Gvt. Province of Manitoba v. David Bernhardt , 923 F.3d 173 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2018 Decided May 3, 2019
No. 17-5242
GOVERNMENT OF THE PROVINCE OF MANITOBA,
APPELLEE
STATE OF MISSOURI, EX REL. ERIC SCHMITT,
MISSOURI ATTORNEY GENERAL’S OFFICE,
APPELLANT
v.
DAVID BERNHARDT, SECRETARY,
U.S. DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES
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.
2
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 for the Court filed by Circuit Judge HENDERSON.
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
3
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
4
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.
5
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 the complaint—a
decision from which Missouri now appeals. Our review is de
novo. Scenic Am., Inc. v. U.S. Dep’t of Transp., 836 F.3d 42,
49 (D.C. Cir. 2016) (“We review the District Court’s decision
(or lack thereof) as to standing de novo.”).
II. ANALYSIS
Article III of the United States Constitution authorizes
federal courts to decide only “Cases” and “Controversies.”
U.S. Const. art. III, § 2, cl. 1. “To present a justiciable case or
controversy, litigants must demonstrate standing, among other
requirements.” Pub. Citizen v. Nat’l Highway Traffic Safety
Admin., 489 F.3d 1279, 1289 (D.C. Cir. 2007). “The
‘irreducible constitutional minimum of standing’ contains
three requirements.” Steel Co. v. Citizens for a Better Env’t,
1
Manitoba eventually settled with Reclamation.
6
523 U.S. 83, 102 (1998) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff must have
(1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016). “[A]s the party
invoking federal jurisdiction,” the plaintiff “bears the burden
of establishing these elements.” Id.
A State’s standing depends on the capacity in which it
initiates a lawsuit. Erwin Chemerinsky, Federal Jurisdiction
121 (7th ed. 2016) (“[A] distinction must be drawn between a
government entity suing to remedy injuries that it has suffered
and suing in a representative capacity on behalf of its
citizens.”). Two types of lawsuits are relevant here. The
first, a direct injury lawsuit, allows a State to sue to redress its
own injury. Cf. Wyoming v. Oklahoma, 502 U.S. 437, 448–49
(1992) (distinguishing between “claims of parens patriae
standing” and “allegations of direct injury to the State itself”).
For this first type of lawsuit, the State need meet only the
ordinary demands of Article III—that is, establish injury-in-
fact, causation and redressability, West v. Lynch, 845 F.3d
1228, 1230 (D.C. Cir. 2017). The second type, a parens
patriae lawsuit, allows a State to sue in a representative
capacity to vindicate its citizens’ interests. Pennsylvania v.
Kleppe, 533 F.2d 668, 671 (D.C. Cir. 1976) (“[I]n bringing the
action also on behalf of all injured citizens of the state, and
upon the relation of four named individuals, Pennsylvania
invokes a parens patriae theory of standing.”). For these
lawsuits, the State must do more than meet Article III’s
irreducible minimum; it must assert a quasi-sovereign interest
“apart from the interests of particular private parties.” Alfred
L. Snapp & Son, Inc., 458 U.S. at 607. The Supreme Court
has held that, at a minimum, a State has a quasi-sovereign
interest “in the health and well-being—both physical and
7
economic—of its residents” and “in not being discriminatorily
denied its rightful status within the federal system.” Id. at 607.
“One helpful indication in determining whether an alleged
injury to the health and welfare of its citizens suffices to give
the State standing to sue as parens patriae is whether the injury
is one that the State, if it could, would likely attempt to address
through its sovereign lawmaking powers.” Id.
Missouri claims that this litigation asserts both a direct
injury and a parens patriae injury. Both sides agree that the
Project will eventually divert billions of gallons of Missouri
River water each year to North Dakota communities.
Missouri asserts a direct injury: the large-scale diversion of
water will allegedly harm its own interests by (among other
things) damaging its riverfront properties (especially farmland
adjacent to the Missouri River) and its commercial navigation
businesses and by modifying its borders with neighboring
states. Missouri also asserts that the Project will harm its
citizens, a harm it seeks to allay in its quasi-sovereign—that is,
parens patriae—capacity. We address seriatim the two
theories of standing.
