Ctr. for Biological Diversity v. U.S. Envtl. Prot. Agency

937 F.3d 533

CENTER FOR BIOLOGICAL DIVERSITY; Gulf Restoration Network; Louisiana Bucket Brigade, Petitioners,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Andrew Wheeler, in his official capacity as Administrator of the United States Environmental Protection Agency; Anne Idsal, Region 6 Administrator, Respondents.

No. 18-60102

United States Court of Appeals, Fifth Circuit.

FILED August 30, 2019

Kristen Monsell, Cari Miyoko Sakashita, Esq., Center for Biological Diversity, Suite 800, 1212 Broadway, Oakland, CA 94612, for Petitioners

Samara Michelle Spence, Trial Attorney, U.S. Department of Justice, Environment & Natural Resources Division, 601 D Street, N.W,. Washington, DC 20004-0000, David Aiken Carson, Esq., Senior Counsel, U.S. Department of Justice, Environmental Defense Section, Suite 370, 999 18th Street, South Terrace, Denver, CO 80202, for Respondents

Before JONES, HO, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge:

Petitioners claim a recent EPA permit will lead to increased pollution in the Gulf of Mexico. But Petitioners lack standing, so we lack jurisdiction. The petition for review is dismissed.

I.

The Clean Water Act ("CWA") prohibits the "discharge [of] any pollutant from any point source without [a National Pollutant Discharge Elimination System] permit." Tex. Oil & Gas Ass’n v. EPA , 161 F.3d 923, 928 (5th Cir. 1998) (citing 33 U.S.C. § 1311(a) ). EPA is authorized to issue such permits, including general permits for "a whole category or subcategory of point sources." Id. at 929 ; see also 33 U.S.C. § 1342(a). Here, EPA issued a general permit for various oil and gas operations "located in and discharging to Federal waters ... in the Central to Western portions of the Gulf of Mexico." The General Permit "establishes effluent limitations, prohibitions, reporting requirements, and other conditions on discharges."

Three environmental organizations—the Center for Biological Diversity, the Gulf Restoration Network, and the Louisiana Bucket Brigade—petitioned this Court to review EPA’s grant of the General Permit. They claim EPA violated federal law in three ways. First, they argue EPA violated the National Environmental Policy Act ("NEPA") by failing to prepare an adequate Environmental Impact Statement ("EIS"). Second, they argue EPA violated the CWA by issuing the General Permit without adequate consideration of certain factors established by regulation. Third, they argue EPA violated the CWA by omitting certain monitoring requirements from the Permit. For relief, Petitioners ask this Court to "remand the General Permit to Region 6 of EPA for further proceedings."

Petitioners attempted to prove their standing by submitting declarations from both members and organizational leaders. Petitioners’ opening brief, however, addressed standing only in a footnote. Although EPA initially agreed Petitioners had standing, Intervenor American Petroleum Institute argued otherwise. Petitioners then advanced their standing arguments at greater length in their reply brief. By letter, we asked counsel to be prepared to discuss standing at oral argument. At argument, EPA conceded the Intervenor "raised some very serious questions about" Petitioners’ standing. Oral Arg. 23:40–23:48. The questions are more than serious; they require dismissal of the petition.

II.

Like a plaintiff who files a complaint, a petitioner who seeks review of agency action "invok[es] federal jurisdiction" and therefore "bears the burden of establishing" standing. Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; see also Massachusetts v. EPA , 549 U.S. 497, 517–18, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007).

Petitioners are associations, so their standing turns on the associational standing doctrine. "Associational standing is a three-part test: (1) the association’s members would independently meet the Article III standing requirements; (2) the interests the association seeks to protect are germane to the purpose of the organization; and (3) neither the claim asserted nor the relief requested requires participation of individual members." Tex. Democratic Party v. Benkiser , 459 F.3d 582, 587 (5th Cir. 2006) (citing Hunt v. Wash. State Apple Advert. Comm’n , 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) ).

For one of Petitioners’ members to "independently meet the Article III standing requirements," ibid. , that member must have "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision," Gill v. Whitford , ––– U.S. ––––, 138 S. Ct. 1916, 1929, 201 L.Ed.2d 313 (2018) (quotation omitted).¹ We start with the injury-in-fact requirement and hold Petitioners have not shown that one of their members could independently satisfy it.

