Maiden Creek Associates, L.P. v. United States Department of Transportation

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 15-3224
_____________
MAIDEN CREEK ASSOCIATES, L.P.;
BOARD OF SUPERVISORS OF MAIDENCREEK
TOWNSHIP,
Appellants
v.
UNITED STATES DEPARTMENT OF
TRANSPORTATION;
SECRETARY UNITED STATES DEPARTMENT OF
TRANSPORTATION;
ADMINISTRATOR FEDERAL HIGHWAY
ADMINISTRATION;
PENNSYLVANIA DEPARTMENT OF
TRANSPORTATION
_____________
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 5-15-cv-00242)
District Judge: Honorable Lawrence F. Stengel
____________
Argued: April 5, 2016
____________
Before: FISHER, RENDELL and BARRY, Circuit Judges
(Opinion Filed: May 19, 2016)
____________
Marc B. Kaplan, Esq. (Argued)
Daniel R. Utain, Esq.
Kaplin, Stewart, Meloff, Reiter & Stein
910 Harvest Drive
P.O. Box 3037
Blue Bell, PA 19422
Counsel for Maiden Creek Associates, L.P.
Christopher M. Garrell, Esq. (Argued)
Eugene Orlando, Jr., Esq.
2901 St. Lawrence Avenue
Reading, PA 19606
Counsel for Supervisors of Maiden Creek
James A. Maysonett, Esq. (Argued)
Environment & Natural Resources Division
RFK-2633
P.O. Box 7415
Washington, DC 20044
-AND-
Susan D. Bricklin, Esq.
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Secretary U.S. Department of Transportation and
Administrator Federal Highway Administration
Kenda Jo M. Gardner, Esq. (Argued)
Commonwealth of Pennsylvania
Office of Chief Counsel
P.O. Box 8212
Harrisburg, PA 17105
Counsel for PA Department of Transportation
2
_______________
OPINION OF THE COURT
_______________
BARRY, Circuit Judge
This action for declaratory and injunctive relief is
brought pursuant to the National Environmental Policy Act,
42 U.S.C. § 4321. Maiden Creek Associates and the Board of
Supervisors of Maidencreek Township appeal the order of the
District Court dismissing their complaint and denying their
motion to amend. We will affirm the judgment of the District
Court.
I. BACKGROUND
Maiden Creek Associates (“MCA”), a limited
partnership, owns 85 acres of land in Maidencreek Township
that it hopes to develop into a 600,000 square-foot shopping
center. The Board of Supervisors of Maidencreek Township
(the “Board”) has taken the public position that the shopping
center is “vital” to the economic well-being of the Township
residents. (Compl., at ¶43.) MCA and the Board claim,
however, that the Pennsylvania Department of
Transportation’s (“PADOT” or “PennDOT”) plan to improve
an adjacent highway, State Route 222, will impede what they
hope to accomplish.
PADOT’s Project would involve the following: (1)
widening the highway from one traffic lane in each direction
to a five-lane cross section with two lanes in each direction
and a center turn lane; (2) improving the existing traffic
signal at Route 222 and Route 72; (3) replacing an existing
traffic signal at the intersection of Route 222 and Tamarack
Boulevard/Genesis Drive with a dual lane roundabout; (4)
constructing a new, dual lane roundabout at the unsignaled
intersection of Route 222 and Schaeffer Road; and (5)
constructing two storm water detention basins on MCA’s
3
property. The Project would be undertaken by PADOT on
behalf of the United States Department of Transportation and
the Federal Highway Administration, and fully funded by the
federal government.
MCA opposed the Project from the outset, but its basis
for doing so has changed over time. Initially, it maintained
that the Project should not go forward because the traffic
circles would not be able to handle all of the traffic expected
to be generated by its shopping center. MCA expressed its
concerns to PADOT directly in a string of correspondence,
and was heard publicly on July 17, 2014 before the Reading
Area Transportation Study (“RATS”). RATS characterized
MCA’s concern as regarding “[d]esign issues with [the]
proposed roundabout” and “its ability to accommodate a
proposed shopping center.” (Compl., at ¶52.) In response,
RATS offered that “[u]tilizing current PennDOT roundabout
analysis software, PennDOT is projecting acceptable future
levels of service for all legs of [Route] 222 and Genesis
Drive, and [Route] 222 and Schaeffer Road intersections and
feel[s] that their design will not preclude the ability to
develop.” (Id.)
