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Center for Biological Diversity v. United States Environmental Protection Agency

United States District Court, W.D. Washington

February 19, 2015


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For Center for Biological Diversity, Plaintiff: Cari Miyoko Sakashita, Emily Jeffers, LEAD ATTORNEYS, PRO HAC VICE, CENTER FOR BIOLOGICAL DIVERSITY, SAN FRANCISCO, CA; Sarah Uhlemann, CENTER FOR BIOLOGICAL DIVERSITY, SEATTLE, WA.

For United States Environmental Protection Agency, Gina McCarthy, Administrator of the U.S. Environmental Protection Agency, Dennis McLerran, Region 10 Administrator, U.S. Environmental Protection Agency, Defendants: Cynthia J Morris, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, ENVIRONMENT & NATURAL RESOURCES DIVISION, WASHINGTON, DC; Brian C Kipnis, U.S. ATTORNEY'S OFFICE (SEA), SEATTLE, WA.

For Western States Petroleum Association, AMERICAN PETROLEUM INSTITUTE, Amicii: Jeffrey Wayne Leppo, LEAD ATTORNEY, Ryan P. Steen, STOEL RIVES (WA), SEATTLE, WA.

For Ecology Department of the State of Washington, Amicus: Leslie R Seffern, ATTORNEY GENERAL'S OFFICE, OLYMPIA, WA.


For Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Southern California Trawlers' Association, Amicii: Glen H. Spain, LEAD ATTORNEY PRO HAC VICE, EUGENE, OR; Michael Barsa, LEAD ATTORNEY, PRO HAC VICE, NORTHWESTERN LAW SCHOOL, CHICAGO, IL; Elizabeth Hunter Zultoski, SMITH & LOWNEY PLLC, SEATTLE, WA.

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JAMES L. ROBART, United States District Judge.


Before the court are the parties' cross motions for summary judgment. ( See CBD Mot. (Dkt. # 33); EPA Mot. (Dkt. # 34).) This case concerns the water quality problem of ocean acidification and its effects on aquatic life in the coastal and estuarine waters of the states of Washington and Oregon. Plaintiff Center for Biological Diversity (" CBD" ) claims that Defendant United States Environmental Protection Agency (" EPA" ) arbitrarily and capriciously approved Washington's and Oregon's decisions not to identify any waters experiencing ocean acidification as impaired under Section 303(d) of the Clean Water Act, 33 U.S.C. § 1251 et seq. Having considered the submissions of the parties, the submissions of amici curiae, the administrative record, and the relevant law, and having heard oral argument, the court denies CBD's motion for summary judgment and grants EPA's motion for summary judgment.


A. Ocean Acidification

Ocean acidification is a long-term decrease in pH of the earth's oceans. On a worldwide scale, the primary driver of ocean acidification is carbon uptake: seawater absorbs increased carbon dioxide (CO2) emissions, which leads to a series of chemical reactions that make the seawater more acidic. WA-00731 (" Pelejero 2010" ) at 1.[1] The leading cause of increased atmospheric CO2 is combustion of fossil fuels. Id. It is estimated that anthropogenic sources of atmospheric carbon dioxide have increased the acidity of average open-ocean surface waters by about 30%. WA-000731

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(" Feely 2010" ) at 4. In coastal regions, other local factors can exacerbate the acidification process. WA-000712 (" Blue Ribbon Panel" ) at 4. Regional drivers include both natural phenomena, such as upwelling of deep ocean water and freshwater inputs from rivers, and anthropogenic factors such as nutrient deposits from agricultural runoff, carbon deposits from stormwater runoff and industrial pollution, and local emissions of nitrogen and sulfur oxides. Id. at xii; WA-000712 (" Feeley 2012" ) at xii, 33, 37.

