Government of the Province of Manitoba v. Norton

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
GOVERNMENT OF THE PROVINCE )
OF MANITOBA, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 02-2057 (RMC)
) (consolidated with 09-373)
RYAN ZINKE, Secretary, United States )
Department of the Interior, et al., )
)
Defendants, )
)
and )
)
STATE OF NORTH DAKOTA )
)
Defendant-Intervenor. )
_________________________________ )
OPINION
The National Environmental Protection Act (NEPA), 42 U.S.C. §§ 4321, et seq.
(2012), is designed to ensure that federal officials seriously study the environmental effects and
implications of any major federal action before proceeding. As this aged litigation makes clear,
NEPA’s requirements cannot be sidestepped. In the end, however, NEPA does not dictate the
outcome of an agency decision. As long as the federal agency has adequately identified its
options, seriously studied and evaluated the consequences of each, identified and adopted
reasonable measures to mitigate adverse consequences, and selected its action after balancing all
of the above, NEPA will not prevent the agency from going ahead. Much less, after a thorough
environmental impact statement, is the Judiciary assigned the duty of balancing and choosing
between serious but opposing policy choices. This Court’s work is done because the Bureau of
Reclamation has finally done its work. The policy debate is legitimate and has strong advocates
1
on each side but it cannot be decided by a court. The government’s motion for summary
judgment will be granted.
BACKGROUND
The Court presumes familiarity with its prior opinions and will not belabor the
facts. See Gov’t of the Province of Manitoba v. Norton, 398 F. Supp. 2d 41, 65 (D.D.C. 2005)
(Manitoba I) (remanding for a “more searching” environmental assessment); Gov’t of the
Province of Manitoba v. Salazar, 691 F. Supp. 2d 37, 51 (D.D.C. 2010) (Manitoba II)
(remanding for a “hard look” at the impact of withdrawals from Lake Sakakawea and the
Missouri River and consequences of foreign biota transfer into Hudson Bay Basin); see also
Gov’t of the Province of Manitoba v. Zinke, 849 F.3d 1111, 1122 (D.C. Cir. 2017) (concluding
that significant change in circumstances warranted modification of injunction).
In response to longstanding water shortages and poor water quality in
northwestern and northcentral North Dakota, in 1987 the Bureau of Reclamation (Reclamation)
developed the Northwest Area Water Supply Project (NAWS or the Project). The goal of
NAWS is to provide water from Lake Sakakawea, a reservoir in the Missouri River Basin, to
communities in North Dakota in need of water. In the process, water will be transferred through
pipes across the Basin Divide,1 which separates two large water Basins: to the south is the
Missouri River Basin and to the north is the Hudson Bay Basin. These Basins have distinct
1
The parties have at various points in the course of this litigation referred to “the continental
divide” which is not to be confused with the Great Continental Divide dividing water systems
that drain into the Atlantic Ocean from those that drain into the Pacific Ocean. The divide
relevant to this case runs through North Dakota from the northwest corner diagonally across the
state. It is most likely part of the Laurentian Divide, which divides water flowing northwards to
the Arctic Ocean to that running southwards to the Atlantic Ocean, Caribbean Sea, and Gulf of
Mexico. Since the parties do not specify the continental divide relevant here, it will be referred
to as the “Basin Divide” or “Divide.”
2
ecological characteristics and contain different species of fish and other aquatic organisms, as
well as pathogenic species such as bacteria, viruses, protozoa, fungi, and other microscopic
organisms. The co-mingling of water from these two Basins could result in the introduction of
foreign biota—the various life forms of a particular region or habitat—that may be invasive and
dangerous to indigenous biota. Foreign biota “whose introduction does or is likely to cause
economic or environmental harm or harm to human health” are also referred to as alien invasive
species (AIS). Executive Order 13112, 64 Fed. Reg. 6183 (February 3, 1999). The federal
government and the State of North Dakota have labored for years to bring water from Lake
Sakakawea across the Divide to the parched communities in the northwestern area of North
Dakota. Water in North Dakota drains north into the Hudson Bay Basin. Manitoba therefore has
a strong interest in avoiding the introduction of AIS from the Missouri River Basin draining into
the Province.
