PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 15-3224

_____________

MAIDEN CREEK ASSOCIATES, L.P.; 

BOARD OF SUPERVISORS OF MAIDENCREEK 

TOWNSHIP, 

 Appellants

v.

UNITED STATES DEPARTMENT OF 

TRANSPORTATION; 

SECRETARY UNITED STATES DEPARTMENT OF 

TRANSPORTATION; 

ADMINISTRATOR FEDERAL HIGHWAY 

ADMINISTRATION;

PENNSYLVANIA DEPARTMENT OF 

TRANSPORTATION

_____________

APPEAL FROM THE UNITED STATES DISTRICT 

COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 5-15-cv-00242)

District Judge: Honorable Lawrence F. Stengel

____________

Argued: April 5, 2016

____________

Before: FISHER, RENDELL and BARRY, Circuit Judges

(Opinion Filed: May 19, 2016)

____________
2

Marc B. Kaplan, Esq. (Argued)

Daniel R. Utain, Esq.

Kaplin, Stewart, Meloff, Reiter & Stein

910 Harvest Drive

P.O. Box 3037

Blue Bell, PA 19422

Counsel for Maiden Creek Associates, L.P.

Christopher M. Garrell, Esq. (Argued)

Eugene Orlando, Jr., Esq.

2901 St. Lawrence Avenue

Reading, PA 19606

Counsel for Supervisors of Maiden Creek

James A. Maysonett, Esq. (Argued)

Environment & Natural Resources Division

RFK-2633

P.O. Box 7415

Washington, DC 20044

-ANDSusan D. Bricklin, Esq.

Office of the United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Secretary U.S. Department of Transportation and

Administrator Federal Highway Administration

Kenda Jo M. Gardner, Esq. (Argued)

Commonwealth of Pennsylvania

Office of Chief Counsel

P.O. Box 8212

Harrisburg, PA 17105

Counsel for PA Department of Transportation
3

_______________

OPINION OF THE COURT 

_______________

BARRY, Circuit Judge

 This action for declaratory and injunctive relief is 

brought pursuant to the National Environmental Policy Act, 

42 U.S.C. § 4321. Maiden Creek Associates and the Board of 

Supervisors of Maidencreek Township appeal the order of the 

District Court dismissing their complaint and denying their 

motion to amend. We will affirm the judgment of the District 

Court. 

I. BACKGROUND

Maiden Creek Associates (“MCA”), a limited 

partnership, owns 85 acres of land in Maidencreek Township 

that it hopes to develop into a 600,000 square-foot shopping 

center. The Board of Supervisors of Maidencreek Township 

(the “Board”) has taken the public position that the shopping 

center is “vital” to the economic well-being of the Township

residents. (Compl., at ¶43.) MCA and the Board claim, 

however, that the Pennsylvania Department of 

Transportation’s (“PADOT” or “PennDOT”) plan to improve 

an adjacent highway, State Route 222, will impede what they 

hope to accomplish. 

PADOT’s Project would involve the following: (1) 

widening the highway from one traffic lane in each direction 

to a five-lane cross section with two lanes in each direction 

and a center turn lane; (2) improving the existing traffic 

signal at Route 222 and Route 72; (3) replacing an existing 

traffic signal at the intersection of Route 222 and Tamarack 

Boulevard/Genesis Drive with a dual lane roundabout; (4) 

constructing a new, dual lane roundabout at the unsignaled 

intersection of Route 222 and Schaeffer Road; and (5) 

constructing two storm water detention basins on MCA’s 
4

property. The Project would be undertaken by PADOT on 

behalf of the United States Department of Transportation and 

the Federal Highway Administration, and fully funded by the 

federal government. 

MCA opposed the Project from the outset, but its basis 

for doing so has changed over time. Initially, it maintained 

that the Project should not go forward because the traffic 

circles would not be able to handle all of the traffic expected 

to be generated by its shopping center. MCA expressed its 

concerns to PADOT directly in a string of correspondence, 

and was heard publicly on July 17, 2014 before the Reading 

Area Transportation Study (“RATS”). RATS characterized 

MCA’s concern as regarding “[d]esign issues with [the] 

proposed roundabout” and “its ability to accommodate a 

proposed shopping center.” (Compl., at ¶52.) In response, 

RATS offered that “[u]tilizing current PennDOT roundabout 

analysis software, PennDOT is projecting acceptable future 

levels of service for all legs of [Route] 222 and Genesis 

Drive, and [Route] 222 and Schaeffer Road intersections and 

feel[s] that their design will not preclude the ability to 

develop.” (Id.) 