The changing ocean chemistry affects marine organisms and ecosystems in various ways, with some of the clearest impacts being felt by organisms whose shells and skeletons are composed of calcium carbonate (CaCO3(##RefNum=2- FootnoteNum=2##)). Pelejaro 2010 at 1; Blue Ribbon Panel at 10. Specifically, the same chemical reactions that increase the acidity of the ocean reduce the concentration of carbonate ions (CO3(##RefNum=2- FootnoteNum=3##)) that shellfish rely on to build shells. Pelejaro 2010 at 1; Blue Ribbon Panel at 10. As a result, marine organisms face difficulties forming and maintaining calcium carbonate-based shells and skeletons. Pelejaro 2010 at 1; Blue Ribbon Panel at 10. Additionally, the reduction of precipitated carbonate ions decreases the saturation states of important biominerals such as aragonite and calcite. Blue Ribbon Panel at 10; Feely 2010 at 3. Seawater with such decreased saturation states is chemically corrosive and can dissolve the shells of small crustaceans and immature shellfish. Feeley 2010 at 4; Blue Ribbon Panel at 10. Because many small calcifiers provide habitat, shelter, or food for other marine plants and animals, ocean acidification is also a threat to the broader marine environment. Blue Ribbon Panel at xiv, 16-20; see also Feeley 2012.

B. The Clean Water Act

The Clean Water Act employs two main regulatory approaches to achieve water quality: (1) technological controls on effluents discharged from point sources and (2) water quality standards. This case concerns water quality standards. See Pronsolino v. Nastri, 291 F.3d 1123, 1126 (9th Cir. 2002); see generally 33 U.S.C. § 1251 et seq.

Each state is required to set water quality standards for all waters within its boundaries. Pronsolino, 291 F.3d at 1126; 33 U.S.C. § 1313(a)-(c); 40 C.F.R. § 130.3. These standards, which include designated beneficial uses, numeric and narrative criteria, and anti-degradation policies, set goals for improving or maintaining water quality. 40 C.F.R. § 130.3. Wherever attainable, the standards should " provide water quality for the protection and propagation of fish, shellfish, and wildlife and for recreation." Id.

Pursuant to Section 303(d) of the Clean Water Act, every two years each state must generate a list of impaired water bodies for which existing pollution controls are insufficient to meet the water quality standards applicable to the water body. 33 U.S.C. § 1313(d); 40 CFR § 130.7(d)(1). Section 303 requires the states to submit their impaired waters lists to the EPA for approval. 33 U.S.C. § 1313(d); 40 CFR § 130.7(d)(1). If EPA disapproves a list, it must identify within 30 days the waters that should have been listed as impaired. 33 U.S.C. § 1313(d); 40 CFR § 130.7(d)(1).

After a water body is listed as impaired, the state must establish a total maximum daily load (" TMDL" ) of each pollutant that the water body can receive and still meet water quality standards. 33 U.S.C. § 1313(d); 40 CFR § 130.7(d)(1); see also Pronsolino, 291 F.3d at 1127-28. The state must incorporate TMDLs into the state's statutorily required water quality management plan. 33 U.S.C. § 1313(e); Pronsolino, 291 F.3d at 1128. The state,

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however, retains the responsibility and discretion to implement the TMDLs by controlling pollution from nonpoint and point sources.[2] 33 U.S.C. § 1313(e); Pronsolino, 291 F.3d at 1128. As such," TMDLs are primarily informational tools that allow the states to proceed from the identification of waters requiring additional planning to the required plans." Pronsolino, 291 F.3d at 1128.

In 2010, EPA issued a memorandum recognizing the " seriousness of aquatic life impacts associated with" ocean acidification, and instructing that " States should list waters not meeting water quality standards, including marine pH [water quality criteria], on their 2012 303(d) lists." WA-01116-31 (" EPA 2010 OA Memo" ) at 1, 4.

C. Washington's and Oregon's Section 303(d) Lists

Several of Washington's water quality standards implicate ocean acidification. Most of Washington's coastal waters are designated as " extraordinary quality" or " excellent quality" for aquatic life uses, which include " clam, oyster, and mussel rearing and spawning; crustaceans and other shellfish (crabs, shrimp, crayfish, scallops, etc.) rearing and spawning." WAC 173-201A-612; WAC 173-201A-210(1)(a). With respect to numerical criteria, waters of extraordinary or excellent quality must meet a pH range of 7.0-8.5 with a human-caused variation within that range of 0.2 or 0.5 units, respectively.[3] WAC 173-201A-612; WAC 173-201A-210(1)(f). Additionally, for both aquatic life uses and shellfish harvesting, " deleterious material concentrations must be below those which have the potential . . . to adversely affect characteristic water uses [or] cause acute or chronic conditions to the most sensitive biota dependent upon those waters. WAC 173-201A-260(2)(a). Finally, " [n]o degradation may be allowed that would interfere with, or become injurious to, existing or designated uses." WAC 173-201A-310.