In 2002, the Province of Manitoba sued under NEPA to prevent Reclamation
from proceeding with NAWS, arguing that an April 2001 Environmental Assessment (EA) and a
Finding of No Significant Impact2 (FONSI) violated NEPA. See Manitoba I, 398 F. Supp. 2d at
44. As designed originally, NAWS would have transferred billions of gallons of water each year
from the Missouri River Basin, on the southern side of the Basin Divide, into the Hudson Bay
Basin, on the northern side of the Divide, without any treatment to avoid an inevitable transfer of
AIS. Years later, Reclamation has finally produced a thorough and studious environmental
impact statement (EIS). The policy choice between (i) the risk of AIS entering Manitoba as
water drains north from North Dakota into the Hudson Bay Basin and (ii) providing adequate
2
“Finding of no significant impact means a document by a Federal agency briefly presenting the
reasons why an action . . . will not have a significant effect on the human environment and for
which an environmental impact statement therefore will not be prepared.” 40 C.F.R. § 1508.13.
3
water to the communities in northwest North Dakota has been made, with significant mitigation
efforts to reduce the risks to Manitoba.
The pending cross-motions for summary judgment address the sufficiency of the
Final 2015 Supplemental Environmental Impact Statement (2015 SEIS), for which notice of
availability was published in the Federal Register by Reclamation on April 10, 2015, 80 Fed.
Reg. 19347-01 (Apr. 10, 2015); see also 2015 SEIS [Dkt. 260-8] 2015 AR 2015_107; and the
Record of Decision (2015 ROD) identifying the selected action for implementation. See 2015
ROD [Dkt. 260-2] 2015 AR 2015_100. Reclamation continues to propose, with North Dakota’s
support, the annual conveyance of billions of gallons of water across the Basin Divide to ten
counties in northwestern North Dakota. See Recl. Mot. Sum. J. [Dkt. 243]; North Dakota Mot.
Sum. J. [Dkt. 242]. Reclamation and North Dakota ask the Court to dissolve its injunction, as
amended, which has prevented most construction work on NAWS since 2005. Manitoba and the
State of Missouri, which fears the consequences of the loss of so much water from the Missouri
River on its downstream citizens, oppose lifting the injunction and file cross-motions for
summary judgment.3 See Manitoba Mot. Sum. J. [Dkt. 249-1]; Missouri Mot. Sum. J. [Dkt.
246].
A. The 2015 SEIS
The 2015 SEIS analyzes the same five alternatives that had been previously
described in the Draft SEIS, issued in June 2014, and on which Reclamation received copious
public comments. See Draft SEIS [Dkt. 258-14] 2015 AR 2014_165 at 35-36; 2015 SEIS, 2015
AR 2015_107 at 46. The alternatives include a “no action” alternative, as required by NEPA,
3
Manitoba submitted two memoranda in support of its Cross-Motion for Summary Judgment.
For clarity, when the Court refers to Manitoba’s Motion for Summary Judgment it will be
referencing the Corrected Brief found at Dkt. 249-1.
4
which would mean an end to the Project. See 2015 SEIS, 2015 AR 2015_107 at 50; see also 40
C.F.R. § 1502.14(d) (requiring agencies to “[i]nclude the alternative of no action” in an EIS). Of
the other four alternatives, two are “inbasin alternatives,” drawing water from the Hudson Bay
Basin, and two are “Missouri River alternatives,” drawing water from the Missouri River Basin.
