Center for Bio Diversity v. EPA ( 2019 )


Menu:
  •      Case: 18-60102    Document: 00515099339       Page: 1   Date Filed: 08/30/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT      United States Court of Appeals
    Fifth Circuit
    FILED
    August 30, 2019
    No. 18-60102
    Lyle W. Cayce
    Clerk
    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.
    Petition for Review of an Order of the
    Environmental Protection Agency
    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
    Case: 18-60102     Document: 00515099339     Page: 2   Date Filed: 08/30/2019
    No. 18-60102
    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.
    2
    Case: 18-60102       Document: 00515099339         Page: 3    Date Filed: 08/30/2019
    No. 18-60102
    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 (1992);
    see also Massachusetts v. EPA, 
    549 U.S. 497
    , 517–18 (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 (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, 
    138 S. Ct. 1916
    , 1929 (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, 
    136 S. Ct. 1540
    , 1547 (2016) (quotation omitted). “To
    1 Petitioners do not argue they can satisfy the three elements of standing “in [their]
    own name[s]” based on their own interests as organizations. OCA-Greater Hous. v. Texas,
    
    867 F.3d 604
    , 610 (5th Cir. 2017). They submitted three declarations from the organizations’
    leaders. But those declarations were submitted to satisfy the second and third prongs of the
    associational-standing test. Because we reject Petitioners’ standing on the first prong, we
    need not consider the evidence regarding the other two prongs.
    3
    Case: 18-60102       Document: 00515099339         Page: 4     Date Filed: 08/30/2019
    No. 18-60102
    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
    ).
    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 (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
    (explaining that lessening of “aesthetic and
    recreational values” is an injury in fact); 
    Lujan, 504 U.S. at 562
    –63 (“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 (2013); 
    Lujan, 504 U.S. at 564
    n.2 (“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
    2   The Supreme Court’s “cases do not uniformly require plaintiffs to demonstrate that
    it is literally certain that the harms they identify will come about. In some instances, [the
    Court has] found standing based on a ‘substantial risk’ that the harm will occur, which may
    prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm.” Clapper, 
    568 U.S. 4
           Case: 18-60102   Document: 00515099339      Page: 5     Date Filed: 08/30/2019
    No. 18-60102
    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.
    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
    (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 (2009) (“[T]o establish standing
    at 414 n.5. As in Clapper, however, any difference between “certainly impending” and
    “substantial risk” is immaterial here. See 
    ibid. 5 Case: 18-60102
        Document: 00515099339      Page: 6   Date Filed: 08/30/2019
    No. 18-60102
    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 (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.
    This means petitioners cannot simply assert some interest somewhere within
    a large geographic area. The Court emphasized it must “assure itself that”
    members of the plaintiff associations “plan to make use of the specific sites”
    where environmental effects would allegedly be felt. 
    Summers, 555 U.S. at 499
    (emphasis added). Thus, plans to visit unspecified national forests did not
    suffice to challenge government action affecting only portions of the national
    6
    Case: 18-60102     Document: 00515099339     Page: 7   Date Filed: 08/30/2019
    No. 18-60102
    forests because “[t]he national forests occupy more than 190 million acres, an
    area larger than Texas.” 
    Id. at 465.
          Our sister circuits have correctly applied the geographic-nexus
    requirement. For example, the Seventh Circuit held it could not assume that
    pollution discharged in one area would necessarily be felt elsewhere in a large
    body of water: “[T]he water bodies at issue span, in some cases, hundreds of
    miles. For instance, the Rio Grande runs the entire length of New Mexico, and
    pointing to [evidence of] discharges into the Rio Grande does not establish an
    injury to the portion of the river used by the affiant.” Tex. Indep. Producers &
    Royalty Owners Ass’n v. EPA (TIPROA), 
    410 F.3d 964
    , 973 (7th Cir. 2012). By
    contrast, in Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers,
    
