Center for Biological Diversity v. Brennan

• Decision Date: 21 August 2007
• Docket Number: No. C 06-7062 SBA.,C 06-7062 SBA.
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Dr. William BRENNAN, et al., Defendants.
• Court: U.S. District Court — Northern District of California

571 F.Supp.2d 1105

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. Dr. William BRENNAN, et al., Defendants.

No. C 06-7062 SBA.

United States District Court, N.D. California, Oakland Division.

August 21, 2007.

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Brendan R. Cummings, Center for Biological Diversity, Joshua Tree, CA, Matthew D. Vespa, Julie Anne Teel, Center for Biological Diversity, San Francisco, CA, for Plaintiffs.

Ronald J. Tenpas, Assistant Attorney General, Barry A. Weiner, Trial Attorney, Martin J. LaLonde, Department of Justice, Environmental and Natural Resources Division, Washington, DC, James A. Coda, Assistant U.S. Attorney, Office of the U.S. Attorney, San Francisco, CA, for Defendants.

Holly Dawn Gordon, Deborah Ann Sivas, Stanford Law School, Environmental Law Clinic, Stanford, CA, for Jay Inslee and John F. Kerry.

ORDER

SAUNDRA BROWN ARMSTRONG, District Judge.

Before the Court is the plaintiffs' motion for summary judgment [Docket No. 7]; the defendants' motion to dismiss for lack of jurisdiction/alternative motion for summary judgment [Docket No. 48]; and a motion to intervene by Senator John Kerry and Congressman Jay Inslee [Docket No. 53]. After reading and considering the arguments presented by the parties, the Court finds these matters appropriate for resolution without a hearing. See FED. R. Civ. P. 78. For the reasons that follow, the plaintiffs' motion for summary judgment is GRANTED; the defendants' motion to dismiss for lack of jurisdiction/alternative motion for summary judgment is DENIED; and the motion to intervene is DENIED.

BACKGROUND

This matter of first impression concerns executive branch compliance with the provisions of the Global Change Research Act of 1990 (GCRA), 15 U.S.C. §§ 2921-2961, and the standing of three environmental organizations and two legislators to enforce the terms of the Act.

In 1990, Congress enacted the Global Change Research Act ... which established a ten-year research program for global climate issues, id. § 2932, directed the President to establish a research program "to improve understanding of global change," id. § 2933, and provided for scientific assessments every four years that "analyze[] current trends in global change," id. § 2936(3).

Connecticut v. American Elec. Power Co., 406 F.Supp.2d 265, 269 (S.D.N.Y.2005).

The stated purpose of the Global Change Research Act "is to provide for development and coordination of a comprehensive and integrated United States research program which will assist the Nation and the world to understand, assess, predict, and respond to human-induced and natural processes of global change."¹ 15 U.S.C. § 2931(b). To that end, the Act requires periodic preparation and submission of (1) a National Global Change Research Plan that "shall contain recommendations for national global change research" and shall establish "the goals and priorities for Federal global change research which most effectively advance scientific understanding of global change and provide usable information on which to base policy decisions related to global change," and (2) a Scientific Assessment analyzing the effects of global climate change. See 15 U.S.C. §§ 2934, 2936. It is these periodic reports that are in dispute.

"The Chairman of the Council shall submit the [Research] Plan to the Congress within one year after November 16, 1990, and a revised Plan shall be submitted at least once every three years thereafter." 15 U.S.C. § 2934(a). The defendants have not prepared a new Research Plan or Scientific Assessment within the time frame set by the Act. See Docket No. 17, Ex. 5 (April 14, 2005 Report by the U.S. Government Accountability Office (GAO)). The last Research Plan issued was in July 2003.² See Docket No. 17, Ex. 1 a, 1b (A Report by the Climate Change Science Program and the Subcommittee on Global Change Research). The statute required a revised Research Plan by July 2006. None has been forthcoming.

Another provision of the Act requires the periodic preparation of a Scientific Assessment of global change. Title 15 U.S.C. § 2936 imposes the following obligations:

On a periodic basis (not less frequently than every 4 years), the Council, through the Committee, shall prepare and submit to the President and the Congress an assessment which—

(1) integrates, evaluates, and interprets the findings of the Program and discusses the scientific uncertainties associated with such findings;

(2) analyzes the effects of global change on the natural environment, agriculture, energy production and use, land and water resources, transportation, human health and welfare human social systems, and biological diversity; and

(3) analyzes current trends in global change, both human-[induced] and natural, and projects major trends for the subsequent 25 to 100 years.

