National Ass'n of Home Builders v. United States Army Corps of Engineers , 417 F.3d 1272 ( 2005 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 19, 2005 Decided July 29, 2005
No. 04-5009
NATIONAL ASSOCIATION OF HOME BUILDERS,
APPELLANT
v.
UNITED STATES ARMY CORPS OF ENGINEERS ET AL .,
APPELLEES
No. 04-5010
NATIONAL ASSOCIATION OF HOME BUILDERS,
APPELLANT
v.
UNITED STATES ARMY CORPS OF ENGINEERS ET AL .,
APPELLEES
No. 04-5011
NATIONAL ASSOCIATION OF HOME BUILDERS,
APPELLANT
2
v.
UNITED STATES ARMY CORPS OF ENGINEERS ET AL .,
APPELLEES
Appeals from the United States District Court
for the District of Columbia
(No. 00cv00379)
(No. 00cv00558)
(No. 00cv01404)
Virginia S. Albrecht argued the cause for the appellants.
Karma B. Brown, Duane J. Desiderio, Felicia K. Watson,
Lawrence R. Liebesman, Rafe Petersen, Ethan Arenson, David
E. Frulla, Andrew D. Herman and Elizabeth A. Gaudio were on
brief.
Peter L. Gray, Robin S. Conrad, Richard S. Moskowitz, Alan
C. Raul and Brian T. Fitzpatrick were on brief for amici curiae
Honorable Donald A. Manzullo et al. Prasad Sharma and
Stephen A. Bokat entered appearances.
Greer S. Goldman, Attorney, United States Department of
Justice, argued the cause for appellees United States Army Corp
of Engineers et al. David C. Shilton, Martin McDermott and
Stephanie Tai, Attorneys, United States Department of Justice,
were on brief.
Howard I. Fox was on brief for appellees, Natural Resources
Defense Council and Sierra Club.
3
Eliot Spitzer, Attorney General, State of New York, Peter H.
Lehner, Philip M. Bein and Tracy Hughes, Assistant Attorneys
General, State of New Mexico, were on brief for amici curiae
States of New York and New Mexico.
Before: GINSBURG, Chief Judge, and HENDERSON and
GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The National
Association of Home Builders (NAHB) and others1
(collectively, the appellants) appeal the dismissal of their multi-
pronged challenge to the issuance of certain permits by the
United States Army Corps of Engineers (Corps) pursuant to
section 404(e) of the Clean Water Act (CWA), 33 U.S.C.
§ 1344. The district court granted summary judgment to the
Corps, concluding that it lacked subject matter jurisdiction to
entertain any of the appellants’ claims because the Corps’
issuance of the permits did not constitute “final agency action”
subject to judicial review under the Administrative Procedure
Act (APA), 5 U.S.C. § 704. See Nat’l Ass’n of Home Builders
v. United States Army Corps of Eng’rs, 297 F. Supp. 2d 74(D.D.C. 2003), reprinted in Joint Appendix (J.A.) at 146-52.
We disagree; the appellants’ claims, with one exception, are
cognizable. Accordingly, we reverse the district court in part
and remand for further proceedings consistent with this opinion.
I.
The CWA aims to “restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters,” 33
1
The other appellants are the National Stone, Sand and Gravel
Association (NSSGA), the American Road and Transportation
Builders Association (ARTBA), the Nationwide Public Projects
Coalition (NPPC), the National Federation of Independent Businesses
(NFIB) and Wayne Newnam, an Ohio homebuilder.
4
U.S.C. § 1251(a), by prohibiting the discharge of pollutants into
navigable waters of the United States—except, that is, by
permit, see id. § 1311(a). The CWA divides the authority to
issue permits to discharge pollutants between the United States
Environmental Protection Agency and the United States
Secretary of the Army, acting through the Corps, conferring on
the latter the power to issue permits for discharges of “dredged
or fill material” only. Id. § 1344(a). Responsibility for the day-
to-day administration of the permitting regime falls to the
Corps’ district and division engineers. See 33 C.F.R.
§ 320.1(a)(2).
The Corps issues a permit under section 404 of the CWA
either on a class-wide (“general permit”) or a case-by-case
(“individual permit”) basis. 33 U.S.C. § 1344(a), (e). The
Corps issues a general permit “on a State, regional, or
nationwide basis for any category of activities involving
discharges of dredged or fill material.” Id. § 1344(e)(1); see
also 33 C.F.R. § 323.2(h). Before issuing a general permit for
a “category of activities,” the Corps must “determine[] that the
activities in such category are similar in nature, will cause only
minimal adverse environmental effects when performed
separately, and will have only minimal cumulative adverse
effect on the environment.” 33 U.S.C. § 1344(e)(1); see also 33
C.F.R. § 323.2(h)(1). A general permit has a statutorily-limited
lifespan—i.e., no longer than five years—and may be revoked
or modified if the authorized activities “have an adverse impact
on the environment or . . . are more appropriately authorized by
individual permits.” 33 U.S.C. § 1344(e)(2).
The Corps’ individual permit process is, by contrast, “a longer,
more comprehensive procedure.” New Hanover Township v.
United States Army Corps of Eng’rs, 992 F.2d 470, 471 (3d Cir.
1993). The Corps makes a formal decision on an individual
application following site-specific documentation and analysis,
public interest review, public notice and comment and, if
5
necessary, a public hearing. See 33 C.F.R. § 320.4; id. §§ 323,
325; see also Home Builders Ass’n of Greater Chicago v. United
States Army Corps of Eng’rs, 335 F.3d 607, 612 (7th Cir. 2003).
If the Corps initially denies an individual application, the
applicant may challenge that determination through an
administrative appeals process. See 33 C.F.R. § 331. Indeed, a
disappointed applicant must exhaust his administrative remedies
before heading to federal court. See id. § 331.12.
Thus a party desiring to discharge fill or dredged material into
our nation’s navigable waters may do so in either of two ways.
See New Hanover Township, 992 F.2d at 471. If the proposed
discharge activity is covered by a general permit, the party may
proceed without obtaining an individual permit or, in some
cases, even without giving the Corps notice of the discharge.
See 33 C.F.R. § 330.1(e)(1) (“In most cases, permittees may
proceed with activities authorized by [nationwide general
permits] without notifying the [district engineer].”); New
Hanover Township, 992 F.2d at 471 (discharger may “simply
operate under the [general] permit without informing the Corps
in advance unless the [general] permit in question requires
advance approval from the Corps”). On the other hand, if the
proposed discharge is not covered by a general permit, the party
must secure an individual permit before undertaking the
discharge. See 33 C.F.R. § 323.3(a). A party that discharges
without meeting the conditions of a general permit or obtaining
an individual permit faces both civil and criminal enforcement
actions. See 33 U.S.C. § 1319; 33 C.F.R. § 326.5-.6.