    781 F.3d 1271
    (11th Cir. 2015), the Eleventh Circuit found an environmental
    group had standing to challenge a general permit. 
    Id. at 1279.
    That’s because
    the group’s “members attest[ed] that they use waters downstream from mining
    sites,” and those waters were “visibly polluted” from upstream discharges. 
    Id. at 1280.
          Here, the Galvin, Steiner, and Prévost declarations fail under Summers
    and TIPROA. Because Petitioners are seeking prospective relief, we focus on
    their members’ planned future activities in the Gulf, not their past activities.
    See 
    Lujan, 504 U.S. at 564
    (holding that past visits to an affected area “prove[d]
    nothing” for standing purposes because “[p]ast exposure to illegal conduct does
    not in itself show a present case or controversy regarding injunctive relief ”
    (quotation omitted)). Here are the locations of their future planned activities:
    • Galvin declares that he has “specific plans to visit Alabama and the
    western Gulf Coast in October of this year and to visit . . . Florida and
    the eastern Gulf Coast near Tampa and surrounding areas next
    February to enjoy the natural environment and the opportunities to
    see the diverse wildlife of the region.”
    7
    Case: 18-60102       Document: 00515099339        Page: 8    Date Filed: 08/30/2019
    No. 18-60102
    • Steiner “plan[s] to visit the Gulf Coast at least twice in” the near
    future and spend “time viewing and photograph[ing] wildlife and
    snorkeling.” Although the declaration does not specify, the visits may
    be to Galveston or elsewhere in “the western Gulf of Mexico.”
    • Prévost lives in New Orleans, annually visits Grand Isle, and is “in
    the process of relocating to a second home in Belle Chasse, Louisiana.”
    Having established where Galvin, Steiner, and Prévost have interests,
    we turn to determining where the discharges will occur. Petitioners say “[t]he
    General Permit authorizes discharges from oil and gas facilities operating in
    federal waters in the Western and Central portions of the Gulf of Mexico (i.e.,
    waters off the coasts of Texas and Louisiana).” But they are no more specific
    than that. Petitioners have not pointed to the specific locations of the relevant
    facilities in the Gulf.
    A geographic area as big as the “Western and Central portions of the
    Gulf ” cannot support Article III standing. See 
    Summers, 555 U.S. at 499
    . The
    Gulf is huge. It covers about 600,000 square miles, and it contains more than
    640 quadrillion gallons of water. Moreover, we do not know how widely water
    currents might transport any pollutants. An EPA document in the record says
    that the Gulf ’s “[c]irculation patterns” include both offshore and inshore
    circulation systems, and those, in turn, “involve the dynamic interaction of a
    variety of factors.” And apparently those factors—including wind, weather,
    and tides, among others—vary across the Gulf and throughout the year. Thus,
    Galvin, Steiner, and Prévost do not provide nearly enough information to infer,
    with any degree of certainty, that any discharges will geographically overlap
    with their interests. 3
    3 Gulf Restoration Network v. Salazar, 
    683 F.3d 158
    (5th Cir. 2012), is not to the
    contrary. In that case, the Court found an injury in fact because individuals’ business and
    professional interests were threatened by oil and gas activities permitted by the defendant.
    See 
    id. at 167.
    The Court alluded to evidence in the record but did not detail how that
    8
    Case: 18-60102       Document: 00515099339          Page: 9     Date Filed: 08/30/2019
    No. 18-60102
    2.
    Petitioners also rely on evidence from a fourth declarant, Jonathan
    Henderson. Henderson “ha[s] lived in the Gulf area [his] whole life.” Like the
    previous three declarants, Henderson uses the Gulf in typical ways.                        For
    example, Henderson swims, fishes, and boats in the Gulf multiple times per
    year. Any argument for standing based on these activities fails for the reasons
    discussed above.
    But Henderson also does something the other declarants do not: He has
    “spent a considerable amount of time in boats and planes monitoring the
    offshore oil and gas industry and tracking oil spills.”                 On these trips he
    “search[es] for . . . oil leaks in the Gulf of Mexico—including [in] the areas
    where there are offshore oil and gas platforms in federal waters.” He has “more
    boat trips and flyovers planned for later in the year.”                  Petitioners argue
    Henderson will suffer aesthetic injuries from pollution during his future boat
    trips and flyovers.
    With respect to the geographic-nexus requirement, Henderson’s
    allegations are much closer to the Article III minimum. On the one hand, he
    does not aver that he plans boat trips and flyovers to the platforms that are