The Project was approved on August 6, 2014, at which 

time PADOT also made a critical finding regarding the 

degree of environmental review mandated by the National 

Environmental Policy Act (“NEPA”). NEPA requires that 

one of three levels of review be conducted for such projects, 

depending on, among other things, the extent of the 

environmental impact: (1) actions that significantly affect the 

environment require an Environmental Impact Statement; (2) 

actions for which the significance of the environmental 

impact is unclear require an Environmental Assessment; and 

(3) actions that do not individually or cumulatively have a 

significant environmental effect are entitled to a Categorical 

Exclusion from preparing an Environmental Impact 

Statement or Environmental Assessment. 23 C.F.R. § 

771.115. Finding that the Project satisfied the criteria for the 

Categorical Exclusion set out in 23 C.F.R. § 771.117(d), 

PADOT necessarily concluded that neither an Environmental 
5

Assessment nor an Environmental Impact Statement were 

required under the Act. 

MCA and the Board commenced this action in 

response, naming as defendants the United States Department 

of Transportation; its Secretary, Anthony Foxx; the Federal 

Highway Administration; its Administrator, Gregory G. 

Nadeau (“Federal Appellees”); and PADOT and its Secretary, 

Barry J. Schoch (“State Appellees”). MCA and the Board 

alleged in their joint complaint that the Categorical Exclusion 

approval was based on inaccurate information supplied by 

PADOT that had not been adequately studied or investigated, 

and that the findings and conclusions contained therein were

arbitrary and capricious. They argued that, in submitting and 

approving the Categorical Exclusion, “PADOT (i) failed to 

consider important aspects of the environmental issues 

associated with the Project; (ii) ignored material information 

supplied by MCA; and (iii) disseminated completely 

inaccurate information that is so implausible that it could not 

be ascribed to a difference in view or the product of agency 

expertise.” (MCA Br. at 5.) These procedural “defects” 

notwithstanding, the defendants’ response was that the crux 

of the issue, as initially pled, concerned only the economic 

impact of the planned highway improvement; that, “[a]side 

from some general allegations about increased traffic and the 

safety of motorists, all of the injuries alleged by MCA and the 

Board ... were purely economic—neither alleged that the 

project would harm the environment.” (Federal Appellees Br. 

at 5-6.) 

Defendants moved to dismiss on precisely the same 

basis. In their motion filed May 11, 2015, they argued that 

NEPA is meant to protect the environment and that MCA and 

the Board could not sustain claims thereunder because their 

“sole[ly]” economic pursuits fell outside of NEPA’s “zone of 

interests.” (A266-270). MCA and the Board opposed the

motion, and also moved for leave to amend their complaint. 

On August 20, 2015, the District Court granted the motion to 

dismiss. The Court concluded that MCA and the Board’s 

interests were economic and inconsistent with NEPA’s goal 
6

of protecting the environment, and that, therefore, they lacked 

prudential standing to pursue their claims under the statute. 

The Court also denied their motion for leave to amend as 

futile, finding that the new allegations inappropriately rested 

on injuries to third parties and were otherwise too speculative 

or generalized to support a claim. 

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. § 

1331, as the claims in this case were brought under the 

Administrative Procedure Act, 5 U.S.C. § 702. We have

jurisdiction under 28 U.S.C. § 1291. 

First, we exercise plenary review over the dismissal of 

a complaint for failure to state a claim,1“accept[ing] all wellpleaded allegations in the complaint as true and draw[ing] all 

reasonable inferences in favor of the non-moving parties.” 

Bohus v. Restaurant.com, Inc., 784 F.3d 918, 921 n.1 (3d Cir. 

