Karst Environmental Educ. and Protection v. E.P.A., 06-5059.

• Decision Date: 30 January 2007
• Docket Number: No. 06-5059.,06-5059.
• Parties: KARST ENVIRONMENTAL EDUCATION AND PROTECTION, INC., et al., Appellants v. ENVIRONMENTAL PROTECTION AGENCY, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

475 F.3d 1291

KARST ENVIRONMENTAL EDUCATION AND PROTECTION, INC., et al., Appellants v. ENVIRONMENTAL PROTECTION AGENCY, et al., Appellees.

No. 06-5059.

United States Court of Appeals, District of Columbia Circuit.

Argued December 8, 2006.

Decided January 30, 2007.

Appeal from the United States District Court for the District of Columbia (No. 05cv01190).

W. Henry Graddy, IV., pro hac vice, argued the cause for appellants. On the briefs was David G. Bookbinder.

Jennifer L. Scheller, Attorney, U.S. Department of Justice, argued the cause for Federal Appellees. With her on the brief was Todd S. Aagaard, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Maria V. Gillen argued the cause for appellee Tennessee Valley Authority. With her on the brief were Harriet A. Cooper and Frank H. Lancaster.

Robert M. Andersen argued the cause for appellees Inter-Modal Transportation Authority, Inc., et al. With him on the brief was D. Randall Benn.

Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge.

Seeking to halt several local governmental entities in Kentucky from developing a transit park, appellant environmental organizations sued the Environmental Protection Agency, the Department of Housing and Urban Development, and the Tennessee Valley Authority, alleging that these agencies failed to conduct the environmental and historical assessments required, respectively, by the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). Because neither EPA nor HUD engaged in "final agency action" within the meaning of section 704 of the Administrative Procedure Act—a prerequisite for both NEPA and NHPA actions against federal agencies—we affirm the district court's dismissal of the complaint against those two agencies. Although TVA did take final agency action by making a grant to a transit park tenant, because appellants have produced no evidence of continuing TVA authority over the project, we affirm the district court's dismissal of the complaint against TVA for mootness.

I.

"Because we review here a decision granting [a] motion to dismiss, we must accept as true all of the factual allegations contained in the complaint." Swierkiewicz v. Sorema, 534 U.S. 506, 508 n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Viewed that way, the complaint tells the following story:

In 1998, Warren County and the city of Bowling Green, Kentucky, decided to build the "Kentucky Trimodal Transpark" ("Transpark"), an $80 million 4,000-6,000 acre industrial park and transportation complex that would include, among other facilities, a new airport, a new rail hub, and extended highways. Located six miles south of Mammoth Cave National Park, the Transpark site rests on a vast karst plain—a topography characterized by sinkholes, caves, and underground streams, rivers, and groundwater. Adjacent to the site are several areas of historic significance, including the Oakland Freeport Historic District, a site listed in the National Register of Historic Places, and other Reconstruction-era African-American communities that have applied for historic status.

To develop the Transpark, the county and the city created the Inter-Modal Transportation Authority (ITA), a nonprofit corporation authorized, among other things, to apply for and receive grants from federal agencies. In 2004, ITA began construction of the first phase of the Transpark, which included an interior road, water and sewer infrastructure, technical training facilities, and a building for Bowling Green Metalforming ("Metalforming"), an automobile parts manufacturer. During the next few years, the Federal Highway Administration (FHWA) allocated $8.75 million to ITA for highway construction and expansion. FHWA then began the environmental and historical reviews required, respectively, by the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and the National Historic Preservation Act, 16 U.S.C. § 470 et seq. NEPA requires federal agencies to prepare an environmental impact statement (EIS), which assesses a project's environmental impact and identifies alternatives, for all proposed "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C § 4332(C). NHPA requires that before funding or licensing a "[f]ederal or federally assisted undertaking," federal agencies must (1) "take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register," and (2) "afford the Advisory Council on Historic Preservation . . . a reasonable opportunity to comment with regard to such undertaking." 16 U.S.C. § 470f.

