94 F.3d 658 (D.C. Cir. 1996), 94-5178, Florida Audubon Soc. v. Bentsen

Docket Nº:94-5178.
Citation:94 F.3d 658
Party Name:A.F.T.R.2d 96-6161, Envtl. FLORIDA AUDUBON SOCIETY, et al., Appellants, v. Lloyd M. BENTSEN, Secretary of the Treasury, and Margaret Richardson, Commissioner of the Internal Revenue Service, Appellees.
Case Date:August 20, 1996
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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94 F.3d 658 (D.C. Cir. 1996)

A.F.T.R.2d 96-6161,


FLORIDA AUDUBON SOCIETY, et al., Appellants,


Lloyd M. BENTSEN, Secretary of the Treasury, and Margaret

Richardson, Commissioner of the Internal Revenue

Service, Appellees.

No. 94-5178.

United States Court of Appeals, District of Columbia Circuit

August 20, 1996

Argued Jan. 31, 1996.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia (No. 90cv01195).

David F. Williams, Washington, DC, argued the cause for appellants, with whom James W. Moorman and Jonathan R. Stone were on the briefs.

David C. Shilton, United States Department of Justice, argued the cause for appellees, with whom Lois J. Schiffer and Loretta C. Argrett, Assistant Attorneys General, and Albert M. Ferlo, Jr., Gary R. Allen, and Teresa E. McLaughlin, Washington, DC, were on the brief.


Opinion for the Court filed by Circuit Judge SENTELLE, with whom SILBERMAN, WILLIAMS, GINSBURG, HENDERSON, and RANDOLPH, Circuit Judges, join.

Concurring opinion filed by Circuit Judge BUCKLEY.

Dissenting opinion filed by Circuit Judge ROGERS, with whom EDWARDS, Chief Judge, WALD, and TATEL, Circuit Judges, join.

SENTELLE, Circuit Judge:

The Constitution limits the jurisdiction of the federal judiciary to actual cases or controversies between proper litigants. See Liverpool, New York, & Philadelphia Steam-Ship Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885). In order to qualify as a proper litigant, the party bringing the action must, in the least, demonstrate that it has constitutional standing to invoke the authority of an Article III court. See, e.g., Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952-53, 20 L.Ed.2d 947 (1968). To have constitutional standing, a party must establish that it has "personally ... suffered some actual or threatened injury," which may be "fairly ... traced to the challenged action" and is "likely to be redressed by a favorable decision" of the court. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982) (internal quotations and citations omitted). A party that fails to demonstrate

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any of these prerequisites cannot seek relief from the federal judiciary.

The fundamental importance of standing has prompted our review in banc of the district court's judgment that Diane Jensen, the Florida Audubon Society, the Florida Wildlife Federation, and the Friends of the Earth ("appellants") cannot sue the Secretary of the Treasury and the Commissioner of the Internal Revenue Service ("Secretary") for authorizing a tax credit for the use of a particular alternative fuel additive known as ethyl tertiary butyl ether ("ETBE") without preparing an Environmental Impact Statement ("EIS"). Because the district court properly determined that appellants had demonstrated neither a personal injury nor an injury fairly traceable to the challenged acts of the Secretary, we affirm its decision that appellants lacked standing.


The National Environmental Policy Act ("NEPA") generally requires "agencies of the Federal Government" to "include in every ... report on ... major Federal actions significantly affecting the quality of the human environment" an EIS detailing that effect. See 42 U.S.C. § 4332(2)(C). Regulations implementing this provision allow agencies to categorically exclude a class of actions from the EIS requirement if that class of actions does not "have a significant effect on the human environment." 40 C.F.R. § 1508.4. In Treasury Directive ("TD") 75-02, the Secretary of the Treasury concluded that clarifications of tax rules qualify for such a categorical exclusion. See Final Procedures for Implementation of the NEPA Regulations, 45 Fed.Reg. 1828, 1830 (Jan. 8, 1980).