The Project was approved on August 6, 2014, at which
time PADOT also made a critical finding regarding the
degree of environmental review mandated by the National
Environmental Policy Act (“NEPA”). NEPA requires that
one of three levels of review be conducted for such projects,
depending on, among other things, the extent of the
environmental impact: (1) actions that significantly affect the
environment require an Environmental Impact Statement; (2)
actions for which the significance of the environmental
impact is unclear require an Environmental Assessment; and
(3) actions that do not individually or cumulatively have a
significant environmental effect are entitled to a Categorical
Exclusion from preparing an Environmental Impact
Statement or Environmental Assessment. 23 C.F.R. §
771.115. Finding that the Project satisfied the criteria for the
Categorical Exclusion set out in 23 C.F.R. § 771.117(d),
PADOT necessarily concluded that neither an Environmental
4
Assessment nor an Environmental Impact Statement were
required under the Act.
MCA and the Board commenced this action in
response, naming as defendants the United States Department
of Transportation; its Secretary, Anthony Foxx; the Federal
Highway Administration; its Administrator, Gregory G.
Nadeau (“Federal Appellees”); and PADOT and its Secretary,
Barry J. Schoch (“State Appellees”). MCA and the Board
alleged in their joint complaint that the Categorical Exclusion
approval was based on inaccurate information supplied by
PADOT that had not been adequately studied or investigated,
and that the findings and conclusions contained therein were
arbitrary and capricious. They argued that, in submitting and
approving the Categorical Exclusion, “PADOT (i) failed to
consider important aspects of the environmental issues
associated with the Project; (ii) ignored material information
supplied by MCA; and (iii) disseminated completely
inaccurate information that is so implausible that it could not
be ascribed to a difference in view or the product of agency
expertise.” (MCA Br. at 5.) These procedural “defects”
notwithstanding, the defendants’ response was that the crux
of the issue, as initially pled, concerned only the economic
impact of the planned highway improvement; that, “[a]side
from some general allegations about increased traffic and the
safety of motorists, all of the injuries alleged by MCA and the
Board … were purely economic—neither alleged that the
project would harm the environment.” (Federal Appellees Br.
at 5-6.)
Defendants moved to dismiss on precisely the same
basis. In their motion filed May 11, 2015, they argued that
NEPA is meant to protect the environment and that MCA and
the Board could not sustain claims thereunder because their
“sole[ly]” economic pursuits fell outside of NEPA’s “zone of
interests.” (A266-270). MCA and the Board opposed the
motion, and also moved for leave to amend their complaint.
On August 20, 2015, the District Court granted the motion to
dismiss. The Court concluded that MCA and the Board’s
interests were economic and inconsistent with NEPA’s goal
5
of protecting the environment, and that, therefore, they lacked
prudential standing to pursue their claims under the statute.
The Court also denied their motion for leave to amend as
futile, finding that the new allegations inappropriately rested
on injuries to third parties and were otherwise too speculative
or generalized to support a claim.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C. §
1331, as the claims in this case were brought under the
Administrative Procedure Act, 5 U.S.C. § 702. We have
jurisdiction under 28 U.S.C. § 1291.
First, we exercise plenary review over the dismissal of
a complaint for failure to state a claim, 1 “accept[ing] all well-
pleaded allegations in the complaint as true and draw[ing] all
reasonable inferences in favor of the non-moving parties.”
Bohus v. Restaurant.com, Inc., 784 F.3d 918, 921 n.1 (3d Cir.
