Sierra Club v. U.S. Def. Energy Support Ctr.
| Decision Date | 29 July 2011 |
| Docket Number | Civil Action No.01:11-cv-41 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | SIERRA CLUB, et al., Plaintiffs, v. UNITED STATES DEFENSE ENERGY SUPPORT CENTER, et al., Defendants, and AMERICAN PETROLEUM INSTITUTE, et al., Defendant-Interveners. |
Plaintiffs Sierra Club and Southern Alliance for Clean Energy bring this action seeking declaratory judgment and injunctive relief for Defendants' alleged violations of federal law arising from purchasing contracts for fuel derived from Canadian oil sands recovered crude oil ("COSRC"). They allege that Defendants' contracts violated Section 526 of the Energy Independence and Security Act of 2007 ("EISA"), 42 U.S.C. § 1714 2, and that Defendants' "Interim Implementation Plan Regarding Section 526 of the Energy Independence and Security Act of 2007" violated the Administrative Procedures Act ("APA")notice-and-comment rule, 5 U.S.C. 553. Plaintiffs also allege that Defendants violated Section 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. § 4332, and Section 706(2) (A) of the APA, 5 U.S.C. § 706 (2) (A), for failing to prepare an environmental impact statement for these contracts and for the Interim Implementation Plan. Plaintiffs now move for summary judgment. Defendants and Defendant-Intervenors move for dismissal, or, in the alternative, for summary judgment, arguing, inter alia, that this Court lacks subject matter jurisdiction to hear these claims. Because Plaintiffs lack standing, the motions to dismiss should be granted.
Defendant Defense Logistics Agency ("DLA") is an agency of the United States Department of Defense ("DoD"), whose component DLA Energy (formerly known as the Defense Energy Support Center) is responsible for procurement, storage, and distribution of fuel for DoD and other federal agencies. DLA Energy generally uses competitive bidding to obtain mobility-related fuels for use in the United States. Companies throughout the country sell to DLA Energy refined petroleum products from a variety of crude oil feedstocks, including light, medium, and heavy crudes from a variety of sources, which are comingled at various stages of the shipping and refining process prior to market.
One source of crude oil used by U.S. refineries is the oil sands in Alberta, Canada. Given their proximity, these oil sandsrepresent roughly 6% of the crude petroleum supplied to all U.S. refiners. It is estimated that the fuel supplied by most refineries to DLA Energy is refined from crude, less than 2% of which is derived from oil sands.
EISA was established to "move the United States toward greater energy independence and security, to increase the production of clean renewable fuels, to protect consumers, to increase efficiency of products, buildings, and vehicles, to promote research on and deploy greenhouse gas capture and storage options, and to improve the energy performance of the federal government, and for other purposes." Pub. L. 110-140, 121 Stat. 1492, 1492 (2007). Section 526, the portion of the EISA at issue in this litigation, provides:
No Federal agency shall enter into a contract for procurement of an alternative or synthetic fuel, including a fuel produced from nonconventional petroleum sources, for any mobility-related use, other than for research or testing, unless the contract specifies the lifecycle greenhouse gas emissions associated with the production and combustion of the fuel supplied under the contract must, on an ongoing basis, be less than or equal to such emissions from the equivalent conventional fuel produced from conventional petroleum sources.
42 U.S.C. § 17142. In response to passage of EISA Section 526, DLA Energy developed its Interim Implementation Plan to provide guidance to the agency's workforce, suppliers, and customers on how DLA Energy will comply with Section 526 on a preliminary basis, with final guidance to follow. The Interim ImplementationPlan relied on DLA Energy's legal analysis and the most commonly used statutory definitions, commercial usage, and knowledge and experience with energy commodities, as well as the best data available regarding lifecycle greenhouse gas emissions for the various fuels. The Interim Implementation Plan concluded that DLA Energy's contracts for petroleum products were not covered by Section 526.
