Affirming a district court decision that we reported on last year, the U.S. Court of Appeals for the District of Columbia Circuit recently found that the Center for Biological Diversity (CBD) had no standing in a case claiming that the U.S. Fish & Wildlife Service should have utilized notice and comment procedures when it created its framework for making species status assessments under the Endangered Species Act. Center for Biological Diversity v. Haaland, No. 20-5088 (D.C. Cir. May 25, 2021) (per curiam). The appellate court agreed with the district court that CBD had shown no Article III “injury in fact.”
The alleged failure to provide notice and comment was not a cognizable injury in fact but, instead, was “a procedural injury that on its own does not confer standing.” Judgment at 2. Such a procedural injury can give rise to standing to sue only if it is “‘tethered to some concrete interest adversely affected by the deprivation.'” Id. (citation omitted). Here, CBD failed to demonstrate the the lack of notice and comment “resulted in any particular decision or action that has injured the Center.” Id.
Nor did CBD demonstrate that it had suffered an “informational injury.” That theory requires that the plaintiff show “‘(1) that it has been deprived of information that, on its interpretation, a statute requires the government or a third party to disclose to it, and (2) it suffers, by being denied access to that information, the type of harm that Congress sought to prevent by requiring disclosure.'” Id. at 3 (citation omitted). This claim failed because notice and comment is not tantamount to a right to information and, in any event, CBD “has provided no explanation pinpointing what information it has lost” due to lack of notice and comment. Id.
Finally, the D.C. Circuit rejected CBD’s attempt to argue that it had organizational injury standing because it did not raise that issue separately below and “cannot mend the deficiencies of its asserted informational injury by repackaging that injury as organizational.” Id.
Interestingly, the appellate court issued its decision in an unpublished decision pursuant to D.C. Circuit Rule 36(d). Id. at 1. Whereas an opinion that modifies, clarifies or criticizes existing law, calls attention to a rule of law generally overlooked, resolves a conflict, reverses a published decision or is a matter of first impression or of general public interest “will be published,” D.C. Cir. Rule 36(c)(2), a case that raises none of those factors need not be published. In other words, it appears that the standing issues here were so settled, that the Court saw no need for a published opinion.