analyzing case under standing principles rather than mootness doctrine because standing was basis of district court's decision, the parties adopted that approach in their briefs, and because United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), indicates analysis under the two doctrines would be identical
How later courts described this case
- analyzing case under standing principles rather than mootness doctrine because standing was basis of district court's decision, the parties adopted that approach in their briefs, and because United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980), indicates analysis under the two doctrines would be identical
- noting the “distressing” implication of the South East Lake View case that “environmental considerations ... can be effectively ignored when [efforts to complete the project] proceed so much more rapidly than the litigation challenging the project”
- construing City of Davis to hold that the "injury occurred with the creation of a risk that potential environmental damage would go undiscovered"
- plaintiffs lacked standing under NEPA because substantial completion of the project left agency powerless to alleviate any potential future environmental harms
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
concurring:
I concur in both the result reached by Judge Wood and in his analysis, but I write *1041 separately to emphasize what seem to me to be the distressing implications of our decision. Our opinion notes the developers’ statement in their petition to intervene that the building could not be constructed without federal assistance. But this statement, made soon after the lawsuit began, “is of little relevance to their present financial ability to withstand the withdrawal of federal assistance.” Ante, at 1038. Thus, when building goes forward apace, absent preliminary injunctive relief and without a seasonable opportunity for consideration of the objections on the merits, the plaintiffs eventually lose their standing to be heard. This sort of outcome by presentation of a fait accompli is not calculated to nurture respect for procedures and other considerations mandated by law. We shall probably never know whether this housing project meets the applicable site and neighborhood standards or what its full environmental impact may be.
It is, of course, possible that the plaintiffs’ objections are quite unmeritorious, but we can hardly assume that. And given such precedents as United States v. SCRAP, 412 U.S. 669 , 93 S.Ct. 2405 , 37 L.Ed.2d 254 (1973), the plaintiffs ought not to have lost their day in court. I think the result we reach here underscores the significance of the irreparable harm criterion in evaluating the case for preliminary relief. And, because I believe that environmental considerations are of fundamental importance, I think it unfortunate that they can be effectively ignored when financing and building proceed so much more rapidly than the litigation challenging the project.