Florida Audubon Society v. Lloyd M. Bentsen, Secretary of the Treasury

reasons, appellant’s preceding For

conviction

Affirmed. SOCIETY, AUDUBON

FLORIDA al., Appellants,

et BENTSEN,

Lloyd M. Appellees. Treasury, al., et 94-5178.

No. Appeals, Court of States

United Circuit. of Columbia

District 27, 1995.

Argued March 2, 1995. June

Decided

875 Judge Circuit the court

Opinion for ROGERS. Judge

Dissenting opinion Circuit SENTELLE.

ROGERS, Judge: Circuit question whether presents appeal This organizations environmental appellants, three Jensen,1 standing under the and Diane Policy Act Environmental National (“NEPA”) failure of Treasury and the Commis- Secretary of the (to- Service Internal Revenue sioner an envi- Secretary”) “the gether promul- prior impact statement ronmental an credit for to allow a tax gating a final rule ethyl terti- additive alternative fuel known (“ETBE”). The district ary butyl ether appellants lacked court found summary judgment to the Sec- granted and Ms. Jen- retary. we conclude Because not need resolve standing, and we sen claims, we reverse. remaining I. Revenue Code the Internal

Section 40 for each credit of cents provides tax of a used in alcohol gallon of gasoline. and of alcohol “qualified mixture” (1988 (b)(1) 40(a), V Supp. & § 26 U.S.C. DC, Moorman, ar- Washington, James W. 1994).2 qualify did ETBE Prior on him appellants. for With gued the cause because, while derived tax credit for the and Jona- F. Williams were David the briefs (an produced alcohol from рart ethanol Stone, Washington, DC. corn, than R. sugar fermenting sugar contained con- beets, final mixture sugarcane), the Justice, Shilton, Dept, of U.S. C. David credit, Without no ethanol. tains appel- DC, for argued the cause Washington, commercially with compete ETBE could Lois J. him the brief were lees. With additive, tertiary methyl ether. fuel a similar Ferio, Gen., M. Schiffer, Albert Atty. Asst. senators, 1988, sixty-one States United In Kohn, Justice, and Debra Dept, of sug- corn and including representatives I.R.S., Washington, DC. Secretary states, urged the producing ar the tax qualifies for SENTELLE, announce WALD, Before: credit. Judges. ROGERS, Circuit by providing fuels” products in motor for use um Florida Audubon appellants are the 1. other (oth- Federation, on “alcohol tax credit income a refundable Society, Florida Wildlife petroleum, natural derived from er than alcohol Earth. Friends coal) S.Rep. No. fuels.” in motor gas used or Crude Oil part § Congress 40 as enacted

