by John M. Simpson.
A U.S. District Court in the District of Columbia recently dismissed a lawsuit brought under the Endangered Species Act (ESA) and the federal Administrative Procedure Act by the Center for Biological Diversity (CBD) against the Secretary of the Interior and the U.S. Fish and Wildlife Service (FWS). Center for Biological Diversity v. Bernhardt, No. 18-2576 (RC) (D.D.C. Feb. 12, 2020). CBD asserted that FWS’s guidelines for species-specific species status assessments (SSA’s) were issued without the requisite notice and comment. The guidelines for species-specific SSA’s provide an analytical framework for the agency’s listing and critical habitat decisions under the ESA. The court dismissed the case for lack of Article III standing.
CBD attempted to establish the required “injury in fact” part of Article III standing on the ground that issuance of the guidelines without notice and comment deprived CBD of information to which it was legally entitled. The Court rejected this argument:
Despite Plaintiff’s contentions to the contrary … “Federal Defendants’ failure to provide notice of and the opportunity to comment on the SSA program and its implementing guidelines, including the SSA Framework,” does not “deprivethe Center of key information” … . The problem for Plaintiff is that the Center’s filings do not link up the omission of notice and opportunity for public comment on “guidelines,” as required by the statutory provision at issue, see 16 U.S.C. § 1533(h), to the Center’s lack of information concerning an overarching SSA program. Thus, Plaintiff is missing a vital connection between the information that it seeks and the alleged impact on its organizational mission.
Slip op. at 19 (citations omitted). Nor did the lack of opportunity to participate in notice and comment with respect to the guidelines separately create an informational injury:
[T]he Center does not provide factual allegations to make clear how its asserted informational injury is a concrete interest “affected by the deprivation” of the opportunity for public comment on the materials that fall within section 4(h). … Thus, the alleged deprivation of an opportunity to comment cannot independently create standing for the Center.
Id. at 20. The court found that CBD’s informational standing claim faltered for the additional reason that the remedy sought — declaratory and injunctive relief — would not redress the claimed injury:
Plaintiff has not established how its alleged informational harm from non-disclosure of [information concerning the operation of SSA principles] represents “an ongoing” or “certainly impending” injury to any of its asserted informational interests. Thus, Plaintiff’s informational standing claim fails for a further reason: with respect to the 2016 SSA Framework, it has not alleged facts that establish why—for the only identified guideline document—the remedy requested would address a future informational injury covered by the terms of section 4(h) of the ESA.
Id. at 22. CBD’s alternative theory of associational standing also failed because it rested upon the same type of informational injury that had been asserted on behalf of the organization: “Thus, just as was the case previously, these informational arguments fall flat, and Plaintiff cannot establish associational standing.” Id. at 26.