue of procedural standing in Massachusetts v. EPA. Massachusetts involved a state plaintiff, and some lower courts have already distinguished the standing analysis in Massachusetts on that basis alone. However, some of the Court’s analysis may well apply in other procedural injury cases. For example, the Court explained that “[w]hen a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” This language more closely tracks the approach adopted by the Ninth and Tenth Circuits in the NEPA standing cases than that of the DC Circuit.
Key Opinion: Friends of the Earth, Inc. v. Mosbacher, No. C-02-04106-JSW, 2005 WL 2035596 (N.D. Cal. Aug. 23, 2005) (denying defendants’ motion for summary judgment arguing lack of standing).
See Also: Allowing for an expansive approach to NEPA standing, Citizens for Better Forestry v. U.S. Department of Agriculture, 341 F.3d 961 (9th Cir. 2003), and Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445 (10th Cir. 1996); and adopting a restrictive approach, Florida Audubon Society v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996) (en banc). See also Center for Biological Diversity v. Brennan, __F. Supp. 2d__, 2007 WL 2408901 (N.D. Cal. 2007) (finding that environmental plaintiffs have standing to pursue claim for procedural injury against the Bush Administration under the Global Change Research Act, based on failure to allow for required consultation and public comment on climate change research activities, as expressly required by the Act ).
For examples of cases from other circuits following an expansive approach to procedural standing, see Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18 (1st Cir. 2007), and Ouachita Watch League v. Jacobs, 463 F.3d 1163 (11th Cir. 2006).
The fact that a court purports to follow an expansive approach to procedural standing does not, however, mean that plaintiffs will always satisfy the requirements. See, e.g., Nuclear Information and Resource Service v. Nuclear Regulatory Commission, 457 F.3d 941 (9th Cir. 2006) (finding no standing in NEPA procedural injury case where plaintiffs failed to set forth facts demonstrating injury in fact or redressability). See also Center for Biological Diversity v. Lueckel, 417 F.3d 532 (6th Cir. 2006) (finding no standing to challenge failure by the U.S. Forest Service to comply with requirements of the Wild and Scenic Rivers Act, where plaintiffs showed a concrete injury but did not present evidence that the establishment of required river corridor boundaries and comprehensive management plans might appreciably alter Forest Service’s decision-making with respect to logging activity).
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