2. (1979), U.S.Code Cong., 1st Sess. 96th No. 96- Pub.L. Tax Act of Profit Windfall 1980, pp. Cong. & Admin.News encourage 232(b)(1), the de- order "to § petrole- than energy sources velopment of In proposed Credit; issued a Mixture, Definition of Fed.Reg. rale that re-interpret (1990) (codified would “qualified mix- 1). at 26 C.F.R. Part ture” to include blends derived from but not accompanying rale, notice the final containing Credit; alcohol. See Alcohol Fuels Secretary rejected suggestion Mixture, 48,639 Definition of Fed.Reg. National Policy Environmental Act (Nov. 1989). Explaining that the rale (“NEPA”), § required U.S.C. him to “policy considerations,” was based on 54 Fed prepare an impact statement 48,639, Reg. at the Secretary’s notice indicat- (“EIS”) for this rale modification because proposed ed that the ETBE tax credit: (“TD”) Treasury provided Directive 75-02 “categorical exception” increase the substitution of ETBE for from the EIS re- quirement other octane regulations enhancers that cause more IRS “interpreting, pollution. Second, it implementing, clarifying” makes ETBE a more or Internal Reve- increasing viable means of oxygen the nue provisions. con- Code gasoline, tent of help which should smooth Appellants сomplaint a filed for a declara- the oxygenated to transition fuels those tory judgment against the Secretary pursu- areas that are not in compliance with car- § ant to 28 U.S.C. 2201 and Federal Rule of bon Third, monoxide standards. it encour- Civil Procedure permanent and a injunc- ages the substitution ETBE-gasoline tion barring Secretary the enforcing from the blends (gasohol). ETBE does not absorb final ground rule on the that the Secretary water, it which means is easier to trans- NEPA, had violated § U.S.C. port gasohol, than and it can be blended promulgating the ETBE tax credit without gasoline into the with pollution less than preparing an Asserting EIS. po- “a serious ‘splash blending’ gasohol. Fourth, it tential for harmful environmental conse- may increase the demand domestic etha- quences,” appellants alleged that neither the nol because ETBE is to use than easier Secretary any “nor agency has under- ethanol, expand which would this alterna- taken analysis ability of existing tive Fifth, market America’s for farmers. soil conservation and othеr environmental fuel, just ETBE is a not an octane enhanc- protection programs mitigate to adverse en- er, and displace it will gasoline some con- consequences vironmental resulting from the sumption. Substituting a renewable and ETBE tax Appellants credit.” requested an domestically-produced imported for fuel order directing Secretary to rescind the petroleum will enhance energy national se- final rule and to reissue final rale until curity and will improve the trade balance. an adequate prepared. EIS has been They 48,640 added). Id. at (emphasis Comments argued that categorical exemption under submitted Secretary anticipated that TD 75-02 was failed, invalid because it con- proposed enlarge credit would trary to regulations, NEPA 40 C.F.R. market for sugar-containing crops such as 1508.4, § provide to for “extraordinary cir- corn sugarcane. The National Corn cumstances” in normally which a excluded Growers Association stated the new rule action significant would “help open the door to a whole new requiring effect preparation of an EIS. market for the nation’s corn farmer.” Letter Kemper, President, Alan National Corn regard With to their standing, appellants Ass’n, Growers to the Commissioner of the alleged that tax credit would stimulate (Dec. Internal 1989). Revenue Service increased corn cultivation in Minnesota and In Michigan, promulgated a final and increased sugarcane farming rale. rale, proposed Identical Appellants it Florida. inter- asserted in their com- preted plaint Section 40’s “qualified to a they regularly reference refug- used wildlife mixture” products to include es derived from and other regions locations these alcohol “even if the chemically alcohol is would adversely impacted as a re- in producing transformed product so that sult of anticipated this farming. increase in the alcohol longer is no present separate They further claimed that Secretary’s in the product.” chemical final Alcohol Fuels failure deprived an EIS them of ” 560, 112 Id. 504 U.S. the court.’ before the areas protect they needed information Ky. v. Eastern (quoting Simon at 2136 S.Ct. question. 26, 41-42, 96 Rights Org., 426 U.S. Welfare cross-motions parties’ response (1976)). 1917, 1926, 48 L.Ed.2d S.Ct. standing, the dis judgment on summary for Secretary’s motion. granted court trict NEPA, ap standing under To have court concluded The district Secretary’s al pellants must show nexus and had satisfied has “ad with NEPA leged noncompliance necessary to estab requirements causation them, “aggrieved” versely or affected” Appellants filed standing under NEPA. lish interests the zone of they are within novo. See de our review is appeal, and this Angeles, protected NEPA. Inc., 477 U.S. Liberty Lobby, v. Anderson Auto Re Committee 912 F.2d 2505, 2510, L.Ed.2d 202 242, 248, 106 Solomon, (C.A.R.) 603 F.2d sponsibility Stokes, 45 F.3d (1986); Ins. Co. Harbor denied, (D.C.Cir.1979), cert. (D.C.Cir.1995); Washington Post 499, 501 (1980); 63 L.Ed.2d and Human Dep’t Health v. U.S. Co. (“APA”), Act Procedure Administrative (D.C.Cir.1989). Servs., NEPA, litigant § 702. Under U.S.C. pre agency’s failure “aggrieved” II. show, litigant can only if the EIS pare an ... a risk first, “ereat[es] the failure controversy that re or the case To meet impacts will be Constitution, that serious III of the of Article quirement Coleman, overlоoked,” City Davis v. see demon must federal courts litigant of (9th Cir.1975); 661, also (1) see 671 521 F.2d an litigant has suffered that strate (“NEPA (2) Angeles, 912 F.2d at 492 City Los fairly injury is that or actual threatened of injury denial (3) cognizable gives rise to a is challenged action and to the traceable is long as there process, so explanatory of its by favorable decision. likely to be redressed harm that environmental a reasonable risk Ameri Collegev. Valley Forge Christian See second, litigant occur.”); may and and Church Separation cans United of for geographical nexus 752, has “a sufficient Inc., 464, 472, State, 102 S.Ct. U.S. 454 liti challenged project [the (1982); site of the City Los 700 70 L.Ed.2d of whatever may expected to suffer gant] be Safety Highway Angeles v. National Traffic project consequences the (D.C.Cir.1990). environmental Admin., 483 F.2d 912 671; Davis, see F.2d City 521 have.” Wildlife, U.S. 504 Lujan v. of of Defenders 912 F.2d at Angeles, 2130, 2136, City 119 also Los 560-61, 112 S.Ct. of is requirement of interests The zone (1992), 492.3 Supreme Court ex L.Ed.2d 351 are litigant’s interests long as the so injury-in-faet re satisfied satisfy plained that to or inconsistent marginally related not “so “an litigant must demonstrate quirement, a in the implicit statute purposes with interest which legally-protected of invasion that Con (b) reasonably be assumed it cannot (a) and particularized, and concrete v. suit.” Clarke permit the gress intended to hypo imminent, conjectural or not actual or 388, 399, Ass’n, 479 U.S. at Securities Indus. Wildlife, 504 U.S. thetical.” of Defenders (1987); see 750, 757, 757 93 L.Ed.2d (citations 107 S.Ct. and internal at 2136 112 S.Ct. States, Securities, v. Inc. United omitted). Moreover, also FAIC the Court quotations (D.C.Cir.1985). litigant A F.2d 768 357 connection satisfy the “causal noted of zone injury within the establishes com who injury conduct and the between the necessari by NEPA “will protected interests ‘fairly ... injury has to plained of—the injury re constitutional ly satisfied the challenged action of the trace[able] to 912 Angeles, City Los quirement as well.” defendant, [of] result ... th[e] omitted). (citation F.2d at 483 party not of some third independent action a concrete deprivation has affected enough that this lish interest, injury alone is Informational geograph- by establishing a which met standing Foundation under NEPA. confer for Lyng, F.2d 84-85 943 nexus. Economic Trends ical Rather, (D.C.Cir.1991). appellants estab- must Appellants forthrightly state that if acreage of farm land growing devoted to corn one of them has sufficient 281,000 shown evidence to would increase between acres to summary judgment acres, withstand standing, on depending million on which of sev- the court need not projections consider the eral regarding increased demand appellants. proves for Energy See Watt v. ethanol Action be correct. Insofar as Found., 151, 161, Educ. regarding estimates increased pro- ethanol 205, 212-13, (1981); correct, prove duction Legal Secretary L.Ed.2d does not dispute Assistance Asylum Professor Vietnamese Berck’s conclusions. Seekers State, Dep’t (D.C.Cir.1995); result, question As a ap whether City Angeles, Los 912 F.2d at 485. We pellants have established the prong first therefore confíne our discussion to Ms. Jen- injury-in-fact NEPA’s requirement depends presented sen who sufficient evidence to solely on the likelihood that the ETBE tax demonstrate that she has to seek credit will stimulate demand for ethanol. declarаtory injunctive requiring relief While future demand for ethanol cannot be Secretary an conduct EIS before im- certainty, estimated with appellants need not plementing the credit. proffer proof conclusive that an increase occur; rather, demand will need A. establish a reasonable risk that such an in crease will occur. Angeles, See Aggrievement (1) under NEPA: Risk of 912 F.2d at Salmon River Concerned overlooking serious environmental harm. Robertson, Citizens v. complex maintains that a (9th Cir.1994) (upholding standing to chal improbable sequence of events must ensue in lenge adequacy proposed EIS use of order for the ETBE tax credit to affect the noting herbicides and “[speculation environment as anticipate: name- application the of might herbicides not occur ly, that the ETBE prompt tax credit must irrelevant”); ‍​‌​‌‌​​‌​​‌​‌​‌‌‌‌​​​​‌‌​​‌​​‌‌​​‌‌‌​​​​‌‌‌‌‌​‌‌‍Valley see Forge also Chris production, ETBE which must increase de- College, tian 454 U.S. at 102 at ethanol, mand for which must increase de- 758; Idaho Mumma, League Conservation corn, mand for which must increase corn (9th Cir.1992); F.2d Oregon farming, which must cause environmental Kunzman, Environmental Council v. harm. however, With exception, one (9th Cir.1987); F.2d 13 C. Wright, Secretary the dispute failed to appel- A. Miller & E. Cooper, Federal proffered Practice lants’ establishing evidence the (2d § 3531.4 ed. 1984 & and Procedure likelihood of each of these causal links and Supp.1994). the connections them. between The Secre- tary dispute does not record evidence that Although Secretary maintains in his increased corn farming adversely would af- brief that the ETBE credit cannot reason- fect the by, environment among things, ably other expected be demand, to increase ethanol increasing erosion pollution and water position as this inis direct conflict with one of plant farmers crops on now idle or underused purposes his stated proposing the tax expand land and pesticides their use of and Credit; credit. See Alcohol Fuels Definition fertilizers. It is undisputed also Mixture, that an in- 48,639 (to of 54 Fed.Reg. be codified creased dеmand for 1) ethanol would (Nov. increase 24, 1989). 26 C.F.R. Part It is domestic production. corn Professor contrary Peter also to propo- record evidence that Berck, agricultural an resource economist at nents of the ETBE expected tax credit the University of (Berkeley), California esti- credit to increase demand for ethanol and that, mated credit, as a result of the tax production.4 corn Secretary’s The own ex- Yeutter, 4. See President, Letter from Clayton Secretary Ass'n, of National Corn Growers to the Agriculture, Brady, to Secretary Nicholas F. Service, of Commissioner of the Internal Revenue (Mar. 20, Treasury, 1989); (Dec. 8, 1989); Clay- Letter Davis, from Letter from Criss Presi- Yeutter, Secretary dent, ton Agriculture, Ass'n, to Honor- Wisconsin Corn Growers to the Johnston, Chairman, able J. Bennett (Dec. 20, Committee Commissioner of Internal Revenue Resources, Energy and 1989); Natural United States Outline of Comments on Tax Credits for (Nov. 2, 1989); ETBE, Senate Kemper, Letter from Alan Hawaii, Spreyer, Frederick C. State of Furthermore, Kunzman, at 491. Professor evidence, a statement pert compli- NEPA litigant can Andrew while Professor Polopolus Leo must take agency itself even where “development ance Schmitz, that indicated harm the threatened before indus- action additional ethanol based U.S. the corn growth Marita, Club v. pass, see Sierra tax come to state can federal and various try is due (7th Cir.1995); Idaho subsidies, guarantees.” F.3d 612-13 loan incentives, 1515; Secretary F.2d at League, 956 that the Conservation Indeed, unless we assume nothing v. United League Women Voters tax credit ETBE promulgated Rockford Comm’n, 679 Regulatory it is difficult gesture, Nuclear empty an States more than (7th Cir.1982); see but credit 1221-22 argument F.2d his understand Robertson, pro- 785- F.3d and ethanol ETBE impact on Club Sierra have no Secretary has (8th Cir.1994), con- Secretary’s here unsupported duction. cannot portion of his involve- tax credit relevant completed that tention pro- Indeed, its wait for accomplish appellants to were reasonably expected ment. disputed claim accept рarticular to a give Secretary rise fails purpose fessed summary damage credit, that the environmental fact such material the tax issue of in- was forward-looking scheme See unwarranted. NEPA’s would be judgment hap- already might see Idaho F.2d Angeles, 912 tended avoid suggest at 1516 does League, 956 pened. Conservation chal- imposed could Congress (“[S]hort assuming point at which an wil- to conduct Secretary’s failure safeguards, and lenge the procedural useless step, we superfluous is a designation EIS. derness plan management must conclude ap- suggestion Thus, Secretary’s subse- some, part, critical if not a plays injury standing because lack pellants decisions.”).5 quent the antici- allege speculative confuses consequences of the ap pated harms That the environmental injury appellants actu- NEPA with the credit a chain result anticipate pellants with NEPA ally claim. Consistent agency’s directly from rather than events injury stem- appellants claim requirements, standing under their does defeat аction Secretary’s to consider failure ming from the League, Conservation See Idaho NEPA. impacts. Griles, anticipated environmental the 1515; Soc’y v. Wilderness at 956 F.2d of risk severe a reasonable (D.C.Cir.1987). litigant Where there A 4, 12, 18 824 F.2d agency has harm and the par environmental third even if NEPA standing under has in- the requirements, complied NEPA’s with the threatened before take action must ties conjectural. See Robertson real, jury is United occurs. harm See environmental Council, U.S. 490 Valley Citizens v. Methow Regulatory Challenging v. Students States 1835, 1845, L.Ed.2d 349, 104 (SCRAP), 109 Procedures Agency en- (1989) designed NEPA to (Congress (1973); 351 Idaho 254 37 L.Ed.2d 93 S.Ct. over- not be will “important effects sure at 956 League, F.2d Conservation Yeutter, Agriculture, to Secretary of Clayton Development; Economic Dep't of Business Treasury, Secretary Reid, Brady, Corn F. Daryl President Illinois Nicholas of Letter addition, Ass’n, uncertainty 1989). Rev- about (Mar. of Internal to Commissioner Growers enue 12, 1989). Hinges (Dec. viability stemming See also Market in continued the tax credit's — Ruling, Week Treasury Dep't Alcohol explain Favorable etha- litigation mаy the part from this — 24, 1988). (Oct. 6-7 in delay to investment industry’s decision nol Challenging Cred- production. Lawsuit ETBE Cf. ETBE the Although advises that the 5. Alive; Hangs in Balance Credit ETBE Still it prompt yet to domestic tax credit Bill, Budget Clarify in Congress Issue Fails ways explained several can be in production, this 44, at 1 Report No. New Fuels Moreover, Alcohol Week's standing. The appellants' not undercut and does regarding uncertainty (Nov. 1990). promul- supported Secretary Agriculture, who of expan- anticipated scope of timing the anticipated of because its sugar gation the credit of than farming supports rather defeats in corn markets, sion the corn long-term effects on Angeles, City Los standing. See appellants' in- prospects for recognized that short-term 494. 912 F.2d at Letter limited. See were demand creased looked or underestimated It be discov- is that impact localized incremental ered after resources appellants directly have been committed or challenge.6 See infra cast.”); City A(2); the die is City otherwise Los Part II Angelеs, Los cf. (NEPA (D.H. Angeles, 912 F.2d at 491 J., is a “future- F.2d at Ginsburg, dissenting in (R.B. scheme”); Ginsburg, part) oriented id. at 504 (concluding organi- that environmental J., concurring) (citing Public Citizen v. Na- zation part lacked in because it Admin., Highway Safety tional 848 failed to incremental wrought harm Traffic (D.C.Cir.1988) decision). (Silberman, F.2d 269 n. 2 agency’s J., dissenting in part) (“Standing analysis is As observed, the Ninth Circuit has NEPA, different under pro- which confers court must statutory “bear mind the right cedural impacts have environmental source that appellants’ right defines and im- party considered. A ‘aggrieved’ is therefore poses Secretary’s] duty. [the agency if an fails to take pro- the mandated examination, words, in other must focus on steps, provided cedural party actually the likelihood that the defendant’s action will asserts a bona fide environmental interest injure plaintiff contemplated sense and is within geographical area where by Congress.” Idaho League, Conservation suspected impact likely occur.”)); 956 F.2d at 1516. light, Viewed this see also Idaho League, Conservation 956 promulgation of the ETBE tax credit without F.2d at 1515. an EIS is harmful purposes of standing possibility crop production creating lead, through risk that it will increase absent the ETBE tax credit does reasonably events, direct chain to serious appellants’ not thwart assertion that the fail- environmental harm caused farm run-off ure to an EIS created the risk that a and erosion. impact serious environmental was over- (2) Geographical nexus. To establish looked. That the ETBE tax credit contrib- injury-in-fact NEPA, litigant under must existing utes to environmental harms or en- also have “a geographical sufficient nexus to courages new ones is sufficient to confer challenged site of the project that he standing. City See Angeles, Los expected to suffer whatever environmen 495-97; Public Citizen Office of consequences tal project may have.” United Representative, States Trade Davis, City Appellants F.Supp. (D.D.C.1993), rev’d on other need not certainty partic establish with grounds, (D.C.Cir.1993), 5 F.3d 549 cert. de ular locations use will be affected —nied., —, agency action but rather must establish a (1994). L.Ed.2d 652 Appellants have estab sufficient nexus to the location lished likely ETBE tax credit is “at which the consequences increase corn pro addition to are to be felt.” Angeles, jected expansion unrelated to the credit and 494; 912 F.2d at see Idaho also Conservation it marginal is this impact appellants that League, 956 F.2d at 1517. We conclude that challenge through their NEPA claim. Jensen, Ms. based on her sworn declaration reason, For the same unpersuasive we find deposition, and has established this nexus. Secretary’s that contention the increase Lujan v. Wildlife, 504 U.S. at Defenders of in farming corn anticipated by appellants 562-63, 563-64, at S.Ct. 2138. would not a perceptible given effect acreage total already devoted to corn farm- declaration, In her sworn Ms. Jen ing in the United aggre- States. Even if explained sen that family regu she and her gate increase in farming corn signifi- larly is not enjoy particular use and locations cant, the devotion now Minnesota, idle or underused including the Sherburne National land to corn farming dramatically can affect Refuge Wildlife Forest, Rum River State particular environments where it Area, occurs. Qui Whitewater Wildlife and Lac Parle Furthermore, Secretary occur, larger bases his conten- should a aggregate increase acreage tion on projected the smallest increase impact farming on insignificant. com would be by Professor suggest Berclc. He does not that the ETBE her that have advised response sentatives deposition, At her Area. Wildlife farming in corn likely to increase identified is request, she tax credit government’s destroy of twen- an EIS could areas, average diameter and that Minnesota with an ten her for corn. miles, regularly visits opportunities she for Minnesota that market ty-five In declaration evidence, her activities. the likelihood recreational unrefuted From this hiking, include activities that stated these in- she stimulate ETBE tax credit will that birdwatching cross-country siding, canoeing, neighboring on production corn lands creased un- throughout fishing and photography, and Jensen, that the fact by Ms. and those used adjoining Minnesota areas developed natural corn-produc- fourth-largest is the Minnesota susceptible farming and for corn land used States, reasonably it ing in the United state Secretary The production. corn increased likely to uses lands Ms. Jensen that follows more Ms. Jensen has dispute that does ETBE credit. tax be affected “ to visit these day’ intentions” ‘some than support of sum- Wildlife, 504 his memorandum areas, In Lujan v. Defenders cf. Secretary argued and that that 563-64, at mary judgment at U.S. loca- particular alleged specify these what that and cannot has “do not she vicinity, are tions, in its already used and not land throughout the nation lands cred- ETBE by the tax adversely affected crop- into be converted agriculture Federa- National Lujan v. it. lands, be switched what lands will Wildlife and Cf. 871, 887-89, 110 S.Ct. tion, producing corn and crops to producing (1990). 3188-89, 111 L.Ed.2d Secretary that Ms. Jen- stated beets.” specify which attempt to not even sen “does Furthermore, proffered Jensen Ms. brief, his fie affectеd.” credit lands will evidence unrefuted affidavits appellants’ that Based contends Secretary she uses. areas likely to affect in- competent evidence present Minnesota “no generally environ- experience on several her plaintiffs forces, advi- where farmers near dicating state that task mental intensify crop pro- Board of Water planning the state sory groups, and are recreate in her Resources,7 states points Ms. Jensen also and Soil duction.” farmers, who acknowledged local declaration Berck sworn that Professor fact to leave some geograph- subsidies precise now receive state not determine he could fields, likely to are land fallow rotate corn where increased ic location develop lands subsidy and these abandon would occur. credit. advantage of the tax to take order however, Ms. point, The critical states, marginally result, Jensen Ms. As corn increased not establish Jensen need lands, require morе fertiliz- which productive ad- and affect to occur farming is certain more sus- farm and are pesticides to er enjoys. versely locations she uses erosion, likely to be cultivated. are ceptible to NEPA, she Rather, under to have yields can be greater further states She farming is like- that such establish need already farmland from Minnesota obtained Ange City Los regions. these ly to affect farming through increased to corn devoted River, 494; les, Salmon 912 F.2d fertilizer, which would pesticides and use of League, 14; Idaho Conservation n. at 1355 by causing greater habitats threaten wildlife Ltd., Inc. Resources pollution. Jensen Ms. and water soil erosion Cir.1993).8 (9th 1300, 1303 Robertson, 35 F.3d repre- meetings in which state refers to also Fund Protection the Great Lakes by, appointee to employed has been Jensen 7. Since Ms. as the she served of, From 1990 Board. the a co-director been 1987 has and since Board Action, appointee the n Minnesota to Minnesota na- Governor's a Water of Clean branch Resources, administers Soil which Water and organization that advocates tional environmental districts, county conservation and water state soil was a She resources. protection of natural set-aside farmland planning and the state’s ‍​‌​‌‌​​‌​​‌​‌​‌‌‌‌​​​​‌‌​​‌​​‌‌​​‌‌‌​​​​‌‌‌‌‌​‌‌‍prepared water advisory group that of a 1989 member programs. (later adopted by legislature) the state legislation Minnesota, protect groundwater in Lujan Society v. Griles or Nothing in Wilderness served, 8. state environ- by appointment, on three supports a con- addition, Federation v. National advisory groups. since mental Wildlife govern- site-specific trary Both involved result. State Governor’s Minnesota has been the she cause.”); In Idaho League, example, Griles, Conservation for see also 824 F.2d at 18 plaintiffs (“[T]he approximately claimed to use injury, likelihood of whether or not 100,000 Forest, acres in the Idaho Panhandle depends upon single likelihood event but identify could not whether this re- events, or a properly chain of is a concern of gion, comprising one-quarter than less personal injury inquiry, not the causation land that the designated Forest Service had injury.”). development, would in fact developed. be Here, appellants’ injury claimed is the risk The Ninth plain- Circuit concluded that the prepare that the failure to an EIS will cause tiffs could identify specific do no more to serious consequences environmental to be sites in agency’s the absence of designa- the. overlooked. That harm directly flows development tion of areas. 956 F.2d at Secretary’s EIS, failure to an 1514-17. notwithstanding the fact that other actors geographical Because the compo- nexus are needed for production increased ethanol nent of NEPA properly is equated Hence, to occur. Secretary’s reliance on with the “concrete interest” test articulated v. Wright, 737, 104 Allen Lujan the Court in v. Wild- Defenders of (1984), 82 L.Ed.2d 556 and Simon v. Eastern life, Babbitt, Douglas County see v. Kentucky Rights Organization, 426 (9th Cir.1995), Welfare 1500-01 n. 5 this is a (1975), 48 L.Ed.2d 450 litigant case where the “seeking is to enforce misplaced is becausе neither case involved procedural requirement disregard NEPA, cognizable where the injury is that impair which could separate concrete inter- the failure comply with the statute creates Lujan est of [hers].” Wild- Defenders of the risk environmental harms will be over life, 504 U.S. at 112 S.Ct. at 2142. looked and not that this Hence, necessarily failure the district court in ruling erred causes the ultimate anticipated. harm More Ms. Jensen had failed to req- established the over, appears there to be a pros uisite reasonable nexus.9

