understanding of standing with cases such as U.S. v. Richardson). notwithstanding its earlier ruling on plaintiffs' claim of informational standing, see FOET v. Watkins, 731 F. Supp. at 532, rendered before the court of appeals decided Germplasm and thus without the benefit of the majority's analysis of case law on the concept, this Court finds plaintiffs' claim of informational injury to be virtually indistinguishable from an ideological interest in the problem of global warming that, without more, is insufficient to confer standing.
Plaintiffs argue that the Germplasm majority's criticism of informational standing is merely dicta, and that informational 'standing, as generally described in the Competitive Enterprise Institute opinion, remains the law of this circuit. See 901 F.2d at 122-24. This Court believes that the most recent expression on the subject from the court of appeals is not so easily ignored, and that the effect of that expression is to indicate that the court of appeals no longer regards informational standing alone under NEPA as a sound concept. See Germplasm, 943 F.2d at 84 ("Despite the general statements in our decisions, . . . we have never sustained an organization's standing in a NEPA case solely on the basis of 'informational injury.'") Eliminating informational injury as a basis for standing in NEPA cases will not render unreviewable agency fidelity to NEPA's commands. Rather, "in the NEPA context, 'the creation of a risk that serious environmental impacts will be overlooked' is sufficient to establish the injury necessary for standing, 'provided this injury is alleged by a plaintiff that . . . may be expected to suffer whatever environmental consequences the [decision] may have.'" City of Los Angeles, 912 F.2d at 483 (quoting City of Davis v. Coleman, 521 F.2d at 671). Informational injury simply does not qualify as an "environmental consequence" of an agency's failure to comply with NEPA, and thus is not a distinct and palpable injury for standing purposes under that statute.
Accordingly, because plaintiffs' First Amended Complaint and their Opposition to plaintiffs' Motion for Summary Judgment claim standing solely on the basis of informational injury, this Court finds that plaintiffs lack standing under the most recent analyses of standing doctrine by the Supreme Court and our court of appeals.
II. Plaintiffs' Motion to Amend their Complaint
Approximately two months after the hearing on defendants' Motion for Summary Judgment, plaintiffs filed with the Court a Motion for Leave to File Second Amended Complaint ("Motion to Amend"). Plaintiffs seek to amend their complaint in three respects. First, they seek to add an additional basis for plaintiff Jeremy Rifkin's standing, which they raised at oral argument on December 10, 1992, and in a post-hearing memorandum. Second, they seek to conform their complaint to statements made in their Opposition brief, that they were withdrawing their challenge to four of the Department of Energy's (DOE) NEPA documents. Third, they seek to revise the complaint to clarify their challenge to defendants' compliance with NEPA with regard to the DOE's alleged failure to supplement a 1979 Final EIS for the Naval Petroleum Reserve No. 1, and with regard to the USDA's 1982 National Conservation Program. Defendants' have opposed the Motion to Amend, and separately moved for partial summary judgment on these issues in the event the Court should permit the amendment. Both parties have filed responsive briefs addressing the propriety of allowing the filing of a Second Amended Complaint, and the merits of the additional claims contained therein.
Under Fed. R. Civ. P. 15(a), a party seeking to amend a pleading after the time prescribed for amendment as a matter of course may do so only by leave of the court or by written consent of the adverse party. The Rule provides, however, that "leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Interpreting this passage, the Supreme Court has declared that futility of amendment is one reason for a district court to withhold leave to amend. See Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); see also Key Airlines, Inc. v. National Mediation Bd., 745 F. Supp. 749, 751 (D.D.C. 1990) (Court has discretion to refuse leave to amend where the added claim is wholly without merit); Halpert v. Wertheim & Co., Inc., 81 F.R.D. 734, 735 (S.D.N.Y. 1979) (Court may deny leave to amend if the complaint, as amended, would not survive a motion to dismiss). Defendants urge the Court to deny plaintiffs' Motion to Amend primarily because the amended standing and NEPA claims would be futile. The Court is inclined to agree.
The Second Amended Complaint adds a standing claim on the part of plaintiff Jeremy Rifkin that rests on the following allegation of direct environmental injury from defendants' alleged failure to comply with NEPA:
. . . During the past several years, plaintiff Rifkin has vacationed each summer for approximately one month to six weeks on the eastern seashore in locations near Rockport and Gloucester, Massachusetts. Rifkin customarily arranges to rent a cottage for that purpose. He thus has spent many days enjoying the beach and the water over the past several summers. Rifkin and his wife expect to rent a cottage in Emerald Beach, North Carolina this June, and they expect to customarily spend a month there each summer in future years.
. . . Plaintiff Rifkin's use and enjoyment of the environments described above is directly threatened by the effects of global warming. One of the most certain effects of global warming is a rise in sea level, although the rate of potential increase has not yet been established. Inasmuch as the beaches used by Rifkin are very flat and shallow areas, even a very modest rise in sea level could have devastating effects on them.
