Wildearth Guardians v. Salazar , 859 F. Supp. 2d 83 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILDEARTH GUARDIANS, et al.,
Plaintiffs,
v.
KEN SALAZAR, Secretary, U.S. Civil Action No. 11-00670 (CKK)
Department of the Interior, et al.,
Defendants,
STATE OF WYOMING, et al.,
Defendant-Intervenors.
MEMORANDUM OPINION
(May 10, 2012)
Plaintiffs, WildEarth Guardians, Sierra Club, and Defenders of Wildlife, bring this
Administrative Procedure Act (“APA”) action against the Secretary of the U.S. Department of
the Interior (the “Secretary”) and the Director of the Bureau of Land Management (the “BLM”)
(together, the “Federal Defendants”), challenging the BLM’s denial of WildEarth Guardians’
petition seeking the recertification of the Powder River Basin as a “coal production region” under
43 C.F.R. § 3400.5. Intervening as defendants are the State of Wyoming, the National Mining
Association, and the Wyoming Mining Association (collectively, “Defendant-Intervenors”).
Currently before the Court are the parties’ cross-motions for summary judgment. Upon
careful consideration of the parties’ submissions, the relevant authorities, and the record as a
whole, the Court finds that Plaintiffs have failed to discharge their burden of establishing that
they meet the irreducible constitutional minimum of standing. Accordingly, the action shall be
DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. The Court does not reach the
merits of the BLM’s denial of WildEarth Guardians’ petition.
I. BACKGROUND
A. Statutory and Regulatory Background
The Mineral Leasing Act of 1920 (the “Act”) provides that “[d]eposits of coal . . . and
lands containing such deposits owned by the United States . . . shall be subject to disposition in
the form and manner provided in this chapter.” 30 U.S.C. § 181. Under the Act, the Secretary is
permitted to lease public lands for coal mining operations after conducting a competitive bidding
process:
The Secretary of the Interior is authorized to divide any lands subject
to this chapter which have been classified for coal leasing into leasing
tracts of such size as he finds appropriate and in the public interest
and which will permit the mining of all coal which can be
economically extracted in such tract and thereafter he shall, in his
discretion, upon the request of any qualified applicant or on his own
motion, from time to time, offer such lands for leasing and shall
award leases thereon by competitive bidding[.]
30 U.S.C. § 201(a)(1). By its terms, the Act mandates that any coal leasing authorized by the
Secretary be done by competitive bidding and prescribes conditions for such leasing—for
example, by requiring accepted bids to meet or exceed fair market value. However, the Act has
little to say about the competitive bidding process itself. Instead, Congress elected to confer
upon the Secretary “sweeping authority” to promulgate regulations designed to carry out the
statutory command. Indep. Petroleum Ass’n of Am. v. DeWitt, 279 F.3d 1036, 1039 (D.C. Cir.
2002), cert. denied sub nom. Indep. Petroleum Ass’n of Am. v. Watson, 537 U.S. 1105 (2003);
see also 30 U.S.C. § 189 (“The Secretary of the Interior is authorized to prescribe necessary and
proper rules and regulations to do any and all things necessary to carry out and accomplish the
purposes of this chapter.”).
2
Pursuant to his broad authority, the Secretary enacted regulations delineating how the
BLM would “conduct competitive leasing of rights to extract [f]ederal coal.” 43 C.F.R. §
3420.0-1. The regulations provide for two different coal leasing processes: (1) the regional
leasing process; and (2) the leasing-by-application process. See 43 C.F.R. pt. 3420. Both
processes are forms of competitive leasing, as both contemplate an open, public, and competitive
sealed-bid process and both preclude the BLM from issuing a coal lease if the highest bid does
not meet or exceed fair market value. See 43 C.F.R. §§ 3422.1, 3422.2, 3425.4.
The regional leasing process is primarily agency-driven, with the BLM identifying public
lands for prospective use and offering coal leases for sale. See RULES & REGULATIONS: PUBLIC
PARTICIPATION IN COAL LEASING , 64 Fed. Reg. 52,239, 52,240 (Sept. 28, 1999). The regional
leasing process applies only in areas designated as “coal production regions,” which are creatures
of regulation and the boundaries of which the BLM is empowered to alter:
The Bureau of Land Management shall establish by publication in the
Federal Register coal production regions. A coal production region
may be changed or its boundaries altered by publication of a notice of
change in the Federal Register. Coal production regions shall be used
for establishing regional leasing levels[.]
