Arthur West v. Loretta E. Lynch ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2016 Decided January 18, 2017
No. 15–5107
ARTHUR S. WEST,
APPELLANT
v.
LORETTA E. LYNCH, ATTORNEY GENERAL OF THE
UNITED STATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00098)
David M. Zionts, appointed by the court, argued the cause
as amicus curiae in support of the appellant. Robert A. Long,
Jr., was with him on the briefs.
Arthur S. West, pro se, filed the briefs for the appellant.
Nicolas Y. Riley, Attorney, United States Department of
Justice, argued the cause for the federal appellees. Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, and
Mark B. Stern, Attorney, were with him on the brief.
2
Jeffrey T. Even, Deputy Solicitor General, Office of the
Attorney General for the State of Washington, argued the cause
for appellees Inslee and Foster. Robert W. Ferguson,
Attorney General, was with him on the brief.
Before: HENDERSON, TATEL and MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The
Constitution limits our “judicial Power” to “Cases” and
“Controversies,” U.S. CONST. art. III, § 2, cl. 1, and there is no
justiciable case or controversy unless the plaintiff has standing,
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102
(1998). To stave off dismissal for lack of standing, the
plaintiff must sufficiently allege a “concrete and
particularized” injury that is “fairly traceable to the challenged
action of the defendant” and “likely” to be “redressed by a
favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992) (internal quotations, brackets and ellipses
omitted). Arthur West, the plaintiff here, does not meet this
“irreducible constitutional minimum.” Id. at 560.
West lives in the state of Washington, which since the late
1990s has permitted the use of marijuana for medical purposes.
He holds a medical marijuana authorization and uses marijuana
for an undisclosed medical reason. He opposes the
legalization of recreational marijuana, however, which
Washington approved in 2012 through a ballot initiative. In
West’s view, the initiative and subsequent amendments are bad
for the state’s environment and for medical marijuana users
like him.
All of Washington’s laws governing marijuana—medical
and recreational—are in tension with the Controlled
3
Substances Act of 1970 (CSA), 21 U.S.C. §§ 801 et seq., which
makes it a federal crime to manufacture, distribute or possess
with intent to distribute marijuana. In 2013, the United States
Department of Justice (Department), through then-Deputy
Attorney General James Cole, issued a guidance memorandum
(Cole Memorandum) to federal prosecutors about enforcement
of the CSA in cases involving marijuana. The memorandum,
prompted by Washington’s 2012 ballot initiative and a similar
one in Colorado, advises federal prosecutors generally to rely
on state authorities to address marijuana activity unless the
state’s regulatory system is insufficiently robust or the activity
implicates a federal enforcement priority. West sued the
Department, Deputy Attorney General Cole and other federal
and state officials in district court, claiming in a pro se
complaint that the Cole Memorandum unconstitutionally
“commandeer[s]” state officials and institutions.1 Pl.’s Am.
Compl. (Compl.), Dkt. No. 14 at 1. He also claimed that all
defendants violated the National Environmental Policy Act of
1969 (NEPA), 42 U.S.C. §§ 4321 et seq., by failing to prepare
an environmental impact statement before publication of the
memorandum. He alleged that, taken together, Washington’s
laws and the memorandum subject him to injuries from the
wider availability of recreational marijuana and new
restrictions on medical marijuana. The relief he sought
centered not on state law but on the memorandum: he asked
that it be “void[ed]” and that all defendants “be compelled to
comply with . . . NEPA” in connection with the “federal . . .
1
West filed his complaint in the District of Columbia rather
than the Western District of Washington, where he resides. He is
barred from litigating in the latter district “absent leave of court”
because he has filed “an unending string” of “vexatious” lawsuits
there. State Defs.’ Mot. to Dismiss, Dkt. No. 3, Ex. 1 at 4 (district
court order); see In re West, 552 F. App’x 624, 625 (9th Cir. 2014)
(unpublished memorandum) (affirming order).
4
response” to the state’s legalization of recreational marijuana.
Compl. 18-19.
