Western Wood Preservers Institute v. McHugh

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WESTERN WOOD PRESERVERS
INSTITUTE, et al.,

Plaintiffs,
Civil Action No. 12-1253 (ESH)
v.

JOHN M. McHUGH, Secretary
of the Army, et al.,

Defendant.

MEMORANDUM OPINION

Plaintiffs Western Wood Preservers Institute, Treated Wood Council, Southern Pressure

Treaters’ Association, Creosote Council, and Railway Tie Association (“plaintiffs”) have sued

John M. McHugh in his official capacity as the Secretary of the Army, the United States Army

Corps of Engineers, and Rebecca Blank in her official capacity as Acting Secretary of

Commerce (“defendants” or “Corps”). Plaintiffs challenge the Corps’ approval of two regional

conditions to nationwide permits under the Clean Water Act, as well as the issuance of certain

operating procedures for activities that are regulated by that Act. Before the Court is defendants’

motion to dismiss plaintiffs’ complaint under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). (Oct. 22, 2012 [ECF No. 15-1] (“Mot.”).)

FACTUAL BACKGROUND

I. REGIONAL CONDITIONS

The Clean Water Act, 33 U.S.C. §§ 1251-1387, prohibits the discharge of any pollutant

into navigable waters unless authorized by an individual or general permit issued by the Army

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Corps of Engineers. See id. §§ 1311(a), 1344(a), (e). The issuance of an individual permit

requires a case-by-case analysis. See id. § 1344(a). In contrast, general permits may be issued

on a state, regional, or nationwide basis for categories of activities that “will cause only minimal

adverse environmental effects when performed separately, and will have only minimal

cumulative adverse effect on the environment.” Id. § 1344(e)(1); 33 C.F.R. § 322.2(f)(1). Any

party may engage in an activity within the scope of a general permit. Nationwide general

permits may be conditioned or restricted by District and Division Engineers within the Corps,

resulting in what are known as regional conditions. 33 C.F.R. § 330.1(d).

On February 16, 2011, the Corps proposed to re-issue 48 existing nationwide permits and

two new nationwide permits for the five-year period from 2012 through 2017. (See Mot. at 7

(citing 76 Fed. Reg. 9174-01, 9175); Second Amended Complaint, Oct. 3, 2012 [ECF. No. 13]

(“Compl.”) ¶ 15.) Two district offices of the Corps then announced proposed regional conditions

for those nationwide permits: (1) on February 25, 2011, the Portland District proposed a regional

condition that would prohibit nationwide permittees from using “wood products treated with

biologically harmful leachable chemical components,” including various wood preservatives, “to

come in contact with waters or wetlands” in the State of Oregon (Compl. ¶ 16); and (2) on March

4, 2011, the Alaska District proposed a regional condition that would prohibit nationwide

permittees from using products treated with creosote and pentachlorophenol in certain waters in

Alaska (Compl. ¶ 17) (collectively, “the Regional Conditions”). The nationwide permits were

published on February 21, 2012. (Compl. ¶ 18 (citing 77 Fed. Reg. 10184).) The Oregon

Regional Condition was approved on March 16, 2012 (Compl. ¶ 19), and the Alaska Regional

Condition was approved on March 19, 2012 (Compl. ¶ 20).

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 Plaintiffs allege that the Regional Conditions were issued in violation of mandatory

procedural requirements under the Administrative Procedures Act (Claims 1-3, 8, and 9), Army

Corps regulations (Claim 4), the National Environmental Policy Act (Claim 5), the Endangered

Species Act (Claim 6), and the Regulatory Flexibility Act (Claim 7). (Compl. ¶¶ 26-72.)

II. SLOPES PROCEDURES

The Endangered Species Act, 16 U.S.C. § 1531-1544 (“ESA”), provides certain

protections for species listed as “threatened” or “endangered.” Id. § 1533(a). Relevant to this

case, the Act provides that federal agencies must ensure that any proposed agency action will not

“jeopardize the continued existence of any endangered species or threatened species or result in

the destruction or adverse modification of [that species’ critical habitat].” Id. § 1536(a)(2). The

determination of what constitutes a “critical habitat” is to be made by the Secretary of the

Interior or the Secretary of Commerce, who have delegated that responsibility to the U.S. Fish

and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”),

respectively. Id. § 1532(15). Thus, federal agencies must consult with the FWS or NMFS

whenever an agency action “may affect” an endangered or threatened species. 50 C.F.R. §

402.14(a). Formal consultation with those entities results in their issuance of a “biological

opinion,” assessing whether the species or its habitat is likely to be jeopardized, and if so,

identifying any “reasonable and prudent alternatives” that may exist to avoid that jeopardy. 50

C.F.R. § 402.14(h)(3).