Washington's 2010 Section 303(d) list, however, did not identify any coastal or estuarine waters as impaired due to pollutants associated with or conditions attributable to ocean acidification.[4] When reviewing Washington's list, EPA independently evaluated numerous relevant

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ocean acidification references, as well as Washington's analysis of ocean acidification data and information. WA-00011-20 (EPA review of Washington's analysis of ocean acidification data); WA-000021-65 (EPA's review of ocean acidification references). EPA approved Washington's 303(d) list in full in December, 2012. WA-000001-2 (" WA Approval" ).

Similarly, several of Oregon's water quality standards implicate ocean acidification. Oregon's coastal waters are designated for the beneficial uses of " fish and aquatic life," as well as fishing. See OAR 340-041-0220 et seq. Narrative water quality criteria provide that " [w]aters of the state must be of sufficient quality to support aquatic species without detrimental changes in the resident biological communities," OAR 340-041-0011, and that the " creation of . . . conditions that are deleterious to fish or other aquatic life . . . may not be allowed," OAR 340-041-0007(10). Oregon's anti-degradation policy provides that any existing level of water quality necessary to support propagation of fish and shellfish must be maintained and protected. Id. at -0004(6).

Oregon's 2010 Section 303(d) list, however, did not identify any coastal or estuarine waters as impaired due to pollutants associated with or conditions attributable to ocean acidification. EPA originally partially disapproved Oregon's 303(d) list, finding that Oregon had not reasonably assembled and evaluated all readily available data and water-quality information. OR1-000001 (" OR Disapproval" ). Specifically, Oregon had failed to consider data for numerous pollutants available in Oregon's own Laboratory Analytical and Storage Retrieval (" LASAR" ) database. OR1-00008. Accordingly, EPA independently reviewed this and other available water quality data and, on December 14, 2012, issued a decision adding 870 additional impaired segments to Oregon's 303(d) list. OR1-00008-9; see also OR2-000001-9 (" OR Approval" ). These additions, however, were unrelated to ocean acidification: EPA independently evaluated Oregon's ocean acidification information and approved Oregon's assessment that the information did not require listing any marine waters as impaired. See OR2-0000286-91.

D. CBD's Challenge

During the appropriate notice and comment periods, CBD submitted comments and scientific studies to Washington, Oregon, and EPA arguing that Washington's and Oregon's water quality standards were violated due to ocean acidification. See, e.g., WA-000066-70; WA-000071-86; WA-000198; WA-00813; OR2-000286; OR2-004614; OR004557. In this lawsuit, CBD challenges EPA's approval of Washington's and Oregon's 303(d) lists as arbitrary and capricious because the lists do not identify any coastal waters as impaired by ocean acidification. ( See generally Compl.)

The court previously denied the Western States Petroleum Association and American Petroleum Institute's (collectively, " API" ) motion to intervene, but granted API amicus curiae status. ( See 2/18/14 Order (Dkt. # 22).) Later, the court also granted amicus curiae status to the Ecology Department of the State of Washington (" Ecology" ), the Pacific Coast Federation of Fishermen's Association, Southern California Trawlers' Association and Institute of Fisheries Resources (collectively, " Fishing Associations" ), and climate Ken Caldeira and Jane Lubchenco (collectively, " the Scientists" ). (Dkt. ## 23, 46, 49.) CBD and EPA stipulated to a modified briefing schedule for their cross-motions for summary judgment. (Sched. Ord. (Dkt. # 26).) These motions, as well as the amici curiae briefs, are now before the court.

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A. Summary Judgment Standard

Federal Rule of Civil Procedure 56 permits a court to grant summary judgment where the moving party demonstrates (1) the absence of a genuine issue of material fact and (2) entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

If the moving party does not bear the ultimate burden of persuasion at trial, it can show the absence of an issue of material fact in two ways: (1) by producing evidence negating an essential element of the nonmoving party's case, or (2) by showing that the nonmoving party lacks evidence of an essential element of its claim or defense. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party will bear the ultimate burden of persuasion at trial, it must establish a prima facie showing in support of its position on that issue. UA Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1994). That is, the moving party must present evidence that, if uncontroverted at trial, would entitle it to prevail on that issue. Id. at 1473.

