     Case: 09-50553     Document: 00511144830          Page: 1    Date Filed: 06/17/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 17, 2010

                                       No. 09-50553                         Lyle W. Cayce
                                                                                 Clerk

COASTAL HABITAT ALLIANCE,

                                                   Plaintiff - Appellant
v.

JERRY PATTERSON, In his official capacity as Commissioner of the Texas
General Land Office; CHAIRMAN BARRY SMITHERMAN, In his official
capacity as Commissioner of the Texas Public Utility Commission; JULIE
CARUTHERS PARSLEY, In her official capacity as Commissioner of the
Texas Public Utility Commission; PAUL HUDSON, In his official capacity as
Commissioner of the Texas Public Utility Commission; PATTERN GULF
WIND L.L.C., Wholly owned by Pattern Energy Group, L.P.; PPM ENERGY,
INC.,


                                                   Defendants - Appellees




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:07-CV-985


Before REAVLEY, PRADO and OWEN, Circuit Judges.
PER CURIAM:*




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-50553    Document: 00511144830     Page: 2    Date Filed: 06/17/2010

                                  No. 09-50553

      This is an appeal from the district court's order dismissing the instant case
on the pleadings. We AFFIRM.
      Plaintiff/Appellant Coastal Habitat Alliance ("Alliance") seeks declaratory
and injunctive relief against two Texas agencies for failing to perform an
environmental consistency review and for not allowing public comment on the
private construction of energy-generating wind farms along the Texas Gulf
Coast.   The Alliance argues that the agencies agreed to implement these
procedures in exchange for federal funding of their state coastal management
program ("Texas Program") under to the Coastal Zone Management Act, 16
U.S.C. § 1451, et seq. The Alliance claims that the agencies' failure to implement
these procedures violates preemptive federal law under the Supremacy Clause
of the Constitution and violates the Alliance's Due Process rights under the Fifth
and Fourteenth Amendments. It also seeks declaratory and injunctive relief
against the private developers who are constructing the wind farms.
      The district court held that the Alliance lacked standing to bring its
preemption claim because it failed to allege that the agencies had caused
particularized harm and because the federal program contained no private cause
of action. The district court further held that the Alliance lacked standing for
its other claims because the claims lacked redressability.
      We review a district court's dismissal on the pleadings for lack of
jurisdiction de novo. St. Paul Fire & Marine Ins. v. Labuzan, 579 F.3d 533, 538
(5th Cir. 2009).
      The Alliance argues that the district court erred in disregarding what it
claims are its "procedural rights" to a consistency review and public comment to
challenge the construction of wind farms. The Alliance concedes that the Texas
law requiring a consistency review and public comment was repealed before the
federal government approved the Texas Program. However, the Alliance argues



                                        2
   Case: 09-50553    Document: 00511144830       Page: 3    Date Filed: 06/17/2010

                                   No. 09-50553

that the repeal of that law is preempted by the Coastal Zone Management Act,
because the Texas Program continues to cite to the repealed law.
      The Supremacy Clause of the United States Constitution provides that
"[t]his Constitution, and the Laws of the United States which shall be made in
Pursuance thereof . . . shall be the supreme Law of the Land . . . any Thing in
the Constitution or Laws of any State to the Contrary notwithstanding." U.S.
C ONST. art. VI, cl. 2.    Accordingly, "it is a 'fundamental principle of the
Constitution . . . that Congress has the power to preempt state law.'" Planned
Parenthood of Houston & Se. Tex. v. Sanchez, 403 F.3d 324, 336 (5th Cir. 2005)
(quoting Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372, 120 S. Ct.
2288, 2293 (2000)). The Supremacy Clause itself "is not a source of any federal
rights." Equal Access for El Paso, Inc. v. Hawkins, 562 F.3d 724, 730 (5th Cir.
2009) (quotes and cite omitted). However, this Court has recognized that "there
is an implied right of action to enjoin state or local regulation that is preempted
by a federal statutory or constitutional provision . . . ." Sanchez, 403 F.3d at 334.
To establish a preemption claim, we look to see if there is anything in the State
law that conflicts with federal law, or if the federal law provides for rights or
benefits that the State law unreasonably impedes. See id. at 336-37.
      The Coastal Zone Management Act specifically disavows any attempt to
preempt state law. In 16 U.S.C. § 1456(e)(1), the Act states that "[n]othing in
this chapter shall be construed . . . to diminish either Federal or state
jurisdiction, responsibility, or rights in the field of planning, development, or
control of water resources, submerged lands, or navigable waters . . . ." A review
of this language and the Act's statutory history has led the Supreme Court to
conclude that "Congress clearly intended the [Act] not to be an independent
cause of pre-emption except in cases of actual conflict[.]" Cal. Coastal Comm'n
v. Granite Rock Co., 480 U.S. 572, 591, 107 S. Ct. 1419, 1430 (1987) (emphasis
in original).