The district court dismissed the complaint, concluding
(inter alia) that West lacks standing. We agree. First, for his
commandeering claim, West has not sufficiently alleged that
setting aside the Cole Memorandum would redress his alleged
injuries from the wider availability of recreational marijuana
and new restrictions on medical marijuana. Second, for his
NEPA claim, West has not sufficiently alleged that any adverse
environmental effects of recreational marijuana on his own
particularized interests are traceable to the memorandum. We
therefore uphold the dismissal of his complaint. 2
2
The district court dismissed the complaint in two separate
orders. It first ordered dismissal as to the state defendants for lack
of personal jurisdiction. 60 F. Supp. 3d 190, 193-96 (D.D.C. 2014).
It did not address West’s standing and was not required to do so:
personal jurisdiction and standing are both “essential element[s] of
the jurisdiction of a district court,” Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 584 (1999) (internal quotation and ellipses omitted);
see Steel Co., 523 U.S. at 102, and neither the Supreme Court nor our
Court “dictate[s] a sequencing of jurisdictional issues[,]” Ruhrgas
AG, 526 U.S. at 584; see Anderson v. Carter, 802 F.3d 4, 9-10 (D.C.
Cir. 2015). Several months later, the court ordered dismissal as to
the federal defendants on the ground that West lacks standing. 60 F.
Supp. 3d 197, 200-03 (D.D.C. 2015). Because our analysis of
standing applies equally to the state and federal defendants, we
affirm the dismissal as to all defendants for West’s lack of standing
without considering personal jurisdiction. See Parsi v. Daioleslam,
778 F.3d 116, 126 (D.C. Cir. 2015) (“Ordinarily, a court of appeals
can affirm a district court judgment on any basis supported by the
record, even if different from the grounds the district court cited.”).
5
I. BACKGROUND
For our review, the facts are undisputed. We recite them
primarily from West’s complaint, accepting as true its
well-pleaded factual allegations and drawing all reasonable
inferences in West’s favor. Arpaio v. Obama, 797 F.3d 11, 19
(D.C. Cir. 2015). As necessary, we cull additional facts from
other parts of the record. See Settles v. U.S. Parole Comm’n,
429 F.3d 1098, 1107 (D.C. Cir. 2005) (in deciding subject
matter jurisdiction, court may “consider[] facts developed in
the record beyond the complaint”). Before turning to the
injuries alleged in the complaint, we summarize the regulatory
backdrop against which they must be evaluated.
A. WASHINGTON’S MARIJUANA LAWS AND
THE COLE MEMORANDUM
Since 1970, the CSA has made it a crime to manufacture,
distribute or possess with intent to distribute controlled
substances, 21 U.S.C. § 841(a)(1), including marijuana, id. §
812(c) (Schedule I(c)(10)). In late 1998, notwithstanding the
CSA, Washington legalized the medical use of marijuana.
Act of Nov. 3, 1998, ch. 2, 1999 Wash. Sess. Laws 1. 3
Starting in 2011, a “qualifying patient” could join together with
up to nine other qualifying patients to grow marijuana in a
“collective garden” and transport the product for medical use.
Act of Apr. 29, 2011, ch. 181, 2011 Wash. Sess. Laws 1345,
1355. A qualifying patient could possess up to 24 ounces of
useable marijuana at a time. Id. at 1353.
3
Washington’s session laws are available at
leg.wa.gov/codereviser/pages/session_laws.aspx. Its laws relating
to marijuana are primarily codified at chapters 69.50, 69.51 and
69.51A of the Revised Code of Washington.
6
In November 2012, Washington voters approved Initiative
502 (I-502), which legalized the recreational use of marijuana.
Act of Nov. 6, 2012, ch. 3, 2013 Wash. Sess. Laws 28. I-502
set up a licensing regime for marijuana producers, processors
and retailers. Id. at 33-52. It also provided for a marijuana
excise tax and subjected retail marijuana sales to ordinary sales
tax. Id. at 52-53. With the exception of a broad prohibition
on using marijuana or marijuana-infused products “in view of
the general public,” id. at 44, I-502 did not modify the regime
governing medical marijuana that had existed since the late
1990s, including provisions permitting the possession of up to
24 ounces of medical marijuana and allowing for the creation
of collective gardens. Instead I-502 provided that any user
over the age of 21 can, without violating “any . . . provision of
Washington state law,” possess up to one ounce of useable
marijuana. Id.; see id. at 42.
