Food & Water Watch v. AGRI ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 8, 2021 Decided June 22, 2021
No. 20-5100
FOOD & WATER WATCH,
APPELLANT
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-01714)
Tarah Heinzen argued the cause and filed the briefs for
appellant.
Michael B. Buschbacher, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
were Jonathan D. Brightbill, Principal Deputy Assistant
Attorney General, Eric A. Grant, Deputy Assistant Attorney
General, Krystal-Rose Perez, Attorney, and Stephen Alexander
Vaden, General Counsel, U.S. Department of Agriculture.
2
Before: GARLAND and RAO, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
Concurring opinion filed by Senior Circuit Judge
RANDOLPH.
RAO, Circuit Judge: The Department of Agriculture’s
Farm Service Agency guaranteed a loan for a chicken farm in
2015. Two years later, Food & Water Watch brought suit
against the Agency alleging that the environmental assessment
made in connection with the loan guarantee was contrary to the
requirements of the National Environmental Policy Act and
therefore the assessment should be vacated and the loan
guarantee enjoined. The district court granted summary
judgment to the Agency, concluding Food & Water Watch had
demonstrated standing, but the Agency reasonably determined
no environmental impact statement was necessary.
We hold that Food & Water Watch lacks standing because
it has failed to establish that its claims are redressable by a
favorable action of this court. We thus vacate and remand with
instructions to dismiss the case for lack of jurisdiction.
I.
In order to purchase and construct One More Haul Farm
(the “farm”), a prospective farmer sought several loans from
MidAtlantic Farm Credit (the “lender”). The poultry farm
would be built in Caroline County, Maryland, on a parcel of
land located near Watts Creek and in the watershed for the
Upper Choptank River, which discharges into the Chesapeake

Then-Judge Garland was a member of the panel but did not
participate at oral argument or in the disposition of this case.
3
Bay. To secure a loan for the farm’s poultry houses, the lender
applied for a loan guarantee from the Farm Service Agency
(“FSA” or “Agency”).
Pursuant to the Guaranteed Farm Loan Program, the FSA
may guarantee loans made to a farmer for specified purposes,
including, as relevant here, farm ownership. See 7 C.F.R.
§ 762.121(b)(1)–(5) (2020). To be eligible for a loan guarantee,
a prospective borrower must certify that he is “unable to obtain
sufficient credit elsewhere without a guarantee to finance
actual needs at reasonable rates and terms.” Id.§ 762.120(h)(1). Although the FSA guarantees a part of the
loan, the lender retains primary responsibility for “[e]nsuring
the borrower is in compliance with all laws and regulations
applicable to the loan, the collateral, and the operations of the
farm.” Id. § 762.140(b)(3).
In 2015, when the lender sought the loan guarantee on the
farmer’s behalf, regulations interpreting the National
Environmental Policy Act (“NEPA”) required the FSA to
conduct an environmental assessment to consider the effects of
the farm before granting the guarantee. See 7 C.F.R.
§ 1940.312(c)(9), (10) (2015);1 see also National
1
When the FSA guaranteed this loan in 2015, the FSA’s regulations
“presumed” that these types of loan guarantees were “major Federal
actions” subject to NEPA requirements. 7 C.F.R. § 1940.312 (2015);
see also id. § 1940.312(c)(9), (10). The Council on Environmental
Quality, however, issued revised NEPA regulations, effective in
September 2020, that explicitly exclude FSA loan guarantees from
that definition. See Update to the Regulations Implementing the
Procedural Provisions of the National Environmental Policy Act, 85
Fed. Reg. 43,304, 43,348–49 (July 16, 2020) (codified at 40 C.F.R.
pt. 1508). Because we conclude that Food & Water Watch lacks
standing, we do not reach the question of whether the revised NEPA
regulations render this action moot.
4
Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat.
852 (codified at 42 U.S.C. §§ 4321 et seq.). As a threshold
matter, the FSA had to determine whether the farm would
“significantly affect[] the quality of the human environment.”
