In a pair of December cases, the National Association of Home Builders (“NAHB”) has found itself without standing to challenge determinations made by the EPA and the Army Corps of Engineers with respect to whether certain “waters” fall within the agencies’ regulatory powers under the Clean Water Act (“CWA”).  

NAHB v. EPA, No. 10-5341 (D.C. Cir. Dec. 9, 2011)(the “Santa Cruz River case”), concerned a determination by EPA and the Corps that two stretches (reaches) of the Santa Cruz River in Arizona were traditional navigable waters (“TNW”) and thus within the agencies’ jurisdiction under the CWA.  The NAHB filed a challenge to the determination, but the District Court dismissed it on the ground that it lacked jurisdiction over the pre-enforcement challenge.  On appeal, the Court of Appeals affirmed dismissal but on an entirely different basis:  whether the NAHB had standing. 

The Court first quickly addressed and discarded the notion that the NAHB had organizational standing, finding that its litigation and lobbying activities with respect to the determination were not operational costs beyond its normal mission.  Moving on to representational standing, the Court held that the NAHB had missed the mark because it took up the case to challenge the types of waterways that might be considered TNW.  As a result, the Court found that the NAHB failed to show that any of its members had suffered, or was under the threat of suffering, an actual “injury in fact” as a result of the specific TNW determination concerning the two reaches at issue.  Finally, for the same reason, the Court of Appeals held that the NAHB lacked standing to challenge the procedure used by the agencies to make its determination; the absence of any members having actually been deprived of their rights was fatal to the claim.

Things did not get any better for the NAHB on Friday, when the D.C. Circuit issued its decision in NAHB v. United States Army Corps of Engineers, No. 10-5269 (D.C. Cir. Dec. 16, 2011)(the “Nationwide Permit case”).  As with the Santa Cruz Rivercase, although the lower court’s decision against the NAHB did not rest on a lack of standing, that was the issue that the Court of Appeals addressed, and here, it resulted in a remand to the trial court with instructions to dismiss the case.  

 The Nationwide Permit case concerned the Corps’ issuance of a nationwide permit known as NWP 46, covering discharges into upland non-tidal ditches which were “determined to be waters of the United States.”  The NAHB challenged the permit on the ground that such ditches were not “waters of the United States” and hence neither encompassed by the CWA nor subject to the Corps’ jurisdiction.  Once again, however, the Court found that the NAHB lacked standing because there was no injury in fact; NWP 46 was limited to upland ditches determined to be waters of the United States and the NAHB admitted that even before NWP 46 was issued the Corps had asserted jurisdiction over some upland ditches.  As a result, NWP 46 didn’t actually change anything for the NAHB or its members – except to make the permitting process easier.  And, as in the Santa Cruz River case, the Court quickly dismissed the alternative organizational standing argument finding that the NAHB’s advocacy efforts were not an injury conferring standing.  (On the other hand, the Court also held that if the NAHB had challenged NWP 46 on a procedural basis, “it would likely have standing” under Lujan v. Defenders of Wildlife.)

So, what are we to make of these decisions?  Is the Court of Appeals just tired of seeing the NAHB?  Or are they reflective of a concern by the Court of Appeals that trade associations need to take more care when turning to the courts, rather than Congress, to address their agency grievances? 

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