2015). To survive dismissal, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). This standard is satisfied only if
1
Although appellees moved to dismiss under Rule
12(b)(1) for lack of jurisdiction and the District Court
appeared to dismiss the complaint under that rule, we must
analyze its dismissal under Rule 12(b)(6) because the issue is
whether appellants alleged harm that falls within NEPA’s
zone of interests, a question of statutory standing. See Leyse
v. Bank of Am. Ass’n, 804 F.3d 316, 320 (3d Cir. 2015)
(“Unlike Article III standing, statutory standing is not
jurisdictional. See Lexmark Int’l, Inc. v. Static Control
Components, 134 S. Ct. 1377, 1388 & n.4 (2014). As a result,
‘[a] dismissal for lack of statutory standing is effectively the
same as a dismissal for failure to state a claim,’ and a motion
to dismiss on this ground is brought pursuant to Rule
12(b)(6), rather than Rule 12(b)(1).” (citation omitted)).
6
the plaintiff “pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id.Second, although we review a denial of leave to amend
for abuse of discretion, we review the District Court’s
determination that the amendment would be futile de novo.
U.S. ex rel. Schumann v. Astrazeneca Pharm. L.P., 769 F.3d
837, 849 (3d Cir. 2014). To evaluate futility, we apply the
“same standard of legal sufficiency” as would be applied to a
motion to dismiss under Rule 12(b)(6). Shane v. Fauver, 213
F.3d 113, 115 (3d Cir. 2000). As with the motion to dismiss,
we consider only the allegations contained in the complaint,
exhibits attached to the complaint, and matters of public
record. Pension Benefit Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
III. ANALYSIS
Because NEPA does not include a citizen’s suit
provision, MCA and the Board commenced this action by
way of the Administrative Procedure Act (“APA”), Section
702. 5 U.S.C. § 702. Parties bringing suit under that
provision must establish their Article III standing 2 and
demonstrate that their grievance falls within the “zone of
interests” to be protected or regulated by the statute in
question. See Assoc. of Data Processing Serv. Org., Inc. v.
Camp, 397 U.S. 150, 153 (1970). The latter requirement
forms the center of our inquiry. Appellees submit that the
purpose of NEPA is to ensure that environmental concerns
are integrated into their decision making process, and argue
that the “injuries” alleged in both the complaint and the
proposed amended complaint fall outside the “zone of
2
The District Court found that both MCA and the Board
established Article III standing in light of MCA’s allegation
that the Project will require condemnation of part of its
property and the Board’s allegation that the Project will
prevent it from carrying out its economic plans for the
Township. (A15-16.)
7
interests” advanced by the Act.
NEPA is a procedural statute that was enacted to
“declare a national policy which will encourage productive
and enjoyable harmony between man and his environment; []
promote efforts which will prevent or eliminate damage to the
environment and biosphere and stimulate the health and
welfare of man; [and] enrich the understanding of the
ecological systems and natural resources important to the
nation.” 42 U.S.C. § 4321. It seeks to protect and promote
environmental quality, 42 U.S.C. § 4331(a)-(c), and, to
“ensure this protection, [NEPA] establishes ‘action forcing’
procedures the agencies must follow.” Comm. to Save the
Rio Hondo v. Lucero, 102 F.3d 445, 448 (10th Cir. 1996).
NEPA does not “mandate the particular decisions an agency
must reach”; rather, it sets forth the “necessary process the
agency must follow while reaching its decisions.” Id.The Act does not, however, require an agency to assess
every impact of a proposed action—only its impact or effect
on the physical environment. Metro. Edison Co. v. People
Against Nuclear Energy, 460 U.S. 766, 772 (1983). While
the statute makes reference to human health and welfare, the
Supreme Court has explained that those considerations do not
form the statute’s primary focus. Rather, those “goals are
ends that Congress has chosen to pursue by means of
protecting the physical environment.” Id. at 773 (emphasis in
original). Courts have thus found that organizations with
genuine environmental interests are proper parties to
represent the public’s environmental interests and challenge
agency action. Ashley Creek Phosphate Co. v. Norton, 420
F.3d 934, 941 (9th Cir. 2005). Conversely, courts have found
that parties motivated solely by their own economic self-
interest should not be entrusted with the responsibility of
asserting the public’s environmental interest. Id.
1. The Initial Complaint
Appellees argue to us, as they successfully argued to
the District Court, that the initial complaint alleged only non-
8
environmental harm—that the Project would not properly
accommodate the traffic attendant to MCA’s proposed
shopping center, and that the Township’s tax base will be
negatively impacted thereby.
