On Tuesday, May 26, 2015, the U.S. Court of Appeals for the District of Columbia Circuit rejected (pdf) the National Association of Home Builders’ and three other associations’ (collectively, NAHB) challenge to separate settlements between the U.S. Fish and Wildlife Service (Service) and two environmental organizations. The settlements direct the Service to make listing decisions on 251 species by specified dates.  The Court of Appeals affirmed a district court’s decision that NAHB lacked standing to raise its challenge.

As we previously reported, the district court found that plaintiffs could not demonstrate standing because the settlement agreements do not require any specific outcome.  Therefore, plaintiffs could not demonstrate injury-in-fact.  The Court of Appeals affirmed that decision, holding that NAHB must show an actual or imminent, concrete and particularized injury-in-fact.  The Court of Appeals noted that the settlements only require the Service to render a final listing decision by a specific date.  This results in the mere possibility of regulation, which is insufficient to establish injury-in-fact.

The Court of Appeals also held that NAHB had not been harmed through the expenditure of funds to reduce risks to candidate species because the Service had not dictated any of those expenditures.  Because NAHB voluntarily spent resources on conservation efforts, the “harm” complained of was not inflicted by the Service.