Government of Province of Manitoba v. Bernhardt

          Argued November 8, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:02-cv-02057)

          Joshua M. Divine, Deputy Solicitor, Office of the Attorney General for the State of Missouri, argued the cause for the appellant. Joshua D. Hawley, Attorney General, D. John Sauer, First Assistant and Solicitor and Julie Marie Blake, Deputy Solicitor, were with him on brief. Laura E. Elsbury, Trial Counsel, and Eldon V. Greenberg entered appearances.

          Anna T. Katselas, Attorney, United States Department of Justice, argued the cause for the federal appellees. Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, and Robert J. Lundman, Attorney, were with her on brief. Andrew C. Mergen, Attorney, entered an appearance.

          Nessa Horewitch Coppinger and Ryan J. Carra, Special Assistant Attorneys General, Office of the Attorney General for the State of North Dakota, and Jennifer L. Verleger, Assistant Attorney General, were on brief for the appellee State of North Dakota. Scott M. DuBoff and Benjamin L. Lambiotte entered appearances.

          Before: Henderson, Rogers and Srinivasan, Circuit Judges.

          OPINION

          Karen LeCraft Henderson, Circuit Judge.

         The Northwest Area Water Supply Project (Project) will someday send clean water from the Missouri River Basin to parched communities in northern North Dakota. That day has not yet come. For now, the Project's construction remains bogged down in long-running environmental litigation. This case, the most recent leg of the litigation marathon, involves the State of Missouri's complaint that the Bureau of Reclamation (Reclamation)-the federal agency responsible for carrying out the Project-violated the National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. §§ 4321 et seq.) (NEPA), by failing to consider adequately how diverting billions of gallons of Missouri River water will affect downstream States.

         Missouri brought this lawsuit on behalf of its citizens to prevent the Project from causing them harm. In legal language, Missouri sued in its parens patriae capacity. The problem for Missouri is that, as a general matter, a "State does not have standing as parens patriae to bring an action against the Federal Government." Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 610 n.16 (1982). For this reason and others elaborated below, we agree with the district court that Missouri lacks standing and therefore affirm.

         I. Background

         Communities in northern North Dakota have long suffered from water shortages. North Dakota and Reclamation-an agency housed within the United States Department of Interior charged with, inter alia, managing and developing water resources-began seeking a solution in the late 1980s. Their efforts culminated in the Northwest Area Water Supply Project. The Project will "withdraw water from the Missouri River Basin and transport it via a 45-mile-long pipeline to the Hudson Bay Basin located in Northwest North Dakota." Gov't of Province of Manitoba v. Zinke, 849 F.3d 1111, 1114 (D.C. Cir. 2017). Over eighty thousand North Dakotans will gain access to clean water.

         "The Project falls under the auspices of" NEPA, which "imposes 'a set of action-forcing procedures' requiring federal agencies to take a 'hard look' at any potential environmental consequences associated with their 'proposals and actions' and to broadly disseminate relevant environmental information." Id. at 1115 (quoting Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57 (2004); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)). To that end, NEPA requires "all agencies of the Federal Government" to prepare an Environmental Impact Statement (EIS) before taking a "major Federal action[] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). An EIS is not required, however, if the agency completes an Environmental Assessment and makes a Finding of No Significant Impact. New York v. Nuclear Regulatory Comm'n, 681 F.3d 471, 476 (D.C. Cir. 2012); see also 40 C.F.R. § 1501.4 ("In determining whether to prepare an environmental impact statement the Federal agency shall . . . [p]repare a finding of no significant impact (§ 1508.13), if the agency determines on the basis of the environmental assessment not to prepare a statement."). NEPA itself does not provide a cause of action, W. Org. of Res. Councils v. Zinke, 892 F.3d 1234, 1241 (D.C. Cir. 2018); as a consequence, any challenge to agency action based on NEPA must be brought under the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.

         We earlier held that Reclamation has failed to "comply with NEPA's requirements" and has "left the Project mired in legal challenges" since 2002. Gov't of Province of Manitoba, 849 F.3d at 1115. Our decision there sets forth in detail the history of the litigation. Id. at 1114-17. We recount only the essentials. There were two Project-related lawsuits against Reclamation before this one. Manitoba brought the first challenge, claiming Reclamation failed to "adequately grapple with potential ecological problems caused by transferring treatment-resistant biota into the Hudson Bay Basin." Id. at 1115. The district court agreed, remanding to Reclamation its initial Finding of No Significant Impact. Gov't of Province of Manitoba v. Norton, 398 F.Supp.2d 41, 67 (D.D.C. 2005). Four years later, Reclamation issued an EIS and Manitoba sued again. Gov't of Province of Manitoba, 849 F.3d at 1116. This time, the State of Missouri also filed suit, alleging that Reclamation "did not properly account for cumulative effects of water withdrawal from the Missouri River." Id. The district court sided with both challengers, criticized Reclamation's inadequate work and remanded for more NEPA analysis. Id.

         In 2015, Reclamation issued a Supplemental Environmental Impact Statement (SEIS) for the Project. Manitoba^[1] and Missouri again brought challenges, leading to this appeal. Reclamation moved for summary judgment, arguing that Missouri failed to establish standing. Specifically, Reclamation claimed that a State cannot sue the federal government as parens patriae, Missouri's sole basis for standing. Missouri did not dispute that it relied solely on a parens patriae theory of standing but maintained that a State can, at least under some circumstances, sue the federal government in its parens patriae capacity. The district court first noted that "Missouri is very clear that it sues in its role as parens patriae on behalf of its residents" and "advances no other basis for its standing." Gov't of Province of Manitoba v. Zinke, 273 F.Supp.3d 145, 167-68 (D.D.C. 2017). It explained that under longstanding precedent, a State lacks parens patriae standing to sue the federal government. Id. at 162-68. The district court dismissed ...