MCA alleged that (1) “PADOT’s construction of the
Schaeffer Roundabout would require vehicles to access the
Proposed Shopping Center directly from the Schaeffer
Roundabout, which would result in unsafe traffic conditions”
(Compl., at ¶36); and (2) the “proposed Schaeffer
Roundabout cannot be designed in a manner that would safely
accommodate the amount of traffic that will be generated by
the Proposed Shopping Center,” (¶37), and “would also
require the condemnation of a portion of the Property in order
for PADOT to physically construct the proposed Schaeffer
Roundabout.” (¶38.) The Board alleged similar injuries: the
“construction of the Genesis Roundabout and the Schaeffer
Roundabout” will “severely impede commercial development
of the Route 222 Corridor in the Township,” “impair the
ongoing viability of existing businesses within the Route 222
Corridor by restricting and impeding ingress and egress to
those businesses,” and “compromise the safety of motorists,
bicycles, horse and buggies and pedestrians traveling within
the Route 222 Corridor.” (Compl., at ¶¶45-47.) The Board
also emphasized that development is “vital” to the economic
well-being of the Township, and implied that any obstacle
thereto would negatively affect jobs, tax revenues, and local
businesses. (Id. at ¶43.)
To show that these injuries fell within NEPA’s zone of
interests, MCA and the Board relied primarily on this Court’s
decision in Society Hill Towers Owners’ Assoc. v. Rendell,
210 F.3d 168 (3d Cir. 2000). Plaintiffs in that action were
neighborhood residents who claimed that the City of
Philadelphia had not properly analyzed the environmental
consequences of its plan to build a hotel and parking garage
in the Penn’s Landing area of the City and failed to hold the
meaningful public hearings that should be held when there is
a substantial environmental controversy. Id. at 173-74 (citing
40 C.F.R. § 1506.6(c)(1)). The residents claimed that the
9
project would “increase traffic, pollution, and noise in the
Society Hill area where they live” and also argued that the
project would “have a detrimental effect on the ambiance of
their historic neighborhood, [] impair their use and enjoyment
of Penn’s Landing, and [] decrease their property values.” Id.
at 176. Noting that if the residents did not have standing to
protect the historic and environmental quality of their
neighborhood, it was hard to imagine who would have
standing to oppose the action, we held that these grievances
were consistent with NEPA’s zone of interests.
Here, however, MCA and the Board presented a very
different set of purported injuries, and we find the analogy to
Society Hill unpersuasive. In the initial complaint, MCA and
the Board submitted only that the Project will compromise
commercial development and result in unsafe traffic
conditions along the highway. Arguing that they have the
right to sue on that basis, MCA and the Board emphasize
their belief that NEPA was intended to “ensure” that “man
and nature can exist in productive harmony while fulfilling
the social, economic, and other requirements of present and
future generations of Americans.” (Board Br. at 21-22.) As
the Supreme Court already has made clear, however, NEPA’s
reference to human health and welfare does not displace the
statute’s primary focus. Indeed, the Court has explicitly
cautioned against such an expansive approach: “If we were
to seize the word ‘environmental’ out of its context and give
it the broadest possible definition, the words ‘adverse
environmental effects’ might embrace virtually any
consequence of a governmental action that someone thought
‘adverse.’ But we think the context of the statute shows that
Congress was talking about the physical environment -- the
world around us, so to speak.” Metro. Edison Co., 460 U.S.
at 772.
No doubt, changes in traffic patterns and increased
congestion will have an impact on safety, commercial
viability, and growth of the area. But to suggest that such
injuries fall within NEPA’s zone of interests would be to
eviscerate the distinction between social and environmental
10
harm—one expressly preserved by the Supreme Court in
Metro. Edison. Co. and in the regulatory definition of
NEPA’s “human environment.” 40 C.F.R. § 1508.14(“[E]conomic or social effects are not intended by themselves
to require preparation of an environmental impact
statement.”). NEPA may capture those interests in certain
circumstances, but only where they are sufficiently linked to
imminent or threatened environmental damage. MCA and the
Board failed to allege any “threatened harms to the ‘physical’
environment – ‘the air, land and water which support life on
earth,’” and their complaint was rightly dismissed on that
basis. Hurd Urban Dev., L.C. v. FHA, 33 F.Supp.2d 570, 576
(S.D. Tex. 1998) (quoting Metro. Edison, 460 U.S. at 770).