A.

"[T]he first and foremost of standing’s three elements" is injury in fact. Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (quotation omitted). "To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Id. at 1548 (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ).

In environmental cases, courts must carefully distinguish between injury to the petitioner and injury to the environment. Article III standing requires injury to the petitioner. Injury to the environment is insufficient. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ("The relevant showing for purposes of Article III standing, however, is not injury to the environment but injury to the plaintiff.").

The question, then, is what does Article III require of the petitioner who claims injury based on harm to the environment? Sometimes an individual’s aesthetic, recreational, and scientific interests provide that link. See Friends of the Earth , 528 U.S. at 183, 120 S.Ct. 693 (explaining that lessening of "aesthetic and recreational values" is an injury in fact); Lujan , 504 U.S. at 562–63, 112 S.Ct. 2130 ("Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing."). But such environmental interests cannot support an injury in fact unless they have been actually harmed or imminently will be. See Spokeo , 136 S. Ct. at 1548 ; Clapper v. Amnesty Int’l USA , 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) ; Lujan , 504 U.S. at 564 n.2, 112 S.Ct. 2130 ("Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending." (quotation omitted)).² By ensuring a future injury is not "too speculative," the imminence requirement "reduce[s] the possibility of deciding a case in which no injury would have occurred at all." Lujan , 504 U.S. at 564 n.2, 112 S.Ct. 2130.

B.

In this case, the injuries in fact asserted by Petitioners’ members depend on at least four conditions:

1. Discharge: Operators in the Gulf discharge pollutants, as authorized by the permit.

2. Geographic Nexus: The discharges reach areas of the Gulf in which Petitioners’ members have interests.

3. Temporal Nexus: The discharges are present at a time relevant to Petitioners’ members’ interests.

4. Adverse Effect: The discharges negatively affect Petitioners’ members’ interests.

See Clapper , 568 U.S. at 410, 133 S.Ct. 1138 (enumerating the "chain of possibilities" necessary for plaintiffs to suffer a future injury in fact).

With respect to the first condition, the challenged permit specifically authorizes limited discharges to occur. Even so, the four declarations from Petitioners’ members are inadequate. The first three plainly fail to satisfy the geographic-nexus requirement. The fourth is more complicated, but it too fails to aver an injury in fact.

1.

We start with the declarations of Peter Galvin, Todd Steiner, and Susan Prévost. Petitioners must show the discharges (assuming they occur) will reach areas of the Gulf in which these individuals have interests. See Summers v. Earth Island Inst. , 555 U.S. 488, 499, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) ("[T]o establish standing plaintiffs must show that they use the area affected by the challenged activity and not an area roughly in the vicinity of a project site." (quotation omitted)); Lujan , 504 U.S. at 565–66, 112 S.Ct. 2130 (similar); Fla. Audubon Soc’y v. Bentsen , 94 F.3d 658, 668 (D.C. Cir. 1996) (explaining the need for plaintiffs to demonstrate "a geographic nexus to any asserted environmental injury"). Without a geographic nexus, Petitioners’ members cannot suffer an injury in fact.

To show that nexus, Petitioners must point to evidence. Courts cannot simply presume pollution discharged in one place will affect would-be plaintiffs everywhere. See Cent. & S.W. Servs., Inc. v. EPA , 220 F.3d 683, 700–01 (5th Cir. 2000) (holding that a member of the Sierra Club could not establish an injury in fact because he could not show waste left in a landfill would reach "the aquifer that supplies his drinking water"); Fla. Audubon Soc’y , 94 F.3d at 667 ("In the case of broad rulemaking, a court may not assume that the areas used and enjoyed by a prospective plaintiff will suffer all or any environmental consequences that the rule itself may cause.").

That evidence must show geographic proximity between the plaintiff’s interests and the discharges. The Supreme Court has ruled that "geographic remoteness" forecloses a finding of injury "when no further facts have been brought forward ... showing that the impact ... in those distant places will in some fashion be reflected" where the plaintiffs are. Lujan , 504 U.S. at 567 n.3, 112 S.Ct. 2130. This...