43 C.F.R. § 3400.5. This provision was designed to “[a]uthorize the Bureau of Land
Management to establish coal production regions for the purpose of setting coal leasing levels
and for other coal management purposes.” PROPOSED RULES: COAL MANAGEMENT ; FEDERALLY
OWNED COAL; AMENDMENTS TO COAL MANAGEMENT PROGRAM REGULATIONS, 46 Fed. Reg.
61,390, 61,391-61,392 (Dec. 16, 1981). The applicable regulations do not require the BLM to
establish specific coal production regions nor provide guidance as to when and where the
establishment of such regions would be appropriate. However, once the BLM has established a
3
coal production region, the regulations specify how the BLM should go about setting “regional
leasing levels.” 43 C.F.R. § 3420.2. When setting regional leasing levels, the BLM must—in
consultation with other federal agencies, state and local governments, tribes, and regional coal
teams—take into account such factors as national energy needs, industry interest in coal
development, and the potential economic, social, and environmental effects of coal leasing on the
region. Id. § 3420.2(c).
The leasing-by-application process, in contrast, is primarily applicant-driven, with the
applicant assuming responsibility for identifying public lands for potential use and proposing
specific tracts for leasing. See id. §§ 3425.0-2-3425.5. The leasing-by-application process
applies in “areas outside coal production regions” and in areas within coal production regions
“where an emergency need for unleased coal deposits is demonstrated.” Id. §§ 3425.0-2, 3425.1-
5. Unlike the regional leasing process, the leasing-by-application process is not structured
around regional leasing levels, but the BLM must nevertheless perform an environmental
analysis. See id. § 3425.4.
B. Case-Specific Background1
In 1979, the BLM established several coal production regions, including the Powder
River Coal Production Region, an administrative area corresponding to the Powder River
Basin—a geographic area of approximately 24,000 square miles spanning northeastern Wyoming
and southeastern Montana. See IDENTIFICATION OF COAL PRODUCTION REGIONS HAVING MAJOR
1
The Court avoids the phrase “factual background” because, under the APA, “[t]he entire case . . . is a
question of law” and the “complaint, properly read, actually presents no factual allegations, but rather only
arguments about the legal conclusion[s] to be drawn about the agency action.” Marshall Cnty. Health Care Auth. v.
Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993).
4
FEDERAL COAL INTERESTS, 44 Fed. Reg. 65,196, 65,196 (Nov. 9, 1979). As a result, beginning
in 1979, any leasing in the Powder River Basin was presumptively to be conducted in accordance
with the regional leasing process, which remained the state of affairs for the next decade.
In 1989, however, the BLM solicited public comments on the potential total or partial
decertification of the Powder River Coal Production Region, citing such considerations as
“limited leasing interest in the region, soft market considerations for the foreseeable future, []
public input,” and “administrative efficiency.” PROPOSED DECERTIFICATION OF ALL OR A
PORTION OF THE POWDER RIVER COAL PRODUCTION REGION , 54 Fed. Reg. 6,339, 6,339-6,340
(Feb. 9, 1989); see also POWDER RIVER REGIONAL COAL TEAM ACTIVITIES: PUBLIC MEETING
ANNOUNCEMENT , 54 Fed. Reg. 35,941 (Aug. 30, 1989). The BLM noted that “if the region were
partially or totally decertified, then these areas would be opened to leasing-by-application,” but
left open the possibility “for the re-establishment of the regional activity planning process, should
market conditions strengthen and more widespread leasing again become[] necessary.”
PROPOSED DECERTIFICATION OF ALL OR A PORTION OF THE POWDER RIVER COAL PRODUCTION
REGION , 54 Fed. Reg. at 6,339-6,340.
On January 9, 1990, the BLM formally decertified the Powder River Coal Production
Region as a coal production region, which had the effect of replacing the regional leasing process
with the leasing-by-application process in that area. See DECERTIFICATION OF THE POWDER
RIVER COAL PRODUCTION REGION , 55 Fed. Reg. 784, 784 (Jan. 9, 1990). The BLM adopted the
recommendation of the regional coal team that the region be completely decertified subject to
certain conditions. Id. Therefore, beginning in early 1990, “[f]ederal coal lease applications
[could] . . . be filed in accordance with 43 C.F.R. § 3425”—that is, pursuant to the leasing-by-
5
application process. Id. at 785. Since then, the leasing-by-application process has been the
exclusive leasing method used by the BLM in the Powder River Basin. Indeed, because the BLM
has decertified all other coal production regions, the leasing-by-application process is now the
exclusive leasing method used nationwide. J.A. 5.
