Center for Biological Diversity; Pacific Environment; Turtle Island Restoration Network, Plaintiffs-Appellants,
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.
and Submitted November 13, 2017 San Francisco, California
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.
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.;
Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges,
and James E. Gritzner, [*] District Judge.
Law / Mootness / Standing
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.
sought relief based on defendants' alleged violations of
their procedural rights under the Endangered Species Act and
the National Historic Preservation Act.
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.
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
GRITZNER, DISTRICT JUDGE
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.
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.
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.
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 ...