Town of Babylon v. Federal Housing Finance Agency; Natural Resources Defense Council v. Federal Housing Finance Agency, No. 11-3408 (2d Cir. 2012)
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Plaintiffs, in two separate appeals, challenged the grant of motions to dismiss in favor of the Federal Housing Finance Agency (FHFA) and the Office of the Comptroller of the Currency (OCC). The court affirmed the district courts' conclusion that 12 U.S.C. 4617 precluded judicial review of a Directive issued by the FHFA to Fannie Mae, Freddie Mac, and the Federal Home Loan Banks. The court also held that plaintiffs have failed to show that it was likely, as opposed to merely speculative, that their claims against the OCC would be redressed by vacatur of the Bulletin at issue, and therefore, the claims against the OCC were properly dismissed for lack of standing.
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11-3408-cv, 11-3285-cv Town of Babylon v. FHFA, Natural v. FHFA 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2012 4 (Argued: September 14, 2012 Decided: October 24, 2012) 5 Docket Nos. 11-3408-cv, 11-3285-cv 6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 7 8 9 TOWN OF BABYLON, 10 Plaintiff-Appellant, v. 11 12 13 14 15 16 17 FEDERAL HOUSING FINANCE AGENCY, EDWARD DEMARCO, in his capacity as Acting Director of Federal Housing Finance Agency, OFFICE OF THE COMPTROLLER OF THE CURRENCY, a component of the United States Department of the Treasury, JOHN G. WALSH, Acting Comptroller of the Currency, 18 19 20 21 22 23 CHARLES E. HALDEMAN, JR., in his capacity as Chief Executive Officer of the Federal Home Loan Mortgage Corporation, MICHAEL J. WILLIAMS, in his capacity as Chief Executive Officer of the Federal National Mortgage Association, 24 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 25 26 27 28 29 NATURAL RESOURCES DEFENSE COUNCIL, INC., 30 31 FEDERAL HOUSING FINANCE AGENCY, EDWARD DEMARCO, Acting Director, FEDERAL HOUSING FINANCE AGENCY, OFFICE OF THE Defendants-Appellees, Defendants. Plaintiff-Appellant, v. 1 1 2 3 4 5 6 7 8 9 COMPTROLLER OF THE CURRENCY, a component of the United States Department of the Treasury, JOHN G. WALSH, Acting Comptroller of the Currency, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Before: WINTER, CABRANES, and CARNEY, Circuit Judges. This opinion disposes of two separate appeals from two 10 district courts heard in tandem. 11 Babylon and the National Resources Defense Council appeal from 12 grants of motions to dismiss in favor of appellees Federal 13 Housing Finance Agency and the Office of the Comptroller of the 14 Currency in the Eastern District of New York (Leonard D. 15 Wexler, Judge) and Southern District of New York (Shira A. 16 Scheindlin, Judge), respectively. 17 district courts erred in concluding that 12 U.S.C. § 4617 18 precludes judicial review of a Directive issued by the FHFA to 19 Fannie Mae, Freddie Mac, and the Federal Home Loan Banks and 20 also that they lacked standing to pursue their claims against 21 the Office of the Comptroller of the Currency. 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Plaintiffs-appellants Town of Appellants argue that the We affirm. ERIK A. ORTMANN (William J. Tinsley Jr., Christopher K. Smith, on the brief), Goldberg & Connolly, Rockville Centre, New York, for Plaintiff-Appellant Town of Babylon. HOWARD N. CAYNE (Lisa S. Blatt, Asim Varma, on the brief), Arnold & Porter LLP, Washington, D.C., for Stephen E. Hart, Federal Housing Finance Agency, for Defendant-Appellees Federal Housing Finance Agency and Edward 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 DeMarco. THOMAS A. MCFARLAND (Varuni Nelson, Assistant United States Attorney, Julie L. Williams, Daniel P. Stipano, Horace G. Sneed, Douglas B. Jordan, Office of the Comptroller of the Currency, on the brief), Assistant United States Attorney for Loretta E. Lynch, United States Attorney for the Eastern District of New York, for Defendant-Appellees Office of the Comptroller of the Currency and John G. Walsh. KATHERINE KENNEDY (Benjamin H. Longstreth, on the brief), Natural Resources Defense Council, New York, New York, for Plaintiff-Appellant Natural Resources Defense Council. BERTRAND MADSEN (Benjamin H. Torrance, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, for Defendant-Appellees Office of the Comptroller of the Currency and John G. Walsh. WINTER, Circuit Judge: This opinion disposes of separate appeals from two different 38 district courts. 39 similarity of the issues raised. 