1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 14a0105p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

LARRY KLEIN and SIERRA CLUB, 

Plaintiffs-Appellants, 

v. 

UNITED STATES DEPARTMENT OF ENERGY and 

FRONTIER RENEWABLE RESOURCES, LLC, 

Defendants-Appellees. 

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No. 13-1165 

Appeal from the United States District Court 

for the Western District of Michigan at Marquette. 

No. 2:11-cv-00514—R. Allan Edgar, District Judge. 

Argued: January 30, 2014 

Decided and Filed: May 21, 2014 

BEFORE: MERRITT, SUTTON and STRANCH, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Marianne G. Dugan, Eugene, Oregon, for Appellants. J. David Gunter II, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellee. ON BRIEF: 

Marianne G. Dugan, Eugene, Oregon, for Appellants. J. David Gunter II, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Federal Appellee. Daniel P. Ettinger, 

Gaëtan Gerville-Réache, WARNER NORCROSS & JUDD LLP, Grand Rapids, Michigan for 

Appellee Frontier Renewable. 

 SUTTON, J., delivered the opinion of the court, in which MERRITT and STRANCH, JJ., 

concurred. STRANCH, J. (pp. 13–16), delivered a separate concurrence. 

>
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 2 

_________________ 

OPINION

_________________ 

 SUTTON, Circuit Judge. In connection with an alternative energy program created by 

Congress, Frontier Renewable Resources sought funding from the United States Department of 

Energy to build a plant in the Upper Peninsula of Michigan that would convert lumber into 

ethanol. The federal program subsidizes renewable energy projects as part of an effort to lessen 

the country’s dependence on fossil fuels. Larry Klein and the Sierra Club sued to stop the 

project, claiming that the Department of Energy failed to comply with the National 

Environmental Policy Act when it conducted an assessment of the project and found no 

significant environmental impact. The district court rejected the claims because the plaintiffs 

lack standing to bring them and because the Department of Energy at any rate permissibly found 

no significant impact from the proposed plant. We reverse in part and affirm in part. 

I. 

 The Energy Policy Act of 2005 directs the Department of Energy to fund alternative 

energy projects—“biorefinery demonstration projects” in the words of the statute. 42 U.S.C. 

§ 16232(d). The idea was to encourage the Department to work with industry to develop ways to 

convert trees, crops and agricultural waste into energy—to create “technologies capable of 

making fuels from lignocellulosic feedstocks” in the words of the statute. Id. § 16232(c). 

 Frontier Renewable Resources applied for a grant to help it construct a proposed plant in 

Michigan’s Upper Peninsula (Kinross Charter Township) that would convert lumber into 

ethanol. The Frontier plant will use 770 tons of wood chips per day to produce 20 million 

gallons of ethanol per year. The plant’s design would allow a future expansion, one that could 

double the ethanol produced. 

 As required by the National Environmental Policy Act, the Department studied the 

potential environmental impact of the proposed plant before awarding the grant. It first prepared 

a draft environmental assessment. It then sought comments and questions about the draft. After 

receiving this input, it issued a final environmental assessment in July 2011 that proposed some 
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 3 

changes to the Frontier plant’s operations, including the use of a biomass boiler instead of natural 

gas boilers to generate power to run the plant. Because the environmental assessment showed 

relatively few environmental impacts from the Frontier plant, the Department issued a finding of 

“no significant impact” and granted Frontier’s funding application. AR at 1957–62, 1970–72. 

The Department pledged roughly $100 million toward the construction of the plant, about 34% 

of its total cost. 

 Larry Klein and the Sierra Club sued the Department and Frontier to halt the project, 

alleging that the Department did not comply with the National Environmental Policy Act in 

making the grant. After the parties filed cross-motions for summary judgment, the district court 

ruled for the Department and Frontier on two grounds: The plaintiffs lacked standing to bring 

the claims, and the claims failed on the merits anyway. 

II. 

 Before bringing a case in federal court, a plaintiff must establish standing to do so. The 

requirements of standing are: (1) “an injury in fact”; (2) “a causal connection” between the 

alleged injury and the defendants’ conduct—that “the injury . . . [is] fairly traceable to the 

challenged action . . . and not the result of the independent action of some third party not before 

the court”; and (3) redressability—that the injury will “likely . . . be redressed by a favorable 

decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal quotation 

marks and alterations omitted). 

