Florida Audubon Society v. Lloyd M. Bentsen, Secretary of the Treasury, and Margaret Richardson, Commissioner of the Internal Revenue Service

94 F.3d 658, 320 U.S. App. D.C. 324, 27 Envtl. L. Rep. (Envtl. Law Inst.) 20098, 43 ERC (BNA) 1072, 78 A.F.T.R.2d (RIA) 6161, 1996 U.S. App. LEXIS 20883, 1996 WL 468696
CourtCourt of Appeals for the D.C. Circuit
DecidedAugust 20, 1996
Docket94-5178
StatusPublished
Cited by618 cases

This text of 94 F.3d 658 (Florida Audubon Society v. Lloyd M. Bentsen, Secretary of the Treasury, and Margaret Richardson, Commissioner of the Internal Revenue Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florida Audubon Society v. Lloyd M. Bentsen, Secretary of the Treasury, and Margaret Richardson, Commissioner of the Internal Revenue Service, 94 F.3d 658, 320 U.S. App. D.C. 324, 27 Envtl. L. Rep. (Envtl. Law Inst.) 20098, 43 ERC (BNA) 1072, 78 A.F.T.R.2d (RIA) 6161, 1996 U.S. App. LEXIS 20883, 1996 WL 468696 (D.C. Cir. 1996).

Opinions

Opinion for the Court filed by Circuit Judge SENTELLE, with whom SILBERMAN, WILLIAMS, GINSBURG, HENDERSON, and RANDOLPH, Circuit Judges, join.

Concurring opinion filed by Circuit Judge BUCKLEY.

Dissenting opinion filed by Circuit Judge ROGERS, with whom EDWARDS, Chief Judge, WALD, and TATEL, Circuit Judges, join.

SENTELLE, Circuit Judge:

The Constitution limits the jurisdiction of the federal judiciary to actual cases or controversies between proper litigants. See Liverpool, New York, & Philadelphia Steam-Ship Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885). In order to qualify as a proper litigant, the party bringing the action must, in the least, demonstrate that it has constitutional standing to invoke the authority of an Article III court. See, e.g., Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952-53, 20 L.Ed.2d 947 (1968). To have constitutional standing, a party must establish that it has “personally ... suffered some actual or threatened injury,” which may be “fairly ... traced to the challenged action” and is “likely to be redressed by a favorable decision” of the court. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982) (internal quotations and citations omitted). A party that fails to demonstrate [662]*662any of these prerequisites cannot seek relief from the federal judiciary.

The fundamental importance of standing has prompted our review in banc' of the district court’s judgment that Diane Jensen, the Florida Audubon Society, the Florida Wildlife Federation, and the Friends of the Earth (“appellants”) cannot sue the Secretary of the Treasury and the Commissioner of the Internal Revenue Service (“Secretary”) for authorizing a tax credit for the use of a particular alternative fuel additive known as ethyl tertiary butyl ether (“ETBE”) without preparing an Environmental Impact Statement (“EIS”). Because the district court properly determined that appellants had demonstrated neither a personal injury nor an injury fairly traceable to the challenged acts of the Secretary, we affirm its decision that appellants lacked standing.

BACKGROUND

The National Environmental Policy Act (“NEPA”) generally requires “agencies of the Federal Government” to “include in every ... report on ... major Federal actions significantly affecting the quality of the human environment” an EIS detailing that effect. See 42 U.S.C. § 4332(2)(C). Regulations implementing this provision allow agencies to categorically exclude a class of actions from the EIS requirement if that class of actions does not “have a significant effect on the human environment.” 40 C.F.R. § 1508.4. In Treasury Directive (“TD”) 75-02, the Secretary of the Treasury concluded that clarifications of tax rules qualify for such a categorical exclusion. See Final Procedures for Implementation of the NEPA Regulations, 45 Fed.Reg. 1828, 1830 (Jan. 8, 1980).

In March 1990, after urging from various members of Congress and comment from other interested parties, the Secretary of the Treasury, through a clarification of an existing rule, expanded a tax credit for the use of certain gasoline-ethanol blends to the use of blends of gasoline and ETBE, which is a fuel additive derived from, but not containing, ethanol. See Alcohol Fuels Credit; Definition of Mixture, 55 Fed.Reg. 8946 (1990) (codified at 26 C.F.R. Part 1). Believing that the ETBE credit fell within the categorical exclusion of TD 75-02, the Secretary did not prepare an EIS before approving the final rule. See Alcohol Fuels Credit, 58 Fed.Reg. at 8947. In the three years after the rule was promulgated, no ETBE production occurred in the United States. 1994, however, finally witnessed the start-up of three plants which, together, may produce up to 3,980 barrels of ETBE per day, or less than one-twentieth of the 102,904 barrels of ethanol that existing facilities can produce daily.

Appellants did not take as long to respond to the new tax credit. In proceedings begun two months after the new regulation was finalized, they sued to permanently enjoin enforcement of the rule and to require the Secretary to prepare an EIS. Upon reviewing cross-motions for summary judgment, the district court concluded that appellants lacked standing.

More precisely, the district court dismissed as “speculative” appellants’ argument that the tax credit, by increasing the market for ETBE, would stimulate production of the corn, sugar cane and sugar beets necessary to make the ethanol from which ETBE is derived, and that this increased crop production would, in turn, necessarily result in more agricultural cultivation, with its accompanying environmental dangers, in regions that border wildlife areas appellants (or then-members) use and enjoy. The court declared that, even if it presumed that the tax credit would increase com and sugar production, appellants had advanced no credible evidence that the increased production would necessarily harm or even occur near the wildlife areas in Michigan, Minnesota, and Florida that appellants visit. Because appellants had not established a geographic nexus between the harm they asserted that the tax credit will likely cause and lands that appellants — or their members — use, the court ruled that appellants had not suffered the particularized injury necessary for standing. The court also found that appellants lacked standing because they had not demonstrated that the tax credit was substantially likely to cause any harm to wildlife areas. The dis-[663]*663triet court thus granted the Secretary’s motion for summary judgment.

On the initial appeal, a divided panel reversed. The majority held Jensen’s claims that increased corn production might affect specific wildlife areas in Minnesota sufficient to satisfy the geographic nexus requirement. See Florida Audubon Soc. v. Bentsen, 54 F.3d 873, 880-83 (D.C.Cir.1995). It also concluded that appellants demonstrated all the causation necessary for standing because an EIS might prompt the Secretary to “rescind or otherwise modify the ETBE tax credit.” Id. at 882. We subsequently agreed to review the issue of standing in bane. Florida Audubon Soc. v. Bentsen, 64 F.3d 712 (D.C.Cir.1995).

DISCUSSION

Because Article III limits the constitutional role of the federal judiciary to resolving cases and controversies, see, e.g., Chicago & Grand Trunk Railway Co. v. Wellman, 143 U.S. 339, 345, 12 S.Ct. 400, 402, 36 L.Ed. 176 (1892), a showing of standing “is an essential and unchanging” predicate to any exercise of our jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).

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94 F.3d 658, 320 U.S. App. D.C. 324, 27 Envtl. L. Rep. (Envtl. Law Inst.) 20098, 43 ERC (BNA) 1072, 78 A.F.T.R.2d (RIA) 6161, 1996 U.S. App. LEXIS 20883, 1996 WL 468696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florida-audubon-society-v-lloyd-m-bentsen-secretary-of-the-treasury-and-cadc-1996.