40 We heard the appeals in tandem because of the The Town of Babylon and the Natural Resources Defense 41 Council, Inc. ( NRDC ) appeal from orders entered by Judge Wexler 42 in the Eastern District of New York and Judge Scheindlin in the 3 1 Southern District of New York, respectively. 2 dismissed appellants complaints against the Federal Housing 3 Financing Agency ( FHFA )1 and the Office of the Comptroller of 4 the Currency ( OCC ).2 5 the FHFA and a Bulletin of the OCC adversely impacted the 6 operation of first-lien Property Assessed Clean Energy ( PACE ) 7 programs. 8 grounds that: 9 12 U.S.C. § 4617(f), and (ii) appellants lacked Article III 10 Appellants claimed that a Directive of The district courts dismissed the actions on the (i) the claims against the FHFA were precluded by standing to pursue claims against the OCC. 11 12 The district courts We affirm. BACKGROUND PACE programs are operated by local governments. They 13 encourage property owners to make home improvements that reduce 14 energy consumption, promote clean energy, create local jobs, and 15 reduce greenhouse gas emissions, thereby mitigating the effect of 16 global climate change. 17 commercial and residential property owners to fund the cost of 18 the property improvements. 19 particular local government, which calls the financing advances The local governments offer financing to Typically, the owners repay the 1 The Federal Housing Finance Agency, or FHFA, was established in 2008 by the Housing and Economic Recovery Act ( HERA ) to regulate Fannie Mae, Freddie Mac, and/or the Federal Home Loan Banks ( FHLBs ). See 12 U.S.C. § 4511(a), (b)(2). Under 12 U.S.C. § 4617, the FHFA has the power to appoint itself as a conservator or receiver of Fannie Mae, Freddie Mac, and/or the FHLBs. The FHFA appointed itself conservator over both Fannie Mae and Freddie Mac in September 2008 and remains conservator over both entities. See Fed. Hous. Fin. Agency, Statement of FHFA Director James B. Lockhart Announcing Conservatorship of Fannie Mae and Freddie Mac (2008). 2 The Office of the Comptroller of the Currency is a federal agency that charters, regulates, and supervises all national banks. 4 1 assessments, on a scheduled periodic basis. 2 payment is not made, in many PACE programs, the delinquent amount 3 attaches to the real property as a tax lien. 4 priority over any other lien attached to the property, including 5 new and preexisting mortgage liens, and stays with the property 6 in the event of sale. 7 such priority and are not affected by this litigation. 8 of Babylon operates a PACE financing program styled the Long 9 Island Green Homes program ( LIGH ). 10 11 If a scheduled Such a lien has However, some PACE programs do not carry The Town It includes a lien-priority provision. NRDC alleges that first lien status is critical to the 12 success of PACE programs because junior lienholders typically 13 lose the entire value at stake in a foreclosure. 14 alleges, PACE lien seniority is immaterial to holders of the 15 underlying mortgages, because the assessments are relatively 16 small, the risk of default is lessened by the improvement in the 17 owner s financial status due to energy cost savings, and the 18 value of the collateral is increased. 19 In contrast, it The Federal National Mortgage Association, commonly known as 20 Fannie Mae, and the Federal Home Loan Mortgage Corporation, 21 commonly known as Freddie Mac, are federally chartered 22 corporations of a type commonly referred to as Government- 23 Sponsored Enterprises. 24 close to half of the home loans in the United States, and the 25 value of the combined debt and mortgage-related assets of the two The entities together own or guarantee 5 1 entities along with the Federal Home Loan Banks ( FHLB ) exceeds 2 $5.9 trillion. 3 matter, The position held in the home mortgage business by 4 Fannie Mae and Freddie Mac make them the dominant force in that 5 market. . . . [I]t is not a stretch to assume that lenders in the 6 home financing market are guided in their decisions by Fannie Mae 7 and Freddie Mac requirements. 8 Fin. Agency, 790 F. Supp. 2d 47, 49-50 (E.D.N.Y. 2011). 