In order to streamline the ESA consultation process, the Corps has adopted several

Standard Local Operating Procedures for Endangered Species, known as “SLOPES” procedures,

for certain recurring activities. Each of these procedures set out design criteria for categories of

recurring activities. The Corps then consults with the NMFS to receive a biological opinion on

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whether the use of those design criteria would jeopardize the existence or critical habitats of any

threatened or endangered species. (Compl. ¶ 21.) If the NMFS agrees that a set of SLOPES

procedures complies with the ESA, then the Corps may issue permits for any proposed project

that complies with those design criteria without seeking further consultation from the NMFS.

On November 2, 2011, the Corps consulted with NMFS on a new set of procedures,

known as SLOPES IV, which addressed construction or maintenance of certain in-water and

over-water structures in Oregon. (Compl. ¶¶ 21-22; Mot. Ex. A.) One of the design criteria in

SLOPES IV provided that treated wood could not be used as part of an in-water or over-water

structure. (Compl. ¶ 23.) On April 5, 2012, the NMFS issued a biological opinion that those

design criteria would not jeopardize any endangered or threatened species or their critical

habitats, and therefore projects that satisfy those design criteria would comply with the ESA.

(Compl. ¶ 22; Mot. Ex. B.) If, however, a proposed project did not comply with the design

criteria in the SLOPES IV procedures, that would not prevent the issuance of a permit for that

project, the Corps would simply need to request additional consultation from the NMFS.

Plaintiffs allege that the SLOPES IV procedures were issued in violation of mandatory

procedural requirements under the Administrative Procedures Act and the ESA (Claim 10), the

National Environmental Policy Act (Claim 11), and the Regulatory Flexibility Act (Claim 12).

(Compl. ¶¶ 73-84.)

ANALYSIS

Defendants have filed a motion to dismiss plaintiffs’ complaint, arguing that plaintiffs

lacked constitutional standing to bring any of their claims, that they lacked prudential standing to

bring certain of their claims, and that certain of their claims should be dismissed for failure to

state a claim.

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I. ARTICLE III STANDING

To establish constitutional standing, plaintiffs must demonstrate (1) that they have

suffered an injury-in-fact, (2) that the injury is fairly traceable to the defendant’s challenged

conduct, and (3) that the injury is likely to be redressed by a favorable decision. See NB ex rel.

Peacock v. Dist. of Columbia, 682 F.3d 77, 81 (D.C. Cir. 2012) (citing Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992)).

Plaintiffs bear the burden of establishing each element of standing. Lujan, 504 U.S. at

561. However, on a motion to dismiss, the Court “must accept as true all material allegations of

the complaint, and must construe the complaint in favor of the complaining party.” Ord v. Dist.

of Columbia, 587 F.3d 1136, 1140 (D.C. Cir. 2009) (quoting Warth v. Seldin, 422 U.S. 490, 501

(1975)).

Plaintiffs are trade associations representing manufacturers, distributors and suppliers of

treated wood throughout the United States. (Compl. ¶ 1.) They have filed suit both on their own

behalf and on behalf of their individual members.

A. Associational Standing

Plaintiffs allege that their members have suffered two types of injury-in-fact. First, that

as a result of the challenged regulations, they have suffered lost sales because builders in Oregon

and Alaska prefer to use materials other than treated wood so that they can take advantage of the

Regional Conditions and the SLOPES IV procedures. (Plaintiffs’ Opposition to Defendants’

Motion to Dismiss, Nov. 8, 2012 [ECF No. 16] (“Opp’n”) at 12-13.) Second, plaintiffs argue

that their members suffered procedural injuries when the Corps failed to comply with APA

rulemaking obligations in issuing the challenged regulations. (Opp’n at 13.)

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 To sue on behalf of its members, a trade association 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.” Hunt v.

Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977); accord Am. Library Ass’n

v. Fed. Commc’ns Comm’n, 401 F.3d 489, 492 (D.C. Cir. 2005). Defendants concede that

elements (b) and (c) are met, but dispute that plaintiffs have established that their members

would otherwise have standing to sue in their own right. (Mot. at 11-12.) Specifically,

defendants point to the fact that plaintiffs have not identified a single member firm that has

suffered the injuries they allege, as required under Supreme Court precedent that “plaintiff-

organizations [must] make specific allegations establishing that at least one identified member

had suffered or would suffer harm.” Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009);

see also Chamber of Commerce v. E.P.A., 642 F.3d 192, 199-200 (D.C. Cir. 2011) (“[I]t is not

enough to aver that unidentified members have been injured. Rather, the petitioner must

specifically identify members who have suffered the requisite harm.” (internal quotation marks

and citations omitted)).

Despite this clearly established requirement, plaintiffs have not identified any specific

member who has suffered either of these alleged harms. Instead, plaintiffs insist that by

requesting such detail, defendants “seek to hold Plaintiffs to the more demanding evidentiary

standard of a summary judgment motion.” (Opp’n at 1.) To the contrary, the D.C. Circuit has

explained that if standing is challenged, a petitioner “‘should establish its standing by the

submission of its arguments and any affidavits or other evidence appurtenant thereto at the first

appropriate point in the review proceeding’—either ‘in response to a motion to dismiss for want

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of standing’ or, in the absence of such a motion, ‘with the petitioner’s opening brief.’”

Rainbow/PUSH Coal. v. Fed. Commc’ns Comm’n, 396 F.3d 1235, 1239 (D.C. Cir. 2005)

(quoting Sierra Club v. E.P.A., 292 F.3d 895, 900 (D.C. Cir. 2002)); see also Common Cause v.

Biden, 2012 WL 6628951, at *9 n. 6 (D.D.C. Dec. 21, 2012) (finding that plaintiffs had

conceded that they lacked associational standing by failing to respond to defendants’ argument in

their motion to dismiss that plaintiffs had not specifically identified any of their members who

suffered the alleged harm). Thus, because plaintiffs have not identified any specific member

firm to have suffered the alleged harm, they do not have standing to sue on behalf of their

members in a representational capacity.

B. Organizational Standing

Plaintiffs also bring suit on their own behalf as trade associations. Defendants do not

appear to challenge the traceability or redressability of any injuries-in-fact plaintiffs may have

alleged on their own behalf, but they do challenge whether they have sufficiently alleged any

such injury. Plaintiffs allege that they have suffered three types of injuries-in-fact:

environmental injury, informational injury, and procedural injury.

1. Environmental Injury

Plaintiffs argue that they have suffered environmental injuries from the challenged

regulations. Specifically, they claim that the challenged regulations bias the marketplace in

favor of competing materials (i.e., plastic, steel, and concrete) “that may have potential harmful

environmental impacts.” (Compl. ¶ 47.) This, in turn, they claim “has injured the associations

and undermined the associations’ environmental objectives.” (Opp’n at 15.)

Undoubtedly, injury-in-fact can be based on non-economic harms, including harms to

environmental interests. See Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (“We do not

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question that [environmental] harm may amount to an ‘injury-in-fact’ sufficient to lay the basis

for standing under . . . the APA.”) However, “the ‘injury-in-fact’ test requires more than an

injury to a cognizable interest. It requires that the party seeking review be himself among the

injured.” Id. at 734-35. Thus, the “[s]tanding analysis does not examine whether the

environment in general has suffered an injury.” Ctr. for Biological Diversity v. U.S. Dep’t of

Interior, 563 F.3d 466, 478 (D.C. Cir. 2009). Instead, a plaintiff must establish that he will

suffer the effects of the environmental injury in a “personal and individual way.” Id. For

example, the Supreme Court has explained that although “one living adjacent to the site for

proposed construction of a federally licensed dam has standing to challenge the licensing

agency’s failure to prepare an environmental impact statement,” there can be no standing “for

persons who have no concrete interests affected—persons who live (and propose to live) at the

other end of the country from the dam.” Lujan, 504 U.S. at 572 n. 7; see also Sierra Club, 405

U.S. at 735 (finding no standing where the alleged injury would be felt only by those who used

the particular national parks affected by the action and the plaintiff had failed to allege that either

it or its members actually used those parks for any purpose).

Like the plaintiffs in Lujan, plaintiffs here are not themselves located near the areas

affected by the challenged regulations. Indeed, none of the plaintiff organizations is based in

either Oregon or Alaska; they are in Washington State, the District of Columbia, Georgia,

Louisiana, and Pennsylvania. (Compl. ¶¶ 4-9.) Thus, plaintiffs have not shown that they would

suffer any possible environmental harm in a “personal and individual way.” Ctr. for Biological

Diversity, 563 F.3d at 478.