42 U.S.C. § 4332(2)(C). To make this determination, the
Agency consulted with local, state, and federal agencies about
the farm’s environmental effects. It published two drafts of the
farm’s environmental assessment for public comment in April
and May 2015, and before publishing the final environmental
assessment it also considered the recommendations of a private
environmental consulting firm hired to review the second
draft’s analysis. Based on its environmental assessment, the
FSA issued a “finding of no significant impact” rather than a
more detailed environmental impact statement. See 7 C.F.R.
§ 1940.318(k) (2015); see also 42 U.S.C. § 4332(2)(C). The
issuance of this finding relieved the Agency from any further
NEPA obligations. See 7 C.F.R. § 1940.318(k) (2015).
Accordingly, the Agency provided the loan guarantee in July
2015, covering ninety percent of the $1,217,000 loan. The farm
has been up and running since Fall 2016 and consists of four
chicken houses, a manure structure, and a composting area. It
“houses 192,000 birds at one time,” with “an average of 5.6
flocks per year, producing more than 1,000,000 birds and their
waste each year.” Compl. ¶ 46.
Two years after the loan was approved, Food & Water
Watch, a non-profit environmental group, filed a complaint
against the Department of Agriculture, the FSA, and Deanna
Dunning in her official capacity as an FSA farm loan officer.
Food & Water Watch alleged that the Agency’s failure to
prepare an environmental impact statement for the farm
violated NEPA and the Administrative Procedure Act
(“APA”). This failure purportedly injured the thousands of
Food & Water Watch members who lived in Maryland,
including one who lived next door to the farm and was
5
subjected to loud noises, bright lights, foul odors, and flies
resulting from the farm’s operation. The farm’s impacts, Food
& Water Watch alleged, caused this member to have health
concerns and to experience decreased enjoyment of her home.
Another member of Food & Water Watch who fishes in the
waters near the farm asserted that he was concerned about
pollution caused by the farm, as well as negative aesthetic and
recreational impacts in his fishing areas.
The Agency moved for judgment on the pleadings,
contending that Food & Water Watch lacked standing. The
district court held that Food & Water Watch had standing. The
court first found that the asserted harms established an injury
in fact because they concretely “affect[ed] the recreational and
aesthetic interests of the plaintiff’s members.” Food & Water
Watch v. U.S. Dep’t of Agric., 325 F. Supp. 3d 39, 54 (D.D.C.
2018). As for causation, the court found that the record
established a loan for the farm would have been unlikely
without the guarantee, “and no loan would mean no [farm].”
Id. at 54–55. Finally, Food & Water Watch’s claims were
redressable because vacatur of the “guarantee would put a
substantial portion of the [farm’s] funding at risk,” and the
farmer would likely comply with additional environmental
conditions imposed on the guarantee to continue to receive its
benefit. Id. at 55–56.
Both parties moved for summary judgment. The district
court rejected the Agency’s renewed objection to Food &
Water Watch’s standing and then granted summary judgment
to the Agency, holding that the environmental assessment
satisfied the requirements of NEPA. See Food & Water Watch
v. U.S. Dep’t of Agric., 451 F. Supp. 3d 11, 28, 54–55 (D.D.C.
2020). Food & Water Watch timely appealed.
6
II.
This case begins and ends with standing, “an essential and
unchanging part of the case-or-controversy requirement of
Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992). We review whether Food & Water Watch has standing
de novo. See Affum v. United States, 566 F.3d 1150, 1158 (D.C.
Cir. 2009).
Food & Water Watch asserts that it has associational
standing on behalf of its members. To establish such standing,
Food & Water Watch bears the burden of demonstrating “(1)
at least one of its members would have standing to sue in his
own right; (2) the interest it seeks to protect is germane to its
purpose; and (3) neither the claim asserted nor the relief
requested requires the member to participate in the lawsuit.”
Am. Trucking Ass’ns v. Fed. Motor Carrier Safety Admin., 724
F.3d 243, 246–47 (D.C. Cir. 2013) (cleaned up). At the
summary judgment stage, Food & Water Watch “must set forth
by affidavit or other evidence specific facts, which for purposes
of the summary judgment motion will be taken to be true.”
Lujan, 504 U.S. at 561 (cleaned up). Food & Water Watch fails
at the first step of the associational standing inquiry. Even
assuming Food & Water Watch could establish a member’s
injury and could connect that injury to the loan guarantee, it
has failed to establish redressability and therefore lacks
associational standing.