2015 SEIS, 2015 AR 2015_107 at 46. The first inbasin alternative, “Groundwater with
Recharge,” would use existing groundwater from the Minot and Sundre aquifer wellfields (both
within the Hudson Bay Basin) as the primary source of water and use the Souris River (also
within the Hudson Bay Basin) to provide artificial recharge to the aquifers. Id. at 51. The
second inbasin alternative, “Groundwater with Recharge and the Souris River,” includes the
same water sources as the first and would also use the Souris River as a direct source of water to
supplement the groundwater. Id. at 60. The inbasin alternatives would draw from water
exclusively on the northern side of the Basin Divide, avoiding the need to transfer water between
Basins and thus any need to construct a Biota Water Treatment Plant (WTP) in Max, North
Dakota on the southern side of the Basin Divide. See 2015 SEIS Executive Summary [Dkt. 260-
10] 2015 AR 2015_109 at 14-15.
The Missouri River alternatives both involve piping water from Lake Sakakawea
in the Missouri River Basin across the Divide and blending it with water north of the Basin
Divide. As now envisioned, both would require the construction of a Biota WTP in order to treat
the water prior to transfer across the Divide. See 2015 SEIS, 2015 AR 2015_107 at 66, 73. The
water would then be treated again north of the divide at a second water treatment plant in Minot,
North Dakota. The first of these alternatives, “Missouri River and Conjunctive Use,” would
blend Lake Sakakawea water with groundwater from the Minot and Sundre aquifers as well as
water from the Souris River. Id. at 66. Reclamation identifies the second Missouri River
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alternative, “Missouri River and Groundwater,” as its preferred alternative. Id. at 99. This
alternative would blend Lake Sakakawea water with groundwater only, with no additional water
from the Souris River. Id. at 73.
The 2015 SEIS identifies five methods for treating water at a Biota WTP in Max,
N.D., south of the Basin Divide, for the Missouri River alternatives. The Draft SEIS planned to
use Chlorination/Ultraviolet (UV) Inactivation at the Biota WTP to treat the water in part before
piping it northward to the Minot WTP, on the northern side of the Basin Divide, to complete
treatment. Id. at 99. The Environmental Protection Agency (EPA) submitted comments to the
Draft SEIS advising that the use of Chlorination/UV Inactivation could result in the formation of
disinfection byproducts which “pose a risk to human health when present in drinking water” at
high concentrations. Comments to Draft SEIS [Dkt. 260-4] AR 2015 AR 2015_104 at 289.
EPA recommended that Reclamation consider Conventional Treatment, which avoids the
formation of disinfection byproducts by removing solids and other particles before applying
Chlorination/UV Inactivation treatment. Id. Manitoba has been urging the use of Conventional
Treatment for years to mitigate the risk of AIS transfer between Basins. See Manitoba Mot.
Sum. J. at 7 (noting “the ROD selected a biota treatment technology—conventional treatment—
that Manitoba (any many other commenters) recommended”). Reclamation, however, insists
that such treatment is not necessary to avoid AIS but was only adopted to comply with
regulations issued under the Safe Water Drinking Act, 42 U.S.C. §§ 300f et seq., by reducing the
risk of the formation of disinfection byproducts. See 2015 SEIS, 2015 AR 2015_107 at 99
(stating that the choice of Conventional Treatment “does not reflect the level of treatment
necessary to address the concerns relative to the Project-related risk of AIS transfer”).
Reclamation maintains that “[o]ther options proposed for the Biota WTP would be sufficient to
6
reduce the . . . risk for AIS transfer” but acknowledges that Conventional Treatment reduces the
risk of AIS transfer by providing “protection against the organisms of concern and includ[ing] a
physical barrier for removal.” Id. at 99-100.
Despite Reclamation’s final acquiescence to the use of Conventional Treatment,
Manitoba is not appeased, arguing that Reclamation’s assessment of the risk of AIS transfer
continues to fall short of NEPA obligations. It emphasizes a 2016 report issued by the
Department of the Interior after completion of the 2015 SEIS, which emphasized the concerns
with AIS transfer generally:
Invasive species pose one of the greatest ecological threats to
America’s lands and waters. Their control can be complex and
expensive and is often conducted in perpetuity; their harm can be
irreversible. . . . Preventing the introduction of invasive species is
the first line of defense against biological invasion.