Pls.' Second Amended Complt. PP20(a), 20(b). Mr. Rifkin further contends that defendants' failure to take adequate consideration of global warming into account in the challenged NEPA documents "create risks that decisionmakers will overlook the impact of those programs and actions on global warming." Id. P20(c). As a consequence, the challenged decisions "increase the likelihood that Rifkin's use and enjoyment of the eastern seashore beaches described above will be curtailed or eliminated by the effects of global warming." Id.
There is no question that injury to an individual's recreational use or aesthetic enjoyment of the environment is cognizable for standing under NEPA. See Lujan v. National Wildlife Fed'n, 110 S. Ct. at 3187; Sierra Club v. Morton, 405 U.S. at 738. Nor does this Court doubt the potentially serious consequences of global warming, or that such consequences may fall within the scope of agency consideration pursuant to NEPA. See City of Los Angeles, 912 F.2d at 492. Rather, the question is whether Mr. Rifkin has shown himself to have "a direct stake in the outcome" of the 42 federal actions and programs he seeks to challenge, to invoke the power of this Court to review those actions pursuant to the NEPA statute. Sierra Club v. Morton, 405 U.S. at 740.
The Court finds that the allegations of injury set forth above fall short of that showing for two reasons. First, Mr. Rifkin's allegations of environmental harm to the beaches he expects to use lack "'a sufficient geographical nexus to the site of the challenged project that he may be expected to suffer whatever environmental consequences the project may have." City of Los Angeles, 912 F.2d at 492 (quoting City of Davis v. Coleman, 521 F.2d at 671) (emphasis added). Moreover, his claim of environmental injury rests merely upon the assertion that he "expects" to rent a cottage in Emerald Beach, North Carolina in June 1992, and that he "expects" to do so in future years. This allegation is a far cry from the situation of the NRDC member whose allegations of injury our court of appeals found sufficient to confer standing in City of Los Angeles. See id. at 494 (member-affiant regularly used lands in the vicinity of the challenged action for recreational purposes and gained his livelihood by farming directly from the affected geographic area).
Second, Mr. Rifkin has failed to show that "the alleged injury is 'fairly traceable' to the proposed action. Id. at 495. In fact, Mr. Rifkin has failed to relate the environmental harm he claims he may suffer to any of the 42 challenged agency actions. On a motion for summary judgment, it is not for the Court to presume causal connections between the harm alleged and the particular actions challenged. See Lujan v. National Wildlife Fed'n, 110 S. Ct. at 3189. Moreover, the Supreme Court has made it abundantly clear that a litigant may no longer obtain across-the-board, nationwide correction of agency actions under the APA simply because his use of one locality may be adversely affected. See id. at 3190-91; see also Conservation Law Foundation v. Reilly, 950 F.2d 38, 43 (1st Cir. 1991) (holding that a plaintiff has no standing to challenge, under CERCLA's citizen-suit provision, each and every federal facility in a nationwide program where it has "ties only to a few federal facilities").
In short, under Mr. Rifkin's allegations of environmental injury, "the standing requirement [in NEPA cases] would, as a practical matter, [be] eliminated for anyone with the wit to shout 'global warming' in a crowded courthouse." City of Los Angeles, 912 F.2d at 484 (D.H. Ginsburg, J., dissenting). Notwithstanding the seriousness of the phenomenon, there is no "global warming" exception to the standing requirements of Article III or the APA. Because Mr. Rifkin's claim of direct environmental injury, as set forth in plaintiffs' Second Amended Complaint, would not pass muster to establish his standing to obtain judicial review of the agency actions he seeks to challenge,
granting plaintiffs leave to amend their complaint would be futile, and their Motion to Amend will accordingly be denied.
For the reasons set forth above, the Court finds that plaintiffs have failed to establish their standing to challenge defendants' alleged failure to comply with NEPA. Because the Court finds that plaintiffs lack standing, it is unnecessary to consider the other issues raised in defendants' Motion for Summary Judgment. The Court will, therefore, enter an Order granting defendants' Motion for Summary Judgment, denying plaintiffs' Motion for Leave to File Second Amended Complaint, and dismissing the case. The Court's ruling on the Motion to Amend moots defendants' Motion for Partial Summary Judgment.
GEORGE H. REVERCOMB
UNITED STATES DISTRICT JUDGE
ORDER - April 29, 1992, Filed
For the reasons set forth in the Court's Memorandum & Opinion,
issued today, it is
ORDERED, that defendants' Motion for Summary Judgment is GRANTED; and, it is
FURTHER ORDERED, that plaintiffs' Motion for Leave to File Second Amended Complaint is DENIED; and, it is
FURTHER ORDERED, that this case is DISMISSED for lack of standing.
GEORGE H. REVERCOMB
UNITED STATES DISTRICT JUDGE