economic injury, they may still bring this suit based on their "procedural injury." This argument is based on the Supreme Court's statement in Defenders that a plaintiff who has "been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability." 504 U.S. at 572 n.7. While it is certainly true that NEPA gives rise to a procedural right, City of Los Angeles v. NHSTA, 286 U.S. App. D.C. 78, 912 F.2d 478, 492 (D.C. Cir. 1990), the more difficult question is whether the procedural injury that flows from that right is sufficient to confer standing.
The precise meaning of the Supreme Court's footnote 7 in Defenders has been a subject of controversy since the opinion issued in 1992. See e.g. Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 Mich. L. Rev. 163, 206 (1992) ("On the question of redressability, there was no majority for the Court. Three justices saw no problem with redressability; two Justices refused to speak to the issue; four Justices found a constitutional defect. Because no majority spoke, the Lujan case has little precedential value."); Brian J. Gatchel, Informational and Procedural Standing After Lujan v. Defenders of Wildlife, 11 J. Land Use & Envtl. L. 75, 99 (1995) (providing a comprehensive discussion of the issue and arguing that "Defenders provides little guidance, other than the language in the footnote itself, for the more standard situations where plaintiffs complain of violations of procedural rights"). Just recently however, in Florida Audubon Society et al. v. Benston, 94 F.3d 658, slip. op. at 10 (D.C. Cir. 1996) ("Florida Audubon "), our Court of Appeals spoke to the precise issue, and that case must, of course, guide our analysis.
In Florida Audubon, the Treasury Department authorized a tax credit for the use of a particular alternative fuel additive known as "ETBE."
Id. at 3. The Secretary did not prepare an Environmental Impact Statement, and appellants sued to permanently enjoin enforcement of the rule allowing the tax credit and to require the Secretary to prepare an EIS. Appellants argued that they suffered injury-in-fact because the tax credit would damage the environment by increasing the market for ETBE, thereby stimulating production of the corn, sugar cane and sugar beets necessary to make the ethanol from which ETBE is derived. This increased crop production would, in turn, necessarily result in more agricultural cultivation, with its accompanying environmental dangers, in regions that border wildlife areas appellants used and enjoyed. Id. at 4.
Our Court of Appeals rejected these arguments, and held that the appellants lacked standing because they had demonstrated "neither a personal injury nor an injury fairly traceable to the challenged acts of the Secretary." Id. at 3. Turning to the appellants' alleged "procedural injury" (the Secretary's failure to prepare an EIS), the Court stated that to sue for a "procedural violation" of a statute, a plaintiff must show that the government act "performed without the procedure in question will cause a distinct risk to a particularized interest of the plaintiff." Id. at 7. Thus, the mere violation of a procedural requirement "does not permit any and all persons to sue to enforce the requirement." Id. More specifically, when the alleged procedural violation is the government's failure to prepare an EIS, the Court continued, standing is based on "whether appellants have shown a particularized environmental interest of theirs that will suffer demonstrably increased risk." Id. at 10.
Under that rather stringent standard, the Court of Appeals concluded that appellants lacked standing because they premised their claims of environmental injury and causation "on a lengthy chain of conjecture." Id. at 11. In other words, the appellants failed to show how the alleged increased crop production would cause a "demonstrably increased risk of serious environmental harm," id. at 13, that would actually threaten their "particular interests." Id.
Applying the principles of Florida Audubon to this case, it is clear that Plaintiffs do not establish standing on the basis of their procedural rights under NEPA and NFMA. Procedural violations alone of those statutes are insufficient to grant Plaintiffs standing. Id. at 7. More to the point, Plaintiffs cannot show the requisite "demonstrably increased risk of environmental harm," id. at 13, that actually threatens their particular interest.
Plaintiffs' claimed environmental interest is a healthy forest that will "provide for current and sustained timber production." Plt. Brf. at 44. Their alleged injury is that the Interim Guidelines will adversely affect forest health because they will cause disease and insect infestations and inadequately control forest fires. See Complaint PP 5, 6, 7, 8, 12. Even assuming that such environmental injury is "particularized" enough under the Florida Audubon standard, however, Plaintiffs have clearly failed to show that the Interim Guidelines will cause a "demonstrably increased risk of environmental harm." Indeed, it is far from clear that the Interim Guidelines will damage the environment at all, let alone that they will cause a "demonstrably increased risk" of environmental harm. The record shows that the Interim Guidelines will have a number of positive effects: (1) enhance the viability of the spotted owl population, see AR at 357-60, 619, 627-29; (2) provide for more "late-successional" (i.e. old growth) habitats, which will benefit numerous species associated with older forests, see AR at 412-414; (3) give more benefits to the watershed, soils and fisheries resource, AR at 417; and (4) provide higher visual quality, AR at 419. Furthermore, the Forest Service has concluded, contrary to Plaintiffs' contentions, that the Interim Guidelines will reduce, not increase, the risk of wildfires. AR at 620-621.
