Thursday, September 15, 2016
Judge Ketanji Brown Jackson (D.D.C.) ruled in New England Anti-Vivisection Society v. U.S. Fish and Wildlife Service that the plaintiff organization lacked standing to challenge an export permit issued by the FWS for certain chimpanzees. The ruling means that this case ends (except NEAVS's FOIA claim), unless and until NEAVS successfully appeals.
The case arose when the FWS issued an export permit under the Endangered Species Act that allowed Yerkes National Primate Research Center to transfer eight of its chimpanzees to a zoo in the U.K. (The ESA requires an export permit in order to export endangered species.) NEAVS sued, lodging several causes of action, but the FWS moved to dismiss for lack of standing.
NEAVS argued that it had informational standing, "because the FWS's failure to collect the information necessary to conclude that the authorized export will 'enhance the survival' of the chimpanzee species." It argued that it had organizational standing, because FWS's permit decision would harm its ability to carry out a key mission--ending the use of animals in research, testing, and science education. And it argued that its members had individual standing, because those members formed strong bonds with the particular chimpanzees that will be exported, and that they hope to see them again.
The court held that NEAVS lacked informational standing, because Section 10(c) doesn't require an agency to collect the information that NEAVS cites. "By its terms, then, Section 10(c) creates a 'right to information[,]' but that right extends only to the information that the agency receives in connection with a permit application, and Congress did not impose any duty to make an affirmative effort to collect certain information as part of the permitting process . . . ."
The court held that NEAVS lacked organizational standing, because, under circuit precedent, its interests are simply too abstract. "NEAVS has not shown that [the] export permit impairs NEAVS's own activities or operations in any perceptible way. Indeed, the testimony that Plaintiffs have offered comes nowhere close to specifying how the permit interferes with NEAVS's ability to do its job . . . and, instead, NEAVS's declarant makes statements that are remarkably close to the kinds of general mission-frustration contentions that the D.C. Circuit has considered (and rejected) as a basis for finding organizational standing.
The court held that there was no individual standing, because "the dashed-hopes harm these individual plaintiffs allegedly have suffered" is not an injury in fact, and it "is also not even fairly traceable to FWS's decision to issue the export permit." And any aesthetic injury was to speculative, or was self-inflicted.