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US coastal communities underestimate the danger posed by rising seas
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Assignments
Before we look at the Endangered Species Act, we are going to take a deeper look at how NEPA litigation works. The statute is only the starting point. You have to address the specific facts of the EIS that you are attacking. The first problem is getting standing. While NEPA is intended to provide information for all of the public, the courts still require plaintiffs to show Lujan standing, as we reviewed in Mass v. EPA. In the Haaland case, plaintiffs sued the Department of Interior, headed by Secretary Haaland, for not conducting a proper NEPA review of the offshore lease process in the Gulf of Mexico. We are going to start with the complaint. Read it to find the standing facts asserted by the plaintiffs, and find how they were handled by the court in the Haaland opinion. (Hint – most of the discussion is in the footnotes.) We will return to the complaint and the opinion to see how the plaintiffs present their factual allegations and how the court handles them.
Friends of the Earth v. Haaland – Complaint for Declaratory and Injunctive Relief – Annotated complaint
Friends of the Earth v. Haaland – Opinion (27 Jan 2022) – annotated copy
For contrast, we are going to look at a 5th Cir case on nearly the same standing facts and see what it looks like when a court wants to deny standing to plaintiffs.
Review the highlighted portions – Ctr. for Biological Diversity v. United States Envtl. Prot. Agency, No. 18-60102, 2019 WL 4126355 (5th Cir. Aug. 30, 2019
This is the court’s order dismissing the case based on not finding that the plaintiffs had standing. I have highlighted the key sections so you can scroll through and review the court analysis. The key is that the court rejects claims that point source pollution from rigs affects the entire Gulf. This discussion starts on page 7. The failure to do a proper NEPA review is a procedural rights claim, subject to the relaxed standards for injury in procedural rights claims. Despite this, the plaintiffs fail because the nature of rigs in the Gulf makes it difficult for individuals to show a nexus between a discharge by a specific rig and their injuries proximate to that rig. This allows EPA to escape citizen suit review even if it issues a bad permit. The lesson is to not file an environmental case in the 5th circuit if you can avoid it.
After reviewing standing, read through the Haaland opinion using the annotations to see how the court handles the detailed requests for deeper analysis of the climate change issues posed by the leases.