Center for Biological Diversity v. Export-Import Bank

The court granted summary judgment to the defendants, finding that the plaintiffs did not have standing. The court said the plaintiffs' had failed to establish that the alleged harm was redressable because they had not addressed whether it was reasonably likely that the project developers would stop work on the project in response to an order setting aside the Export-Import Bank’s funding authorizations.

After initially dismissing the Endangered Species Act (ESA) challenge, the court denied a motion to dismiss an amended complaint. The court concluded that plaintiffs had alleged facts in the amended complaint that plausibly showed that the Ex-Im Bank’s actions included post-construction shipping activities occurring on the high seas, bringing the actions within the ESA’s scope. The court noted that the Ex-Im Bank had funded the “downstream” portions of the projects, including financing for construction of the LNG facilities and related infrastructure, including two marine jetties and loading berths to transfer LNG to tankers for shipping. Even though the Ex-Im Bank did not specifically provide funding for the shipping activities, the court said that it was “reasonable to infer” that a primary objective of the projects was to ship LNG. Because the term “agency action” in the ESA is construed broadly, the court concluded plaintiffs had stated a plausible ESA claim.

The federal district court for the District of Northern California dismissed Endangered Species Act (ESA) claims. The court said that the ESA’s consultation requirements did not apply to projects located in foreign countries and that any challenge to the ESA regulations was time-barred. The court dismissed with leave to amend. Plaintiffs have also alleged a claim under the National Historic Preservation Act; that claim was not a subject of this motion to dismiss.

The district court for the Northern District of California denied defendants’ motion to transfer the action to the district court for the District of Columbia, finding that defendants had failed to sustain their burden of showing that transfer was warranted.

Three environmental groups filed a lawsuit against the Export-Import Bank alleging that it failed to perform rigorous environmental assessments before approving $2.95 billion in financing for an Australian liquefied natural gas project. The $20 billion project will drill up to 10,000 coal-seam gas wells and install nearly 300 miles of pipeline to transport the gas to the coast. The complaint alleges that the bank violated the Endangered Species Act (ESA), NEPA, and other environmental laws when issuing the financing. The case tested the unresolved legal issue of whether the ESA applies to federal agency actions take outside of U.S. borders.