In early 2013, Washington Governor Jay Inslee met with a
White House official to seek assurances that the federal
government did not intend to “preempt[] . . . state
implementation of I-502, or pursue enforcement of federal
criminal laws” in Washington “for those acting legally under
[state] law.” Pl.’s Supplemental Decl. and Exs. (Decl.), Dkt.
No. 16 at 81. To the same end, Governor Inslee wrote a letter
to Eric Holder, then-Attorney General of the United States,
summarizing the regulatory and law enforcement strategies the
state planned to implement in the wake of I-502.
In a letter dated August 29, 2013, Attorney General Holder
informed Governor Inslee—and Governor John Hickenlooper
of Colorado, another state that had legalized the recreational
use of marijuana—that “while the Department will not at this
time seek to challenge your state’s law, we will nevertheless
continue to enforce the Controlled Substances Act in your
state.” Decl. 71. The Attorney General also enclosed the
7
Cole Memorandum, which was issued that same day to all
United States Attorneys.
The Cole Memorandum updated marijuana-related CSA
guidances earlier issued to federal prosecutors in 2009 and
2011. 4 The memorandum “applies to all federal enforcement
activity . . . concerning marijuana in all states.” Decl. 72. It
is “solely . . . a guide to the exercise of investigative and
prosecutorial discretion” and “does not alter in any way the
Department’s authority to enforce federal law . . . regardless of
state law.” Id. at 75. It advises federal prosecutors “to
review marijuana cases on a case-by-case basis” in deciding
how to deal with “marijuana-related activity.” Id. at 74. It
directs them to “weigh all available information and evidence,”
including whether the activity “is demonstrably in compliance
with a strong and effective state regulatory system.” Id. It
declares that “enforcement of state law by state and local law
enforcement and regulatory bodies should remain the primary
means of addressing marijuana-related activity” unless the
state’s “regulatory structure” and “enforcement efforts” “are
not sufficiently robust.” Id. That arrangement is meant to
enable federal prosecutors to focus on “enforcement priorities
that are particularly important to the federal government[,]”
including prevention of violence, organized crime, interstate
distribution, distribution to minors and use on federal property.
Id. at 72-73. Finally, the memorandum states that, if
marijuana-related activity “interferes with any one or more of
4
As relevant here, the earlier guidance advised federal
prosecutors not to “focus federal resources in [their] States on
individuals whose actions are in clear and unambiguous compliance
with existing state laws providing for the medical use of marijuana.”
United States v. Canori, 737 F.3d 181, 183 (2d Cir. 2013) (quoting
2009 guidance) (alteration in original) (internal quotation marks
omitted).
8
these priorities,” federal prosecution may be warranted
“regardless of state law.” Id. at 73.
In the first few years after Washington voters approved
I-502, medical marijuana and recreational marijuana were
governed by two parallel strands of Washington law, neither of
which mentioned the other. As noted earlier, a user of
medical marijuana could grow it in a collective garden with
other patients and could possess up to 24 ounces. 2011 Wash.
Sess. Laws at 1353, 1355. A recreational user, by contrast,
could possess only one ounce. 2013 Wash. Sess. Laws at 42,
44. In April 2015, the Washington legislature amended the
two strands of law and partially pulled them together through
enactment of the Cannabis Patient Protection Act (CPPA), ch.
70, 2015 Wash. Sess. Laws 287 (Apr. 24, 2015). The CPPA is
“a comprehensive act that uses the regulations in place for the
recreational market to provide regulation for the medical use of
marijuana.” Id. at 288. In some ways, the CPPA is more
restrictive than earlier laws. It repealed the provision that
permitted a medical user to possess up to 24 ounces of useable
marijuana. Id. at 317. Now the ordinary medical user may
not possess more than three ounces purchased at retail and
eight additional ounces obtained from home-grown plants. Id.
at 312, 317 (codified at WASH. REV. CODE §§
69.51A.040(1)(a) and 69.51A.210(1) (2016)). The CPPA
also repealed the system of collective gardens, id. at 336,
replacing it with a system of “cooperative[s]” under which
“[n]o more than four qualifying patients” may cooperatively
grow marijuana for medical use, id. at 319 (codified as
amended at WASH. REV. CODE § 69.51A.250(1) (2016)).