On November 23, 2009, WildEarth Guardians filed a five-page petition with the BLM,
accompanied by a written report, seeking the recertification of the Powder River Basin as a coal
production region under 43 C.F.R. § 3400.5. J.A. 9-50.2 WildEarth Guardians claimed that
decertification of the Powder River Basin is no longer appropriate today because the region
produces more coal than anywhere else in the United States and because coal production in the
region, which is only expected to intensify, is a leading contributor to nationwide greenhouse gas
emissions. J.A. 10. WildEarth Guardians further argued that recertification of the Powder River
Basin is appropriate because the “streamlined” leasing-by-application process “diminishe[s]
competition” and “prevent[s] the [BLM] from fully analyzing and addressing the environmental
impacts—in particular the global warming impacts—of coal leasing in the Powder River Basin.”
J.A. 9-10.
On January 8, 2011, the BLM denied WildEarth Guardians’ petition in a thorough eight-
page decision. J.A. 1-8. The BLM concluded that the Powder River Basin continued to be
effectively managed “as a decertified coal region.” J.A. 7. First, the BLM found that, despite the
“growth” in production in the region, leasing had occurred at “essentially the same rate as
reserves have been depleted” and “no new mining operations” had opened since decertification.
2
W ildEarth Guardians’ petition also asked the Secretary to establish a carbon fee for new coal leases and
lease interest transfers, but Plaintiffs have not pursued that aspect of the petition in this case.
6
J.A. 4. Second, the BLM found that decertification was conducive to “maintenance leasing,”
under which existing operations expand into adjacent tracts as reserves are depleted “without
leaving tracts un-leased and undeveloped.” J.A. 4. Third, the BLM found that because the
regional leasing process requires the agency to “complete geologic exploration activities and
fund regional NEPA analysis,” its “current budget forecast and possible lack of personnel” were
such that adoption of the regional leasing process could result in a “reduced return to the public
from coal sales (due to timing), a higher potential for bypass . . . , and forced emergency leasing.”
J.A. 5. Fourth, the BLM found that “sales are always competitive” under either leasing process
“because the BLM sets a [fair market value] . . . and will not accept any bid that does not meet
that value.” J.A. 5. Fifth, the BLM found that the leasing-by-application process requires the
agency to conduct environmental analyses in connection with specific lease sales, including a
“cumulative impact analysis [that] evaluates the contribution of the site-specific alternatives to
cumulative effects on the environment.” J.A. 6.
C. Procedural History
Plaintiffs commenced this action on April 4, 2011, asserting a single claim for relief
under the APA based on their contention that the BLM’s denial of WildEarth Guardians’ petition
was arbitrary, capricious, and contrary to law. See Compl. for Declaratory Judgment &
Injunctive Relief, ECF No. [1], ¶¶ 54-58. The Federal Defendants appeared and answered the
Complaint. See Fed. Defs.’ Answer, ECF No. [16]. The State of Wyoming, the National Mining
Association, and the Wyoming Mining Association were granted leave to intervene as defendants
and answered the Complaint. See Order (June 23, 2011), ECF No. [18]; State of Wyoming’s
Answer, ECF No. [19]; Wyoming Mine Association’s Answer, ECF No. [20]; Answer &
7
Affirmative Defenses of National Mining Association, ECF No. [22].
The Federal Defendants filed the Administrative Record on August 18, 2011. See Fed.
Defs.’ Notice of Lodging & Serving of Admin. R., ECF No. [26]. Plaintiffs then moved to
“correct” the record, claiming it did not include certain materials that were allegedly before the
BLM when it denied WildEarth Guardians’ petition. On November 9, 2011, the Court denied
Plaintiffs’ motion, finding they had “failed to meet their burden of adducing clear and concrete
evidence demonstrating that the administrative record certified by the Federal Defendants in this
action is incomplete.” Mem. Op. & Order (Nov. 9, 2011), ECF No. [37], at 8.
Thereafter, the parties proceeded to brief the pending cross-motions for summary
judgment. The motions are now fully briefed and ripe for adjudication. While the Court’s
decision today is based on the record as a whole, its consideration has focused on the following
documents, listed in chronological order of their filing: Mem. of P. & A. in Supp. of Mot. for
Summ. J. by Pls., ECF No. [40] (“Pls.’ [40] Mem.”); Def-Intervenors’ Mem. of P. & A. in Supp.
of Their Cross-Mot. for Summ. J. & in Opp’n to Pls.’ Mot. for Summ. J., ECF Nos. [41], [42];
Fed. Defs.’ Combined Mem. of Law in Supp. of Their Cross-Mot. for Summ. J. & in Opp’n to
Pls.’ Mot. for Summ. J., ECF Nos. [43-1], [44]; Reply in Supp. of Mot. for Summ. J. by Pls. &
Resp. in Opp’n to Defs.’ & Intervenors’ Cross-Mots. for Summ. J., ECF Nos. [45], [46] (“Pls.’
