NATIONAL ASSOCIATION OF HOME BUILDERS, Appellant v. UNITED STATES ARMY CORPS OF ENGINEERS et al., Appellees.
Nos. 04-5009, 04-5010, 04-5011.
United States Court of Appeals, District of Columbia Circuit.
Argued April 19, 2005. Decided July 29, 2005.
417 F.3d 1272
Peter L. Gray, Robin S. Conrad, Richard S. Moskowitz, Alan C. Raul and Brian T. Fitzpatrick were on brief for amici curiae Honorable Donald A. Manzullo et al. Prasad Sharma and Stephen A. Bokat entered appearances.
Greer S. Goldman, Attorney, United States Department of Justice, argued the cause for appellees United States Army Corp of Engineers et al. David C. Shilton, Martin McDermott and Stephanie Tai, Attorneys, United States Department of Justice, were on brief.
Howard I. Fox was on brief for appellees, Natural Resources Defense Council and Sierra Club.
Eliot Spitzer, Attorney General, State of New York, Peter H. Lehner, Philip M. Bein and Tracy Hughes, Assistant Attorneys General, State of New Mexico, were on brief for amici curiae States of New York and New Mexico.
Before: GINSBURG, Chief Judge, and HENDERSON and GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge.
The National Association of Home Builders (NAHB) and others1 (collectively, the appellants) appeal the dismissal of their multi-pronged challenge to the issuance of certain permits by the United States Army Corps of Engineers (Corps) pursuant to section 404(e) of the Clean Water Act (CWA),
I.
The CWA aims to “restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters,”
The Corps issues a permit under section 404 of the CWA either on a class-wide (“general permit“) or a case-by-case (“individual permit“) basis.
The Corps’ individual permit process is, by contrast, “a longer, more comprehensive procedure.” New Hanover Township v. United States Army Corps of Eng‘rs, 992 F.2d 470, 471 (3d Cir.1993). The Corps makes a formal decision on an individual application following site-specific documentation and analysis, public interest review, public notice and comment and, if necessary, a public hearing. See
Thus a party desiring to discharge fill or dredged material into our nation‘s navigable waters may do so in either of two ways. See New Hanover Township, 992 F.2d at 471. If the proposed discharge activity is covered by a general permit, the party may proceed without obtaining an individual permit or, in some cases, even without giving the Corps notice of the discharge. See
This litigation involves several nationwide permits, or NWPs, a species of general permit designed to minimize delays and paperwork for projects with minimal environmental impact. See
In 1996, the Corps proposed to reissue a number of existing NWPs, albeit with modifications, that were otherwise set to expire on January 21, 1997. See Proposal to Issue, Reissue, and Modify Nationwide Permits; Public Hearing, 61 Fed. Reg. 30,780 (June 17, 1996). As to NWP 26, which, at the time, authorized a party to discharge dredged or fill materials affecting up to ten acres of water into headlands and isolated wetlands without an individual permit and required only notice to a Corps district engineer of any discharge causing loss or substantial adverse modification of one to ten acres of wetlands, the Corps gave public notice of—and sought comment on—proposed changes to its “preconstruction notification” timeline and acreage threshold limits. See id. at 30,783. It also notified the public that it planned to “initiate a process to regionalize” NWP 26 to “further improve its effectiveness.” Id.
