Over at Yale Journal on Regulation's Notice and Comment Blog, Aaron Nielson’s most recent D.C. Circuit Review—Reviewed mentions Judge Tatel’s opinion in Save Jobs USA v. DHS, which concluded that “an association representing Southern California Edison workers” has Article III standing to challenge a “rule that permits certain visa holders to seek lawful employment.” In Center for Biological Diversity v. EPA, 937 F.3d 533 (5th Cir. Aug. 30, 2019) (Jones, Oldham, Ho), the Fifth Circuit reached the opposite conclusion regarding several environmental organizations’ associational standing to challenge an EPA order granting a permit for various oil and gas operations in the Gulf of Mexico.
After concluding that petitioners had failed to demonstrate injury in fact, the Court explains that they had also failed to demonstrate causation. Petitioners argued that the causation standard should be relaxed because their case involved “procedural rights.” The Court acknowledged that “procedural rights cases are different” but rejected petitioners’ argument anyway, relying on the D.C. Circuit’s explanation of the rule “in the canonical procedural-rights case”—Florida Audubon Society v. Bentsen, 94 F.3d 658, 664 (D.C. Cir. 1996) (en banc).
Judge Tatel, it turns out, joined the dissent in Florida Audubon. So, who wrote the opinion for the en banc Court? I’ll give you three hints: (1) he takes off his white cowboy hat when he sits to have his portrait painted; (2) he sings Willie Nelson whenever he feels like it (which is often), and (3) he doesn’t mess around when it comes to constitutional standing. I am, of course, talking about my former boss, Judge David B. Sentelle. Here is the Fifth Circuit’s discussion of his opinion in Florida Audubon:
The Court concludes with another great line from Judge Sentelle:
So, what to infer from all of this? Does the Fifth Circuit’s invocation of Florida Audubon prove that the D.C. Circuit really does stand head and shoulders above its sister circuits as the “second most important court in the land”? Maybe, but I doubt it. Biased though I may well be, I think it has more to do with the fact that Judge Andy Oldham—the author of the Fifth Circuit’s opinion in Center for Diversity—spent a year clerking for Judge David B. Sentelle.