Ashley Creek Phosphate Co. v. Norton

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASHLEY CREEK PHOSPHATE CO., 

Plaintiff-Appellant,

v. No. 04-35640

GALE NORTON, Secretary, United

States Department of the Interior;  D.C. No.

CV-03-00499-BLW

NU-WEST INDUSTRIES, INC., dba:

OPINION

Agrium Conda Phosphate

Operations,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, District Judge, Presiding

Argued and Submitted

June 7, 2005—Seattle, Washington

Filed August 22, 2005

Before: Warren J. Ferguson, Robert R. Beezer, and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown;

Partial Concurrence and Partial Dissent by Judge Beezer

11075

11078 ASHLEY CREEK PHOSPHATE v. NORTON

COUNSEL

E. Craig Smay, E. Craig Smay, P.C., Salt Lake City, Utah, for

the appellant.

Zach C. Miller, Davis Graham & Stubbs, Denver, Colorado,

for the appellees.

Robert C. Grisham, Assistant United States Attorney, Boise,

Idaho, for the appellees.

OPINION

McKEOWN, Circuit Judge:

The issue we address is whether Ashley Creek Phosphate

Company has standing to bring this action under the National

Environmental Policy Act (“NEPA”). Ashley Creek has no

environmental stake in the phosphate mining project at issue,

which is some 250 miles from the phosphate Ashley Creek

controls. Indeed, its only interest is an economic one: if the

project does not go forward, Ashley Creek speculates that it

might become an alternate supplier of phosphate. Because it

has shown neither an injury in fact nor an interest within the

zone of interests protected by section 102(2)(C) of NEPA,1

Ashley Creek lacks standing to bring this NEPA challenge.

1

By convention, throughout the opinion we refer to the relevant provi-

sion of NEPA as it was enumerated in the original Act, rather than by its

ASHLEY CREEK PHOSPHATE v. NORTON 11079

PROCEDURAL AND FACTUAL BACKGROUND

Agrium Conda Phosphate Operations manufactures

phosphate-based fertilizer at the Conda Phosphate Processing

Plant (“the Plant”) near Soda Springs, Idaho. Agrium histori-

cally has obtained phosphate for the Plant from the Rasmus-

sen Ridge Mine, which is about twelve miles from the Plant.

With the Rasmussen Ridge Mine nearing depletion, Agrium

began exploring alternate sources of phosphate in the late

1990s.

One option that Agrium initially considered was to supply

the Plant with phosphate from deposits near Vernal, Utah

(“Vernal deposits”). The Vernal deposits are controlled by

Ashley Creek, which leases large portions of the deposits

from the State of Utah. Agrium contacted Ashley Creek to

find out whether it could supply phosphate for the Plant, but

after investigating the cost of mining and transporting phos-

phate from the Vernal deposits, Agrium decided that obtain-

ing phosphate from Ashley Creek was too expensive.

Agrium turned its attention to expanding its existing opera-

tions at the Rasmussen Ridge Mine into North Rasmussen

Ridge where it had not previously mined. Much of the land

on North Rasmussen Ridge is administered by the Bureau of

Land Management (“BLM”), which required Agrium to sub-

mit a mine and reclamation plan. The BLM determined that

an Environmental Impact Statement (“EIS”) was necessary to

evaluate the potential impact of exposing harmful materials,

such as selenium, and possible harm to the Canada Lynx, a

species recently listed as “threatened” under the Endangered

Species Act. The exposure of selenium and other elements

contained in phosphate increases the potential for release of

those elements into the water and soil.

current section designation in the United States Code. Section 102 is codi-

fied at 42 U.S.C. § 4332.

11080 ASHLEY CREEK PHOSPHATE v. NORTON

The BLM prepared a draft EIS that considered three alter-

natives, including the proposed action—mining at North Ras-

mussen Ridge—and a no action alternative. In response,

Ashley Creek submitted a letter commenting that the draft

EIS was deficient because it did not consider as an alternative

the possibility of mining the Vernal deposits that Ashley

Creek controls. Ashley Creek wrote that the Vernal deposits

were not only cost-effective, but were also environmentally

superior to the proposed action.