A. DIRECT INJURY
Reclamation contends that Missouri forfeited its direct
injury theory of standing. We agree. Absent exceptional
circumstances, a party forfeits an argument by failing to press
it in district court. D.C. v. Straus, 590 F.3d 898, 903 (D.C.
Cir. 2010); Adams v. Rice, 531 F.3d 936, 944–45 (D.C. Cir.
2008). And the ordinary rules of forfeiture apply to standing.
Huron v. Cobert, 809 F.3d 1274, 1280 (D.C. Cir. 2016)
(forfeiture “applies to standing, as much as to merits,
arguments, because it is not the province of an appellate court
to ‘hypothesize or speculate about the existence of an injury
[Plaintiff] did not assert’ to the district court” (quoting Kawa
8
Orthodontics, LLP v. Secretary, U.S. Dep’t of the Treasury,
773 F.3d 243, 246 (11th Cir. 2014) (alteration in original))).
In district court, Reclamation argued that Missouri as parens
patriae lacks standing to sue the federal government. Rather
than preserve its direct injury theory, Missouri chose to rely
solely on its parens patriae standing. This is textbook
forfeiture.
Missouri responds that its complaint identifies a direct
injury theory of standing and thus preserves that theory for our
consideration. The complaint states that Missouri “brings this
action on its own behalf and as parens patriae for its residents.”
But a threadbare allegation included in its complaint does not
help Missouri. A party forfeits an argument by mentioning it
only “in the most skeletal way, leaving the court to do counsel’s
work, create the ossature for the argument, and put flesh on its
bones.” Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C.
Cir. 2005) (quoting United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990)). On summary judgment, plaintiff Missouri
had to identify record evidence establishing its standing to sue
Reclamation. See Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d
235, 240 (D.C. Cir. 2015); Abigail All. for Better Access to
Developmental Drugs v. Eschenbach, 469 F.3d 129, 132 (D.C.
Cir. 2006) (“[T]he party invoking the court’s jurisdiction must
establish the predicates for standing ‘with the manner and
degree of evidence required at’ that stage of trial.” (quoting
Lujan, 504 U.S. at 561)). The simple allegation that Missouri
“brings this action on its own behalf” does nothing to explain
Missouri’s standing under a direct injury theory or to identify
the evidence required at summary judgment. 2
2
At oral argument, Missouri contended that a party need not
brief a “legally self-evident” theory of standing at summary
judgment. “Generally, arguments raised for the first time at oral
argument are forfeited.” U.S. ex rel. Davis v. D.C., 793 F.3d 120,
9
The only remaining question is whether an extraordinary
circumstance excuses Missouri’s forfeiture. See Flynn v.
Comm’r, 269 F.3d 1064, 1068–69 (D.C. Cir. 2001). As far as
we can tell, nothing in the record manifests that Missouri’s
forfeiture of its direct injury theory was anything other than a
tactical decision. And Missouri does not argue otherwise.
Accordingly, we conclude that Missouri has forfeited its direct
injury theory.
B. PARENS PATRIAE CAPACITY
Missouri faces an uphill climb in establishing standing in
its parens patriae capacity. The traditional rule, the so-called
“Mellon bar,” declares that a State lacks standing as parens
patriae to bring an action against the federal government.
Massachusetts v. Mellon, 262 U.S. 447, 485–86 (1923)
(“While the state, under some circumstances, may sue” as
parens patriae “for the protection of its citizens, it is no part of
its duty or power to enforce their rights in respect of their
relations with the federal government.”); see also Alfred L.
Snapp & Son, Inc, 458 U.S. at 610 n.16; South Carolina v.
