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National Ass'n of Home Builders v. Babbitt

Citation: 28 ELR 20222
No. 95-1374 (RMU), 990 F. Supp. 1/(D.D.C., 10/31/1997)

The court holds that home builders lack standing to bring an Endangered Species Act (ESA) § 11 citizen suit against the U.S. Department of the Interior and the U.S. Fish and Wildlife Service for issuing a technical correction to a final rule without using the required Administrative Procedure Act notice and comment procedures. Under a 1993 technical correction, two species of cave beetles that had been listed in 1988 as endangered under the ESA were listed as four distinct species. According to the home builders, a planned development terminated because of its potential impact on the endangered species. The court first holds that the home builders failed to show that they have suffered particularized and actual injury-in-fact as a result of the technical correction. The two additional species listed under the 1993 technical correction already existed under the 1988 final rule, but under another name. Therefore, the economic injury suffered by the home builders does not relate to the technical correction's alleged lack of notice and comment. The court next holds that, assuming that the home developers had demonstrated an injury-in-fact, they failed to establish sufficient causation to connect their alleged injury to the listing of two additional species in the 1993 technical correction. The 1993 technical correction does not impose any additional economic burdens. The 1988 listing alone would prevent the home builders from continuing with their construction and land development. Finally, the court holds that the home builders failed to demonstrate that their alleged injuries may be redressed through a favorable court decision, because, even if the two species listed by the technical correction are removed, five other invertebrate species remain listed as endangered under the 1988 final rule.

Counsel for Plaintiffs
Patrick J. Hurd
Keller & Heckman
1001 G St. NW, Ste. 500-W., Washington DC 20001
(202) 434-4100

Counsel for Defendants
John L. Marshall
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000