    operating under the General Permit.                On the other hand, his declaration
    appears to say that wherever the relevant platforms are, he intends to find
    them. We are unaware of any precedent allowing a petitioner to show the
    geographic nexus in this way. And we decline to create it today. Instead, we
    evidence established an injury in fact—an understandable approach given that standing was
    undisputed. See 
    id. at 166–67.
    As a result, Gulf Restoration Network does not provide
    guidance regarding what kind of evidence suffices to show standing. That’s probably why
    our Court has never cited the case for a standing proposition. Cf. BRYAN A. GARNER ET AL.,
    THE LAW OF JUDICIAL PRECEDENT 81 (2016) (noting the difficulty of “extracting a rule or
    standard” to be applied in future cases from an opinion that “doesn’t lay out all the facts [the
    court] took into account in reaching its decision”).
    9
    Case: 18-60102    Document: 00515099339      Page: 10   Date Filed: 08/30/2019
    No. 18-60102
    assume without deciding that Henderson has satisfied the geographic-nexus
    requirement.
    His declaration is nonetheless insufficient for two independent reasons.
    First, he has not satisfied the temporal-nexus requirement.        No evidence
    suggests Henderson’s boat trips and flyovers will coincide with the timing of
    discharges. Whether he will view any discharges depends on multiple factors,
    including how often Henderson makes these trips, how often platforms
    discharge pollutants, and how long the discharges have noticeable effects on
    the water in those areas before evaporating or dissipating. Petitioners have
    provided none of this information. Without evidence that Henderson’s trips to
    platforms will occur at times when discharges are visible (or otherwise
    noticeable), we cannot conclude Henderson will ever view such discharges.
    Henderson cannot affirm that he will ever see pollution from wells drilled
    pursuant to the permit, so he cannot claim injury that is imminent or certainly
    impending. There is no temporal nexus sufficient for standing.
    Second, Henderson cannot show any adverse effect.         That’s because
    someone who goes looking for pollution cannot claim an aesthetic injury in fact
    from seeing it. Of course, when a person visits an area for aesthetic purposes,
    pollution interfering with his aesthetic enjoyment may cause an injury in fact.
    See Friends of the 
    Earth, 528 U.S. at 183
    . But crucial to an aesthetic injury is
    that the aesthetic experience was actually offensive to the plaintiff. See Am.
    Soc’y for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 
    659 F.3d 13
    , 21
    (D.C. Cir. 2011) (distinguishing a plaintiff who had standing because viewing
    animals in inhumane conditions actually “injured his aesthetic sense” from a
    plaintiff who lacked standing because he “did not have the personal
    attachment he claimed and did not, as he claimed, suffer from the elephants’
    mistreatment”). A person cannot manufacture standing by voluntarily setting
    10
    Case: 18-60102    Document: 00515099339      Page: 11   Date Filed: 08/30/2019
    No. 18-60102
    aside potential aesthetic interests (like viewing a pristine expanse of ocean) to
    pursue an incompatible interest (like viewing oil spills). See New England
    Anti-Vivisection Soc’y v. U.S. Fish & Wildlife Serv., 
    208 F. Supp. 3d 142
    , 175
    (D.D.C. 2016) (holding any aesthetic injury from seeing mistreatment of
    animals was self-inflicted if the plaintiff ’s “presence at the place that he says
    will injure him aesthetically is not compelled (e.g., someone who does not live
    or work in the vicinity, nor has any history of traveling there, and is not
    otherwise required to be there)”).
    This is in keeping with the general rule that “standing cannot be
    conferred by a self-inflicted injury.” Zimmerman v. City of Austin, 
    881 F.3d 378
    , 389 (5th Cir. 2018); see also 
    Clapper, 568 U.S. at 416
    (holding litigants
    “cannot manufacture standing merely by inflicting harm on themselves”). As
    the Second Circuit has recognized, this rule applies with equal force in
    environmental cases. See Mancuso v. Consol. Edison Co. of N.Y., 25 F. App’x
    12, 13 (2d Cir. 2002) (finding no injury in fact to “aesthetic sensibilities” when
    a plaintiff visited an area “to obtain evidence to support [an environmental]
    lawsuit”).
    When Henderson searches for oil spills, he is not pursuing “esthetic
    purposes” that are then lessened by pollution. 
    Lujan, 504 U.S. at 562
    . He is
    pursuing his interest in locating pollution, and seeing pollution means he has
    succeeded in locating it. As a result, Henderson’s successful efforts to locate
    aesthetically displeasing pollution cannot serve as the basis for an aesthetic
    injury in fact.
    3.
    Our decision in Sierra Club, Lone Star Chapter v. Cedar Point Oil Co.,
    