 In debating whether standing exists in this case, the parties share considerable common 

ground. They agree that Klein established an injury in fact. They agree that Klein’s injury 

spares Sierra Club the work of establishing an injury of its own. See Sch. Dist. of City of Pontiac 

v. Sec’y of U.S. Dep’t of Educ., 584 F.3d 253, 261 (6th Cir. 2009) (en banc). And they agree 

that, when it comes to procedural-rights cases like this one, the causation and redressability 

requirements are relaxed. See Lujan, 504 U.S. at 572 n.7 (“The person who has been accorded a 

procedural right to protect his concrete interest can assert that right without meeting all the 

normal standards for redressability and immediacy.”); Massachusetts v. EPA, 549 U.S. 497, 517–

18 (2007) (“When a litigant is vested with a procedural right, that litigant has standing if there is 
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 4 

some possibility that the requested relief will prompt the injury-causing party to reconsider the 

decision that allegedly harmed the litigant.”). 

In applying the three requirements of standing, the district court found that the plaintiffs 

could not establish causation and redressability, issues that it determined—based on its theory of 

redressability—“boil down to whether the Project could go forward without the DOE’s funding.” 

R.68 at 15. It decided that the record showed the plant would go forward with or without 

funding and held that the plaintiffs therefore lacked standing. The parties disagree over the 

district court’s theory of redressability and its factual determination. 

 What principally divides the parties on the question of fact undergirding the district 

court’s application of its understanding of redressability is whether the district court correctly 

determined that the record shows that Frontier will build the plant no matter what—even if it 

loses a third of its funding. In our view, the plaintiffs have the better of the argument. The 

factual record on this score is spare. What we have is a statement, a fact and an inference. The 

statement appears in the Department’s final environmental assessment. It says without 

explanation or elaboration that “this project could proceed if [the Department] decided not to 

provide financial assistance.” AR at 1342. The fact appears in the project’s funding documents, 

which show that the Department’s funding amounts to 34% of the cost of the plant. The 

inference is that, even though the project “could” proceed without federal funding, the 

withdrawal of a 34% subsidy would end the project. That indeed is the inference the Department 

drew, noting that it “has assumed . . . that the project would not proceed without its assistance.” 

AR at 1342. 

At the summary judgment stage, the plaintiffs get the benefit of any reasonable inferences 

that the facts permit. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 

(1986). One can reasonably infer that this project would not proceed if more than a third of its 

funding disappeared, especially since that funding takes the form of a grant rather than a loan. 

Having pointed to a “specific fact[]” that supports their claim that Frontier will not build the 

plant if the Department pulls its purse string closed, the plaintiffs did all that is needed to avoid 

summary judgment under the district court’s standard. Lujan, 504 U.S. at 561 (internal quotation 

marks and citations omitted). 
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 5 

Before turning to the merits, two final points deserve mention. First, because it will 

resolve this appeal, we have addressed only the factual conclusion that underlies the 

Government’s premise (shared by the district court) that whether or not Frontier would build the 

plant without federal funding resolves the redressability question. We need not, and thus do not, 

determine whether that view of redressability is correct. 

Second, Klein and the Sierra Club blame the Administrative Procedure Act for the spare 

record on standing. In one sense, they have a point. The Act governs challenges to agency 

actions. And it requires courts to “review the whole record” compiled by the agency when 

evaluating the lawfulness of an agency decision, 5 U.S.C. § 706(2), meaning review of the 

agency’s decision turns on the record before the agency at the time of its decision, not on later 

evidence developed outside the administrative record, see Citizens to Pres. Overton Park, Inc. v. 

Volpe, 401 U.S. 402, 419–20 (1971). Yet these truths do not prevent a district court from 

ascertaining whether Article III standing exists in the case or from developing a record to 

determine whether standing exists. The Administrative Procedure Act does not suspend the 

Federal Rules of Civil Procedure. Cf. Lujan, 504 U.S. at 561 (referring to the normal “stages of 

the litigation” governed by the civil rules). 

III. 

As for the merits, the agency’s environmental assessment adequately supported its 

finding that funding the plant would not have a significant impact on the environment. 

The National Environmental Policy Act requires federal agencies to study the 

environmental impacts of “major Federal actions significantly affecting the quality of the human 

environment.” 42 U.S.C. § 4332(C). Regulations set forth a process for complying with the Act. 

