United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 16, 2005 Decided July 1, 2005
No. 04-5327
NATIONAL PARKS CONSERVATION ASSOCIATION, ET AL.,
APPELLANTS
v.
CRAIG MANSON, IN HIS OFFICIAL CAPACITY AS
ASSISTANT SECRETARY OF INTERIOR, FISH AND WILDLIFE
AND PARKS, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(03cv02330)
Abigail M. Dillen argued the cause for appellants. On the
briefs were Timothy J. Preso and Douglas L. Honnold.
Kathryn E. Kovacs, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
David C. Shilton and Eric G. Hostetler, Attorneys.
Before: SENTELLE , RANDOLPH, and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
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RANDOLPH, Circuit Judge: The Bull Mountain Power
Company sought permission from a state agency to construct a
coal-fired, electric generating plant in Roundup, Montana, in the
vicinity of Yellowstone National Park and a federal wilderness
area. The state agency issued a permit after receiving a letter
from an official of the Department of the Interior stating that the
power plant would not adversely affect visibility in Yellowstone
Park or the wilderness area. The National Parks Conservation
Association and other environmental conservation organizations
(“National Parks”) sued in district court, claiming that the
Interior Department violated the Clean Air Act, 42 U.S.C.
§§ 7401-7671q. The district court dismissed the suit on the
ground that plaintiffs lacked standing. We reverse.
I.
The proposed Roundup Plant lies between Yellowstone
National Park and the UL Bend Wilderness Area. Its proximity
to protected federal lands triggered the Prevention of Significant
Deterioration provisions of the Clean Air Act. Under these
provisions, which were designed “to preserve, protect, and
enhance the air quality in national parks [and] national
wilderness areas,” 42 U.S.C. § 7470(2), (3), EPA must forward
proposals for the construction of “major emitting facilities” to
the “Federal Land Manager” and to the “Federal official”
responsible for the areas potentially affected. 42 U.S.C.
§ 7475(d)(1), (2)(A). The National Park Service manages
Yellowstone. The U.S. Fish and Wildlife Service is responsible
for the UL Bend Wilderness Area. They are the Federal Land
Managers in this case. The federal official with oversight over
both bodies is the Secretary of the Interior.
The Clean Air Act does not give these federal officials
authority to issue or reject permit applications. But it charges
them with “an affirmative responsibility to protect the air
3
quality” in the protected areas, and requires them to
“consider . . . whether a proposed major emitting facility will
have an adverse impact.” § 7475(d)(2)(B). The federal officials
fulfill these responsibilities by transmitting to the state authority
their findings regarding the potential air-quality ramifications of
the proposed project. No permit shall issue if “the Federal Land
Manager demonstrates to the satisfaction of the State that the
emissions from such facility will have an adverse impact on the
air quality-related values (including visibility) of such lands.”
§ 7475(d)(2)(C)(ii). Although the state permitting authority thus
retains final decision-making authority, a federal impact report
is not purely advisory. If the state authority chooses to disregard
an adverse impact determination, it must -- in accordance with
federal requirements for state implementation plans -- explain its
decision in writing and publish the explanation. 40 C.F.R.
§ 51.307(a)(3); MONT. ADMIN . R. 17.8.1109(3).
The facts of this case are as follows. On January 14, 2002,
the Bull Mountain Power Company applied to the Montana
Department of Environmental Quality (“DEQ”) for a permit for
the Roundup Plant. On August 12, the DEQ published a draft
permit for public comment, having furnished the National Park
Service and U.S. Fish and Wildlife Service notice of the pending
application. On December 18, following statistical and
modeling analysis, the two Federal Land Managers sent a letter
and a report formally notifying the Montana DEQ that the
proposed Roundup Plant would “cause perceptible visibility
impairment at” Yellowstone and UL Bend.
Two days later, Bull Mountain Power voiced its objection
to officials at the Interior Department. The company later
submitted written comments, arguing that the original federal
analysis was flawed because it failed to take into account
weather conditions at Yellowstone. (The comments did not
mention UL Bend.) In response, the Department’s Air
4
Resources Division conducted further analysis. This only
served to reaffirm the original adverse impact conclusion. On
January 7, 2003, Air Resources prepared a letter reiterating the
initial determination that the Roundup Plant would adversely
affect air quality at Yellowstone and UL Bend. On January 10,
Assistant Secretary Manson rejected the proposed staff letter and
prepared a new letter, withdrawing the December 18 finding of
adverse impact. Despite objections from Air Resources staff,
and officials of the National Park Service and the Fish and
Wildlife Service, the Assistant Secretary sent the withdrawal
letter, which represented the final federal action in the matter.
On January 31, relying on Interior’s reversal of positions, the
Montana DEQ approved the Roundup Plant permit application.