In declining to include mining the Vernal deposits as an

alternative in the final EIS, the BLM explained that its

responsibility was to respond to the proposed mining expan-

sion on North Rasmussen Ridge, not to compare various

phosphate supplies:

[The BLM’s responsibility is to] either approve the

plan of operations as proposed, modify the mine plan

with alternatives, or disapprove the operation with

the No Action Alternative. As such, a comparative

analysis of the cost or other environmental factors of

mining North Rasmussen Ridge with other viable

phosphate reserves is not within the scope of this

analysis. The fundamental question to be decided by

this NEPA analysis is not how Agrium’s Conda Fer-

tilizer Plant will be fed, but if the North Rasmussen

Ridge reserve will be mined at this time.

The BLM also observed that Agrium’s investigation indicated

that the Vernal deposits were not a viable supply of phosphate

because Ashley Creek had not developed the reserves, had no

mine plan, and lacked a host of other conditions for mining.

Following the issuance of the final EIS, Ashley Creek filed

a complaint in the district court alleging that the alternatives

analysis in the EIS was deficient because it failed to consider

supplying the Plant with phosphate from the Vernal deposits.

The district court dismissed the suit for lack of standing, rea-

ASHLEY CREEK PHOSPHATE v. NORTON 11081

soning that Ashley Creek’s interest was purely economic and

economic interests do not fall within the zone of interests pro-

tected by NEPA.

DISCUSSION

To resolve this appeal, we must address the threshold ques-

tion of standing. The Supreme Court has described standing

as being “[i]n essence the question of . . . whether the litigant

is entitled to have the court decide the merits of the dispute

or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498

(1975). Because Article III of the Constitution limits the role

of the judiciary to hearing only “cases” or “controversies,”

constitutional standing ensures that a plaintiff has sufficient

stake in a case to establish a “case” or “controversy.” See

United Food & Commercial Workers Union Local 751 v.

Brown Group, Inc., 517 U.S. 544, 551 (1996). Grafted on top

of this constitutional backbone are prudential standing

requirements consisting of “several judicially self-imposed

limits on the exercise of federal jurisdiction.” Id. (internal

quotation marks and citation omitted). Thus, our standing

analysis entails an examination of both constitutional and

non-constitutional requirements. See City of Sausalito v.

O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004). We review a

district court’s determination of standing de novo. Id. at 1196-

97.

I. ARTICLE III STANDING

[1] Because Article III standing is based on constitutional

limits on the federal courts’ power, U.S. Const. art. III § 2,

Article III standing requires as an “irreducible minimum,”

Brown Group, Inc., 517 U.S. at 551, that the plaintiff show

(1) an injury in fact that is both (a) concrete and particularized

and (b) actual or imminent, not conjectural or hypothetical;

(2) that the injury is fairly traceable to the challenged action

of the defendant; and (3) a likelihood that the injury will be

redressed by a favorable decision. Friends of the Earth, Inc.

11082 ASHLEY CREEK PHOSPHATE v. NORTON

v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000). The

injury in fact prong is determinative of this appeal.

The injury Ashley Creek asserts is that the BLM refused to

include in the EIS the alternative that Agrium could mine

phosphate from Ashley Creek’s Vernal deposits. Ashley

Creek’s alleged injury is a procedural one that, in essence,

amounts to a claim that the BLM injured it by failing to com-

ply with NEPA’s procedural requirement of considering alter-

natives. See NEPA § 102(2)(C)(iii) (requiring an EIS to

consider alternatives to the proposed action).

[2] NEPA is a procedural statute, and thus it is not surpris-

ing that procedural injuries frequently suffice for standing in

the NEPA context. See e.g., Citizens for Better Forestry v.

