Center for Biological Diversity v. Andrew Wheeler

C
                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA


    CENTER FOR BIOLOGICAL DIVERSITY,
    et al.,

                   Plaintiffs,

           v.

    JANE NISHIDA, in her official
    capacity as Acting Administrator for the
    United States Environmental Protection                   Civil Action No. 21-119 (RDM)
    Agency, 1 et al.,

                   Defendants,

           and

    STATE OF FLORIDA, et al.,

                  Defendant-Intervenors.


                            MEMORANDUM OPINION AND ORDER

          The Florida Chamber of Commerce (“the Chamber”) and the Association of Florida

Community Developers (“AFCD”) move to intervene in this action under Federal Rules of Civil

Procedure 24(a)(2) and 24(b)(1)(B). Dkt. 29. For the reasons that follow, the Chamber and

AFCD’s (collectively, “Movants”) motion to intervene is DENIED without prejudice.

          Article III of the Constitution limits “[t]he judicial power of the United States” to “Cases”

and “Controversies.” U.S. Const. art. III, § 2, cl. 2. “To state a case or controversy under Article

III, a plaintiff must establish standing.” Ariz. Christian Sch. Tuition Org. v. Winn, 

563 U.S. 125

,

133 (2011). And “[t]he ‘irreducible constitutional minimum of standing,’” in turn, ‘“contains


1
 Jane Nishida, the current Acting Administrator for the United States Environmental Protection
Agency, is substituted for Andrew Wheeler pursuant to Federal Rule of Civil Procedure 25(d).
three elements’: ‘(1) injury-in-fact, (2) causation, and (3) redressability.’” Am. Freedom Law

Ctr. v. Obama, 

821 F.3d 44

, 48 (D.C. Cir. 2016) (quoting Lujan v. Defs. of Wildlife, 

504 U.S. 555

, 560 (1992)). Under the first element, injury-in-fact, a plaintiff’s complained-of injury must

be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.”

Lujan, 504 U.S. at 560

. Under the second element, causation, the injury must be “fairly traceable

to the challenged action of the defendant, and not the result of the independent action of some

third party.”

Id. at 560–61.

And finally, under the third element, redressability, it must be

“likely, as opposed to merely speculative, that the injury will be redressed by a favorable

decision” of the court.

Id. at 561.

        The D.C. Circuit requires “all would-be intervenors [to] demonstrate Article III

standing.” Old Dominion Elec. Coop. v. Fed. Energy Regulatory Comm’n, 

892 F.3d 1223

, 1232

(D.C. Cir. 2018) (citing Fund for Animals, Inc. v. Norton, 

322 F.3d 728

, 732–733 (D.C. Cir.

2003)). When, as here, organizational plaintiffs move to intervene, they may establish Article III

standing on their own behalves (“organizational standing”) “or on behalf of their members

(‘associational standing’).” Env’t Integrity Project v. McCarthy, 

139 F. Supp. 3d 25

, 36 (D.D.C.

2015); see also O.A. v. Trump, 

404 F. Supp. 3d 109

, 142 (D.D.C. 2019); Equal Rights Ctr. v.

Post Props., Inc., 

633 F.3d 1136

, 1138 (D.C. Cir. 2011). The Chamber and AFCD opt for the

latter tact, arguing that “associational standing . . . [is] sufficient” to permit their intervention in

this matter. Dkt. 29-1 at 7 n.2.

        The Court disagrees. “To establish associational standing, an organization must

demonstrate that (a) its members would otherwise have standing to sue in their own right; (b) the

interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim

asserted nor the relief requested requires the participation of individual members in the lawsuit.”



                                                    2

McCarthy, 139 F. Supp. 3d at 38

(quotation marks omitted); see also Nat’l Ass’n of Home

Builders v. EPA, 

667 F.3d 6

, 12 (D.C. Cir. 2011); Am. Fuel & Petrochemical Mfrs. v. EPA, 

937 F.3d 559

, 591–92 (D.C. Cir. 2019). While the second and third of these requirements may be

satisfied, the first is indisputably not.

        The D.C. Circuit has explained that “it is not enough” for a plaintiff asserting

associational standing “to aver that unidentified members have been injured.” Chamber of Com.

v. EPA, 

642 F.3d 192

, 200 (D.C. Cir. 2011) (citing Summers v. Earth Island Inst., 

555 U.S. 488

,

496–500 (2009)). “Rather, the [plaintiff] must specifically identify members who have suffered

the requisite harm.”

Id. at 200–01

(quotation marks and citation omitted); see also Am.