This litigation involves several nationwide permits, or NWPs,
a species of general permit designed to minimize delays and
paperwork for projects with minimal environmental impact. See
33 C.F.R. § 330.1(b). The Corps has issued this kind of permit
for five-year intervals since 1977, see Nat’l Ass’n of Home
Builders, 297 F. Supp. 2d at 77; Public Notice Concerning
Changes to Nationwide Permit 26, 63 Fed. Reg. 39,276, 39,277
6
(July 22, 1998), including the once widely-used but now defunct
NWP 26, see Final Notice of Issuance, Reissuance, and
Modification of Nationwide Permits, 61 Fed. Reg. 65,874,
65,892 (Dec. 13, 1996) (noting 13,837 activities were authorized
by NWP 26 in 1995 alone). There are currently 43 NWPs in
force—covering activities ranging from “Single-family
Housing” (NWP 29) to “Mining Activities” (NWP 44) to
“Cranberry Production Activities” (NWP 34)—that are subject
to 27 General Conditions (GCs)2 —regarding matters like “Soil
Erosion and Sediment Controls” (GC 3) and “Notification” (GC
13). See Issuance of Nationwide Permits; Notice, 67 Fed. Reg.
2020, 2077, 2078-94 (Jan. 15, 2002). In their current version,
the assorted NWPs, applicable conditions and relevant
definitions span nearly 20 pages in the Federal Register. See id.
at 2077-94.
In 1996, the Corps proposed to reissue a number of existing
NWPs, albeit with modifications, that were otherwise set to
expire on January 21, 1997. See Proposal to Issue, Reissue, and
Modify Nationwide Permits; Public Hearing, 61 Fed. Reg.
30,780 (June 17, 1996). As to NWP 26, which, at the time,
authorized a party to discharge dredged or fill materials
affecting up to ten acres of water into headlands and isolated
wetlands without an individual permit and required only notice
to a Corps district engineer of any discharge causing loss or
substantial adverse modification of one to ten acres of wetlands,
the Corps gave public notice of—and sought comment
on—proposed changes to its “pre-construction notification”
timeline and acreage threshold limits. See id. at 30,783. It also
notified the public that it planned to “initiate a process to
regionalize” NWP 26 to “further improve its effectiveness.” Id.2
The Corps’ GCs “must be followed in order for any authorization
by an NWP to be valid.” Issuance of Nationwide Permits; Notice, 67
Fed. Reg. 2020, 2089 (Jan. 15, 2002).
7
Following public comment, the Corps decided to replace
NWP 26 with “activity-specific” general permits. See Final
Notice of Issuance, Reissuance, and Modification of
Nationwide Permits, 61 Fed. Reg. 65,874, 65,875 (Dec. 13,
1996). To allow ample time to develop replacement permits,
however, it reissued NWP 26 for a two-year period but with
more stringent conditions. See id. at 65,877, 65,891, 65,895.
In July 1998, the Corps published a proposed suite of activity-
specific general permits to replace NWP 26, see Proposal to
Issue and Modify Nationwide Permits, 63 Fed Reg. 36,040
(July 1, 1998), and extended, once more, the life of NWP 26
until December 30, 1999 “or the effective date of the new and
modified NWPs, whichever comes first,” Proposal to Issue and
Modify Nationwide Permits; Notice, 64 Fed. Reg. 39,252,
39,260 (July 21, 1999). That same month the Corps also
reissued the NWP regarding single-family housing (NWP 29),
but reduced the authorized maximum acreage impact from one-
half to one-quarter acre. See Final Notice of Modification of
Nationwide Permit 29 for Single Family Housing, 64 Fed. Reg.
47,175 (Aug. 30, 1999).
The Corps issued a second proposed set of activity-specific
NWPs to replace NWP 26 one year later. See 64 Fed. Reg. at
39,252. In March 2000, following another round of public
comment, the Corps promulgated activity-specific permits
consisting of five new NWPs and six modified NWPs, all
intended to replace NWP 26. See Final Notice of Issuance and
Modification of Nationwide Permits, 65 Fed. Reg. 12,818 (Mar.
9, 2000). With some of the activity-specific NWPs, the Corps
reduced the authorized maximum per-project acreage impact
from ten acres to one-half acre and required preconstruction
notification for impacts greater than one-tenth acre. See 65
Fed. Reg. at 12,818. Although December 30, 1999 preceded
the effective date of the replacement permits, the Corps
nevertheless decided to have NWP 26 expire the same day the
new permits took effect—June 7, 2000. Compare 65 Fed. Reg.
8
at 12,818 (extending NWP 26’s expiration date to June 5,
2000), with Final Notice of Issuance and Modification of
Nationwide Permits, 65 Fed. Reg. 14,255 (Mar. 16, 2000)
(making June 7, 2000 “the correct effective date for the new
and modified NWPs, as well as the correct expiration date for
NWP 26.”).
The Corps’ new permits prompted three law suits the district
court eventually consolidated into one. The NAHB’s suit was
filed on February 28, 2000, followed by the NSSGA’s suit on
March 16, 2000, and the NFIB’s suit on June 14, 2000.
Together, the three suits allege four claims against the Corps,
to wit: (1) it exceeded its statutory authority under the CWA by
imposing certain permit conditions; (2) it acted arbitrarily and
capriciously, in violation of the APA, 5 U.S.C. § 706(2)(A), by
failing to provide a rational basis for its permit acreage
thresholds; (3) it violated the Regulatory Flexibility Act (RFA),
5 U.S.C. §§ 601 et seq., by failing to evaluate the potential
impact of the permits on small businesses and other small
entities as well as alternatives to the permits; and (4) it violated
the National Environmental Policy Act (NEPA), 42 U.S.C.
§§ 4231 et seq., by failing to prepare a Programmatic
Environmental Impact Statement (PEIS) for the permits. The
National Resources Defense Council and the Sierra Club (the
intervenors) intervened in the district court proceedings in
support of the Corps.