United States Dep’t of Agric., 341 F.3d 961, 970-72, 978 (9th

Cir. 2003) (plaintiffs had standing when they alleged proce-

dural injury of deprivation of opportunity to comment on

environmental reviews); see also, Lujan v. Defenders of Wild-

life, 504 U.S. 555, 573 n.8 (1992) (plaintiff “assuredly can”

enforce procedural rights). But a plaintiff asserting a proce-

dural injury does not have standing absent a showing that the

“procedures in question are designed to protect some threat-

ened concrete interest of his that is the ultimate basis of his

standing.” Lujan, 504 U.S. at 573 n.8.2 A free-floating asser-

tion of a procedural violation, without a concrete link to the

interest protected by the procedural rules, does not constitute

an injury in fact. See id. at 572-73 & nn.7-8; see also City of

Sausalito, 386 F.3d at 1197 (plaintiff alleging a procedural

2

Our analysis of a procedural injury under NEPA typically involves

three inquiries: 1) whether the agency violated certain procedural rules, 2)

whether those rules protect the plaintiff’s concrete interests, and 3)

whether it is reasonably probable that the challenged action will threaten

the concrete interests. City of Sausalito, 386 F.3d at 1197 (citing Citizens

for Better Forestry, 341 F.3d at 969-70). Because the first inquiry is

closely intertwined with the merits of Ashley Creek’s case, which we can-

not decide unless Ashley Creek has standing, we focus on the second

question.

ASHLEY CREEK PHOSPHATE v. NORTON 11083

injury must also assert a concrete interest that is threatened by

failure to comply with the procedural requirement); Cantrell

v. City of Long Beach, 241 F.3d 674, 679 (9th Cir. 2001)

(plaintiff alleging procedural injury must show that the proce-

dures protect a concrete interest).

[3] For claims brought under NEPA, “we have described

this ‘concrete interest’ test as requiring a ‘geographic nexus’

between the individual asserting the claim and the location

suffering an environmental impact.” Cantrell, 241 F.3d at 679

(citing Douglas County v. Babbitt, 48 F.3d 1495, 1500 n.5

(9th Cir. 1995)). Accordingly, plaintiffs who use the area

threatened by a proposed action or who own land near the site

of a proposed action have little difficulty establishing a con-

crete interest. See, e.g., Citizens for Better Forestry, 341 F.3d

at 971 (plaintiffs established geographic nexus by showing

that they used and enjoyed national forests affected by pro-

posed national forest management policy); Kootenai Tribe of

Idaho v. Veneman, 313 F.3d 1094, 1112 (9th Cir. 2002)

(plaintiffs with ownership interests in land adjacent to forest

affected by proposed action established geographic nexus).

[4] Ashley Creek, whose phosphate leases are in Utah,

lacks any judicially recognizable geographic nexus to the area

that would be affected by mining on the North Rasmussen

Ridge, which is approximately 250 miles away in Idaho.

Although 250 miles is not some magic numerical distance

beyond which a party is too far removed from the immediate

environmental impact of a project to assert standing, we

observe that this distance prevents an assumption, in this case,

that Ashley Creek is geographically connected to North Ras-

mussen Ridge. Ashley Creek has not shown that its phosphate

fields are tied to the location of the proposed mining or that

the impacts of the mining will affect its property interests.

Contra Kootenai Tribe of Idaho, 313 F.3d at 1112 (plaintiffs

had ownership interests in lands adjacent to national forests

that could be affected by implementation of Forest Service

rule). Nor has Ashley Creek alleged that it uses, appreciates,

11084 ASHLEY CREEK PHOSPHATE v. NORTON

or in any way has an interest in the region surrounding North

Rasmussen Ridge. Contra Citizens for Better Forestry, 341

F.3d at 971 (members of plaintiff organization used and

enjoyed the forests at issue and, consequently, alleged a con-

crete interest).

What is missing in this case is a legally sufficient link

between Ashley Creeks’s interest—getting the BLM to ana-

lyze unrelated phosphate deposits 250 miles away from the

proposed mines—and NEPA’s procedural requirement that

agencies analyze the environmental impact of the proposed

mining at a specific site, North Rasmussen Ridge. Not only is

the geographic link missing, the substantive concrete injury is

wholly absent.

Under Ashley Creek’s theory, any owner of a phosphate

mine, whether located in Alaska, Utah, or Florida, would have

standing to challenge the EIS. Why stop there? Taking Ashley

Creek’s framework one step further, the BLM would be obli-

gated not only to analyze the environmental suitability of

unrelated phosphate deposits, but also phosphate substitutes

that might be more eco-friendly.