Nor can plaintiffs rely on their purported organizational interests in using treated wood in

environmentally-responsible ways to establish injury. The Supreme Court has expressly noted

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that “a mere ‘interest in a problem,’ no matter how longstanding the interest and no matter how

qualified the organization is in evaluating the problem, is not sufficient by itself to render the

organization ‘adversely affected’ or ‘aggrieved’ within the meaning of the APA,” Sierra Club,

405 U.S. at 739. Thus, absent some showing of an environmental injury to plaintiffs themselves,

plaintiffs have not established that they have suffered an injury-in-fact resulting from the

potential environmental impact of the challenged regulations.

2. Informational Injury

Plaintiffs also assert that they have suffered an injury to their “informational interest in

federal agency analysis and consideration of environmental and economic issues relating to

treated wood.” (Opp’n at 14.) This argument seems to be based on plaintiffs’ belief that

defendants violated several of the rulemaking requirements of the APA and other statutes and

thereby deprived plaintiffs of information to which they were entitled, such as notice of proposed

rules or certain environmental or economic analyses. (See id.)

Although both parties address plaintiffs’ various standing arguments as though they apply

with equal force to all of plaintiffs’ claims, the Court notes that standing must be assessed on a

claim-by-claim basis. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). In the

Court’s opinion, most of plaintiffs’ claims are not even amenable to analysis based on

informational injury-in-fact.

To the extent that plaintiffs’ claims allege violations of APA and Corps rulemaking

procedures, any injury suffered under those claims is more properly regarded as a procedural

injury and is discussed below. See infra Section I.B.3. This applies to plaintiffs’ claims 1-4, 8,

9, and the part of claim 10 that arises under the APA. (See Compl. ¶¶ 26-42, 58-78.) Similarly,

claim 6 and part of claim 10 are based on alleged violations of the ESA’s procedural

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requirements and cannot be read to assert any informational injury. (See Compl. ¶¶ 49-53, 73-

78.) Finally, neither the parties nor the Court has identified any case that would recognize a

claim (such as plaintiffs’ claims 7 and 12) under the Regulatory Flexibility Act based on an

informational injury-in-fact, rather than a procedural injury. Thus, the only claims that could

arguably be premised on an informational injury are claims 5 and 11, which challenge the Corps’

failure to prepare an environmental impact statement for the Regional Conditions or SLOPES IV

procedures, respectively. (Compl. ¶¶ 43-48, 79-81.)

For purposes of informational standing, “a plaintiff suffers an ‘injury in fact’ when the

plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute.” Fed.

Election Comm’n v. Akins, 524 U.S. 11, 21 (1998); Am. Soc. for Prevention of Cruelty to

Animals v. Feld Entm’t, Inc., 659 F.3d 13, 23 (D.C. Cir. 2011). Under plaintiffs’ view of the

law, both the Regional Conditions and the SLOPES IV procedures are final agency actions, such

that the Corps was required under the National Environmental Policy Act (“NEPA”) to prepare

an environmental assessment (EA) or environmental impact statement (EIS) analyzing the

impact of that action. (See Compl. ¶¶ 43-48, 79-81.) Thus, because the Corps did not prepare an

EA or an EIS, plaintiffs argue they were deprived of access to information that was required to

be publicly disclosed and have suffered an informational injury.

An informational injury, like any other injury-in-fact, must be concrete and

particularized, rather than “generalized.” Akins, 524 U.S. at 23. “Allegations of injury to an

organization’s ability to disseminate information may be deemed sufficiently particular for

standing purposes where that information is essential to the injured organization’s activities, and

where the lack of the information will render those activities infeasible.” Competitive Enter.

Inst. v. Nat’l Highway Traffic Safety Admin., 901 F.2d 107, 122 (D.C. Cir. 1990). While there is

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a substantial question as to whether plaintiffs’ sparse allegations on this point are sufficient to

establish that the information that would have been contained in an EIS is essential to their

activities, 1 the Court need not resolve this issue because it concludes that plaintiffs do not have

prudential standing to sue under NEPA. See infra Section II.

3. Procedural Injury

Plaintiffs argue that they, like their members, have suffered procedural injuries by not

being permitted to participate in the rulemaking process that they argue is required by the APA.

