Foundation on Economic Trends v. Richard Lyng, Secretary of Agriculture

BUCKLEY, Circuit Judge,

dissenting in part and concurring in the judgment:

I cannot join in the majority’s analysis because it reads too much into the Supreme Court’s opinion in Lujan v. National Wildlife Federation, — U.S. -, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), and creates, under the circumstances of this case, an unnecessary “merge[r of] standing under the APA with the merits of a plaintiff’s NEPA claim.” Maj. op. at 85. I believe the plaintiffs have alleged the necessary elements to establish informational standing and a right to judicial review under section 702 of the APA, 5 U.S.C. § 702 (1988). I would affirm the district court, however, on the ground that plaintiffs have failed to state a claim under section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C) (1988).

A. Justiciability

There are two essential parts to the majority’s holding: First, in a suit alleging a violation of NEPA’s section 102(2)(C), the Supreme Court “demand[s]” that the “agency action” required for judicial review under section 702 be the “major Federal action[ ] significantly affecting the quality of the human environment” whose proposal triggers the obligation to prepare an environmental impact statement (“EIS”). Maj. op. at 85. Second, the USDA’s germplasm preservation program is not a sufficiently identifiable action or event to qualify as either “agency action” under section 702 or “major Federal action[]” under NEPA. Id. at 85-87. The first proposition cannot possibly be correct; the second we need not decide.

Sections 702 and 704 of the APA set out three conditions necessary for judicial review of an agency’s affairs. The first is procedural: There must be an identifiable “agency action” that is to be the subject of the court’s review. 5 U.S.C. § 702. Strictly speaking, this is not a standing requirement because it does not relate to the person bringing suit. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 484, 102 S.Ct. 752, 765, 70 L.Ed.2d 700 (1982) (standing focuses on party bringing complaint). The second condition is an aspect of ripeness or exhaustion: Where the substantive statute at issue does not provide for judicial review, the agency action must be “final.” Id. § 704. The third condition is standing, both constitutional and prudential: The plaintiff must be “adversely affected or aggrieved by” the agency action, and his injury must be cognizable “within the meaning of [the] relevant statute,” id. § 702, that is, it must fall within the “zone of interests” sought to be protected by the statute, National Wildlife Fed’n, 110 S.Ct. at 3186.

National Wildlife Federation simply clarifies the degree of factual specificity with which the plaintiff must allege each of these conditions when his right to judicial review is attacked on summary judgment. The Court’s discussion of “agency action” does not undermine our informational standing cases. As one commentator has said, “[National Wildlife Federation ] does not change existing standing rules but may make it more difficult for NEPA plaintiffs to survive a standing challenge at summary judgment stage.” D. Mandelker, NEPA Law and Litigation ch. 4, at 1 (Supp.1990).

The Court in National Wildlife Federation, in fact, assumed the validity of the *88plaintiff organization’s claim of informational standing, but concluded that the organization had failed “to identify any particular ‘agency action’ that was the source of” its informational injuries. 110 S.Ct. at 3194. The only “action” the National Wildlife Federation had alleged was “the failure” of the agency “to provide adequate information and opportunities for public participation.” Id. (internal quotes omitted). Obviously, such a generalized “failure” is not a final decision, order, or ruling on which a court can focus its review authority under the APA. Without such a focus, the court would be undertaking “a general judicial review of the [agency’s] day-to-day operations.” Id.

Here, by contrast, we are called upon to review a specific, readily identifiable final agency decision: the USDA’s November 21, 1986, finding of no significant impact (“FONSI”). Based on the conclusions reached in its own “Environmental Assessment of the Germplasm Program of USDA,” Joint Appendix (“J.A.”) at 92, the agency found that its “activities in the area of germplasm collection, maintenance, evaluation, and distribution” would “not have a significant environmental impact within the purview of [NEPA],” id. at 91. There is no reason why the issuance of this FONSI cannot constitute “agency action.” The FONSI was the USDA’s “final disposition” of whether to prepare an EIS for its ongoing germplasm program. See 5 U.S.C. § 551(6) (defining “order” as “a final disposition”); id. § 551(13) (defining “agency action” to include any “order”). Thus, there is a sufficient focus for the judicial function: We could properly decide whether the USDA’s FONSI was “arbitrary [or] capricious” under section 706. Cf. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 375-76, 109 S.Ct. 1851, 1860, 104 L.Ed.2d 377 (1989) (applying arbitrary-and-capricious standard of review to “agency decision” not to prepare a supplemental EIS for an existing project).