2015). To survive dismissal, “a complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to 

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570 (2007)). This standard is satisfied only if 

 

1 Although appellees moved to dismiss under Rule 

12(b)(1) for lack of jurisdiction and the District Court 

appeared to dismiss the complaint under that rule, we must 

analyze its dismissal under Rule 12(b)(6) because the issue is 

whether appellants alleged harm that falls within NEPA’s 

zone of interests, a question of statutory standing. See Leyse 

v. Bank of Am. Ass’n, 804 F.3d 316, 320 (3d Cir. 2015) 

(“Unlike Article III standing, statutory standing is not 

jurisdictional. See Lexmark Int’l, Inc. v. Static Control 

Components, 134 S. Ct. 1377, 1388 & n.4 (2014). As a result, 

‘[a] dismissal for lack of statutory standing is effectively the 

same as a dismissal for failure to state a claim,’ and a motion 

to dismiss on this ground is brought pursuant to Rule 

12(b)(6), rather than Rule 12(b)(1).” (citation omitted)). 
7

the plaintiff “pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for 

the misconduct alleged.” Id.

Second, although we review a denial of leave to amend 

for abuse of discretion, we review the District Court’s 

determination that the amendment would be futile de novo. 

U.S. ex rel. Schumann v. Astrazeneca Pharm. L.P., 769 F.3d 

837, 849 (3d Cir. 2014). To evaluate futility, we apply the 

“same standard of legal sufficiency” as would be applied to a 

motion to dismiss under Rule 12(b)(6). Shane v. Fauver, 213 

F.3d 113, 115 (3d Cir. 2000). As with the motion to dismiss, 

we consider only the allegations contained in the complaint, 

exhibits attached to the complaint, and matters of public 

record. Pension Benefit Guar. Corp. v. White Consol. Indus., 

Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

III. ANALYSIS

Because NEPA does not include a citizen’s suit 

provision, MCA and the Board commenced this action by 

way of the Administrative Procedure Act (“APA”), Section 

702. 5 U.S.C. § 702. Parties bringing suit under that 

provision must establish their Article III standing2and 

demonstrate that their grievance falls within the “zone of 

interests” to be protected or regulated by the statute in 

question. See Assoc. of Data Processing Serv. Org., Inc. v. 

Camp, 397 U.S. 150, 153 (1970). The latter requirement 

forms the center of our inquiry. Appellees submit that the 

purpose of NEPA is to ensure that environmental concerns 

are integrated into their decision making process, and argue 

that the “injuries” alleged in both the complaint and the 

proposed amended complaint fall outside the “zone of 

 

2 The District Court found that both MCA and the Board 

established Article III standing in light of MCA’s allegation 

that the Project will require condemnation of part of its 

property and the Board’s allegation that the Project will 

prevent it from carrying out its economic plans for the 

Township. (A15-16.) 
8

interests” advanced by the Act.

NEPA is a procedural statute that was enacted to 

“declare a national policy which will encourage productive 

and enjoyable harmony between man and his environment; [] 

promote efforts which will prevent or eliminate damage to the 

environment and biosphere and stimulate the health and 

welfare of man; [and] enrich the understanding of the 

ecological systems and natural resources important to the 

nation.” 42 U.S.C. § 4321. It seeks to protect and promote 

environmental quality, 42 U.S.C. § 4331(a)-(c), and, to 

“ensure this protection, [NEPA] establishes ‘action forcing’ 

procedures the agencies must follow.” Comm. to Save the 

Rio Hondo v. Lucero, 102 F.3d 445, 448 (10th Cir. 1996). 

NEPA does not “mandate the particular decisions an agency 

must reach”; rather, it sets forth the “necessary process the 

agency must follow while reaching its decisions.” Id.

The Act does not, however, require an agency to assess 

every impact of a proposed action—only its impact or effect 

on the physical environment. Metro. Edison Co. v. People 

Against Nuclear Energy, 460 U.S. 766, 772 (1983). While 

the statute makes reference to human health and welfare, the 

Supreme Court has explained that those considerations do not 

form the statute’s primary focus. Rather, those “goals are 

ends that Congress has chosen to pursue by means of 

protecting the physical environment.” Id. at 773 (emphasis in 

original). Courts have thus found that organizations with 

genuine environmental interests are proper parties to 

represent the public’s environmental interests and challenge 

agency action. Ashley Creek Phosphate Co. v. Norton, 420 

F.3d 934, 941 (9th Cir. 2005). Conversely, courts have found 

that parties motivated solely by their own economic selfinterest should not be entrusted with the responsibility of 

asserting the public’s environmental interest. Id. 

1. The Initial Complaint

Appellees argue to us, as they successfully argued to 

the District Court, that the initial complaint alleged only non-
9

environmental harm—that the Project would not properly 

accommodate the traffic attendant to MCA’s proposed 

shopping center, and that the Township’s tax base will be 

negatively impacted thereby. 