Plaintiffs' suit has three counts. First, they assert that the mobility-related fuel purchase contracts violate EISA Section 526 because (1) fuel derived from oil sands is allegedly synthetic fuel, or alternatively, oil sands are allegedly a nonconventional petroleum source; (2) some mobility-related fuels supplied from DoD to the U.S. military under these contracts are refined from crude derived in part from Canadian oil sands; and (3) the contracts for those fuels omit Section 526's lifecycle greenhouse gas emissions certification. Second, they assert that DLA Energy violated the APA in developing the Interim Plan without following the rulemaking procedures of 5 U.S.C. § 553(b) and that the Interim Implementation Plan is in excess of statutory jurisdiction, authority, or limitations, or short of statutory right in violation of 5 U.S.C. § 706. Third, Plaintiffs assert that, under NEPA Section 102(2) (C), DLA Energy must conduct, for both its mobility-related fuel purchases and the Interim Implementation Plan, an environmental assessment toreview the environmental impacts of these agency activities. Because these assessments were not conducted, Plaintiffs allege DLA Energy violated NEPA and thus the APA.
As a result of these alleged violations, Plaintiffs assert two types of injuries. First, Plaintiffs allege an increased risk of harm to their health, recreational, economic, and aesthetic interests as a result of Defendants' conduct. They argue that DLA Energy's failure to include the lifecycle certification has caused, at least in part, this increased risk to Plaintiffs' respective members. They claim this increased risk will be redressed by requiring Defendants to comply with Section 526, thereby restricting the use of oil sands derived fuels by Defendants and reducing the impacts of the mining, refining, and end use of these fuels, including increased greenhouse gas emissions and global warming.
Plaintiffs also allege that DLA Energy's compliance with APA rulemaking procedures and with NEPA procedures could lead DLA Energy to rethink, and possibly change, its approach and decide to include the Section 526 certification in its current and future contracts.
Before reaching the merits of the case, this Court must first address the Defendants' and Defendant-Intervenors' motions to dismiss for lack of subject matter jurisdiction. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)(citations omitted). Because lack of standing is asserted as a basis for lack of subject matter jurisdiction, Plaintiffs bear the burden of establishing jurisdiction. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citations omitted). Because standing elements are "an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof . . . ." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citations omitted).
As organizations purporting to bring suit on behalf of their members, Plaintiffs must demonstrate that (1) their members would have standing to sue as individuals; (2) the interest they seek to protect are germane to the organizations' purposes; and (3) that the suit does not require the participation of individual members. See Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). Defendants do not contend that Plaintiffs fail to meet the second and third prongs of organizational standing; rather, they argue that Plaintiffs have failed to demonstrate the first prong—that their members would have standing to sue as individuals. To establish their members would have the "irreducible constitutional minimum of standing", Plaintiffs must establish that their members suffered an "injury-in-fact," that was caused by Defendants'conduct and that injury can be redressed by a favorable outcome in this case. Lujan, 504 U.S. at 560. The standing analysis in environmental cases does not examine whether the challenged activity "'will significantly affect' the environment in general . . . rather ... it focuses on whether [plaintiffs] have shown a particularized environmental interest of theirs that will suffer demonstrably increased risk, and whether [defendant's activity] ... is substantially likely to cause the demonstrable increase in risk to their particularized interest." Florida Audubon Soc'y v. Bentsen, 94 F.3d 658, 665 (D.C. Cir. 1996).
Here, Plaintiffs allege both traditional and procedural injuries. A "traditional" injury-in-fact "is an invasion of a legally-protected interest that is (a) concrete and particularized and (b) actual or imminent, not 'conjectural or hypothetical.'" Lujan, 504 U.S. at 560. Plaintiffs allege that their members face an increased risk of harm to their health, recreational, economic, and aesthetic interests due to increased greenhouse gas emissions caused by Defendants' purchases of fuel derived in part from COSRC. In addition to the allegations in the Complaint, Plaintiffs also attached several affidavits to its opposition to Defendants' dispositive motions describing their members' alleged injuries based on these purchases, including diminished recreational and aesthetic enjoyment ofareas in various states across the country, property damage, and economic harm.
The allegations in the complaint and the affidavits do not suffice for traditional injury-in-fact. Plaintiffs base their injuries on climate changes associated with greenhouse gas emissions that have caused or purportedly will cause generalized environmental impacts, such as...
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