Cooperatives are subject to registration requirements and other
restrictions to which collective gardens were not. Compare
WASH. REV. CODE § 69.51A.085 (repealed 2016) (collective
gardens), with id. § 69.51A.250 (2016) (cooperatives). The
9
CPPA took effect in stages during 2015 and 2016. 2015
Wash. Sess. Laws at 336.
B. WEST’S COMPLAINT
In April 2014, after the Cole Memorandum was issued but
before the CPPA was enacted, West filed his complaint in
district court. 5 His claims are difficult to discern but the crux
is that, through the “policy” announced in the memorandum,
the federal defendants “improperly commandeer[ed]” the state
defendants and other “[s]tate officers and institutions” in
violation of the Tenth Amendment and other provisions of the
United States Constitution. Compl. 1-2 (citing Printz v.
United States, 521 U.S. 898 (1997); New York v. United States,
505 U.S. 144 (1992)). West also claimed that all of the
defendants violated NEPA by failing to prepare an
environmental impact statement before undertaking the “major
federal action” announced in the memorandum. Id. at 2, 17
(citing 40 C.F.R. § 1508.18) (capitalization altered).
According to the complaint, the memorandum subjects West to
injuries from the wider availability of recreational marijuana
and by limiting his access to medical marijuana. We briefly
summarize West’s allegations about each type of injury.
Wider availability of recreational marijuana. West
opposed I-502. He frequents a park in Olympia that is
“suffering under the impacts of homelessness and casual
recreational drug use.” Compl. 4. Implementation of I-502,
as “sanctioned” by the Cole Memorandum, “will” cause a
surge in drug use, further “degrad[ing]” the park. Id. at 14.
Moreover, because I-502 authorizes “an entirely new
commercial market” in marijuana, it “will” eventually cause
5
The complaint amended an earlier version filed in January
2014. No party claims the earlier version affects our analysis.
10
more “crime, traffic, noise, air pollution, and cumulative
impacts.” Id.
Limited access to medical marijuana. West holds a
medical marijuana authorization, uses marijuana for medical
purposes and is an “independent consultant” in that field.
Compl. 4, 13. The Cole Memorandum “will” have the
“foreseeable and imminent effect[s]” of limiting his access to
medical marijuana and making it more expensive for him,
inasmuch as state legislators have referred to the memorandum
in proposing legislation “sharply regulat[ing]” medical
marijuana and subjecting it to new taxes. Id. at 12-13. 6
In the complaint’s prayer for relief, West asked the district
court to declare the Cole Memorandum “void” and to
“compel[]” all of the defendants “to comply with . . . NEPA” in
connection with the “federal . . . response” to Washington’s
legalization of recreational marijuana. Compl. 18-19. The
defendants moved to dismiss the complaint, contending (inter
alia) that West lacks standing. West opposed their motions
but did not explain how the relief he requested would redress
his alleged injuries.
C. THE DISTRICT COURT’S DISMISSAL OF THE COMPLAINT
The district court dismissed the complaint, concluding
(inter alia) that “West has not established that he has Article III
standing to bring any of his various claims to federal court.”
60 F. Supp. 3d 197, 200 (D.D.C. 2015); see supra note 2.
Reciting the three elements of standing—(1) a particularized
injury to the plaintiff (2) traceable to the defendants’
6
The proposed legislation cited in the complaint was not
enacted but presaged the CPPA, which, as noted, was enacted after
West filed his complaint.
11
challenged conduct and (3) redressable by a favorable
decision—the court held that West did not sufficiently plead
any of them. 60 F. Supp. 3d at 200-03. First, in the court’s
view, West’s allegations that the Cole Memorandum “will”
produce more crime, traffic and pollution and “will” limit his
access to medical marijuana were inadequate “speculative
predictions.” Id. at 201 (internal quotations and emphases
omitted). Second, the court reasoned that West’s alleged
injuries could not “fairly . . . be traced” to the memorandum,
which was issued well after I-502 became law and which
merely “allow[s]” the allegedly harmful actions of third parties
not involved in the suit. Id. (internal quotation omitted).