[5] Indeed, Ashley Creek is strikingly similar to Justice

Scalia’s example of the kinds of plaintiffs who cannot assert

procedural injuries: “persons who have no concrete interests

affected—persons who live (and propose to live) at the other

end of the country from the [proposed project].” Lujan, 504

U.S. at 572 n.7. Without evidence that Ashley Creek’s leases

have some geographic nexus to the proposed mines, they are

for standing purposes “at the other end of the country” from

those mines. We therefore hold that the geographic disconnect

between Ashley Creek and the proposed mining project at

North Rasmussen Ridge precludes Ashley Creek from alleg-

ing a procedural injury sufficient to confer standing.

II. PRUDENTIAL STANDING

[6] Not only does Ashley Creek fail to satisfy the injury in

fact component of Article III standing, it fails to meet the

ASHLEY CREEK PHOSPHATE v. NORTON 11085

zone of interests test, a prudential standing requirement. The

prudential standing analysis examines whether “a particular

plaintiff has been granted a right to sue by the statute under

which he or she brings suit.” City of Sausalito, 386 F.3d at

1199. The bottom line is that Ashley Creek’s interest in the

EIS analysis is purely financial. NEPA, on the other hand, is

directed at environmental concerns, not at business interests.

For reasons closely related to its lack of a concrete injury,

Ashley Creek’s challenge does not fall within NEPA’s zone

of interests. As an alternate basis for our decision, we hold

that Ashley Creek lacks standing under the prudential stand-

ing requirement.

[7] Because NEPA does not provide for a private right of

action, see, e.g., Sierra Club v. Penfold, 857 F.2d 1307, 1315

(9th Cir. 1988), plaintiffs challenging an agency action based

on NEPA must do so under the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 551 et seq. Under the APA, “a person

. . . adversely affected or aggrieved by agency action within

the meaning of a relevant statute, is entitled to judicial review

thereof.” 5 U.S.C. § 702. The Supreme Court has interpreted

this section of the APA as imposing a prudential standing

requirement that “the interest sought to be protected by the

complainant [must be] arguably within the zone of interests to

be protected or regulated by the statute . . . in question.” Ass’n

of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150,

153 (1970).

The zone of interests test is not intended to impose an oner-

ous burden on the plaintiff and “is not meant to be especially

demanding.” See Clarke v. Sec. Indus. Ass’n, 479 U.S. 388,

399 (1987). But when, as here, the plaintiff is not “the subject

of the contested regulatory action, the test denies a right of

review if the plaintiff’s interests are so marginally related to

or inconsistent with the purposes implicit in the statute that it

cannot reasonably be assumed that Congress intended to per-

mit the suit.” Id.

11086 ASHLEY CREEK PHOSPHATE v. NORTON

[8] We have long described the zone of interests that NEPA

protects as being environmental. See, e.g., Nevada Land

Action Ass’n v. United States Forest Serv., 8 F.3d 713, 716

(9th Cir. 1993) (“The purpose of NEPA is to protect the envi-

ronment, not the economic interests of those adversely

affected by agency decisions.”); Port of Astoria v. Hodel, 595

F.2d 467, 475 (9th Cir. 1979) (purely financial interests are

outside of NEPA’s zone of interests). Accordingly, we have

consistently held that purely economic interests do not fall

within NEPA’s zone of interests: “[A] plaintiff who asserts

purely economic injuries does not have standing to challenge

an agency action under NEPA.” Nevada Land Action Ass’n,

8 F.3d at 716; see also Ranchers Cattlemen v. United States

Dep’t of Agric., 2005 WL 1731761 at *18 (9th Cir. July 25,

2005) (an economic injury alone will not support a claim

under NEPA); Western Radio Servs. Co. v. Espy, 79 F.3d 896,

903 (9th Cir. 1996) (holding that a plaintiff whose only com-

plaint was that agency action would cause economic harm

asserted an interest outside NEPA’s zone of interests); Port of

Astoria, 595 F.2d at 475 (holding that injuries that were “only

pecuniary losses and frustrated financial expectations that

[were] not coupled with environmental considerations” were

“outside of NEPA’s zone of interests”).

