United States District Court, N.D. California
August 23, 2005.
FRIENDS OF THE EARTH, INC.; GREENPEACE, INC.; CITY OF BOULDER, COLORADO; CITY OF ARCATA, CALIFORNIA; and CITY OF OAKLAND, CALIFORNIA, Plaintiffs,
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
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.
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. Ecological
Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141, 1152
(9th Cir. 2000). Defendants contend that Plaintiffs have not
demonstrated an injury in fact, causation or redressability.
1. Plaintiffs Sufficiently Demonstrate An Injury In Fact.
To demonstrate standing in cases raising procedural issues,
environmental plaintiffs need not show that substantive
environmental harm is imminent. Cantrell v. City of Long Beach,
241 F.3d 674, 679 n. 4 (9th Cir. 2001) (citing Defenders of
Wildlife, 504 U.S. at 572 n. 7). Moreover, such plaintiffs need
not present proof that the challenged federal project will have
particular environmental effects. To do so "would in essence be
requiring the plaintiff to conduct the same environmental
investigation that he seeks in his suit to compel the agency to
undertake." Citizens for Better Forestry v. U.S. Dept. of
Agriculture, 341 F.3d 961, 972 (9th Cir. 2003). Instead, the
"`asserted injury is that environmental consequences might be
overlooked' as a result of deficiencies in the government's
analysis under environmental statutes." Id. at 971-72 (quoting
Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346,
1355 (9th Cir. 1994)). Thus, Plaintiffs only need to demonstrate
that "it is reasonably probable that the challenged action will
threaten their concrete interests." See Citizens for Better
Forestry, 341 F.3d at 969-70; see also City of Sausalito v.
O'Neill, 386 F.3d 1186, 1197 (9th Cir. 2004).*fn2
Plaintiffs have done so here. While they concede that the
impact of greenhouse gas emissions traceable to projects
supported by OPIC and Ex-Im are not yet known with absolute
certainty (Opp. Br. at 9), Plaintiffs contend the only
uncertainty is with respect to how great the consequences will
be, and not whether there will be any significant consequences.
(Declaration of Dr. Michael C. MacCracken ("MacCracken Decl."), ¶
6b.) Moreover, Plaintiffs present evidence demonstrating that projects supported by OPIC and Ex-Im
are directly or indirectly responsible for approximately 1,911
million tonnes of carbon dioxide and methane emissions annually,
which equals nearly eight percent of the world's emissions and is
equivalent to one-third of the total carbon emissions from the
United States in 2003. (Declaration of Richard Heede, ¶ 14.)
Plaintiff's evidence, if true, further demonstrates that: (1)
increased greenhouse gases are the major factor that caused
global warming in the twentieth century, (2) global warming that
has already occurred has had significant environmental
consequences, (3) continued increases in greenhouse gas emissions
would continue to increase global warming with consequent
widespread environmental impacts, (4) and that these impacts have
and will effect areas used and owned by Plaintiffs. (MacCracken
Decl., ¶¶ 6, 12-39; Declaration of Dr. Phillip Dustan, ¶¶ 5-13;
Declaration of Randall L. Hayes, ¶¶ 5-17; Declaration of Brian
Jeffrey Johnson, ¶¶ 10-26; Declaration of Mark Andre, ¶¶ 5-14;
Declaration of Carol D. Ellinghouse, ¶¶ 3-8).
Defendants contest the credibility of Plaintiffs' evidence.
(Reply Br. at 6-9.) However, "[i]n 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, 125 F.3d at 735. The Court concludes that Plaintiffs'
evidence is sufficient to demonstrate it is reasonably probable
that emissions from projects supported by OPIC and Ex-Im
supported projects will threaten Plaintiffs' concrete
2. Plaintiffs Sufficiently Demonstrate Causation and
In cases asserting a procedural challenge, once a plaintiff
establishes an injury in fact, the causation and redressability standards are relaxed. Defenders of
Wildlife, 504 U.S. at 572 n. 7; see also Citizens for Better
Forestry, 341 F.3d at 975. Defendants contend that Plaintiffs
have not demonstrated causation or redressability.