Third, the court held that because West “made no effort to
show that his injuries can be redressed” in federal court, he
“forfeited any arguments he might have had” on that issue. Id.
at 202-03 & n.5. The court added that any claim of
redressability would fail in any event because it was “purely
speculative” that voiding the memorandum would “modify
Washington’s . . . allegedly harmful marijuana policies.” Id.
(internal quotation omitted). 7
West appealed and this Court appointed amicus curiae to
present arguments in support of his position. West adopts
amicus’s arguments without asserting any additional
non-frivolous contention regarding his standing.
II. ANALYSIS
Because “standing is not dispensed in gross” but instead
may differ claim by claim, Davis v. FEC, 554 U.S. 724, 734
7
In a subsequent order denying reconsideration, the district
court clarified that its standing analysis applied not only to West’s
commandeering claim but to his NEPA claim as well. 309 F.R.D.
54, 59 (D.D.C. 2015).
12
(2008) (internal quotation and alteration omitted), we address
seriatim West’s standing to pursue his commandeering and
NEPA claims. Reviewing the district court’s decision de
novo, Teton Historic Aviation Found. v. Dep’t of Defense, 785
F.3d 719, 724 (D.C. Cir. 2015) (per curiam), we conclude that
West lacks standing to assert both claims.
A. COMMANDEERING
For West’s claim that the Cole Memorandum
“commandeer[s]” state officials and otherwise violates the
Constitution, Compl. 1, 17-18, we need not decide whether he
has adequately pleaded any particularized injury traceable to
the memorandum because he has not sufficiently alleged
redressability. 8 See Huron v. Cobert, 809 F.3d 1274, 1279
(D.C. Cir. 2016) (plaintiff “bear[s] the burden of establishing
each of [the] elements of standing”). “Redressability
examines whether the relief sought, assuming that the court
8
We observe, however, that West’s and amicus’s assertions of
injury from new restrictions on medical marijuana are
chronologically problematic. The CPPA is the primary source of
those restrictions and it postdates West’s complaint. Because “a
party must show a legally cognizable injury to have standing to begin
a lawsuit,” Garden State Broad. Ltd. P’ship v. FCC, 996 F.2d 386,
394 (D.C. Cir. 1993), “[s]tanding is determined as of the time the
action is brought,” Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154
(10th Cir. 2005) (citing cases). We therefore question the CPPA’s
relevance to West’s standing. Amicus suggests remanding the case
so that West can amend the complaint to account for the CPPA and
other developments. There is no need. In view of our conclusion
about redressability, amending the complaint would only delay the
inevitable. Cf. Hettinga v. United States, 677 F.3d 471, 480 (D.C.
Cir. 2012) (per curiam) (“A district court may deny a motion to
amend a complaint as futile if the proposed claim would not survive
a motion to dismiss.”).
13
chooses to grant it, will likely alleviate the particularized injury
alleged by the plaintiff.” Fla. Audubon Soc’y v. Bentsen, 94
F.3d 658, 663-64 (D.C. Cir. 1996) (en banc) (footnote
omitted). The key word is “likely.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992) (“[I]t must be likely, as
opposed to merely speculative, that the injury will be redressed
by a favorable decision.” (internal quotation omitted)). As
relief on his commandeering claim, West asks that the Cole
Memorandum be declared “void.” Compl. 19. But his
complaint and oppositions to the defendants’ motions to
dismiss did not even begin to explain how voiding the
memorandum would likely clean up the park he visits; reduce
crime, traffic and pollution more generally; or cause
Washington to ease its restrictions on medical marijuana. Nor
has amicus closed the gap in this Court.9
Amicus’s argument in a nutshell is that redressability
necessarily “follows from causation.” Amicus Br. 40; see id.
at 30-31. Not so. It is true that causation and redressability
“are closely related” like “two sides of a . . . coin.” Dynalantic
Corp. v. Dep’t of Defense, 115 F.3d 1012, 1017 (D.C. Cir.
