United States Court of Appeals, District of Columbia Circuit
November 8, 2018
from the United States District Court for the District of
Columbia (No. 1:02-cv-02057)
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.
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
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
Before: Henderson, Rogers and Srinivasan, Circuit Judges.
LeCraft Henderson, Circuit Judge.
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.
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.
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.
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.
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
2015, Reclamation issued a Supplemental Environmental Impact
Statement (SEIS) for the Project. Manitoba 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 ...