Causation is only implicated where there is a concern that "an
injury caused by a third party is too tenuously connected to the
acts of the defendant." Citizens for Better Forestry,
341 F.3d at 975 (citing Idaho Conservation League v. Mumma,
956 F.2d 1508, 1518 (9th Cir. 1992)). Here, any concern that Plaintiffs'
asserted injuries are caused by third parties must be evaluated
in light of lower threshold for causation in procedural injury
cases. See Public Citizen v. Dep't of Transp.,
316 F.3d 1002,1017-18 (9th Cir. 2003), rev'd on other grounds, Dep't of
Transp. v. Public Citizen, 541 U.S. 742 (2004); see also
Cantrell, 241 F.3d at 682 (holding district court erred by
failing to acknowledge the plaintiff's reduced burden to prove
causation and redressability). In Defenders of Wildlife, the
Supreme Court explained when a plaintiff asserts a procedural
injury, such as a plaintiff challenging an agency's failure to
prepare an environmental impact statement for a proposed dam,
they plaintiff would have standing to challenge the agency's
conduct "even though he cannot establish with any certainty that
the statement will cause the license to be withheld or altered
and even though the dam will not be completed for many years."
Id. at 572 n. 7. The fact that it was uncertain whether the
company seeking the agency's approval would ever build the dam
even if the license were granted also did not undermine such a
plaintiff's standing. Public Citizen, 316 F.3d at 1018
(commenting on the example in Defenders of Wildlife). Morever,
because the asserted injury in a procedural injury case is that
environmental consequences might be overlooked, to demonstrate
standing a plaintiff need not show that the ultimate outcome
would be different if the procedures were followed. Idaho
Conservation League, 956 F.2d at 1518.
Nevertheless, Defendants argue that Plaintiffs cannot
demonstrate causation because the Ex-Im's and OPIC's role with
respect to the projects which produce the greenhouse gas
emissions is too limited and attenuated. Defendants submit
evidence to demonstrate that generally, for the large
energy-related projects referenced in Plaintiffs' complaint,
third parties have already completed basic design and planning stages for the
projects before applying for financial support from Ex-Im or
OPIC. (Boyle Dec., ¶ 41; Declaration of Harvey Himberg ("Himberg
Decl."), ¶ 19.) Defendants further argue that most large
energy-related projects in which either agency is involved would
proceed without their support. (Br. at 16; Boyle Dec., ¶ 30;
Himberg Decl., ¶¶ 8, 23, 29, 30, 37.) However, Plaintiffs submit
evidence demonstrating a stronger link between the agencies'
assistance and the energy-related projects. For example, Ex-Im
has stated that it "supports export sales that otherwise would
not have gone forward." (Ex-Im Administrative Record, Tab 4 at 2
and Tab 5 at 2.) And OPIC has stated that when it determines
which projects to support, it evaluates them "to ensure they
would not have gone forward but for OPIC's participation."
(Plaintiffs' Ex. 14 at 10.)*fn4 Defendants have not
submitted any authority demonstrating, in light of the reduced
standard for procedural injuries, that Plaintiffs' have not met
their burden regarding causation. Considering the lower threshold
for causation in procedural injury cases, the Court concludes
that Plaintiffs have sufficiently demonstrated causation.
With respect to redressability, a plaintiff "who asserts
inadequacy of a government agency's environmental studies . . .
need not show that further analysis by the government would
result in a different conclusion. It suffices that the [agency's]
decision could be influenced by the environmental
considerations that [the relevant public statute] requires an
agency to study." Citizens for Better Forestry, 341 F.3d at 975
(emphasis in original). Here, Plaintiffs are asserting that OPIC
and the Ex-Im failed to conduct an environmental assessment under
NEPA. The Court finds that Plaintiffs have demonstrated that OPIC
and Ex-Im's decisions could be influenced by further
environmental studies, Plaintiffs' have sufficiently demonstrated
redressability. C. Plaintiffs Challenge A Final Agency Action.
