Food & Water Watch v. U.S. Dep't of Agric.

• Decision Date: 22 June 2021
• Docket Number: No. 20-5100,20-5100
• Citation: 1 F.4th 1112
• Parties: FOOD & WATER WATCH, Appellant v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

1 F.4th 1112

FOOD & WATER WATCH, Appellant

v.UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Appellees

No. 20-5100

United States Court of Appeals, District of Columbia Circuit.

Argued January 8, 2021

Decided June 22, 2021

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.

Before: Garland^* and Rao, Circuit Judges, and Randolph, Senior Circuit Judge.

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 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 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 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.

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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 112 S.Ct. 2130 (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 "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....