The last Scientific Assessment was published on October 31, 2000, and submitted to the Congress in November 2000. See Docket No. 17, Ex. 5 (April 14, 2005 Report by the GAO); 65 Fed.Reg. 75319-01 (Dec. 1, 2000), 2000 WL 1759412.³ A new assessment was due in November 2004. See Docket No. 17, Ex. 5 (April 14, 2005 Report by the GAO). As with the Research Plan, this deadline has lapsed. The Scientific Assessment is now more than two and a half years late.

The plaintiffs are the Center for Biological Diversity, Greenpeace, Inc., and Friends of the Earth. They bring this action seeking declaratory and injunctive relief, primarily to declare the defendants in violation of the Global Change Research Act and to compel the defendants to issue the Research Plan and Scientific Assessment as directed by statute. See Docket No. 1 (Compl., at 18). In their complaint, the plaintiffs assert this Court has jurisdiction pursuant to the federal question statute (28 U.S.C. § 1331); the Administrative Procedure Act (5 U.S.C. § 706); and the Mandamus and Venue Act of 1962 (28 U.S.C. § 1361). See Docket No. 1 (Compl.¶ 7).

The defendants are Dr. William Brennan, Acting Director of the United States Climate Change Science Program (sued in his official capacity); the United States Climate Change Science Program; John Marburger III, Director of the Office of Science and Technology Policy and Chairman of the Federal Coordinating Council on Science, Engineering, and Technology (sued in his official capacity); the Office of Science and Technology Policy; and the Federal Coordinating Council on Science, Engineering, and Technology.⁴ In response to the complaint, the defendants assert that they have "initiated the process for producing a revised Research Plan" and that they "are in the process of issuing 21 Assessment and Synthesis reports that will fulfill the requirements [to produce a Scientific Assessment]." Docket No. 49, at 2. The defendants relate that the Climate Change Science Program intends to "complete those reports necessary to comply with section 106 [the Scientific Assessment] by the end of 2007, and the reports not necessary to meet the requirements of section 106 in 2008." Docket No. 49, at 4.

But regardless of whether they have acted in a timely manner, the defendants contend the plaintiffs lack standing to sue for enforcement of the GCRA or to compel the production of the Research Plan and the Scientific Assessment. The defendants argue that because the GCRA does not contain a "citizen-suit" provision, the Act does not allow for enforcement by third-party, private organizations such as the plaintiffs. They further argue that whether the Executive Branch sufficiently delivers information requested by Congress is best determined by Congress. The defendants therefore challenge both the plaintiffs' Article III standing and their statutory standing under the Administrative Procedure Act and/or the Mandamus and Venue Act of 1962.

A. THE DEFENDANTS' MOTION TO DISMISS FOR LACK OF STANDING/ALTERNATIVE MOTION FOR SUMMARY JUDGMENT ARTICLE III STANDING

Article III of the Constitution limits the judicial power of the United States to the resolution of "Cases" and "Controversies." See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 126 S.Ct. 1854, 1860-61, 164 L.Ed.2d 589 (2006). One element of the case-or-controversy requirement is that plaintiffs, based on their complaint, must establish they have standing to sue. See Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). To satisfy Article III standing, a plaintiff must show (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Citizens for Better Forestry v. U.S. Dep't of Agriculture, 341 F.3d 961, 969 (9th Cir.2003). "For purposes of ruling on a motion to dismiss for want of standing," the court "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see also Tyler v. Cuomo, 236 F.3d 1124, 1131 (9th Cir.2000).

1. Injury in Fact

The plaintiffs allege two types of injuries: a "procedural injury" resulting from the lack of public participation and comment on the development of the Research Plan and the Scientific Assessment, and an "informational injury" due to the defendants' failure to disseminate these reports.

a. Procedural Injury

To satisfy the injury in fact requirement, a plaintiff asserting a procedural injury must show that the procedures in question are designed to protect some threatened concrete interest and the reasonable probability of the challenged...