The appellants moved for summary judgment on February
15, 2001. The Corps and intervenors responded with motions
for summary judgment of their own on June 14, 2001. While
the parties’ cross-motions for summary judgment lay pending,
on January 15, 2002, the Corps reissued all 43 NWPs, including
the eleven March 2000 NWPs it issued to replace NWP 26, to
make their expiration dates coincide, thereby “reduce[ing]
confusion regarding the expiration of the NWPs and the
9
administrative burden of reissuing NWPs at different times.”3
See 67 Fed. Reg. at 2020. In November 2003, the district court
granted summary judgment to the Corps, concluding that “the
Corps’ issuance of the new NWPs and general conditions,
while constituting the completion of a decisionmaking process,
does not constitute a ‘final’ agency action because no legally
binding action has taken place as to any given project until
either an individual permit application is denied or an
enforcement action is instituted.” Nat’l Ass’n of Home
Builders, 297 F. Supp. 2d at 78. Calling the “general permit
program . . . the first step of a larger permitting process that
enables the agency to streamline the overall process by limiting
the pool of applicants at the front-end of the process,” the
district court concluded that a party not eliminated from the
applicant pool must “simply apply for an individual permit”
and, consequently, “is not legally denied anything until [his]
individual permit is rejected.” Id. at 80.
The appellants now appeal the district court’s judgment,
which we review de novo. See, e.g., Mylan Labs., Inc. v.
Thompson, 389 F.3d 1272, 1278 (D.C. Cir. 2004).
II.
The jurisdictional infirmity the lower court found fatal to this
case was the want of a final agency action subject to judicial
review; that is only one of the issues, however, joined by the
parties and requiring our resolution. First, we consider whether
the Corps took “final agency action” subject to challenge under
the APA and, if so, whether the appellants’ challenge is
otherwise ripe for judicial review. Next, we address whether
3
Some of the NWPs expired on February 11, 2002, while others
expired on March 11, 2002. See 67 Fed. Reg. at 2020. As the Corps
reissued all of the NWPs, GCs and applicable definitions on March 18,
2002, they expire five years from that date. See id.; see also 33 U.S.C.
§ 1344(e)(2) (general permits limited to five-year lifespan).
10
the appellants may challenge the Corps’ compliance with the
RFA and, again, whether that challenge is ripe. Finally, we
review the appellants’ standing vel non to challenge the Corps’
compliance with NEPA.
A.
Where, as here, no more specific statute provides for judicial
review, the APA empowers a federal court to review a “final
agency action for which there is no other adequate remedy in a
court.” 5 U.S.C. § 704; see Home Builders Ass’n of Greater
Chicago, 335 F.3d at 614. “[T]wo conditions,” the United
States Supreme Court tells us, “must be satisfied for agency
action to be ‘final.’ ” Bennett v. Spear, 520 U.S. 154, 177
(1997). “First, the action must mark the consummation of the
agency’s decisionmaking process—it must not be of a merely
tentative or interlocutory nature. And second, the action must
be one by which rights or obligations have been determined, or
from which legal consequences will flow.” Id. at 177-78(internal quotation marks & citations omitted). In other words,
an agency action is final if, as the Supreme Court has said, it is
“ ‘definitive’ ” and has a “ ‘direct and immediate . . . effect on
the day-to-day business’ ” of the party challenging it, FTC v.
Standard Oil Co., 449 U.S. 232, 239 (1980) (quoting & citing
Abbott Labs. v. Gardner, 387 U.S. 136, 152 (1967), overruled
on other grounds by Califano v. Sanders, 430 U.S. 99, 105
(1977)); see also Reliable Automatic Sprinkler Co. v. Consumer
Prods. Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir. 2003), or
if, as our court has said, “it imposes an obligation, denies a
right or fixes some legal relationship.” Reliable Automatic
Sprinkler Co., 324 F.3d at 731 (citing Role Models Am., Inc. v.
White, 317 F.3d 327, 331-32 (D.C. Cir. 2003)). There can be
little doubt that under these standards the Corps’ issuance of the
11
NWPs challenged by the appellants constitutes final agency
action subject to judicial review.4
We need not tarry long on the finality test’s first prong;
plainly, the Corps’ issuance of the revised NWPs “mark[s] the
consummation of [its] decisionmaking process.” Bennett, 520
U.S. at 178. There is nothing “tentative” or “interlocutory”
about the issuance of permits allowing any party who meets
certain conditions to discharge fill and dredged material into
navigable waters. The intervenors argue, however, that, by
“setting terms and conditions for NWPs, the Corps did not
finally decide that a would-be discharger must comply with
those terms and conditions, nor did the Corps finally deny
authorization for discharges that exceed those terms and
conditions.” Intervenors’ Br. at 15. In their view, “[a] would-
be discharger remains free to pursue an individual or general
permit that is free of those restrictions.” Intervenors’ Br. at 15.
The district court similarly opined that a party whose activities
do not meet the conditions set by the NWPs has not been
“denied anything until [he] has exhausted all of [his] permit
options.” Nat’l Ass’n of Home Builders, 297 F. Supp. 2d at 80.
This is so, said the district court, because “the general permit
program, in effect, is the first step of a larger permitting process
that enables the agency to streamline the overall process by
limiting the pool of applicants at the front-end of the process.”
Id. If the issuance of the NWPs had merely altered the
procedural framework for obtaining the Corps’ permission to
discharge fill or dredged material into navigable waters, the
district court’s reasoning—now advanced by the
intervenors—might be sound. A requirement that a party
participate in additional administrative proceedings “is different
in kind and legal effect from the burdens attending what
4
Only the intervenors make a “finality” challenge. The Corps does
not challenge the finality of its issuance of the NWPs but instead
questions the ripeness of the claim. See opinion infra at 15.
12
heretofore has been considered to be final agency action.”
Standard Oil Co., 449 U.S. at 242. We have in fact noted that
“the doctrine of finality” would be no more than “an empty
box” if the mere denial of a procedural advantage constituted
final agency action subject to judicial review. ALCOA v.
United States, 790 F.2d 938, 942 (D.C. Cir. 1986).
But the NWPs do not simply work a change in the Corps’
permitting procedures, thereby disadvantaging some within the
class of would-be dischargers. The NWPs are not a definitive,
but otherwise idle, statement of agency policy—they carry
easily-identifiable legal consequences for the appellants and
other would-be dischargers. Admittedly, our precedent
announces no self-implementing, bright-line rule in this regard;
the finality inquiry is a “pragmatic” and “flexible” one. See,
e.g., Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 435-36 (D.C. Cir.
1986) (“[W]e are to apply the finality requirement in a
‘flexible’ and ‘pragmatic’ way.” (quoting & citing Abbott
Labs., 387 U.S. at 149-50)). Nevertheless, if an EPA directive
forbidding the use of third-party human test data to evaluate
pesticides’ effects constituted final agency action subject to
judicial review before the EPA invoked it against any pesticide
applicant, see CropLife Am. v. EPA, 329 F.3d 876, 881-83
(D.C. Cir. 2003), and a Federal Communications Commission
decision putting the burden on telephone companies to show
their entitlement to certain costs was suitable for judicial review
before any telephone company was denied costs, see Mountain
States Tel. & Tel. Co. v. FCC, 939 F.2d 1035, 1041 (D.C. Cir.
