United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE.
Center for Biological Diversity is concerned that the United
States has been less than timely in complying with its
reporting obligations under the United Nations Framework
Convention on Climate Change. About two months after the U.S.
missed a January 1, 2018, reporting deadline, CBD filed this
suit. It seeks both to compel - via the Administrative
Procedure Act and mandamus - the submission of two required
reports and to obtain - pursuant to the Freedom of
Information Act - records related to their preparation.
Defendants now move to dismiss the APA- and mandamus-based
counts, maintaining that CBD does not have standing to bring
them and has not stated a claim. As the Court agrees with the
former argument, it need not reach the latter. It will,
consequently, grant Defendants' Motion but permit
Plaintiff an opportunity to amend.
early nineties, the United States entered the UNFCCC, a
multilateral agreement seeking to stabilize greenhouse-gas
concentrations. See ECF No. 8 (Amended Complaint),
¶ 18. The Convention establishes a secretariat to
support the operation of the treaty and an annual Conference
of the Parties through which signatories review and make
decisions about implementation. See UNFCCC, Arts.
7.1, 7.2, 8. The UNFCCC also includes several provisions
governing reporting requirements and exchange of information
among the parties. Id., Arts. 4, 12. CBD's
claims here specifically concern two regular reports that
parties submit through the secretariat: the “national
communication” and the “biennial report, ”
which the Conference of the Parties required to be produced
by January 1, 2018. See Am. Compl., ¶¶ 2,
country has yet to submit either. On February 5, 2018, CBD
sent the State Department a letter noting this deficiency and
indicating that it intended to file suit unless the
Government agreed to a schedule to complete and submit the
reports. See Am. Compl., ¶ 23. This suit
followed in March. The Complaint alleges two sets of claims.
The first set - including the First and Second Claims for
Relief - contains treaty-based claims seeking APA-and
mandamus-based relief to compel Defendants to submit the
information that was due January 1. The second set -
including the Third, Fourth, Fifth, Sixth, and Seventh Claims
for Relief - comprises FOIA counts seeking records related to
preparation of the reports and the Government's delays in
submitting them. Defendants now move to dismiss the former -
viz., the non-FOIA counts - contending that CBD
lacks standing and has failed to state a claim. The Court
need only consider the standing issue.
evaluating Defendants' Motion to Dismiss, 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
survive a motion to dismiss under Rule 12(b)(1), Plaintiff
bears the burden of proving that the Court has subject-matter
jurisdiction to hear its 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 the
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, Fed. Practice &
Procedure § 1350 (2d ed. 1987)) (alteration in
every disagreement merits a lawsuit. Federal courts decide
only “cases or controversies, ” a phrase given
meaning by the doctrine of “standing.” See
Whitmore v. Arkansas, 495 U.S. 149, 154-55 (1990); U.S.
Const. art. III. A party's standing “is an
essential and unchanging part of the case-or-controversy
requirement of Article III.” Lujan, 504 U.S.
at 560. To have standing, a party must, at a constitutional
minimum, meet the following criteria. First, the plaintiff
“must have suffered an ‘injury in fact' - an
invasion of a legally-protected interest which is (a)
concrete and particularized . . . and (b) ‘actual or
imminent, not ‘conjectural' or
‘hypothetical.'” Id. (internal
quotation marks and citations omitted). Second, “there
must be a causal connection between the injury and the
conduct complained of - the injury has to be ‘fairly .
. . trace[able] to the challenged action of the defendant,
and not . . . th[e] result [of] the independent action of
some third party not before the court.'”
Id. (alterations in original) (citation omitted).
Third, “it must be ‘likely,' as opposed to
merely ‘speculative,' that the injury will be
‘redressed by a favorable decision.'”
Id. at 561 (citation omitted). A “deficiency
on any one of the three prongs suffices to defeat
standing.” U.S. Ecology, Inc., 231 F.3d at 24.
Defendants argue that CBD has faltered at the first
requirement: injury-in-fact. See ECF No. 20 (Def.
Mot. to Dismiss) at 6-13; ECF No. 27 (Def. Reply) at 3-4, 6.
CBD asserts two distinct injuries, which the Court will
first contends that Defendants have “an enforceable
legal obligation to complete and publicly release” the
UNFCCC reports and that their neglecting to do so has
inflicted an “informational injury.” See
ECF No. 25 (Pl. Opp.) at 14 (emphasis omitted). While an
“inability to obtain information” that a
defendant is legally obligated to “make public”
does constitute an injury-in-fact, see Federal Elections
Comm'n v. Akins, 524 U.S. 11, 21 (1998), CBD has not
facially satisfied that test here. In other words, it has not
alleged that the Government is required to make the
UNFCCC reports publicly available, nor do the First and
Second Claims for Relief even seek public disclosure.
is good reason for such omission. The two counts at issue
involve an APA remedy and mandamus relief to redress the
Government's “fail[ure] to complete and
submit” the reports by the January 1 deadline.
See Am. Compl., ¶¶ 42, 45. That is,
Plaintiff seeks to enforce a deadline provision that itself
contains no disclosure requirement. The D.C. Circuit has been
clear that in this circumstance a plaintiff lacks the
“sine qua non of informational injury: It is
seeking to enforce a . . . deadline provision that by its
terms does not require the public disclosure of