Gov't of the Province of Man. v. Zinke

849 F.3d 1111

GOVERNMENT OF the PROVINCE OF MANITOBA and State of Missouri, ex rel. Chris Koster, Missouri Attorney General's Office, Appellees

v.Ryan ZINKE, Secretary, U.S. Department of the Interior, et al., Appellees

State of North Dakota, Appellant

No. 16-5203

United States Court of Appeals, District of Columbia Circuit.

Argued January 13, 2017

Decided March 3, 2017

Nessa Horewitch Coppinger argued the cause for appellant. With her on the briefs were Fred R. Wagner, Washington, DC, and Jennifer L. Verleger, Assistant Attorney General, Office of the Attorney General for the State of North Dakota.

Scott M. DuBoff argued the cause for appellees the Government of the Province of Manitoba and the State of Missouri. With him on the brief were Benjamin J. Lambiotte, Chris Koster, Attorney General, Office of the Attorney General for the State of Missouri, James R. Layton, Solicitor General, and Laura E. Elsbury, Assistant Attorney General. Eldon V. Greenberg, Washington, DC, entered an appearance.

Before: Brown and Wilkins, Circuit Judges, and Edwards, Senior Circuit Judge.

Brown, Circuit Judge:

On March 1, 2016, North Dakota filed a motion to modify an injunction governing the Northwest Area Water Supply Project ("NAWS" or "the Project"). In a minute order, the district court stated North Dakota did not "present either changes in law or facts sufficient to warrant modifying the injunction" and summarily denied the motion "for the reasons argued by the [nonmovants]." J.A. 45. North Dakota appealed, and we remand with directions to grant the modification. See 28 U.S.C. § 2106 ; Pasadena City Bd. of Educ. v. Spangler , 427 U.S. 424, 440, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976).

I.

A.

For at least twenty years, North Dakota and the Bureau of Reclamation ("the Bureau")—a unit within the Department of the Interior—have attempted to design and construct NAWS, a project designed to ameliorate North Dakota's longstanding difficulties in obtaining sufficient quantities of high-quality drinking water.¹ See Gov't of Manitoba v. Norton , 398 F.Supp.2d 41, 48 (D.D.C. 2005) (stating development of the first Environmental Assessment began in June 1997). If approved, the Project would 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. Id. at 44. Thus, it would provide a new water source to approximately 81,000 citizens of North Dakota living within the Project communities. Gov't of Manitoba v. Salazar , 691 F.Supp.2d 37, 43 (D.D.C. 2010).

The Project falls under the auspices of the National Environmental Policy Act ("NEPA"). 42 U.S.C. § 4321, et seq . NEPA 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. Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 756–57, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) ; Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Unfortunately for those living within the Project communities, the Bureau's repeated failures to comply with NEPA's requirements have left the Project mired in legal challenges for fourteen years (and counting).

One of NEPA's "action-forcing" procedures directs agencies to prepare an environmental impact statement ("EIS") for "major [f]ederal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). To determine whether a project constitutes a "major federal action," agencies begin by preparing an environmental assessment ("EA"). See 40 C.F.R. § 1508.9 ; see also Nat'l Audubon Soc'y v. Hoffman , 132 F.3d 7, 12 (2d Cir. 1997). If the proposed action is not a "major federal action," the agency issues a finding of no significant impact ("FONSI"), which "briefly present[s] the reasons why an action ... will not have a significant effect on the human environment." 40 C.F.R. § 1508.13. If it is a major federal action, the agency prepares the EIS, which must discuss the action's general impact, its unavoidable adverse impacts, its alternatives, the relationship between short-term environmental use and the "maintenance and enhancement of long-term productivity," and "any irreversible or irretrievable commitments of resources" should the proposal be implemented. 42 U.S.C. § 4332(C) ; see also id. § 4332(E) ("[A]ll agencies of the Federal Government shall ... study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.").

After issuing an EIS, the agency must also issue a record of decision ("ROD"), which is a "concise public record" that describes the agency's decision, "[i]dentif[ies] all alternatives considered by the agency," and states "whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted." 40 C.F.R. § 1505.2. An agency must publish notice in the Federal Register that it has filed a final EIS ("FEIS") with the Environmental Protection Agency, and it cannot approve the ROD until thirty days have passed from the date of that notice. 40 C.F.R. § 1506.10(b)(2) ; 23 C.F.R. § 771.127(a). The issuance of a ROD constitutes final agency action.

