Ctr. for Biological Diversity v. Export-Import Bank of the U.S., Case No: C 12-6325 SBA
| Decision Date | 17 September 2013 |
| Docket Number | Case No: C 12-6325 SBA |
| Parties | CENTER FOR BIOLOGICAL DIVERSITY, PACIFIC ENVIRONMENT, and TURTLE ISLAND RESTORATION NETWORK, Plaintiffs, v. EXPORT-IMPORT BANK OF THE UNITED STATES and FRED P. HOCHBERG, in his official capacity as Chairman and President of the Export-Import Bank of the United States, Defendants. |
| Court | U.S. District Court — Northern District of California |
Plaintiffs Center for Biological Diversity ("CBD"), Pacific Environment, and Turtle Island Restoration Network ("Turtle Island") (collectively, "Plaintiffs") bring the instant environmental action against the Export-Import Bank of the United States ("Ex-Im Bank") and Fred P. Hochberg ("Hochberg"), in his official capacity as Chairman and President of Ex-Im Bank (collectively, "Defendants"). Plaintiffs allege that Ex-Im Bank provided financing for a natural gas project in Australia without complying with environmental laws in violation of the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq., the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470, et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706.
The parties are presently before the Court on Defendants' motion to transfer venue to the United States District Court for the District of Columbia pursuant to 28 U.S.C. § 1404(a). Dkt. 15. Plaintiffs oppose the motion. Dkt. 20. Having read and considered thepapers filed in connection with this matter and being fully informed, the Court hereby DENIES Defendants' motion, for the reasons stated below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).
Ex-Im Bank is an independent federal agency tasked with providing loans, guarantees, insurance, and credits to aid in financing and to facilitate the exports of goods and services, imports, and the exchange of commodities and services between the United States and any foreign country or the agencies or nationals of any such country. Compl. ¶¶ 1, 44, Dkt. 1; see 12 U.S.C. § 635(a)(1). Ex-Im Bank is headquartered in Washington, D.C., and is the official export credit agency of the United States. See 12 U.S.C. § 635(a)(1). Ex-Im Bank's "objective in authorizing loans, guarantees, insurance, and credits [is] to contribute to maintaining or increasing employment of United States workers." Id.
The CBD is incorporated in California and its main office is located in San Francisco, California. Compl. ¶ 12. Through science, policy, and environmental law, the CBD advocates for the protection of threatened, endangered, and rare species and their habitats throughout the United States and abroad. Id. The CBD has programs that focus specifically on ocean protection and combating climate change.1 Id. The CBD has more than 39,000 active members and 474,000 online activists. Id. ¶ 13. Its members residethroughout the United States and in many other countries, including Australia.2 Id. Almost 3,000 of the CBD's members reside in the Northern District of California. Galvin Decl. ¶ 3. According to Plaintiffs, the CBD has members and staff that reside in the United States and have specific plans to visit Australia's Great Barrier Reef World Heritage Area generally and the Gladstone area specifically to recreate and to view wildlife. Compl. ¶ 15.
Pacific Environment is a non-profit environmental organization based in San Francisco, California. Compl. ¶ 16. Pacific Environment's mission is to protect the living environment of the Pacific Rim. Id. Pacific Environment is dedicated to promoting international efforts to protect biodiversity and to protect rare and endangered species. Id. As part of Pacific Environment's broader mission to protect the Pacific Rim, it seeks to hold public finance institutions, including Ex-Im Bank, accountable to local communities and the environment through project monitoring to ensure that public money is used to support best environmental protection practices. Id. Pacific Environment has staff and members that live in the United States who have visited the Gladstone area of Australia. Id. ¶ 17
Turtle Island is a non-profit corporation with its principal place of business in Marin County, California. Compl. ¶ 18. Turtle Island operates the Sea Turtle Restoration Project, which is dedicated to the protection and restoration of endangered and threatened species of sea turtles. Id. Turtle Island has over 6,300 members, including members in California3 and Australia, and more than 70,000 online activists and supporters who follow and take action on its campaigns. Id. Turtle Island members each share a commitment to the study, protection, enhancement, conservation, and preservation of the world's marine ecosystems and the wildlife that inhabits the oceans. Id. Turtle Island has worked extensively to conserve and protect sea turtles in the Pacific Ocean from a variety of threats, includingefforts to conserve sea turtles and other marine wildlife in Australia. Id. Turtle Island has staff and members who regularly visit Australia, including the Great Barrier Reef World Heritage Area. Id. ¶ 19.