(Opp’n at 13.)

A plaintiff may establish standing based on a procedural injury only if (1) the government

violated a procedural right that was designed to protect their threatened concrete interest, and (2)

the violation in fact resulted in injury to that concrete, particularized interest. Ctr. for Law &

Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005).

In this case, neither side has addressed, and the Court need not resolve, whether any of

the statutes in question were designed to protect the interests of the plaintiff trade associations

because the Court concludes that plaintiffs have not shown that they have suffered any injury to a

concrete, particularized interest of theirs. As discussed above, plaintiffs have not shown that

they—the trade associations themselves—have suffered or will suffer any environmental injury.

See supra at 7-9. Moreover, even if plaintiffs could demonstrate an injury to their informational

1
In their complaint, plaintiffs state that they engage in such activities as “address[ing] regulatory
matters affecting [their] members,” “monitor[ing] and respond[ing] to legislation and regulatory
activities related to the treated wood industry,” “advocat[ing] for environmentally sound
standards for treated wood manufacture and use,” and “promot[ing] the economical and
environmentally sound use of treated wood crossties.” (Compl. ¶¶ 6-9.) In their opposition,
where they attempt to explain their alleged informational injury, plaintiffs do little more than
state that they have an interest in “federal agency analysis and consideration of environmental
and economic issues relating to treated wood,” and that such information is needed “to perform
their core representational and advocacy functions on behalf of the treated wood industry.”
(Opp’n at 14.)
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interests as relates to claims 5 and 11, the Court has determined that they do not have prudential

standing to raise those claims, and thus, it need not decide whether they have also suffered an

injury to their procedural rights under those claims.

II. PRUDENTIAL STANDING

The standing requirement encompasses “both constitutional limitations on federal-court

jurisdiction and prudential limitations on its exercise.” Warth, 422 U.S. at 498. Even if a

plaintiff establishes Article III standing, a court must determine whether there are any prudential

reasons to decline to exercise its jurisdiction. For example, section 702 of the APA requires that

a complainant be “adversely affected or aggrieved . . . within the meaning of a relevant statute.”

5 U.S.C. § 702. This requirement has been interpreted to mean that the interest a plaintiff asserts

must be within the “zone of interests” that is intended to be protected by the statute on which the

claim is based. Ass’n of Data Processing Serv. Orgs. Inc. v. Camp, 397 U.S. 150, 153 (1975).

Under the law of this Circuit, prudential standing requires a plaintiff to demonstrate either

(1) that it is an intended beneficiary of the statute that forms the basis of its claim, or (2) that it is

a “suitable challenger” to enforce the statute, meaning that its “interests are sufficiently

congruent with those of the intended beneficiaries that the litigants are not more likely to

frustrate than to further . . . statutory objectives.” Scheduled Airlines Traffic Offices, Inc. v.

Dep’t of Defense, 87 F.3d 1356, 1359 (D.C. Cir. 1996) (internal quotation marks and citation

omitted).

Defendants argue that claims 5 and 11 must be dismissed because plaintiffs lack

prudential standing to file suit under NEPA. (Mot. at 21-24.) As the Supreme Court has noted,

NEPA’s zone of interests extends to “protecting the physical environment.” Metro. Edison Co.

v. People Against Nuclear Energy, 460 U.S. 766, 773 (1983). Thus, this Circuit has consistently

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required that in order to bring suit under NEPA, a plaintiff must allege an “environmental harm.”

See, e.g., California Forestry Ass’n v. Thomas, 936 F. Supp. 13, 21 (D.D.C. 1996) (citing

Competitive Enter. Inst., 901 F.2d at 124). For example, in ANR Pipeline Co. v. Fed. Energy

Regulatory Comm’n, 205 F.3d 403 (D.C. Cir. 2000), the D.C. Circuit held that the plaintiff did

not have prudential standing to sue under NEPA because it “ha[d] not alleged that it will suffer

any environmental injury as a result of the Commission’s action.” Id. at 408; see also Nat’l

Wildlife Fed’n v. Hodel, 839 F.2d 694, 712 (D.C. Cir. 1988) (holding that “affiants voicing

environmental concerns” could bring suit for failure to prepare an EIS under NEPA).