[46] Mem.”); Def.-Intervenors’ Reply in Supp. of Their Cross-Mot. for Summ. J., ECF No. [48];
Fed. Defs.’ Reply Mem. in Supp. of Their Cross-Mot. for Summ. J., ECF No. [49]. In an
exercise of its discretion, the Court finds that holding oral argument on the pending motions
would not be of assistance in rendering a decision. See LCvR 7(f).
8
II. DISCUSSION
“Article III of the Constitution limits the ‘judicial power’ of the United States to the
resolution of ‘cases’ and ‘controversies.’” Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 471 (1982). “In order to establish the
existence of a case or controversy within the meaning of Article III, [a] party must meet certain
constitutional mimima,” including “the requirement that . . . it has standing to bring the action.”
Gettman v. DEA, 290 F.3d 430, 433 (D.C. Cir. 2002). The “irreducible constitutional minimum”
of standing requires: (1) an injury in fact; (2) causation; and (3) redressability. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “[W]hen considering whether a plaintiff has
Article III standing, a federal court must assume arguendo the merits of his or her legal claim.”
Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007), aff’d sub nom. District of
Columbia v. Heller, 554 U.S. 570 (2008).
In this case, Plaintiffs concede, as they must, that the BLM’s mere denial of WildEarth
Guardians’ petition is insufficient to support their standing. See Gettman, 290 F.3d at 433-34(rejecting the suggestion that an agency’s denial of a rulemaking petition confers “automatic
standing” upon the petitioner). Instead, Plaintiffs argue three different theories of standing: (1)
procedural standing; (2) informational standing; and (3) substantive standing. The Court
addresses each theory in turn.
A. Procedural Standing
In standing doctrine, “‘procedural rights’ are special: The person who has been accorded
a procedural right to protect his concrete interests can assert that right without meeting all the
normal standards for redressability and immediacy.” Defenders of Wildlife, 504 U.S. at 573 n.7.
9
Specifically, “[a] plaintiff who alleges a deprivation of a procedural protection to which he is
entitled never has to prove that if he had received the procedure the substantive result would have
been altered. All that is necessary is to show that the procedural step was connected to the
substantive result.” Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 94-95 (D.C.
Cir. 2002).
While the normal standards of redressability and immediacy are “relaxed” in this context,
the requirements of injury in fact and causation are not. Ctr. for Law & Educ. v. Dep’t of Educ.,
396 F.3d 1152, 1157 (D.C. Cir. 2005). To establish procedural standing, the plaintiff must still
(1) identify a procedural right afforded by statute and designed to protect the plaintiff’s concrete
and personal interest, (2) show that the defendant omitted the required procedure, and (3)
demonstrate that it is substantially probable that the procedural breach will cause injury to the
plaintiff’s concrete and personal interest. See Fla. Audubon Soc. v. Bentsen, 94 F.3d 658, 664-65
(D.C. Cir. 1996) (en banc); N.Y. Reg’l Interconnect, Inc. v. FERC, 634 F.3d 581, 587 (D.C. Cir.
2011); Ctr. for Law & Educ., 396 F.3d at 1157. As this standard makes clear, “deprivation of a
procedural right without some concrete interest that is affected by the deprivation—a procedural
right in vacuo—is insufficient to create Article III standing.” Summers v. Earth Island Inst., 555
U.S. 488, 496 (2009).
Plaintiffs contend that they can invoke the relaxed standard for procedural standing
because they are “being denied procedural opportunities that they would have if the Powder
River Basin was designated as a Coal Production Region and leasing was conducted pursuant to
the [Regional] Leasing process.” Pls.’ [40] Mem. at 12 (citing Decl. of Jeremy Nichols
(“Nichols Decl.”), ECF No. [40-1], ¶ 14). Specifically, Plaintiffs claim that if the BLM granted
10
WildEarth Guardians’ petition, and if the Powder River Basin was recertified as a coal
production region, then the BLM would be required to establish regional leasing levels under 43
C.F.R. § 3420.2(c), delineate lease tracts and rank them in order of prioritization under §§
3420.3-1 and 3420.3-4(a), prepare a regional lease sale environmental impact statement under §
3420.3-4(c), and publish a regional lease sale schedule under § 3420.5-1. See Nichols Decl. ¶ 14.
