Center for Biological Diversity v. Criswell

• Court: District Court, District of Columbia
• Decided: September 15, 2025
• Docket: Civil Action No. 2024-1285
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL : DIVERSITY, et al., : : Plaintiffs, : Civil Action No.: 24-1285 (RC) : v. : Re Document No.: 9 : DAVID RICHARDSON, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

In October 2018, Congress passed the Disaster Recovery Reform Act, which, among

other things, directed the Administrator 1 of the Federal Emergency Management Agency

(“FEMA”), a subdivision of the Department of Homeland Security (collectively, “Defendants”),

to define the terms “resilient” and “resiliency” in a final rule by April 2020. To date, that

rulemaking has not occurred. In May 2024, five nonprofit groups committed to environmental

and clean energy causes (“Plaintiffs”) brought this suit under the Administrative Procedure Act,

5 U.S.C. § 706(1), seeking a court order compelling FEMA to issue a final rule defining those

terms. In July 2024, FEMA issued a notice of proposed rulemaking that would define the terms

“resilient” and “resiliency.” But no final rule has been issued. In October 2024, Defendants

moved to dismiss this case under Federal Rule of Civil Procedure 12(b)(1), arguing that this

1 Pursuant to Federal Rule of Civil Procedure 25(d), former Administrator Deanne Criswell has been substituted for her successor. Court lacks subject matter jurisdiction. For the reasons stated below, Defendants’ motion to

dismiss is granted.

II. BACKGROUND

“The Stafford Act authorizes the President to provide relief in response to ‘major

disasters.’” Barbosa v. U.S. Dep’t of Homeland Sec., 916 F.3d 1068, 1069 (D.C. Cir. 2019); see

Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121 et seq., Pub.

L. No. 100-707, 102 Stat. 4689 (1988). The President has delegated that authority to FEMA.

Barbosa, 916 F.3d at 1069. In 2018, Congress passed the Disaster Recovery Reform Act

(“DRRA”), which amended the Stafford Act. Pub. L. No. 115-254, Div. D, 132 Stat. 3186, 3438

(2018). In relevant part, the DRRA required that

[n]ot later than 18 months after October 5, 2018, the President, acting through the Administrator of the Federal Emergency Management Agency, and in consultation with the heads of relevant Federal departments and agencies, shall issue a final rulemaking that defines the terms “resilient” and “resiliency” for purposes of this subsection.

42 U.S.C. § 5172(e)(5)(A). The term “resiliency” does not appear in that subsection, and the

term “resilient” appears only once:

For the purposes of this section, for disasters declared on or after August 1, 2017, or a disaster in which a cost estimate has not yet been finalized for a project, or for any project for which the finalized cost estimate is on appeal, the President shall estimate the eligible cost of repairing, restoring, reconstructing, or replacing a public facility or private nonprofit facility— ... in a manner that allows the facility to meet the definition of resilient developed pursuant to this subsection.

Id. § 5172(e)(1)(A)(iii). Reading these provisions together, Congress directed FEMA to define

“resilient” in a final rule by April 5, 2020, for purposes of estimating eligible costs. FEMA has

not yet done so.

2 In February 2024, Plaintiff Center for Biological Diversity, a nonprofit conservation

organization, sent FEMA a letter “urging the agency to finally comply” with this mandate.

Compl. ¶¶ 5, 10, ECF No. 1. And before filing this suit, Plaintiffs “submitted a Rulemaking

Petition to FEMA proposing new ‘Energy Justice Priorities’ that would prioritize distributed

renewable energy, energy demand reductions, and electrification in all FEMA funding for energy

needs.” Id. ¶ 12. FEMA did not respond, so in May 2024, Plaintiffs filed this lawsuit. Id. ¶ 5.

Plaintiffs are five nonprofit organizations in the United States and Puerto Rico with

climate and environmental interests: the Center for Biological Diversity, Comité Dialogo

Ambiental, Inc. (“CDA”), Healthy Gulf, New York Communities for Change (“NYCC”), and

The Vessel Project of Louisiana (“The Vessel Project”). Id. ¶¶ 10, 15, 22, 29, 35. Plaintiffs

believe that FEMA “currently focuses assistance related to energy needs on fossil fuel

infrastructure,” and hope that—were FEMA to adopt their proposed definitions of “resilient” and

“resiliency”—FEMA would spend its funding on “distributed renewable energy like rooftop and

community-based solar, weatherization and energy efficiency initiatives, and beneficial

electrification options such as heat pumps, electric stoves and electric vehicle charging.” Id.

¶ 12.