9 September 2008, as discussed in more detail infra, FHFA appointed 10 11 As noted by Judge Wexler in the Town of Babylon Town of Babylon v. Fed. Hous. In itself conservator over Fannie Mae and Freddie Mac. On July 6, 2010, the FHFA issued a Directive ( FHFA 12 Directive or Directive ) directing Fannie Mae and Freddie Mac 13 to take prudential actions, not limited to certain enumerated 14 suggestions not pertinent here,3 to protect themselves against 15 safety and soundness concerns -- risks -- raised by PACE programs 3 These suggestions were as follows: Adjusting loan-to-value ratios to reflect the maximum permissible PACE loan amount available to borrowers in PACE jurisdictions; Ensuring that loan covenants require approval/consent for any PACE loan; Tightening borrower debt-to-income ratios to account for additional obligations associated with possible future PACE loans; Ensuring that mortgages on properties in a jurisdiction offering PACE-like programs satisfy all applicable federal and state lending regulations and guidance. Fed. Hous. Fin. Agency, Statement on Certain Energy Retrofit Loan Programs 2 (2010). 6 1 that impose priority or first-liens on participating properties 2 like LIGH. 3 Retrofit Loan Programs 2 (2010). 4 FHLBs to review their collateral policies in order to assure 5 that pledged collateral is not adversely affected by energy 6 retrofit programs that include first liens. Fed. Hous. Fin. Agency, Statement on Certain Energy The Directive also directed the Id. 7 The concerns expressed were related only to the 8 subordination of mortgage liens to PACE-related first-lien 9 priorities. Nothing in the Directive or other associated 10 publications of the FHFA suggests any concern over PACE programs 11 that do not impose first-lien priorities. 12 disclaimed any such concern in its Directive 13 this Statement affects the normal underwriting programs of the 14 regulated entities or their dealings with PACE programs that do 15 not have a senior lien priority. ). 16 Indeed, FHFA expressly Id. ( Nothing in The same day, the OCC issued Supervisory Guidance in the 17 form of a Bulletin ( Bulletin or OCC Bulletin ) stating that 18 national banks need to be aware of the FHFA s directives and 19 should take steps to mitigate exposures and protect collateral 20 positions, as well as consider the impact of tax-assessed 21 energy advances on . . . asset valuations when investing in 22 mortgage-backed securities. 23 Currency, OCC Bull. No. 2010-25, Property Assessed Clean Energy 24 (PACE) Programs 1-2 (2010). 25 Office of the Comptroller of the Subsequent to the actions of the FHFA and the OCC, Fannie 7 1 Mae and Freddie Mac each issued statements declaring that they 2 would no longer purchase mortgages secured by properties subject 3 to first-lien PACE obligations. 4 20, Mortgages Secured by Properties with an Outstanding Property 5 Assessed Clean Energy (PACE) Obligation 1 (2010); Fannie Mae, 6 Announcement SEL-2010-12, Options for Borrowers with a PACE Loan 7 2 (2010). 8 Fannie Mae and Freddie Mac to continue to refrain from 9 purchasing mortgage loans secured by properties with outstanding 10 first-lien PACE obligations, and undertake other steps as may 11 be necessary to protect their safe and sound operations from 12 these first-lien PACE programs. 13 General Counsel, FHFA, to Timothy J. Mayopoulos, General Counsel, 14 Fannie Mae, and Robert E. Bostrom, General Counsel, Freddie Mac 15 (February 28, 2011). 16 See Freddie Mac, Bull. No. 2010- On February 28, 2011, the FHFA, by letter, directed Letter from Alfred M. Pollard, The alleged result of these various statements has been 17 reduced participation in, and diminished viability of, LIGH and 18 other first-lien PACE programs. 19 then brought the present actions asserting a host of legal 20 theories, including, as relevant to this appeal, violation of the 21 Administrative Procedure Act ( APA ), 5 U.S.C. § 706, for acting 22 in an arbitrary and capricious manner; violation of the APA, 5 23 U.S.C. § 553(b),(c), and the Housing and Economic Recovery Act 24 ( HERA ), 12 U.S.C. § 4526(b), for failure to solicit notice and 25 comment; and violation of the National Environmental Policy Act The Town of Babylon and the NRDC 8 1 ( NEPA ), 42 U.S.C. § 4332(2)(C), for failure to prepare an 2 environmental impact statement. 3 75, Town of Babylon v. Fed. Hous. Fin. Agency, 790 F. Supp. 2d 47 4 (E.D.N.Y. 2011) (No. 10-cv-4916); Second Amended Complaint at 19- 5 20, ¶¶ 55-66, NRDC v. Fed. Hous. Fin. Agency, 815 F. Supp. 2d 630 6 (S.D.N.Y. 2011) (No. 10-cv-7647). 7 that the claims against the FHFA for the issuance of the 8 Directive were expressly precluded by 12 U.S.C. § 4617(f). 9 of Babylon, 790 F. Supp. 2d at 54; NRDC v. Fed. Hous. Fin. See Complaint at 14-18, ¶¶ 53- Both district courts concluded Town 10 Agency, 815 F. Supp. 2d at 642. 11 concluded that appellants lacked constitutional standing to 12 challenge the OCC s actions because the redressability 13 requirement was not satisfied. 