As discussed above, plaintiffs here have not successfully alleged any environmental

harm. Even if they could establish that the environment would likely be harmed by the use of

products other than treated wood, plaintiff organizations themselves are not at risk of harm from

any such environmental impacts because they are not located anywhere near the waters affected

by the challenged regulations. See supra Section I.B.1. Nor are plaintiffs’ general allegations

(Compl. ¶¶ 45-46) that the environment may be harmed by the use of products other than treated

wood sufficient to bring them within NEPA’s zone of interests. To sue under NEPA, a

plaintiff’s interests must be “systematically, not fortuitously” aligned “with the interests of those

whom Congress intended to protect.” Hazardous Waste Treatment Council v. Thomas, 885 F.2d

918, 924 (D.C. Cir. 1989) (“HWTC IV”). Plaintiffs’ ultimate interest is in promoting the use of

treated wood products by preventing the implementation of regulations that they believe

encourage the use of competitor products. (See Compl. ¶ 25 (alleging that “treated wood

producers, distributors and resellers have lost sales to parties in Oregon [and Alaska] who would

have preferred to use treated wood for their projects in or over the waters and wetlands of

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Oregon but were forced to use alternative materials to take advantage of the nationwide general

permits and the programmatic biological opinion”).)

This case therefore falls squarely within this Circuit’s holding in HWTC IV. There, an

organization of hazardous waste treatment companies sought stricter environmental regulations.

The Court noted that although their “immediate interest is in more stringent treatment standards,”

the “ultimate interest of those firms is in making money.” 885 F.2d at 924. Specifically,

“generators of hazardous waste would have greater need to treat their wastes prior to disposal,

and the member treatment firms would gain economically by providing the required treatment.”

Id. at 924. The Court declined to find prudential standing, noting that “judicial intervention may

defeat statutory goals if it proceeds at the behest of interests that coincide only accidentally with

those goals.” Id. at 925 (citing Hazardous Waste Treatment Council v. E.P.A., 861 F.2d 277,

283 (D.C. Cir. 1988)).

As in HWTC IV, plaintiffs’ attempt to articulate concern for the environment is “no more

than an economic injury in disguise.” Trinity Cnty. Concerned Citizens v. Babbitt, 1993 WL

650393, at *6 (D.D.C. Sept. 20, 1993). Plaintiffs are interested in attacking regulations that

arguably may discourage the use of the building material with the greatest profit potential for

their members—treated wood. Although that interest may “fortuitously” be aligned with

environmental concerns associated with the use of alternatives to treated wood, that is

insufficient to establish prudential standing. HWTC IV, 885 F.2d at 924-25; see also Thomas,

936 F. Supp. at 22 (“While Plaintiffs also assert that the Interim Guidelines will adversely affect

forest health, . . . their alleged concern for the health of the forest is no more credible than the

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waste treatment companies’ concern for protecting health and the environment alleged in HWTC

IV.”). Thus, plaintiffs do not have standing to bring claims 5 and 11 under NEPA. 2

III. REGULATORY FLEXIBILITY ACT

Plaintiffs’ claims 7 and 12 allege that the Corps violated the mandatory procedures of the

Regulatory Flexibility Act (“RFA”) in adopting the Regional Conditions and SLOPES IV

procedures, respectively. (See Compl. ¶¶ 54-57, 82-84.) Specifically, plaintiffs challenge the

Corps’ failure to prepare either an initial regulatory flexibility analysis under 5 U.S.C. § 603 or a

final regulatory flexibility analysis under 5 U.S.C. § 604 without certifying that no such analysis

was necessary, as required by 5 U.S.C. § 605. (Id.)

As discussed above, the Court does not believe that plaintiffs have adequately alleged any

injury-in-fact sufficient to confer Article III standing for those claims. See supra Section I.

However, even if plaintiffs had established injury-in-fact, the Court concludes that they would

not have standing to bring a claim under the RFA because they do not meet the requirements of

the RFA’s judicial review provision, set forth in section 611. Additionally, plaintiffs have not

alleged facts sufficient to state a claim under the RFA.

