937 F.3d 533
5th Cir.2019Background
- EPA issued a general NPDES permit authorizing limited discharges from oil and gas operations in the Central and Western Gulf of Mexico; three environmental groups sought review and asked for remand.
- Petitioners advanced NEPA (inadequate EIS) and CWA (failure to consider regulatory factors and omission of monitoring) claims.
- Petitioners relied on declarations from four individual members to establish associational standing.
- EPA and Intervenor challenged standing; the panel required briefing and argument on the issue.
- The court held Petitioners lacked Article III standing (injury-in-fact and traceability), and dismissed the petition without reaching the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing — injury in fact (geographic nexus) | Members use the Gulf and will be harmed by permitted discharges across the Western/Central Gulf | The Gulf is vast; petitioners gave no site-specific evidence tying discharges to members’ planned visits or interests | No standing — declarations failed to show geographic proximity for three members; fourth (Henderson) insufficient on other grounds |
| Standing — injury in fact (temporal & adverse effect) | Members plan future visits and will observe or be affected by pollution | Petitioners provided no evidence discharges will coincide with members’ visits or that observed pollution would be an aesthetic injury where the member’s purpose is to locate spills | No standing — temporal nexus and adverse-effect requirements unmet for Henderson |
| Standing — traceability (procedural-rights/NEPA) | Even procedural injuries suffice if lacking EIS could have changed agency decision and caused redressable injury | Must show causal chain: inadequate procedure → different substantive decision → injury fairly traceable to permit-based discharges | Petitioners showed the first link arguable but failed the second: cannot trace members’ injuries specifically to discharges under this permit |
| Procedural forfeiture (informational injury) | Petitioners also claimed informational injuries from alleged EIS defects | EPA and Intervenor lacked opportunity to respond; claim raised only in reply | Forfeited — informational-injury theory was not adequately briefed in opening brief |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing elements and traceability)
- Summers v. Earth Island Institute, 555 U.S. 488 (geographic-nexus requirement for future visits)
- Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (environmental injury vs. plaintiff injury; aesthetic injury)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (concreteness and imminence in injury-in-fact)
- Clapper v. Amnesty International USA, 568 U.S. 398 (speculation and traceability; substantial-risk standard)
- Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., 73 F.3d 546 (5th Cir.) (standing in CWA context; need for specific geographic nexus)
- Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir.) (traceability and discharge zone distinction)
- Tex. Indep. Producers & Royalty Owners Ass’n v. EPA, 410 F.3d 964 (7th Cir.) (cannot infer harm to plaintiff’s portion of large waterbody absent specifics)
- Friends of the Earth, Inc. v. Crown Central Petroleum Corp., 95 F.3d 358 (5th Cir.) (limits on inferring downstream injury; fact-specific causation inquiry)