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Florida Audubon Soc'y v. Bentsen

ELR Citation: 25 ELR 21207
Nos. No. 94-5178, 54 F.3d 873/40 ERC 2012/(D.C. Cir., 06/02/1995)

The court holds that three environmental groups and an individual have standing to challenge the U.S. Treasury Department's failure to prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) for a final rule providing a tax credit for ethyl tertiary butyl ether (ETBE). ETBE is an alternative fuel additive derived in part from ethanol produced from corn. The court first holds that the citizen suffered an injury-in-fact. The government's failure to prepare an EIS creates the risk that the tax credit will lead to serious environmental harm. It is likely that the ETBE tax credit will increase ethanol demand, and that this demand will lead to increased corn production and subsequent farm runoff and erosion. The court holds that the individual demonstrated a sufficient geographical nexus to the land where the environmental consequences of the tax credit are likely to occur. The ETBE tax credit is likely to stimulate increased corn production on lands neighboring those the individual regularly uses and enjoys. The court next holds that the individual established the required causal nexus between the alleged environmental injury and the absence of an EIS. The injury—the risk that the failure to prepare an EIS will cause serious environmental consequences to be overlooked—flows directly from the government's failure to perform an EIS. The court further holds that this injury will be redressed by requiring the government to perform an EIS. The court also holds that the environmental harms likely to result from increased corn production fall within NEPA's zone of interest.

[Briefs and pleadings in this litigation are digested at ELR PEND. LIT. 66093 and 66383.]

Counsel for Appellants
James W. Moorman
Cadwalader, Wickersham & Taft
1333 New Hampshire Ave. NW, Washington DC 20036

Counsel for Appellees
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: WALD, SENTELLE, and ROGERS, Circuit Judges.