An agency first prepares a report known as an “environmental assessment” in consultation with 

federal, state, and local agencies, the public and other interested parties. 40 C.F.R. § 1501.4(b). 

Based on that assessment, the agency decides whether the environmental effects require further 

study. If not, the agency issues a “finding of no significant impact.” Id. § 1501.4(e). If further 

study is required, the agency prepares an “environmental impact statement.” Id. § 1501.4(c)–(d). 

 In carrying out the Act, the agency has considerable discretion. Courts review an 

agency’s actions under the Act through the deferential lens of the “arbitrary” and “capricious” 
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 6 

standard. 5 U.S.C. § 706(2)(A). Through “searching and careful” review, Marsh v. Oregon 

Natural Res. Council, 490 U.S. 360, 378 (1989), they ask whether the agency “adequately 

studied the issue and [took] a hard look at the environmental consequences of its decision,” not 

whether the agency correctly assessed the proposal’s environmental impacts. Save Our 

Cumberland Mountains v. Kempthorne, 453 F.3d 334, 339 (6th Cir. 2006) (quotation omitted). 

 The Department’s environmental assessment—over 400 pages in length—meets this 

deferential standard. The assessment explained that the Department’s funding of the plant will 

carry out the requirements of the Energy Policy Act, which aim to reduce dependence on fossil 

fuels by commercializing alternative renewable energy sources. It considered the plant’s 

potential impacts on forest resources, threatened and endangered species, land use patterns, 

cultural resources, weather, air quality, soil quality, water quality, landfills, worker safety, noise, 

traffic, environmental justice and aesthetics. And it listed the public participants in the 

assessment, including the Fish and Wildlife Service, the Michigan Department of Transportation, 

the Inter-Tribal Council of Michigan and an assortment of individuals who submitted comments. 

 Given the nature of the project—the construction of a biorefinery using trees as 

“feedstock”—the assessment focused on the plant’s effects on forest resources, air quality and 

nearby wetlands. There is a good reason, it turns out, for constructing this kind of plant in the 

Upper Peninsula of Michigan: There are a lot of trees there. Frontier plans to purchase the 

feedstock for the plant—trees—through “the traditional hardwood pulpwood supply chain” in 

the area. AR at 1364. The assessment found a long-term trend of net growth in nearby forests 

based on two recent studies. It then calculated the plant’s demand for hardwood at 1,130,000 

green tons per year—which amounts to 63% of the net annual hardwood growth “in excess of 

current harvest levels.” AR at 1375. The forest resources in the area in other words would 

continue to increase even with the added demand created by the plant. Frontier also plans to 

require its suppliers to use sustainable harvesting practices. 

As for air quality, the assessment concluded that any potential increase in contaminants 

would not exceed allowable levels. Construction will generate dust, which Frontier will mitigate 

by “road watering, temporary vegetative cover, or dust suppressants, as needed.” AR at 1412. 

The plant will emit air pollutants, particulate matter, nitrogen oxide, carbon monoxide and sulfur 
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 7 

dioxide. Relying on models that showed the air pollution would not exceed relevant standards, 

the assessment concluded that the plant’s emissions would not significantly affect local air 

quality. The assessment also analyzed the plant’s impact on greenhouse gas emissions and found 

that the plant would reduce net greenhouse gas emissions by 1.34 pounds of carbon dioxide 

equivalents per gallon of ethanol produced. 

As for wetlands, the assessment concluded that neither the construction nor the operation 

of the plant would disturb them. One potential railroad corridor for the plant (needed if the plant 

expands to a 40 million gallon per year capacity) would run through wetlands. If Frontier 

chooses that corridor, the Michigan Department of Environmental Quality will require Frontier 

to mitigate the wetland loss through the construction of “compensatory” wetlands or the 

purchase of “mitigation bank credits.” AR at 1399–400. 

In the end, the assessment concluded that the environmental impacts from the plant 

would be minimal in the short term and that, once the plant’s operations end, it could safely be 

decommissioned and the area returned to its pre-plant state. The assessment concluded that 

funding the plant “would not constitute a major Federal action significantly affecting the human 

environment,” meaning that “preparation of an environmental impact statement is not required.” 

AR at 1961. 