2. The Proposed Amended Complaint
MCA and the Board made more detailed allegations in
the proposed amended complaint, some of which came closer
to NEPA’s zone of interests.3 MCA alleged, much like
before, that the Project will create “unsafe traffic patterns” for
MCA’s patrons, (Proposed Amended Complaint (“PAC”), at
¶40(A)-(C)), and be “aesthetically unpleasant and
3
The State Appellees argue that the request for leave to
amend should also be denied as unduly delayed because the
information underlying MCA and the Board’s new allegations
was available to them prior to their filing of the initial
complaint. While it is difficult to believe that MCA and the
Board were not aware of these purported environmental
injuries until after commencement of this environmental
litigation, the argument nonetheless lacks merit. MCA
credibly responds in its reply brief that after the initial
complaint was filed, it came to possess a number of
documents grounding its amended complaint, including
“engineered highway plans which showed PADOT’s
intentions to divert stormwater runoff from the highway
improvements to two (2) stormwater detention basis to be
located on MCA’s Property to [filtrate] that runoff into the
groundwater beneath the MCA Property.” (MCA Reply Br.
at 5.) We will address that allegation, infra.
11
intimidating to potential patrons,” (¶40(E)), but also added
allegations that it will increase “exhaust fumes from
vehicles,” (¶40(D)), create “additional stormwater runoff that
would contain petroleum and other potential groundwater
contaminants,” (¶40(F)), may cause “flooding on the MCA
Property,” (¶40(G)), and damage “Peters Creek, which is
identified as an [Exceptional Value Watershed].” (¶40(H).)
The Board alleged that the Project would increase “pollution
within the Route 222 Corridor,” (PAC, at ¶41(A)), expose
“Township residents” to “unsafe traffic patterns,” (¶41(B)),
be “asesthetically unpleasant,” (¶41(C)), cause “groundwater
contamination” and “flooding on Route 222 and private
properties adjacent” thereto, (¶41(E)-(F)), and “increase the
risk” of “potentially devastating cumulative environmental
effects.” (¶41(G).) For the following reasons, we agree with
the District Court that these new allegations were nonetheless
insufficient.
a. Third Party Injuries
Unlike the residents in Society Hill, MCA and the
Board allege certain environmental harm not to plaintiffs in
the case (who they do not argue will be directly affected
thereby), but to future employees and patrons of MCA, or to
the Township residents of Maidencreek. From MCA, the
proposed amended complaint’s paragraph 40 subsection (e)
complained that the Project would be “aesthetically
unpleasant and intimidating to potential patrons, and would
dissuade potential patrons from coming to the Proposed
Shopping Center.” (PAC, at ¶40(E).) And from the Board,
subsection (b) claimed that the Project “will result in unsafe
traffic patterns and conflicting movements by motor vehicles,
bicyclists and pedestrians throughout the Route 222 Corridor
within the Township, thereby unreasonably exposing
Township residents and visitors to risk of injury.” (PAC,
¶41(B).) These allegations will be disregarded for the same
reason—they purport to assert the injuries of non-parties
without satisfying the criteria for associational standing.
Certainly, an association may sue on behalf of its
12
members “when [such] members would otherwise have
standing to sue in their own right, the interests at stake are
germane to the organization's purpose, and neither the claim
asserted nor the relief requested requires the participation of
individual members in the lawsuit.” See Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 181 (2000); see
also United Food & Commercial Workers Union Local 751 v.
Brown Group, Inc., 517 U.S. 544, 555 (1996) (the association
must “include at least one member with standing to present,
in his or her own right, the claim (or the type of claim)
pleaded by the association”).