National Parks brought suits challenging the permit in
Montana state court and in federal district court. In the federal
action it claimed that Assistant Secretary Manson violated the
Administrative Procedure Act when he withdrew the initial
report without adequately discharging his procedural obligation
to “consider” the potential adverse impact on air quality in
Yellowstone and UL Bend. 42 U.S.C. § 7475(d)(2)(B). In the
state litigation, the Montana Supreme Court ruled in favor of
National Parks, vacated the Montana DEQ’s issuance of the
Roundup Plant permit and ordered the DEQ to revisit its
conclusions. Mont. Envtl. Info. Ctr. v. Mont. Dep’t of Envtl.
Quality, 326 Mont. 502 (2005). The permit application is now
before the Montana DEQ on remand.
II.
In order to satisfy Article III’s standing requirements,
plaintiffs must demonstrate injury-in-fact (concrete and
particularized, actual or imminent), caused by the defendant and
capable of being redressed by a court order. Friends of the
Earth v. Laidlaw, 528 U.S. 167, 180-81 (2000); Lujan v.
5
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The district
court assumed, without deciding, that National Parks had
suffered a cognizable injury. But the court determined that
National Parks had not satisfied the two other standing
requirements and entered a judgment dismissing the action, a
judgment we review de novo. Nat’l Wrestling Coaches Ass’n v.
Dep’t of Educ., 366 F.3d 930, 937 (D.C. Cir. 2004).
A.
National Parks’ complaint alleged that its members
regularly use and enjoy Yellowstone and UL Bend. It claims to
have suffered a “procedural injury” from the Assistant
Secretary’s failure to conduct a reasoned determination
regarding the proposed plant’s impact on air quality in these
areas. Interior does not deny that National Parks has alleged an
injury, but it takes issue with the proper characterization of that
injury, arguing that National Parks’ claim is simply a challenge
to the substance of Interior’s action. Regardless whether the
alleged injury is procedural or direct, it satisfies the first aspect
of the standing test. As an organization dedicated to the
conservation of, and whose members make use of, public lands,
National Parks suffers a cognizable injury from environmental
damage to those lands. See Sierra Club v. Morton, 405 U.S.
727, 734 (1972). In the alternative, if the Assistant Secretary’s
alleged inadequate consideration of air quality constitutes a
procedural injury, this would “cause a distinct risk to a
particularized interest of the plaintiff” -- that is, conservation of
those public lands plaintiffs’ members use. Fla. Audubon Soc’y
v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc); see also
Wyo. Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 51
(D.C. Cir. 1999).
The procedural-substantive distinction may still seem to be
important because “‘[p]rocedural rights are special’: The person
6
who has been accorded a procedural right to protect his concrete
interests can assert that right without meeting all the normal
standards for redressability and immedicacy.” Lujan, 504 U.S.
at 572 n.7. “A plaintiff who alleges a deprivation of a
procedural protection to which he is entitled never has to prove
that if he had received the procedure the substantive result
would have been altered. All that is necessary is to show that
the procedural step was connected to the substantive result.”
Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89, 94-95
(D.C. Cir. 2002). Thus, if we have before us a procedural
injury, this would appear to affect our analysis of causation and
redressability. But this case does not quite fit into the mold of
the major procedural rights standing cases. The hypothetical in
footnote 7 of Lujan represents the archetypal procedural injury:
an agency’s failure to prepare a statutorily required
environmental impact statement before taking action with
potential adverse consequences to the environment. Id. Our
decision in Florida Audubon involved a similar fact pattern. 94
F.3d at 662-63. A common element in those cases is that the
same actor was responsible for the procedural defect and the
injurious final agency action. Under those circumstances, the
case law relieves the plaintiff of the need to demonstrate that (1)
the agency action would have been different but for the
procedural violation, and (2) that court-ordered compliance with
the procedure would alter the final result. Lujan, 504 U.S. at
572 n.7.
In this case the ultimate source of injury is two steps
removed from the alleged procedural defect. There is the intra-
federal link between the Assistant Secretary’s alleged failure to
consider air quality impact and his decision to withdraw the
adverse impact letter, and there is the federal-state link between
withdrawal of the impact report and the Montana DEQ’s
decision to approve the Roundup Plant permit. The relaxation
of procedural standing requirements would excuse National
7
Parks from having to prove the causal relationship regarding the
Interior Department’s action, but its burden regarding the action
of the Montana authorities would not change. See Ctr. for Law
& Educ. v. Dep’t of Educ., 396 F.3d 1152, 1160 (D.C. Cir. 2005)
(“[T]his Court assumes the causal relationship between the
procedural defect and the final agency action. Nonetheless,
[plaintiffs] still must demonstrate a causal relationship between
the final action and the alleged injuries.”).
