Background
Four landowners in Jackson County, Kansas, and the City of Rossville sued the United States Department of Treasury and various officials. They alleged that Treasury violated the National Environmental Policy Act by issuing regulations for the Inflation Reduction Act without requiring NEPA compliance for the tax credits. The plaintiffs argued that the lack of NEPA review for the Jeffrey Solar project in their county created an increased risk of environmental harm. The district court dismissed the suit for lack of jurisdiction and failure to state a claim.
The court’s reasoning
The Tenth Circuit reviewed the standing determination de novo. The court explained that to establish injury in fact in a NEPA case, a plaintiff must show that the agency’s disregard of procedural requirements created an increased risk of actual, threatened, or imminent environmental harm. The court found that the plaintiffs alleged Treasury failed to mandate NEPA compliance for private projects, rather than failing to follow NEPA procedures in its own decision-making. Because there was no discretionary agency action subject to NEPA review that the plaintiffs could challenge, and the alleged harm was based on future construction by a private party, the plaintiffs failed to show an injury in fact. The court noted that the injury was conjectural and not traceable to the agency’s regulations.
What it means going forward
The decision reinforces the requirement that plaintiffs in environmental challenges must identify a specific agency action that failed to comply with NEPA procedures to establish standing. It clarifies that a general failure to require NEPA compliance for private actors does not constitute a cognizable injury in fact.