Plaintiffs allege that they and their members are harmed by the status quo. For example,

CDA’s members live in the Salinas Municipality and Guayama Region in Puerto Rico, where

there is a “fossil fuel-fired thermoelectric plant” and “coal plant.” Id. ¶¶ 15, 17. “These fossil

fuel power plants release enormous amounts of toxic pollutants into the environment,” causing

harm to residents, including increased risk of “cancer, respiratory issues, . . . miscarriage, and

other health problems.” Id. ¶ 17. Plaintiffs’ members also suffer from “frequent power outages

and reliability issues,” which they attribute to reliance on “centralized transmission and

3 distribution systems” that rely on “fossil fuel energy infrastructure.” Id. ¶¶ 16, 18, 25, 37. These

power outages also disrupt Plaintiffs’ work. Id. ¶¶ 18, 20. Plaintiff The Vessel Project suffered

a unique harm in April 2024 when a tornado damaged its office. Id. ¶ 38. CDA, Healthy Gulf,

NYCC, and The Vessel Project allege that their “members live in communities where FEMA is

active” and currently “funding the reconstruction of the fossil fuel grid rather than distributed

renewable energy alternatives.” Id. ¶¶ 19, 26, 32, 39. Plaintiffs’ Complaint asks this Court to

“compel agency action unlawfully withheld or unreasonably delayed,” 5 U.S.C. § 706(1),

specifically by ordering Defendants to “promptly” issue a final rule defining the terms “resilient”

and “resiliency.” Compl. at 16–17.

In July 2024, FEMA issued a notice of proposed rulemaking that would define the terms

“resilient” and “resiliency.” 2 Update of FEMA’s Public Assistance Regulations, 89 Fed. Reg.

54966, 54971 (proposed July 2, 2024). FEMA has not issued a final rule defining those terms.

In October 2024, Defendants moved to dismiss the Complaint for lack of subject matter

jurisdiction under Rule 12(b)(1). Defs.’ Mot. to Dismiss, ECF No. 9. Defendants argue that

Plaintiffs lack standing and that their notice of proposed rulemaking moots this case. See Defs.’

Mem. P. & A. in Supp. Mot. to Dismiss (“MTD”) at 3, ECF No. 9-1. The motion is now fully

briefed and ready for this Court’s consideration.

2 FEMA proposed “defining the term ‘resilient’ as ‘able to prepare for threats and hazards, adapt to changing conditions, and withstand and recover rapidly from adverse conditions and disruptions’ and the term ‘resiliency’ as ‘the ability to prepare for threats and hazards, adapt to changing conditions, and withstand and recover rapidly from adverse conditions and disruptions.’” Update of FEMA’s Public Assistance Regulations, 89 Fed. Reg. 54966, 54971 (proposed July 2, 2024).

4 III. LEGAL STANDARD

When considering a motion to dismiss for lack of subject matter jurisdiction under

Rule 12(b)(1), courts “construe the complaint liberally, granting plaintiff[s] the benefit of all

inferences that can be derived from the facts alleged,” and accepting those facts as true. Am.

Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394

F.3d 970, 972 (D.C. Cir. 2005)). Article III courts are courts of limited jurisdiction. NO Gas

Pipeline v. FERC, 756 F.3d 764, 767 (D.C. Cir. 2014). For a court to have jurisdiction over a

case or controversy, the party invoking the court’s jurisdiction has the burden of establishing its

standing. Id. “To claim associational standing, Plaintiffs must show that (1) at least one of their

members would have standing to sue in their own right, (2) the interests the members seek to

protect are germane to their organizations’ purposes, and (3) the members need not participate

individually in the lawsuit.” Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 144 F.4th

296, 305 (D.C. Cir. 2025). Only the first element is at issue here.

“An individual has Article III standing to sue when she can show: (1) she has suffered an

‘injury in fact’ that is concrete and particularized, and actual or imminent rather than conjectural

or hypothetical; (2) the injury is fairly traceable to the challenged action; and (3) it is likely, as

opposed to merely speculative, that the injury will be redressed by a favorable decision.” Ctr.

for Sustainable Econ. v. Jewell, 779 F.3d 588, 596 (D.C. Cir. 2015) (quoting Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560–61 (1992)). Where the injury is “procedural,” courts relax the

traceability and redressability requirements. See Hawkins v. Haaland, 991 F.3d 216, 224–25

(D.C. Cir. 2021). But “[t]hese relaxed standards do not apply to the link between the

government decision and the plaintiff’s injury.” Id. at 225; see City of Dania Beach v. FAA, 485

F.3d 1181, 1186 (D.C. Cir. 2007) (“Though this Court will assume a causal relationship between

5 the procedural defect and the final agency action, the petitioners must still demonstrate a causal

connection between the agency action and the alleged injury.”).

IV. ANALYSIS

Plaintiffs have failed to establish their standing to ask this Court to compel FEMA to

issue a final rulemaking defining “resilient” and “resiliency.” Even assuming that Plaintiffs

adequately alleged cognizable injuries, Plaintiffs fail to establish that their injuries are plausibly

caused by FEMA’s failure to define “resilient” and “resiliency” for purposes of estimating

eligible costs. For similar reasons, Plaintiffs also fail to establish that their injuries could

plausibly be redressed by FEMA defining those terms. Accordingly, the Court grants

Defendants’ motion to dismiss without reaching their mootness argument.

