Case: 23-10362 Document: 543-1 Page: 70 Date Filed: 08/16/2023
Am. Bottom Conservancy, 650 F.3d at 656–60; Sierra Club v. Army Corps of Engineers, 645 F.3d 978, 985–86 (8th Cir. 2011); Cottonwood Env’t Law Ctr. v. Forest Service, 789 F.3d 1075, 1079–83 (9th Cir. 2015); WildEarth Guardians v. EPA, 759 F.3d 1196, 1206–07 (10th Cir. 2014); Black Warrior Riverkeeper, Inc. v. Army Corps of Engineers, 781 F.3d 1271, 1280–83 (11th Cir. 2015); Ctr. for Biological Diversity v. EPA, 56 F.4th 55, 66–69 (D.C. Cir. 2022).
In all of these cases, a federal agency approved some action—such as developing land or using pesticides—that threatens to destroy the animal or plant life that plaintiffs wish to enjoy. This injury is redressable by a court order holding unlawful and setting aside the agency approval.
And so too here. The FDA has approved the use of a drug that threatens to destroy the unborn children in whom Plaintiffs have an interest. And this injury is likewise redressable by a court order holding unlawful and setting aside approval of that abortifacient drug.
I see no basis for allowing Article III standing based on aesthetic injury when it comes to animals and plants—but not unborn human life.
II.
I now turn specifically to Plaintiffs’ challenge to the FDA’s 2000 approval of mifepristone. The FDA contends that the challenge is untimely. But it concedes that “the well-established reopening doctrine” is binding precedent in this circuit. Texas v. Biden, 20 F.4th 928, 951 (5th Cir. 2021), rev’d on other grounds, 142 S. Ct. 2528 (2022). And it accepts that, under that doctrine, the clock for an APA claim restarts when an agency revises its regulations in a manner that “significantly alters the stakes of judicial review.” Sierra Club v. EPA, 551 F.3d 1019, 1025 (D.C. Cir. 2008). See also NRDC v. EPA, 571 F.3d 1245, 1266 (D.C. Cir. 2009) (same).
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