Judicial review under the RFA is governed exclusively by section 611. See 5 U.S.C. §

611(c) (“Compliance or noncompliance by an agency with the provisions of this chapter shall be

subject to judicial review only in accordance with this section.”). Section 611(a) identifies the

specific sections of the Act that are subject to judicial review, and it does not include section

2
Defendants also argue that plaintiffs do not have prudential standing to sue under the Clean
Water Act, and thus, claims 1-4, 8, and 9 must be dismissed. (Mot. at 19-21.) As discussed
above, the Court does not believe that plaintiffs have adequately alleged any injury-in-fact
sufficient to confer Article III standing for any of those claims. See supra Section I. Moreover,
although it may well be true that plaintiffs lack prudential standing under the CWA, that is
irrelevant here, where it does not appear that plaintiffs’ claims arise under the CWA. Instead, the
claims challenged by defendant arise directly under the APA and allege violations of its
rulemaking provisions.
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603. Id. § 611(a). Thus, the Court cannot review the agency’s compliance with section 603. See

Allied Local & Reg’l Mfrs. Caucus v. E.P.A., 215 F.3d 61, 79 (D.C. Cir. 2000) (finding that

because section 611(a) does not include section 603 on the list of sections subject to judicial

review, the court “may not review EPA’s handling of these issues in terms of the agency’s

compliance with the RFA”).

Additionally, with respect to sections 604 and 605, only “a small entity that is adversely

affected or aggrieved by final agency action is entitled to judicial review of agency compliance”

with those sections. 5 U.S.C. § 611(a). Plaintiffs have not alleged that they themselves are small

entities covered by the RFA. Thus, they have not demonstrated that they have standing to bring

suit under that statute on their own behalf. See Nw. Mining Ass’n v. Babbit, 5 F. Supp. 2d 9, 13

(D.D.C. 1998) (upholding plaintiff’s standing under RFA based on uncontested assertion that

plaintiff met the definition of “small entity” in the RFA). 3

Finally, defendants argue that plaintiffs fail to state a claim under the RFA because that

statute only requires an agency to consider the effect of a proposed action on entities that will be

directly regulated by the action, which neither plaintiffs nor their members will be. (Mot. at 25-

26.) The Court agrees. This Circuit has held that the RFA only requires an agency to consider

the economic impact of a proposed regulation on “regulated small entities.” Mid-Tex Elec.

Coop., Inc. v. Fed. Energy Regulatory Comm’n, 773 F.2d 327, 342 (D.C. Cir. 1985). That

includes only “‘small entities which will be subject to the proposed regulation,’—that is, those

3
Plaintiffs do allege that “[t]he majority of members of the Plaintiff associations—hundreds of
companies—are small businesses as defined by the Small Business Administration.” (Opp’n at
28.) Thus, if plaintiffs had established that they had standing to sue on behalf of their members,
and assuming that the definition of small business used by the Small Business Association
corresponds to the definition used in the RFA, this would be enough to give plaintiffs standing to
sue in a representational capacity under the RFA. However, the complaint would still fail to
state a claim under the RFA, as described below. See infra at 16-17.
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‘small entities to which the proposed rule will apply.’” Cement Kiln Recycling Coal. v. E.P.A.,

255 F.3d 855, 869 (D.C. Cir. 2001) (emphasis added) (quoting Mid-Tex, 773 F.2d at 342).

Neither plaintiffs nor their members are subject to the proposed regulations contained in the

Regional Conditions or the SLOPES IV procedures. Instead, those regulations affect individuals

seeking to comply with nationwide permitting requirements or to undertake in-water or over-

water construction projects. See supra at 1-4. Plaintiffs and their members are only affected by

the regulations indirectly, when those regulated entities make business decisions about which

building materials to use in their projects.

Aeronautical Repair Station Ass’n, Inc. v. Fed. Aviation Admin., 494 F.3d 161 (D.C. Cir.

2007), on which plaintiffs rely, is not to the contrary. In that case, the Court held that contractors

and subcontractors of an air carrier were “directly affected” by regulations that required drug and

alcohol testing for all air carrier employees. Id. at 177. However, that case differed sharply from

the facts of this case; there, although it was the air carriers themselves who were responsible for

ensuring compliance with the rule, the regulation expressly required that the employees of

contractors and subcontractors be tested, so there was little question that the contractors

themselves were “subject to the proposed regulation,” as required by Mid-Tex. Id. Here, the

regulation says nothing about manufacturers of treated wood and imposes no obligations on

them, much less on the trade associations that represent them.

Thus, because neither plaintiffs nor their members are properly considered “subject to the

requirements of the rule,” the Corps was not obligated to consider whether there would be “a

significant economic impact” on them, and even if one were to assume the facts alleged by

plaintiffs to be true, they have not stated a claim for which relief may be granted under the RFA.

See Mid-Tex, 773 F.3d at 342.