    73 F.3d 546
    (5th Cir. 1996), is not to the contrary. Petitioners say Cedar Point
    11
    Case: 18-60102    Document: 00515099339     Page: 12   Date Filed: 08/30/2019
    No. 18-60102
    recognizes standing whenever a petitioner’s “members use[ ] the waterbodies
    into which the pollution is discharged.” That’s wrong.
    In Cedar Point, we analyzed standing to bring a CWA citizen suit for
    pollution from the defendant’s drilling activities. We discussed a three-part
    test used by the Third Circuit:      The plaintiffs had to demonstrate the
    defendant:
    (1) discharged some pollutant in concentrations greater than
    allowed by its permit (2) into a waterway in which the plaintiffs
    have an interest that is or may be adversely affected by the
    pollutant and that (3) the pollutant causes or contributes to the
    kinds of injuries alleged by the plaintiffs.
    
    Id. at 557
    (quoting Pub. Interest Research Grp. of N.J., Inc. v. Powell Duffryn
    Terminals Inc., 
    913 F.2d 64
    , 72 (3d Cir. 1990)). The Court found all three
    requirements were satisfied. See 
    id. at 558.
          But the Cedar Point plaintiffs had better evidence of a geographic nexus.
    One affiant established an “interest in that part of Galveston Bay around
    Cedar Point’s discharge” by showing he “canoed and participated in
    educational trips in the vicinity of Cedar Point’s discharge.” 
    Ibid. (emphasis added). We
    cautioned future litigants against a “literal reading of [the Third
    Circuit’s decision in] Powell Duffryn.” Such a reading would require plaintiffs
    to show merely “an interest in the ‘waterway’ into which the defendant is
    discharging a pollutant.” 
    Id. at 558
    n.24. We noted that could “produce results
    incongruous with our usual understanding of the Article III standing
    requirements.”   
    Ibid. We specifically emphasized
    that “some ‘waterways’
    covered by the CWA may be so large that plaintiffs should rightfully
    demonstrate a more specific geographic or other causative nexus” to establish
    standing. 
    Ibid. The Gulf of
    Mexico is such a body of water.
    12
    Case: 18-60102        Document: 00515099339          Page: 13     Date Filed: 08/30/2019
    No. 18-60102
    4.
    One final note on injury in fact: In their reply brief, Petitioners claim to
    have suffered “informational injuries from EPA’s inadequate environmental
    review under NEPA.” Petitioners did not adequately brief this issue. Their
    opening brief listed “recreational, aesthetic, vocational, scientific, and other
    interests” allegedly threatened by pollution. But it never mentioned anything
    about an informational injury stemming from the allegedly inadequate EIS.
    As a result, neither EPA nor the Intervenor had the opportunity to brief the
    issue. And even then, Petitioners’ reply brief includes only a single sentence
    about their alleged informational injuries. They cite no record evidence and
    only two cases, neither of which considered whether an allegedly inadequate
    EIS creates informational injuries.
    Arguments in favor of standing, like all arguments in favor of
    jurisdiction, can be forfeited or waived.                See Colo. Outfitters Ass’n v.
    Hickenlooper, 
    823 F.3d 537
    , 544 (10th Cir. 2016) (considering “only those
    arguments in favor of standing that the plaintiffs have adequately briefed”);
    NetworkIP, LLC v. FCC, 
    548 F.3d 116
    , 120 (D.C. Cir. 2008) (explaining
    “arguments in favor of subject matter jurisdiction can be waived by inattention
    or deliberate choice”); Morse v. Ozark Cty., 609 F. App’x 359, 361 (8th Cir. 2015)
    (declining to consider arguments in favor of jurisdiction first raised in a reply
    brief). Petitioners forfeited their informational-injury argument by failing to
    include it in their opening brief. See Estate of Duncan v. Comm’r, 
    890 F.3d 192
    , 202 (5th Cir. 2018). 4
    4 We have been reluctant to treat Petitioners’ standing arguments as forfeited in this
    case. Petitioners arguably forfeited all of them by limiting their jurisdictional argument to a
    single footnote of their opening brief. See United States v. Bennett, 
    874 F.3d 236
    , 243 n.9 (5th
    Cir. 2017). But we overlook Petitioners’ decision to include only a cursory discussion of
    standing because we assume they had a good-faith (though mistaken) belief that standing
    would be both undisputed and easy to resolve. We cannot, however, similarly forgive
    13
    Case: 18-60102       Document: 00515099339          Page: 14     Date Filed: 08/30/2019
    No. 18-60102
    III.
    Even if Petitioners could show injury, they could not meet another of
    Article III’s standing requirements: traceability. Article III demands that
    there be “a causal connection between the injury and the conduct complained
    of—the injury has to be fairly traceable to the challenged action of the
    defendant, and not the result of the independent action of some third party not
    before the court.”        
    Lujan, 504 U.S. at 560
    (quotation omitted).                   Thus,
    Petitioners must show a causal connection between EPA’s allegedly unlawful
    conduct and their members’ asserted injuries.
    Petitioners urge us to “relax[ ]” their causation obligations because this
    is a procedural-rights case under NEPA. It is true, procedural-rights cases are
    different: When a petitioner challenges an administrative agency’s failure to
    satisfy a procedural requirement—like NEPA’s EIS requirement—“the
    primary focus of the standing inquiry is not the imminence or redressability of
    the injury to the plaintiff, but whether a plaintiff who has suffered personal
    and particularized injury has sued a defendant who has caused that injury.”
    Fla. Audubon Soc’y v. Bentsen, 
    94 F.3d 658
    , 664 (D.C. Cir. 1996) (en banc).
    Judge Sentelle explained the rule in the canonical procedural-rights case:
    As in all cases, standing in an EIS suit requires adequate proof of
    causation. The conceptual difficulty with this requirement, in this
    type of case, is that an adequate causal chain must contain at least
    two links: one connecting the omitted EIS to some substantive
    government decision that may have been wrongly decided because
    of the lack of an EIS and one connecting that substantive decision
    to the plaintiff ’s particularized injury.
    
