United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
Center for Biological Diversity takes exception to the State
Department's laggard pace in complying with the United
States' reporting obligations under the United Nations
Framework Convention on Climate Change. After the Government
missed its January 1, 2018, deadline to file the two reports
at issue in this case, CBD filed suit. The Court found that
it lacked standing to press two of its counts and dismissed
them without prejudice. Hoping to remedy this insufficiency,
Plaintiff has filed a Second Amended Complaint. The
Government now moves to dismiss two of the claims -
essentially the same ones as before - again contending that
CBD lacks standing to bring them and that it also has not
stated a claim. Agreeing once again with Defendants on the
former point, the Court will grant the Motion without
reaching the latter issue.
facts relevant to this dispute were recounted nearly in their
entirety in the Court's previous Opinion. See Ctr.
for Biological Diversity v. Dep't of State, 2018 WL
5840515 (D.D.C. Nov. 8, 2018) (CBD I). Nevertheless,
a brief rehearsal is helpful here, and the Court, as it must
at this stage, treats the facts alleged as true.
early nineties, the United States entered the UNFCCC, a
multilateral agreement with the worthy goal of stabilizing
greenhouse-gas concentrations. See ECF No. 31
(Second 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.” SAC, ¶ 2. Guidance for
the content and timing of those submissions is not contained
in the Convention itself, but rather in a series of decisions
by the Conference of the Parties. See, e.g., Dec.
10/CP.13, ¶ 2 (“Annex I Parties” - including
the United States - are requested “to submit to the
secretariat a fifth national communication by 1 January 2010,
in accordance with Article 12, paragraphs 1 and 2 of the
Convention.”); Dec. 2/CP.17, ¶¶ 13-15
(“Parties shall submit a full national communication
every four years” and a biennial report beginning
January 1, 2014.).
United States has yet to submit either of the two reports.
Understandably unhappy with the abdication of those duties,
CBD filed suit in March 2018. Defendants originally moved to
dismiss two of CBD's claims for relief - n a m e l y, A P
A - and mandamus-based counts seeking to compel the
Government to submit the information that was due January 1,
2018. See ECF No. 20 (Defendants' First Motion
to Partially Dismiss). The Court agreed that Plaintiff had
failed to demonstrate standing and - without reaching
Defendants' second contention that CBD had not stated a
claim - dismissed the two counts in question with leave to
amend the Complaint.
the invitation, CBD filed its Second Amended Complaint on
December 7, 2018. Similar to the previous Complaint, it
alleges two sets of claims. The first set - that is, the
First and Second Claims for Relief - contains treaty-based
claims seeking A PA - and mandamus-based relief to compel
Defendants to submit the information that was due January 1,
2018. The second set - including the Third, Fifth, Sixth, and
Seventh Claims for Relief - comprises Freedom of Information
Act counts seeking records related to preparation of the
reports and the Government's delays in submitting them.
(A Fourth Claim for Relief appears to have been omitted by
mistake.) Defendants now move to dismiss the First and Second
Claims for Relief - viz., the non-FOIA counts -
contending again that CBD lacks standing and has failed to
state a claim. As before, the Court need only consider the
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); US 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 and 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.” US Ecology, Inc., 231 F.3d at 24.
Defendants argue that CBD has faltered at the first
requirement: injury-in-fact. See ECF No. 32 (Def.
Mot.) at 8. In the previous go-round, CBD asserted “two
distinct injuries”: one informational and one
organizational. See CBD I, 2018 WL 5840515, at *2.
Now it alleges only an informational one. See ECF
No. 38 (Pl. Mot. for Partial Summary Judgment) at 9
(“[T]he Center is only pursuing Article III standing
based on informational injury.”). The Government
asserts first that, as a threshold matter, Plaintiff - as an
organization - cannot assert only an informational
injury and must instead satisfy the two-pronged
organizational-injury inquiry announced by the D.C. Circuit.
See ECF No. 41 (Def. Reply) at 5. It next maintains
that, even were only informational injury required, none is
present here. See Def. Mot. at 9. The Court
addresses these in turn, finding that the Government is right
on the second point - namely, that CBD has not suffered an
informational injury here. It need not, therefore, examine
the second and third of the showings required for standing.
Necessity of ...