National Ass'n of Home Builders v. United States Environmental Protection Agency
956 F. Supp. 2d 198
D.D.C.2013Background
- NAHB and member associations challenged a 2008 EPA/Army Corps determination that two reaches of the Santa Cruz River are traditional navigable waters (TNWs) under the Clean Water Act (CWA).
- NAHB previously sued in 2009; district court dismissed as pre-enforcement review barred by the CWA and D.C. Circuit affirmed for lack of Article III standing (NAHB II).
- In 2013 NAHB filed a new APA suit asserting procedural and substantive flaws in the same TNW Determination and submitted new member declarations intended to cure prior standing defects.
- Declarations describe proximity of members’ properties to the Santa Cruz reaches, speculative increased risk of regulation, prior Corps JDs or permits (mostly predating the TNW Determination), and expenditures on consultants.
- The district court found the new declarations still failed to demonstrate the site-specific adverse agency action or enforcement use of the TNW Determination required for Article III standing, and further held the TNW Determination is not final agency action under Bennett v. Spear.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Representational standing | NAHB: TNW Determination substantially increases members’ risk of CWA regulation; new declarations show imminent, concrete injuries | Defs: No member suffered site-specific adverse action traceable to TNW; alleged harms are speculative or self-inflicted | Dismissed — no representational standing; declarations insufficient to show injury fairly traceable to TNW Determination |
| Organizational standing | NAHB: spent staff time and resources to assist members—concrete drain on resources | Defs: expenditures are not sufficiently concrete or independent of litigation; no perceptible impairment | Dismissed — organizational injury not shown |
| Procedural (APA) standing | NAHB: agencies failed to provide notice/comment on TNW Determination, causing concrete harms to members | Defs: without a concrete interest affected by the procedural omission, procedural standing fails | Dismissed — procedural right in vacuo insufficient; no concrete injury shown |
| Final agency action (reviewability) | NAHB: TNW designated under Corps regs as a final determination and meets Bennett; it fixes nearest TNW and influences site JDs | Defs: TNW is advisory; it does not itself change legal rights/obligations or impose enforceable duties | Dismissed — TNW Determination not final agency action under Bennett; no legal consequences flow from it |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (procedural requirements for injury in fact and imminence)
- Bennett v. Spear, 520 U.S. 154 (two-prong test for final agency action)
- NAHB v. EPA, 667 F.3d 6 (D.C. Cir. 2011) (prior appellate decision requiring site-specific JD or enforcement use for standing)
- Sackett v. EPA, 132 S. Ct. 1367 (Supreme Court 2012) (administrative compliance orders are reviewable final actions)
- Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs, 543 F.3d 586 (9th Cir. 2008) (jurisdictional determinations are not final agency action because they do not create new legal obligations)
- Holistic Candlers & Consumers Ass’n v. FDA, 664 F.3d 940 (D.C. Cir. 2012) (agency statements that merely warn regulated parties are not final)
- Nat’l Ass’n of Home Builders v. U.S. EPA, 731 F. Supp. 2d 50 (D.D.C. 2010) (district opinion in earlier litigation)
- Nat’l Ass’n of Home Builders v. Norton, 415 F.3d 8 (D.C. Cir. 2005) (practical threats insufficient to render agency action final)