    Id. at 668.
    Petitioners’ forfeiture of their informational-injury argument. Completely omitting a theory
    of injury is different from cursorily supporting one, especially when that omission is combined
    with the cursory treatment of the theory in Petitioners’ reply brief.
    14
    Case: 18-60102      Document: 00515099339     Page: 15    Date Filed: 08/30/2019
    No. 18-60102
    Petitioners must therefore establish a causal chain with at least two
    links:
    A.   A link connecting the alleged legal violation to the issuance of the
    General Permit, and
    B.   A link connecting the issuance of the General Permit to the
    discharges behind their members’ injuries.
    See 
    ibid. A. For the
    first link, Petitioners must show “that the procedural step was
    connected to the substantive result.” Am. Rivers v. FERC, 
    895 F.3d 32
    , 42
    (D.C. Cir. 2018) (quotation omitted); see also 
    Lujan, 504 U.S. at 573
    n.8
    (explaining an individual can enforce a procedural right in court “so long as the
    procedures in question are designed to protect some threatened concrete
    interest of his that is the ultimate basis of his standing”). That connection
    means fixing the alleged procedural violation could cause the agency to “change
    its position” on the substantive action. Sierra Club v. FERC, 
    827 F.3d 59
    , 67
    (D.C. Cir. 2016); see also Found. on Econ. Trends v. Lyng, 
    943 F.2d 79
    , 83 (D.C.
    Cir. 1991) (explaining a typical NEPA plaintiff demonstrates standing by
    showing, inter alia, “that if the agency prepared an impact statement (and
    considered it) before implementing its plans, it might change its mind and
    thereby avert the damage to [the plaintiff ’s] interests”).
    Petitioners have made this showing.      One purpose of an EIS is to
    “ensure[ ] that the agency, in reaching its decision, will have available, and will
    carefully consider, detailed information concerning significant environmental
    impacts.” DOT v. Pub. Citizen, 
    541 U.S. 752
    , 768 (2004) (quotation omitted).
    And in this case, it is undisputed that the information contained in a different
    EIS could cause EPA to “change its position” on the General Permit. Sierra
    