Our requirements for informational standing under NEPA are set out in Competitive Enterprise Institute v. NHTSA, 901 F.2d 107, 122-23 (D.C.Cir.1990). I believe that the Foundation’s general aver-ments of concrete harm to its programmatic interests in disseminating information on the degradation of the human environment (in this case, the diversity of the germ-plasm supply) are sufficient to establish injury-in-fact that is within NEPA’s zone of interests. See id. at 123. The Foundation’s standing was not challenged on summary judgment before the district court; hence, our review of the pleadings and other allegations relating to standing need not meet the heightened standard applied in National Wildlife Federation. See Haase v. Sessions, 835 F.2d 902, 907 (D.C.Cir.1987). Section 702 is satisfied because the FONSI is the identifiable agency action that “was the source of’ the plaintiffs’ informational injury, as required in National Wildlife Federation, 110 S.Ct. at 3194. When the focus is on informational standing, the action that has aggrieved the plaintiff organization may logically be the agency’s final decision not to prepare an EIS.

The majority reads National Wildlife Federation to require more, based on the Court’s statement that a plaintiff organization cannot simply claim that an agency’s entire “program” is the source of its informational injury where that program “is not an identifiable action or event.” Id.; see Maj. op. at 85. The majority takes this rather inexact statement to signify that the necessary “agency action” for NEPA purposes must always be the “program” itself, where the plaintiffs, as here, claim that some ongoing program is major federal action {see 40 C.F.R. § 1508.18(b)(3) (defining major federal action to include “a group of concerted actions to implement a specific policy or plan”)). This conclusion then leads the majority into the contortion of arguing that the USDA’s germplasm activities are not sufficiently concerted to be a “program,” even though the USDA itself in its environmental assessment and FONSI treated the activities as an interrelated project, see J.A. at 91-92. As standing was not challenged until appeal, we should not resolve the fact-dependent “program” question against the plaintiffs as part of the standing inquiry, especially *89when the USDA seems to believe in the existence of a “Germplasm Program,” id. at 92.

The “source of the injury” problem in National Wildlife Federation, I believe, was due in part to the lack of a FONSI. Absent a FONSI, the question of judicial review under section 702 inevitably overlaps with the “proposal” requirement in NEPA. Under section 102(2)(C), “the moment at which an agency must have a final [EIS] ready ‘is the time at which it makes a recommendation or report on a proposal for federal action.’ ” Kleppe v. Sierra Club, 427 U.S. 390, 406, 96 S.Ct. 2718, 2728, 49 L.Ed.2d 576 (1976) (quoting Aberdeen & Rockfish R.R. v. SCRAP, 422 U.S. 289, 320, 95 S.Ct. 2336, 2356, 45 L.Ed.2d 191 (1975) (emphasis in original)). Correspondingly, “the time at which a court enters the process [via section 702] is when the report or recommendation on the proposal is made, and someone protests either the absence or the adequacy of the final impact statement. This is the point at which an agency’s action has reached sufficient maturity to assure that judicial intervention will not hazard unnecessary disruption” to the agency’s “day-to-day decision-making process.” Id. 427 U.S. at 406 & n. 15, 96 S.Ct. at 2728 & n. 15. Where the agency has issued a FONSI, there need be no threshold “proposal” inquiry. The FONSI is a discrete final agency action that may cause an informational injury and may therefore trigger judicial review, even if the court ultimately concludes on the merits that there has been no “recommendation or report on a proposal for federal action.”

