DC Circuit Holds Groups Lack Standing to Challenge Two Controversial U.S. Fish and Wildlife Service Settlement Agreements

On Tuesday, May 26, 2015, the U.S. Court of Appeals for the District of Columbia Circuit rejected (pdf) the National Association of Home Builders’ and three other associations’ (collectively, NAHB) challenge to separate settlements between the U.S. Fish and Wildlife Service (Service) and two environmental organizations. The settlements direct the Service to make listing decisions on 251 species by specified dates.  The Court of Appeals affirmed a district court’s decision that NAHB lacked standing to raise its challenge.

As we previously reported, the district court found that plaintiffs could not demonstrate standing because the settlement agreements do not require any specific outcome.  Therefore, plaintiffs could not demonstrate injury-in-fact.  The Court of Appeals affirmed that decision, holding that NAHB must show an actual or imminent, concrete and particularized injury-in-fact.  The Court of Appeals noted that the settlements only require the Service to render a final listing decision by a specific date.  This results in the mere possibility of regulation, which is insufficient to establish injury-in-fact.

The Court of Appeals also held that NAHB had not been harmed through the expenditure of funds to reduce risks to candidate species because the Service had not dictated any of those expenditures.  Because NAHB voluntarily spent resources on conservation efforts, the harm complained of was not inflicted by the Service.

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  • David J. Miller
    Partner

    David Miller assists clients on a variety of complex land use and environment related matters, including matters dealing with the National Environmental Policy Act, Section 4(f) of the Department of Transportation Act, and the ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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