Plaintiffs misapprehend the reach of procedural standing. Procedural rights are accorded
a special status in standing doctrine not because the law values procedures in the abstract, but
because courts recognize the “prophylactic nature of procedural rights.” Ctr. for Law and Educ.,
396 F.3d at 1167 (Edwards, J., concurring). The strictures of standing are relaxed in this context
because there is a presumption that procedures are meaningful: if followed, they may or may not
affect the substantive result, but they will guide and inform the agency’s decision-making. Of
course, procedures are only relevant in this “prophylactic” sense if they precede the agency’s
final action. For example, the “archetypal procedural injury” is “an agency’s failure to prepare a
statutorily required environmental impact statement before taking action with potential adverse
consequences to the environment.” Nat’l Parks Conservation Ass’n v. Manson, 414 F.3d 1, 5
(D.C. Cir. 2005) (emphasis added).
Plaintiffs put the cart before the horse. In support of their procedural standing theory, all
Plaintiffs claim is that if the BLM reached a different substantive result on WildEarth Guardians’
petition, then they might benefit from certain procedural protections attaching to the regional
leasing process down the road. Plaintiffs do not claim that the BLM omitted a procedural
requirement before denying WildEarth Guardians’ petition—the only agency action at issue in
this case. Nor could they. The BLM satisfied the few procedural requirements mandated in this
11
context: it provided WildEarth Guardians with notice of its denial of the petition and “a brief
statement of the grounds.” 5 U.S.C. § 555(e).
Accordingly, the Court concludes that Plaintiffs have failed to establish that they have
procedural standing to pursue this case.3
B. Informational Standing
The concept of informational standing is unique in standing doctrine; if not properly
cabined, it runs the risk of swallowing the limitations placed on the exercise of judicial power by
Article III. See generally Cass R. Sunstein, Informational Regulation & Informational Standing:
Akins and Beyond, 147 U. PA . L. REV . 613 (1999). Therefore, informational standing “arises
only in very specific statutory contexts where a statutory provision has explicitly created a right
to information.” Ass’n of Am. Physicians & Surgeons, Inc. v. FDA, 539 F. Supp. 2d 4, 15
(D.D.C. 2008) (internal quotation marks omitted), aff’d, 358 F. App’x 179 (D.C. Cir. 2009) (per
curiam), cert. denied, __ U.S. __, 131 S. Ct. 1062 (2011).4 To establish informational standing, a
plaintiff must (1) identify a statute that, on plaintiff’s reading, directly requires the defendant to
disclose information that the plaintiff has a right to obtain, (2) show that it has been denied the
information to which it is entitled, and (3) provide a credible claim that the information would be
helpful to it. See FEC v. Akins, 524 U.S. 11, 21 (1998); ASPCA v. Feld Entm’t, Inc., 659 F.3d
13, 22-23 (D.C. Cir. 2011); Ethyl Corp. v. EPA, 306 F.3d 1144, 1148 (D.C. Cir. 2002).
3
Plaintiffs do not argue that the alleged “procedural injuries” they have identified would satisfy the more
stringent standard for standing. Even if they had made this argument, these alleged injuries are not (1) concrete,
particularized, actual, or imminent, or (2) fairly traceable to the BLM’s denial of W ildEarth Guardians’ petition.
4
Congress, not agencies, has the ability to relax the strictures of standing when it statutorily defines
procedural and informational rights. See Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 15-16 (D.C. Cir. 2011);
see also Bensman v. U.S. Forest Serv., 408 F.3d 945, 958-59 (7th Cir. 2005) (“[A]n act of Congress would seem to
be necessary to establish a right to information sufficient to confer informational standing.”).
12
Informational standing does not extend to “situation[s] where . . . the plaintiff’s view of the
statute would not directly entitle it to the information it seeks.” ASPCA, 659 F.3d at 24(emphasis added).
Plaintiffs contend they are “being denied information that they would otherwise be able to
obtain if the Powder River Basin was designated as a Coal Production Region.” Pls.’ [40] Mem.