MCA alleged that (1) “PADOT’s construction of the 

Schaeffer Roundabout would require vehicles to access the 

Proposed Shopping Center directly from the Schaeffer 

Roundabout, which would result in unsafe traffic conditions”

(Compl., at ¶36); and (2) the “proposed Schaeffer 

Roundabout cannot be designed in a manner that would safely 

accommodate the amount of traffic that will be generated by 

the Proposed Shopping Center,” (¶37), and “would also 

require the condemnation of a portion of the Property in order 

for PADOT to physically construct the proposed Schaeffer 

Roundabout.” (¶38.) The Board alleged similar injuries: the 

“construction of the Genesis Roundabout and the Schaeffer 

Roundabout” will “severely impede commercial development 

of the Route 222 Corridor in the Township,” “impair the 

ongoing viability of existing businesses within the Route 222 

Corridor by restricting and impeding ingress and egress to 

those businesses,” and “compromise the safety of motorists, 

bicycles, horse and buggies and pedestrians traveling within 

the Route 222 Corridor.” (Compl., at ¶¶45-47.) The Board

also emphasized that development is “vital” to the economic 

well-being of the Township, and implied that any obstacle 

thereto would negatively affect jobs, tax revenues, and local 

businesses. (Id. at ¶43.)

To show that these injuries fell within NEPA’s zone of 

interests, MCA and the Board relied primarily on this Court’s 

decision in Society Hill Towers Owners’ Assoc. v. Rendell, 

210 F.3d 168 (3d Cir. 2000). Plaintiffs in that action were 

neighborhood residents who claimed that the City of 

Philadelphia had not properly analyzed the environmental 

consequences of its plan to build a hotel and parking garage 

in the Penn’s Landing area of the City and failed to hold the 

meaningful public hearings that should be held when there is 

a substantial environmental controversy. Id. at 173-74 (citing 

40 C.F.R. § 1506.6(c)(1)). The residents claimed that the 
10

project would “increase traffic, pollution, and noise in the 

Society Hill area where they live” and also argued that the 

project would “have a detrimental effect on the ambiance of 

their historic neighborhood, [] impair their use and enjoyment 

of Penn’s Landing, and [] decrease their property values.” Id.

at 176. Noting that if the residents did not have standing to 

protect the historic and environmental quality of their 

neighborhood, it was hard to imagine who would have 

standing to oppose the action, we held that these grievances 

were consistent with NEPA’s zone of interests. 

Here, however, MCA and the Board presented a very 

different set of purported injuries, and we find the analogy to 

Society Hill unpersuasive. In the initial complaint, MCA and 

the Board submitted only that the Project will compromise 

commercial development and result in unsafe traffic 

conditions along the highway. Arguing that they have the

right to sue on that basis, MCA and the Board emphasize 

their belief that NEPA was intended to “ensure” that “man 

and nature can exist in productive harmony while fulfilling 

the social, economic, and other requirements of present and 

future generations of Americans.” (Board Br. at 21-22.) As 

the Supreme Court already has made clear, however, NEPA’s 

reference to human health and welfare does not displace the 

statute’s primary focus. Indeed, the Court has explicitly 

cautioned against such an expansive approach: “If we were 

to seize the word ‘environmental’ out of its context and give 

it the broadest possible definition, the words ‘adverse 

environmental effects’ might embrace virtually any 

consequence of a governmental action that someone thought 

‘adverse.’ But we think the context of the statute shows that 

Congress was talking about the physical environment -- the 

world around us, so to speak.” Metro. Edison Co., 460 U.S. 

at 772. 

No doubt, changes in traffic patterns and increased 

congestion will have an impact on safety, commercial 

viability, and growth of the area. But to suggest that such 

injuries fall within NEPA’s zone of interests would be to 

eviscerate the distinction between social and environmental 
11

harm—one expressly preserved by the Supreme Court in 

Metro. Edison. Co. and in the regulatory definition of 

NEPA’s “human environment.” 40 C.F.R. § 1508.14 

(“[E]conomic or social effects are not intended by themselves 

to require preparation of an environmental impact 

statement.”). NEPA may capture those interests in certain 

circumstances, but only where they are sufficiently linked to 

imminent or threatened environmental damage. MCA and the 

Board failed to allege any “threatened harms to the ‘physical’ 

environment – ‘the air, land and water which support life on 

earth,’” and their complaint was rightly dismissed on that 

basis. Hurd Urban Dev., L.C. v. FHA, 33 F.Supp.2d 570, 576

(S.D. Tex. 1998) (quoting Metro. Edison, 460 U.S. at 770). 

