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Center for Biological Diversity v. Export-Import Bank of United States

United States Court of Appeals, Ninth Circuit

June 28, 2018

Center for Biological Diversity; Pacific Environment; Turtle Island Restoration Network, Plaintiffs-Appellants,
v.
Export-Import Bank of the United States; Fred P. Hochberg, in his official capacity as Chairman and President of the Export-Import Bank of the United States, Defendants-Appellees.

          Argued and Submitted November 13, 2017 San Francisco, California

          Appeal from the United States District Court for the Northern District of California Saundra B. Armstrong, District Judge, Presiding D.C. No. 4:12-cv-06325-SBA

          Brendan Ridgely Cummings (argued), Center for Biological Diversity, Joshua Tree, California; Miyoko Sakashita and Emily S. Jeffers, Center for Biological Diversity, Oakland, California; Sarah Uhlemann, Center for Biological Diversity, Seattle, Washington; for Plaintiffs-Appellants.

          Eric Allen Grant (argued) and Ellen J. Durkee, Attorneys; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Lauren T. Nguyen, Senior Counsel, Export-Import Bank of the United States, Washington, D.C.; for Defendants-Appellees.

          Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and James E. Gritzner, [*] District Judge.

         SUMMARY[**]

         Environmental Law / Mootness / Standing

         The panel affirmed the district court's grant of summary judgment in favor of the Export-Import Bank of the United States, and its chairman, based on the plaintiff environmental groups' lack of standing to bring their challenge to the Bank's authorization of nearly $4.8 billion in financing for two liquid natural gas projects near the Great Barrier Reef in Australia.

         Plaintiffs sought relief based on defendants' alleged violations of their procedural rights under the Endangered Species Act and the National Historic Preservation Act.

         The panel held that events subsequent to the district court's ruling - the completion of the projects and disbursement of the loans - did not render plaintiffs' claims moot. The panel held that given the record, it was unable to determine whether the entirety of the transaction had been concluded, and defendants had not met their heavy burden to establish mootness on appeal.

         The panel held that the plaintiffs lacked standing because even under the relaxed redressability standards that were properly applied by the district court, plaintiffs failed to show that the Bank's performance of the additional procedures, required under the Endangered Species Act and the National Historic Preservation Act before approving financing of the projects, could redress the alleged environmental injury in this case.

          OPINION

          GRITZNER, DISTRICT JUDGE

         In 2012, the Export-Import Bank of the United States (the Ex-Im Bank) authorized nearly $4.8 billion in financing for two liquid natural gas (LNG) projects in Queensland, Australia, near the Great Barrier Reef (the Projects). Plaintiffs-Appellants, environmental organizations, sued the Ex-Im Bank and its chairman (collectively, Defendants) for violations of the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., the National Historic Preservation Act (NHPA), 54 U.S.C. § 307101 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. § 706. Plaintiffs argue that the Ex-Im Bank failed to follow the proper procedures set forth in the ESA and NHPA before approving financing for the Projects.

         On cross-motions for summary judgment, the district court found that Plaintiffs were unable to establish that a decision in this case would redress the Projects' environmental harms, and thus the Plaintiffs lacked standing. Plaintiffs appealed. Following the district court's ruling, work on the Projects continued, and the Ex-Im Bank fully disbursed both of its loans-one of which has been repaid. Defendants argue that this entire action is now moot. We hold that the action is not moot and affirm the district court on the question of standing.

         I. BACKGROUND

         The Ex-Im Bank is the official export credit agency (ECA) of the United States. Acting pursuant to federal statute, 12 U.S.C. § 635 et seq., the Ex-Im Bank offers funds to projects undertaken in the United States and around the globe to support procurement of goods and services from U.S. exporters by the project sponsors. The purpose of these efforts is to keep U.S. exporters competitive with foreign exporters-many of whom are supported directly by foreign governments or by foreign ECAs.

         In 2012, the Ex-Im Bank authorized nearly $4.8 billion in financing for two LNG projects in Queensland, Australia. For both Projects, the primary U.S. exporter was the Bechtel Corporation, a contractor that performs engineering, procurement, and construction work. For most Ex-Im Bank loans, including those at issue here, disbursements are not made until the borrower submits ...


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