National Ass'n of Home Builders v. United States Fish & Wildlife Service
786 F.3d 1050
D.C. Cir.2015Background
- Under the Endangered Species Act (ESA), the U.S. Fish and Wildlife Service (Service) must decide within 12 months whether a petitioned species is: not warranted, warranted, or warranted-but-precluded (allowing delay for higher-priority species).
- By 2010 the Service had a backlog of 251 warranted-but-precluded candidate species; environmental suits produced settlements requiring the Service to issue final warranted or not-warranted findings on those 251 species according to a court-approved schedule.
- Four trade associations (home builders/developers) challenged the consent decrees implementing those settlements, arguing procedural and concrete injuries from accelerated listing timelines and withdrawal of warranted-but-precluded classifications.
- The district court dismissed for lack of Article III standing; the D.C. Circuit reviewed that dismissal de novo.
- The court framed the dispute as whether appellants suffered a cognizable procedural or concrete injury traceable to and redressable by invalidating the consent decrees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs have a procedural-injury standing based on loss of opportunity to comment at the warranted-but-precluded stage | Plaintiffs say the consent decrees eliminate chances to comment and withdraw protective procedural status, harming members | Service argues there is no statutory right to comment at the warranted-but-precluded stage and the procedures are not designed to protect plaintiffs' interests | No procedural-injury standing — circuit precedent rejects a comment right at the precluded stage and requires procedure to protect plaintiffs' concrete interests |
| Whether acceleration of listing decisions alone causes Article III injury | Plaintiffs assert accelerated final listings create imminent regulatory harm to members' property/use | Service points out consent decrees only set timelines and do not dictate substantive listings; possibility of regulation existed before | No standing — timing alone (earlier decision date) is insufficient; plaintiffs face only possibility of regulation, not imminent injury |
| Whether voluntary or state/local-driven conservation expenditures are fairly traceable to the consent decrees | Plaintiffs claim resources spent to avoid listings were wasted when precluded status was withdrawn | Service contends expenditures were voluntary or compelled by third parties, not the Service, so not traceable | No standing — expenditures were voluntary or traceable to third-party/state requirements, not the Service, and thus not fairly traceable |
| Whether plaintiffs can challenge consent decrees for alleged failure to use best available science | Plaintiffs argue settlements’ scheduling forces prioritization that subordinates science | Service notes the consent decrees do not control substantive findings; plaintiffs did not challenge any final listing on the merits | No standing for this facial challenge to decrees; if plaintiffs wanted to contest scientific bases they must challenge particular listings on the merits |
Key Cases Cited
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) (Congress intended endangered species to have top priority under the ESA)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements; procedural rights confer standing only when procedures protect plaintiff's concrete interest)
- In re Endangered Species Act Section 4 Deadline Litig., 704 F.3d 972 (D.C. Cir.) (2013) (no procedural right to comment at warranted-but-precluded stage; explains ESA listing-delay context)
- Defenders of Wildlife v. Perciasepe, 714 F.3d 1317 (D.C. Cir.) (2013) (consent decrees that set timelines but do not mandate substantive rules do not by themselves create standing)
- Nat'l Ass'n of Home Builders v. EPA, 667 F.3d 6 (D.C. Cir. 2011) (possibility of adverse regulation is insufficient for Article III standing)
- LaRoque v. Holder, 650 F.3d 777 (D.C. Cir. 2011) (standard of de novo review for standing determinations)
- Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138 (2013) (speculative future harms do not support standing)