pect that full consideration of the environ B. mental consequences of the ETBE tax credit might prompt to rescind or question Causation. The remains modify otherwise the tax credit because the whether appellants have demonstrated that Secretary emphasized, proposing the rule injury “fairly is traceable” to pro extending ETBE, the tax credit to posed ETBE sev credit. Ange les, eral (citation environmental omitted). benefits would 912 F.2d at result. Con See 54 trary Fed.Reg. at 48640. The Secretary’s contention, causal nexus causation alleged injury between the under NEPA lacking simply is not absence of an because alleged prospect EIS met pro effects will the Secre independent tary duced “the will modify choices rescind or otherwise made parties (here, potential third ETBE tax credit manufac were the environmental farmers).” consequences turers and argument This spelled the tax credit out in “better addressed prong to the first of the more detail in an EIS. See Public Citizen v. standing test.” Idaho League, Highway Conservation National Safety Administration, (“in 956 F.2d at 1517 involving cases chains F.2d at 263 n. Lujan see also events, it is common to confuse ... Wildlife, 504 U.S. at 572 n. Defenders of issue of the (“There likelihood of harm with its S.Ct. at n. 7 is much truth ment action that affected identifiable lands that than Ms. Jensen geo- have failed to establish a plaintiffs did not claim to use. Griles did graphical improperly granted nexus and sum- Fed’n, arise under NEPA. National mary judgment given disputed Wildlife evidence con- 887-89, 3188-89; Griles, U.S. at 110 S.Ct. at cerning the likelihood that the ETBE tax credit Here, appellants F.2d at non-site sugarcane increase in Florida. specific agency action that threatens numerous appellants' position Because of on their locations. claims and because we conclude that Ms. Jensen standing requirements, has met the we need not Appellants 9. further contend that the district reach these issues. concluding court erred in that other