In March 1990, after urging from various members of Congress and comment from other interested parties, the Secretary of the Treasury, through a clarification of an existing rule, expanded a tax credit for the use of certain gasoline-ethanol blends to the use of blends of gasoline and ETBE, which is a fuel additive derived from, but not containing, ethanol. See Alcohol Fuels Credit; Definition of Mixture, 55 Fed.Reg. 8946 (1990) (codified at 26 C.F.R. Part 1). Believing that the ETBE credit fell within the categorical exclusion of TD 75-02, the Secretary did not prepare an EIS before approving the final rule. See Alcohol Fuels Credit, 58 Fed.Reg. at 8947. In the three years after the rule was promulgated, no ETBE production occurred in the United States. 1994, however, finally witnessed the start-up of three plants which, together, may produce up to 3,980 barrels of ETBE per day, or less than one-twentieth of the 102,904 barrels of ethanol that existing facilities can produce daily.

Appellants did not take as long to respond to the new tax credit. In proceedings begun two months after the new regulation was finalized, they sued to permanently enjoin enforcement of the rule and to require the Secretary to prepare an EIS. Upon reviewing cross-motions for summary judgment, the district court concluded that appellants lacked standing.

More precisely, the district court dismissed as "speculative" appellants' argument that the tax credit, by increasing the market for ETBE, would stimulate production of the corn, sugar cane and sugar beets necessary to make the ethanol from which ETBE is derived, and that this increased crop production would, in turn, necessarily result in more agricultural cultivation, with its accompanying environmental dangers, in regions that border wildlife areas appellants (or their members) use and enjoy. The court declared that, even if it presumed that the tax credit would increase corn and sugar production, appellants had advanced no credible evidence that the increased production would necessarily harm or even occur near the wildlife areas in Michigan, Minnesota, and Florida that appellants visit. Because appellants had not established a geographic nexus between the harm they asserted that the tax credit will likely cause and lands that appellants--or their members--use, the court ruled that appellants had not suffered the particularized injury necessary for standing. The court also found that appellants lacked standing because they had not demonstrated that the tax credit was substantially likely to cause any harm to wildlife areas. The district

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court thus granted the Secretary's motion for summary judgment.

On the initial appeal, a divided panel reversed. The majority held Jensen's claims that increased corn production might affect specific wildlife areas in Minnesota sufficient to satisfy the geographic nexus requirement. See Florida Audubon Soc. v. Bentsen, 54 F.3d 873, 880-83 (D.C.Cir.1995). It also concluded that appellants demonstrated all the causation necessary for standing because an EIS might prompt the Secretary to "rescind or otherwise modify the ETBE tax credit." Id. at 882. We subsequently agreed to review the issue of standing in banc. Florida Audubon Soc. v. Bentsen, 64 F.3d 712 (D.C.Cir.1995).


Because Article III limits the constitutional role of the federal judiciary to resolving cases and controversies, see, e.g., Chicago & Grand Trunk Railway Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 402, 36 L.Ed. 176 (1892), a showing of standing "is an essential and unchanging" predicate to any exercise of our jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). In order to satisfy the "irreducible constitutional minimum of standing," a litigant must demonstrate that it has suffered a "concrete and particularized" injury that is: 1) "actual or imminent," id.; 2) caused by, or fairly traceable to, an act that the litigant challenges in the instant litigation, see Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984); and 3) redressable by the court. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). This set of criteria implements Article III by limiting judicial intervention to only those disputes between adverse parties that are " 'in a form ... capable of judicial resolution.' " Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 218, 94 S.Ct. 2925, 2930-31, 41 L.Ed.2d 706 (1974) (quoting Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968)).

The two essential components of the injury element of standing roughly illustrate the aims of the entire standing inquiry. A prospective plaintiff must show that it has suffered a concrete and particularized injury in order to convince the court that it is sufficiently involved in the current legal dispute to have a defined and personal stake in the outcome of the litigation--in other words, that it is a "proper" plaintiff. See Defenders of Wildlife, 504 U.S. at 581, 112 S.Ct. at 2147 (Kennedy, J., concurring). A plaintiff must also show that the particularized injury is at least imminent in order to reduce the possibility that a court might unconstitutionally render an advisory opinion by "deciding a case in which no injury would have occurred at all," Defenders of Wildlife, 504 U.S. at 564 n. 2, 112 S.Ct. at 2138 n. 2 (citing Whitmore v. Arkansas, 495 U.S. 149, 156-60, 110 S.Ct. 1717, 1723-26, 109 L.Ed.2d 135 (1990); Los Angeles v. Lyons, 461 U.S. 95, 102-06, 103 S.Ct. 1660, 1665-67, 75 L.Ed.2d...

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