1991), the Corps’ issuance of NWPs likewise satisfies the
second prong of the finality test. To our mind, all three
constitute challenges to agency action “with legal consequences
that are binding on both petitioners and the agency.” CropLife
Am., 329 F.3d at 882; see also Mountain States Tel. & Tel. Co.,
939 F.2d at 1041.
13
The Corps’ NWPs create legal rights and impose binding
obligations insofar as they authorize certain discharges of
dredged and fill material into navigable waters without any
detailed, project-specific review by the Corps’ engineers. See,
e.g., 65 Fed. Reg. at 12,818 (“The terms and limits of the new
and modified NWPs are intended to authorize activities that
have minimal adverse effects on the aquatic environment,
individually and cumulatively.”). The “direct and immediate”
consequence of these authorizations for the appellants’ “day-to-
day business” is not hard to understand: While some builders
can discharge immediately, others cannot. If the appellants’
planned activities do not meet the applicable NWP’s conditions
and thresholds, they have two options. They can either put
their projects on hold and run the Corps’ individual-permit
gauntlet or modify the projects to meet the conditions. Either
way, through increased delay or project modification, the
NWPs directly affect the investment and project development
choices of those whose activities are subject to the CWA.
Indeed, the Corps itself appreciated that its permits would
influence project design. “Many project proponents,” it noted,
“will design their projects to comply with the 1/2 acre limit so
that they can qualify for an NWP and receive authorization
more quickly than they could through the standard permit
process.” 65 Fed. Reg. at 12,821. We would be hard pressed,
and in fact decline, to conclude that the NWPs do not “impose[]
an obligation, den[y] a right or fix[] some legal relationship.”
Reliable Automatic Sprinkler Co., 324 F.3d at 731.
In addition, the intervenors argue that environmental groups,
such as themselves, may challenge the Corps’ issuance of
NWPs as final agency action but the appellants may not. This
is so, they say, because an environmental group would
challenge the discharges authorized by the Corps—that is, it
would oppose an agency action—while the appellants challenge
the Corps’ failure to authorize certain discharges—that is, they
seek to compel agency action. The appellants seek to compel
14
agency action in this instance, the intervenors maintain,
because “the Corps did not finally decide that a would-be
discharger must comply with [the NWP] terms and conditions,
nor did the Corps finally deny authorization for discharges that
exceed those terms and conditions.” Intervenors’ Br. at 15.
Thus “would-be dischargers” such as the appellants “remain
free to pursue an individual or general permit.” Intervenors’
Br. at 15. It is true that a party seeking to challenge an
agency’s failure to act faces a different burden from that borne
by a challenger of agency action. An action to “compel agency
action unlawfully withheld or unreasonably delayed,” 5 U.S.C.
§ 706(1), is similar to a petition for mandamus and we apply a
six-factor standard to determine if “the agency has a duty to act
and [if] it has ‘unreasonably delayed’ in discharging that duty.”
In re Am. Rivers, 372 F.3d 413, 418 (D.C. Cir. 2004); see also
Telecomms. Research & Action Ctr. v. FCC, 750 F.2d 70, 76
(D.C. Cir. 1984). A challenge to agency action, by contrast, is
simply resolved according to the APA. But the case on which
the intervenors principally ground their argument—Norton v.
S. Utah Wilderness Alliance, 542 U.S. 55, 124 S. Ct. 2373(2004)—tends only to demonstrate why the oppose
action/compel action dichotomy does not make the Corps’
action non-final as to the appellants. In S. Utah Wilderness
Alliance, various environmental groups challenged the Bureau
of Land Management’s failure to protect public lands from
damage allegedly caused by off-road vehicles. See id. at 2377-
78. At the outset, the Supreme Court noted that “[f]ailures to
act are sometimes remediable under the APA, but not always,”
and ultimately held that the BLM’s failure was not reviewable
because “a claim under § 706(1) can proceed only where a
plaintiff asserts that an agency failed to take a discrete agency
action that it is required to take,” id. at 2379 (emphases in S.
Utah Wilderness Alliance), and the BLM did not fail to take
“required” action, id. at 2380, 2384. Here the appellants
challenge not the Corps’ failure to act—i.e., “the omission of an
15
action without formally rejecting a request,” id. at 2379—as
unreasonable under APA section 706(1); instead, they attack
the NWPs the Corps did issue as arbitrary and capricious and
beyond its permitting authority under APA section 706(2)(A).
Because the Corps’ NWPs mark the completion of the Corps’
decision-making process and affect the appellants’ day-to-day
operations, they constitute final agency action regardless of the
fact that the Corps’ action might carry different (or no)
consequences for a different challenger, such as an
environmental group. In any event, the notion that “would-be
dischargers” like the appellants nevertheless “remain free to
pursue an individual or general permit” suggests a
ripeness—not a finality—problem. See Office of
Communication of United Church of Christ v. FCC, 911 F.2d
813, 816-17 (D.C. Cir. 1990) (FCC’s refusal to adopt anti-
trafficking policy and presumption that broadcast license
transfer in less than three years is contrary to public interest are
matters ripe for review). We turn to that issue now.
B.
Both the Corps and the intervenors, recognizing that we may
affirm the district court on an alternative ground, see, e.g.,
Tymshare, Inc. v. Covell, 727 F.2d 1145, 1150 (D.C. Cir. 1984)
(“In this appeal, appellee has sought to justify the judgment
below upon a ground argued below but not relied upon by the
opinion of the district court. We may of course sustain on such
a ground.”) (citing Langnes v. Green, 282 U.S. 531, 538-39
(1931)), maintain that the appellants’ challenge is not ripe for
judicial review. Not so.
The doctrine of ripeness shares with its statutory counterpart,
viz., finality, “the dual concerns of prematurity of judicial
intervention in agency processes and the proper and principled
exercise of judicial power.” USAA Fed. Sav. Bank v .
McLaughlin, 849 F.2d 1505, 1508 (D.C. Cir. 1988). That is,
“its basic rationale,” the Supreme Court tells us, “is to prevent
16
the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over
administrative policies, and also to protect agencies from
judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the
challenging parties.” Abbott Labs., 387 U.S. at 148-49. The
ripeness doctrine has two components: “[It] requires us to
consider ‘the fitness of the issues for judicial review and the
hardship to the parties of withholding court consideration.’ ”
Village of Bensenville v. FAA, 376 F.3d 1114, 1119 (D.C. Cir.