Moreover, Plaintiffs' alleged environmental harm depends largely upon speculations about the natural course of forest development. For example, Plaintiffs' argument that the Interim Guidelines will cause greater disease in the forest assumes a number of causal links and ignores the fact that greater disease could occur in the forest even without the Interim Guidelines in place. Our Court of Appeals has set forth a stringent standard: the Government's action must lead to a "demonstrably increased risk," id. at 13 (emphasis added), of environmental harm. An EIS requirement does not
provide individuals who can demonstrate no more than "probable cause" of some risk of environmental injury from federal agency action a means of forcing the agency to discover whether its action, in fact, poses any actual risk of causing such harm.
Id. at 17 n.5
The Court concludes that Plaintiffs do not meet our Circuit's recently announced test in Florida Audubon. While the Plaintiffs undoubtedly have procedural rights, they have failed to show a "particularized environmental interest of theirs that will suffer demonstrably increased risk." Id. at 10.
Accordingly, Plaintiffs have not established the "irreducible constitutional minimum," Defenders, 504 U.S. at 558, necessary for standing, and Plaintiffs are not proper parties before the Court. The Government's Motion for Summary Judgment must, therefore, be granted for that reason.
B. The Prudential "Zone of Interest" Test
Even assuming that Plaintiffs could establish constitutional standing, the Court also concludes that they lack standing under NEPA under the Supreme Court's "zone of interest" test. A plaintiff seeking judicial review of an agency action under the APA "must establish that the injury he complains of . . . falls within the 'zone of interests' sought to be protected by the statutory provision whose violation forms the legal basis for his complaint." Lujan v. National Wildlife Federation, 497 U.S. 871, 883, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990) (citing Clarke v. Securities Industry Ass'n., 479 U.S. 388, 396-97, 93 L. Ed. 2d 757, 107 S. Ct. 750 (1987)). The test, established by the Supreme Court in Association of Data Processing, 397 U.S. at 153, requires that we ask whether a would-be challenger of agency action is pursuing an interest "arguably within the zone of interests" Congress intended either to regulate or to protect. Id. at 153. The purpose of the zone of interest inquiry is "to exclude those plaintiffs whose suits are more likely to frustrate than to further statutory objectives." Clarke, 479 U.S. at 397 n.12. A plaintiff whose interests are "marginally related to or inconsistent with the purposes implicit in the statute" lacks standing to sue. Id. at 399. For the reasons discussed below, the Courts finds that Plaintiffs fall outside NEPA's zone of interests.
NEPA was enacted "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." 42 U.S.C. § 4321. The Supreme Court has defined NEPA's zone of interest as the "physical environment -- the world around us so to speak." Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772, 75 L. Ed. 2d 534, 103 S. Ct. 1556 (1983). Thus, our Court of Appeals has said that to have standing under NEPA, a plaintiff must allege an "environmental harm." Competitive Enterprise Institute v. NHTSA, 284 U.S. App. D.C. 1, 901 F.2d 107, 124 (D.C. Cir. 1990) (standing denied under NEPA's zone of interest test because petitioners' "real concern [was] receiving and disseminating adequate information about highway safety as it may be affected by fuel economy standards, not with receiving and disseminating information on the environmental consequences of those standards.").
A plaintiff who asserts solely economic injuries does not have standing under NEPA. Mountain States, slip. op. at 11 (NEPA's zone of interests does "not include purely monetary interests, such as the competitive effect that a construction project might have on plaintiff's commercial enterprise"); see also Realty Income Trust v. Eckerd, 183 U.S. App. D.C. 426, 564 F.2d 447, 452 (D.C. Cir. 1977) ("Certainly an allegation of injury to monetary interest alone may not bring a party within the zone of environmental interests as contemplated by NEPA."); Trinity County Concerned Citizens et al. v. Babbitt, Civ. Action No. 92-1194, 1993 WL 650393, at *6 (D.D.C. Sept. 20, 1993) ("economic injuries are not within NEPA's zone of interests").
Nonetheless, a plaintiff's economic interests "do not blight his qualifying ones, such as aesthetic and environmental interests in the quality of public lands." Mountain States, slip op. at 11.