On May 3, 2012, Ex-Im Bank approved a $2.95 billion direct loan to finance the development and construction of the Australia Pacific Liquefied Natural Gas ("LNG") Project ("the Project") within Australia's Great Barrier Reef World Heritage Area and the Rodds Bay Dugong Protection Area. Compl. ¶¶ 1, 20, 76, 81. The Project will be located in Queensland, Australia. Id. ¶ 69. It is a joint venture between Origin Energy, ConocoPhillips, and the China Petrochemical Corporation (Sinopec). Id.
The Project includes drilling up to 10,000 coal-seam wells in the interior Surat and Bowen Basins west of Brisbane, installing nearly 300 miles of underground pipe to transport the gas to the coast,4 constructing a LNG facility on Curtis Island to process, store, and facilitate transport of the LNG,5 and dredging Gladstone Harbor to enable transport tankers to access the LNG facility. Compl. ¶¶ 69-72. Once operational, tankers will transport the LNG across Port Curtis and typically through the Great Barrier Reef to destinations worldwide. Id. ¶ 72. At maximum capacity, the Project may increase shipping through the Great Barrier Reef Marine Park by 13%. Id.
According to Plaintiffs, the Project will adversely impact the environment and may impact marine wildlife through the destruction of habitats of endangered or threatened species, including the dugong, the green sea turtle, the South Pacific Ocean Distinct Population Segment of the loggerhead sea turtle, the saltwater crocodile, the humpback whale, and the sperm whale. See Compl. ¶¶ 53-66, 69-73, 75-78. Plaintiffs allege that the construction and operation of the Project will result in the emission of substantial amountsof greenhouse gases. Id. ¶ 73. Specifically, Plaintiffs allege that the Project will emit over 11 million tons of carbon dioxide equivalents ("CO2e") per year at maximum capacity. Id.
In 2010, the Project's proponents published an Environmental Impact Statement ("EIS") to document the likely impacts from the construction and operation of the Project. Compl. ¶ 74. The EIS was submitted to Ex-Im Bank and constitutes the Project's Environmental Impact Assessment or equivalent documentation pursuant to Ex-Im Bank's Procedures and Guidelines. Id. According to Plaintiffs, the EIS was not issued by Ex-Im Bank in conformance with the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4335, and thus does not comply with the statute. Id.
The complaint alleges two claims for relief: (1) violation of § 7 of the ESA; and (2) violation of the NHPA and the APA. Compl. ¶¶ 87-98. Plaintiffs' first claim for relief alleges that Defendants violated the ESA by failing to comply with the procedural mandates of § 7 of the ESA. Id. ¶¶ 92-93. Specifically, Plaintiffs allege that Ex-Im Bank failed to request from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service ("the Services") a list of endangered and threatened species present in the action area, and failed to prepare a biological assessment describing the impacts of the Project on these species as required by the ESA. Id. ¶ 90. Plaintiffs further allege that Ex-Im Bank failed to initiate or complete consultation with the Services regarding the impacts of its action on ESA-listed species as required by the ESA. Id. ¶ 91.
Plaintiffs' second claim for relief alleges that Ex-Im Bank failed to generate and collect information regarding the Project's effects on the Great Barrier Reef World Heritage Area, determine whether the effects will be adverse, consider mitigation to avoid those effects, and to properly consult with all parties regarding the Project's effects. Compl. ¶ 97. Plaintiffs allege that Defendants' failure to properly take into account the Project's effects on the Great Barrier Reef World Heritage Area violates the NHPA, is arbitrary, capricious, and otherwise not in accordance with law, and/or constitutes an action unlawfully withheld under the APA. Id. ¶ 98.
Title 28 of the United States Code, section 1404(a), provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. . . ." 28 U.S.C. § 1404(a). The purpose of § 1404(a) is to "prevent the waste of time, energy, and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal quotation marks omitted). The decision whether to transfer an action under § 1404(a) is committed to the sound discretion of the district court. See Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834,...
To continue reading
Request your trial