14 at 55-56; NRDC v. Fed. Hous. Fin. Agency, 815 F. Supp. 2d at 639- 15 41. 16 respective complaints. 17 NRDC v. Fed. Hous. Fin. Agency, 815 F. Supp. 2d at 642. 18 reasons stated infra, we affirm. Town of Babylon, 790 F. Supp. 2d The district courts therefore dismissed appellants 19 20 Both district courts also Town of Babylon, 790 F. Supp. 2d at 56; For the DISCUSSION We review a district court s grant of a motion to dismiss 21 under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) de 22 novo, Klein & Co. Futures, Inc. v. Bd. of Trade, 464 F.3d 255, 23 259 (2d Cir. 2006), accepting as true factual allegations made in 24 the complaint, and drawing all reasonable inferences in favor of 25 the plaintiffs. 26 2009). Holmes v. Grubman, 568 F.3d 329, 335 (2d. Cir. 9 1 2 a) Section 4617(f) In 2008, the FHFA appointed itself as the conservator of 3 Fannie Mae and Freddie Mac pursuant to authority granted by 12 4 U.S.C. § 4617. 5 unsafe or unsound condition[s] existed. 6 4617(a)(3)(C). 7 Director James B. Lockhart Announcing Conservatorship of Fannie 8 Mae and Freddie Mac (2008). 9 The appointment was based on a determination that 12 U.S.C. § See Fed. Hous. Fin. Agency, Statement of FHFA Section 4617 empowers the FHFA as a conservator to take 10 such action as may be -- (i) necessary to put the regulated 11 entity in a sound and solvent condition; and (ii) appropriate to 12 carry on the business of the regulated entity and preserve and 13 conserve the assets and property of the regulated entity. 14 U.S.C. § 4617(b)(2)(D). 15 powers or functions of the [FHFA] as a conservator is prohibited 16 [e]xcept as provided in [Section 4617]. 17 Nothing in Section 4617 authorizes judicial review in the present 18 circumstances. 19 12 Judicial review of the exercise of Id. § 4617(f). Appellants argue that the Directive was not issued pursuant 20 to FHFA s powers as a conservator. They note that even as a 21 conservator, FHFA continues to have powers as a regulator, 22 pursuant to 12 U.S.C. § 4526, that when exercised are subject to 23 the notice and comment procedures of the APA and reviewable under 24 5 U.S.C. § 704. 25 regulatory authority, rather than its powers as a conservator, 26 when issuing the Directive because either: They then argue that FHFA exercised this general 10 (i) the agency s 1 conservator powers do not include the power to issue the 2 Directive; or (ii) the agency did not rely on powers as a 3 conservator when issuing the Directive. 4 Argument (i) lacks any basis in the statutory language or 5 legislative purpose. The FHFA Directive to Fannie Mae and 6 Freddie Mac related concerns that PACE priority liens enhanced 7 the risks associated with subordinated mortgages and directed the 8 entities to protect themselves against such risks. 9 conservator, FHFA was expressly empowered to take such action as 10 may be -- (i) necessary to put [Fannie Mae and Freddie Mac] in a 11 sound and solvent condition; and (ii) appropriate to . . . 12 preserve . . . [their] assets and property. 13 4617(b)(2)(D). 14 risks is squarely within FHFA s powers as a conservator. As a 12 U.S.C. § Directing protective measures against perceived 15 Even if FHFA s powers as a regulator and conservator 16 overlap, the exclusion of judicial review over the exercise of 17 the latter would be relatively meaningless if it did not cover an 18 FHFA directive to an institution in conservatorship to mitigate 19 or avoid a perceived financial risk. 20 As for argument (ii), the FHFA s supposed silence in the 21 Directive regarding the authority under which it was acting is 22 irrelevant.4 The statute excludes judicial review of the 4 Much ink has been consumed in arguments concerning a later statement by the FHFA (issued after these actions were filed) that it had acted in its role as a conservator in issuing the Directive to Fannie Mae and Freddie Mac. We need not address the issue because of our conclusion that the exclusion of judicial review under Section 4617(f) was triggered by the conservatorship and the nature of the Directive. The subsequent statement certainly did not render the Directive subject to judicial review. 11 1 exercise of powers or functions given to the FHFA as a 2 conservator. 3 acts were directed to an institution in conservatorship and 4 within the powers given to the conservator ends the inquiry. 