Katzenbach, 383 U.S. 301, 324 (1966); Florida v. Mellon, 273
U.S. 12, 18 (1927); Maryland People’s Counsel v. FERC, 760
F.2d 318, 320 (D.C. Cir. 1985). Missouri first counters that
the Mellon bar does not apply to this litigation because it is
displaced by the APA. It also contends that the Supreme
Court’s holding in Massachusetts v. EPA, 549 U.S. 497 (2007),
precludes application of the Mellon bar here.
1. THE MELLON BAR APPLIES TO APA CASES
Missouri contends that the Mellon bar does not apply to
litigation the State brings against the federal government under
127 (D.C. Cir. 2015). And Missouri offers no basis for excusing its
forfeiture.
10
the APA. We have indeed recognized that the Mellon bar
speaks to prudential, not Article III, standing which the courts
designed to prevent a State from encroaching on the federal
government’s power. Maryland People’s Counsel, 760 F.2d
at 321–22; Kleppe, 533 F.2d at 676–77 (discussing Mellon bar
purpose); cf. Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 128 & n.4 (2014) (explaining “prudential
standing” label is misleading because doctrine concerns
whether plaintiff has cause of action under relevant statute and
“‘the absence of a valid (as opposed to arguable) cause of
action does not implicate subject-matter jurisdiction, i.e., the
court’s statutory or constitutional power to adjudicate the
case.”’ (quoting Verizon Md. Inc. v. Public Serv. Comm’n of
Md., 535 U.S. 635, 642–43 (2002))). Because the Mellon bar
is prudential, we have held that the Congress may by statute
authorize a State to sue the federal government in its parens
patriae capacity. Maryland People’s Counsel, 760 F.2d at
322. Missouri believes the APA is such a statute and allows
its lawsuit against Reclamation to proceed.
Our leading precedent in this area is Maryland People’s
Counsel v. FERC, 760 F.2d 318 (D.C. Cir. 1985). 3 There, we
concluded that the judicial review provision included in the
Natural Gas Act of 1938 (NGA), Pub. L. No. 75-688, 52 Stat.
821 (codified at 15 U.S.C. §§ 717 et seq.), is not subject to the
Mellon bar. Id. at 320–21 (citing 15 U.S.C. § 717r(b)). Our
analysis is instructive. The NGA authorizes States to
participate in proceedings before the Federal Energy
3
Missouri asserts that earlier precedent, Pennsylvania v.
Kleppe, 533 F.2d 668, 677 n.55 (D.C. Cir. 1976), held that the APA
abrogated the Mellon bar and allowed a State to sue the federal
government in its parens patriae capacity. We did not conclude that
Pennsylvania had standing in Kleppe; Missouri’s claim that Kleppe
adopted a bright-line rule that a State has parens patriae standing
under the APA is, therefore, in error. Id. at 680.
 11
Regulatory Commission (FERC). Id. It also gives States a
cause of action to sue FERC based on those proceedings. Id.
at 321. But States are generally not purchasers of natural gas.
Id. This fact led us to infer that the NGA’s judicial review
provision is “evidently designed to recognize precisely the
interest of the states in protecting their citizens in this
traditional governmental field of utility regulation—that is, the
states’ parens patriae interest.” Id. Because the Congress
intended a State to sue FERC based on its “parens patriae
interest[s],” we held that an NGA suit brought by a State is not
subject to the Mellon bar. Id. at 321–22 (describing
“congressional elimination of the rule of Massachusetts v.
Mellon” as “effective”).
The APA generally provides a cause of action to any
“person . . . adversely affected or aggrieved by agency action.”
5 U.S.C. § 702. There is little doubt that a State qualifies as a
“person” under the APA. See Maryland Dep’t of Human Res.
v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1445 n.1
(D.C. Cir. 1985) (“If a foreign government and its agencies are
persons within the meaning of the APA, it seems clear that a
state and its agencies also are.”). To sue in its parens patriae
capacity, moreover, a State must suffer an injury to its quasi-
sovereign interest, Alfred L. Snapp & Son, Inc., 458 U.S. at
607, and thus must be “adversely affected or aggrieved,” 5
U.S.C. § 702. Unlike the NGA, however, the APA evinces no
congressional intent to authorize a State as parens patriae to
sue the federal government. The APA’s judicial review
provision authorizes suit by a “person” challenging agency
action and the APA definition of “person,” by implication only,
includes a State, 5 U.S.C. § 701(b)(2) (“‘[P]erson’ . . . ha[s] the
meaning[] given . . . by section 551 of this title.”); 5 U.S.C.