[9] Under this long-standing rule against purely economic

interests falling within NEPA’s zone of interests, Ashley

Creek fails to establish prudential standing. Rather, Ashley

Creek has never claimed to be protecting an interest that is

even remotely intertwined with the environment. Ashley

Creek’s sole interest is in selling phosphate to Agrium; Ash-

ley Creek has not linked its pecuniary interest to the physical

environment or to the environmental impacts of the project

evaluated in the EIS. As the district court noted, Ashley Creek

conceded as much, stating in its brief before that court that it

“does not have an interest in the local Idaho environment.”

Ashley Creek attempts to escape the conclusion that its

bare financial interest falls outside NEPA’s zone of interests

ASHLEY CREEK PHOSPHATE v. NORTON 11087

by arguing that the rule prohibiting those with purely eco-

nomic interests from suing under NEPA ceases to apply once

an agency decides to move forward with an EIS. Ashley

Creek’s argument depends on a determination that § 102—the

provision of NEPA that sets out the content requirements of

the environmental report once an agency determines that an

EIS is necessary—protects purely economic interests.3 That

determination, in turn, would require us to conclude that, for

purposes of standing, there is a distinction between cases

involving NEPA’s threshold applicability (i.e., whether an

EIS is necessary) and cases in which an EIS is clearly

required. In the end, Ashley Creek’s theory is undone by the

structure of NEPA and the purpose of § 102. Section 102 does

not support this bifurcated reading of the statute.

3

Section 102 provides, in pertinent part, that:

The Congress authorizes and directs that, to the fullest extent

possible : (1) the policies, regulations, and public laws of the

United States shall be interpreted and administered in accordance

with the policies set forth in this chapter, and (2) all agencies of

the Federal Government shall—

...

(C) include in every recommendation or report on proposals for

legislation and other major Federal actions significantly affecting

the quality of the human environment, a detailed statement by the

responsible official on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be

avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man’s

environment and the maintenance and enhancement of long-

term productivity, and

(v) any irreversible and irretrievable commitments of

resources which would be involved in the proposed action

should it be implemented.

11088 ASHLEY CREEK PHOSPHATE v. NORTON

Ashley Creek’s argument springs from the Supreme

Court’s decision in Bennett v. Spear, 520 U.S. 154 (1997), in

which the Court considered the zone of interests protected by

a different environmental statute, the Endangered Species Act

(“ESA”). The Court clarified that whether a plaintiff’s interest

is within the zone of interests protected by a statute “is to be

determined not by reference to the overall purpose of the Act

in question (here, species preservation), but by reference to

the particular provision of law upon which the plaintiff

relies.” Id. at 175-76. In Bennett, the particular provision at

issue was § 7 of the ESA, 16 U.S.C. § 1536, which requires

each federal agency to insure that any action it authorizes,

funds, or carries out “is not likely to jeopardize the continued

existence of any endangered species or threatened species

. . . .” 16 U.S.C. § 1536(a)(2). When evaluating potential

effects on endangered species, agencies must “use the best

scientific and commercial data available.” Id.

The Court concluded that the language requiring the use of

data indicated that one objective of § 7 was to avoid “needless

economic dislocation produced by agency officials zealously

but unintelligently pursuing their environmental objectives.”

Bennett, 520 U.S. at 176-77. The purpose of requiring agen-

cies to use high quality data, the Court reasoned, is to “ensure

that the ESA not be implemented haphazardly” in ways that

cause unnecessary economic harm. Id. Because § 7 protected

economic interests, the Court held that plaintiffs who asserted

economic interests fell within the § 7’s zone of interests. Id.

at 177.

Applying Bennett, the Eighth Circuit examined the same

provision of NEPA on which Ashley Creek relies, § 102.

Friends of the Boundary Waters Wilderness v. Dombeck, 164

F.3d 1115 (8th Cir. 1999). The court followed Bennett’s

instruction to examine the particular statutory provision at

issue and determined that § 102 encompassed both environ-

mental and economic concerns. Id. at 1125-26. The court paid

special attention to the regulations that implement § 102,

ASHLEY CREEK PHOSPHATE v. NORTON 11089

observing that those regulations require an EIS to include eco-

nomic effects that are interrelated with physical environmen-

tal effects. Id. at 1126 (quoting 40 C.F.R. § 1508.14).