5 Volges v. Resolution Trust Corp., 32 F.3d 50, 52 (2d Cir. 1994) 6 (interpreting the scope of a virtually identical jurisdictional 7 bar in the Financial Institutions Reform, Recovery, and 8 Enforcement Act of 1989, and concluding that no jurisdiction 9 existed where [t]he proposed sale of the Volges mortgages Id. § 4617(f). A conclusion that the challenged See 10 plainly f[ell] within the powers or functions of the [Resolution 11 Trust Corporation] as a conservator or receiver ). 12 particular talismanic incantation of authority is required to 13 trigger Section 4617(f).5 14 b) Standing to Pursue Claims Against the OCC 15 No Article III, Section 2 of the Constitution limits the 16 [subject matter] jurisdiction of the federal courts to the 17 resolution of cases and controversies. 5 Mahon v. Ticor Title The FHFA s Directive addressed not only Fannie Mae and Freddie Mac but also the FHLBs. However, unlike Fannie Mae and Freddie Mac, the FHLBs are not under a conservatorship. Therefore the FHFA s Directive, insofar as it is directed to the FHLBs, is not shielded from judicial review by Section 4617(f). However, to the extent that appellants challenge the FHFA Directive as it applies to the FHLBs, they have failed to show that the alleged injury is likely to be redressed by the relief sought. Unlike the Directive s direction to Fannie Mae and Freddie Mac to undertake affirmative action, the Directive required the FHLBs only to review their collateral policies in order to assure that pledged collateral is not adversely affected by [PACE] programs that include first liens. Fed. Hous. Fin. Agency, Statement on Certain Energy Retrofit Loan Programs 2 (2010). For reasons discussed in Part b, infra, withdrawal of the Directive would not make it likely that the FHLBs would alter their practices. 12 1 Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012) (citation and internal 2 quotation marks omitted). 3 case-or-controversy requirement is met, courts require that 4 plaintiffs establish their standing as the proper parties to 5 bring suit. 6 Cir. 2009) (quoting W.R. Huff Asset Mgmt. Co. v. Deloitte & 7 Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008)) (internal quotation 8 marks omitted). 9 show: In order to ensure that this . . . Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 89 (2d To establish Article III standing, one must (i) injury-in-fact, (ii) causation, and (iii) 10 redressability. 11 these claims that the last element, redressability, was absent. 12 We agree. Id. The district courts found with regard to 13 Appellants allege both procedural injury -- the lack of 14 solicitation of notice and comment as required by the APA, 5 15 U.S.C. § 553, and of an environmental impact statement as 16 required by NEPA, 42 U.S.C. § 4332(2)(C) -- as well as 17 substantive injury -- arbitrary and capricious agency action by 18 the OCC -- resulting from the OCC s promulgation of the Bulletin. 19 Where, as here, a litigant complaining of procedural or 20 substantive injury is not the regulated party, the litigant must 21 demonstrate that favorable action by the agency is likely to 22 result in favorable action by the regulated party in addition to 23 demonstrating a link between the procedural or substantive injury 24 to the litigant and the adverse agency action. 25 Defenders of Wildlife, 504 U.S. 555, 561 (1992) (noting the 26 general rule that it must be likely, as opposed to merely 13 See Lujan v. 1 speculative, that the injury will be redressed by a favorable 2 decision (internal quotations omitted)); id. at 562 (explaining 3 that when the plaintiff is not himself the object of the 4 government action or inaction he challenges, standing is not 5 precluded, but it is ordinarily substantially more difficult to 6 establish. (quoting Allen v. Wright, 468 U.S. 737, 758 (1984))); 7 id. at 570-71 (plurality opinion) ( [R]edress of the only injury 8 in fact respondents complain of requires action . . . by the 9 individual funding agencies; and any relief the District Court 10 could have provided in this suit against the Secretary was not 11 likely to produce that action. ); Simon v. E. Ky. Welfare Rights 12 Org., 426 U.S. 26, 42-43 (1976) ( The complaint here alleged only 13 that petitioners, by the adoption of [the] Revenue Ruling . . . 14 had encouraged hospitals to deny services to indigents. . . . 15 It is purely speculative whether the denials of service specified 16 in the complaint fairly can be traced to petitioners 17 encouragement or instead result from decisions made by the 18 hospitals without regard to the tax implications. ); St. John s 19 United Church of Christ v. FAA, 520 F.3d 460, 463 (D.C. Cir. 20 2008) (holding that a plaintiff injured by a regulated third 21 party must demonstrate a likelihood that the third party would 22 change action in the event that the defendant agency changes 23 action, notwithstanding the fact that plaintiff has alleged a 24 procedural injury). 