883 signifi- every major action[ ] Federal ... rights’ are ‘procedural that assertion quality human cantly affecting the a been accorded has person The who special: environment, im- detailed [environmental inter- his concrete right protect procedural (‘EIS’) § meeting all Id. 4332. right pact ].” without statement assert ests can in- redressability stemming harms environmental normal standards suggested by appel- farming creased corn immediacy.”) by Ms. proffers, and no less Jensen’s lants’ declaration, fall within the broad sworn C. City trusteeship NEPA. established of ap of Redressability. The nature 495; at 42 U.S.C. Angeles, 912 F.2d Los its re injury demonstrates claimed pеllants’ 4331(b)(1). § bur have met their dressability. Appellants injury claim—the taxpayer standing den to show cases on Unlike were harms environmental relies, risk that serious appellants do not which ETBE tax promulgating itself, overlooked but challenge the tax credit by having the Sec redressed continuing credit —will Secretary’s failure to fulfill the Appellants need an retary conduct EIS. policy adopted Con- environmental federal Secretary would not 4331(a). establish § See 42 U.S.C. gress NEPA.11 credit had he ETBE tax promulgated forewarned, sponsors “It of NEPA’s As one Lujan v. an EIS. See conducted social, human, and economic cheaper Defenders is far 7, 112 n. S.Ct. at 572-73 Wildlife, 504 U.S. problems at an anticipate these terms 7; League, 2142-43 n. Idaho Conservation at stage to find alternatives before early 1518; Angeles, 912 at 956 F.2d expenditure we are they require massive .the Pierce, 711 at Munoz-Mendoza F.2d air, water, control obligated to make to now Cir.1983).10 (1st 421, 428 S3,700 Cong.Rec. pollution.” See 115 and oil 1969) (statement 18,