2004) (quoting & citing Abbott Labs., 387 U.S. at 149).
Neither of these considerations—which we address in
turn—counsels in favor of postponement here.
The appellants’ challenge easily satisfies the first ripeness
prong—fitness. “[T]he fitness of an issue for judicial decision
depends on whether it is ‘purely legal, whether consideration of
the issue would benefit from a more concrete setting, and
whether the agency’s action is sufficiently final.’ ” Atl. States
Legal Found. v. EPA, 325 F.3d 281, 284 (D.C. Cir. 2003)
(quoting & citing Clean Air Implementation Project v. EPA,
150 F.3d 1200, 1204 (D.C. Cir. 1998)). The appellants’ APA
challenge is “purely legal,” Atl. States Legal Found., 325 F.3d
at 284: They allege that the Corps exceeded its statutory
authority in drafting the NWPs and that the Corps failed to
offer a reasoned basis for their conditions and restrictions. See
J.A. 8-9, 27, 44-51, 73-78; Appellants’ Br. at 14-16. We have
repeatedly held that “[c]laims that an agency’s action is
arbitrary and capricious or contrary to law present purely legal
issues.” See, e.g., Atl. States Legal Found., 325 F.3d at 284
(citing Fox Television Stations, Inc. v. FCC, 280 F.3d 1027,
1039 (D.C. Cir. 2002)). We have also often observed that a
purely legal claim in the context of a facial challenge, such as
the appellants’ claim, is “presumptively reviewable.” Nat’l
Mining Ass’n v. Fowler, 324 F.3d 752, 757 (D.C. Cir. 2003);
see also Mountain States Tel. & Tel. Co., 939 F.2d at 1041 (“In
17
light of the wholly legal and facial nature of the present
challenge, we cannot agree that our ability to review the
agency’s decision would be increased by delay.”).
While we have cautioned that sometimes “even purely legal
issues may be unfit for review,” Atl. States Legal Found., 325
F.3d at 284, we cannot accept the Corps’ argument that the
appellants’ purely legal challenge is unfit for review at this
time. It initially argues that the NWPs are not fit for review
because their applicability to a given activity remains within the
Corps’ discretion. We have already debunked this theory. In
Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022 (D.C.
Cir. 2000), we explained that “the fact that a law may be altered
in the future has nothing to do with whether it is subject to
judicial review at the moment.” Id. In addressing the ripeness
of an EPA Guidance, we recently explained that “if the
possibility . . . of future revision in fact could make agency
action non-final as a matter of law, then it would be hard to
imagine when any agency rule . . . would ever be final as a
matter of law.” Gen. Elec. Co. v. EPA, 290 F.3d 377, 380 (D.C.
Cir. 2002). That the Corps retains some measure of discretion
with respect to the NWPs does not make the appellants’ purely
legal challenge unripe.
The Corps and the intervenors further argue that the
appellants’ APA challenge remains “hopelessly abstract” until
“a member submits an actual individual permit application
proposing a specific project, has its application denied or
unlawfully conditioned, and completes the administrative
appeal process provided by Corps regulations.” Appellees’ Br.
at 24; see also Intervenors’ Br. at 20- 23. While it is
undoubtedly true that a “claim is not ripe for adjudication if it
rests upon contingent future events that may not occur as
anticipated, or indeed not occur at all,” we see no reason here
to “wait for a rule to be applied to see what its effect will be.”
Atl. States Legal Found., 325 F.3d at 284 (internal quotation
18
marks & alteration omitted). No further factual development
is necessary to evaluate the appellants’ challenge. All of the
facts necessary for judicial review were before the Corps when
it issued the permits and, on APA review, its action necessarily
stands or falls on that administrative record and its statutory
permitting authority under the CWA. See Fox Television
Stations, 280 F.3d at 1039 (issue fit for judicial review because
whether agency action is arbitrary and capricious or contrary to
law is “purely legal” question); cf. Elec. Power Supply Ass’n v.
FERC, 391 F.3d 1255, 1263 (D.C. Cir. 2004) (claim fit for
review “as it can be wholly resolved by an analysis of the
Sunshine Act, the Act’s legislative history, and its construction
by relevant case law”).
Relying on Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871(1990), the intervenors also argue that the appellants’ challenge
is not ripe because the CWA does not explicitly provide for
facial review of a NWP and because the appellants need not
adjust their conduct immediately. In Lujan, the Supreme Court
rejected the National Wildlife Federation’s attempt to challenge
the “continuing (and thus constantly changing) operations of
the [Bureau of Land Management] in reviewing withdrawal
revocation applications and the classifications of public lands
and developing land use plans.” Id. at 890. The Court
explained:
[R]espondent cannot seek w h o l e s a l e
improvement of this program by court decree
. . . . Under the terms of the APA, respondent
must direct its attack against some particular
“agency action” that causes it harm. Some
statutes permit broad regulations to serve as the
“agency action,” and thus to be the object of
judicial review directly, even before the concrete
effects normally required for APA review are
felt. Absent such a provision, however, a
19
regulation is not ordinarily considered the type
of agency action “ripe” for judicial review under
the APA until the scope of the controversy has
been reduced to more manageable proportions,
and its factual components fleshed out, by some
concrete action applying the regulation to the
claimant’s situation in a fashion that harms or
threatens to harm him. (The major exception, of
course, is a substantive rule which as a practical
matter requires the appellant to adjust his
conduct immediately. Such agency action is
“ripe” for review at once, whether or not
explicit statutory review apart from the APA is
provided.)
Id. at 891 (internal citations omitted; second emphasis added).
But the appellants, unlike the National Wildlife Federation in
Lujan, do not seek “wholesale” revision of the Corps’ permitting
framework. Rather, they challenge a specific agency
action—i.e., the Corps’ issuance of NWPs authorizing certain
discharges of dredged and fill material—that requires them to
adjust their conduct immediately, as discussed above. And
“[s]uch agency action,” the Court observed in Lujan, “is ‘ripe’
for review at once, whether or not explicit statutory review apart
from the APA is provided.” Id. Accordingly, “[i]n light of the
wholly legal and facial nature of the present challenge,” the
appellants’ APA claim is fit for judicial review now. Mountain
States Tel. & Tel. Co., 939 F.2d at 1041.
Turning to the hardship prong of the ripeness test, we
conclude that this requirement is also satisfied. Any
institutional interest in postponing review must be balanced
against the resultant hardship to the appellants in order to
determine whether immediate review is proper. See Consol.
