CENTER FOR BIOLOGICAL DIVERSITY; GULF RESTORATION NETWORK; LOUISIANA BUCKET BRIGADE, Petitioners,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; ANDREW WHEELER, in his official capacity as Administrator of the United States Environmental Protection Agency; ANNE IDSAL, Region 6 Administrator, Respondents.
Petition for Review of an Order of the Environmental
JONES, HO, and OLDHAM, Circuit Judges.
S. OLDHAM, CIRCUIT JUDGE.
claim a recent EPA permit will lead to increased pollution in
the Gulf of Mexico. But Petitioners lack standing, so we lack
jurisdiction. The petition for review is dismissed.
Clean Water Act ("CWA") prohibits the
"discharge [of] any pollutant from any point source
without [a National Pollutant Discharge Elimination System]
permit." Tex. Oil & Gas Ass'n v. EPA,
161 F.3d 923, 928 (5th Cir. 1998) (citing 33 U.S.C. §
1311(a)). EPA is authorized to issue such permits, including
general permits for "a whole category or subcategory of
point sources." Id. at 929; see also
33 U.S.C. § 1342(a). Here, EPA issued a general permit
for various oil and gas operations "located in and
discharging to Federal waters . . . in the Central to Western
portions of the Gulf of Mexico." The General Permit
"establishes effluent limitations, prohibitions,
reporting requirements, and other conditions on
environmental organizations-the Center for Biological
Diversity, the Gulf Restoration Network, and the Louisiana
Bucket Brigade-petitioned this Court to review EPA's
grant of the General Permit. They claim EPA violated federal
law in three ways. First, they argue EPA violated the
National Environmental Policy Act ("NEPA") by
failing to prepare an adequate Environmental Impact Statement
("EIS"). Second, they argue EPA violated the CWA by
issuing the General Permit without adequate consideration of
certain factors established by regulation. Third, they argue
EPA violated the CWA by omitting certain monitoring
requirements from the Permit. For relief, Petitioners ask
this Court to "remand the General Permit to Region 6 of
EPA for further proceedings."
attempted to prove their standing by submitting declarations
from both members and organizational leaders.
Petitioners' opening brief, however, addressed standing
only in a footnote. Although EPA initially agreed Petitioners
had standing, Intervenor American Petroleum Institute argued
otherwise. Petitioners then advanced their standing arguments
at greater length in their reply brief. By letter, we asked
counsel to be prepared to discuss standing at oral argument.
At argument, EPA conceded the Intervenor "raised some
very serious questions about" Petitioners' standing.
Oral Arg. 23:40- 23:48. The questions are more than serious;
they require dismissal of the petition.
plaintiff who files a complaint, a petitioner who seeks
review of agency action "invok[es] federal
jurisdiction" and therefore "bears the burden of
establishing" standing. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992); see also
Massachusetts v. EPA, 549 U.S. 497, 517-18 (2007).
are associations, so their standing turns on the
associational standing doctrine. "Associational standing
is a three-part test: (1) the association's members would
independently meet the Article III standing requirements; (2)
the interests the association seeks to protect are germane to
the purpose of the organization; and (3) neither the claim
asserted nor the relief requested requires participation of
individual members." Tex. Democratic Party v.
Benkiser, 459 F.3d 582, 587 (5th Cir. 2006) (citing
Hunt v. Wash. State Apple Advert. Comm'n, 432
U.S. 333, 343 (1977)).
of Petitioners' members to "independently meet the
Article III standing requirements," ibid., that
member must have "(1) suffered an injury in fact, (2)
that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a
favorable judicial decision," Gill v. Whitford,
138 S.Ct. 1916, 1929 (2018) (quotation
omitted). We start with the injury-in-fact
requirement and hold Petitioners have not shown that one of
their members could independently satisfy it.
first and foremost of standing's three elements" is
injury in fact. Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016) (quotation omitted). "To establish
injury in fact, a plaintiff must show that he or she suffered
'an invasion of a legally protected interest' that is
'concrete and particularized' and 'actual or
imminent, not conjectural or hypothetical.'"
Id. at 1548 (quoting Lujan, 504 U.S. at
environmental cases, courts must carefully distinguish
between injury to the petitioner and injury to the
environment. Article III standing requires injury to the
petitioner. Injury to the environment is insufficient.
See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 181 (2000) ("The
relevant showing for purposes of Article III standing,
however, is not injury to the environment but injury to the
question, then, is what does Article III require of the
petitioner who claims injury based on harm to the
environment? Sometimes an individual's aesthetic,
recreational, and scientific interests provide that link.
See Friends of the Earth, 528 U.S. at 183
(explaining that lessening of "aesthetic and
recreational values" is an injury in fact);
Lujan, 504 U.S. at 562-63 ("Of course, the
desire to use or observe an animal species, even for purely
esthetic purposes, is undeniably a cognizable interest for
purpose of standing."). But such environmental interests
cannot support an injury in fact unless they have been
actually harmed or imminently will be. See Spokeo,
136 S.Ct. at 1548; Clapper v. Amnesty Int'l USA,
568 U.S. 398, 409 (2013); Lujan, 504 U.S. at 564 n.2
("Although imminence is concededly a somewhat elastic
concept, it cannot be stretched beyond its purpose, which is
to ensure that the alleged injury is not too speculative for
Article III purposes-that the injury is certainly
impending." (quotation omitted)). By ensuring a
future injury is not "too speculative," the
imminence requirement "reduce[s] the possibility of
deciding a case in which no injury would have occurred at
all." Lujan, 504 U.S. at 564 n.2.
case, the injuries in fact asserted by Petitioners'
members depend on at least four conditions:
1. Discharge: Operators in the Gulf discharge pollutants, as
authorized by the permit.
2. Geographic Nexus: The discharges reach areas of the Gulf
in which Petitioners' members have interests.
3. Temporal Nexus: The discharges are present at a time
relevant to Petitioners' members' interests.
4. Adverse Effect: The discharges negatively affect
Petitioners' members' interests.
See Clapper, 568 U.S. at 410 (enumerating the
"chain of possibilities" necessary for plaintiffs
to suffer a future injury in fact).
respect to the first condition, the challenged permit
specifically authorizes limited discharges to occur. Even so,
the four declarations from Petitioners' members are
inadequate. The first three plainly fail to satisfy the