Through 400 pages of analysis, the Department took a “hard look” at the environmental 

impacts the Frontier plant will cause and decided that those impacts did not call for a full 

environmental impact study. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 

(1989). As a matter of process and substance, this decision was neither arbitrary nor capricious. 

See Friends of Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501, 506 (6th Cir. 1995) 

(upholding an agency’s decision “to dispense with a full-scale environmental impact statement” 

reached through an “extensive environmental assessment process”). 

 The plaintiffs offer several competing arguments. First, they note that the Department 

considered only one alternative to funding the Frontier plant: not funding it. An agency in 

general has wide discretion to choose the alternatives to evaluate in light of the project’s purpose 

and environmental impacts. That is particularly true when an agency decides to prepare only an 
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 8 

environmental assessment, which makes any “duty to consider environment-friendly 

alternatives” “less pressing.” Save Our Cumberland Mountains, 453 F.3d at 342. 

At one level, it is true, the Department looked at this request for funds through the lens of 

two economic options—funding or not funding the plant—but that does not make its assessment 

arbitrary and capricious. In this instance, the Department’s assessment considered, explicitly and 

implicitly, other possibilities. It explicitly made the mitigation measures discussed in the 

environmental assessment binding on Frontier through the funding agreement. That of course 

goes beyond just saying “yes” or “no” to a funding request. The Department also implicitly 

considered other alternatives. It described the three alternative sites that Frontier Renewable 

Resources considered for the plant. It studied the environmental impacts of a 40 million gallon 

per year plant, even though the federal funds supported only the 20 million gallon per year plant 

Frontier plans to build initially. In acknowledging that demand for some hardwoods (such as 

aspen) exceeds demand for others (such as basswood and oak), it explained that Frontier may 

vary the types of hardwood used as feedstock to avoid depleting in-demand trees. And it 

estimated the environmental impacts of trucking supplies to the plant to come up with a “worst 

case scenario,” though Frontier plans to bring supplies in by train. AR at 1413. That is not an 

analysis preoccupied with one option. 

To obtain traction on this point, moreover, plaintiffs must “identif[y] a single alternative 

that the agency should have considered but did not”; otherwise they cannot show that the flaw 

“had any chance (or still has any chance) of altering the agency’s deliberations or conclusions.” 

Save Our Cumberland Mountains, 453 F.3d at 347. The plaintiffs intimate without elaboration 

that the assessment should have considered different plant locations, plant sizes, feedstocks and 

supply systems. Yet, as just shown, the assessment considered these kinds of possibilities. 

To the extent the plaintiffs mean to suggest that the assessment should have considered a 

different type of plant as an alternative, the Department had no obligation to do so. An agency 

must consider alternatives “within the ambit of an existing standard—say, a different scope of 

operation or additional mitigation measures.” Id. at 347 (internal quotation marks omitted). An 

agency need not consider “a policy alternative generally—say, energy conservation in the 

context of a surface mining application.” Id. (internal quotation marks omitted). An alternative 
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 9 

such as a different type of plant, say one that uses “canary grass” as its feedstock, Reply Br. at 

16, falls within this latter category. Frontier applied for funding to build a plant that used 

hardwood as its feedstock because it had developed the technology to produce cellulosic ethanol 

from that feedstock. A plant with a different feedstock, one Frontier could not convert to 

cellulosic ethanol, exceeds the “reasonable alternatives” the Department had to assess. Save Our 

Cumberland Mountains, 453 F.3d at 346. 

Second, the plaintiffs argue that the assessment did not adequately discuss the project’s 

environmental impacts or mitigation measures. As for environmental impacts, the plaintiffs 

argue that the Department failed to consider the plant’s impacts on forest resources, on habitats 

for certain species and on greenhouse gas emissions. The assessment adequately discussed each 

impact. Based on two studies, the assessment concluded that, despite the trees harvested for the 

plant’s feedstock, the forest resources will experience net growth. It acknowledged that 

harvesting trees will disturb “flora and fauna” in the nearby forests. But it described those 

disturbances as occurring even in the absence of the plant (because others harvest the timber in 

those forests already) and as minimal (because sustainable forestry practices will “ensure that 

impacts to biological resources are minimized”). AR at 1373, 1377. And it calculated the point 

source emissions of greenhouse gases (over 450,000 tons per year) and above all the life-cycle 

reduction in greenhouse gases caused by the benefits and burdens of the plant (a net reduction of 

over 25,000 tons per year). That analysis provided the required “brief discussions” of each 

impact. 40 C.F.R. § 1508.9. 

