Traceability Requires Federal Control: Standing Fails Where State/Local Actors Independently Approve Onshore Components of a Federally Permitted Offshore Project

Precedents Cited

1) Standards of review and pro se construction

• Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005): supplied the framework for reviewing Rule 12(b)(1) dismissals—clear error for factual findings and de novo for legal conclusions. This mattered because standing dismissals often blend fact (what the agencies did) with law (whether that suffices for traceability).
• Moreira v. Société Générale, S.A., 125 F.4th 371, 387 (2d Cir. 2025): restated de novo review for Rule 12(b)(6) dismissals and the obligation to accept well-pleaded allegations as true. The court applied this lens to the fraud claim, but still found reliance inadequately pleaded.
• Lora v. O'Heaney, 602 F.3d 106, 111 (2d Cir. 2010): provided the abuse-of-discretion standard for denial of reconsideration, making reversal difficult absent a clear oversight or extraordinary circumstance.
• Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir. 2011): set de novo review for denials of leave to amend based on futility, allowing the panel to independently assess whether the proposed amendments fixed standing and fraud defects.
• Sharikov v. Philips Med. Sys. MR, Inc., 103 F.4th 159, 166 (2d Cir. 2024): reinforced liberal construction of pro se submissions, underscoring that the dismissal was not the product of technical pleading formalism but of substantive jurisdictional and element-based failures.

2) Standing doctrine and the traceability requirement

• Nat'l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 688 (2d Cir. 2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)): supplied the canonical three-part standing test (injury in fact, causation, redressability). The panel’s decision turned primarily on the second element—causal connection/fair traceability.
• Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992): emphasized that the plaintiff bears the burden to establish standing elements, supporting dismissal where the complaint and record did not connect onshore harms to federal conduct.
• Rajamin v. Deutsche Bank Nat'l Trust Co., 757 F.3d 79, 84-85 (2d Cir. 2014): provided de novo review of standing determinations on the pleadings and undisputed record.
• Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000): authorized the district court, on a Rule 12(b)(1) motion, to look beyond the complaint. This was consequential because the traceability analysis depended on the timeline and scope of state/local approvals versus federal permitting.
• Carver v. City of New York, 621 F.3d 221, 226 (2d Cir. 2010): was the centerpiece of Kinsella’s appellate argument. Carver recognizes that a defendant need not be “the very last step” if its actions had a “determinative or coercive effect” on the third party who directly caused the injury. The panel distinguished Carver by concluding that state and local decisions were not meaningfully constrained by BOEM’s offshore approvals.

3) New York fraud—reliance cannot be merely conclusory or purely third-party based

• Pasternack v. Lab'y Corp. of Am. Holdings, 807 F.3d 14, 22 (2d Cir. 2015): stated the elements of New York fraud (material misrepresentation, falsity, scienter, reliance, injury). The Second Circuit used this elements-based approach to affirm dismissal on the reliance prong.
• Pasternack v. Lab'y Corp. of Am. Holdings, 27 N.Y.3d 817, 828-29 (2016): clarified that even where indirect communication can support fraud (statements intended to reach and be relied upon by plaintiff), New York does not permit fraud claims based solely on third-party reliance; the plaintiff must have relied to his detriment. The panel applied this to reject Kinsella’s theory because he did not plausibly allege what he himself relied on and how it changed his conduct.

4) Futility of amendment

• Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000): supported denial of leave to amend where substantive problems are not curable by better pleading. The panel agreed the proposed third amended complaint did not cure the standing and reliance defects.

Legal Reasoning

1) Standing: the court’s traceability analysis in a split-jurisdiction infrastructure project

The opinion focuses on the mismatch between the injuries alleged and the government conduct challenged. Kinsella’s core harms were tied to onshore transmission cables and related infrastructure (with alleged groundwater contamination, electromagnetic radiation, and thermal effects). But the panel accepted the district court’s conclusion that “decisions related to the onshore transmission infrastructure were made by state and local agencies” and that “the federal defendants' jurisdiction did not extend to the onshore components.”

That finding drove the traceability result: when the immediate causal actor is a third party (here, state/local entities), standing requires more than “but-for” linkage to federal action. Kinsella tried to use Carver v. City of New York to argue that federal approval was a necessary step without which the onshore components would not exist. The panel assumed the plausibility of that “but-for” chain, but treated it as insufficient under Carver because Carver demands a showing that the defendant’s conduct had a “determinative or coercive effect” on the final decisionmaker.

The panel’s distinction was concrete: state and local entities had approved the onshore cable path before federal offshore permits issued, and BOEM had no jurisdiction to dictate or alter those onshore decisions. Thus, even if federal approval was part of the project’s overall feasibility, it did not “constrain or influence” the relevant onshore approvals in the Carver sense.

2) Utility rates: causation and institutional authority

Kinsella also alleged higher utility rates, but the panel affirmed dismissal because he did not explain “how or why” BOEM’s approval caused any increase, and because the rate agreement was approved by the New York Attorney General and the New York Comptroller—entities outside the federal defendants’ control. This tracks the same traceability principle: absent a plausible causal narrative tethered to defendants’ authority, alleged economic harms do not establish standing.

3) Fraud: reliance must be pleaded as actual, personal, and conduct-changing

Against South Fork, Kinsella alleged fraud based on statements made in “various regulatory filings” to federal defendants. Under New York law, the panel accepted the doctrinal possibility of indirect communication (per Pasternack v. Lab'y Corp. of Am. Holdings, 27 N.Y.3d 817, 828 (2016)), but emphasized the non-negotiable requirement that the plaintiff himself “have relied upon a misrepresentation.”

The panel held that even if the filings were intended to reach Kinsella, he did not plausibly allege he actually relied on them, because he did not explain what he would have done differently. The decision treats reliance not as a formulaic recital but as a behavioral allegation—what decision was induced, what action or forbearance occurred, and how it caused injury.

4) Reconsideration and amendment

The reconsideration ruling was affirmed under the deferential Lora v. O'Heaney standard because Kinsella did not show the district court overlooked dispositive matters or that extraordinary circumstances warranted relief. Further amendment was denied as futile under Cuoco v. Moritsugu because the proposed third amended complaint still did not cure (i) traceability to the federal defendants and (ii) reliance for fraud.

Impact

Although expressly non-precedential, the order is practically significant for litigation challenging large projects with mixed federal and state/local components (offshore generation paired with onshore interconnection).

• Standing in “hybrid” projects: Plaintiffs must align the source of injury with the scope of the defendant agency’s authority. Where harms are onshore and the federal agency’s jurisdiction is offshore, courts may find traceability lacking unless the federal action truly constrained or coerced the state/local onshore approvals.
• Carver’s limit in environmental/infrastructure contexts: “But-for” dependence is not enough; plaintiffs should plead facts showing federal action had a “determinative or coercive effect” on the third-party regulator’s decision—e.g., federal conditioning, mandatory interdependence, or legal authority to direct the onshore choice.
• Fraud theories based on regulatory filings: Even where a plaintiff points to allegedly false statements in filings, New York fraud still requires concrete allegations of the plaintiff’s own reliance and a non-speculative account of what would have changed absent the misrepresentation.
• Pleading discipline for pro se litigants: Liberal construction does not relieve a plaintiff of jurisdictional burdens (standing) or element-based pleading (reliance in fraud).