Florida Audubon Soc. v. Bentsen, 94-5178

• Decision Date: 02 June 1995
• Docket Number: No. 94-5178,94-5178
• Citation: 54 F.3d 873
• Parties: , 312 U.S.App.D.C. 40, 75 A.F.T.R.2d 95-2576, 25 Envtl. L. Rep. 21,207 FLORIDA AUDUBON SOCIETY, et al., Appellants, v. Lloyd M. BENTSEN, Secretary of the Treasury, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 873

54 F.3d 873

40 ERC 2012, 312 U.S.App.D.C. 40, 75

A.F.T.R.2d 95-2576,

25 Envtl. L. Rep. 21,207

FLORIDA AUDUBON SOCIETY, et al., Appellants, v. Lloyd M. BENTSEN, Secretary of the Treasury, et al., Appellees.

No. 94-5178.

United States Court of Appeals, District of Columbia Circuit.

Argued March 27, 1995.

Decided June 2, 1995.

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

David C. Shilton, U.S. Dept. of Justice, Washington, DC, argued the cause for appellees. With him on the brief were Lois J. Schiffer, Asst. Atty. Gen., Albert M. Ferlo, U.S. Dept. of Justice, and Debra Kohn, I.R.S., Washington, DC.

Before: WALD, SENTELLE, and ROGERS, Circuit Judges.

Opinion for the court by Circuit Judge ROGERS.

Dissenting opinion by Circuit Judge SENTELLE.

ROGERS, Circuit Judge:

This appeal presents the question whether appellants, three environmental organizations and Diane Jensen, ¹ have standing under the National Environmental Policy Act ("NEPA") to challenge the failure of the Secretary of the Treasury and the Commissioner of the Internal Revenue Service (together "the Secretary") to prepare an environmental impact statement prior to promulgating a final rule to allow a tax credit for an alternative fuel additive known as ethyl tertiary butyl ether ("ETBE"). The district court found that appellants lacked standing and granted summary judgment to the Secretary. Because we conclude that Ms. Jensen has standing, and we need not resolve the remaining standing claims, we reverse.

I.

Section 40 of the Internal Revenue Code provides a tax credit of 60 cents for each gallon of alcohol used in the production of a "qualified mixture" of alcohol and gasoline. 26 U.S.C. Sec. 40(a), (b)(1) (1988 & Supp. V 1994). ² Prior to 1990, ETBE did not qualify for the tax credit because, while derived in part from ethanol (an alcohol produced by fermenting sugar contained in corn, sugar beets, and sugarcane), the final mixture contains no ethanol. Without the tax credit, ETBE could not compete commercially with a similar fuel additive, methyl tertiary ether. In 1988, sixty-one United States senators, including representatives from corn and sugar producing states, urged the Secretary to announce that ETBE qualifies for the tax credit.

In 1989, the Secretary issued a proposed rule that would re-interpret "qualified mixture" to include blends derived from but not containing alcohol. See Alcohol Fuels Credit; Definition of Mixture, 54 Fed.Reg. 48,639 (Nov. 24, 1989). Explaining that the rule was based on "policy considerations," 54 Fed Reg. at 48,639, the Secretary's notice indicated that the proposed ETBE tax credit:

will increase the substitution of ETBE for other octane enhancers that cause more pollution. Second, it makes ETBE a more viable means of increasing the oxygen content of gasoline, which should help smooth the transition to oxygenated fuels in those areas that are not in compliance with carbon monoxide standards. Third, it encourages the substitution of ETBE-gasoline blends (gasohol). ETBE does not absorb water, which means it is easier to transport than gasohol, and it can be blended into the gasoline with less pollution than the 'splash blending' of gasohol. Fourth, it may increase the demand of domestic ethanol because ETBE is easier to use than ethanol, which would expand this alternative market for America's farmers. Fifth, ETBE is a fuel, not just an octane enhancer, and it will displace some gasoline consumption. Substituting a renewable and domestically-produced fuel for imported petroleum will enhance national energy security and will improve the trade balance.

Id. at 48,640 (emphasis added). Comments submitted to the Secretary anticipated that the proposed tax credit would enlarge the market for sugar-containing crops such as corn and sugarcane. The National Corn Growers Association stated the new rule would "help open the door to a whole new market for the nation's corn farmer." Letter from Alan Kemper, President, National Corn Growers Ass'n, to the Commissioner of the Internal Revenue Service (Dec. 8, 1989).