When, as here, Plaintiffs seek review of an agency's conduct
under the general review provisions of the APA, rather than
pursuant to specific authorization in the substantive statute,
such as NEPA, Plaintiffs must demonstrate the agency action they
are challenging was a "final agency action." Lujan v. National
Wildlife Federation, 497 U.S. 871, 882 (1990) (citing
5 U.S.C. § 704 ("Agency action made reviewable by statute and final
agency action for which there is no other adequate remedy in a
court are subject to judicial review") (emphasis added)).
Citing National Wildlife Federation, Norton v. Southern Utah
Wilderness Alliance, 542 U.S. 55, 124 S. Ct. 2373 (2004), and
Sierra Club v. Peterson, 228 F.3d 559 (5th Cir. 2000),
Defendants argue that Plaintiffs are making a broad programmatic
challenge that does not qualify as "final agency action" as
required under the APA. Under the APA, a plaintiff cannot seek
wholesale improvement of a program, but rather, must direct his
or her suit against some particular "agency action" that causes
him or her harm. National Wildlife Federation, 497 U.S. at 891.
In National Wildlife Federation, the plaintiff alleged that
government agencies violated the Federal Land Policy and
Management Act of 1976 ("FLPMA") and NEPA in the course of
administering what the plaintiff called the "land withdrawal
review program" of the Bureau of Land Management ("BLM"). Id.
at 875. The plaintiff claimed the agencies violated FLPMA by
failing to "develop, maintain, and when appropriate, revise land
use plans which provide by tract or areas for use of the public
lands," by failing to consider multiple uses for the lands at
issue, and failing to provide public notice of decisions. The
plaintiff further asserted that the agencies violated NEPA by
failing to provide environmental impact statements on their
proposed actions. Id. at 879. The Court found that the so
called "land withdrawal review program" was not derived from any
statutory language and did not refer to any "single BLM order or
regulation, or even a completed universe of particular BLM orders
or regulations." Id. at 890. Rather, the "land withdrawal
review program" was "simply the name by which [the agencies] have
occasionally referred to the continuing (and thus constantly
changing) operations of the BLM in reviewing withdrawal
revocation applications and the classifications of public lands and developing land use plans." Id. The Court likened the
plaintiff's claim to one attempting to challenge a "`weapons
procurement program' of the Department of Defense or a `drug
interdiction program' of the Drug Enforcement Agency."
Accordingly, the Court held that the plaintiff's challenge was
too broad and generic to constitute "final agency action." Id.
Similarly, in Southern Utah Wilderness Alliance, the Supreme
Court again rejected a challenge to agency action that was not
sufficiently discrete or specific. Southern Utah Wilderness
Alliance, 124 S. Ct. at 2381. The plaintiff asserted, inter
alia, that the "BLM violated its mandate to `continue to manage
[wilderness study areas] . . . in a manner so as not to impair
the suitability of such areas for preservation as wilderness," by
allowing degradation caused by off-road vehicles. Id. at 2380.
The Court concluded that the plaintiff was improperly seeking to
compel compliance with broad statutory mandates, which would
require pervasive judicial oversight of the agency's day-to-day
activities. Therefore, the Court held that the plaintiff could
not pursue the claim. Id. at 2381.
In Sierra Club, the plaintiffs sought "wholesale improvement"
of the Forest Service's timber management "program" in the Texas
forests, "objecting to Forest Service practices throughout the
four National Forests in Texas and covering harvesting from the
1970s to timber sales which have not yet occurred." Sierra
Club, 228 F.3d at 566. In finding the plaintiffs were not
challenging a final agency action, the Fifth Circuit reasoned
that "as in Lujan, the environmental groups have impermissibly
attempted to `demand a general judicial review of the [Forest
Services's] day-to-day operations.'" Id. (quoting National
Wildlife Federation, 497 U.S. at 899).
