In an interesting, but not really difficult, decision on Tuesday, the D.C. Circuit Court of Appeals found that the National Association of Home Builders did not have standing to challenge a consent decree pursuant to which the Fish and Wildlife Service agreed to a schedule for moving 251 species from “warranted-but-precluded” status under the ESA to either warranted or unwarranted. The FWS, short of resources to make final listing decisions under the ESA, had simply been parking candidate species in the “warranted-but-precluded” category, and the environmental groups were mad as hell and weren’t going to take it anymore. Recognizing that its approach was untenable, the FWS settled, agreeing to a strict schedule.
The NAHB, on the other hand, was pleased as punch with the delays in listing resulting from the FWS’s use of the “warranted-but-precluded” category. It sued, arguing that its members suffered procedural injuries from the acceleration of the listing decisions. The Court gave short shrift to the NAHB:
Unfortunately for Appellants, the warranted-but-precluded determination is a safety valve for the Service, not an escape hatch for beleaguered landowners.
As a result, the Court concluded that the NAHB had to meet the traditional requirements for standing. “Appellants must show actual or imminent, concrete and particularized injury-in-fact; causation, such that the injury is fairly traceable to the challenged conduct; and redressability.” Because the settlement only requires that the FWS act, “without dictating the agency’s substantive judgment”, NAHB could not demonstrate the required harm.
As I’ve noted previously, industry groups, which – rightly – often use standing arguments against citizen groups, cannot complain when those same arguments are used against them.