B.

In 2001, the Bureau issued an EA and FONSI for NAWS. Construction began in 2002, but, six months later, the Province of Manitoba challenged the sufficiency of the EA and FONSI on the grounds that they did not adequately grapple with potential ecological problems caused by transferring treatment-resistant biota into the Hudson Bay Basin. Gov't of Manitoba v. Norton , 398 F.Supp.2d 41, 44–45, 49 (D.D.C. 2005). According to the 2001 EA, water would be withdrawn from the Missouri River, "partially disinfected and pre-treated," travel via buried pipeline across the continental divide into the Hudson Bay Basin, and then receive final treatment. Id. at 46. Project water "would drain into the Souris River, which flows into Manitoba." Id. at 47–48. Manitoba claimed the Project would not adequately treat the water, resulting in the transfer of non-native biota into the Hudson Bay Basin. This could "eliminate indigenous species, cause reduced growth and survival rates in indigenous species, and change the trophic structure of fish communities." Id. at 45. North Dakota intervened as a Defendant. In February 2005, on cross-motions for summary judgment, the district court agreed with Manitoba, remanding the case to the Bureau for further NEPA work on this point. Id. at 66.

After the remand, Manitoba asked the district court to grant a permanent injunction governing all NAWS-related activities. Otherwise, it argued North Dakota would "plunge ahead" with construction so as to "create a fait accompli , limit the ‘freedom of choice’ essential to sound decision-making under NEPA [,] and risk irreversible environmental consequences." J.A. 53. Though the court noted the importance of "preserv[ing] for the agency the widest freedom of choice when it reconsiders its action after coming into compliance with NEPA," J.A. 53, it weighed that interest against "the avoidance of unnecessary delay in the delivery of a reliable source of high quality water to approximately 81,000 people," J.A. 54. The court also noted "the public interest is best preserved by ensuring attention to environmentally sensitive decision-making through the least-intrusive means necessary." J.A. 55. Thus, rather than granting a full injunction, it permitted North Dakota to move forward with construction that would not impact the "opportunity for sound decision-making under NEPA." J.A. 55. Additionally, "[b]efore any other NAWS construction may proceed, the government must return to the Court to demonstrate why the proposed additional construction would not influence or alter the agency's ability to choose between water treatment options." J.A. 55 (emphasis added).

The Bureau completed its next NEPA analysis in January 2009. This time, the Bureau prepared an EIS rather than a FONSI, but it still identified the Missouri River as the Project source. However, its second attempt fared no better when subjected to judicial review.

Manitoba claimed the EIS still did not adequately address the transfer of treatment-resistant bacteria. Missouri filed a separate challenge, alleging the EIS did not properly account for cumulative effects of water withdrawal from the Missouri River. See Complaint, Missouri ex rel. Koster v. U.S. Dep't of Interior, Bureau of Reclamation , No. 1:09-cv-00373 (D.D.C. Feb. 24, 2009), ECF No. 1. The cases were consolidated in 2009 and, together, Manitoba and Missouri moved for summary judgment. They argued the Bureau had not taken a hard look at (1) reasonable alternatives to the Project, (2) "the cumulative impacts of the Project on Missouri River water levels," and (3) the consequences of bacteria transfer. Gov't of Manitoba v. Salazar , 691 F.Supp.2d 37, 45 (D.D.C. 2010). On March 5, 2010, the court again remanded to the Bureau for further consideration of the second and third issues. Id. at 51. The court chastised the Bureau for "wast[ing] years by cutting corners and looking for short cuts," id. as well as its "breathtaking" misreading of the court's 2005 opinion, id. at 50.

After the second remand, the Bureau engaged in a third, full-blown NEPA analysis that not only considered the two remanded issues, but also "reexamin [ed] and updat[ed] all prior NEPA analyses" associated with the Project. J.A. 719. The Bureau issued the final supplemental EIS ("FSEIS") in April 2015, and the ROD followed in August. The documents again identified the Missouri River as the selected Project alternative, with supplemental water taken from the Minot and Sundre aquifers, both of which are located in North Dakota. The FSEIS also included provisions for a...