Manitoba Mot. Sum. J. at 8 (citing Dep’t of the Interior, Safeguarding America’s Lands and
Waters from Invasive Species: A national framework for early detection and rapid response
(2016) at v, 1) (Safeguarding Report). An invasion occurs when alien species “breach
biogeographic barriers and extend their range. . . . [E]arly detection is the process of surveying
for, reporting, and verifying the presence of a non-native species, before the founding population
becomes established or spreads so widely that eradication is no longer feasible.” Safeguarding
Report at 4. Manitoba cites the Safeguarding Report to emphasize the seriousness of the
consequences of the transfer of AIS into the Province. Notably, Reclamation was one of the
agencies involved in the study and policy decisions that led to the Safeguarding Report, so it had
full awareness of that analysis as it completed the 2015 SEIS and ROD.
Nevertheless, Reclamation has produced a 2015 SEIS and ROD that collectively
demonstrate appropriate and reasonable efforts to avoid and mitigate the risks of transfer of AIS
7
from the Missouri River Basin as a result of the Project and the Court will not interfere with what
is now a policy choice made by the Executive Branch.
LEGAL STANDARDS
Summary Judgment
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted
against a party who “after adequate time for discovery and upon motion . . . fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.
Anderson, 477 U.S. at 255.
When evaluating cross-motions for summary judgment, each motion is reviewed
“separately on its own merits to determine whether [any] of the parties deserves judgment as a
matter of law.” Family Trust of Mass., Inc. v. United States, 892 F. Supp. 2d 149, 154 (D.D.C.
2012) (internal quotation marks omitted). Neither party is deemed to “concede the factual
assertions of the opposing motion.” Competitive Enter. Inst. Wash. Bureau, Inc. v. Dep’t of
Justice, 469 F.3d 126, 129 (D.C. Cir. 2006). “[T]he court shall grant summary judgment only if
one of the moving parties is entitled to judgment as a matter of law upon material facts that are
not genuinely disputed.” Select Specialty Hosp.-Bloomington, Inc. v. Sebelius, 774 F. Supp. 2d
332, 338 (D.D.C. 2011) (internal quotation marks omitted). A genuine issue exists only where
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“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
NEPA
NEPA requires government agencies to take a “hard look” at the environmental
impact of proposed actions before deciding whether to proceed. 42 U.S.C. § 4332(C); Stand Up
for California! v. Dep’t of the Interior, 204 F. Supp. 3d 212, 303 (D.D.C. 2016). If an agency
determines that a proposed federal action will “significantly affect[] the quality of the human
environment,” it must prepare a detailed environmental impact statement assessing “the
environmental impact of the proposed action,” 42 U.S.C. § 4332(C)(i), “any adverse
environmental effects which cannot be avoided should the proposal be implemented,”
§ 4332(C)(ii), and any “alternatives to the proposed action,” § 4332(C)(iii). This procedural
requirement is “[a]t the heart of NEPA.” Sierra Club v. U.S Army Corps of Engineers, 803 F.3d
31, 37 (D.C. Cir. 2015). The statute does not require a particular outcome but rather imposes
“‘procedural requirements . . . with a particular focus on requiring agencies to undertake analyses
of the environmental impact of their proposals and actions.’” Delaware Riverkeeper Network v.