Rail Corp. v. United States, 896 F.2d 574, 577 (D.C. Cir. 1990)
(“If we have doubts about the fitness of the issue for judicial
20
resolution, then we balance the institutional interests in
postponing review against the hardship to the parties that will
result from delay.”). On the one hand, no institutional interest
of the court supports postponement. See Mountain States Tel.
& Tel. Co., 939 F.2d at 1041. The administrative process has
run its course, resulting in general permits and conditions that
the appellants have challenged as arbitrary, capricious and
contrary to law under the APA. Their success depends on the
administrative record and the statutory parameters of the Corps’
permitting authority under the CWA. On the other hand, we
cannot agree with the Corps that the appellants face no hardship
as a result of postponed judicial review because, as it would
have us believe, legal consequences flow only from “a collective
permitting decision on a specific project” and consequently any
alleged harm is purely “hypothetical at this time.” Appellees’
Br. at 28. Nor do we agree with the intervenors’ similar
suggestion that any alleged harm is ameliorated by the
appellants’ ability to “pursue further agency remedies.”
Intervenors’ Br. at 23. To the contrary, the fact of the matter is
that in the absence of judicial review the appellants are left with
the choices we identified earlier: They must either modify their
projects to conform to the NWP thresholds and conditions (as
the Corps contemplates they will do) or refrain from building
until they can secure individual permits. The NWPs therefore
affect the appellants’ activities in a “direct and immediate” way.
See Elec. Power Supply Ass’n, 391 F.3d at 1263 (hardship
demonstrated where “implementation of the market monitor
exemption will have a direct and immediate impact on the
appellant that rises to the level of hardship.” (internal quotation
marks & alteration & citations omitted)); Better Gov’t Ass’n v.
Dep’t of State, 780 F.2d 86, 93 (D.C. Cir. 1986) (DOJ guidelines
caused hardship where “ ‘direct and immediate impact’ ” on
appellants’ “primary conduct” would be “felt immediately”
(citing & quoting Abbott Labs., 387 U.S. at 152; Toilet Goods
Ass’n, Inc. v. Gardner, 387 U.S. 158, 164 (1967))); cf. Texas v.
21
United States, 523 U.S. 296, 301 (1998) (no hardship where
party “not required to engage in, or to refrain from, any
conduct”); Pfizer Inc. v. Shalala, 182 F.3d 975, 979 (D.C. Cir.
1999). Accordingly, we hold that the appellants’ APA challenge
is ripe for judicial review.
C.
For “any rule subject” to the RFA, “a small entity that is
adversely affected or aggrieved by final agency action is entitled
to judicial review of agency compliance with the requirements
of sections 601, 604, 605(b), 608(b), and 610.” 5 U.S.C.
§ 611(a)(1). The Corps and the intervenors have an argument
apiece as to why the appellants cannot challenge the Corps’
compliance with the RFA under this provision. We reject both
and hold instead that the appellants’ RFA claim, like their APA
claim, is justiciable.
The NWPs, the Corps says, do not constitute a “rule” subject
to review under section 604 of the RFA for two reasons, both of
which hinge on the RFA’s definition of a rule as “any rule for
which the agency publishes a general notice of proposed
rulemaking pursuant to section 553(b) of [the APA], or any
other law.” 5 U.S.C. § 601(2). The Corps initially contends that
the NWPs fall within the APA’s definition of
“adjudication”—defined as an “agency process for the
formulation of an order,” id. § 551(7)—rather than “rule,” which
is defined as “the whole or a part of an agency statement of
general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy,” id. § 551(4).
Each NWP constitutes an “adjudication,” so the Corps’
argument goes, because it fits the APA’s definition of
adjudication as the formulation of an “order,” id. § 551(7), an
“order” includes a “licensing” disposition, id. § 551(6), and a
“license” includes a “permit,” id. § 551(8). We reject this
elaborate statutory construction for the more straightforward
one.
22
Each NWP easily fits within the APA’s definition of “rule.”
This is so because each NWP, which authorizes a permittee to
discharge dredged and fill material (and thereby does not allow
others without an individual permit), is a legal prescription of
general and prospective applicability which the Corps has issued
to implement the permitting authority the Congress entrusted to
it in section 404 of the CWA. See 33 U.S.C. § 1344(e). As
such, each NWP constitutes a rule: An “agency statement of
general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy.” 5 U.S.C.
§ 551(4); see generally Hercules, Inc. v. EPA, 598 F.2d 91, 117
(D.C. Cir. 1978). It is of course the Corps’ decision whether to
proceed by rule or adjudication, see SEC v. Chenery Corp., 332
U.S. 194, 203 (1947), but “rules is rules,” no matter their gloss.
See Granholm ex rel. Mich. Dep’t of Natural Res. v. FERC, 180
F.3d 278, 282 (D.C. Cir. 1999) (quoting & citing BART L E T T J.
WHIT T I N G , MODERN PROVERBS AND PROVERBIAL SAYINGS 541
(1989)).
Relying again on section 601(2) of the RFA, the Corps asserts
that the NWPs are not rules because it did not issue any notice
of proposed rulemaking pursuant to APA’s rulemaking
provision, 5 U.S.C. § 553, or publish them in the Code of
Federal Regulations. We have explained that an agency must
comply with the “procedures laid down” in the APA only when
it promulgates “legislative rules.” Appalachian Power Co., 208
F.3d at 1020. “Legislative rules,” we have said, “are those that
grant rights, impose obligations, or produce other significant
effects on private interests.” Batterton v. Marshall, 648 F.2d
694, 701-02 (D.C. Cir. 1980).
Despite our declarations that “[o]nly ‘legislative rules’ have
the force and effect of law” and “ ‘legislative rule’ is one the
[a]
agency has duly promulgated in compliance with the procedures
laid down in the statute or in the Administrative Procedure Act,”
Appalachian Power Co., 208 F.3d at 1020, we have not
23
hesitated to consider an agency pronouncement issued without
meeting required APA procedures a rule. See id. at 1020 n.11
(“We have also used ‘legislative rule’ to refer to rules the
agency should have, but did not, promulgate through notice and
comment rulemaking.” (citing Am. Mining Cong. v. Dep’t of
Labor, 995 F.2d 1106, 1110 (D.C. Cir. 1993)). While an
“agency’s characterization of an official statement as binding or
nonbinding has been given some weight, of far greater
importance is the language used in the statement itself.” Brock
v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 537-38 (D.C.
Cir. 1986) (citation omitted; emphasis added). As we said in
Appalachian Power Co.:
If an agency . . . treats the document in the
same manner as it treats a legislative rule, if it
bases enforcement actions on the policies or
interpretations formulated in the document, if
it leads private parties or State permitting
authorities to believe that it will declare
permits invalid unless they comply with the
terms of the document, then the agency’s
document is for all practical purposes
“binding.”