    Club, 827 F.3d at 67
    ; see 
    Lujan, 504 U.S. at 572
    n.7.
    15
    Case: 18-60102       Document: 00515099339          Page: 16     Date Filed: 08/30/2019
    No. 18-60102
    B.
    But showing the allegedly inadequate EIS was causally connected to the
    issuance of the General Permit is not sufficient. A procedural-rights plaintiff
    also “must establish that the injury is fairly traceable to the proposed
    government action or inaction.” Sierra Club v. Glickman, 
    156 F.3d 606
    , 613
    (5th Cir. 1998); see Fla. Audubon 
    Soc’y, 94 F.3d at 668
    . Thus, assuming a
    connection between the EIS and EPA’s issuance of the General Permit,
    Petitioners still must show a connection between the issuance of the General
    Permit and their assumed injuries. See Renal Physicians Ass’n v. HHS, 
    489 F.3d 1267
    , 1279 (D.C. Cir. 2007) (“[T]he [procedural-rights] plaintiff must still
    show that the agency action was the cause of some redressable injury to the
    plaintiff.”); Fla. Audubon 
    Soc’y, 94 F.3d at 669
    (requiring a “causal connection
    between the substantive government action and the asserted injury to the
    plaintiff ’s particularized interest”). 5
    Petitioners must demonstrate that the pollutants that will cause their
    assumed injuries will be discharged pursuant to the General Permit, and not
    pursuant to some other authority or in violation of law. See 
    Clapper, 568 U.S. at 410
    –11.      In Clapper, the plaintiffs asserted an injury in fact from the
    5 This is consistent with the general rule that the standing requirements are modified,
    but not eliminated, in procedural-rights cases. For example, a plaintiff “who has been
    accorded a procedural right to protect his concrete interests can assert that right without
    meeting all the normal standards for . . . immediacy.” 
    Lujan, 504 U.S. at 572
    n.7. As a result,
    a plaintiff could have standing to challenge the “failure to prepare an [EIS]” for a dam
    construction project “even though the dam will not be completed for many years.” 
    Ibid. But even if
    the injury will not occur immediately, it still must occur eventually. Ibid.; see also
    
    Summers, 555 U.S. at 496
    (“[D]eprivation of a procedural right without some concrete
    interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to
    create Article III standing.”); City of Hearne v. Johnson, 
    929 F.3d 298
    , 302 (5th Cir. 2019)
    (holding that a “procedural injury” must “impact a[ ] concrete interest” to provide standing).
    That’s why the procedural-rights analysis does not affect our injury-in-fact holding in Part
    