The decision of our Court of Appeals in Hazardous Waste Treatment Council v. Thomas, 280 U.S. App. D.C. 296, 885 F.2d 918 (D.C. Cir. 1989) ("HWTC IV ") guides our analysis. In HWTC IV, an organization of companies that treated hazardous waste and then marketed products derived from that waste sued under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-2992k, to force the EPA to adopt stricter environmental regulations for other companies. The Court of Appeals held that the organization failed the zone of interest test because its members' interests were not "systematically" aligned with those of the statute. HWTC IV, 885 F.2d at 924. The court noted that the treatment firms' interests were "'more likely to frustrate than further statutory objectives.'" Id. at 925 (quoting Clarke, 479 U.S. at 397 n.12). Since the
ultimate interest of those firms [was] in making money, . . . there [was] not the slightest reason to think that [their] interest in getting more revenue by increasing the demand for their particular treatment services [would] serve [the statutes'] purpose of protecting health and the environment.
885 F.2d at 924. Their interest, the court concluded, was "to pursue regulation that encourages the alternatives with the greatest profit potential [for them] at the expense of others (say, recycling or incineration) that might be less profitable." Id. at 924-25. Because this interest was not "systematically" aligned with the statue's purpose of protecting health and the environment, the court concluded that the companies lacked standing.
HWTC IV directly governs this case. As in HWTC IV, the Plaintiffs here are more "likely to frustrate than further statutory objectives." Clarke, 497 U.S. at 397 n.12. Plaintiffs' ultimate interest is in securing the adoption of a Forest Service plan that maximizes the number of trees they are allowed to harvest from the forest. See e.g., Complaint PP 7, 8, 11, 12 (alleging that the CASPO decision has had adverse effects on the availability of timber "and will undermine the economic and social fabric of local communities"). Under the clear holding of HWTC IV, that interest is not "systematically" aligned with NEPA's purpose, to "prevent or eliminate damage to the environment." 42 U.S.C. § 4321.
While Plaintiffs also assert that the Interim Guidelines will adversely affect forest health, see e.g., Complaint PP 5, 6, 7, 8, 12 (alleging that, inter alia, "disease and insect infestations and catastrophic fires are inadequately controlled" under the Interim Guidelines), their alleged concern for the health of the forest is no more credible than the waste treatment companies' concern for protecting health and the environment alleged in HWTC IV. Indeed, Plaintiffs admit that their environmental interest in maintaining healthy forests is to "provide for current and sustained timber production." Plt. Brf. at 44. Plaintiffs' interests must be "systematically, not fortuitously" or "accidentally" aligned with those that Congress sought to protect." HWTC IV, 855 F.2d at 924-25.
Moreover, Plaintiffs have pointed to nothing that differentiates them from the plaintiffs in Trinity County Concerned Citizens, supra, a case from a district court in this circuit factually similar to this case, which held that the plaintiffs lacked standing under NEPA.
In Trinity County, supra, private organizations and individuals alleging economic injuries from logging reductions challenged under NEPA a federal decision to designate critical habitat for the northern spotted owl. Plaintiffs also claimed, as they do here, that in addition to economic injuries, the agency action would "harm the health of the forest by subjecting it to an increased risk of fire," thereby causing environmental injury. 1993 WL 650393 at *5. Judge Norma Holloway Johnson rejected this argument, however, finding "that plaintiffs' attempt to articulate concern for the health of the forest is in fact no more than an economic injury in disguise." Id. at *6. The court ruled that the alleged harm fell outside NEPA's zone of interests and that plaintiffs therefore lacked standing.
In summary, the Court concludes that Plaintiffs lack standing under NEPA's prudential zone of interest test. The timber companies have "interests that [are] fundamentally inconsistent with the interests Congress had in mind when it enacted the statute." HWTC IV, 885 F.2d at 927. Our Circuit's decision in HWTC IV is clear, controlling precedent, and Trinity County is directly on point and persuasively reasoned. The timber industry is a "peculiarly unsuitable proxy for those whom Congress intended to protect, and is therefore not within the zone of interests." HWTC IV, 885 F.2d at 927 (emphasis in original).
For the reasons discussed above, the Court concludes that Plaintiffs lack standing to bring this suit under both the constitutional and prudential zone of interest tests. Accordingly, Defendants' Motion for Summary Judgment is granted.
An Order will issue with this Opinion.
Aug. 27, 1996
U. S. District Judge
This matter is before the Court on the parties' Cross Motions for Summary Judgment. For the reasons stated in the Court's Memorandum Opinion, it is this 27th day of August, 1996 hereby
ORDERED that Plaintiffs' Motion for Summary Judgment is denied ; and it is further
ORDERED that Defendants' Motion for Summary Judgment is granted ; and it is further
ORDERED that Defendant-Intervenor's Motion for Summary Judgment is granted.
U. S. District Judge