Here, Plaintiffs challenge Ex-Im's and OPIC's determinations
that the projects they support do not have significant
environmental impacts and thus, have not conducted any
environmental assessments. Plaintiffs point to evidence
demonstrating that both Ex-Im and OPIC: (1) evaluated whether the
projects they support contribute to the production of greenhouse
gases and climate change; (2) conducted these evaluations based
on the aggregate portfolios of projects they support, as opposed
to on an individual project basis; and (3) determined that their
cumulative projects result in greenhouse gas emissions but do not
have a significant environmental impact. (Ex-Im Administrative Record,
Tab 1; Plaintiffs' Ex. 3.) Neither Ex-Im nor OPIC conducted
environmental assessments in making these determinations. In
fact, both agencies have concluded that NEPA does not apply to
their project approvals. (Id.; OPIC Administrative Record at
4368-370.) Merely because Plaintiffs' suit concerns the
environmental impact of the projects supported by Ex-Im and OPIC
as a group, rather than individually, does not convert
Plaintiffs' challenge into a broad programmatic attack prohibited
by National Wildlife Federation. As the Supreme Court itself
noted in National Wildlife Federation, it would be appropriate
to challenge a "universe" of particular orders under the APA.
National Wildlife Federation, 497 at 890. Plaintiffs' suit does
not broadly challenge the day-to-day operations of Ex-Im or OPIC,
but rather, challenges those agencies' discrete determinations
that the projects they support do not, on a cumulative basis,
have a significant environmental impact. Accordingly, the Court
denies Defendants' motion for summary judgment on this basis.
D. OPIC's Organic Statute Does Not Preclude Judicial Review.
A statute may preclude judicial review under the APA.
5 U.S.C. § 701(a)(1). However, "[t]he statutory preclusion of judicial
review must be demonstrated clearly and convincingly." N.L.R.B.
v. United Food and Commercial Workers Union Local 23,
484 U.S. 112, 131 (1987). If there is no "statutory language expressly
precluding APA review, the Court must examine the structure and
history of the statute to determine whether the requisite
congressional intent to bar judicial review is clearly
Defendants contend that the plain language of OPIC's organic
statute reveals that Congress intended to shield OPIC from
judicial review of compliance with various statutory obligations,
including its obligation to consider environmental implications
of its proposed actions. To demonstrate such intent, Defendants
cite a portion of OPIC's statute which provides: "Each guaranty
contract executed by such officer or officers as may be
designated by the Board shall be conclusively presumed to be
issued in compliance with the requirements of this chapter." (Br.
at 30, quoting 22 U.S.C. § 2197(j).) Because the OPIC statute
also includes environmental review procedures, Defendants argue
that the above provision deems all environmental review by OPIC to be in compliance with the law and
not subject to judicial review. (Br. at 30.)
In Spencer Enterprises, Inc. v. United States, 345 F.3d 683,
695 (9th Cir. 2003), the court held judicial review under the APA
was precluded by a statute which provided "no court shall have
jurisdiction to review." Similarly, in Southwest Williamson
County Community Ass'n, Inc. v. Slater, 173 F.3d 1033, 1038 (6th
Cir. 1999), the court held that a statute, which stated that "any
decision by the Secretary concerning a plan or program described
in this section shall not be considered to be a Federal action
subject to review under [NEPA]," precluded judicial review. The
statutory provisions precluding judicial review in Spencer
Enterprises and Southwest Williamson County are clear and
direct. In contrast, the provision pointed to by Defendants in
OPIC's statute merely references what presumption the agency's
conduct is given. It is silent with respect to judicial review.