at 12 (citing Nichols Decl. ¶ 14). In their briefs, Plaintiffs identify a single “example” of their
alleged informational injuries. Plaintiffs contend that if the BLM granted WildEarth Guardians’
petition, and if the BLM recertified the Powder River Basin as a coal production region, then
“[t]he first step in the regional coal leasing process . . . is to prepare a long range market
analysis” and “this information would be useful” to Plaintiffs’ members. Pls.’ [46] Mem. at 5
(citing J.A. 144).5 There are at least two problems with this argument. First, Plaintiffs have not
pointed the Court to a statute that, on their reading, requires the Federal Defendants to disclose
long range market analyses. Instead, Plaintiffs cite only to a flowchart, excerpted from the 1989
BLM Manual, that outlines the steps in the regional leasing process, J.A. 144, and the flowchart
is no substitute for a statutory provision “explicitly creat[ing] a right to information,” Ass’n of
Am. Physicians & Surgeons, 539 F. Supp. 2d at 15. Second, even if Plaintiffs were to
5
In the affidavit accompanying their briefs, Plaintiffs also suggest that if the BLM granted W ildEarth
Guardians’ petition, and if the Powder River Basin were recertified as a coal production region, then the BLM would
then be required to establish regional leasing levels under 43 C.F.R. § 3420.2(c), delineate lease tracts and rank them
in order of prioritization under §§ 3420.3-1 and 3420.3-4(a), prepare a regional lease sale environmental impact
statement under § 3420.3-4(c), and publish a regional lease sale schedule under § 3420.5-1. See Nichols Decl. ¶ 14.
Even affording the regulations a generous construction, most of them relate to procedural requirements, not
informational rights. In any event, Plaintiffs’ reliance on these regulations is misplaced for the same two reasons
their reliance on long range market analyses is misplaced: (1) Plaintiffs have failed to identify a statute that requires
the Federal Defendants to disclose information to which they are entitled; and (2) even if Plaintiffs were to
hypothetically prevail on the merits in this action, they still would not be directly entitled to such information
because its preparation and disclosure would depend upon future administrative action separate and distinct from the
BLM’s denial of W ildEarth Guardians’ petition.
13
hypothetically prevail on the merits in this action, they still would not be directly entitled to the
information they seek. Rather, the preparation and disclosure of long range market analyses
would depend upon future administrative action that is separate and distinct from the only agency
action at issue in this case—the BLM’s denial of WildEarth Guardians’ petition for rulemaking.
In other words, the “informational event,” as it were, is at least one step removed from the actual
agency action at issue in this case.6 Cf. ASPCA, 659 F.3d at 23-24.
Accordingly, the Court concludes that Plaintiffs have failed to establish that they have
informational standing to pursue this case.
C. Substantive Standing
To establish substantive standing, a plaintiff “must show (1) an injury in fact that is
‘concrete and particularized’ and ‘actual or imminent’; (2) that the injury is fairly traceable to the
defendant’s challenged conduct; and (3) that the injury is likely to be redressed by a favorable
decision.” ASPCA, 659 F.3d at 19 (quoting Defenders of Wildlife, 504 U.S. at 560-61). Where,
as here, “the plaintiff is not himself the object of the government action or inaction he challenges,
standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.”
Defenders of Wildlife, 504 U.S. at 562 (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)).
Plaintiffs claim that they have substantive standing because their members have
reasonable concerns that the climate and other environmental impacts of coal mining under the
leasing-by-application process will harm their aesthetic and recreational interests in the Powder
6
In truth, it is likely several steps removed. See infra Part II.C.
14
River Basin and its wildlife. See Pls.’ [40] Mem at 10-11.7 It is by now well established that
such aesthetic and recreational interests can support an injury in fact. See Summers, 555 U.S. at
494 (“While generalized harm to . . . the environment will not alone support standing, if that
harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will
suffice.”); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183
(2000) (“[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use
the affected area and are persons ‘for whom the aesthetic and recreational values of the area will
be lessened’ by the challenged activity.”) (quoting Sierra Club v. Morton, 405 U.S. 727, 735
(1972)). Nonetheless, Plaintiffs must still show that the alleged harms to their aesthetic and
recreational interests are likely to be redressed by a favorable decision in this case. Nat’l Comm.
for New River, Inc. v. FERC, 433 F.3d 830, 832 (D.C. Cir. 2005). It is here where Plaintiffs’
argument falters.8
Plaintiffs claim that the BLM’s denial of WildEarth Guardians’ petition harms their
aesthetic and recreational interests because mining in the Powder River Basin will result in
increased air, water, and land pollution and various climate change impacts such as greater
drought conditions and a reduction in biodiversity. See Pls.’ [40] Mem. at 11-12 (citing Nichols
Decl. ¶¶ 17-22, 28-46). Plaintiffs reason that their injuries would be redressed by a favorable
outcome in this case because, if the Powder River Basin was recertified, the BLM “could set a
7
More precisely, Plaintiffs rely upon the interests of one of their members who lives in Golden, Colorado
and regularly travels to the Powder River Basin for personal and professional reasons. See Nichols Decl. ¶¶ 2, 5-6,
18-19.
