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FRIENDS OF EARTH, INC. v. WATSON

August 23, 2005.

FRIENDS OF THE EARTH, INC.; GREENPEACE, INC.; CITY OF BOULDER, COLORADO; CITY OF ARCATA, CALIFORNIA; and CITY OF OAKLAND, CALIFORNIA, Plaintiffs,
v.
PETER WATSON and PHILLIP MERRILL, Defendants.



The opinion of the court was delivered by: JEFFREY S. WHITE, District Judge

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Now before the Court is the motion for summary judgment on standing and other jurisdictional issues filed by Defendants Peter Watson, in his official capacity as President and Chief Executive Officer of the Overseas Private Investment Corporation ("OPIC"), and Peter Merrill, in his official capacity as Vice Chairman and First Vice President of the Export-Import Bank of the United States ("Ex-Im"). Having carefully reviewed the parties' papers, and the relevant legal authority, and good cause appearing, the Court DENIES Defendants' motion.*fn1

FACTUAL BACKGROUND

  Plaintiffs initiated this action against Defendants pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4335 ("NEPA") and the Administrative Procedure Act, 5 U.S.C. §§ 701-706 ("APA"). OPIC, an independent government corporation, offers insurance and loan guarantees for projects in developing countries. 22 U.S.C. § 2197(a). OPIC provides political risk insurance covering currency inconvertibility, expropriation or political violence, financing through loan guarantees, and direct loans. 22 U.S.C. § 2194. Ex-Im, an independent governmental agency and wholly-owned government corporation, provides financing support for exports from the United States. (Declaration of Barbara O'Boyle ("O'Boyle Decl."), ¶¶ 2, 7.) To support exports, Ex-Im provides a variety of products, including export credit insurance and guarantees. (O'Boyle Decl., ¶ 10.) In a typical Ex-Im transaction, a foreign buyer, who has a contract to buy goods or services from a United States' exporter, seeks financing to purchase such goods or services. Ex-Im's guarantee or insurance covers the risk that a foreign buyer will not pay back a loan to purchase goods or services from a United States' exporter. (O'Boyle Decl., ¶ 9.)

  In their complaint, Plaintiffs detail climate changes associated with the effects of global warming and allege continuing adverse environmental impact resulting in injury to their members throughout the country. Specifically, they allege that OPIC and Ex-Im have provided assistance to particular projects that contribute to climate change without complying with the requirements of the NEPA and the APA. Plaintiffs seek declaratory and injunctive relief against Defendants.

  Defendants now move for summary judgment on the following grounds: (1) lack of standing; (2) lack of final agency action; (3) OPIC's organic statute precludes judicial review; and (4) OPIC is not subject to NEPA.

  ANALYSIS

  A. Legal Standard.

  Summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986). "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).

  The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party meets this initial burden, the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)) (stating that it is not a district court's task to "scour the record in search of a genuine issue of triable fact"). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323.

  B. Plaintiffs Have Standing to Bring Their Claims.

  Defendants contend that Plaintiffs' alleged injuries regarding the implications of climate change do not amount to the type of injury required to support standing. (Br. at 2.) In order to demonstrate Article III standing, "a plaintiff must show (1) it has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

  When, as here, a plaintiff seeks to challenge a procedural violation, some uncertainty about redressability and causality is allowed. Defenders of Wildlife, 504 U.S. at 573 n. 7. A plaintiff challenging a procedural violation need only show "(1) that he or she is a `person who has been accorded a procedural right to protect [his or her] concrete interests' . . . and (2) that the plaintiff has `some threatened concrete interest . . . that is the ultimate basis of [his or her] standing.'" Douglas County v. Babbitt, 48 F.3d 1495, 1500 (9th Cir. 1995) (quoting Defenders of Wildlife, 504 U.S. at 573 n. 7). The threat must derive at least in part from the actions at issue in the case and not from some cause or party not before the court. ...


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