§ 551(2) (“‘[P]erson’ includes an individual, partnership,
corporation, association, or public or private organization other
than an agency.”). The APA’s judicial review provision
12
allows a person to challenge agency action taken under many
different statutes. See Block v. Cmty. Nutrition Inst., 467 U.S.
340, 345 (1984) (APA confers “a general cause of action”). It
is not linked to any particular statutory scheme and—unlike the
NGA—does not create an inference that the Congress intended
a wholesale imprimatur allowing a State as parens patriae to
sue the federal government. Accordingly, the Mellon bar
applies to litigation that a State, using the APA, seeks to pursue
against the federal government. 4
2. THE MELLON BAR HAS NO EXCEPTION
Missouri also insists that the holding in Massachusetts v.
EPA, 549 U.S. 497 (2007), creates an exception to the Mellon
bar that allows its lawsuit against Reclamation to proceed. In
that case, Massachusetts petitioned the EPA to promulgate a
rule governing vehicular greenhouse gas emissions. Id. at
510. The EPA declined to regulate and Massachusetts sought
judicial review. Id. at 510–15. The United States Supreme
Court concluded that Massachusetts had standing in its own
right to sue the EPA. Id. at 526. Its entire parens patriae
discussion appears in footnote seventeen, two sentences of
which are critical to Missouri’s argument. Id. at 520 n.17.
The first declares that “there is a critical difference between
allowing a State ‘to protect her citizens from the operation of
federal statutes’ (which is what Mellon prohibits) and allowing
a State to assert its rights under federal law (which it has
standing to do).” Id. (quoting Georgia v. Pennsylvania R. Co.,
324 U.S. 439, 447 (1945)). The second then states:
“Massachusetts does not here dispute that the Clean Air Act
applies to its citizens; it rather seeks to assert its rights under
4
We note that Missouri has not made an argument that
NEPA—as opposed to the APA—authorizes this suit
notwithstanding the Mellon bar and thus we have no occasion to
consider that argument.
13
the Act.” Id. Missouri reads the footnote as establishing an
exception to the Mellon bar for litigation in which a State “does
not challenge the validity of a federal statute but instead sues
the federal government to assert the State’s own rights or those
of its citizens under federal statutes.”
But the Supreme Court had no need to carve out an
exception to the Mellon bar in Massachusetts v. EPA because
Massachusetts did not sue in its parens patriae capacity.
Accord Center for Biological Diversity v. U.S. Dep’t of
Interior, 563 F.3d 466, 476–78 (D.C. Cir. 2009) (discussing
parens patriae analysis in Massachusetts v. EPA). It instead
“alleged a particularized injury in its capacity as a landowner.”
Massachusetts, 549 U.S. at 522. Because Massachusetts sued
to remedy its own injury rather than that of its citizens,
Massachusetts v. EPA is not a parens patriae case. There is
some confusion on this score most possibly caused by the
opinion’s discussion of quasi-sovereign interests. Id. at 519–
20. But that discussion related to the Supreme Court affording
Massachusetts “special solicitude in [the] standing analysis.”
Id at 520. The Court explained that Massachusetts is entitled
to “special solicitude” because (1) a State has a quasi-sovereign
interest in “preserv[ing] its sovereign territory” and (2) the
Congress afforded “a concomitant procedural right to
challenge the rejection of its rulemaking petition as arbitrary
and capricious.” Id. at 519–20; see also Texas v. United
States, 809 F.3d 134, 151 (5th Cir. 2015) (applying special
solicitude doctrine). Notwithstanding the quasi-sovereign-
interests discussion, however, Massachusetts asserted its own
statutory right and alleged its own harm to establish an injury-
in-fact, as footnote seventeen expressly recognizes,
Massachusetts, 549 U.S. at 520 n.17 (“Massachusetts does not
here dispute that the Clean Air Act applies to its citizens; it
rather seeks to assert its rights under the Act.” (second
emphasis added)); see also id. at 522 (Massachusetts “has
14
alleged a particularized injury in its capacity as a coastal
landowner”).