Following public comment, the Corps decided to replace NWP 26 with “activity-specific” general permits. See Final Notice of Issuance, Reissuance, and Modification of Nationwide Permits, 61 Fed. Reg. 65,874, 65,875 (Dec. 13, 1996). To allow ample time to develop replacement permits, however, it reissued NWP 26 for a two-year period but with more stringent conditions. See id. at 65,877, 65,891, 65,895. In July 1998, the Corps published a proposed suite of activity-specific general permits to replace NWP 26, see Proposal to Issue and Modify Nationwide Permits, 63 Fed Reg. 36,040 (July 1, 1998), and extended, once more, the life of NWP 26 until December 30, 1999 “or the effective date of the new and modified NWPs, whichever comes first,” Proposal to Issue and Modify Nationwide Permits; Notice, 64 Fed. Reg. 39,252, 39,260 (July 21, 1999). That same month the Corps also reissued the NWP regarding single-family housing (NWP 29), but reduced the authorized maximum acreage impact from one-half to one-quarter acre. See Final Notice of Modification of Nationwide Permit 29 for
The Corps issued a second proposed set of activity-specific NWPs to replace NWP 26 one year later. See 64 Fed. Reg. at 39,252. In March 2000, following another round of public comment, the Corps promulgated activity-specific permits consisting of five new NWPs and six modified NWPs, all intended to replace NWP 26. See Final Notice of Issuance and Modification of Nationwide Permits, 65 Fed. Reg. 12,818 (Mar. 9, 2000). With some of the activity-specific NWPs, the Corps reduced the authorized maximum per-project acreage impact from ten acres to one-half acre and required preconstruction notification for impacts greater than one-tenth acre. See 65 Fed. Reg. at 12,818. Although December 30, 1999 preceded the effective date of the replacement permits, the Corps nevertheless decided to have NWP 26 expire the same day the new permits took effect—June 7, 2000. Compare 65 Fed. Reg. at 12,818 (extending NWP 26‘s expiration date to June 5, 2000), with Final Notice of Issuance and Modification of Nationwide Permits, 65 Fed. Reg. 14,255 (Mar. 16, 2000) (making June 7, 2000 “the correct effective date for the new and modified NWPs, as well as the correct expiration date for NWP 26.“).
The Corps’ new permits prompted three lawsuits the district court eventually consolidated into one. The NAHB‘s suit was filed on February 28, 2000, followed by the NSSGA‘s suit on March 16, 2000, and the NFIB‘s suit on June 14, 2000. Together, the three suits allege four claims against the Corps, to wit: (1) it exceeded its statutory authority under the CWA by imposing certain permit conditions; (2) it acted arbitrarily and capriciously, in violation of the APA,
The appellants moved for summary judgment on February 15, 2001. The Corps and intervenors responded with motions for summary judgment of their own on June 14, 2001. While the parties’ cross-motions for summary judgment lay pending, on January 15, 2002, the Corps reissued all 43 NWPs, including the eleven March 2000 NWPs it issued to replace NWP 26, to make their expiration dates coincide, thereby “reduc[ing] confusion regarding the expiration of the NWPs and the administrative burden of reissuing NWPs at different times.”3 See 67 Fed. Reg. at 2020. In November 2003, the district court granted summary judgment to the Corps, concluding that “the Corps’ issuance of the new NWPs and general conditions, while constituting the completion of a decisionmaking process, does not constitute a ‘final’ agency action because no legally binding action has taken place as to any given project until either an individual permit application is denied or an enforcement action is instituted.” Nat‘l Ass‘n of Home Builders, 297 F.Supp.2d at 78. Calling the “general permit program . . . the first step of a larger permitting process that enables the agency to streamline the overall process by limiting the pool of applicants at the front-end of the process,” the district court concluded that a party not eliminated from the applicant pool must “simply apply for an individual permit” and, consequently, “is not legally denied anything until [his] individual permit is rejected.” Id. at 80.
The appellants now appeal the district court‘s judgment, which we review de novo. See, e.g., Mylan Labs., Inc. v. Thompson, 389 F.3d 1272, 1278 (D.C.Cir. 2004).
The jurisdictional infirmity the lower court found fatal to this case was the want of a final agency action subject to judicial review; that is only one of the issues, however, joined by the parties and requiring our resolution. First, we consider whether the Corps took “final agency action” subject to challenge under the APA and, if so, whether the appellants’ challenge is otherwise ripe for judicial review. Next, we address whether the appellants may challenge the Corps’ compliance with the RFA and, again, whether that challenge is ripe. Finally, we review the appellants’ standing vel non to challenge the Corps’ compliance with NEPA.