                                          3
   Case: 09-50553    Document: 00511144830      Page: 4    Date Filed: 06/17/2010

                                  No. 09-50553

      As for any "actual conflict," nothing in the Act expressly requires Texas to
provide for public participation and consistency reviews in wind farm
construction. Rather, the Act generally requires that before receiving approval,
the Secretary of the Interior must find the State Program provides for an
adequate planning process and general techniques for control of land use
involving the construction of energy facilities. See 16 U.S.C. § 1455(d)(11).
While a state may opt in its program to employ consistency reviews, public
hearings, and judicial review of the construction of energy facilities, other
techniques may also be employed. See id. In the instant case, it was the
repealed Texas law, not federal law, which specifically applied these procedures
to wind farm construction.
      Furthermore, the operative language of the Act is not directed at the
States at all. Rather, it is primarily directed at the Secretary and subsidiary
agencies, who must confirm that any prospective plan submitted by a State
contains certain procedures before the plan may be approved. See 16 U.S.C. §
1455(d) ("Before approving a management program submitted by a coastal state,
the Secretary shall find the following: . . . ."). Inasmuch as these procedures
include those sought by the Alliance, this language has further been interpreted
as "focus[ing] on the class of persons on whom a duty is imposed . . . and not on
a class of intended beneficiaries . . . ." New Jersey Dep't of Envtl. Prot. & Energy
v. Long Island Power Auth., 30 F.3d 403, 422 (3d Cir. 1994) (internal cites and
quotes omitted). As the duties outlined in the Act are directed primarily at the
Secretary, we do not find that a State's purported failure to comply with the pre-
requisites for a plan's approval create an "actual conflict" between State and
federal law, giving rise to a private-party preemptive "procedural right" of
enforcement.
      Indeed, the Act articulates its own method of ensuring a State's continuing
compliance with the Act, namely suspension and withdrawal of federal funding.

                                         4
   Case: 09-50553       Document: 00511144830           Page: 5     Date Filed: 06/17/2010

                                        No. 09-50553

See § 1458 (requiring Secretary to conduct continuing reviews of a state's
program and permitting Secretary to suspend financial assistance and withdraw
approval of a state's program for noncompliance). Therefore, inasmuch as the
Texas program has failed to properly implement its own program, it is the
withdrawal of funding, not the recognition of a preemptive "procedural right,"
that is the Congressionally intended method of ensuring compliance.                       "It is
telling that the Act specifies a mechanism for enforcing the consistency
requirement against state and city agencies without mention of any private right
of action." George v. NYC Dep't of City Planning, 436 F.3d 102, 103 (2d Cir.
2006).1
       To summarize, we find no basis to recognize preemptive federal
"procedural rights" under the Act that would force the Texas agencies to conduct
a consistency review and allow for public participation before authorizing the
private construction of wind farms. As there are no "procedural rights" in the
Act to bestow upon the Alliance, we agree with the district court that the
Alliance has failed to demonstrate that it suffered a concrete and particularized
legally-cognizable harm. The Alliance has thus failed to establish any standing
to prosecute its claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
112 S. Ct. 2130, 2136 (1992).
       As we find no cognizable claims against the Texas agencies, the Alliance's
derivative claims against the private defendants must also fail.
AFFIRMED.

       1
          The Alliance argues that the Act's lack of a private right of action is irrelevant,
because in Sanchez, we recognized that there is an implied right of action to enjoin state or
local regulations that are preempted by federal law. See Sanchez, 403 F.3d at 334. However,
this argument misses the point. In Sanchez, the plaintiffs sought access to the benefit of
federal funding that was being dispensed through a state program. Id. at 327. In the instant
case, the federal benefit the Alliance seeks is the grant of "procedural rights" to challenge the
construction of wind farms. In other words, the benefit the Alliance seeks in the instant case
is the "right" itself. However, no such "right" exists under the Act that Texas law is impeding,
and therefore the Alliance lacks standing to bring its claims.

                                               5
