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Eleventh Circuit Holds that Plaintiff Still Has Standing to Challenge NEPA Review for Completed Project

The Eleventh Circuit recently addressed the standing requirements for a procedural-rights claim, in this case one arising from an agency’s alleged failure to comply with the National Environmental Policy Act (“NEPA”).  In a split 2-1 decision in Center for a Sustainable Coast v. U.S. Army Corps of Engineers, the court held that standing to challenge an agency’s alleged violation of NEPA does not require a showing that a procedural do-over would necessarily redress a substantive injury. No. 22-11079, 2024 WL 1918733 (11th Cir. May 2, 2024).

In what the Court called a “classic procedural rights case,” the Center for a Sustainable Coast filed suit after the U.S. Army Corps of Engineers granted a “letter of permission” to a developer allowing for the construction of a dock next to a planned residential development on Cumberland Island, Georgia. Under the Army Corps’ regulations, letters of permission are categorically excluded from NEPA review but are reserved for projects that pose minimal impacts on environmental values and which encounter no appreciable opposition. Comprised of citizens who regularly visit the Island, the Center argued that the issuance of the letter of permission was inappropriate in this case and that the Army Corps should have conducted a more robust NEPA review.

By the time the case was filed, however, the developer had already constructed the dock. The district court held that the Center lacked standing and dismissed the case. Standing requires injury-in-fact that is fairly traceable to the defendant’s conduct and that is likely to be redressed by a favorable judicial decision. The district court determined the Center’s alleged procedural injury—the failure of the Army Corps to conduct a NEPA review—was not redressable because NEPA review would not guarantee the Army Corps would reverse itself, and in any event, the dock was already built.

On appeal, the Eleventh Circuit reversed and held that the Center had standing to pursue its NEPA claim. The court emphasized that the threshold for standing generally, and redressability in particular, is low for a procedural-rights claim involving an alleged violation of NEPA. A plaintiff does not need to show that if an agency had followed proper procedures, it would have reached a different determination. Instead, there need only be “some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” The court explained that “if certainty about future administrative outcomes was needed to show standing, citizen-suit provisions would be a dead letter.” Because there was “some possibility” that NEPA review would lead to a different decision by the Army Corps, the Center had standing to assert its procedural-rights claim for an alleged violation of NEPA.

Regarding the fact that the dock had been built, the court noted that the letter of permission authorized not only the dock’s construction but also its continued operation. Thus, should the letter be rescinded, the dock could not operate. The court advised, however, that this case was not so much about the fate of the dock as the propriety of the administrative procedure authorizing it: “focusing on whether the court could demand the dock’s destruction misunderstands what the Center is seeking in this action—NEPA review.”

The dissenting opinion emphasized the fact that the dock was already constructed and that an order requiring the Army Corps to conduct a NEPA review would have no practical effect. It also observed that the majority decision would likely have no preclusive effect on a future lawsuit that may seek destruction of the dock, as the permittee was not a party to the instant case and any preclusive effect could violate the permittee’s due process rights. The dissenting opinion thus called this case “nothing but a waste.”

In any event, the majority’s opinion serves as an important reminder that in the context of challenges to government-authorized projects, the commencement (or even completion) of the project does not necessarily defeat standing to challenge authorizations issued for the project in question, depending on the nature of the plaintiff’s claim.