But MCA is a “Pennsylvania limited partnership which
owns approximately 85 acres of commercially-zoned land …
in Maidencreek Township … upon which it proposes to
develop a commercial shopping center.” (PAC, at ¶11.) And
while it may be permitted to assert claims on behalf of its
partners (if satisfactorily pled), MCA may not represent the
interests of “potential patrons” of its future shopping center.
The Fourth Circuit dealt with a similar issue in Taubman
Realty Group Ltd. P’ship v. Mineta, 320 F.3d 475 (4th Cir.
2003). In that case, the plaintiff, Taubman Realty Group
(“TRG”), owned and operated a shopping center and asserted
claims under NEPA to prevent the construction of another
shopping center nearby. TRG alleged that construction
would create undue traffic congestion, but the Fourth Circuit
adopted the district court’s reasoning and found that TRG
failed to demonstrate its ability to represent such interests
through associational standing: “TRG claims to be asserting
the safety and health interests of, and seeking to prevent
perceived harm to, persons who are employed, and who shop,
at the shopping center that TRG operates. Because the
interests at stake in this case are not at all ‘germane’ to TRG's
organizational purposes, however, it does not properly have
standing to sue in an associational or representative capacity.”
Taubman, 198 F. Supp. 2d 744, 758 (E.D. Va. 2002), aff’d
320 F.3d at 481; see also Ranchers Cattlemen Action Legal
Fund United Stockgrowers of Am. v. USDA, 415 F.3d 1078,
1104 (9th Cir. 2005) (rejecting cattlemen’s associations
attempt to assert the environmental interest of members
13
because they were not “germane to the organization’s
purpose”).
The same applies to the Board’s allegations, to the
extent they are predicated on interests of the Township and its
residents. Simply stated, the Board is not the Township. The
Board of Supervisors of Maidencreek Township is “the
governing body of Maidencreek Township [], a second class
township of the Commonwealth of Pennsylvania,” (PAC, at
¶12), and the Township of Maidencreek, a non-party here, has
authority to “sue and be sued” on its own behalf. (53 PA.
STAT. AND CONS. STAT. ANN. § 66501.) The Board did not
allege that its members—i.e., the Supervisors themselves—
have suffered environmental injuries, nor has it explained
how it has the authority to represent the Township or its
citizens in this action. Indeed, even if the Board were
permitted to sue on behalf of Township residents as parens
patriae, its claims likely would be barred because
departments of the federal government are named as
defendants. See e.g., City of Olmsted Falls v. FAA, 292 F.3d
261, 268 (D.C. Cir. 2002) (“Although ‘the state, under some
circumstances, may sue [as parens patriae] for the protection
of its citizens, it is no part of its duty or power to enforce their
rights in respect of their relations with the federal
government. In that field it is the United States, and not the
state, which represents them as parens patriae.’”) (quoting
Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923)).
b. Speculative Harm
The proposed amended complaint also invoked
injuries that are contingent on remote possibilities. In
subsections (f) through (h) of paragraph 40, MCA claimed
that the Project (specifically, the Genesis and Schaeffer
Roundabouts) will result in “additional stormwater runoff”
that will necessitate the construction of “Stormwater Basins”
on the MCA property, which, MCA contends, will result in
“groundwater contamination on and off” MCA’s property if
“inadequate[ly] designed.” (PAC, at ¶40(F)-(H).) The Board
made similar allegations in subsections (e) and (f) of
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paragraph 41.
The District Court found these “hypothetical”
allegations to be insufficiently specific and “highly
speculative.” (A26.) We agree. While stormwater
contamination would appear to fall within NEPA’s zone of
interests, it is contingent upon the failure of the stormwater
basin—a system, not yet even designed much less
constructed, intended to prevent that very environmental
consequence. Accepting them as true and with all inferences
drawn in Appellants’ favor, these allegations fail to show that
the Project will create an increased risk of actual, threatened
or imminent environmental harm, and on that basis will be
disregarded.
c. Remaining Allegations
The remaining allegations were likewise deficient.
