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Appalachian Voices v. Bodman

November 10, 2008

APPALACHIAN VOICES ET AL., PLAINTIFFS,
v.
SAMUEL BODMAN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENERGY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos.: 3, 18, 29

MEMORANDUM OPINION

DENYING AS MOOT THE DEFENDANTS'MOTION TO DISMISS THE PLAINTIFFS'COMPLAINT; GRANTING THE DEFENDANTS'MOTION TO DISMISS THE PLAINTIFFS'AMENDED COMPLAINT; DENYING AS MOOT THE PLAINTIFFS'MOTION FOR A PRELIMINARY INJUNCTION

I.INTRODUCTION

This matter is before the court on the plaintiffs' motion for a preliminary injunction and the defendants' motion to dismiss the complaint for lack of subject matter jurisdiction. The plaintiffs are nonprofit organizations located in North Carolina dedicated to "solv[ing] the environmental problems having the greatest impact on the central and southern Appalachian Mountains" and "rais[ing] public awareness about the air quality crisis in the Smoky Mountains, the Greater Appalachian region, and nationwide." The defendants, the Department of Treasury ("DOT") and the Department of Energy ("DOE"), are responsible for administering programs established by the Energy Policy Act of 2005, Pub. L. No. 109-58 (2005), that provide tax credits to companies that use clean coal technology. The plaintiffs have brought suit under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq., and the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., alleging that the defendants erroneously failed to consider the environmental consequences of the tax credit programs and asking the court to grant a preliminary injunction suspending the programs. The defendants assert that the plaintiffs lack standing and have failed to meet the standard required for injunctive relief. Because the filing of the plaintiffs' amended complaint mooted the defendants' motion to dismiss the original complaint, the court denies as moot that motion. And because the court determines that the plaintiffs lack standing, the court grants the defendants' motion to dismiss the amended complaint and denies as moot the plaintiffs' motion for a preliminary injunction.

II. FACTUAL & PROCEDURAL BACKGROUND

The Energy Policy Act of 2005 provides for the allocation of up to $1.65 billion in tax credits for investment in clean coal facilities. Opp'n to Pls.' Mot. for Prelim. Inj. ("Defs.' Prelim. Inj. Opp'n") at 2-3 (citing Pub. L. No. 109-58 at § 1307, 119 Stat. 594 at 999-1006 (2005)). Specifically, the Act adds two new investment tax credits to the Internal Revenue Code: one for qualifying advanced coal projects, 26 U.S.C. § 48A, and one for qualifying gasification*fn1 projects, 26 U.S.C. § 48B. DOT, in consultation with DOE, is responsible for administering the tax credit programs. 26 U.S.C. §§ 48A(d)(1), 48B(d)(1). Only if DOE, after reviewing project applications, "provides a certification of feasibility and consistency with energy policy goals ('DOE certification') for the project" will the Internal Revenue Service ("IRS") allocate the tax credits. IRS Not. 2006-24 at 4.01 (Mar. 13, 2006). Recipients of tax credits under 26 U.S.C. §§ 48A and 48B have five years and seven years, respectively, to place their project into service. 26 U.S.C. § 48A(d)(2)(E); IRS Not. 2006-25 at § 4.02(10) (Mar. 13, 2006). If a recipient fails to meet the conditions required to place its project into service within that time period -- for example, if it fails to receive all required federal and state environmental approvals -- it forfeits the tax credit. IRS Not. 2006-24 at App. A; IRS Not. 2006-25 at App. A.

