Gravel2Gavel Construction & Real Estate Law Blog
On June 28, the U.S. Court of Appeals for the Ninth Circuit decided the case of Center for Biological Diversity, et al., v. Export-Import Bank of the U.S., affirming the ruling of the District Court, which granted Export-Import Bank of the United States’ (Ex-Im Bank) summary judgement motion finding that, “as a threshold matter,” the plaintiff environmental groups lacked standing to pursue either of their National Historic Preservation Act (NHPA) or Endangered Species Act (ESA)] claims. On appeal, the Ninth Circuit held “that the action is not moot [but] affirm the district court on the question of standing.”
In 2012, Ex-Im Bank authorized nearly $4.8B in financing for two liquid natural gas (LNG) projects in Queensland, Australia, near the Great Barrier Reef. The plaintiff environmental groups challenged these grants on the basis that the Ex-Im Bank violated the ESA, the NHPA, and the Administrative Procedure Act (APA), failing “to follow the proper procedures set forth in the ESA and NHPA before approving financing for the Projects.” In December 2016, the District Court held that the plaintiffs lacked standing because there was no action the court could take that could redress their grievances, and that the controversy was moot because these energy projects had largely been completed. Following the District Court’s ruling, work on the two projects continued, and Ex-Im Bank fully disbursed both of its loans—one of which has been repaid.
On appeal, the Ninth Circuit disagreed that the matter was moot, pointing out that there was a “record vacuum”—the actual loan documents were not in the record and could not be reviewed; accordingly, the Ninth Circuit could not conclude there was no possibility that the controversy was dead and buried by the course of events. Still, the plaintiffs could not demonstrate they had standing to pursue this litigation; the injuries they allege were not attributable to Ex-I’m Bank, but to absent third parties—the project operators. The Ninth Circuit concluded by observing that “Even under the relaxed redressability standards that are properly applied here, on these facts Plaintiffs have failed to show that performance of the additional procedures required under the NHPA and the ESA could redress the alleged environmental injury in this case.”