8
Plaintiffs also bear the burden of showing that the alleged harms are fairly traceable to the BLM’s denial
of W ildEarth Guardians’ petition, but where, as here, “the purported cause of injury . . . and the injury itself [are]
separated by intervening actors and events, the causation and redressability inquiries may appear to merge.” Ctr. for
Law & Educ., 396 F.3d at 1160 n.2. For purposes of analytical clarity, the Court confines its discussion to the
redressability requirement.
15
ceiling on coal leasing” and there could be an overall reduction in coal production in the region,
thereby reducing adverse environmental impacts. Id. at 12 (citing Nichols Decl. ¶¶ 47-50).
Plaintiffs have not shown that their alleged injuries are likely to be redressed by a
favorable decision in this case. Preliminarily, Plaintiffs imply that a favorable outcome here
would inexorably lead to the recertification of the Powder River Basin, but that is not the case.
WildEarth Guardians’ petition was made under 5 U.S.C. § 553(e), which requires “[e]ach agency
[to] . . . give an interested person the right to petition for the issuance, amendment, or repeal of a
rule.” In this case, Plaintiffs do not seek injunctive relief, but rather ask the Court to “vacate
[the] BLM’s decision . . . and remand to [the] agency for further consideration.” Pls.’ [46] Mem.
at 22. Therefore, even assuming Plaintiffs succeed on the merits, the only relief available to
them would be a remand to the BLM for further consideration of the petition. In such a case,
even assuming the BLM were to grant WildEarth Guardians’ petition upon further consideration,
then the BLM still might decide to provide notice of the proposed recertification in the Federal
Register and solicit public input before making a final decision on recertification. See 5 U.S.C. §
553(b)-(c); 43 C.F.R. § 14.4. Any number of things could happen during that process that are
beyond the predictive powers of the parties and this Court.9 Plaintiffs elide over these unknowns,
and presume that once their petition is granted, recertification will follow in more or less the
same form as pre-1990 certification.
9
Simply by way of example, although Plaintiffs treat the Powder River Basin as if it is an indivisible
whole, the region spans 24,000 square miles and crosses two States. Even if some form of recertification receives
the BLM’s approval, the area(s) designated as a coal production region might not conform to the boundaries of the
Powder River Basin or the old Powder River Coal Production Region. See 43 C.F.R. § 3400.5. For any number of
reasons, interested parties or the BLM itself may think partial recertification more appropriate than wholesale
recertification, or that areas outside of the old Powder River Coal Production Region should be brought into the fold,
and there is no reason to assume that the precise areas recertified would be the same ones that underlie Plaintiffs’
aesthetic and recreational interests, see Nichols Decl. ¶¶ 17, 19, or that the “region” used for establishing regional
leasing levels would be the same one that Plaintiffs now have in mind.
16
Ultimately, though, the disconnect between the outcome of WildEarth Guardians’
petition, and a determination as to whether recertification is appropriate and, if so, the form it
should take, is the least of Plaintiffs’ problems. Even assuming, for the sake of argument, that
recertification happens more or less as Plaintiffs envision, Plaintiffs still have not shown that
their alleged injuries are likely to be redressed by a favorable decision in this case. Plaintiffs
claim that, with recertification, the BLM “could set a ceiling on coal leasing,” Pls.’ [40] Mem. at
12, but their assumption that regional leasing would be set at a level that would redress their
alleged injuries is speculative because the regional leasing process does not evince a preference
for a particular level of leasing. Rather, when setting regional leasing levels, the BLM considers
a multitude of diverse factors, including, but not limited to: the economic, social, and
environmental effects of leasing on the region; industry interest and competition in the region;
demand for coal reserves; and national energy needs and coal production goals. See 43 C.F.R. §
3420.2(c). Nor does the BLM set regional leasing levels in a vacuum, but rather can exercise its
expertise only after considering input from the public, regional coal teams, affected Indian tribes,
the governors of affected States, and the U.S. Department of Justice. See id.Similarly, Plaintiffs claim that “[r]ecertification could also lead to reduced coal
production in the Powder River Basin,” Pls.’ [40] Mem. at 12, but countless independent
actions—some by the BLM and some by third parties—must intervene between recertification
and actual coal production. See generally NRDC, Inc. v. Jamison, 815 F. Supp. 454, 456-57
(D.D.C. 1992) (describing the several stages of the coal leasing process). Among other things,
the BLM would need to engage in land use planning, establish regional leasing levels, delineate
lease tracts, rank tracts in order of prioritization, prepare a regional lease sale environmental
17
impact statement, publish a regional lease sale schedule, provide public notice of sales, solicit
competitive bids, determine that bids meet or exceed fair market value, and award leases. See 43
C.F.R. §§ 3420.1-4, 3420.2, 3420.3-1, 3420.3-4, 3420.5-1, 3422.1, 3422.2, 3422.4.10 The
behavior of various third parties would be integral to this multifaceted process: coal mining
companies would have to be willing to bid on specific lease tracts and make offers meeting the
BLM’s terms; affected States would have to authorize mining permits; etc. See Nat’l Wrestling
Coaches Ass’n v. U.S. Dep’t of Educ., 366 F.3d 930, 941-42 (D.C. Cir. 2004) (noting that where
the relationship between agency action and third-party conduct is not obvious, “formidable
evidence” is required) (quotation marks omitted), cert. denied, 545 U.S. 1154 (2005).