(daily Sen. ed. Feb. Jackson). her has demonstrated Ms. Jensen D. thаt are nexus to lands enacting Interest. Zone of by increased corn be affected of: NEPA, view Congress declared Secretary’s of the tax credit. reason activity on impact of man’s profound exemp- categorical on the suggestion, based components of the of all the interrelations 75-02, TD that no one has stand- tion under ... the critical [and] natural environment credit, not challenge the ETBE tax ing to maintaining restoring and importance wrong brought just that this case was wel- quality to the overall position on erroneously his litigants, invokes man, ... it is the development fare and (and deny her the reason to the merits ‍​‌​‌‌​​‌​​‌​‌​‌‌‌‌​​​​‌‌​​‌​​‌‌​​‌‌‌​​​​‌‌‌‌‌​‌‌‍as policy of the Federal Govern- continuing standing, Jacobs v. see appellants) means and practicable all ... to use ment (D.C.Cir.), Barr, 313, de cert. 959 F.2d manner calculated to ... in a measures — —, nied, 113 S.Ct. U.S. general welfare. promote the foster and (1992), not reach and we do L.Ed.2d 56 4331(a). carry out this § To 42 U.S.C. here. merits that, the full- Congress “to policy, directed appellants have Accordingly, we hold agencies of the possible, ... all extent est standing Ms. Jensen include in demonstrated shall ... Federal Government 759-61, Wright, 468 U.S. Wright, Allen v. Secretary' on Allen reliance 10. The Cf. (no third-party to chal at 3329 3315, 82 L.Ed.2d 556 104 S.Ct. 468 U.S. private tax-exempt grant status to lenge schools); IRS Rights Kentucky v. Eastern and Simon Welfare Rights Ky. v. Eastern Simon Welfare 32-33, 96 S.Ct. at Organization, 426 U.S. at (no at 1925-26 Org., 96 S.Ct. 426 U.S. appellants' for his contention that this time grant third-party tax-exempt IRS redressable, again misplaced. injury is not hospitals); particular Froth status NEPA or nor Simon involved Neither Allen Mellon, 43 S.Ct. ingham v. procedural injury that alleging litigant's claim (1923); Brady, 935 F.2d Fulani v. L.Ed. Idaho Con- impacts See also a concrete interest. denied, (D.C.Cir.1991), cert. League, at 1518. servation (1992). 912) L.Ed.2d 812 pursue declaratory injunctive to and relief in (citing S.Ct. at 2137 Fed.R.Civ.P. court, 56(e)). grant the district and we reverse the summary judgment and majority notes, As the in the NEPA con-