Where a plaintiff alleges a procedural injury—here, the failure to engage in the mandated

rulemaking—a plaintiff must establish two links in the causal chain: “(1) a connection between

the omitted procedure and a government decision and (2) a connection between the government

decision and the plaintiff’s particularized injury.” Hawkins, 991 F.3d at 224. Defendants

concede that the first link is satisfied, but contest the second link. See Defs.’ Reply at 3, ECF

No. 12. Specifically, Defendants argue that “Plaintiffs do not plausibly allege that FEMA’s

failure to define the terms ‘resilience’ or ‘resiliency’ has caused them any injury, or that defining

those terms would redress any such injury.” Id.

Plaintiffs invoke 42 U.S.C. § 5172(e) as the basis of their alleged procedural injury. Pls.’

Opp’n at 4, 13–14, ECF No. 11. As Plaintiffs explain, this provision “requires that FEMA begin,

at minimum, estimating costs for replacing or reconstructing public and private non-profit

facilities,” in a way that meets the definition of resilient. Id. at 4. FEMA has not defined

“resilient,” so FEMA’s cost estimates may not currently account for that definition. That is the

6 scope of FEMA’s alleged procedural wrongdoing. But a procedural right alone is insufficient to

confer Article III standing. WildEarth Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013).

Plaintiffs must connect this government inaction to their particularized injuries. See Hawkins,

991 F.3d at 224. Plaintiffs identify three types of injuries to support their standing: exposure to

pollution that affects the health of Plaintiffs’ members, power outages from centralized “fossil-

fuel based” power infrastructure, and The Vessel Project’s office, which was damaged in a storm

and “might be eligible for FEMA relief.” Pls.’ Opp’n at 7, 10–11.

Even accepting that FEMA would adopt Plaintiffs’ proposed definition of “resilient,”

Plaintiffs fail to establish how that definition, which would be used by FEMA to estimate eligible

costs, would reduce their exposure to pollutants or reduce power outages. Correspondingly,

Plaintiffs fail to establish that FEMA’s failure to adopt that definition has caused their harm.

According to Plaintiffs, their proposed “regulatory approach” would “(a) define certain energy

demand reductions, zero-carbon energy technologies, and beneficial electrification

technologies . . .; (b) explicitly recognize that, collectively, these definitions constitute

‘resiliency’ for FEMA . . .; and (c) require that ‘[i]n providing any financial assistance related to

meeting energy needs . . . FEMA shall prioritize deployment of’ these fossil-free measures.’”

Pls.’ Opp’n at 12. Plaintiffs explain that their approach seeks to “cabin [FEMA’s] discretion by

prioritizing certain spending by the agency.” Id. at 13.

But Plaintiffs fail to explain how FEMA’s cost estimates will cabin its discretionary

spending authority. As Defendants point out, “Plaintiffs do not explain how defining those terms

would affect how FEMA spends federal resources, much less cause FEMA to adopt spending

priorities that Plaintiffs prefer.” Defs.’ Reply at 6. And it is the spending of “federal resources

on distributed renewable energy and energy efficiency rather than funding the rebuilding of the

7 existing fossil fuel energy system” that Plaintiffs ultimately seek through this suit. See Compl.

¶¶ 21, 28, 34, 41. Plaintiffs appear to hide the ball on this issue by suggesting that under the

DRRA, FEMA must “begin, at minimum, estimating costs” to meet the resiliency definition.

Pls.’ Opp’n at 4 (emphasis added). But Plaintiffs fail to provide any legal authority requiring

FEMA to do anything more than estimate costs based on the definition of “resilient;” estimating

costs would appear to fulfill FEMA’s legal duties under 42 U.S.C. § 5172(e)(1)(A). The Court

agrees with Defendants that § 5172(e)(1)(A) “merely directs the President to estimate certain

costs in a certain way, without requiring FEMA to spend funds in any way.” See Defs.’ Reply

at 6. Thus, it is unclear how FEMA’s failure to define “resilient” for purposes of that subsection

has any causal connection to the pollution and power outages Plaintiffs’ members experience.

The Vessel Project’s additional theory fares no better. Plaintiffs fail to explain why The

Vessel Project’s office would not have been damaged were FEMA to define “resilient,” or why

the office is currently ineligible for FEMA relief but would become eligible were FEMA to

define “resilient.” See Pls.’ Opp’n at 11, 14.

In sum, Plaintiffs fail to make the attenuated connection showing that the government

inaction—FEMA’s failure to define “resilient”—caused their alleged harm. And on the other

side of the coin, Plaintiffs fail to explain how defining a term used by FEMA to estimate repair

costs, without cabining spending discretion, will plausibly ameliorate any of their alleged

injuries. Given the statutory scheme at issue, this result is straightforward. And though

Plaintiffs’ injuries might possibly be reduced after the term “resilient” is defined in a final

rulemaking, “a wholly speculative prospect of redress still does not pass muster.” See

Narragansett Indian Tribal Historic Pres. Off. v. FERC, 949 F.3d 8, 13 (D.C. Cir. 2020).

8 Because Plaintiffs have failed to plausibly establish their standing, this Court lacks subject matter

jurisdiction over their claim and must dismiss the Complaint.

V. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (ECF No. 9) is GRANTED.

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: September 15, 2025 RUDOLPH CONTRERAS United States District Judge