The central point is this: the denial of WildEarth Guardians’ petition and the
recertification of the Powder River Basin are many, many steps removed from the injuries
identified by Plaintiffs. Plaintiffs’ theory of redressability depends on “a lengthy chain of
conjecture,” Fla. Audubon Soc., 94 F.3d at 666, that piles “speculation upon hypothetical upon
speculation,” N.Y. Reg’l Interconnect, 634 F.3d at 587. Moreover, “[e]ven if all these additional
events transpired, [Plaintiffs’] injury would be caused by some action other than” the specific
agency action before the Court. Occidental Permian Ltd. v. FERC, 673 F.3d 1024, 1026 (D.C.
Cir. 2012). Accordingly, the Court concludes that Plaintiffs have also failed to establish that they
have substantive standing to pursue this case.
10
Cf. Ctr. for Biological Diversity v. DOI, 563 F.3d 466, 478-79 (D.C. Cir. 2009) (“In order to reach the
conclusion that Petitioners are injured because of Interior’s alleged failure to consider the effects of climate change
with respect to the Leasing Program, Petitioners must argue that: adoption of the Leasing program will bring about
drilling; drilling, in turn, will bring about more oil; this oil will be consumed; the consumption of this oil will result
in additional carbon dioxide being dispersed into the air; this carbon dioxide will consequently cause climate change;
this climate change will adverse affect the animals and their habitat; therefore Petitioners are injured by the adverse
effects on the animals they enjoy.”); Fla. Audubon Soc., 94 F.3d at 666.
18
III. CONCLUSION
Standing is a jurisdictional requirement. Holistic Candlers & Consumers Ass’n v. FDA,
664 F.3d 940, 943 (D.C. Cir. 2012). As a result, when the requisite showing has not been made,
“the only function remaining to the court is that of announcing the fact and dismissing the
cause.” Ex parte McCardle, 7 Wall. 506, 514 (1868). Accordingly, the Court’s inquiry is at an
end.11 The Court shall GRANT Defendant-Intervenors’ [41] Cross-Motion for Summary
Judgment and the Federal Defendants’ [43] Cross-Motion for Summary Judgment insofar as they
seek the dismissal of this action for lack of standing and the action shall be DISMISSED
WITHOUT PREJUDICE on that basis. Plaintiffs’ [40] Motion for Summary Judgment, and the
remainder of Defendant-Intervenors’ and the Federal Defendants’ cross-motions, shall be
DENIED as moot. An appropriate Order accompanies this Memorandum Opinion.
Date: May 10, 2012
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
11
However, if Plaintiffs had standing, the Court would adhere to its prior holding that “the question of
when and where to establish coal production regions is a matter that has been committed to the BLM’s discretion by
law and lies beyond the ambit of judicial review.” WildEarth Guardians v. Salazar, 783 F. Supp. 2d 61, 74 (D.D.C.
2011). To the extent circumscribed judicial review of the BLM’s discretion is called for in the context of a petition
under 5 U.S.C. § 553(e), the BLM “has adequately explained the facts and policy concerns it relied on and [the
Court is satisfied] that those facts have some basis in the record.” Defenders of Wildlife v. Gutierrez, 532 F.3d 913,
919 (D.C. Cir. 2008) (internal quotation marks omitted); see also Am. Horse Prot. Ass’n, Inc. v. Lyng, 812 F.2d 1, 4-
5 (D.C. Cir. 1987). W hen “agency action is committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), the
dismissal must be for failure to state a claim, see Sierra Club v. Jackson, 648 F.3d 848, 853-54 (D.C. Cir. 2011),
which is an adjudication on the merits. Therefore, although the end result would for all practical purposes be the
same, the Court cannot rely on this ground as an alternative basis for its decision.
19