remand the case with grant instructions to text, plaintiff we have held that meets the appellants’ summary judg- cross-motion for injury requirement by demonstrating that an ment on insofar as Ms. Jensen has agency’s prepare failure to an environmental “ standing. established (“EIS”) impact statement creates ‘risk that impacts serious environmental will be over- SENTELLE, ” Judge, dissenting: Circuit looked,’ City NHTSA, Angeles Los remarkably complaint, (D.C.Cir.1990) In a ap- ambitious (quoting City pellants sought accomplish through Coleman, (9th the Davis v. Cir.1975)), they apparently courts what had failed to and plaintiff has “a suffi- political achieve geographical branches and the ad- cient nexus to the site of the is, process: they prayed challenged ministrative project expected that he be enjoin district court to the extension of the to suffer whatever environmental conse- (cita- Alcohol Fuel Tax quences project may Credit created 26 U.S.C. have.” Id. (1988) omitted). § containing gasoline to fuel blends Though tion phrased we have (“ETBE”). ethyl tertiary butyl plaintiffs ether differently burden in the NEPA context, granted summary judg- district court she still must be able to demon- against strate, ment them as all summary judgment lacked stand- at the stage by ing bring specific facts, action. As I think genuine evidence of likeli- corrеct, wholly district court was I would hood of an overlooked “risk” of “serious envi- affirm. impacts” particularized ronmental inter- resulting

ests prepare the failure to an (“NRDC id. at EIS. See I. has satis- geographical fied the requirement nexus To meet “the irreducible constitutional standing by NEPA showing the likelihood of standing,” plaintiffs minimum of must estab- particularly devastating consequences to (1) fact, injury i.e., lish three elements: California.”) NRDC (emphasis members in plaintiff must have suffered an invasion added). (a) legally-protected of a interest which is case, In this the district court’s determina- (b) particularized concrete and actual or tion that sufficiently had not set imminent, conjectural hypothetical; or specific forth summary facts to (2) (or judg- survive traceability), i.e., causation injury “ ment on the issue of is correct. ‘fairly has to be ... trace[able]’ Appellants have failed to demon- challenged defendant, action of the and not strate a causal nexus Depart- between the ... result independent th[e] [of] the action оf Treasury’s ment of action and an actual risk party court;” some third not before the of an impact, but (3) also have not i.e., redressability, likely it must be demonstrated a sufficient nexus injury will be redressed a favorable injured to lands which are to be as a Lujan decision the court. v. Defenders of credit, result of the ETBE tax and thus have Wildlife, 555, 559-61, “injured not been in fact.” 2130, 2136, (1992) (citations 119 L.Ed.2d 351 omitted). requirements These are an “indis- A. Causation. pensable part case, plaintiffs each element supported [of must ord,ter which] in the standing, demonstrate a NEPA way same other matter on plaintiffimust show, which the among things, plaintiff bears proof....” the burden of agency Id. has failed to an EIS To summary motion, survive a judgment the face of a reasonable risk that environ- “plaintiff longer can no rest on ... ‘mere mental harm will occur. Angeles, allegations,’ but must ‘set forth’ affidavit 912 F.2d at 492. In the context of a NEPA ” ‘specific or other evidence facts’ supporting challenge to an extending IRS rule a each standing. element of Id. 504 U.S. at credit to taxpayers, individual the “risk” аs-