25 26 Excluding the harm alleged to have resulted from the nonreviewable Directive to Fannie Mae and Freddie Mac, the only 14 1 injury alleged is the harm from the alteration of lending 2 practices by national banks -- the institutions that are 3 regulated by the OCC but are not parties to this litigation. 4 However, if the OCC Bulletin were vacated, the national banks 5 would remain entirely free to treat PACE-related properties on an 6 unfavorable basis.6 7 Town of Babylon s pleadings and affidavits contain no 8 allegation or assertion that the national banks regulated by the 9 OCC would act differently were the OCC Bulletin vacated. NRDC s 10 complaint similarly lacks any allegation that national banks 11 regulated by the OCC would alter current practices if the OCC 12 Bulletin were vacated. 13 NRDC did provide declarations by three municipal officials 14 with experience on the city-planning side of PACE-program 15 implementation. 16 the OCC Bulletin were vacated, then national banks lending 17 practices would revert to the status quo ante (pre-July 6, 2010). 18 19 Each stated that if both the FHFA Directive and However, the FHFA Directive, as applied to Fannie Mae and Freddie Mac, cannot be vacated for reasons stated above, and none 6 Therefore, the instant matter is distinguishable from New York Public Interest Research Group v. Whitman, 321 F.3d 316 (2d Cir. 2003). In Whitman, we stated briefly and in dicta that the lax standard traditionally applied to claims of procedural injury applied in the context of an injury caused in part by the actions of a regulated party. Id. at 326. Whitman involved a petition to the EPA regarding the failure to issue objections to draft permits issued by the state agency that were not in compliance with the Clean Air Act. Id. at 319, 323. If the EPA were to object to the permits, the cessation of the injury-causing action (that led to uncertainty about harm caused by the stationary pollution source) would have necessarily followed. 42 U.S.C. § 7661d(b)(3). Here, even if the Bulletin were vacated, the banks regulated by the OCC would still be entirely free to adjust mortgage practices regarding LIGH and other first-lien PACE program participating homes. 15 1 of the declarations stated, or could state, that vacatur of the 2 OCC Bulletin alone would result in national banks resuming their 3 status quo ante lending practices. 4 compelled national banks to take any action. 5 labeled Supervisory Guidance, and is couched in entirely 6 permissive language. 7 Currency, OCC Bull. No. 2010-25, Property Assessed Clean Energy 8 (PACE) Programs 1-2 (2010) ( National banks need to be aware of 9 the FHFA s directives . . . . National bank lenders should take Nothing in the OCC Bulletin The Bulletin is See Office of the Comptroller of the 10 steps to mitigage exposures and protect collateral positions 11 . . . . [B]anks that invest in mortgage backed securities . . . 12 should consider the impact of tax-assessed energy advances. 13 (emphasis added)). 14 the need for calculating a risk that varies from locality to 15 locality. 16 calculation would remain. 17 The Bulletin alerts recipient banks only to Were the Bulletin withdrawn, the need for a A return to the status quo ante by the banks after vacatur 18 of the Bulletin would be a likely result only if the banks 19 calculated the risks and benefits exactly as they are alleged to 20 be by NRDC. 21 however, even if the OCC Bulletin were vacated, Fannie Mae s and 22 Freddie Mac s refusal to purchase mortgages of properties subject 23 to first-lien PACE programs would remain in force. 24 contention that national banks would continue to lend on the same 25 terms as before the issuance of the OCC Bulletin must simply 26 ignore the impact of Fannie Mae s and Freddie Mac s changes in 27 policy. That is not a necessary result. 16 More critically, Any 1 Therefore, we conclude that appellants have failed to show 2 that it is likely, as opposed to merely speculative, that their 3 claims against the OCC would be redressed by vacatur of the 4 Bulletin, and the claims against the OCC were properly dismissed 5 for lack of standing. 6 7 8 CONCLUSION For the reasons above, the district courts judgments are affirmed. 9 17
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