The Eighth Circuit rejected an argument that NEPA’s gen-

eral purpose of environmental protection infuses § 102 with

that same purpose. Id. at 1127. Instead, the court distin-

guished between cases involving NEPA’s applicability and

cases where NEPA requires an EIS, and reasoned that the

general purpose applies only in threshold applicability cases,

but does not govern the specific provisions of NEPA that con-

trol the EIS process. Id. at 1127. The court concluded that

plaintiffs had standing when they claimed that an EIS failed

to sufficiently consider the impact of an agency action on

local economies. Id. at 1126-27.

We agree that Bennett instructs us to define the zone of

interests with reference to the specific provision of the statute

at issue, but we disagree with our sister circuit that § 102 pro-

tects purely economic interests or that it can be severed from

NEPA’s overarching purpose. As Agrium points out, Friends

of the Boundary Waters is factually distinguishable from this

case because the plaintiffs there conducted business on and

relied upon the lands that would be affected by the agency

action. Id. at 1120, 1126. Those plaintiffs also alleged that the

agency action would hamper their ability to enjoy the wilder-

ness area involved. Id. at 1126. In contrast, Ashley Creek has

not alleged any tie to the lands that would be affected by the

BLM’s decision to permit mining.

We agree that Friends of the Boundary Waters can be per-

suasively distinguished on these factual differences. Nonethe-

less, we focus on our disagreement with the Eighth Circuit’s

reasoning because subsequent Eighth Circuit cases have inter-

preted Friends of the Boundary Waters as establishing that

“even purely economic interests may confer standing under

NEPA if the particular NEPA provision giving rise to the

plaintiff’s suit evinces a concern for economic consider-

11090 ASHLEY CREEK PHOSPHATE v. NORTON

ations.” Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031,

1038 (8th Cir. 2002); see also Cent. South Dakota Coop.

Grazing Dist. v. United States Dep’t of Agric., 266 F.3d 889,

895-96 (8th Cir. 2001) (“[O]nce [NEPA’s] procedures have

been invoked, a plaintiff can assert an injury arising from the

agency’s failure to consider NEPA’s particular purposes or

provisions, which might include economic considerations.”).

This reading means that Friends of the Boundary Waters has

come to stand for a broad principle that extends beyond the

facts of that case and would encompass virtually any eco-

nomic interest, no matter how remote. It is on this open-ended

and expansive interpretation of “purely economic interests”

that we part company with the Eighth Circuit.

[10] An examination of § 102(2)(C) reveals that, while it

acknowledges economic concerns, those economic concerns

are not divorced from environmental considerations. In other

words, § 102(2)(C) does not set out a purely economic factor,

unconnected to environmental concerns. Section 102(2)(C)

requires all federal agencies to:

include in every recommendation or report on pro-

posals for legislation and other major Federal actions

significantly affecting the quality of the human envi-

ronment, a detailed statement by the responsible offi-

cial on—

(i) the environmental impact of the pro-

posed action,

(ii) any adverse environmental effects

which cannot be avoided should the pro-

posal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-

term uses of man’s environment and the

ASHLEY CREEK PHOSPHATE v. NORTON 11091

maintenance and enhancement of long-term

productivity, and

(v) any irreversible and irretrievable com-

mitments of resources which would be

involved in the proposed action should it be

implemented.

In interpreting the statute, it is useful to start at the begin-

ning. The EIS itself is triggered by a “major Federal action[ ]

that will significantly affect the quality of the human environ-

ment.” NEPA § 102(2)(C) (“[A]ll agencies of the Federal

Government shall . . . include in every recommendation or

report on . . . major Federal actions significantly affecting the

quality of the human environment, a detailed statement” on

the environmental impact of the project). Thus, the human

environment is the overarching principle driving the provi-

sion.

The statute then goes on to list what an EIS must contain.

The first two subsections, §§ 102(2)(C)(i) and (ii), focus spe-

cifically on environmental effects—the environmental impact

and adverse environmental effects. The third factor simply

requires the EIS to contain “alternatives to the proposed

action.” § 102(2)(C)(iii). The final subsection speaks to com-

mitment of resources. All of these parts of the list are infused

with environmental considerations, leaving no room for eco-

nomic interests divorced from the environment.