As for mitigation measures, the plaintiffs claim that those discussed in the assessment are 

speculative or unenforceable. Speculative is an unfair description of some of the measures. 

Most stem from federal or state permitting requirements. Because construction of the plant 

requires developing 50 acres of undeveloped land, for example, the Michigan Department of 

Environmental Quality will require a soil erosion and sedimentation control plan before granting 

a construction permit. Those plans “incorporate best management practices . . . to prevent 

sedimentation impacts.” AR at 1430. The assessment in other words discusses future 

requirements the plant will have to meet to secure construction and operation permits. That 

those permitting requirements will take effect sometime in the future does not alter the reality 
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 10 

that they must take effect before construction and operation (and the resulting environmental 

impacts) could begin. That makes the requirements certain, not speculative. Cf. Robertson, 

490 U.S. at 352–53 (explaining that the mitigation discussion in an environmental impact 

statement need not contain a “complete mitigation plan,” especially where impacts “cannot be 

mitigated unless nonfederal government agencies [with jurisdiction over those effects] take 

appropriate action”). 

In criticizing another mitigation measure—the use of a “Sustainable Forestry 

Initiative . . . procurement process,” AR at 1363—as unenforceable and vague, the plaintiffs 

overstate their case. The funding agreement incorporates the mitigation measures and makes 

them binding on Frontier, as the environmental assessment explains. True, the environmental 

assessment does not quantify the benefits of the procurement process. But the assessment amply 

discusses its qualitative benefits: the obligation to harvest timber in a sustainable manner; the 

requirement to provide training to loggers; the ability to inspect private lands to ensure 

compliance; and the duty of third parties to provide annual audits. The assessment adds that this 

process continues the area’s decade-long use of sustainable methods of forest resource 

management. 

Third, the plaintiffs claim that the Department should have supplemented the assessment 

in light of a press release announcing Frontier’s partnership with Valero Energy Corporation in 

December 2011 issued five months after the no-significant-impact finding. Through this deal, 

Valero obtained an “option to expand the [plant] to up to 80 million gallons per year.” R.30-2 at 

2. An agency must supplement an environmental impact statement in light of “significant new 

circumstances or information relevant to environmental concerns and bearing on the proposed 

action or its impacts.” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 72 (2004) (quoting 

40 C.F.R. § 1502.9(c)(1)). Assuming for the sake of argument that the same rule applies to 

environmental assessments, any complaint about a supplemental environmental assessment is 

moot. Valero, as the parties all acknowledge, recently abandoned its partnership with Frontier. 

The Department need not supplement its environmental assessment to account for an unplanned 

expansion.
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 11 

Fourth, the plaintiffs argue that the assessment raised sufficient concerns to require the 

preparation of an environmental impact statement. The relevant regulations define 

“significantly” (as in “significantly affecting the quality of the human environment,” 42 U.S.C. 

§ 4332(C)) by reference to ten “intensity” factors. 40 C.F.R. § 1508.27. The plaintiffs claim that 

the ten factors show that the plant will significantly affect the human environment. While the ten 

factors may show that the Department could have prepared an environmental impact statement, 

they do not show that the Department acted arbitrarily and capriciously in not completing one. 

The assessment considered all of the environmental effects that the intensity factors 

mention. It reasonably considered the plant’s effects on the environment, public health and 

public safety. See id. § 1508.27(b)(1)–(2), (7). It considered the unique characteristics of the 

region, including the wetlands, national parks, infrastructure and cultural resources. See id. 

§ 1508.27(b)(3), (8). No threatened or endangered species, it noted, live in the area of the plant. 

See id. § 1508.27(b)(9). And the sustainable forestry procurement process, it added, protects any 

endangered species that live in the forests that will supply timber for the plant. Nothing in the 

record, moreover, suggests that the plant will cause violations of local, state or federal 

environmental rules. See id. § 1508.27(b)(10). Just the opposite: The assessment incorporates 

many such requirements as mitigation measures. 

The project also does not raise any of the broader policy concerns that the intensity 

factors mention. No controversy exists over the plant’s size, scope or effect. See id. 