If the USDA had ignored the plaintiffs’ demands and had not undertaken an environmental assessment or issued a FONSI, I would agree that plaintiffs could not gain judicial review until they identified some “recommendation or report on [a] proposal ]” under NEPA. But equating the “agency action” that is the sine qua non of judicial review with the “major Federal action[]” allegedly proposed by the agency goes much too far. As we have said,

NEPA was designed to ensure that “important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.” The need to fully assess potential harm before a project is undertaken is a major justification for the broad test courts have laid down for NEPA standing.

City of Los Angeles v. NHTSA, 912 F.2d 478, 492 (D.C.Cir.1990) (citation omitted) (emphasis in original) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989)). See also Marsh, 490 U.S. at 371, 109 S.Ct. at 1858 (“the broad dissemination of information mandated by NEPA permits the public and other government agencies to react to the effects of a proposed action at a meaningful time”) (emphasis added). All that NEPA requires is a “proposal.” The “major Federal action[]” itself may be years away. Withholding judicial review until there is final agency approval of the proposed action would effectively eliminate judicial oversight of NEPA’s procedural requirements. National Wildlife Federation does not require that result.

B. The Merits

Having concluded that the Foundation has adequately established organizational standing based on an injury to its informational interests cognizable under NEPA and that the USDA’s FONSI is the agency action that caused that injury, I would nevertheless affirm on the merits.

In their complaint, plaintiffs allege that “[t]his country and the entire world face a crisis because of the eroding plant gene pool.” Complaint for Declaratory and In-junctive Relief II22, J.A. at 15. This crisis is caused by “developmental and agricultural forces and pressures” that have resulted in the “widespread and irretrievable destruction [of germplasm] in its natural environment.” Id. ¶ 23, J.A. at 16. “Accordingly,” they allege, “it is essential that a well conceived and adequately financed germplasm preservation program be developed as promptly as possible,” id.; unfortunately, the USDA’s germplasm efforts are inadequate. “Because of the [de*90ficiencies] of the program,” plaintiffs claim, “actions by the [USDA] under the program have jeopardized the survival of certain varieties of germplasm of impor-tance_” Id. 1134, J.A. at 21. Plaintiffs also assert that the USDA has violated NEPA by “failpng] to consider and develop alternative approaches to the design of [the] germplasm preservation program” that would achieve more effective preservation. Id. 1142, J.A. at 23-24.

To the extent the plaintiffs are concerned with the general loss of germplasm and the USDA’s alleged failure to prevent it, they have failed to state a claim under NEPA because they have not alleged that the USDA’s program is the proximate cause of the environmental effects they fear. The Supreme Court has counseled that “the terms ‘environmental effect’ and ‘environmental impact’ in § 102 ... include a requirement of a reasonably close causal relationship between a change in the physical environment and the effect at issue.” Metropolitan Edison Co. v. PANE, 460 U.S. 766, 774, 103 S.Ct. 1556, 1561, 75 L.Ed.2d 534 (1983). If the causal chain between the impact on the physical environment from the agency’s action and the environmental effect at issue “is too attenuated,” that alleged effect will “not fall within § 102.” Id. According to the plaintiffs, the degradation of genetic diversity that threatens the food supply is caused by “developmental and agricultural forces and pressures” throughout the world; it cannot be said that the alleged inadequacies in the USDA’s preservation work are the proximate cause of such degradation. The causal connection is “too attenuated.”

To the extent the plaintiffs are concerned with the direct environmental effects that the alleged deficiencies have had on the germplasm physically held in the project’s national repositories or affected by its activities, I would affirm the dismissal of their complaint for the reasons given by the district court. Deficiencies that are part of the status quo in an ongoing program do not by themselves fulfill the “proposal” requirement. There must be a deci-sionmaking process in motion such that the agency “is actively preparing to make a decision on one or more alternative means of accomplishing” its goal. See 40 C.F.R. § 1508.23. The plaintiffs have failed to allege the existence of such a focused process. They would like the USDA to initiate an overhaul of its program, but NEPA cannot be used to achieve that agenda.