2. The Proposed Amended Complaint

MCA and the Board made more detailed allegations in 

the proposed amended complaint, some of which came closer 

to NEPA’s zone of interests.3 MCA alleged, much like 

before, that the Project will create “unsafe traffic patterns” for 

MCA’s patrons, (Proposed Amended Complaint (“PAC”), at

¶40(A)-(C)), and be “aesthetically unpleasant and 

 

3 The State Appellees argue that the request for leave to 

amend should also be denied as unduly delayed because the 

information underlying MCA and the Board’s new allegations 

was available to them prior to their filing of the initial

complaint. While it is difficult to believe that MCA and the 

Board were not aware of these purported environmental

injuries until after commencement of this environmental

litigation, the argument nonetheless lacks merit. MCA 

credibly responds in its reply brief that after the initial

complaint was filed, it came to possess a number of 

documents grounding its amended complaint, including 

“engineered highway plans which showed PADOT’s 

intentions to divert stormwater runoff from the highway 

improvements to two (2) stormwater detention basis to be 

located on MCA’s Property to [filtrate] that runoff into the 

groundwater beneath the MCA Property.” (MCA Reply Br. 

at 5.) We will address that allegation, infra.
12

intimidating to potential patrons,” (¶40(E)), but also added 

allegations that it will increase “exhaust fumes from 

vehicles,” (¶40(D)), create “additional stormwater runoff that 

would contain petroleum and other potential groundwater 

contaminants,” (¶40(F)), may cause “flooding on the MCA 

Property,” (¶40(G)), and damage “Peters Creek, which is 

identified as an [Exceptional Value Watershed].” (¶40(H).) 

The Board alleged that the Project would increase “pollution 

within the Route 222 Corridor,” (PAC, at ¶41(A)), expose 

“Township residents” to “unsafe traffic patterns,” (¶41(B)), 

be “asesthetically unpleasant,” (¶41(C)), cause “groundwater 

contamination” and “flooding on Route 222 and private 

properties adjacent” thereto, (¶41(E)-(F)), and “increase the 

risk” of “potentially devastating cumulative environmental 

effects.” (¶41(G).) For the following reasons, we agree with 

the District Court that these new allegations were nonetheless 

insufficient. 

a. Third Party Injuries

Unlike the residents in Society Hill, MCA and the 

Board allege certain environmental harm not to plaintiffs in 

the case (who they do not argue will be directly affected 

thereby), but to future employees and patrons of MCA, or to 

the Township residents of Maidencreek. From MCA, the 

proposed amended complaint’s paragraph 40 subsection (e) 

complained that the Project would be “aesthetically 

unpleasant and intimidating to potential patrons, and would 

dissuade potential patrons from coming to the Proposed 

Shopping Center.” (PAC, at ¶40(E).) And from the Board, 

subsection (b) claimed that the Project “will result in unsafe 

traffic patterns and conflicting movements by motor vehicles, 

bicyclists and pedestrians throughout the Route 222 Corridor 

within the Township, thereby unreasonably exposing 

Township residents and visitors to risk of injury.” (PAC, 

¶41(B).) These allegations will be disregarded for the same 

reason—they purport to assert the injuries of non-parties 

without satisfying the criteria for associational standing. 

Certainly, an association may sue on behalf of its 
13

members “when [such] members would otherwise have 

standing to sue in their own right, the interests at stake are 

germane to the organization's purpose, and neither the claim 

asserted nor the relief requested requires the participation of 

individual members in the lawsuit.” See Friends of the Earth, 

Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 181 (2000); see 

also United Food & Commercial Workers Union Local 751 v. 

Brown Group, Inc., 517 U.S. 544, 555 (1996) (the association 

must “include at least one member with standing to present, 

in his or her own right, the claim (or the type of claim) 

pleaded by the association”). 