1997). Like heads and tails, however, the two concepts are
distinct: causation focuses on the “connection between the
assertedly unlawful conduct and the alleged injury” whereas
redressability focuses on the “connection between the alleged
9
In saying so, we by no means denigrate amicus, who
provided exemplary briefing and oral argument in service of an
unwinnable cause. Indeed, even if amicus had fashioned a viable
theory of redressability, it would not have aided West, who
preserved no such theory in district court. 60 F. Supp. 3d 197,
202-03 & n.5 (D.D.C. 2015); see Huron, 809 F.3d at 1280 (absent
“exceptional circumstances,” plaintiff may not “roll out an entirely
new argument for standing for the first time on appeal” (internal
quotation omitted)).
14
injury and the judicial relief requested.” Allen v. Wright, 468
U.S. 737, 753 n.19 (1984). If the challenged conduct is at best
an indirect or contributing cause of the plaintiff’s injury—i.e.,
if the injury may or may not follow from the conduct, based on
a “chain of contingencies,” Clapper v. Amnesty Int’l USA, 568
U.S. __, 133 S. Ct. 1138, 1148 (2013)—the plaintiff faces an
uphill climb in pleading and proving redressability. Arpaio v.
Obama, 797 F.3d 11, 21 (D.C. Cir. 2015) (“When considering
any chain of allegations for standing purposes, we may reject
as overly speculative those links which are predictions of
future events[,] especially future actions to be taken by third
parties . . . .” (internal quotation and parentheses omitted));
Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930,
938 (D.C. Cir. 2004) (“[A] plaintiff’s standing fails where it is
purely speculative that a requested change in government
policy will alter the behavior of regulated third parties that are
the direct cause of the plaintiff’s injuries.”).
Our National Wrestling Coaches decision illustrates the
principle. In that case, organizations representing male
collegiate wrestlers and coaches challenged regulatory
guidance implementing Title IX of the Education Amendments
of 1972, 20 U.S.C. §§ 1681 et seq. The guidance prescribed a
three-part test for measuring compliance with an earlier
requirement that schools provide “equal athletic opportunity
for members of both sexes.” 366 F.3d at 934-35 (quoting 34
C.F.R. § 106.41(c) and 45 C.F.R. § 86.41(c)). According to
the plaintiff organizations, some schools passed the test “not by
offering increased athletic opportunities to female students, but
by reducing the opportunities available to male students,”
including by eliminating men’s varsity wrestling. Id. at 937.
We affirmed the district court’s dismissal of the suit for lack of
standing because the plaintiffs could not establish
redressability. Id. at 936-45. Setting aside the challenged
guidance, we reasoned, would not undo the underlying
15
equal-opportunity requirement or prevent the schools from
exercising their own “discretion to eliminate men’s wrestling
programs, as necessary, to comply with” the requirement. Id.
at 933. And the plaintiffs “offer[ed] nothing but speculation”
that “a favorable judicial decision” would alter the schools’
“independent choices” on that score. Id.
A similar analysis here yields a similar conclusion. The
direct causes of West’s alleged injuries—e.g., recreational
users who smoke marijuana in public and state officials who
restrict his access to medical marijuana—are not governed by
the Cole Memorandum but by state laws he does not challenge.
The memorandum governs only federal prosecutors and even
as to them, only loosely: it is mere guidance channeling their
prosecutorial discretion, advising them to rely on state
authorities to address marijuana activity unless the state’s
regulatory system is insufficiently robust or the particular
activity implicates a federal enforcement priority. If the
memorandum no longer existed, would federal prosecutors
expend their limited resources cracking down on the use of
recreational marijuana in Washington? West’s allegations
offer no basis to conclude that they would. 10 Would an uptick
in federal prosecutions dissuade scofflaws from publicly
smoking marijuana in the park West frequents? Given that
those offending marijuana users have already chosen to defy
state law, see 2013 Wash. Sess. Laws at 44, any such allegation
would be implausible. Similarly, if federal prosecutors began
10
Even before the Cole Memorandum, prosecutors were
advised not to “focus federal resources in [their] States on
individuals whose actions are in clear and unambiguous compliance
with existing state laws providing for the medical use of marijuana.”