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IV. CLAIM 10

Defendants argue that plaintiffs’ claim 10 must be dismissed as to the NMFS for failure

to state a claim under the ESA. 4 (Mot. at 26-29.) As discussed above, the Court does not

believe that plaintiffs have adequately alleged any injury-in-fact sufficient to confer Article III

standing for that claim. See supra Section I. However, even if plaintiffs had established

standing to bring claim 10, the Court concludes that they have not stated a claim under the ESA

against NMFS.

As discussed above, the ESA requires that federal agencies consult with the FWS or

NMFS before undertaking any action that “may affect” an endangered or threatened species.

Consistent with that requirement, the Corps consulted with the NMFS regarding its adoption of

the SLOPES IV procedures. The NMFS then issued a biological opinion finding that use of the

procedures would not jeopardize any endangered or threatened species or their critical habitats.

As part of the NMFS consultation requirement, the ESA specifies that agencies must use

“the best scientific and commercial data available.” See 16 U.S.C. § 1536(a)(2). Plaintiffs allege

that the NMFS failed to consider the 2009 NMFS Guidelines, which, according to plaintiffs,

“endorsed the use of treated wood in aquatic environments below a significance level of 50

treated wood pilings,” and therefore failed to consider the “best scientific and commercial data

available,” in violation of both the ESA and APA’s rational decision-making requirement.

(Compl. ¶¶ 74-78.)

4
Both parties refer to plaintiffs’ claims “against NMFS.” (See, e.g., Mot. at 29; Opp’n at 31.)
NMFS is not a named defendant in this case. However, the Secretary of Commerce, Rebecca
Blank, who is named as a defendant in her official capacity, has delegated authority for ESA
consultation to the NMFS. See supra at 3. Thus, the Court assumes that these arguments relate
to Defendant Blank.
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 The Court concludes that, even assuming all of plaintiffs’ allegations to be true, plaintiffs

have not stated a claim under the ESA against NMFS. The ESA provides that when an agency

submits a written request to the NMFS for a biological consultation on a proposed action, the

NMFS must then evaluate whether that proposed action would jeopardize any endangered or

threatened species or their critical habitats. Here, the proposed agency action at issue was the

adoption of the SLOPES IV procedures, which provided for expedited approval of construction

projects that did not use treated wood, among other things. Thus, the only question the NMFS

was charged with answering in its biological opinion was whether those procedures—addressing

projects that did not use treated wood—would harm any endangered species. The 2009 NMFS

Guidelines on the use of treated wood, therefore, had no bearing on the issue.

As defendants correctly point out, plaintiffs’ claim 10 is thus more properly construed as

an argument that the NMFS should have considered the biological impact of the use of treated

wood. (See Mot. at 26-27.) Unfortunately, the ESA does not require, or even permit, the NMFS

to evaluate an action other than the one proposed by the agency. The NMFS is instructed only to

determine “whether the action, taken together with cumulative effects, is likely to jeopardize”

endangered species. 50 C.F.R. § 402.14(g)(4) (emphasis added); see also Forest Conservation

Council v. Espy, 835 F. Supp. 1202, 1217 (D. Idaho 1993) (“Nor is NMFS required to develop

and evaluate alternatives to the action proposed by the [agency]; it must simply evaluate the

effects of the proposed action . . . .”) (emphasis in original); Pac. Coast Fed’n of Fishermen’s

Ass’ns v. NMFS, 1998 WL 1988556, at *10 (W.D. Wa. May 29, 1998) (“Under the ESA, NMFS

must analyze the action as proposed by the proponent agencies.”) (emphasis in original). Nor

was the NMFS entitled to alter the proposed action into something more or less restrictive; it is

only if the NMFS finds that an action will, in fact, jeopardize an endangered species, that it may

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identify alternative courses of action that it believes would avoid that jeopardy. 50 C.F.R.

§ 402.14(h)(3). The NMFS did not make such a finding in this case; it determined that the

SLOPES IV procedures would not jeopardize any endangered species, and therefore it had no

occasion to consider the biological impact of the use of treated wood.

Thus, even accepting plaintiffs’ allegations as true, they have not stated a claim against

the NMFS under the ESA.

CONCLUSION

For the foregoing reasons, defendants’ Motion to Dismiss is granted. A separate Order

accompanies this Memorandum Opinion.

/s/
ELLEN SEGAL HUVELLE
United States District Judge

Date: February 27, 2013

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