208 F.3d at 1021. The NWPs authorize certain discharges of
dredged and fill material and in so doing “grant rights, impose
obligations, [and] produce other significant effects on private
interests.” Batterton, 648 F.2d at 701-02; see also Appalachian
Power Co., 208 F.3d at 1021.
The intervenors, for their part, contend that “even if an NWP
could be considered a ‘rule’ within the meaning of the RFA,
[the appellants’] claims here do not challenge final agency
action, . . . and thus are not cognizable under the RFA’s judicial
review provision.” Intervenors’ Br. at 28 (citing 5 U.S.C.
§ 611(a)(3)(A)). We have already explained at length that, as
the Corps’ NWPs represent its final word, there can be little
24
doubt that the appellants do challenge a final agency action.
Accordingly, we hold that the appellants are entitled to press
their RFA challenge now as the Corps’ issuance of the NWPs
constitutes final agency action in the form of a legislative rule
and their challenge focuses on the Corps’ compliance with
sections 604 and 605 of the RFA. See J.A. 27-28.
Although both the Corps and the intervenors appear not to
question the ripeness of the appellants’ RFA claim, we briefly
explain why we think the RFA claim is ripe. The Supreme
Court has admonished that “ ‘procedural rights’ are special,”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992),
and that “a person with standing who is injured by a failure to
comply with the NEPA procedure may complain of that failure
at the time the failure takes place, for the claim can never get
riper.” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726,
737 (1998). The RFA, similar to NEPA in the environmental
sphere, requires an agency to evaluate the adverse economic
effects of and less harmful alternatives to its actions before
taking them. See Associated Fisheries of Maine, Inc. v. Daley,
127 F.3d 104, 114 (1st Cir. 1997) (“[A] useful parallel can be
drawn between RFA § 604 and the National Environmental
Policy Act, which furthers a similar objective . . . .”). Thus, as
with a NEPA challenge, the appellants may complain of the
Corps’ alleged failure to comply with the procedures set forth
in sections 604 and 605 of the RFA at the time the alleged
failure occurred, i.e., when the Corps issued the NWPs without
complying with those procedures. In sum, the appellants’ RFA
challenge “can never get riper.” Ohio Forestry Ass’n, 523 U.S.
at 737.
25
D.
Finally, we address the Corps’ assertion that the appellants
lack prudential standing to maintain their NEPA challenge.5
Three propositions bearing on federal court jurisdiction are by
now obvious: Want of jurisdiction robs a federal court of the
power to act, see, e.g., B & J Oil & Gas v. FERC, 353 F.3d 71,
74-75 (D.C. Cir. 2004), standing is a prerequisite to
jurisdiction, see, e.g., Crow Creek Sioux Tribe v. Brownlee, 331
F.3d 912, 915-16 (D.C. Cir. 2003), and the appellants bear the
burden of establishing their standing to sue, see, e.g., KERM,
Inc. v. FCC, 353 F.3d 57, 59 (D.C. Cir. 2004). A fourth is now
equally manifest in our Circuit. When a complainant’s standing
is not “self-evident,” he must “supplement the record to the
extent necessary to explain and substantiate [his] entitlement to
judicial review.” Sierra Club v. EPA, 292 F.3d 895, 900 (D.C.
Cir. 2002). That is, in Sierra Club, we put on notice all
complainants whose standing is unclear that they must prove
their standing by a “substantial probability,” id. at 899, and that
they should do so “by the submission of [their] arguments and
any affidavits or other evidence appurtenant thereto at the first
appropriate point in the review proceeding,” id. at 900. Our
Sierra Club rule is rooted in notions of fairness and judicial
economy not difficult to grasp: As the complainant is ordinarily
in possession of the facts on which he relies for standing,
making those facts manifest at the outset saves the parties and
the court from squandering time and energy, either by
“flail[ing] at the unknown in an attempt to prove the negative”
or by needlessly wrangling over an uncontested point. Id. at
901.
5
Although the district court did not make explicit the basis for
dismissing the NEPA claim, presumably it did so for the same reason
it dismissed the RFA claim, i.e., no final agency action. See Nat’l
Ass’n of Home Builders, 297 F. Supp. 2d at 78 n.5.
26
We think that it is fairly “self-evident” that the various
appellants as representatives of the regulated parties satisfy the
“irreducible constitutional minimum” of Article III standing,
Lujan, 504 U.S. at 560 (injury-in-fact, causation, redressability)
and the additional requirements for representational standing,
see Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333,
342-43 (1977) (one member with standing to sue in his own
right, association seeks to protect interests germane to its
purpose, no individual member need participate in lawsuit).
But as the Supreme Court has explained, constitutional standing
is not the end of the game because the “question of standing
‘involves both constitutional limitations on federal-court
jurisdictionand prudential limitations on its exercise.’
” Bennett, 520 U.S. at 162 (quoting & citing Warth v. Seldin,
422 U.S. 490, 498 (1975)). Prudential standing requires “that
a plaintiff’s grievance must arguably fall within the zone of
interests protected or regulated by the statutory provision.”
Bennett, 520 U.S. at 162; Nuclear Energy Inst. v. EPA, 373
F.3d 1251, 1266 (D.C. Cir. 2004). The zone-of-interest test,
however, is intended to “exclude only those whose interests are
so marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed that
Congress intended to permit the suit.” Clarke v. Sec. Indus.
Ass’n, 479 U.S. 388, 399 (1987). And it is by no means self-
evident to us that the appellants have prudential standing to
advance their NEPA challenge.
The Corps and the intervenors agree with our conclusion but
for reasons with which we do not agree. The Corps offers that
the appellants do not fall within NEPA’s zone-of-interest
because their claims are more likely to frustrate than effectuate
NEPA’s purposes, their asserted injury is “purely economic”
and their interest is merely “in avoiding ‘unnecessary delays,
regulatory uncertainty, and considerable cost to [their]
members.’ ” Appellees’ Br. at 35-36 (quoting NSSGA’s
complaint; alteration in Appellees’ Br.). The intervenors
27
similarly assert that the appellants do not constitute “an
appropriate representative of the environmental interests
underlying the statute.” Intervenors’ Br. at 28 n.14. The
premise underlying this reasoning is flawed—commercial
entities are not per se excluded from NEPA’s zone-of-interest.
“[A]n allegation of injury to monetary interest alone may
not,” of course, “bring a party within the zone of environmental
interests as contemplated by NEPA for purposes of standing.”
Realty Income Trust v. Eckerd, 564 F.2d 447, 452 (D.C. Cir.
