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

United States District Court, N.D. California, Oakland Division

August 12, 2014

CENTER FOR BIOLOGICAL DIVERSITY, PACIFIC ENVIRONMENT, and TURTLE ISLAND RESTORATION NETWORK, Plaintiffs,
v.
EXPORT-IMPORT BANK OF THE UNITED STATES and FRED P. HOCHBERG, in his official capacity as Chairman and President of the Export-Import Bank of the United States, Defendants.

ORDER GRANTING MOTION TO DISMISS Docket 41.

SAUNDRA BROWN ARMSTRONG, District Judge.

Plaintiffs Center for Biological Diversity, Pacific Environment, and Turtle Island Restoration Network (collectively, "Plaintiffs") bring the instant environmental action against the Export-Import Bank of the United States ("Ex-Im Bank") and Fred P. Hochberg ("Hochberg"), in his official capacity as Chairman and President of Ex-Im Bank (collectively, "Defendants"). Plaintiffs allege that Ex-Im Bank provided financing for two natural gas projects in Australia without complying with environmental laws in violation of the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq., the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470, et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. The parties are presently before the Court on Defendants' motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure. Dkt. 41. Plaintiffs oppose the motion. Dkt. 43. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby GRANTS Defendants' motion, for the reasons stated below. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

I. BACKGROUND[1]

In this case, environmental organizations dedicated to protecting wildlife and other environmental causes, challenge Ex-Im Bank's[2] decision to provide nearly $4.8 billion in financing for the development and construction of two liquefied natural gas ("LNG") projects in Australia's Great Barrier Reef World Heritage Area. FAC ¶ 1, Dkt. 28. Plaintiffs allege that the projects, the Australia Pacific LNG Project and the Queensland Curtis LNG Project (collectively, "the Projects"), include gas drilling, pipeline construction, construction of an LNG production facility and shipping terminal, and transport of LNG through the Great Barrier Reef. Id . According to Plaintiffs, Ex-Im Bank funded these "massive" fossil fuel projects without properly consulting and considering the Projects' substantial impacts on threatened and endangered species on the Great Barrier Reef World Heritage Area, as required by the ESA and the NHPA. Id.

The Australia Pacific LNG Project is located in Queensland, Australia. FAC ¶ 2. The project's proponents will drill up to 10, 000 coal-seam gas wells in interior Queensland, install nearly 300 miles of pipeline to transport the gas to the coast, construct and operate a massive LNG facility to condense the gas to liquid and prepare it for transport, dredge the adjacent harbor, and then ship directly through the Great Barrier Reef to export the LNG around the world. Id . The Queensland Curtis LNG Project will also be located in Queensland. Id . ¶ 3. The project's proponents will drill up to 6, 000 coal-seam gas wells in interior Queensland, install over 210 miles of pipeline, construct and operate a LNG facility that will be located immediately south of the Australia Pacific LNG facility, dredge the adjacent harbor, and then ship the LNG through the Great Barrier Reef. Id.

Both LNG processing facilities and terminals will be located on Curtis Island, "partially" within the boundaries of the Great Barrier Reef World Heritage Area. FAC ¶ 4. Both LNG facilities will also be located within designated habitat for the dugong, a species listed under the ESA as "endangered, " and within habitat for threatened-listed green sea turtles, endangered loggerhead sea turtles, and threatened saltwater crocodiles. Id.

Plaintiffs allege that, despite the serious impacts that the Projects will have on ESA-listed species and water quality, Ex-Im Bank failed to initiate or complete consultation with the United States wildlife agencies as required by the ESA before funding the Projects, and failed to "take into account the effect of the undertaking[s]... for purposes of avoiding or mitigating any adverse effects" to the Great Barrier Reef World Heritage Area, as required by NHPA.[3] FAC ¶¶ 5-7. According to Plaintiffs, the NHPA required Ex-Im Bank to generate and consider information regarding the Projects' impacts on the World Heritage Area, determine whether the effects will be adverse, develop modifications to avoid or mitigate those impacts, and consult with Australia and other interested entities. Id . ¶ 7.

The operative complaint alleges three claims for relief: (1) violation of § 7 of the ESA; (2) violation of the NHPA and the Administrative Procedure Act ("APA"); and (3) violation of the Freedom of Information Act and the APA. Dkt. 28. Defendants now move to dismiss Plaintiffs' first claim for relief for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Dkt. 41.

II. LEGAL STANDARDS

A. Rule 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), a complaint may be dismissed for lack of subject matter jurisdiction. "Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence." Rattlesnake Coalition v. United States Envtl. Protection Agency , 509 F.3d 1095, 1102 n. 1 (9th Cir. 2007).

"A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc. , 328 F.3d 1136, 1139 (9th Cir. 2003). In a "facial" attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. Safe Air For Everyone v. Meyer , 373 F.3d 1035, 1038 (9th Cir. 2004). The court assumes the truth of plaintiff's factual allegations and draws all reasonable inferences in its favor. Doe v. Holy See , 557 F.3d 1066, 1073 (9th Cir. 2009). By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. Safe Air , 373 F.3d at 1038. When a defendant makes a factual challenge "by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Id. at 1039.

B. Rule 12(b)(6)

"Dismissal under Rule 12(b)(6) is proper when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory." Somers v. Apple, Inc. , 729 F.3d 953, 959 (9th Cir. 2013). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 563 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A claim has facial plausibility when a plaintiff "pleads ...


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