Food & Water Watch attempts to demonstrate
redressability as follows. If the loan guarantee were vacated,
the lender and farmer would again seek a loan guarantee from
the Agency, because such a guarantee was necessary for the
original loan. The Agency would then undertake a new NEPA
analysis and could impose environmental measures on the farm
as a condition of reinstating the guarantee. Food & Water
Watch asserts that the farmer and the lender would have
7
“strong financial incentives” to agree to any additional
environmental measures because they would need a new loan
guarantee. Appellant’s Reply Br. 3.
Although this case involves a procedural injury, namely
the Agency’s failure to prepare an environmental impact
statement, redressability turns not only on the actions of the
Agency, but the independent actions of the farmer and lender
in seeking a new loan guarantee. Food & Water Watch
challenges the Agency’s loan guarantee; however, its
members’ asserted injuries spring not from the guarantee but
from what the guarantee helped accomplish—the farm’s
construction and operation. To find redressability, we must
therefore determine whether vacating the Agency’s loan
guarantee would, as a practical matter, significantly increase
the likelihood that Food & Water Watch’s members would be
relieved of their asserted environmental harms. See Village of
Bensenville v. FAA, 457 F.3d 52, 69–70 (D.C. Cir. 2006). In
other words, we must decide whether vacating the guarantee is
likely to change how the farm operates. The redressability
inquiry therefore “hinge[s] on the independent choices of”
third parties not before this court—the lender and the farmer.
Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161
(D.C. Cir. 2005) (cleaned up). Accordingly, we apply the
ordinary standards of redressability.2
2
Food & Water Watch maintains that a relaxed standard of
redressability should apply here because the case concerns a
procedural injury. This is true insofar as Food & Water Watch is not
required to “‘establish with any certainty’ that the agency would
reach a different decision” if we vacated the loan guarantee. St.
John’s United Church of Christ v. FAA, 520 F.3d 460, 463 (D.C. Cir.
2008) (quoting Lujan, 504 U.S. at 572 n.7). The relaxation of
redressability standards for procedural injuries, however, applies
only to the Agency’s actions, not to third parties not before the court.
8
Considering the facts as they existed in 2017, we hold that
Food & Water Watch has failed to establish that it is “likely, as
opposed to merely speculative,” that vacatur of the loan
guarantee would redress its members’ alleged injuries. Lujan,
504 U.S. at 561 (emphasis added) (cleaned up). The real
question of redressability here is not whether the Agency could
or would impose new environmental measures as a condition
of the loan guarantee. Rather, it is whether the lender or the
farmer would even seek to have the loan guaranteed if the
original guarantee were set aside. Food & Water Watch
speculates the farmer would likely agree to additional
environmental measures as a condition of a new loan
guarantee. Yet that puts the cart before the horse.
Food & Water Watch bears the burden of demonstrating
standing but has provided no evidence that the lender or the
farmer would apply for a new loan guarantee. That is, Food &
Water Watch has established neither that the lender would
foreclose on the loan in the absence of the guarantee, nor that
the farmer would be unable to secure sufficient credit
elsewhere without the guarantee. In 2015, the lender was
willing to issue the $1.2 million dollar loan only with the FSA’s
guarantee, because at the time the farmer did not meet its
lending standards. Standing, however, must be “assessed as of
See id. Food & Water Watch argues that the third parties here are not
truly independent “actors making ‘unfettered choices’” because the
farmer and the lender “are bound with [the Agency] through the
guarantee.” Appellant’s Reply Br. 8 (quoting Lujan, 504 U.S. at 562)
(emphasis omitted). Yet Food & Water Watch simultaneously
recognizes that vacatur of the loan guarantee would “restart the
environmental assessment and loan guarantee process.” Id. at 11.
Thus, the farmer and the lender are independent actors “with respect
to the action at issue in [this] particular case”—whether to seek a
new loan guarantee upon vacatur. Bennett v. Donovan, 703 F.3d 582,
588 (D.C. Cir. 2013) (emphasis in original).