But MCA is a “Pennsylvania limited partnership which 

owns approximately 85 acres of commercially-zoned land ... 

in Maidencreek Township ... upon which it proposes to 

develop a commercial shopping center.” (PAC, at ¶11.) And 

while it may be permitted to assert claims on behalf of its 

partners (if satisfactorily pled), MCA may not represent the 

interests of “potential patrons” of its future shopping center. 

The Fourth Circuit dealt with a similar issue in Taubman 

Realty Group Ltd. P’ship v. Mineta, 320 F.3d 475 (4th Cir. 

2003). In that case, the plaintiff, Taubman Realty Group

(“TRG”), owned and operated a shopping center and asserted 

claims under NEPA to prevent the construction of another 

shopping center nearby. TRG alleged that construction 

would create undue traffic congestion, but the Fourth Circuit 

adopted the district court’s reasoning and found that TRG 

failed to demonstrate its ability to represent such interests 

through associational standing: “TRG claims to be asserting 

the safety and health interests of, and seeking to prevent 

perceived harm to, persons who are employed, and who shop, 

at the shopping center that TRG operates. Because the 

interests at stake in this case are not at all ‘germane’ to TRG's 

organizational purposes, however, it does not properly have 

standing to sue in an associational or representative capacity.” 

Taubman, 198 F. Supp. 2d 744, 758 (E.D. Va. 2002), aff’d 

320 F.3d at 481; see also Ranchers Cattlemen Action Legal 

Fund United Stockgrowers of Am. v. USDA, 415 F.3d 1078, 

1104 (9th Cir. 2005) (rejecting cattlemen’s associations 

attempt to assert the environmental interest of members 
14

because they were not “germane to the organization’s 

purpose”).

The same applies to the Board’s allegations, to the 

extent they are predicated on interests of the Township and its 

residents. Simply stated, the Board is not the Township. The 

Board of Supervisors of Maidencreek Township is “the 

governing body of Maidencreek Township [], a second class 

township of the Commonwealth of Pennsylvania,” (PAC, at 

¶12), and the Township of Maidencreek, a non-party here, has 

authority to “sue and be sued” on its own behalf. (53 PA.

STAT. AND CONS. STAT. ANN. § 66501.) The Board did not 

allege that its members—i.e., the Supervisors themselves—

have suffered environmental injuries, nor has it explained 

how it has the authority to represent the Township or its 

citizens in this action. Indeed, even if the Board were 

permitted to sue on behalf of Township residents as parens 

patriae, its claims likely would be barred because 

departments of the federal government are named as

defendants. See e.g., City of Olmsted Falls v. FAA, 292 F.3d 

261, 268 (D.C. Cir. 2002) (“Although ‘the state, under some 

circumstances, may sue [as parens patriae] for the protection 

of its citizens, it is no part of its duty or power to enforce their 

rights in respect of their relations with the federal 

government. In that field it is the United States, and not the 

state, which represents them as parens patriae.’”) (quoting 

Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923)).

b. Speculative Harm

The proposed amended complaint also invoked

injuries that are contingent on remote possibilities. In

subsections (f) through (h) of paragraph 40, MCA claimed

that the Project (specifically, the Genesis and Schaeffer 

Roundabouts) will result in “additional stormwater runoff” 

that will necessitate the construction of “Stormwater Basins” 

on the MCA property, which, MCA contends, will result in 

“groundwater contamination on and off” MCA’s property if

“inadequate[ly] designed.” (PAC, at ¶40(F)-(H).) The Board 

made similar allegations in subsections (e) and (f) of 
15

paragraph 41. 

The District Court found these “hypothetical” 

allegations to be insufficiently specific and “highly 

speculative.” (A26.) We agree. While stormwater 

contamination would appear to fall within NEPA’s zone of 

interests, it is contingent upon the failure of the stormwater 

basin—a system, not yet even designed much less 

constructed, intended to prevent that very environmental 

consequence. Accepting them as true and with all inferences 

drawn in Appellants’ favor, these allegations fail to show that 

the Project will create an increased risk of actual, threatened

or imminent environmental harm, and on that basis will be 

disregarded. 

c. Remaining Allegations

The remaining allegations were likewise deficient. 

