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National Ass'n of Home Builders v. U.S. Fish & Wildlife Service

ELR Citation: 44 ELR 20071
Nos. 12-2013, (D.D.C., 03/31/2014) (Sullivan, J.)

A district court upheld two court-approved settlement agreements between environmental advocacy groups and the FWS in a multi-district litigation that require the agency to determine by certain deadlines whether to list 251 species as endangered or threatened under the ESA or find that listing these species is not warranted. The agreements seek to clear the backlog of candidate species that, as of 2010, had grown to 251 due to the number of warranted-but-precluded findings outpacing the number of listings. Home builder and landowner associations challenged the agreements, primarily arguing that they violate ESA §4 listing procedures. The associations, however, failed to establish injury to their members sufficient for Article III standing. On the theory of injury to their members' conservation interests, the alleged injury is not fairly traceable to the agreements or redressable by an order to set them aside. On the theory of increased regulatory restrictions prior to listing, the associations failed to show that the agreements cause or will cause those restrictions, or that FWS compelled a third party to adopt them. Finally, the associations failed to establish that the §4 listing procedures are designed for their members' benefit, or that the agreements require FWS to violate any statutory procedure. The court also noted that any plaintiffs aggrieved by the listing process are not without remedy. “Warranted-but-precluded” findings are judicially reviewable. In addition, plaintiffs aggrieved by a warranted finding may challenge the FWS’ final rule listing the species.