In 1990, the Secretary promulgated a final rule. Identical to the proposed rule, it interpreted Section 40's reference to a "qualified mixture" to include products derived from alcohol "even if the alcohol is chemically transformed in producing the product so that the alcohol is no longer present as separate chemical in the final product." Alcohol Fuels Credit; Definition of Mixture, 58 Fed.Reg. 8946 (1990) (codified at 26 C.F.R. Part 1). In the notice accompanying the final rule, the Secretary rejected the suggestion that the National Environmental Policy Act ("NEPA"), 42 U.S.C. Sec. 4332, required him to prepare an environmental impact statement ("EIS") for this rule modification because Treasury Directive ("TD") 75-02 provided a "categorical exception" from the EIS requirement for IRS regulations "interpreting, implementing, or clarifying" Internal Revenue Code provisions.

Appellants filed a complaint for a declaratory judgment against the Secretary pursuant to 28 U.S.C. Sec. 2201 and Federal Rule of Civil Procedure 57, and a permanent injunction barring the Secretary from enforcing the final rule on the ground that the Secretary had violated NEPA, 42 U.S.C. Sec. 4332, by promulgating the ETBE tax credit without preparing an EIS. Asserting "a serious potential for harmful environmental consequences," appellants alleged that neither the Secretary "nor any other agency has undertaken any analysis of the ability of existing soil conservation and other environmental protection programs to mitigate adverse environmental consequences resulting from the ETBE tax credit." Appellants requested an order directing the Secretary to rescind the final rule and not to reissue a final rule until an adequate EIS has been prepared. They argued that the categorical exemption under TD 75-02 was invalid because it failed, contrary to NEPA regulations, 40 C.F.R. Sec. 1508.4, to provide for "extraordinary circumstances" in which a normally excluded action may have a significant environmental effect requiring preparation of an EIS.

With regard to their standing, appellants alleged that the tax credit would stimulate increased corn cultivation in Minnesota and Michigan, and increased sugarcane farming in Florida. Appellants asserted in their complaint that they regularly used wildlife refuges and other locations in these regions that would likely be adversely impacted as a result of this anticipated increase in farming. They further claimed that the Secretary's failure to prepare an EIS deprived them of information they needed to protect the areas in question.

In response to the parties' cross-motions for summary judgment on standing, the district court granted the Secretary's motion. The district court concluded that appellants had not satisfied the geographical nexus and causation requirements necessary to establish standing under NEPA. Appellants filed this appeal, and our review is de novo. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Harbor Ins. Co. v. Stokes, 45 F.3d 499, 501 (D.C.Cir.1995); Washington Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C.Cir.1989).

II.

To meet the case or controversy requirement of Article III of the Constitution, a litigant in the federal courts must demonstrate that the litigant has suffered (1) an actual or threatened injury that (2) is fairly traceable to the challenged action and (3) is likely to be redressed by a favorable decision. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); City of Los Angeles v. National Highway Traffic Safety Admin., 912 F.2d 478, 483 (D.C.Cir.1990). In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992), the Supreme Court explained that to satisfy the injury-in-fact requirement, a litigant must demonstrate "an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. at 2136 (citations and internal quotations omitted). Moreover, the Court noted that to satisfy the "causal connection between the injury and the conduct complained of--the injury has to be 'fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.' " Id. 504 U.S. at 560, 112 S.Ct. at 2136 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976)).

To have standing under NEPA, appellants must show that the Secretary's alleged noncompliance with NEPA has "adversely affected" or "aggrieved" them, and that they are within the zone of interests protected by NEPA. City of Los Angeles, 912 F.2d at 492; Committee for Auto Responsibility (C.A.R.) v. Solomon, 603 F.2d 992, 997 (D.C.Cir.1979), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 599 (1980); Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 702. Under NEPA, a litigant is "aggrieved" by the agency's failure to prepare an EIS only if the litigant can show, first, that the failure "creat[es] ... a risk that serious environmental impacts will be overlooked," see City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir.1975); see also City of Los Angeles, 912 F.2d at 492 ("NEPA gives rise to a cognizable injury from denial of its explanatory process, so long as there is a reasonable risk that environmental harm may occur."); and second, that the litigant has "a sufficient geographical nexus to the site of the challenged project that [the litigant] may be expected to suffer whatever environmental...