A.
Where, as here, no more specific statute provides for judicial review, the APA empowers a federal court to review a “final agency action for which there is no other adequate remedy in a court.”
We need not tarry long on the finality test‘s first prong; plainly, the Corps’ issuance of the revised NWPs “mark[s] the
But the NWPs do not simply work a change in the Corps’ permitting procedures, thereby disadvantaging some within the class of would-be dischargers. The NWPs are not a definitive, but otherwise idle, statement of agency policy—they carry easily-identifiable legal consequences for the appellants and other would-be dischargers. Admittedly, our precedent announces no self-implementing, bright-line rule in this regard; the finality inquiry is a “pragmatic” and “flexible” one. See, e.g., Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 435-36 (D.C.Cir.1986) (“[W]e are to apply the finality requirement in a ‘flexible’ and ‘pragmatic’ way.” (quoting & citing Abbott Labs., 387 U.S. at 149-50)). Nevertheless, if an EPA directive forbidding the use of third-party human test data to evaluate pesticides’ effects constituted final agency action subject to judicial review before the EPA invoked it against any pesticide applicant, see CropLife Am. v. EPA, 329 F.3d 876, 881-83 (D.C.Cir. 2003), and a Federal Communications Commission decision putting the burden on telephone companies to show their entitlement to certain costs was suitable for judicial review before any telephone company was denied costs, see Mountain States Tel. & Tel. Co. v. FCC, 939 F.2d 1035, 1041 (D.C.Cir.1991), the Corps’ issuance of NWPs likewise satisfies the second prong of the finality test. To our mind, all three constitute challenges to agency action “with legal consequences that are binding on both petitioners and the agency.” CropLife Am., 329 F.3d at 882; see also Mountain States Tel. & Tel. Co., 939 F.2d at 1041.
The Corps’ NWPs create legal rights and impose binding obligations insofar as they authorize certain discharges of dredged and fill material into navigable
In addition, the intervenors argue that environmental groups, such as themselves, may challenge the Corps’ issuance of NWPs as final agency action but the appellants may not. This is so, they say, because an environmental group would challenge the discharges authorized by the Corps—that is, it would oppose an agency action—while the appellants challenge the Corps’ failure to authorize certain discharges—that is, they seek to compel agency action. The appellants seek to compel agency action in this instance, the intervenors maintain, because “the Corps did not finally decide that a would-be discharger must comply with [the NWP] terms and conditions, nor did the Corps finally deny authorization for discharges that exceed those terms and conditions.” Intervenors’ Br. at 15. Thus “would-be dischargers” such as the appellants “remain free to pursue an individual or general permit.” Intervenors’ Br. at 15. It is true that a party seeking to challenge an agency‘s failure to act faces a different burden from that borne by a challenger of agency action. An action to “compel agency action unlawfully withheld or unreasonably delayed,”
B.
Both the Corps and the intervenors, recognizing that we may affirm the district court on an alternative ground, see, e.g., Tymshare, Inc. v. Covell, 727 F.2d 1145, 1150 (D.C.Cir.1984) (“In this appeal, appellee has sought to justify the judgment below upon a ground argued below but not relied upon by the opinion of the district court. We may of course sustain on such a ground.“) (citing Langnes v. Green, 282 U.S. 531, 538-39 (1931)), maintain that the appellants’ challenge is not ripe for judicial review. Not so.