Other federal agencies also became involved. The Federal Aviation Administration, which must approve the closing of the existing airport (because it provided substantial funding for its construction), studied the feasibility of replacing the old airport with a new one. Congress appropriated $3.75 million for EPA to spend on water and sewer infrastructure, and another $1.75 million for HUD to spend on a training center. And TVA, pursuant to the "Valley Advantage" contract, awarded $500,000 to Metalforming for the installation of electrical equipment.

Concerned about the Transpark's impact on Mammoth Cave's ecosystem, the karst plain's underground water sources, and the nearby historic sites, Appellants Karst Environmental Education and Protection and Warren County Citizens for Managed Growth, along with some of their board members (throughout this opinion, we refer to appellants collectively as "Karst") filed a complaint alleging that EPA, HUD, and TVA all violated both NEPA and NHPA by failing to conduct the required environmental and historical reviews. ITA, Warren County, and Bowling Green moved to intervene as defendants ("local intervenors"), in response to which Karst filed an amended complaint adding allegations against all three and asking the court to "halt[] all demolition and construction of the Transpark until NEPA and NHPA have been fully complied with." Am. Compl. 27.

The district court granted EPA and HUD's joint motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). "[F]or a court to have jurisdiction over claims seeking judicial review," the district court explained, "it must determine that the action is final." Karst Envtl. Educ. & Prot., Inc. v. EPA, 403 F.Supp.2d 74, 80 (D.D.C. 2005). The court found that HUD took no final agency action because it had yet to act on local intervenors' grant application. Id. at 81. Because the district court concluded that local intervenors' request for EPA advice on the Transpark did not amount to a major federal action that would trigger NEPA, it never determined whether EPA engaged in final agency action. Id. at 80-81 ("`[T]he power to give nonbinding advice to a nonfederal actor' does not constitute a major federal action." (quoting Vill. of Los Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1482 (10th Cir.1990))). The court dismissed Karst's claims against TVA as moot because "the action complained of" — TVA's $500,000 grant to Metalforming — "has been completed and no effective relief is available." Id. at 82. Without separate analysis, the district court also granted local intervenors' motion to dismiss. Id. at 76 n. 1, 82-83. Karst appeals.

II.

Before considering the merits, we must determine whether Karst has Article III standing. See Steel Co. v. Citizens for a Better Envt., 523 U.S. 83, 94-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (holding that federal courts must ensure that they have jurisdiction before considering the merits of a case). The "irreducible constitutional minimum of standing" consists of three elements: (1) an "injury in fact" that is (2) "fairly . . . trace[able] to the challenged action of the defendant," and (3) "likely . . . redress[able] by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (first alteration in original, internal quotations marks and citations omitted). EPA and HUD argue that Karst fails to satisfy the latter two requirements because nothing in the complaint alleges that the two agencies injured Karst by either funding or approving the Transpark. It follows, the two agencies argue, that Karst's injuries from the Transpark development are not redressable.

Contrary to this argument, however, Karst does allege funding by both EPA and HUD—specifically that the Transpark "has already benefited from, and is based on, pervasive federal action in the form of financial assistance from EPA, HUD, and TVA," Am. Compl. 12, and that "a portion of the funding for . . . construction [of the first phase of the Transpark] was federal funding from one or more of the [d]efendants," id. at 15. Assuming the truth of these claims and that Karst will succeed on the merits, as we must for purposes of standing, see City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C.Cir.2003) ("[I]n reviewing the standing question, the court must be careful not to decide the questions on the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims."), these allegations suffice to establish both causation and redressability. Accordingly, we turn to the merits.

As indicated above, the district court dismissed the case against HUD because it took no "final agency action" and against EPA because it took no "major federal action." Karst, 403 F.Supp.2d at 80-81. The district court's decision is unassailable. Relying on the Supreme Court's holding in Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), that "person[s] claiming a right to sue [under NEPA] must identify some `agency action' that [adversely]...