If the moving party meets its burden of production, the burden then shifts to the nonmoving party to identify specific facts from which a factfinder could reasonably find in the nonmoving party's favor. Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether the factfinder could reasonably find in the nonmoving party's favor, " the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). When adjudicating cross-motions for summary judgment, a court " evaluate[s] each motion separately, giving the nonmoving party in each instance the benefit of all reasonable inferences." A.C.L.U. of Nevada v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006).

B. Standing

Before reaching the merits of the action, the court addresses CBD's standing to bring this challenge. API raises the issue of Article III standing in its amicus curiae brief[5] (API Br. (Dkt. # 44)), and

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even if it did not, the court has " an independent duty to assure that standing exists, irrespective of whether the parties challenge it." Washington Envtl. Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013) (citing Summers v. Earth Island Inst., 555 U.S. 488, 499, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009)).

A plaintiff must demonstrate standing for each claim that he or she seeks to press and for each form of relief sought. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). A plaintiff also bears the burden of proof to establish standing " with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At the summary judgment stage, a plaintiff cannot rest on mere allegations, " but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true." Bellon, 732 F.3d at 1139 (quoting Lujan, 504 U.S. at 561).

Where, as here, the plaintiff is an organization, it may assert standing on behalf of its members as long as the " members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); see also Bellon, 732 F.3d at 1139. The court finds that CBD meets the last two criteria, which API does not challenge.[6] As such, the crux of the standing inquiry is the first criterion: whether CBD's members would otherwise have standing to sue in their own right. An individual has Article III standing to sue if (1) he or she suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision. Bellon, 732 F.3d at 1139-40 (citing Lujan, 504 U.S. at 560-61); see also Friends of the Earth, 528 U.S. at 180-81. The court addresses each element below.

1. Injury in fact

" [E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." Friends of the Earth, 528 U.S. at 183; see also Natural Res. Def. Council v. EPA, 526 F.3d 591, 601 (9th Cir. 2008) (stating that an environmental plaintiff can satisfy the injury requirement by showing that the challenged activity impairs his or her " aesthetic and environmental well-being" ). " [N]othing necessitates a showing of existing environmental harm."

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Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846, 860 (9th Cir. 2005). Rather, " an increased risk of harm can itself by injury in fact for standing." Id.; Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1151-52 (9th Cir. 2000) (" 'A plaintiff need not wait until his lake becomes barren and sterile or assumes an unpleasant color and smell before he can invoke the protections of the Clean Water Act.'" ) (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir. 2000) (internal punctuation omitted)). Therefore, an individual can establish 'injury in fact' by " showing a connection to the area of concern sufficient to make credible the contention that the person's future life will be less enjoyable--that he or she really has or will suffer in his or her degree of aesthetic or recreational satisfaction--if the area in question remains or becomes environmentally degraded." Ecological Rights Found., 230 F.3d at 1149.

CBD submits declarations from several of its members attesting to specific aesthetic and recreational injuries they are suffering or will suffer due to ocean acidification. Specifically, Jessica Antoine regularly visits the beaches in Netarts Bay, Pacific City, and Oswald West State Park in Oregon to go tidepooling, clamming, and purchase oysters, and is concerned that her ability to harvest clams and other shellfish and explore tidepools with her family will decrease due to ocean acidification. (Antoine Decl. ¶ ¶ 7-17.)

David Weitzer visits the Washington and Oregon coastlines, including Willapa Bay in Washington and Gearhart, Seaside, Indian Beach, Canon Beach, Hug Point, Arch Cape, Falcon Cove, and Manzanita in Oregon, on average six times per year in order to dig for butter, steamer, and razor clams; harvest oysters, mussels, and barnacles; surf; and investigate tidepools to observe hermit crabs, small fish, chitons, starfish, anenomes, urchins, and other organisms. (Weitzer Decl. ¶ ¶ 6-15.) Over the last 10 years he has noticed that there are fewer and fewer oysters and clams available to harvest, the quality of the oyster shells has declined (they are now more brittle), the number and diversity of species in the tidepools has declined, and the number of shells washed ashore is reduced. ( Id.) He is concerned that ocean acidification is responsible for these changes. ( Id.)

Anna Moritz regularly visits Puget Sound, including Golden Gardens Park, Richmond Beach, and Whidbey Island, as well as the coasts of Washington and Oregon, including Fort Stevens State Park, Nehalem Bay, Manzanita, and Westport, to go tidepooling and beachcombing with her family. (Moritz Decl. ¶ ¶ 5-17.) Additionally, she plans to camp with her family at Rialto Beach on the Olympic Peninsula this upcoming summer. ( Id.) She is concerned that if the region's coastal waters continue to increase in acidification, fewer shelled animals will survive, limiting her and her family's opportunities for and enjoyment in finding shells, sea stars, sand dollars, and tidepool creatures during their trips to Puget Sound and the Washington coast. ( Id.)

