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Californians For Renewable Energy, et al v. United States Department of Energy

May 17, 2012


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Plaintiff Californians for Renewable Energy (CARE) is a non-profit organization dedicated to the responsible development of renewable energy. It advocates for energy projects that are sensitive to the environment and surrounding communities and are viable without inappropriate subsidies. In 2009, as part of the American Recovery and Reinvestment Act, Congress authorized the Department of Energy for the first time to issue loan guarantees for energy projects that use commercially available technology, as opposed to requiring new or innovative technology. CARE and its President, Michael Boyd, have filed the instant suit challenging these guarantees on the ground that DOE failed to promulgate regulations governing the selection of applicants and the implementation of the program as required by Title XVII of the Energy Policy Act. As a consequence of this procedural defect, Plaintiffs contend they were deprived of the right to comment on such regulations and have suffered recreational, aesthetic, and financial harms because of the unlawfully issued guarantees.

Defendants DOE, Department of the Treasury, Federal Financing Bank, Steven Chu (in his official capacity as Secretary of DOE), and Timothy Geithner (in his official capacity as Secretary of the Treasury) have now moved to dismiss for lack of subject-matter jurisdiction, arguing that Plaintiffs do not have standing to bring this challenge. Because Plaintiffs have not demonstrated injury, causation, and redressability -- the three elements required for Article III standing -- the Court will grant Defendants' Motion and dismiss the case without prejudice.


Title XVII of the Energy Policy Act of 2005, Pub. L. No. 109-58, §§ 1701-05 (2005) (codified at 42 U.S.C. §§ 16511-14, 16516), authorizes the federal government to issue loan guarantees for certain energy projects. Specifically, it permits the Secretary of Energy, after consulting with the Secretary of the Treasury, to guarantee loans for energy projects that address air pollution or anthropogenic emissions of greenhouse gases and use "new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued." Id., § 1703 (codified at 42 U.S.C. § 16513). In other words, prior to 2009, Title XVII loan guarantees were not available unless the projects employed new or significantly improved technologies.

In 2009, Congress, responding to the economic crisis the country was facing, enacted a stimulus package known as the American Recovery and Reinvestment Act, Pub. L. No. 111-5 (2009), which, among other things, modified the Energy Policy Act. Concerned that the contraction in the credit market would bring energy-infrastructure investments to a halt, Congress temporarily expanded the scope of projects eligible for loan guarantees from the Department of Energy. Id., § 406 (codified at 42 U.S.C. §16516). In particular, it added § 1705 to the Energy Policy Act, permitting the Secretary of Energy to guarantee loans for "renewable [energy] and transmission projects that are based on commercially available technology, a category of projects not included in the original statute." See S. Rep. No. 111-3 at 33 (2009); see also 42 U.S.C. §16516(a) (listing categories of projects). Six billion dollars was originally appropriated for that purpose, but Congress ultimately transferred $3.6 billion to other programs, leaving $2.4 billion for § 1705 loan guarantees. Compl., ¶¶ 12, 17. From the initiation of the program in 2009 to its expiration on September 30, 2011, DOE issued several solicitations, inviting applications for the loan guarantees. Compl., ¶¶ 14-16; 42 U.S.C. § 16515(e); see also Loan Guarantee Solicitations, U.S. Department of Energy Loan Programs Office, (last visited May 15, 2012). Each solicitation focused on a different category of energy technology and set forth eligibility and selection criteria. Id. DOE, through the Federal Financing Bank (a government corporation), guaranteed 100% of the principal and interest of recipients' loans. According to the Complaint, at least 26 loan guarantees were provided under the program. See Compl., ¶¶ 23-54. Now that the program has expired, the Secretary retains authority under unchanged § 1703 to guarantee financing only for energy projects that use innovative technologies. See 42 U.S.C. § 16515(e).

Californians for Renewable Energy is a non-profit that "advocate[s] for environmentally- and community-sensitive energy projects that are commercially viable without inappropriate subsidies." Compl., ¶ 1. The organization is led by Michael E. Boyd, "a California ratepayer [and] a federal taxpayer" who alleges he "will suffer the environmental impacts of the solar energy projects in Southern California." Id., ¶ 2. On November 23, 2011, CARE and Boyd filed suit alleging that 26 loan guarantees issued under § 1705 are unlawful. Defendants have now moved to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The Court considers that Motion here.

II.Legal Standard

In evaluating a motion to dismiss under Rule 12(b)(1), the Court must "treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The Court need not accept as true, however, "a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (internal quotation marks omitted).

To survive a motion to dismiss under Rule 12(b)(1), Plaintiffs bear the burden of proving that the Court has subject-matter jurisdiction to hear their claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, "'the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)).

Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens, 402 F.3d at 1253; see also Venetian Casino Resort, L.L.C. v. E.E.O.C., 409 F.3d 359, 366 (D.C. Cir. 2005) ("given the present posture of this case - a dismissal under Rule 12(b)(1) on ripeness grounds - the court may consider materials outside the pleadings"); Herbert v. Nat'l Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).


Defendants seek to dismiss the Complaint on the ground that Plaintiffs lack standing, leaving the Court without subject-matter jurisdiction over their claims. Defendants argue, first, that Plaintiffs have failed to show injury, causation, and redressability -- the three elements necessary to establish standing under Article III. See Mot. at 7-12. In the alternative, they contend that Plaintiffs lack "prudential standing" because the interests they seek to protect are outside the "zone of interests" safeguarded by § 1705 of the Energy Policy Act. Id. at 12-16.

Article III of the Constitution limits the power of the federal judiciary to the resolution of "Cases" and "Controversies." U.S. Const. art. III, § 2; see also Allen v. Wright, 468 U.S. 737, 750 (1984) (discussing case-or-controversy requirement). "This limitation is no mere formality: it 'defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.'" Dominguez v. UAL Corp., 666 F.3d 1359, 1361 (D.C. Cir. 2012) (quoting Allen, 468 U.S. at 750). Because "standing is an essential and unchanging part of the case-or-controversy requirement of Article III," Lujan, 504 U.S. at 560, finding ...

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