National Ass'n of Home Builders v. Environmental Protection Agency
399 U.S. App. D.C. 124
| D.C. Cir. | 2011Background
- NAHB and its local affiliates challenge the Corps and EPA TNW determination for two reaches of the Santa Cruz River under the Clean Water Act.
- Corps memorandum (May 23, 2008) designated the reaches as navigable-in-fact and subject to CWA §404 jurisdiction; EPA affirmed on December 3, 2008.
- NAHB filed suit in March 2009 challenging both the procedural (APA notice) and substantive aspects of the TNW determination.
- District court dismissed for lack of subject-matter jurisdiction, holding pre-enforcement review of a TNW determination is unavailable under the CWA.
- Court of Appeals reviews whether NAHB has Article III standing (organizational, representational, procedural) to challenge the TNW determination.
- Court affirms dismissal on alternate ground: NAHB lacks standing to sue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does NAHB have organizational standing to challenge the TNW determination? | NAHB asserts injury to its operations from broadened CWA reach. | No concrete, particularized injury to NAHB’s activities shown. | No organizational standing; injury not concrete or particularized. |
| Does NAHB have representational standing to sue on behalf of its members? | Members face potential future regulatory effects from TNW. | No member-specific injury linked to the TNW determination; nexus lacking. | No representational standing; injuries not fairly traceable to the TNW determination. |
| Does NAHB have procedural standing to bring APA notice-and-comment claims? | Deprivation of procedural rights constitutes standing. | No imminent, concrete injury from lack of notice; procedural injury alone insufficient. | No procedural standing; injury in fact required. |
| Is NAHB’s challenge barred as a pre-enforcement action under the CWA, given standing concerns? | Pre-enforcement review of TNW determinations should be permissible. | CWA precludes pre-enforcement challenges to TNW determinations. | Alternative ground—standing—suffices; pre-enforcement challenge not reached. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Supreme Court 1992) (constitutional standing requires injury, causation, redressability)
- Summers v. Earth Island Inst., 555 U.S. 488 (Supreme Court 2009) (procedural injury without concrete interest is not standing)
- Havens Realty Corp. v. Coleman, 455 U.S. 363 (Supreme Court 1982) (organizational standing requires concrete injury to organization's activities)
- Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002) (general allegations insufficient for standing; require concrete injury)
- City of Los Angeles v. Lyons, 461 U.S. 95 (Supreme Court 1983) (standing requires threat of future concrete injury for injunctive relief)
- Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C. Cir. 1990) (organization cannot manufacture injury via litigation expenditure)
- Am. Chem. Council v. Dep't of Transp., 468 F.3d 810 (D.C. Cir. 2006) (require individual member affidavits to prove injury for standing)
- Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (Supreme Court 1999) (alternative grounds for jurisdiction may be used if standing exists)
- Rapanos v. United States, 547 U.S. 715 (Supreme Court 2006) (navigable waters and nexus concepts under CWA)