Katherine Easton owns a house on the water on Camano Island, in Puget Sound, which she visits almost every weekend during the summer, fall, and spring to walk through the extensive tideflats by her house and examine crabs, clams, and other creatures. (Easton Decl. ¶ ¶ 6-12.) She worries that ocean acidification is harming shellfish and small prey species that will affect the entire food web, making it more difficult for her to view not only shellfish, but also whales, seals, and other marine creatures in the Sound. ( Id.)

These alleged harms and increased risk of harms fall squarely into the category of aesthetic and recreational injuries countenanced

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by the Supreme Court in Friends of the Earth. See Friends of the Earth, 528 U.S. at 183; Ocean Advocates, 402 F.3d at 860. Moreover, these alleged harms span a sample set of beaches and coastline that is geographically representative of Washington's and Oregon's coastlines and estuaries. See Alaska Center for Environment v. Browner, 20 F.3d 981, 985 (9th Cir. 1994) (finding that a plaintiff seeking state-wide environmental relief was not required to demonstrate harm over the entire state but was only required to establish that a representative number of areas were adversely affected by the government's action); Defenders of Wildlife v. U.S. Envtl. Prot. Agency, 420 F.3d 946, 957 (9th Cir. 2005) rev'd and remanded sub nom. on unrelated grounds Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007); Sierra Club v. Johnson, No. C 08-01409 WHA, 2009 WL 482248, at *3 (N.D. Cal. Feb. 25, 2009). Moreover, API does not challenge the legal sufficiency of CBD's members' statements regarding injury. Accordingly, the court finds that the declarations of CBD's members adequately provide " specific facts" regarding their imminent, concrete injuries to establish injury in fact.[7] See Lujan, 504 U.S. at 561; Natural Res. Def. Council, 526 F.3d at 601; Friends of the Earth, 528 U.S. at 183.

2. Causation and redressability

The " fairly traceable" and " redressability" components for standing overlap and are " two facets of a single causation requirement." Bellon, 732 F.3d at 1146 (quoting Allen v. Wright, 468 U.S. 737, 753 n.19, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). " The two are distinct insofar as causality examines the connection between the alleged misconduct and injury, whereas redressability analyzes the connection between the alleged injury and requested judicial relief." Id.

To satisfy the causality element, CBD must show that the injury is causally linked or " fairly traceable" to the EPA's alleged misconduct, and not the result of misconduct of some third party not before the court. Id. (citing Lujan, 504 U.S. at 560-61). The causal connection " cannot be too speculative or rely on conjecture about the behavior of other parties, but need not be so airtight at this stage of litigation as to demonstrate that the plaintiffs would succeed on the merits." Ocean Advocates, 402 F.3d at 860 (quoting Ecological Rights Found., 230 F.3d at 1151). A " causal chain does not fail simply because it has several 'links,' provided those links are not hypothetical or tenuous and remain plausible." Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (quoting Nat'l Audubon Soc., Inc. v. Davis, 307 F.3d 835, 849 (9th Cir. 2002)) (internal punctuation omitted). Moreover, CBD need not show that EPA is the " sole source" of its members' injuries, and " need not eliminate any other contributing causes to establish its standing." Barnum Timber Co. v. EPA, 633 F.3d 894, 901 (9th Cir. 2011); see also Ocean Advocates, 402 F.3d at 860 (finding causation because although other factors also caused the plaintiffs' injury, the link between the agency's action and the injury was " not tenuous or abstract" ).

A plaintiff meets the redressability requirement if it is likely, even if not necessarily certain, that his injury can be redressed by a favorable decision.  

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See Bonnichsen v. United States, 367 F.3d 864, 873 (9th Cir. 2004); Beno v. Shalala, 30 F.3d 1057, 1065 (9th Cir. 1994) (stating that a plaintiff " must show only that a favorable decision is likely to redress his injury, not that a favorable decision will inevitably redress his injury" ). However, relief " that does not remedy the injury suffered cannot bootstrap a plaintiff into federal court." [8]Steel Co. v. ...

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