United States v. Canori, 737 F.3d 181, 183 (2d Cir. 2013) (quoting
2009 guidance) (alteration in original) (internal quotation marks
omitted); see supra note 4 and accompanying text.
16
pursuing more CSA charges in Washington, would that
encourage state legislators to loosen their recent restrictions on
medical marijuana? Common sense hardly dictates such a
result and, in any event, West fails to explain why it is likely to
occur.
When conjecture is necessary, redressability is lacking.
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 43-44
(1976). To find redressability on West’s commandeering
claim, we would have to pile conjecture on conjecture, much of
it about the charging decisions of federal prosecutors. Courts
do not lightly speculate how “independent actors not before
[them]” might “exercise [their] broad and legitimate
discretion,” Lujan, 504 U.S. at 562 (internal quotation
omitted), especially when the independent actors are federal
prosecutors, United States v. Armstrong, 517 U.S. 456, 464
(1996) (because prosecutors are “delegates” who help
President “discharge his constitutional responsibility to ‘take
Care that the Laws be faithfully executed,’” charging decisions
“‘generally rest[] entirely in [their] discretion’” (quoting U.S.
CONST. art. II, § 3, and Bordenkircher v. Hayes, 434 U.S. 357,
364 (1978))); Heckler v. Chaney, 470 U.S. 821, 831 (1985)
(“decision not to prosecute” ordinarily not subject to judicial
review). Neither West nor amicus gives us any good reason to
depart from these settled principles here. And we decline to
do so especially because, even if we were to set aside the Cole
Memorandum, we would not and could not compel the
Department to alter the enforcement priorities that the
memorandum merely documented.
B. NEPA
Analysis of West’s standing to assert a NEPA claim
differs from that of his standing to assert a constitutional
violation. But the result is the same.
17
A NEPA plaintiff can assert a violation of the statute
“without meeting all the normal standards for redressability
and immediacy.” City of Dania Beach v. FAA, 485 F.3d 1181,
1186 (D.C. Cir. 2007) (quoting Lujan, 504 U.S. at 572 n.7)
(internal quotation marks omitted). For example, the plaintiff
need not allege that, if he were to succeed in enforcing a
NEPA-required procedure the defendant agency did not
follow, the agency’s substantive policy would change. Id.
Here, then, West need not aver that, if the Department or other
defendants were ordered to prepare an environmental impact
statement about the likely effects of the Cole Memorandum,
the memorandum would instead be withdrawn.
A NEPA plaintiff is not absolved, however, from pleading
and proving “a causal connection between the [substantive]
agency action and the alleged injury.” City of Dania Beach,
485 F.3d at 1186; see Fla. Audubon Soc’y, 94 F.3d at 664-65
(NEPA claimant or other procedural-rights plaintiff must
“show[] a causal connection between the government action
that supposedly required the disregarded procedure” and “the
essential injury to the plaintiff’s own interest”). West does
not meet the causation requirement.
West claims that, before publication of the Cole
Memorandum, NEPA required the defendants to determine
what effect the memorandum’s “sanction[ing]” of I-502 would
have on Washington’s environment. Compl. 14, 17-18. But
he cannot connect the memorandum to his alleged injuries
from recreational marijuana, chief among them the
“degrad[ation]” of the park he visits. Id. at 14. As the state
defendants’ counsel noted at oral argument, I-502 “is itself a
statute” and “was the law for about a year before the Cole
Memo was issued.” Oral Arg. Recording 25:18-25:50. Also,
Washington had begun the process of implementing I-502 well
before the memorandum existed. Given that sequence, and
18
because I-502 governs recreational users directly, we think
I-502 a much more likely source of West’s alleged injuries.
We can only speculate that the Cole Memorandum—issued to
third-party prosecutors who retain discretion to prosecute
marijuana activity “on a case-by-case basis,” Decl. 74—had
anything to do with the alleged injuries. And just as
speculation cannot establish redressability, it cannot establish
causation. Clapper, 133 S. Ct. at 1147-50; Simon, 426 U.S. at
40-46; Arpaio, 797 F.3d at 19-25.
*****
For the foregoing reasons, we affirm the district court’s
dismissal of the complaint.
So ordered.