Fed. Energy Regulatory Comm’n, 753 F.3d 1304, 1310 (D.C. Cir. 2014) (quoting Dep’t of
Transp. v. Pub. Citizen, 541 U.S. 752, 756-57 (2004)); see also Delaware Riverkeeper Network
v. Fed. Energy Regulatory Comm’n, 857 F.3d 388, 394 (D.C. Cir. 2017) (“So long as the agency
takes a hard look at the environmental consequences, NEPA does not mandate particular
results.”) (internal quotation marks omitted)). NEPA does not “‘require agencies to elevate
environmental concerns over other appropriate considerations.’” WildEarth Guardians v. Jewell,
738 F.3d 298, 303 (D.C. Cir. 2013) (quoting Balt. Gas & Elec. Co. v. Natural Res. Def. Council,
Inc., 462 U.S. 87, 97 (1983)). It requires informed and well-considered decision-making “but
9
not necessarily the best decision.” New York v. Nuclear Regulatory Comm’n, 681 F.3d 471, 476
(D.C. Cir. 2012).
The Court reviews an EIS to ensure the agency took a “hard look” at the
environmental consequences of its proposed project. The Court’s role is not to “‘flyspeck’ an
agency’s environmental analysis, looking for any deficiency no matter how minor.” Nevada v.
Dep’t of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006). Rather, the Court’s role is to “‘ensure that
the agency has adequately considered and disclosed the environmental impact of its actions and
that its decision is not arbitrary or capricious,’” Id. (quoting Balt. Gas & Elec. Co., 462 U.S. at
97-98), and that it has “[r]igorously explore[d] and objectively evaluate[d] all reasonable
alternatives.” 40 C.F.R. § 1502.14(a). The “arbitrary and capricious” standard applies to both
the agency’s compliance with NEPA’s procedures and the adequacy of the agency’s EIS. See
Nevada, 457 F.3d at 87-88.
ANALYSIS
Manitoba complains that Reclamation’s work is not done: it asserts that
Reclamation failed to consider adequately the possibility of increased turbidity in the waters of
Lake Sakakawea due to the effects of climate change; it assails as insufficient Reclamation’s
plans for mitigation through an Adaptive Management Plan; it discredits Reclamation’s analysis
of the availability of sufficient in-Basin water without the need for water from Lake Sakakawea;
and it complains that Reclamation pre-selected its preferred option.
A. Turbidity and Climate Change
NAWS is constructed for a lifetime of 40 years or more. See 2015 SEIS, 2015
AR 2015_107 at 23 (explaining NAWS “is intended to address long-standing water supply and
water quality problems experienced by residents of northwestern North Dakota . . . through
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2060”). Over those decades, Manitoba complains that climate change can be expected to
increase the turbidity of the water in the Missouri River and Lake Sakakawea, thereby decreasing
the ability of the Biota WTP to treat it. See Manitoba Mot. Sum. J. at 23. Turbidity “is a
surrogate for a broad array of constituents—soil particles, dissolved minerals, microbes, bacteria,
and viruses,” which, in high quantities, can reduce the efficacy of water treatment systems. Id.
In its comments to the Draft SEIS, Manitoba expressed concern with
Reclamation’s choice of Chlorination/UV Inactivation because “the effectiveness of UV
irradiation is widely acknowledged to be adversely impacted by elevated levels of turbidity and
organics.” Comments to Draft SEIS, 2015 AR 2015_104 at 227. Manitoba insisted that best
practices required a filtration system to deal with turbidity and recommended conventional
treatment:
The only secure means of ensuring the effectiveness of both UV and
chlorination [as proposed in the Draft SEIS] is to first pre-treat the
water using conventional treatment. This will reduce turbidity and
dissolved organic levels in the feed water to the UV and C12 systems
and also maximize the UV transmittance of the raw water thus
ensuring far greater reliability and effectiveness of the UV and C12
systems.
Id. at 231. Reclamation has now done exactly that. Nevertheless, Manitoba insists that
Reclamation has not adequately considered “how climate change-induced increases in the turbidity
of raw intake water for the NAWS Project will impact the performance and effectiveness of the
treatment system selected in the ROD.” Manitoba Surreply [Dkt. 263] at 5. It takes issue with
Reclamation’s focus on climate change-induced increases of the flow and quantity of Missouri
River water rather than its quality as impacted by turbidity. See Manitoba Mot. Sum. J. at 22.
