In National Association of Homebuilders, et al. v. Environmental Protection Agency, et al., 2011 W.L. 6118589 (December 9, 2011) (“Homebuilders”) the D.C. Circuit Court of Appeals has raised the bar for Article III standing in actions involving private petitioners or appellants. While recent years have seen a loosening of the standing requirements for states (see, e.g., Massachusetts v. EPA, 549 U.S. 497, 518 (2007) [“This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, and all the earth and air within its domain”], and municipalities (see, e.g., City of Olmsted Falls v. FAA, 292 F.3d 261, 268 (2002) [“In this Circuit we have found standing for a city suing an arm of the Federal government when a harm to the City itself has been alleged” [emphasis added]], Homebuilders represents an escalation of the existing standing restrictions for individuals and organizations that represent them.

Article III of the United States Constitution “limits Federal Court jurisdiction to ‘cases’ and ‘controversies.’ Those two words confine ‘the business of Federal Courts to questions represented in an adversary context and in a forum historically viewed as capable of resolution through the judicial process.’” Massachusetts, supra, 549 U.S. at 515, quoting Flast v. Cohen, 392 U.S. 83, 95 (1968). In order to establish Article III standing, “a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts, supra, 549 U.S. at 517. In Homebuilders, the National Association of Homebuilders (“NAHB”), which represents a variety of individual developers, brought suit challenging the determination by the United States Environmental Protection Agency (“EPA”) and United States Army Corps of Engineers (“ACOE”) that certain reaches of the Santa Cruz River in Arizona constitute “Traditional Navigable Waters” (“TNW”), thus subjecting those reaches to Federal regulation. The Court in Homebuilders rejected NAHB’s attempts to fit under the umbrellas of organizational, representational or procedural standing on the following grounds.

With respect to organizational standing, the Court opined that “NAHB must ‘demonstrate that it has suffered injury in fact including such concrete and demonstrable injury to the organization’s activities – with a consequent drain on the organization’s resources – constituting more than simply a set back to the organization’s abstract social interests.” Homebuilders, supra, at * 2. The Court found that NAHB’s allegations of expended staff time and monetary resources on legal services and lobbying did not establish the requisite allegation that the action “perceptibly impaired” a non-abstract interest, Id. quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). The Court did not, however, explain what would have been a sufficient allegation.

With respect to representational standing, the Court reiterated the test for establishing representational standing in which “an association must demonstrate that (a) its members would otherwise have standing to sue in their own right; (b) the interest it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. at * 3. The Court went on to find that NAHB had not met this burden because it had not sufficiently alleged any threat of injury in fact to any of its members traceable to the TNW Determination. This was in spite of several declarations submitted by third parties purporting to have knowledge of the possible adverse impacts of the TNW Determination on owners and developers on the banks of the river. Apparently, however, none of the declarations were from those owners or operators, nor were any directly affected parties also parties to the lawsuit.

Finally, the Court denied NAHB’s claim of procedural standing as well, even though “a litigant to whom Congress has accorded a procedural right to protect his concrete interests – here the right to challenge agency action unlawfully withheld, § 7607(b)(1) – can assert that right without meeting all the normal standards for redressability and immediacy.” Massachusetts, supra, 549 U.S. at 517. “When a litigant is vested with a procedural right that litigant has standing if there is some possibility that the requested relief will prompt the injury causing party to reconsider the decision that allegedly harmed the litigant.” Id. at 518. However, in Homebuilders, the Court found that NAHB had failed to meet the same standard it had failed to meet with respect to either organizational or representational standing, i.e., it had failed to allege any concrete interest of any of its members affected by the deprivation of the procedure, without which Article III standing could not be maintained.

Based on the above analysis, it appears that NAHB required only one short additional step toward the goal of establishing standing. As “only one of the petitioners needs to have standing to permit [the Court] to consider the petition for review,” Massachusetts, supra, 549 U.S. at 517, NAHB could potentially have established standing if one of its members, directly affected by the TNW Determination, had become a party and supplied a declaration setting forth the “injury in fact” that was, or would be, caused by the implementation of the TNW Determination. With an individual allegation of “concrete and particularized injury” that is “imminent” “fairly traceable” to the TNW Determination, and remediable by a favorable decision of the Court, the case could have gone forward without the necessity for the complex analysis in which the Court ultimately engaged, and potentially without the adverse outcome to NAHB.