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National Ass'n of Home Builders v. United States Fish & Wildlife Service

ELR Citation: 45 ELR 20099
Nos. 14-5121, (D.C. Cir., 05/26/2015)

The D.C. Circuit held that building and development associations lacked standing to challenge consent decrees that require FWS to determine, in accordance with a settlement-defined schedule, whether 251 species should be listed as endangered or threatened under the ESA. The case arose after environmental groups filed suit against FWS seeking to compel the Service to comply with the ESA's deadlines with regard to 251 candidate species. Under the settlement terms, the Service must meet strict deadlines for submitting either a warranted or not-warranted finding for all 251 species. Four associations sought to set aside the consent decrees implementing the settlements, but the district court held they lacked standing, and the appellate court agreed. The associations alleged procedural injuries based on loss of opportunity to comment at the warranted-but-precluded stage, withdrawal of the warranted-but-precluded classification, and acceleration of final listing determinations. But these theories of procedural harm are foreclosed by binding precedent in the D.C. Circuit. Therefore, because this is not a "procedural injury" case, the associations must show actual or imminent, concrete and particularized injury-in-fact; causation; and redressability. The associations, however, failed to allege cognizable harm. The settlements simply require FWS to render a final listing decision—warranted or not-warranted—using a specific time line, without dictating the Service's substantive judgment. Nor were association members harmed because they expended resources to reduce risk to candidate species; none of the expenditures identified by the associations were dictated by FWS.