Defendants have not provided any authority demonstrating that
similar language has been found to preclude judicial review. The
Court thus concludes that this provision does not "clearly and
convincingly" demonstrate Congressional intent to preclude
judicial review. See United Food and Commercial Workers Union,
484 U.S. at 131.
E. Environmental Procedures In OPIC's Statute Do Not Displace
Finally, Defendants argue that Congress decided not to apply
NEPA to OPIC. In two cases, the Ninth Circuit has held that NEPA
did not apply to actions taken pursuant to other environmental
statutes. See Merrell v. Thomas, 807 F.2d 776 (9th Cir. 1986);
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995). The
court in Merrell held that the Environmental Protection Agency
("EPA") does not need to comply with NEPA when it registers
pesticides pursuant to the Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. § 136-136y ("FIFRA"). Merrell,
807 F.2d at 777. In 1972, after NEPA was enacted, Congress
comprehensively amended FIFRA, in part to respond to increasing
public concern over environmental protection. At this time,
Congress gave no indication that it thought NEPA would apply, but
instead, created a registration procedure within FIFRA to ensure
consideration of environmental impacts. The FIFRA procedure did
not exactly mirror the procedures in NEPA, and reflected a compromise between environmentalists,
farmers, and manufacturers. Id. at 778. Congress then amended
FIFRA again in 1975, 1978 and 1984 when it was clear that EPA had
interpreted FIFRA as not requiring compliance with NEPA. The
court noted that "when Congress revisits a statute giving rise to
a longstanding administrative interpretation without pertinent
change, the congressional failure to revise or repeal the
agency's interpretation is persuasive evidence that the
interpretation is the one intended by Congress." Id.
(quotations and citiations omitted). Moreover, the court found it
significant that the 1978 amendments were designed to lighten the
regulatory burdens. Id. Thus, the court held that Congress did
not intend NEPA to apply to FIFRA registrations. Id. at 781.
In Douglas County, the Ninth Circuit held that NEPA did not
apply to a decision by the Secretary of the Interior to designate
critical habitat under the Endangered Species Act,
16 U.S.C. § 1533 ("ESA"). Douglas County, 48 F.3d at 1504. The court found
that ESA's legislative history demonstrated the same
Congressional intent that NEPA did not apply as exhibited by
FIFRA's legislative intent examined by the court in Merrell.
Eight years after NEPA was enacted, Congress amended the ESA to
provide a procedure for designating critical habitat. The
committee report indicated that members wished to introduce some
flexibility into the stringent ESA requirements. Id. at 1503.
The Merrell court found that the procedures created by Congress
in ESA displaced NEPA's procedural and informational requirements
and thus, made the NEPA procedure superfluous. Id. Moreover,
aspects of the ESA mandate as amended conflicted with NEPA's
requirements. The Merrell Court also found it significant that
Congress amended ESA again, after another circuit court held that
NEPA did not apply when the Secretary of the Interior listed a
species as threatened or endangered and suggested in dicta that
the process of designating critical habitat might be the
functional equivalent of NEPA procedures, and after the Secretary
of the Interior announced that he was not going to follow NEPA
before making critical habitat designations. Yet, Congress did
not provide that NEPA applied to designating critical habitat
under ESA. Id. at 1504. Therefore, the court concluded that
Congress did not intend NEPA to be applicable. The court also
found that NEPA did not apply for an additional reason
designating critical habitat does nothing to alter the natural physical environment. Id. at 1505.
Although Defendants argue that the legislative history of
OPIC's statute evinces the same Congressional intent to displace
NEPA as in Merrell and Douglas County, the record reveals
otherwise. In essence, Defendants point to legislative history
indicating, at most, that Congress provided that OPIC should
follow some procedures to protect the environment. Conspicuously
absent from the record is any evidence that Congress amended
OPIC's statute after OPIC interpreted its statute to displace
NEPA. Defendants' only evidence evincing any Congressional intent
on this issue is a discussion regarding the deletion of a
reference to NEPA, but this discussion occurred at the time when
the statute was not yet applicable to OPIC. (Defendants' Ex. 4h.)
Based on this record, the Court cannot conclude that Congress
intended NEPA not to apply to OPIC.
For the foregoing reasons, the Court finds that (1) Plaintiffs
sufficiently demonstrate standing; (2) Plaintiffs are challenging
final agency actions; (3) OPIC's statute does not preclude
judicial review; and (4) Environmental procedures in OPIC's
statute do no displace NEPA. Accordingly, the Court DENIES
Defendants' motion for summary judgment.
IT IS SO ORDERED.
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