The doctrine of ripeness shares with its statutory counterpart, viz., finality, “the dual concerns of prematurity of judicial intervention in agency processes and the proper and principled exercise of judicial power.” USAA Fed. Sav. Bank v. McLaughlin, 849 F.2d 1505, 1508 (D.C.Cir.1988). That is, “its basic rationale,” the Supreme Court tells us, “is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs., 387 U.S. at 148-49. The ripeness doctrine has two components: “[It] requires us to consider ‘the fitness of the issues for judicial review and the hardship to the parties of withholding court consideration.’ ” Village of Bensenville v. FAA, 376 F.3d 1114, 1119 (D.C.Cir.2004) (quoting & citing Abbott Labs., 387 U.S. at 149). Neither of these considerations—which we address in turn—counsels in favor of postponement here.
The appellants’ challenge easily satisfies the first ripeness prong—fitness. “[T]he fitness of an issue for judicial decision depends on whether it is ‘purely legal, whether consideration of the issue would benefit from a more concrete setting, and whether the agency‘s action is sufficiently final.’ ” Atl. States Legal Found. v. EPA, 325 F.3d 281, 284 (D.C.Cir.2003) (quoting & citing Clean Air Implementation Project v. EPA, 150 F.3d 1200, 1204 (D.C.Cir. 1998)). The appellants’ APA challenge is “purely legal,” Atl. States Legal Found., 325 F.3d at 284: They allege that the
While we have cautioned that sometimes “even purely legal issues may be unfit for review,” Atl. States Legal Found., 325 F.3d at 284, we cannot accept the Corps’ argument that the appellants’ purely legal challenge is unfit for review at this time. It initially argues that the NWPs are not fit for review because their applicability to a given activity remains within the Corps’ discretion. We have already debunked this theory. In Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022 (D.C.Cir.2000), we explained that “the fact that a law may be altered in the future has nothing to do with whether it is subject to judicial review at the moment.” Id. In addressing the ripeness of an EPA Guidance, we recently explained that “if the possibility of future revision in fact could make agency action non-final as a matter of law, then it would be hard to imagine when any agency rule . . . would ever be final as a matter of law.” Gen. Elec. Co. v. EPA, 290 F.3d 377, 380 (D.C.Cir.2002). That the Corps retains some measure of discretion with respect to the NWPs does not make the appellants’ purely legal challenge unripe.
The Corps and the intervenors further argue that the appellants’ APA challenge remains “hopelessly abstract” until “a member submits an actual individual permit application proposing a specific project, has its application denied or unlawfully conditioned, and completes the administrative appeal process provided by Corps regulations.” Appellees’ Br. at 24; see also Intervenors’ Br. at 20-23. While it is undoubtedly true that a “claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed not occur at all,” we see no reason here to “wait for a rule to be applied to see what its effect will be.” Atl. States Legal Found., 325 F.3d at 284 (internal quotation marks & alteration omitted). No further factual development is necessary to evaluate the appellants’ challenge. All of the facts necessary for judicial review were before the Corps when it issued the permits and, on APA review, its action necessarily stands or falls on that administrative record and its statutory permitting authority under the CWA. See Fox Television Stations, 280 F.3d at 1039 (issue fit for judicial review because whether agency action is arbitrary and capricious or contrary to law is “purely legal” question); cf. Elec. Power Supply Ass‘n v. FERC, 391 F.3d 1255, 1263 (D.C.Cir.2004) (claim fit for review “as it can be wholly resolved by an analysis of the Sunshine Act, the Act‘s legislative history, and its construction by relevant case law“).
Relying on Lujan v. Nat‘l Wildlife Fed‘n, 497 U.S. 871 (1990), the intervenors also argue that the appellants’ challenge is not ripe because the CWA does not explicitly
[R]espondent cannot seek wholesale improvement of this program by court decree . . . Under the terms of the APA, respondent must direct its attack against some particular “agency action” that causes it harm. Some statutes permit broad regulations to serve as the “agency action,” and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action “ripe” for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant‘s situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the appellant to adjust his conduct immediately. Such agency action is “ripe” for review at once, whether or not explicit statutory review apart from the APA is provided.)