1977). But we have often observed that “a party is not
precluded from asserting cognizable injury to environmental
values because his ‘real’ or ‘obvious’ interest may be viewed
as monetary” or “ ‘disqualified’ from asserting a legal claim
under NEPA because the ‘impetus’ behind the NEPA claim
may be economic.” Id.; see also Mountain States Legal Found.
v. Glickman, 92 F.3d 1228, 1236 (D.C. Cir. 1996). “[P]arties
motivated by purely commercial interests routinely satisfy the
zone of interests test,” we have said, as “[c]ongruence of
interests, rather than identity of interests, is the benchmark.”
Amgen, Inc. v. Smith, 357 F.3d 103, 109 (D.C. Cir. 2004). We
have even observed that “it surely does not square with the
broad Congressional purpose in NEPA of assuring that
environmental values would be adequately and pervasively
considered in federal decision-making for private parties who
may not be ‘pure of heart’ to be excluded from vindicating the
Act.” Realty Income Trust, 564 F.2d at 453.
Thus the appellants’ problem is not that their “economic
interests . . . blight [their] qualifying ones,” Mountain States
Legal Found., 92 F.3d at 1236; rather, they have failed to
demonstrate by a “substantial probability” that they have any
qualifying ones, Sierra Club, 292 F.3d at 899. Prudential
standing need only be shown by one appellant and, as only the
NPPC presses the NEPA challenge, it is no surprise that the
appellants rely solely on NPPC’s averments in their effort to
28
demonstrate prudential standing. See Mountain States Legal
Found., 92 F.3d at 1232 (Because “prudential standing can be
shown for at least one appellant,” court need “not consider the
standing of the other appellants to raise th[is] claim.” (citing
Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981);
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.
252, 264 n.9 (1977))). The NPPC’s membership is principally
composed of local government agencies that “are involved in
municipal, industrial and agricultural water supply, flood
control, irrigation, wastewater and stormwater management,
street and highway construction and maintenance, and
environmental quality amenities.” J.A. 125. To support its
contention that it falls within NEPA’s zone-of-interest to
challenge the NWPs, it relies on the averments of its Executive
Director, Robert Tonsing, in paragraph eight of his affidavit:
[D]ue to the inflexible one-half acre rule, the
incentive for NPPC members to narrowly tailor
their projects so as to fit under the “minimal
effects” acreage cap has been significantly
reduced. In many cases, under the three-acre
rule previously enforced by the Corps, members
would scale back their projects in order to satisfy
the “minimal effect” standard. But with the one-
half acre rule, it is virtually impossible for NPPC
members to do so because very few projects can
fit within the one-half acre cap. Thus, the
imagined environmental benefit to be achieved
by the Corps’ inflexible one-half acre rule is
unlikely to be realized.
J.A. 128. In their brief, the appellants characterize this
paragraph as supporting the proposition that “[t]he restrictions
in the [permits] and the delays in processing times mean that
NPPC members cannot provide [their] important public services
in a timely manner, increasing flood risk for the communities
29
that NPPC members serve, posing a significant threat to people
and property.” Appellants’ Br. at 13 (citing J.A. 128, ¶ 8).
NPPC’s theory of prudential standing, so far as we can tell, is
rooted in the contention that the Corps’ failure to issue more
lenient NWPs prevents NPPC from improving the environment.
We need not conclude that NPPC’s theory fails to “square with
the broad Congressional purpose in NEPA of assuring that
environmental values would be adequately and pervasively
considered in federal decision-making.” Realty Income Trust,
564 F.2d at 453. Even if we accept that it may be possible for
NPPC’s members to suffer a procedural injury sufficient to
bring them within NEPA’s zone-of-interest, nowhere does
NPPC point to any evidence “supporting the proposition that
there is a ‘substantial probability’ of ‘actual or imminent’ injury
to its members arising from” the Corps’ failure to conduct an
environmental analysis (i.e., a PEIS) of permits it did not issue
but should have. Sierra Club, 292 F.3d at 902 (quoting & citing
Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C. Cir. 2000)).
Tonsing’s declaration offers plenty of speculation: Paragraph
eight speaks of its members’ “reduced” incentives in attempting
to bring their projects within the parameters of the general
permits, of the “very few” projects that “can” fit the new
conditions, of the “virtual[] impossib[ility]” of meeting the
conditions and of the “imagined environmental benefits”
resulting from them. J.A. 128. But it offers nothing concrete
from which we can conclude there is a “substantial probability”
that NPPC’s members will suffer an injury sufficient under
Sierra Club. See 292 F.3d at 898. The declaration does not
mention a single specific project or activity that will not be
undertaken because of the more restrictive NWPs the Corps did
issue—as opposed to some other, presumably more lenient,
permits favored by NPPC’s membership. See J.A. 125-29.
Further casting doubt on the likelihood that, under its theory,
NPPC will suffer any NEPA procedural harm is that, to the
extent that NPPC members refuse to scale back their projects
30
and try to secure an individual permit instead, the environmental
impact of any such project would be evaluated as part of the
individual permitting process. See 33 C.F.R. § 325.2(a)(4) (“A
decision on a permit application will require either an
environmental assessment or an environmental impact statement
unless it is included within a categorical exclusion.”).
Accordingly, because “a NEPA claim may not be raised by a
party with no . . . apparent environmental interest,” we are
constrained to hold that the appellants cannot advance theirs.
Town of Stratford, Conn. v. FAA, 285 F.3d 84, 88 (D.C. Cir.
2002) (citation omitted). NEPA “cannot be used as a handy
stick by a party with no interest in protecting against an
environmental injury to attack a defendant.” Id.Because we conclude that the appellants have not
demonstrated a “substantial probability” that they fall within
NEPA’s zone of interest, we affirm the dismissal of this claim.
In view of this holding, we do not reach the NEPA ripeness
issue. See N.J. Television Corp. v. FCC, 393 F.3d 219, 221
(D.C. Cir. 2004) (“The priority for jurisdictional issues . . .
doesn’t control the sequence in which we resolve non-merits
issues that prevent us from reaching the merits.” (citing Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 584-85 (1999); Grand
Council of the Crees v. FERC, 198 F.3d 950, 954 (D.C. Cir.
2000))); see also Galvan v. Fed. Prison Indus., Inc., 199 F.3d
461, 463 (D.C. Cir. 1999) (“There is an array of nonmerits
questions that we may decide in any order.”).
III.
For the foregoing reasons, the district court’s grant of
summary judgment to the Corps on the appellants’ APA and
RFA claims is reversed and remanded for further proceedings
consistent with this opinion. The dismissal of the appellants’
NEPA claim is affirmed.
So ordered.
31