667 F.3d 6 (D.C. Cir. 2011), 10-5341, National Ass'n of Home Builders v. E.P.A.

Docket Nº:10-5341.
Citation:667 F.3d 6
Opinion Judge:KAREN LeCRAFT HENDERSON, Circuit Judge:
Party Name:NATIONAL ASSOCIATION OF HOME BUILDERS et al., Appellants v. ENVIRONMENTAL PROTECTION AGENCY et al., Appellees.
Attorney:Norman D. James argued the cause for the appellants. Duane J. Desiderio entered and appearance. Katherine J. Barton, Attorney, United States Department of Justice, argued the cause for the appellees. Andrew J. Doyle and Aaron P. Avila, Attorneys, were on brief. R. Craig Lawrence, Assistant United...
Judge Panel:Before: GINSBURG, HENDERSON and KAVANAUGH, Circuit Judges.[*]
Case Date:December 09, 2011
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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667 F.3d 6 (D.C. Cir. 2011)

NATIONAL ASSOCIATION OF HOME BUILDERS et al., Appellants

v.

ENVIRONMENTAL PROTECTION AGENCY et al., Appellees.

No. 10-5341.

United States Court of Appeals, District of Columbia Circuit.

December 9, 2011

Argued Sept. 20, 2011.

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Appeal from the United States District Court for the District of Columbia (No. 1:09-CV-00548).

Norman D. James argued the cause for the appellants. Duane J. Desiderio entered and appearance.

Katherine J. Barton, Attorney, United States Department of Justice, argued the cause for the appellees.

Andrew J. Doyle and Aaron P. Avila, Attorneys, were on brief. R. Craig Lawrence, Assistant United States Attorney, entered an appearance.

Before: GINSBURG, HENDERSON and KAVANAUGH, Circuit Judges.[*]

OPINION2

KAREN LeCRAFT HENDERSON, Circuit Judge:

The National Association of Home Builders and its member organizations, Southern Arizona Home Builders Association and Home Builders Association of Central Arizona, appeal the dismissal of their lawsuit challenging the determination (Determination) by the United States Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) (collectively, Agencies) that two reaches of the Santa Cruz River in southern Arizona constitute " traditional navigable water[s]" (TNW) 3 so as to come within the Agencies' regulatory authority under the Clean Water Act (CWA).4 NAHB challenges the TNW Determination as both procedurally and substantively defective. The district court dismissed the complaint for lack of subject matter jurisdiction on the ground the CWA precludes a pre-enforcement challenge to a TNW Determination. We affirm the dismissal on the alternative jurisdictional ground that the appellants lack standing under Article III of the United States Constitution. See Moms Against Mercury v. Food & Drug Admin., 483 F.3d 824, 826 (D.C.Cir.2007) (" Where both standing and subject matter jurisdiction are at issue ..., a court may inquire into either and, finding it lacking, dismiss the matter without reaching the other." ) (citing

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Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)).5

I.

The CWA provides that " the discharge of any pollutant by any person" — i.e., " any addition of any pollutant to navigable waters from any point source" — " shall be unlawful" unless it complies with one of several enumerated CWA provisions, including sections 402 and 404. 33 U.S.C. §§ 1311(a), 1362(12).6 Section 404 and 402 authorize the Agencies to issue permits, after notice and an opportunity for public hearing, to discharge into navigable waters dredged and fill material and other pollutants. 33 U.S.C. §§ 1344, 1342; see Nat'l Ass'n of Home Builders v. U.S. Army Corps of Eng'rs, 440 F.3d 459, 461 n. 1 (D.C.Cir.2006) (under CWA section 404, Corps issues permits to discharge dredged and fill material and under section 402, EPA issues permits to discharge other pollutants). The CWA defines " navigable waters" as " the waters of the United States, including the territorial seas," 33 U.S.C. § 1362(7), a definition that has been construed to include certain adjacent waters and wetlands that are not themselves navigable. See Rapanos v. United States, 547 U.S. 715, 759, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). 7

On May 23, 2008, the Corps issued a memorandum reciting that the two " [Santa Cruz] Reaches are navigable-in-fact, and thus a TNW, susceptible to use in interstate commerce associated with recreational navigation activities" and, accordingly, they " are subject to the jurisdiction of Section 404 of the CWA." May 23, 2008 Memorandum for the Record of Col. Thomas H. Magness, Dist. Dir., U.S. Army, at 5-6 (Compl.ex. 2). On December 3, 2008, the EPA issued a letter setting out its own " determination to affirm the [Corps's] designation of the two reaches as TNWs." Dec. 3, 2008 Letter to John Paul Woodley, Jr., Asst. Sec'y of the Army (Civil

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Works), from Benjamin H. Grumbles, Asst. Adm'r, EPA, at 2 (Compl.ex. 1).

NAHB filed this action in March 2009, challenging the TNW Determination insofar as it " has the effect of expanding the agencies' jurisdiction over dry desert washes, arroyos and other water features within the Santa Cruz River watershed under the Clean Water Act." Compl. ¶ 2. The complaint sets out two claims, asserted both on NAHB's own behalf and in its representational capacity on behalf of individual members. Count 1 challenges the TNW Determination as violative of the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., because the Agencies provided no notice or opportunity to be heard before issuing the TNW Determination. Count 2 challenges the substance of the TNW Determination as unlawful. The complaint seeks declaratory and injunctive relief, requesting that the district court (1) declare the TNW Determination to be invalid and (2) " set aside the TNW Determination[ ] ... and enjoin the Corps and EPA from relying on the TNW Determinations in any future jurisdictional determinations in the Santa Cruz River watershed." Compl. 19-20.

On August 18, 2010, the district court granted the Agencies' motion to dismiss for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1) on the ground the CWA precludes pre-enforcement judicial review of a TNW Determination. See Nat'l Ass'n of Home Builders v. U.S. EPA, 731 F.Supp.2d 50 (D.D.C.2010). In light of its disposition, the court declined to reach the Agencies' alternative grounds for dismissal, including NAHB's lack of Article III standing. NAHB filed a timely notice of appeal.

II.

" Because Article III limits the constitutional role of the federal judiciary to resolving cases and controversies, a showing of standing ‘ is an essential and unchanging’ predicate to any exercise of our jurisdiction." Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996) (en banc) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citation omitted)). " The ‘ irreducible constitutional minimum of standing contains three elements': (1) injury-in-fact, (2) causation, and (3) redressability." Ass'n of Flight Attendants-CWA v. U.S. Dep't of Transp., 564 F.3d 462, 464 (D.C.Cir.2009) (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (quotation marks omitted)). " Thus, to establish standing, a litigant must demonstrate a ‘ personal injury fairly traceable to the [opposing party's] allegedly unlawful conduct and likely to be redressed by the requested relief.’ " Id. (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (alteration in Allen )). We conclude that NAHB has not demonstrated an injury in fact traceable to the TNW Determination to establish standing— either in its own right or on behalf of its members.

A. Organizational Standing

To establish organizational standing, NAHB must " allege[ ] such a ‘ personal stake’ in the outcome of the controversy as to warrant the invocation of federal-court jurisdiction" ; that is, it must demonstrate that it has " ‘ suffered injury in fact,’ including ‘ [s]uch concrete and demonstrable injury to the organization's activities— with [a] consequent drain on the organization's resources— constitut[ing] ... more than simply a setback to...

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