885 exactly parallel presented to those facts for the special problem a presents sessment courts have by appellants’ complaint, both Here, consider we must plaintiff. NEPA in instruc- standing present cases found no see, Wright, cases, e.g., v. Allen standing tax rejected plain- analogous indeed tively 3315, 737, L.Ed.2d 556 82 104 S.Ct. 468 U.S. arguably tenuous claims to having tiffs less Rights Ky. (1984); v. Eastern Simon Welfare standing appellants. than do 1917, 26, 48 L.Ed.2d S.Ct. 96 Org., 426 U.S. Brady, F.2d 1324 (1976); Fulani Simon, challenged supra, indigents denied, (D.C.Cir.1991), 502 U.S. cert. previous of a revenue rul IRS’s modification (1992), be 116 L.Ed.2d 812 hospitals 112 S.Ct. care ing requiring charitable upon “the depends charge the risk assessment at rates below patients cause without or party third of some independent action at 96 S.Ct. at The cost. 426 U.S. Simon, at 426 U.S. charitable status to the court.” modification extended before Supreme non-emergency Court has hospitals which denied treat at 1926. As S.Ct. 30-31, context, 96 S.Ct. indigents. Id. at at ment to in another noted plaintiffs that the 1920-21. The Court held injury plaintiffs asserted ... a When ruling challenge the be standing to lacked allegedly un- government’s from the arises not meet the causation re cause could (or regulation) of of regulation lack lawful 40-46, at 1925-28. quirement. Id. at 96 S.Ct. else, redressa- ... causation someone corollary implicit “[t]he The noted that Court response of ordinarily hinge on the bility grant a [plaintiffs’] allegation is that (or party to regulable) third regulated relief, resulting in a re requested [their] or inaction —and government action indigents hospitals serve quirement that all as well. response of others on the perhaps treatment, tax to as a condition favorable the essen- more of of one or The existence denying ‘discourage’ hospitals from would on the standing “depends elements tial at [plaintiffs].” Id. services to their independent made choices unfettered rejected that rea at 1926. The Court S.Ct. and whose the courts not before actors purely speculative stating, “It is soning, legitimate discretion of broad and exercise specified in service the denials of whether to con- presume either courts cannot fairly petition complaint can be traced predict.” or to trol instead result ‘encouragement’ or ers’ 562, 112 Wildlife, at 504 U.S. Defenders hospitals re without made decisions original) (quoting (emphasis at 2137 S.Ct. 42-43, implications.” Id. gard to the tax Kadish, 605, 615, ASARCO, 490 U.S. Inc. v. Wright, Allen Again, at 1926. (1989) 2037, 2044, L.Ed.2d 696 S.Ct. 82 L.Ed.2d 468 U.S. S.Ct. J.)). particular In this Kennedy, (opinion of third- rejected the Court case, producers party fuel third alternative In re exemptions. party challengers to tax the tax credit avail first themselves must parents of black chil sponse a claim any genuine risk of environmental before un districts attending public schools dren nature of speculative arise. harm would grant of desegregation that an IRS dergoing “special prob contingency highlights the private racially segregated exemptions tax upon establishment lems attendant right their children’s schools interfered with cases, litigant a ... when standing in tax education, the Court noted integrated to an of a third exemption tax to attack the seeks “highly injury plaintiffs was indi (internal Fulani, at 1327 party.” indepen from the it rect” because “results omitted). omitted; citations quotations party before of some third dent action 757, 104 chal- at 3327 as a NEPA Although it is fashioned the court.” omitted). (citation Court reasoned case fact lenge, appellants’ ... “entirely whether speculative tax credit to third of a it was to the IRS’s extension Therefore, any par exemption from of a tax producers. withdrawal parties: to change the school claim, would lead to the ticular school we look evaluate whether just speculative policies. It is parties. third its on those of the credit effect attending child such any parent of a given Court Supreme nor the Although neither we to transfer the decide private school would standing question ever answered public Thus, child to contrary school as a result of majority’s conclusion changes in policy educational or financial Secretary’s suggestion that “the appel- private made school once it was lack injury they lants because tax-exempt threatened with loss of status.” allege speculative anticipated confuses the (citation Id. at omit- environmental consequences of the tax credit ted). injury appellants with the NEPA actually claim,” maj. op. at I believe the Secre- Wright, As in Simon and the line of causa- tary right. has it Appellants meet “highly speculative.” tion in this case is The injury requirement NEPA only if their evi- danger that an increased risk of environmen- dence demonstrates a reasonable risk of se- injury might tal depends, be overlooked here coupled vere environmental harm with the instance, in upon the first the decisions of City failure to an EIS. See Los fuel manufacturers to increase their ETBE Angeles, put, 912 F.2d at 492. Otherwise or, production alternatively, to enter federal action —in this case the extension of in advantage market order to take of the tax the tax credit —must cause the creation or Although Secretary promulgated credit. increase of an environmental risk which the hopeful “may this rule that it increase the might EIS disclose. That risk cаnnot be ethanol,” demand for Fed.Reg. domestic measured where the environmental ‍​‌​‌‌​​‌​​‌​‌​‌‌‌‌​​​​‌‌​​‌​​‌‌​​‌‌‌​​​​‌‌‌‌‌​‌‌‍conse- 48,639, (1989) 48,640 added), (emphasis quences highly of the tax specula- credit are whether in manufacturers fact take advan- subject independent tive and third-party tage seen, of the credit remains to be and action and market forces. presume “the courts cannot either to control predict,” Wildlife, or to Defenders of Thus, appellants’ standing claim to fails at (citation omitted), 112 S.Ct. at 2137 very step first of causation. Even if it contingency. this not, however, did appellants’ showing on the steps Even as it further hearings estimated are even more attenuated than gallons million of ethanol the first. Even if for ETBE manufac- we assume that manufac- might necessary ture turers advantage be were to take the Renew- credit, increasing able Fuels production Association cautioned that its esti- ETBE ethanol, “entirely mate dependent upon appellants was therefore factors are short of industry demonstrating by which the еthanol will not evidence that at control: that un- specified competing methanol; point the cost of in the future this increase feedstock— greater would come from standards established for devotion of areas of gasolines future; agricultural land corn, to the the continuation cane, sugar beets, of federal sugar incentives for ethanol opposed blended fu- Additionally, els.” already the reorientation of industry chemical lands under cul- “[ajnother press tivation, agricul- noted that or other means of obstacle for increased production. ETBE availability is the limited tural if isobutyl- Even had demon- Verbanic, step, ene.” it, Carl ETBE: strated that or if presume Ethanol’s Mo- we could Hope?, appellants’ tor Fuel standing Business, trip Octo- would still at the Chemical ber, 1988, Thus, stage at 39. next of NEPA according support- standing analysis: geo- ruling, graphical ers of industry whether nexus. advantage