Id. at 891 (internal citations omitted; second emphasis added). But the appellants, unlike the National Wildlife Federation in Lujan, do not seek “wholesale” revision of the Corps’ permitting framework. Rather, they challenge a specific agency action—i.e., the Corps’ issuance of NWPs authorizing certain discharges of dredged and fill material—that requires them to adjust their conduct immediately, as discussed above. And “[s]uch agency action,” the Court observed in Lujan, “is ‘ripe’ for review at once, whether or not explicit statutory review apart from the APA is provided.” Id. Accordingly, “[i]n light of the wholly legal and facial nature of the present challenge,” the appellants’ APA claim is fit for judicial review now. Mountain States Tel. & Tel. Co., 939 F.2d at 1041.
Turning to the hardship prong of the ripeness test, we conclude that this requirement is also satisfied. Any institutional interest in postponing review must be balanced against the resultant hardship to the appellants in order to determine whether immediate review is proper. See Consol. Rail Corp. v. United States, 896 F.2d 574, 577 (D.C.Cir.1990) (“If we have doubts about the fitness of the issue for judicial resolution, then we balance the institutional interests in postponing review against the hardship to the parties that will result from delay.“). On the one hand, no institutional interest of the court supports postponement. See Mountain States Tel. & Tel. Co., 939 F.2d at 1041. The administrative process has run its course, resulting in general permits and conditions that the appellants have challenged as arbitrary, capricious and contrary to law under the APA. Their success depends on the administrative record and the statutory parameters of the Corps’ permitting authority under the CWA. On the other hand, we cannot agree with the Corps that the appellants face no hardship as a result of postponed judicial review because, as it would have us believe, legal consequences flow only from “a collective permitting decision on a specific project” and consequently any alleged harm is purely “hypothetical at this time.” Appel-
C.
For “any rule subject” to the RFA, “a small entity that is adversely affected or aggrieved by final agency action is entitled to judicial review of agency compliance with the requirements of sections 601, 604, 605(b), 608(b), and 610.”
The NWPs, the Corps says, do not constitute a “rule” subject to review under section 604 of the RFA for two reasons, both of which hinge on the RFA‘s definition of a rule as “any rule for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of [the APA], or any other law.”
Each NWP easily fits within the APA‘s definition of “rule.” This is so because each NWP, which authorizes a permittee to discharge dredged and fill material (and thereby does not allow others without an individual permit), is a legal prescription of general and prospective applicability which the Corps has issued to implement the permitting authority the Congress entrusted to it in section 404 of the CWA. See
Relying again on section 601(2) of the RFA, the Corps asserts that the NWPs are not rules because it did not issue any notice of proposed rulemaking pursuant to APA‘s rulemaking provision,
Despite our declarations that “[o]nly ‘legislative rules’ have the force and effect of law” and “[a] ‘legislative rule’ is one the agency has duly promulgated in compliance with the procedures laid down in the statute or in the Administrative Procedure Act,” Appalachian Power Co., 208 F.3d at 1020, we have not hesitated to consider an agency pronouncement issued without meeting required APA procedures a rule. See id. at 1020 n. 11 (“We have also used ‘legislative rule’ to refer to rules the agency should have, but did not, promulgate through notice and comment rulemaking.“) (citing Am. Mining Cong. v. Dep‘t of Labor, 995 F.2d 1106, 1110 (D.C.Cir.1993)). While an “agency‘s characterization of an official statement as binding or nonbinding has been given some weight, of far greater importance is the language used in the statement itself.” Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 537-38 (D.C.Cir.1986) (citation omitted; emphasis added). As we said in Appalachian Power Co.:
If an agency . . . treats the document in the same manner as it treats a legislative rule, if it bases enforcement actions on the policies or interpretations formulated in the document, if it leads private parties or State permitting authorities to believe that it will declare permits invalid unless they comply with the terms of the document, then the agency‘s document is for all practical purposes “binding.”