Reclamation does not challenge Manitoba’s overarching claim that turbidity can
create issues for water treatment, see Transbasin Effects Report [Dkt. 260-3] 2015 AR 2015_103
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at 180 (“High turbidity can reduce the efficacy of chlorination . . . and UV disinfection.”), but
disagrees with Manitoba’s projection of the impact of turbidity on the Project given the use of
Conventional Treatment and the water intake location at Lake Sakakawea. Commenting on the
Draft SEIS, Manitoba emphasized the impact of turbidity if Reclamation retained the
Chlorination/UV Inactivation treatment method. See Comments to Draft SEIS, 2015 AR
2015_104 at 227-31. In response to Reclamation’s choice of Conventional Treatment in the
2015 SEIS, Manitoba expressly approved stating that “the ‘preferred alternative’ for water
treatment identified in the Final [2015] SEIS represents the most sensible, and most protective,
course of action.” Comments to 2015 SEIS [Dkt. 260-2] 2015 AR 2015_100 at 40. Reclamation
also clarified that water for NAWS will be withdrawn from Lake Sakakawea at the Snake Creek
Pumping Plant, which “is located more than 100 miles from the reservoir headwaters” and
therefore “likely not subject to significant inflow-related changes in turbidity.” Transbasin
Effects Report, 2015 AR 2015_103 at 181.
The argument thus arises from a scientific disagreement as to the nature and
impact of climate change-induced turbidity in the relevant environment, not from a failure of
Reclamation to consider and address the issue. For example, the parties disagree on the level of
turbidity at which water treatment may be affected. Compare Transbasin Effects Report, 2015
AR 2015_103 at 180 (“For unfiltered water, the UV dose-response is generally not affected
when the turbidity is less than 10 nephelometric turbidity units (NTU).”) with Comments to
Draft SEIS, 2015 AR 2015_104 at 228 (“A value of 5 NTU is . . . generally considered . . . to be
the threshold beyond which chlorination’s effectiveness can be reduced.”). In addition,
Manitoba challenges Reclamation’s use of mean turbidity data, which it argues “mask[s] the
impact of maximum turbidity values and intermittent spikes” and also underestimates the impact
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of turbidity, see Manitoba Surreply at 6, while Reclamation argues that it “expressly analyzed the
relationship between inflow in the [sic] Lake Sakakawea and turbidity []using data from an
intake that was thirty miles closer to the Missouri River inlet []and which therefore would be
expected to overstate any inflow impacts.” Recl. Reply [Dkt. 252] at 10-11 (emphasis added).
These dueling contentions do not answer the relevant question before the Court:
has Reclamation adequately considered climate change and turbidity in preparing the 2015
SEIS? The parties’ disagreement over the interpretation of scientific studies or the application of
those findings to the particulars of the NAWS Project does not lead to the conclusion that
Reclamation failed to consider the relationship between climate change and turbidity or that its
conclusions were arbitrary or capricious. The Court is acutely aware of the legitimate fears
behind Manitoba’s position to “consistently oppose[] and continue[] to oppose inter-basin
transfers of water.” Comments to 2015 SEIS, 2015 AR 2015_100 at 40. However, the role of
the Court under NEPA is not to evaluate the substantive decisions made in the 2015 SEIS but to
ensure the agency has taken a “hard look” at environmental consequences and reasonable
mitigation measures, and made an informed decision on whether and how to proceed. See
Delaware Riverkeeper Network, 753 F.3d at 1310 (“NEPA itself does not mandate particular
results.” (internal quotation marks omitted)). NEPA is a procedural statute designed “to ensure
‘a fully informed and well-considered decision, not necessarily’ the best decision.” Theodore
Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 503 (D.C. Circ. 2010) (quoting
Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558
(1978)). The Court finds that Reclamation has fulfilled its NEPA obligations here.