Nor does the text of footnote seventeen support Missouri’s
proposed exception. The first three sentences of the footnote
dispute the dissent’s characterization of Mellon as supporting
the proposition that a State cannot assert a quasi-sovereign
interest when suing the federal government. Compare id. at
539 (Roberts, C.J., dissenting) (“[T]he Court overlooks the fact
that our cases cast significant doubt on a State’s standing to
assert a quasi-sovereign interest—as opposed to a direct
injury—against the Federal Government.”), with id. at 520 n.17
(“Mellon itself disavowed any such broad reading when it
noted that the [Mellon] Court had been ‘called upon to
adjudicate, not rights of person or property, not rights of
dominion over physical domain, [and] not quasi-sovereign
rights actually invaded or threatened.’” (quoting 262 U.S. at
484–85)). For good measure, the two concluding sentences of
the footnote distinguish the Massachusetts facts from those of
Mellon. “In any event,” they explain, “there is a critical
difference between allowing a State ‘to protect her citizens
from the operation of federal statutes’ (which is what Mellon
prohibits) and allowing a State to assert its rights under federal
law (which it has standing to do).” Id. (quoting Pennsylvania
R. Co., 324 U.S. at 447). The distinction is not, as Missouri
suggests, between two types of parens patriae lawsuits, one
permissible and one not. It is between a parens patriae
lawsuit (what Mellon prohibits) and a State suing based on “its
rights under federal law” (not a parens patriae lawsuit at all).
See Wyoming, 502 U.S. at 448–49 (1992) (“[C]laims of parens
patriae standing” differ from “allegations of direct injury to the
State itself.”); cf. Kleppe, 533 F.2d at 675 (describing parens
patriae lawsuit as “representative action by the state”).
15
Finally, Missouri’s reading of footnote seventeen, if
adopted, would establish an exception that makes little sense in
light of the vertical federalism interest underlying the Mellon
bar. As we have explained, an “individual’s dual citizenship
in both state and nation, with separate rights and obligations
arising from each, suggests that both units of government act
as parens patriae within their separate spheres of activity.” Id.
at 676–77. “The general supremacy of federal law” means
“that the federal parens patriae power should not, as a rule, be
subject to the intervention of states seeking to represent the
same interest of the same citizens.” Id. at 677. For that
reason, a “state can not have a quasi-sovereign interest
because” matters of federal law “fall[] within the sovereignty
of the Federal Government.” Id. It is the State’s
representation that usurps the role of the federal government,
not the legal theory underlying its complaint. Id. at 676–77.
There is no reason to treat parens patriae actions alleging
constitutional claims against the federal government
differently from those alleging federal statutory claims. We
doubt the Supreme Court meant in footnote seventeen to create
an exception to the Mellon bar based on such a distinction.
In the end, we are unpersuaded by Missouri’s argument
that Massachusetts v. EPA alters our longstanding precedent
that a State in general lacks parens patriae standing to sue the
federal government. Accord Center for Biological Diversity,
563 F.3d at 476–78 (rejecting, in dicta, that Massachusetts v.
EPA creates exception to Mellon bar); Maryland People’s
Counsel, 760 F.2d at 320 (“[a] State does not have standing as
parens patriae to bring an action against the Federal
Government” (quoting Alfred L. Snapp & Son, Inc., 458 U.S.
at 610 n.16)); Michigan v. EPA, 581 F.3d 524, 529 (7th Cir.
2009) (per Wood, J.) (Massachusetts does not create exception
to Mellon bar); Commonwealth v. U.S. Dep’t of Educ., 340 F.
Supp. 3d 7, 14–16 (D.D.C. 2018) (same).
16
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.