§ 1508.27(b)(4); Coliseum Square Ass’n, Inc. v. Jackson, 465 F.3d 215, 234 (5th Cir. 2006). The 

plaintiffs hold onto the possibility that the plant might expand to an 80 million gallons per year 

capacity. But the partnership that created the premise for such an expansion has been 

abandoned. The record does not reveal any uncertainty over the scope or magnitude of the 

plant’s environmental effects. See 40 C.F.R. § 1508.27(b)(5). The plaintiffs argue that a 

demonstration project by its very nature always involves uncertainty. Perhaps. But those 

unidentifiable uncertainties would remain unidentified in an environmental impact study and so 

do not require the preparation of one. Contrary to plaintiffs’ suggestion, this assessment, tied as 

it is to the unique facts of this plant, does not set a precedent for future actions. See id.

§ 1508.27(b)(6). 
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 12 

In the final analysis, the Department completed a thorough environmental assessment of 

the Frontier plant and reasonably described the environmental impacts the assessment identifies 

as not significant. The National Environmental Policy Act requires no more. 

IV. 

 For these reasons, we reverse in part and affirm in part. 

 
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 13 

_________________ 

CONCURRENCE

_________________ 

JANE B. STRANCH, Circuit Judge, concurring. The facts of this case allow for 

resolution of the standing issue without a lengthy review of standing doctrine as it applies to 

procedural rights. Still, there is value in providing some explanation of the governing principles, 

and I concur to trace a bit of that law. Injury, causation, and redressability are the basic 

requirements; but first, context. 

Here, the Department of Energy wants to give Frontier $100 million to build an ethanol 

plant. Klein lives by the proposed plant location and has a compromised immune system. The 

plant will pollute the air. NEPA requires that the Department ask specifically how that pollution 

will affect the environment and then share its answers with the public, including Klein. The 

Department cannot spend its $100 million unless it complies with NEPA. 

Three principles should guide any analysis of whether a plaintiff has standing to assert a 

violation of procedural rights under NEPA. First: “Congress has the power to define injuries 

and articulate chains of causation that will give rise to a case or controversy where none existed 

before.” Massachusetts v. EPA, 549 U.S. 497, 516 (2007) (quoting Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring in part and concurring in the 

judgment)); see also Warth v. Seldin, 422 U.S. 490, 500 (1975) (“The . . . injury required by Art. 

III may exist solely by virtue of statutes creating legal rights, the invasion of which creates 

standing.” (internal quotation marks omitted)). Second: “Congress has presumptively 

determined that the failure to comply with [NEPA] has detrimental consequences for the 

environment,” Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334, 347 (6th Cir. 

2006) (internal quotation marks omitted), and “countless lawsuits in which [the courts] upheld a 

plaintiff’s standing were predicated on [the] understanding” that an agency may be persuaded to 

alter a project if, by complying with NEPA, “its eyes are open[ed] to the environmental 

consequences of its actions,” Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008). And third: 

the injury, causation, and redressability requirements exist primarily to prevent a court from 

rendering an advisory opinion, from depriving an injured party of her day in court, and, most 
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 14 

importantly, from assuming the powers of the executive or the legislature. Valley Forge 

Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 

473–74 (1982); see also Hein v. Freedom from Religion Found., 551 U.S. 587, 616 (2007) 

(Kennedy, J., concurring). Courts must take care to apply standing doctrine in a manner that 

effectuates its undergirding purposes.

These principles explain why the procedural rights NEPA provides are termed “special.” 

Lujan, 504 U.S. at 573 n.7. In a NEPA case, “[t]he injury-in-fact is increased risk of 

environmental harm stemming from the agency’s allegedly uninformed decision-making.” Sierra 

Club v. U.S. Army Corps of Eng’rs, 446 F.3d 808, 816 (8th Cir. 2006); see also Sierra Club v. 

U.S. Army Corps of Eng’rs, 645 F.3d 978, 995 (8th Cir. 2011) (quoting Sierra Club v. Marsh, 

872 F.2d 497, 504 (1st Cir. 1989)). Under our precedent, the injury-in-fact requirement is 

therefore satisfied if a plaintiff has a concrete interest that is protected by NEPA, the concrete 

interest is threatened by government action, and the government allegedly violated NEPA. 

Friends of Tims Ford v. Tenn. Valley Auth., 585 F.3d 955, 968 (6th Cir. 2009). And it is nearly 

self-evident that the NEPA plaintiff’s procedural injury is “fairly traceable” to the government. 

See Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1173 (11th Cir. 2006) (“[T]he plaintiffs 

were harmed when their procedural rights under NEPA were violated. Since the Forest Service 

(according to Ouachita) failed to follow NEPA, it is clear that the Forest Service caused 

Ouachita’s alleged injury. That is the extent of Ouachita’s burden to establish causation.”). 

Redressability is similarly straightforward: “When a litigant is vested with a procedural right, 

that litigant has standing if there is some possibility that the requested relief will prompt the 

injury-causing party to reconsider the decision that allegedly harmed the litigant.” 

Massachusetts, 549 U.S. at 516 (emphasis added). NEPA compliance presumptively reduces the 

threat of environmental harm by increasing the chance that the government will modify—even 

slightly—its actions if it understands the nature and magnitude of that harm, see Lemon, 

514 F.3d at 1315, and that is all the redressability prong requires, see Massachusetts, 549 U.S. at 

516; see also Consumer Data Indus. Ass’n v. King, 678 F.3d 898, 903 (10th Cir. 2012) (“a 

favorable decision would relieve their problem ‘to some extent,’ which is all [the redressibility 

prong] requires”); City of Dania Beach, Fla. v. FAA, 485 F.3d 1181, 1186 (D.C. Cir. 2007). 
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 15 

NEPA and the Administrative Procedure Act therefore afford Klein a procedural right 

that protects his concrete interests—here, his health, which will be threatened by pollution from 

the ethanol plant. See Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 28 (1st Cir. 

2007); Lujan, 504 U.S. at 573 n.8. If the Department’s study was inadequate under NEPA then 

Klein’s procedural right was violated and he has suffered an injury. Friends of Tims Ford, 

585 F.3d at 968 (quoting Ouachita Watch League, 463 F.3d at 1171); See also, Wright v. O’Day, 

706 F.3d 769, 771–72 (6th Cir. 2013); Dismas Charities, Inc. v. U.S. Dep’t of Justice, 401 F.3d 

666, 677–78 (6th Cir. 2005). This injury is directly traceable to the Department. Comm. to Save 

the Rio Hondo v. Lucero, 102 F.3d 445, 452 (10th Cir. 1996); see also Impson, 503 F.3d at 28. It 

is precisely the type of injury a court can redress: If Klein wins the suit, a court will declare that 

the Department has violated Klein’s procedural right and order it to comply with NEPA. See 

Massachusetts, 549 U.S. at 517–18 & 525–26. And there is unquestionably “some possibility” 

that the court’s order might cause the Department to include modifications to the project, even 

slight ones, that will “to some extent” reduce the air pollution that threatens Klein’s health—just 

as it has already done by requiring Frontier to use a biomass boiler instead of six natural gas 

boilers. Id.; see also Consumer Data Indus. Ass’n, 678 F.3d at 903. 

Taking jurisdiction over this controversy—where the government has partnered with a 

private party by providing $100 million to fund a project—comports with the principles that 

underlie the doctrine of standing. Giving Klein a chance to protect his health by vindicating his 

NEPA rights will not “usurp the powers of the political branches,” Clapper v. Amnesty Int’l USA, 

133 S.Ct. 1138, 1147 (2013), will not sap “the vitality of the adversarial process” and turn the 

judiciary into a “rarified . . . debating society,” Massachusetts, 549 U.S. at 517 (quoting Lujan, 

504 U.S. at 581 (Kennedy, J., concurring in part and concurring in the judgment)), and will not 

allow mere bystanders—persons “trivially or not at all harmed by the wrong complained of,” 

Am. Bottom Conservancy v. U.S. Army Corps of Eng’rs, 650 F.3d 652, 656 (7th Cir. 2011)—to 

deprive “those persons likely to be most directly affected by a judicial order” of their day in 

court, Valley Forge Christian Coll., 454 U.S. at 473. Klein’s case—litigation brought by an 

individual whose health is threatened by pollution from a government-funded project allegedly 

proceeding in violation of the National Environmental Policy Act—raises none of these 
No. 13-1165 Klein et al. v. United States Dep’t of Energy et al. Page 16 

concerns; it is a “case” or “controversy” to which the judicial power “shall extend.” U.S. Const. 

art. III, § 2. Klein has standing to sue.