9th Circuit Affirms Summary Judgment of No Standing in Endangered Species Act Case

by  John M. Simpson

On June 28, 2018 a panel of the U.S. Court of Appeals for the Ninth Circuit affirmed a summary judgment determining that certain environmental organizations had no Article III standing to pursue claims under the Endangered Species Act (ESA) and National Historic Preservation Act (NHPA) as to financing authorizations by the Export-Import Bank of the United States with respect to two liquid natural gas projects in Queensland, Australia near the Great Barrier Reef.  Center for Biological Diversity v. Export-Import Bank of the United States, ___ F.3d ___, No. 16-15946 (9th Cir. June 28, 2018).  The court found that plaintiffs failed to satisfy the redressability requirement under the “relaxed standard” for standing in “procedural rights” cases.  Slip op. at 14.  Under the established tripartite Supreme Court test for Article III standing to sue ((i) injury in fact; (ii) causation; and (iii) redressability, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000)), the focus in the appeal was on redressability.  The appellate court noted that because plaintiffs sought to vindicate procedural rights under the ESA (Section 7 consultation) and the NHPA (taking into account the projects’ impacts on the Great Barrier Reef World Heritage Area),  they were entitled to establish standing “‘without meeting all the normal standards for redressability and immediacy.'”  Id. at 13 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 572 n.7(1992)).  That is, plaintiffs were not required to “establish the likelihood that the agency would render a different decision after going through the proper steps.”  Id.   However, this was also a case in which the alleged injury stemmed from the actions of a third party and in which the plaintiff had to establish that “the hoped-for substantive action on the part of the government could alter the third party’s conduct in a way that redresses the injury in fact.”  Id. at 14.  Plaintiffs did not make that showing as to the Ex-Im Bank:

[U]nlike the cases discussed above where a federal agency has direct regulatory authority over the relevant third party, here the Bank’s authority to alter the Projects once approved would be implemented through financing conditions.  Noticeably absent from the record in this case are the funding contracts themselves, which might provide evidence of what action could be taken by the Ex-Im Bank to alter the course of the Projects, if the Bank were to perform the procedures that are required under the NHPA and the ESA.

Id. at 16.  In addition, the projects were already underway when the Bank provided the financing and it represented only a minority portion of the financing.  Id.  at 17.   Thus,    “[e]ven under the relaxed redressibility standards that are properly applied here, on these facts Plaintiffs have failed to show that performance of the additional procedures required under the NHPA and the ESA could redress the alleged environmental injury in this case.”  Id.

Given that the projects had been completed, the loans disbursed and at least one loan repaid, defendants also argued that the plaintiffs claims’ were now moot.  Id. at 10.  The court found that this did not meet the “heavy burden” to “establish mootness on appeal.”  Id. at 11.  As the court observed:

Defendants bear the burden to establish that relief is not simply unlikely or conjectural but impossible.  …  The fact that the loans have been disbursed does not in and of itself establish that relief is impossible if the Ex-Im Bank were sent back to the negotiating table for the purpose of obtaining additional environmental protection.

Id. (emphasis added).  However, based on the lack of Article III standing, the judgment was affirmed.