take depends of the tax credit upon beyond govern- market factors B. Geographical Nexus. ment’s, and even industry’s, cоntrol. In- deed, noted, as the district court notwith- Angeles requires ruling had been in force for plaintiff NEPA demonstrate “a sufficient years more than four argu- at the time of nexus to the site of the chal- below, ment produced lenged was still not project expected that he be commercially country. Against this this consequences suffer whatever environmental uncertain backdrop, hardly it can project may be said that have.” 912 F.2d at 492 (citation omitted). an increased risk of environmental harms majority today con- likely as a result of the IRS rule. important cludes that this facet of “injury (sic) Q. precise what the you Do knew may met requirement of in fact” assumptions. be? impacts would and baseless speculation with Jensen). (By state- Studies have a sworn A. Ms. submitted Appellant Jensen family pesti- her regular she and use of com court that shown ment areas abut- recreational up ground use in the regularly several have shown cides Minnesota, as did other land ting farm that the ... and I can infer water majority in other states. pesticides usе of these additional “susceptible are farm lands that these going is to increase his which farmer in develop these lands subsidy and tax] [their as a result of this crop at this time of the tax credit.” advantage to take order incentive? pointed Additionally, Jensen Maj. op. at 881. A. No. that representatives state speculation to Q. way knowing you likely increase corn Do to was the ETBE credit applica- pesticide with the Combined where an additional farming in Minnesota. producing large may corn is occur? that Minnesota a tion fact state, from this evi- majority concludes A. No. geographical that meets Jensen dence Q. any way is you believe there Do that Id. nexus test. further you could know without that ad- problems Apart from causation study taking place? academic section, appellants’ previous in the dressed absolutely way. no A. There geographic minimal satisfy the fails to case Exhibit 8 at 137-38. Defendants’ context, in the NEPA Even nexus test. that to demonstrate must be able plaintiffs point specifiс out inability to Ms. Jensen’s likely to sub- they enjoy are be lands which likely affected are be areas that to of environmental jected an increased risk to why the causation crop increase illustrates Angeles, 912 F.2d City damages. Los See indepen- be met where cannot element proffer fails to demon- Plaintiffs’ at 494. necessary party is a action of a third dent if we assume that nexus. Even strate In to chain. order causation link point at to steps of causation attenuated must be standing, Jensen Ms. demonstrate occur, would increased corn which lands she uses to demonstrate that able proof demonstrates nothing plaintiffs’ in the She, as the as well likely to be affected. are likely be enjoyed by them would land case, has not done so. in this plaintiffs other production. corn the increased affected In requires no less. Angeles largest fourth is the fact that Minnesota case, geographical found we does state in the Union producing corn because specifically was met nexus test specific lands within that those demonstrate demonstrating plaintiffs were successful likely enjoys are to which Jensen Minnesota California, lived, they the area which contingency rests Again, that affected. be subject “particularly dev- likely be would third-party choices of independent upon ” relating to astating consequences to take may may not choose or farmers who as a might occur which greenhouse effect for com demand advantage of the increased economy fuel rollback of proposed result of sources). (or See ethanol Defenders (emphasis add- at standards. 562-63, at Wildlife, 504 U.S. ed). demonstrated Appellants have not in a de- herself admitted Ms. Jensen 2137. likely be enjoy are even they will or fact, areas of, and in was position that she unaware which by the action damaged federal discern, specific lands were which unable impact requires an environmental claim grain pro- increased to be affected today majority opinion dialogue suggеsts: statement.1 duction, following as the (9th Cir.1992). Mumma, League Idaho Conservation majority also 1. The relies requirement obliterates that NEPA

plaintiffs prove nexus to the MacLEOD, Jeff Trustee for challenged Wildlife, action. See Transportation, BGR Defenders of 112 S.Ct. at 2137-38. Inc., Petitioner,

II. INTERSTATE COMMERCE COM- MISSION; United States of ask, “If Plaintiffs we don’t have stand- America, Respondents. regulation, ing this who does?” No. 93-1363. question may, fact, The answer to that noted, Supreme Appeals, “no one.” As the States Court of United Court assumption respondents “The that if District Columbia Circuit. have no sue, standing standing, no one would have Argued Nov. 1994. reason to find standing.” Schlesin- Decided June 1995. War, ger Stop v. Reservists to Rehearing Suggestion Rehearing 208, 227, 2925, 2935, L.Ed.2d (1974). Aug. Banc Denied observed, previously As we have concept “[T]he entire of III Article ” separation powers.... rests Haitian

Refugee Gracey, Ctr. v.

(D.C.Cir.1987); generally, Sealia, see Antonin Standing The Doctrine as an Essential Separation Powers,

Element (1983). “[Standing Suffolk U.L.Rev. 881

inquiry must be answered reference to Art. Ill notion that federal courts resort, power only in

exercise the last and as necessity_” ‍​‌​‌‌​​‌​​‌​‌​‌‌‌‌​​​​‌‌​​‌​​‌‌​​‌‌‌​​​​‌‌‌‌‌​‌‌‍Wright, Allen v. (citatiоn omitted). 104 S.Ct. at 3325

Appellants have not demonstrated that affected in their capacities by

are individual

the IRS’s failure to an EIS. Their

arguments upon are high- based a number of

ly speculative links in a chain of causation.

Perhaps their claims are best heard our government.

sister branches of Assuming purposes opinion agency this itself have to take further action ... reasoning Circuit's Ninth in that decision was authorizing site-specific development. before correct, it support nonetheless does not a conclu- Thus, contingent, is the risk it also present sion that in the subject safeguards to future agen- from the same there, granted standing case. The Ninth Circuit Here, source.”). contrast, cy statutory uncertainty regarding the face in affected sites to be completed IRS has its involvement in the case. because, alia, by development, inter uncertainty in this case arises not from fur- uncertainty govern- would be resolved further action, government ther but from further action action, i.e., designation development ment ar- by independent parties, third farmers and manu- ("An eas the Forest Service. Id. at 1515-16 facturers. added wrinkle in this case is the fact that the notes ground con- increase the water would Maj. op. at production.” corn increased tamination the state. her sworn statement claimed in Jensen Q. way knowing you Do likely to abandon farmers “are local

Case Details

Case Name: Florida Audubon Society v. Lloyd M. Bentsen, Secretary of the Treasury

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 2, 1995

Citation: 54 F.3d 873

Docket Number: 94-5178

Court Abbreviation: D.C. Cir.