If the claim is that Interior’s withdrawal of its adverse
impact letter was arbitrary and capricious, then we need only
concern ourselves with the connection between the federal
action and the outcome of the permitting process in Montana.
On the other hand, if the claim should be viewed as a procedural
injury, we need not inquire into whether the procedural defect
influenced the final action of the Interior Department. Either
option leaves us in essentially the same place. Regardless
whether National Parks’ injury is procedural or substantive in
nature, the question of standing must turn on the strength of the
link between Interior’s action and the ultimate permitting
decision of the Montana DEQ.
B.
To satisfy the causation requirement of Article III standing,
National Parks had to show a causal link between Interior’s
withdrawal of its adverse impact letter and the Montana DEQ’s
decision to issue the power plant permit. See Nat’l Wrestling
Coaches, 366 F.3d at 938 (citing Lujan, 504 U.S. at 562). A
“substantial probability” that Interior’s action “created a
demonstrable risk, or caused a demonstrable increase in an
existing risk, of injury to the particularized interests of” National
Parks will suffice. Fla. Audubon, 94 F.3d at 669.
8
The Montana DEQ has discretionary authority to conduct
an independent evaluation when it receives a federal adverse
impact report. MONT . ADMIN . R. 17.8.1109. But in this case it
did not do so. Interior’s withdrawal of its impact letter was
virtually dispositive of the state permitting decision. MONT.
DEP ’T OF ENVTL. QUALITY, PERMITTING & COMPLIANCE DIV.,
RECORD O F DECISION FOR ROUNDUP POWER PROJECT , Jan. 31,
2003, reprinted in App. 48-49 (“[T]he federal land managers
have withdrawn their finding of adverse visibility impact on
nearby mandatory federal Class I areas, so DEQ has not
determined that an adverse impact on visibility may result from
the proposed action.”). In addition, federal regulations and the
Montana air quality regulations are intertwined such that the
challenged federal action “alters the legal regime to which the
[local] agency action is subject.” Bennett v. Spear, 520 U.S.
154, 169 (1997). Had Interior not withdrawn its adverse impact
report, the Montana DEQ would have been bound to consider
that report before proceeding with its permitting decision and,
crucially, would have been required to justify its decision in
writing if it disagreed with the federal report. MONT . ADMIN . R.
17.8.1109. This regime is not specific to Montana. All states
must promulgate rules such as Montana’s in order to comply
with federal regulations. 40 C.F.R. § 51.307(a)(3) (“Where the
State finds that such an analysis does not demonstrate to the
satisfaction of the State that an adverse impact will result, . . .
the State must, in the notice of public hearing, either explain its
decision or give notice as to where the explanation can be
obtained.”).
The existence of this formal legal relationship undermines
Interior’s suggested analogy to Simon v. Eastern Kentucky
Welfare Rights Organization, 426 U.S. 26, 41-42 (1976), which
it uses to argue that the Montana DEQ is an independent actor
whose intervening action breaks the causal chain. In Simon a
class of indigents sued the Internal Revenue Service, claiming
9
that an IRS ruling reduced tax incentives for hospitals offering
free health care to indigents, and therefore would result in
indigents being deprived of free health care. The Court found
this to be too speculative and attenuated a connection between
federal agency action and the action of private parties, which
IRS could neither anticipate nor control. Id. By contrast, when
Interior acts in its capacity as Federal Land Manager, the agency
exerts legal authority over the Montana DEQ; in determining
whether to release an adverse impact report, Interior expects and
intends its decision to influence the permitting authority. The
Montana DEQ is therefore not the sort of truly independent actor
who could destroy the causation required for standing. Lujan,
504 U.S. at 560-61; Simon, 426 U.S. at 41-42.
C.
As to redressability, although a federal district court ruling
in favor of National Parks would not directly determine whether
the Roundup Plant will get its permit, the effect of such a ruling
would not be far removed. The permitting decision remains
open and pending before the Montana DEQ. The Montana
Supreme Court has ordered DEQ to revisit its conclusions
regarding the Roundup Plant permit and to determine anew
whether “Bull Mountain established that emissions from its
proposed project will not cause or contribute to adverse impact
on visibility in the Class I areas at issue.” Mont. Envtl. Info.
Ctr., 326 Mont. 502, at ¶ 38. A district court order setting aside
Interior’s letter withdrawing its adverse impact determination
doubtless would significantly affect these ongoing proceedings.
That is enough to satisfy redressability. “A significant increase
in the likelihood that the plaintiff would obtain relief that
directly redresses the injury suffered” will suffice for standing.
Utah v. Evans, 536 U.S. 452, 464 (2002).
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We therefore reverse the judgment of the district court
dismissing the action for the lack of standing and remand the
case for further proceedings.
So ordered.