In the 2006 round of tax credits, IRS allocated $1 billion in credits to nine clean coal projects: the Duke Energy Cliffside Modernization Project ("Cliffside"), located in North Carolina, and eight other projects in various locations around the country. Mot. to Dismiss Compl. ("Defs.' NEPA Mot.") at 5-6.*fn2 None of the clean coal projects has been placed into service yet, but on January 29, 2008, Duke Energy obtained a construction permit to begin building the Cliffside plant. Reply in Support of Mot. for Prelim. Inj. ("Pls.' Prelim. Inj. Reply") at 16. On March 3, 2008, the plaintiffs filed their complaint and moved for a preliminary injunction, claiming that the defendants violated NEPA and the APA by failing to conduct an Environmental Impact Study ("EIS") evaluating the environmental impacts of the tax credit programs. See generally Compl.; Pls.' Prelim. Inj. Mot. The plaintiffs then filed an amended complaint adding to its NEPA claim a claim under the ESA, alleging that the defendants erroneously failed to consult with the U.S. Fish and Wildlife Service and the U.S. National Marine Fisheries Service before allocating the tax credits. Am. Compl. ¶ 2. The defendants opposed the preliminary injunction motion and moved to dismiss the amended complaint, maintaining that the plaintiffs lack standing to sue because they have failed to establish injury-in-fact, traceability and redressability. Defs.' Prelim. Inj. Opp'n at 11-21; Defs.' NEPA Mot. at 7-21; Mot. to Dismiss Am. Compl. ("Defs.' ESA Mot.") at 8-20.

III. ANALYSIS

A. Legal Standard for Standing

Article III of the Constitution limits the jurisdiction of federal courts to cases or controversies. U.S. CONST. art. III, § 2, cl. 1.These prerequisites reflect the "common understanding of what it takes to make a justiciable case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998). Consequently, "a showing of standing is an essential and unchanging predicate to any exercise of a court's jurisdiction." Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Put slightly differently, "Article III standing must be resolved as threshold matter." Raytheon Co. v. Ashborn Agencies, Ltd., 372 F.3d 451, 453 (D.C. Cir. 2004) (citing Steel Co., 523 U.S. at 96-102).

As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing standing. Defenders of Wildlife, 504 U.S. at 561; Steel Co., 523 U.S. at 104; City of Waukesha v. Envtl. Prot. Agency, 320 F.3d 228, 233 (D.C. Cir. 2003) (per curiam). The extent of the plaintiff's burden varies according to the procedural posture of the case. Sierra Club v. Envtl. Prot. Agency, 292 F.3d 895, 898-99 (D.C. Cir. 2002). At the pleading stage, general factual allegations of injury resulting from the defendant's conduct will suffice. Id. On a motion for summary judgment, however, the "plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts which for purposes of the summary judgment motion will be taken to be true." Id. at 899 (citing FED. R. CIV. P. 56); accord Fla. Audubon, 94 F.3d at 666.

To demonstrate standing, a plaintiff must satisfy a three-pronged test. Sierra Club, 292 F.3d at 898 (citing Defenders of Wildlife, 504 U.S. at 560). First, the plaintiff must have suffered an injury in fact, defined as a harm that is concrete and actual or imminent, not conjectural or hypothetical. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 243 (D.C. Cir. 1999) (citing Steel Co., 523 U.S. at 103). Second, the injury must be fairly traceable to the governmental conduct alleged. Id. Finally, it must be likely that the requested relief will redress the alleged injury. Id. Our court of appeals has made clear that no standing exists if the plaintiff's allegations are "purely speculative[, which is] the ultimate label for injuries too implausible to support standing." Tozzi v. Dep't of Health & Human Servs., 271 F.3d 301, 307 (D.C. Cir. 2001). Nor is there standing where the court "would have to accept a number of very speculative inferences and assumptions in any endeavor to connect the alleged injury with [the challenged conduct]." Winpisinger v. Watson, 628 F.2d 133, 139 (D.C. Cir. 1980).

The test for standing shifts focus when a plaintiff challenges an agency's failure to comply with a procedural requirement. Fla. Audubon, 94 F.3d at 664 (citing Defenders of Wildlife, 504 U.S. at 572 n.7). In such cases, as long as the procedural requirement is designed to protect a threatened, concrete interest of the plaintiff, the violation is sufficient to grant the plaintiff standing. City of Waukesha, 320 F.3d at 234. To ensure that the plaintiff's interest is more than a general interest common to all members of the public, however, the procedural-rights plaintiff must show "that it is ...


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