208 F.3d at 1021. The NWPs authorize certain discharges of dredged and fill material and in so doing “grant rights, impose obligations, [and] produce other significant effects on private interests.” Batterton, 648 F.2d at 701-02; see also Appalachian Power Co., 208 F.3d at 1021.
The intervenors, for their part, contend that “even if an NWP could be considered a ‘rule’ within the meaning of the RFA, [the appellants‘] claims here do not challenge final agency action, . . . and thus are not cognizable under the RFA‘s judicial review provision.” Intervenors’ Br. at 28 (citing
Although both the Corps and the intervenors appear not to question the ripeness of the appellants’ RFA claim, we briefly explain why we think the RFA claim is ripe. The Supreme Court has admonished that ” ‘procedural rights’ are special,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n. 7 (1992), and that “a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper.” Ohio Forestry Ass‘n, Inc. v. Sierra Club, 523 U.S. 726, 737 (1998). The RFA, similar to NEPA in the environmental sphere, requires an agency to evaluate the adverse economic effects of and less harmful alternatives to its actions before taking them. See Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 114 (1st Cir.1997) (“[A] useful parallel can be drawn between RFA
D.
Finally, we address the Corps’ assertion that the appellants lack prudential standing to maintain their NEPA challenge.5 Three propositions bearing on federal court jurisdiction are by now obvious: Want of jurisdiction robs a federal court of the power to act, see, e.g., B & J Oil & Gas v. FERC, 353 F.3d 71, 74-75 (D.C.Cir.2004), standing is a prerequisite to jurisdiction, see, e.g., Crow Creek Sioux Tribe v. Brownlee, 331 F.3d 912, 915-16 (D.C.Cir.2003), and the appellants bear the burden of establishing their standing to sue, see, e.g., KERM, Inc. v. FCC, 353 F.3d 57, 59 (D.C.Cir.2004). A fourth is now equally manifest in our Circuit. When a complainant‘s standing is not “self-evident,” he must “supplement the record to the extent necessary to explain and substantiate [his] entitlement to judicial review.” Sierra Club v. EPA, 292 F.3d 895, 900 (D.C.Cir.2002). That is, in Sierra Club, we put on notice all complainants whose standing is unclear that they must prove their standing by a “substantial probability,” id. at 899, and that they should do so “by the submission of [their] arguments and any affidavits or other evidence appurtenant thereto at the first appropriate point in the review proceeding,” id. at 900. Our Sierra Club rule is rooted in notions of fairness and judicial economy not difficult to grasp: As the complainant is ordinarily in possession of the facts on which he relies for standing, making those facts manifest at the outset saves the parties and the court from squandering time and energy, either by “flail[ing] at the unknown in an attempt to prove the negative” or by needlessly wrangling over an uncontested point. Id. at 901.
We think that it is fairly “self-evident” that the various appellants as representatives of the regulated parties satis-
The Corps and the intervenors agree with our conclusion but for reasons with which we do not agree. The Corps offers that the appellants do not fall within NEPA‘s zone-of-interest because their claims are more likely to frustrate than effectuate NEPA‘s purposes, their asserted injury is “purely economic” and their interest is merely “in avoiding ‘unnecessary delays, regulatory uncertainty, and considerable cost to [their] members.’ ” Appellees’ Br. at 35-36 (quoting NSSGA‘s complaint; alteration in Appellees’ Br.). The intervenors similarly assert that the appellants do not constitute “an appropriate representative of the environmental interests underlying the statute.” Intervenors’ Br. at 28 n.14. The premise underlying this reasoning is flawed—commercial entities are not per se excluded from NEPA‘s zone-of-interest.