9
the time a suit commences,” and so we consider the
circumstances as they existed in 2017, when Food & Water
Watch filed suit, not as they existed in 2015, when FSA
guaranteed the loan. Del Monte Fresh Produce Co. v. United
States, 570 F.3d 316, 324 (D.C. Cir. 2009).3
The record here is devoid of evidence regarding the
farmer’s 2017 creditworthiness or financial situation, and we
can only guess how the lender or the farmer would react to a
vacatur of the loan guarantee. Moreover, what evidence we
have at least suggests that the farmer’s financial situation was
potentially different in 2017, because she had been running a
fully operational poultry farm for almost one year. The farmer
had contracts for her chickens and had improved the farm with
four poultry houses and a manure shed. The record indicates
she had the ability to access other agricultural revenue streams,
such as sales of manure. She also had a payment history of
more than two years against the loan, with no suggestion of
default. Nothing in the record permits us to conclude that the
3
The Agency frames the jurisdictional defect in light of the farmer’s
financial situation at the time of the appeal. Such an argument “is
more aptly framed in terms of mootness, which focuses on whether
events subsequent to the filing of the complaint have so transpired
that the decision will neither presently affect the parties’ rights nor
have a more-than-speculative chance of affecting them in the
future.” N. Am. Butterfly Ass’n v. Wolf, 977 F.3d 1244, 1258 (D.C.
Cir. 2020) (cleaned up). Both mootness and standing pertain to
whether there is a proper case or controversy before the court. See
U.S. CONST. art III, § 2; see also Arizonans for Off. Eng. v. Arizona,
520 U.S. 43, 68 n.22 (1997) (describing mootness as “the doctrine of
standing set in a time frame: The requisite personal interest that must
exist at the commencement of the litigation (standing) must continue
throughout its existence (mootness).”) (cleaned up). Our analysis
focuses on standing because we conclude Food & Water Watch
failed to establish jurisdiction at the outset of the litigation.
10
lender, who required a loan guarantee in 2015, would have
made the same assessment in 2017.
Instead of providing evidence of how the lender or the
farmer would react to the vacatur at the time of filing, Food &
Water Watch merely emphasizes that without the loan
guarantee, there would have been no farm. Yet that
consideration goes to causation, because it speaks to whether
Food & Water Watch’s alleged injury was caused by the
alleged procedural failure of the Agency. While causation and
redressability are sometimes linked, “[c]ausation remains
inherently historical; redressability quintessentially
predictive.” Freedom Republicans, Inc. v. FEC, 13 F.3d 412,
418 (D.C. Cir. 1994). As we have explained, “[t]here might be
some circumstances in which governmental action is a
substantial contributing factor in bringing about a specific
harm, but the undoing of the governmental action will not undo
the harm, because the new status quo is held in place by other
forces.” Renal Physicians Ass’n v. U.S. Dep’t of Health &
Human Servs., 489 F.3d 1267, 1278 (D.C. Cir. 2007). That is,
a government action may have caused a harm that a favorable
judicial decision cannot redress due to a change in
circumstances. In this case, the Agency’s loan guarantee might
have been a “substantial contributing factor” to the farm’s
initial construction and operation, but a new status quo
arguably existed when Food & Water Watch filed suit. Id. The
change in the farm’s financial situation means that causation
cannot determine redressability.
Finally, the lack of any evidence about what the lender or
the farmer would do if the court vacated the loan guarantee
distinguishes this case from Bennett v. Donovan, in which there
was “no serious doubt as to how the lenders would respond” to
an agency’s action. 703 F.3d 582, 589 (D.C. Cir. 2013).
Bennett has no application to this case where there is an
apparently stable business relationship between the lender and
11
the farmer, and therefore serious doubt whether they would
seek a new loan guarantee upon vacatur of their original one.
When significant uncertainty persists about whether judicial
resolution will redress an alleged harm, we cannot string
together assumptions to justify our jurisdiction.
Food & Water Watch has failed to demonstrate
redressability. Absent specific evidence in the record, we
decline to assume that the same financial pressures that
motivated the farmer and the lender to seek the loan guarantee
in 2015 would motivate an application for a new loan
guarantee, which might then trigger further environmental
requirements. Mere conjecture that a third party’s conduct
“will be altered or affected by the agency activity they seek to
overturn” will not suffice. St. John’s United Church of Christ,
520 F.3d at 463 (cleaned up). Food & Water Watch has
assumed what it must demonstrate and therefore has failed to
connect the vacatur of the Agency’s loan guarantee with any
likely change to the farm’s operation.
