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.
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. ...