[11] While the use of the word “productivity” in subsection

(iv) might be construed as requiring agencies to consider eco-

nomic concerns, that provision requires a statement, not of all

economic interests, but rather of the relationship between

uses of the environment and productivity. It does not require

a discussion of the impacts on productivity that are not inter-

twined with the environment. In short, nothing in the text of

§ 102(2)(C) suggests that an EIS must address an economic

concern that is not tethered to the environment.

11092 ASHLEY CREEK PHOSPHATE v. NORTON

This conclusion is not surprising given that, for more than

a quarter century, courts have understood the purpose of

§ 102(2)(C) as protecting the environment. See, e.g., Weinber-

ger v. Catholic Action of Hawaii/Peace Educ. Project, 454

U.S. 139, 143 (1981) (explaining that the “twin aims” of

§ 102(2)(C) are “to inject environmental considerations into

the federal agency’s decisionmaking process” and “to inform

the public that the agency has considered environmental con-

cerns”); Andrus v. Sierra Club, 442 U.S. 347, 350 (1979)

(“The thrust of § 102(2)(C) is . . . that environmental concerns

be integrated into the very process of decisionmaking.”). The

Supreme Court has counseled that the “theme of § 102 is

sounded by the adjective ‘environmental,’ ” which means that

NEPA does not require an agency to assess all impacts of a

project, only those that have a “reasonably close causal rela-

tionship” with “a change in the physical environment.” Met-

ropolitan Edison Co. v. People Against Nuclear Energy, 460

U.S. 766, 772, 774 (1983); see also Ranchers Cattlemen,

2005 WL 1731761 at *19 (because plaintiffs failed to allege

a connection between the asserted injury and physical envi-

ronment, the injury fell outside of NEPA’s zone of interests).

[12] The regulatory definition of “human environment,”

which the Eighth Circuit saw as persuasive evidence that

§ 102(2)(C) protects economic interests, see Friends of the

Boundary Waters, 164 F.3d at 1125-26 (citing 40 C.F.R.

§ 1508.14),4 is consistent with our interpretation. The regula-

tion states that

4

The D.C. Circuit criticized the Eighth Circuit’s use of regulations to

“extend prudential standing beyond the class of persons Congress

intends.” Town of Stratford v. Fed. Aviation Admin., 285 F.3d 84, 89 (D.C.

Cir. 2002). We need not decide here whether relying on regulations to

define the zone of interests is appropriate, but we agree with the D.C. Cir-

cuit that courts should not use regulations to expand the zone of interests

beyond what Congress intended. Here, we conclude that the statutory text

and the regulations are consistent: both permit consideration of economic

interests that are interrelated with the environmental effects of an action,

but neither protects purely economic interests. We discuss the regulations

only to explain yet another reason why we decline to follow the reasoning

of Friends of the Boundary Waters.

ASHLEY CREEK PHOSPHATE v. NORTON 11093

economic or social effects are not intended by them-

selves to require preparation of an environmental

impact statement. When an environmental impact

statement is prepared and economic or social and

natural or physical environmental effects are interre-

lated, then the environmental impact statement will

discuss all of these effects on the human environ-

ment.

40 C.F.R. § 1508.14. Although this regulation indicates that

economic considerations may be relevant, those economic

effects matter only when they are “interrelated” with “natural

or physical environmental effects.” Id. (emphasis added). The

regulation goes a step further and clarifies that economic

effects alone do not require the preparation of an EIS. Id.

(“Economic . . . effects are not intended by themselves to

require preparation of an [EIS].”). Thus, to the extent regula-

tions clarify § 102(2)(C)’s zone of interests, they demonstrate

that purely economic considerations are not within that zone.

See also Town of Stratford, 285 F.3d at 89 (interpreting the

regulation as meaning that economic effects are not intended

by themselves to require an EIS).

If the text of § 102(2)(C) were not enough to demonstrate

that the section does not protect purely economic interests,

that conclusion is strengthened by the impossibility of divorc-

ing § 102 from the overall purpose of NEPA. Ashley Creek

urges us to conclude otherwise, relying on the statement in

Friends of the Boundary Waters that

although . . . the sweeping purposes of NEPA do not,

as a threshold matter, bring NEPA’s procedures into

play unless an environmental injury is at stake, Ben-

nett indicates that once those procedures have been

invoked, the plaintiffs can assert an injury arising

from the agency’s failure to take into consideration

the particular purposes or provisions of . . . NEPA.