    II, supra
    . Petitioners failed to show not only that their members would be injured
    immediately but also that their members would be injured eventually.
    16
    Case: 18-60102     Document: 00515099339     Page: 17     Date Filed: 08/30/2019
    No. 18-60102
    government intercepting their communications for surveillance purposes. But
    they could “only speculate as to whether any (asserted) interception would be
    under [the statute they challenged] or some other authority.” 
    Id. at 413.
    As a
    result, they failed to “satisfy the ‘fairly traceable’ requirement.” 
    Ibid. The same requirement
    applies in environmental cases.           As the Fourth Circuit
    explained in Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 
    204 F.3d 149
    (4th Cir. 2000) (en banc), “[i]n applying the ‘fairly traceable’
    requirement, some distinction, of course, must be made between plaintiffs who
    lie within the discharge zone of a polluter and those who are so far downstream
    that their injuries cannot fairly be traced to that defendant.” 
    Id. at 162.
          Take for example Cedar Point. There were many “entities discharging
    chemicals into Galveston Bay,” and the plaintiffs could not “show to a scientific
    certainty that the defendant’s effluent, and the defendant’s effluent alone,
    caused the precise harm suffered by the plaintiffs.” Cedar 
    Point, 73 F.3d at 558
    (quotation omitted). But the plaintiffs introduced “expert testimony that
    [the defendant’s] produced water was typical in many respects, and that typical
    produced water has harmful effects on water quality and marine life.” 
    Ibid. They could thus
    show that the defendant “contribute[d] to the pollution that
    impair[ed] [the affiant’s] use of the bay.” 
    Ibid. Our Court then
    cited Powell
    Duffryn, which explained the same point in more detail: “In order to obtain
    standing, plaintiffs need not sue every discharger in one action, since the
    pollution of any one may be shown to cause some part of the injury suffered.
    The size of the injury is not germane to standing analysis.” Powell 
    Duffryn, 913 F.2d at 72
    n.8.
    In other words, if each incremental discharge of pollution makes the
    plaintiff ’s injury worse—even just a little worse—then the plaintiff might be
    able to demonstrate causation for the marginal injury. See Massachusetts, 549
    17
    Case: 18-60102      Document: 00515099339     Page: 18   Date Filed: 08/30/2019
    No. 18-60102
    U.S. at 524 (rejecting the “assumption that a small incremental step, because
    it is incremental, can never be attacked in a federal judicial forum,” and
    explaining steps that “whittle away” at “massive problems” satisfy the
    causation requirement); Texans United for a Safe Econ. Educ. Fund v. Crown
    Cent. Petroleum Corp., 
    207 F.3d 789
    , 793 (5th Cir. 2000) (holding an injunction
    preventing some of the pollution affecting the plaintiff could be appropriate
    even if the injunction would “not prevent all discharges of the pollutants
    affecting the plaintiff ”).
    This is the same interpretation of Cedar Point that we adopted in
    Friends of the Earth, Inc. v. Crown Central Petroleum Corp., 
    95 F.3d 358
    (5th
    Cir. 1996). There we considered standing to challenge a refinery’s discharges
    into Black Fork Creek. But the plaintiff’s members did not use Black Fork
    Creek. They “use[d] a body of water located three tributaries and 18 miles
    ‘downstream’ from” the refinery. 
    Id. at 361.
    We distinguished Cedar Point for
    the same reason we distinguish it today: The Cedar Point affiant used “the
    specific area of the Bay in which unlawful discharges occurred,” and that
    “played an important role in our [Cedar Point] decision.” 
    Ibid. In Crown Central,
    by contrast, the plaintiff “and its members relied solely on the truism
    that water flows downstream and inferred therefrom that any injury suffered
    downstream is ‘fairly traceable’ to unlawful discharges upstream.”            
    Ibid. Crown Central rejected
    that inference: “At some point this common sense
    observation becomes little more than surmise. At that point certainly the
    requirements of Article III are not met.” 
    Ibid. Taken together, Cedar
    Point and Crown Central establish this lesson:
    Whether a court can infer a causal link between a source of pollution and at
    least some portion of a petitioner’s injury is a fact-specific inquiry that turns
    on many factors, including the size of the waterway, the proximity of the source
    18
    Case: 18-60102      Document: 00515099339       Page: 19   Date Filed: 08/30/2019
    No. 18-60102
    and the injury, forces like water currents, and whether discharges will
    evaporate or become diluted. See Crown 
    Central, 95 F.3d at 361
    –62. In a case
    involving a small body of water, close proximity, well-understood water
    currents, and persistent discharges, Cedar Point might be appropriate. See
    Cedar 
    Point, 73 F.3d at 557
    .      But in cases missing one or more of those
    elements, Crown Central prohibits us from inferring that a discharge in one
    place will necessarily affect a plaintiff ’s interest in another place. See, e.g.,
    Crown 
    Central, 95 F.3d at 361
    .
    Here, the closest Petitioners come to alleging a causal connection is in
    Steiner’s declaration: “I spend time in the western Gulf of Mexico in the same
    areas that will be directly affected by wastewater discharges from offshore oil
    and gas activities.”    Unfortunately, we know relatively little about what
    Steiner meant. That sentence is unsupported by citation, unexplained in the
    rest of the declaration, and unmentioned in Petitioners’ briefing. He does not
    explain what the “same area” is. And he says nothing about what “directly
    affected” means. Article III demands more than such conclusory assertions.
    See 
    TIPROA, 410 F.3d at 973
    (holding that “[r]epeating the conclusory
    allegations of a complaint is not enough” to establish standing).
    *     *      *
    Because Petitioners lack standing, we do not reach the merits of their
    claims. Some may find that unsatisfying. But the standing doctrine “is not
    just an empty formality” that we can ignore when a case seems important.
    