“[A]n allegation of injury to monetary interest alone may not,” of course, “bring a party within the zone of environmental interests as contemplated by NEPA for purposes of standing.” Realty Income Trust v. Eckerd, 564 F.2d 447, 452 (D.C.Cir.1977). But we have often observed that “a party is not precluded from asserting cognizable injury to environmental values because his ‘real’ or ‘obvious’ interest may be viewed as monetary” or ” ‘disqualified’ from asserting a legal claim under NEPA because the ‘impetus’ behind the NEPA claim may be economic.” Id.; see also Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1236 (D.C.Cir.1996). “[P]arties motivated by purely commercial interests routinely satisfy the zone of interests test,” we have said, as “[c]ongruence of interests, rather than identity of interests, is the benchmark.” Amgen, Inc. v. Smith, 357 F.3d 103, 109 (D.C.Cir.2004). We have even observed that “it surely does not square with the broad Congressional purpose in NEPA of assuring that environmental values would be adequately and pervasively considered in federal decision-making for private parties who may not be ‘pure of heart’ to be excluded from vindicating the Act.” Realty Income Trust, 564 F.2d at 453.
[D]ue to the inflexible one-half acre rule, the incentive for NPPC members to narrowly tailor their projects so as to fit under the “minimal effects” acreage cap has been significantly reduced. In many cases, under the three-acre rule previously enforced by the Corps, members would scale back their projects in order to satisfy the “minimal effect” standard. But with the one-half acre rule, it is virtually impossible for NPPC members to do so because very few projects can fit within the one-half acre cap. Thus, the imagined environmental benefit to be achieved by the Corps’ inflexible one-half acre rule is unlikely to be realized.
J.A. 128. In their brief, the appellants characterize this paragraph as supporting the proposition that “[t]he restrictions in the [permits] and the delays in processing times mean that NPPC members cannot provide [their] important public services in a timely manner, increasing flood risk for the communities that NPPC members serve, posing a significant threat to people and property.” Appellants’ Br. at 13 (citing J.A. 128, 18).
NPPC‘s theory of prudential standing, so far as we can tell, is rooted in the contention that the Corps’ failure to issue more lenient NWPs prevents NPPC from improving the environment. We need not conclude that NPPC‘s theory fails to “square with the broad Congressional purpose in NEPA of assuring that environmental values would be adequately and pervasively considered in federal decision-making.” Realty Income Trust, 564 F.2d at 453. Even if we accept that it may be possible for NPPC‘s members to suffer a procedural injury sufficient to bring them within NEPA‘s zone-of-interest, nowhere does NPPC point to any evidence “supporting the proposition that there is a ‘substantial probability’ of ‘actual or imminent’ injury to its members arising from” the Corps’ failure to conduct an environmental analysis (i.e., a PEIS) of permits it did not issue but should have. Sierra Club, 292 F.3d at 902 (quoting & citing Am. Petroleum Inst. v. EPA, 216 F.3d 50, 63 (D.C.Cir.2000)). Tonsing‘s declaration offers plenty of speculation: Paragraph eight speaks of its members’ “reduced” incentives in attempting to bring their projects within the parameters of the general
Because we conclude that the appellants have not demonstrated a “substantial probability” that they fall within NEPA‘s zone of interest, we affirm the dismissal of this claim. In view of this holding, we do not reach the NEPA ripeness issue. See N.J. Television Corp. v. FCC, 393 F.3d 219, 221 (D.C.Cir.2004) (“The priority for jurisdictional issues . . . doesn‘t control the sequence in which we resolve non-merits issues that prevent us from reaching the merits.” (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85 (1999); Grand Council of the Crees v. FERC, 198 F.3d 950, 954 (D.C.Cir.2000))); see also Galvan v. Fed. Prison Indus., Inc., 199 F.3d 461, 463 (D.C.Cir.1999) (“There is an array of nonmerits questions that we may decide in any order.“).
III.
For the foregoing reasons, the district court‘s grant of summary judgment to the Corps on the appellants’ APA and RFA claims is reversed and remanded for further proceedings consistent with this opinion. The dismissal of the appellants’ NEPA claim is affirmed.
So ordered.