MCA claimed in subsection (d) that the Project “will result in
noise and exhaust fumes from vehicle queues directly in
front” of its property, (PAC, at ¶40(D)), and the Board
submitted in subsections (a) and (g) that the Project will
increase “noise and pollution” and “the risk of potentially
devastating cumulative environmental effects.” (¶41(A),
(G).) Appellees argue, however, that these additional
allegations were intended only to mask the actual, economic
injury motivating this litigation. The Federal Appellees
maintain that MCA and the Board have “long opposed” this
Project on the economic ground that “its traffic circles will
[not] be able to handle the amount of traffic that they hope to
attract to their planned shopping center,” not on account of
any potential environmental impact. (Federal Appellees Br.
at 22.)
The vast majority of NEPA authority makes clear that
economic injury alone does not satisfy the statute’s zone of
interests test. See, e.g., Ashley Creek Phosphate Co, 420 F.3d
at 940 (collecting cases and noting that the “zone of interests”
protected by NEPA is “environmental” and that courts have
thus “consistently held that purely economic interests do not
15
fall within NEPA’s zone of interests”); Nat’l Ass’n of Home
Builders v. United States Army Corps of Engineers, 417 F.3d
1272, 1287 (D.C. Cir. 2005) (finding that an “‘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 the purposes of standing’”)
(quoting Realty Income Trust v. Eckerd, 564 F.2d 477, 452
(D.C. Cir. 1977)); Central S.D. Coop. Grazing Dist. v. Sec. of
the United States Dep’t of Agric., 266 F.3d 889, 895 (8th Cir.
2001) (holding that “[e]conomic interests alone” are “clearly
not within the zone of interests to be protected by” NEPA).
And while litigants need not be “pure of heart” in their
motivation to sue, NEPA “cannot be used as a handy stick by
a party with no interest in protecting against an environmental
injury to attack a defendant.” Town of Stratford v. F.A.A.,
285 F.3d 84, 88 (D.C. Cir. 2002). To be among those that
Congress intended to bring suit under NEPA, a plaintiff’s
actual interests must substantially align with the protection of
our physical environment.
Recognizing the force of this law, MCA and the Board
belatedly argued that the Project may result in “fumes,”
“pollution,” and “noise,” while making no effort to hide their
obvious and strong interest in the success of MCA’s proposed
shopping center. In connection with a resolution passed in
opposition to the Project, the Board advised PADOT that the
planned construction will “severely impede commercial
development of the Route 222 Corridor in the Township” and
“deprive the Township of the needed revenues, employment
and provision of goods associated with commercial
development.” (PAC, at ¶72(A).) Similarly, MCA alleged
that it “repeatedly advised PADOT” that the Project “will
prevent MCA from constructing the Proposed Shopping
Center, which development is an integral part of the
Township’s planned growth and creation of employment and
tax revenues.” (PAC, at ¶72(B).) Together, they maintained
that, “[i]f the Proposed Shopping Center and other anticipated
commercial development along the Route 222 Corridor is
unable to occur because of the Project, the Project will have a
significant detrimental impact upon economic activity and the
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creation of jobs within the Township and the region.” (PAC,
at ¶73(B).)
In reviewing the District Court’s decision to deny the
motion to amend the complaint, we accept as true all
allegations contained therein. But in doing so, we also
acknowledge the real interest that MCA and the Board have
in developing the region purportedly affected by this highway
construction. While MCA and the Board now allege that the
Project may result in certain “environmental effects,” the
proposed amended complaint makes clear that such harms are
only fortuitously aligned with their stated interests. This
places them outside the statute’s zone of interests for good
reason. To accept NEPA litigants whose interests
accidentally overlap with the statute’s intended purpose
would not only create a class of plaintiffs far larger than
Congress originally intended, it also would serve to distort the
effect of NEPA itself. See Hazardous Waste Treatment
Council v. Thomas, 885 F.2d 918, 925 (D.C. Cir. 1989)
(“[J]udicial intervention may defeat statutory goals if it
proceeds at the behest of interests that coincide only
accidentally with those goals.”) (internal quotation marks
omitted)). The motion to amend the complaint was properly
denied as futile.
IV. CONCLUSION
We will affirm the order of the District Court granting
the motion to dismiss the complaint and denying the motion
to amend.
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