    Lujan, 504 U.S. at 581
    (Kennedy, J., concurring in part and concurring in the
    judgment). The elements of standing go to the very core of judicial power.
    Federal courts are vested with the “judicial Power” to resolve “Cases” or
    “Controversies.”    U.S. CONST. art. III, § 2.     When resolution of a case or
    controversy requires assessing the lawfulness of an executive regulation,
    19
    Case: 18-60102     Document: 00515099339      Page: 20   Date Filed: 08/30/2019
    No. 18-60102
    courts do so. See, e.g., Utility Air Regulatory Grp. v. EPA, 
    573 U.S. 302
    , 314–
    15 (2014); cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“If two
    laws conflict with each other, the courts must decide on the operation of each.”).
    But when a petitioner lacks standing, the resulting litigation cannot be fairly
    called “a case or controversy,” Ariz. Christian Sch. Tuition Org. v. Winn, 
    563 U.S. 125
    , 132 (2011), and the court has no “power to declare the law,” Steel Co.
    v. Citizens for a Better Env’t, 
    523 U.S. 83
    , 94 (1998) (quoting Ex parte
    McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). “For the federal courts to decide
    questions of law arising outside of cases and controversies would be inimical to
    the Constitution’s democratic character.” Ariz. Christian Sch. Tuition 
    Org., 563 U.S. at 132
    ; see also Marye v. Parsons, 
    114 U.S. 325
    , 330 (1885). It would
    improperly transform courts into “roving commissions assigned to pass
    judgment on the validity of the Nation’s laws” and agency actions. Broadrick
    v. Oklahoma, 
    413 U.S. 601
    , 610–11 (1973).
    In our Government, there are entities that address environmental issues
    outside of the case-or-controversy constraint. This Court is not one of them.
    As Judge Sentelle put it many years ago: “The federal judiciary is not a back-
    seat Congress nor some sort of super-agency.” Fla. Audubon 
    Soc’y, 94 F.3d at 672
    .
    The petition for review is DISMISSED.
    20
    

Document Info

Docket Number: 18-60102

Filed Date: 8/30/2019

Precedential Status: Precedential

Modified Date: 8/31/2019

Authorities (22)

Spokeo, Inc. v. Robins , 136 S. Ct. 1540 ( 2016 )

Arizona Christian School Tuition Organization v. Winn , 131 S. Ct. 1436 ( 2011 )

Marye v. Parsons , 5 S. Ct. 932 ( 1885 )

Hunt v. Washington State Apple Advertising Commission , 97 S. Ct. 2434 ( 1977 )

Steel Co. v. Citizens for a Better Environment , 118 S. Ct. 1003 ( 1998 )

Massachusetts v. Environmental Protection Agency , 127 S. Ct. 1438 ( 2007 )

Renal Physn Assn v. HHS , 489 F.3d 1267 ( 2007 )

Texas Democratic Party v. Benkiser , 38 A.L.R. Fed. 2d 681 ( 2006 )

sierra-club-clark-hubbs-v-dan-glickman-secretary-department-of , 156 F.3d 606 ( 1998 )

central-and-south-west-services-inc-entergy-services-inc-mississippi , 220 F.3d 683 ( 2000 )

Broadrick v. Oklahoma , 93 S. Ct. 2908 ( 1973 )

Lujan v. Defenders of Wildlife , 112 S. Ct. 2130 ( 1992 )

Friends of the Earth, Inc. v. Laidlaw Environmental ... , 120 S. Ct. 693 ( 2000 )

Friends of the Earth, Inc. v. Crown Central Petroleum ... , 95 F.3d 358 ( 1996 )

Texans United for a Safe Economy Education Fund v. Crown ... , 207 F.3d 789 ( 2000 )

American Society for the Prevention of Cruelty to Animals v.... , 659 F.3d 13 ( 2011 )

friends-of-the-earth-incorporated-citizens-local-environmental-action , 204 F.3d 149 ( 2000 )

sierra-club-lone-star-chapter-plaintiff-counter-v-cedar-point-oil , 73 F.3d 546 ( 1996 )

public-interest-research-group-of-new-jersey-inc-and-friends-of-the-earth , 913 F.2d 64 ( 1990 )

Department of Transportation v. Public Citizen , 124 S. Ct. 2204 ( 2004 )

View All Authorities »