***
Because Food & Water Watch has not established
standing, we vacate the district court’s decision and remand
with instructions to dismiss the case for lack of jurisdiction.
So ordered.
RANDOLPH, Senior Circuit Judge, concurring,
Although I entirely agree with the court’s opinion, I write
to flag an issue lurking in this appeal, an issue the parties
neglected to address and one that may recur.
Then-Judge Kavanaugh stated for our court: “whether an
executive or independent agency has statutory authority from
Congress to issue a particular regulation” is a separation of
powers question “that arises again and again in this Court[.]”
Mexichem Fluor, Inc. v. EPA, 866 F.3d 451, 453 (D.C. Cir.
2017). The related problem presented in this case was not
whether a particular “administrative agency” had Congressional
authority to issue some “particular regulation.” The problem
instead was whether the Council on Environmental Quality —
CEQ — had Congressional authority to issue any regulations.
Our case revolved around CEQ’s “new regulations.”
CEQ is not an independent agency. It is part of the
Executive Office of the President, created for the purpose of
advising the President on environmental matters. See 42 U.S.C.
§§ 4342, 4344(1). No statute grants CEQ the authority to issue
binding regulations. See City of Alexandria v. Slater, 198 F.3d
862, 866 n.3 (D.C. Cir. 1999); see generally Scott C. Whitney,
The Role of the President’s Council on Environmental Quality
in the 1990's and Beyond, 6 J. Env’t L. & Litig. 81 (1991).
Instead, CEQ’s recent “regulations,” 85 Fed. Reg. 43,304,
43,307 (July 16, 2020), identify its authority to issue regulations
as Executive Order No. 11,991, 42 Fed. Reg. 26,967 (May 24,
1977).1
1
Executive Order No. 11,991 amended Executive Order No.
11,514, 35 Fed. Reg. 4,247 (Mar. 5, 1970), to direct CEQ to “[i]ssue
regulations to Federal agencies for the implementation of the
procedural provisions of the [National Environmental Policy] Act.”
2
As a supposed federal “agency” issuing regulations binding
on other federal agencies, it is rather unique. Unique because in
judicial review cases it appears only on the sidelines. While the
Supreme Court has accorded some of CEQ’s regulations
“substantial deference,” Andrus v. Sierra Club, 442 U.S. 347,
358 (1979), it has never addressed the question of CEQ’s
regulatory authority.2 In this court we have questioned whether
CEQ could issue binding regulations. Nevada v. Dep’t of
Energy, 457 F.3d 78, 87 n.5 (D.C. Cir. 2006); TOMAC v.
Norton, 433 F.3d 852, 861 (D.C. Cir. 2006); Slater, 198 F.3d at866 n.3. Perhaps CEQ’s regulations represent a directive from
the President to his subordinates. But that is a far cry from
saying, as the regulations do, that CEQ could supplant properly
issued regulations of other agencies. See 40 C.F.R. § 1507.3(a)
(“Where existing agency NEPA procedures are inconsistent with
the regulations in this subchapter, the regulations in this
subchapter shall apply . . ..”).
If CEQ’s regulations are binding, several concerns would
need to be addressed. What, if any, mechanism is there for
judicial review of CEQ’s regulations? Do CEQ’s regulations
bind executive and independent agencies alike? Can the
President override the requirement (and safeguard) of notice-
and-comment rulemaking? And can other executive offices
assert this authority as well?
“[W]here there is so much smoke, there must be a fair
amount of fire, and we would do well to analyze the causes[.]”
Henry J. Friendly, A Look at the Federal Administrative
Agencies, 60 Colum. L. Rev. 429, 432 (1960). Nevertheless,
2
The Solicitor General informed the Court in Kleppe v. Sierra
Club that CEQ’s “guidelines do not bind agencies of the Executive
branch . . ..” Brief for the Petitioners at 31 n.24, Kleppe v. Sierra
Club, 427 U.S. 390 (1976) (Nos. 75-552 & 75-561).
3
since we decide this case on standing grounds, these questions
and related ones cannot be answered now.