11094 ASHLEY CREEK PHOSPHATE v. NORTON

164 F.3d at 1127. The Eighth Circuit apparently perceived

that Bennett’s directive to consider the particular provision at

issue erected a bar that prevented NEPA’s general purpose

from affecting the zones of interests encompassed by NEPA’s

individual provisions. We disagree.

The Supreme Court’s holding in Bennett that the general

purpose of the ESA (species preservation) was different than

the specific purpose of § 7 of the ESA (preventing needless

economic dislocation), see Bennett, 520 U.S. at 176-77, does

not translate into the conclusion that the general and specific

purposes of all statutes are different. The scope of the zone of

interests varies according to the provision of law at issue, id.

at 163, and NEPA and the ESA are different statutes that

create different zones of interests. Whereas § 7 of the ESA

establishes specific normative requirements, each section of

NEPA is a purely procedural one that furthers the general pur-

pose of the statute. See Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 350-51 & 351 n.14 (1989) (contrasting

NEPA’s procedural requirements with the substantive require-

ments of § 7 of the ESA). In contrast to the ESA, under which

the substantive goals of an individual provision may have a

more specific objective than the overarching goal of the stat-

ute and may be analyzed independently, § 102 of NEPA can-

not be separated from the statute’s overarching purpose of

environmental protection because it is designed to further that

purpose.

The overall purpose of NEPA is to declare a national com-

mitment to protecting and promoting environmental quality.

Id. at 348; 42 U.S.C. § 4331(a). Each of NEPA’s various pro-

cedural provisions is designed to further that goal of environ-

mental protection. Robertson, 490 U.S. at 348 (stating that to

ensure that the commitment to environmental protection is

infused into the federal government’s actions, NEPA creates,

among other ‘action-forcing procedures,’ the EIS require-

ment). In short, “[t]he sweeping policy goals [of protecting

the environment] announced in § 101 of NEPA are . . . real-

ASHLEY CREEK PHOSPHATE v. NORTON 11095

ized through a set of ‘action-forcing’ procedures that require

that agencies take a ‘hard look’ at environmental conse-

quences.” Id. at 350 (citation omitted). Because the individual

procedural provisions, including § 102(2)(C), are intended to

further the overarching goal of NEPA, to safeguard the envi-

ronment, the provisions cannot be divorced from that broader

purpose. Thus, “it makes little difference whether the court

directs its attention to the purpose of [§ 102(2)(C)], or the pur-

pose of NEPA itself. The purpose is one and the same: protec-

tion of the environment.” Arizona Cattle Growers’ Ass’n v.

Cartwright, 29 F. Supp. 2d 1100, 1109 (D. Ariz. 1998).

[13] Contrary to Ashley Creek’s suggestion, for purposes

of determining standing predicated on a purely economic

interest, NEPA does not support a distinction between cases

involving NEPA’s threshold applicability and cases involving

evaluation of the EIS process. In light of the purpose of

§ 102(2)(C)—protection of the environment—and the specific

statutory requirements for the content of an EIS, we hold that

a purely economic injury that is not intertwined with an envi-

ronmental interest does not fall within § 102’s zone of inter-

ests. Having failed to establish either an injury in fact or that

its interests are within the zone of interests protected by

§ 102(2)(C), we affirm the district court’s dismissal of Ashley

Creek’s challenge for lack of standing.

AFFIRMED.

BEEZER, Circuit Judge, concurring in part and concurring in

the judgment:

I concur in the judgment and Part I of the opinion of the

court. Because Ashley Creek has failed to establish constitu-

tional standing, I would leave for another day deciding

whether the prudential standing doctrine forecloses any plain-

tiff asserting a purely economic injury from bringing suit

11096 ASHLEY CREEK PHOSPHATE v. NORTON

under § 102 of NEPA. Compare Court Op., supra at 11082

(“The injury in fact prong [of the Article III standing analysis]

is determinative of this appeal.”) with Simon v. E. Ky. Welfare

Rights Org., 426 U.S. 26, 39 n.19 (1976) (determination that

petitioners lacked constitutional standing rendered consider-

ation of the “zone of interest” test unnecessary).