Chemistry Council v. Dep’t of Transp., 

468 F.3d 810

, 815, 820 (D.C. Cir. 2006) (“[A]n

organization bringing a claim based on associational standing must show that at least one

specifically-identified member has suffered an injury-in-fact.”); Pub. Citizen, Inc. v. Trump, 

297 F. Supp. 3d 6

, 18 (D.D.C. 2018) (“[P]laintiff-association [must] identify at least one specific

member who has suffered, or is likely to suffer, an injury in fact.”).

        That specificity is missing here. Movants generally aver that AFCD’s “members include

people, businesses, and experts who participate in the planning, financing, construction, and

maintenance of developments throughout the State,” Dkt. 29-3 at 3 (Pierce Decl. ¶ 5); that the

Chamber’s “[m]embers include businesses of every size from the large multinational companies

to the family businesses” who “provide products and services for, among other things, the

tourism industry, construction, agriculture, retail, manufacturing, conservation, and space

exploration,” Dkt. 29-2 at 2 (Walker Decl. ¶ 4); and that both sets of “members apply for and




                                                  3
obtain 404 permits,” Dkt. 29-2 at 3 (Walker Decl. ¶ 6); Dkt. 29-3 at 2 (Pierce Decl. ¶ 6). 2 But

the questions of who specifically will suffer harm—and when, how, or why they will suffer it—

remain unanswered. The associational-standing doctrine demands more. See Pub. 

Citizen, 297 F. Supp. 3d at 18

(rejecting associational standing where plaintiffs “made no effort—either in

their complaint or in the multiple declarations they have submitted—to identify a specific

member who has suffered, or who is likely to suffer, an injury in fact”).

       Beyond this omission, even if Movants had adequately identified their members, it is far

from clear that those members would possess Article III standing themselves. Movants claim,

for instance, that “success for the Plaintiffs [in this action] would deprive Chamber and AFCD

members of their right to timely action on all permit applications consistent with the Florida

Administrative Procedure Act [(“Florida APA”)].” Dkt. 29-1 at 7–8. Yet, in a footnote,

Movants acknowledge that the Florida statute prescribing time limits for the adjudication of

certain permit applications expressly exempts from its timing requirements the very applications

that Movants’ members will seek.

Id. at 7

n.3. Similarly, Movants claim that, should Plaintiffs

prevail, Movants’ members would lose “the right to a de novo proceeding under the Florida

APA, complete with discovery and fact-finding adduced through the presentation of evidence

before an impartial administrative law judge.”

Id. at 8.

Yet Movants do not address whether the

loss of these procedural benefits is a cognizable injury under Article III. Nor do they explain



2
  Mr. Walker’s declaration refers to “[t]he experience of Mr. W. Michael Dennis, PhD, the
President of Breedlove, Dennis & Associates, Inc.” (“Breedlove”), and asserts that Breedlove is
a member of the Florida Chamber. Dkt. 29-2 at 4 (Walker Decl. ¶ 10). Neither Walker nor
Dennis, however, indicate whether and, if so, how Breedlove would be injured were Plaintiffs to
succeed in this action. To the contrary, the Walker declaration merely asserts that Breedlove
“can attest to the difficulty of the preexisting 404 regime, the benefits enjoyed by Chamber
members under the new regime, and the harm that this lawsuit threatens to inflict on the
Chamber’s members, should it succeed.”

Id. 4

how that purported injury is sufficiently imminent, concrete, or non-speculative, considering that

there is no evidence before the Court that any of Movants’ identifiable members are

contemplating bringing proceedings under the Florida APA or are likely to do so anytime soon.

       For these reasons, the Court is unpersuaded that Movants have satisfied their burden to

demonstrate Article III standing. The Court will, accordingly, deny the Movants’ motion to

intervene without prejudice. Movants may either renew their motion with a showing that they

indeed possess Article III standing or, alternatively, may move for leave to participate as amici in

this matter—a request upon which the Court would look favorably. 3

                                         CONCLUSION

       For the foregoing reasons, it is hereby ORDERED that the Motion to Intervene by the

Florida Chamber of Commerce and Association of Florida Community Developers, Dkt. 29, is

DENIED without prejudice; and it is further

       ORDERED that Movants shall, on or before April 2, 2021, file any renewed motion to

intervene or any motion for leave to participate in this matter as amici.

       SO ORDERED.

                                                      /s/ Randolph D. Moss
                                                      RANDOLPH D. MOSS
                                                      United States District Judge
Date: March 4 , 2021




3
   To the extent Movants renew their motion under Rule 24(a)(2)—intervention of right—they
are directed to further address whether the extant Defendants adequately represent their interests,
particularly in light of Movants’ concession that “[t]he Chamber and AFCD’s defenses will
likely overlap with those the other Defendants are expected to raise.” Dkt. 29-1 at 14.

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