MCA claimed in subsection (d) that the Project “will result in 

noise and exhaust fumes from vehicle queues directly in 

front” of its property, (PAC, at ¶40(D)), and the Board 

submitted in subsections (a) and (g) that the Project will 

increase “noise and pollution” and “the risk of potentially 

devastating cumulative environmental effects.” (¶41(A), 

(G).) Appellees argue, however, that these additional 

allegations were intended only to mask the actual, economic

injury motivating this litigation. The Federal Appellees

maintain that MCA and the Board have “long opposed” this 

Project on the economic ground that “its traffic circles will 

[not] be able to handle the amount of traffic that they hope to 

attract to their planned shopping center,” not on account of 

any potential environmental impact. (Federal Appellees Br. 

at 22.)

The vast majority of NEPA authority makes clear that 

economic injury alone does not satisfy the statute’s zone of 

interests test. See, e.g., Ashley Creek Phosphate Co, 420 F.3d 

at 940 (collecting cases and noting that the “zone of interests” 

protected by NEPA is “environmental” and that courts have 

thus “consistently held that purely economic interests do not 
16

fall within NEPA’s zone of interests”); Nat’l Ass’n of Home 

Builders v. United States Army Corps of Engineers, 417 F.3d

1272, 1287 (D.C. Cir. 2005) (finding that an “‘allegation of 

injury to monetary interest alone may not,’ of course, ‘bring a 

party within the zone of environmental interests as 

contemplated by NEPA for the purposes of standing’”)

(quoting Realty Income Trust v. Eckerd, 564 F.2d 477, 452 

(D.C. Cir. 1977)); Central S.D. Coop. Grazing Dist. v. Sec. of 

the United States Dep’t of Agric., 266 F.3d 889, 895 (8th Cir. 

2001) (holding that “[e]conomic interests alone” are “clearly 

not within the zone of interests to be protected by” NEPA). 

And while litigants need not be “pure of heart” in their 

motivation to sue, NEPA “cannot be used as a handy stick by 

a party with no interest in protecting against an environmental 

injury to attack a defendant.” Town of Stratford v. F.A.A., 

285 F.3d 84, 88 (D.C. Cir. 2002). To be among those that 

Congress intended to bring suit under NEPA, a plaintiff’s 

actual interests must substantially align with the protection of 

our physical environment. 

Recognizing the force of this law, MCA and the Board 

belatedly argued that the Project may result in “fumes,” 

“pollution,” and “noise,” while making no effort to hide their 

obvious and strong interest in the success of MCA’s proposed 

shopping center. In connection with a resolution passed in 

opposition to the Project, the Board advised PADOT that the 

planned construction will “severely impede commercial 

development of the Route 222 Corridor in the Township” and 

“deprive the Township of the needed revenues, employment 

and provision of goods associated with commercial 

development.” (PAC, at ¶72(A).) Similarly, MCA alleged 

that it “repeatedly advised PADOT” that the Project “will 

prevent MCA from constructing the Proposed Shopping 

Center, which development is an integral part of the 

Township’s planned growth and creation of employment and 

tax revenues.” (PAC, at ¶72(B).) Together, they maintained

that, “[i]f the Proposed Shopping Center and other anticipated 

commercial development along the Route 222 Corridor is 

unable to occur because of the Project, the Project will have a 

significant detrimental impact upon economic activity and the 
17

creation of jobs within the Township and the region.” (PAC, 

at ¶73(B).) 

In reviewing the District Court’s decision to deny the 

motion to amend the complaint, we accept as true all 

allegations contained therein. But in doing so, we also 

acknowledge the real interest that MCA and the Board have 

in developing the region purportedly affected by this highway 

construction. While MCA and the Board now allege that the 

Project may result in certain “environmental effects,” the 

proposed amended complaint makes clear that such harms are 

only fortuitously aligned with their stated interests. This 

places them outside the statute’s zone of interests for good 

reason. To accept NEPA litigants whose interests 

accidentally overlap with the statute’s intended purpose 

would not only create a class of plaintiffs far larger than 

Congress originally intended, it also would serve to distort the 

effect of NEPA itself. See Hazardous Waste Treatment 

Council v. Thomas, 885 F.2d 918, 925 (D.C. Cir. 1989)

(“[J]udicial intervention may defeat statutory goals if it 

proceeds at the behest of interests that coincide only 

accidentally with those goals.”) (internal quotation marks 

omitted)). The motion to amend the complaint was properly 

denied as futile. 

IV. CONCLUSION

We will affirm the order of the District Court granting 

the motion to dismiss the complaint and denying the motion 

to amend.