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B. Adaptive Management Plan
An EIS must include a “discussion of steps that can be taken to mitigate adverse
environmental consequences.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351
(1989); see also 40 C.F.R. § 1508.25(b)(3) (requiring an EIS to include mitigation measures).
Among other measures to mitigate potential future effects of AIS transfer due to NAWS,
Reclamation plans to establish an Adaptive Management Plan to “flesh out Reclamation’s . . .
monitoring of the effectiveness of the water treatment systems at the Biota WTP” in Max, N.D.
Recl. Reply at 14. Manitoba fears its exclusion from the Adaptive Management Plan and
consequent inability to gauge any future risks to the Province during NAWS’s operation. It
argues that the 2015 SEIS fails to discuss mitigation sufficiently because: (1) the Adaptive
Management Plan is not reasonably complete; and (2) Manitoba has not been included in the
Adaptive Management Plan development process, which in turn indicates a failure “to ensure
that effective future means of mitigating environmental consequences of an AIS/biota release
will be fairly evaluated.” Manitoba Mot. Sum. J. at 32-38.
Manitoba acknowledges “NEPA does not require that a complete mitigation plan
be fully formulated and adopted, and that the agency need not present a mitigation plan that is
‘legally enforceable, funded or even in final form to comply with NEPA’s procedural
requirements.’” Id. at 32 (quoting Nat’l Parks & Conservation Ass’n v. Dep’t of Transp., 222
F.3d 677, 681 n.4 (9th Cir. 2000)). However, it insists that Reclamation’s discussion of the
Adaptive Management Plan “fails to include sufficient detail to ensure fair evaluation of
effective future measures to address the potentially catastrophic environmental consequences of
an AIS/biota release.” Id. at 34.
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Such management plans come in a variety of sizes and details. In Theodore
Roosevelt Conservation Partnership, the District of Columbia Circuit reviewed and found
sufficient an adaptive management plan which included a “thirteen-page list of specific
protective measures” that a review team would consider. 616 F.3d at 516. In contrast, the Ninth
Circuit found insufficient under NEPA a two-paragraph “perfunctory description of mitigation
measures.” Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir.
1998).
The Ninth Circuit recently approved an adaptive management plan that provided
for “a regime of continued monitoring and inspection.” Protect Our Communities Found. v.
Jewell, 825 F.3d 571, 582 (9th Cir. 2016). Similarly, Reclamation has outlined an Adaptive
Management Plan that will provide a continuous monitoring process that will allow for flexible
responses to unknown future environmental impacts. Its current lack of specificity reflects the
current stage of Reclamation’s planning process and not a failure “to ensure that environmental
consequences have been fairly evaluated.” Robertson, 490 U.S. at 352.
The Court appreciates Manitoba’s desire to participate in the oversight of NAWS
because it has legitimate concerns about AIS entering the Province as a result of NAWS and
Reclamation has only reluctantly fulfilled its NEPA obligations. Neither party, however, cites
any judicial authority to dictate membership in a future adaptive management group. Even if so,
Manitoba’s argument concerning non-inclusion is premature. “Reclamation has not yet formed
the adaptive management team, given the pendency of this litigation” and so its membership
remains speculative. Recl. Reply at 14. Manitoba insists that Reclamation’s own guidelines
compel it to include Manitoba, and/or other groups who commented unfavorably on
Reclamation’s environmental impact analyses, in the Adaptive Management Plan. See Manitoba
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Mot. Sum. J. at 35-37 (relying on the Adaptive Management Technical Guide [Dkt. 252-2],
which requires the participation of stakeholders and encourages the involvement of stakeholders
with varying views). It is unclear how these guidelines will be interpreted in this situation, when
a management team is formed, given that Manitoba is the stakeholder with the most to lose if the
mitigation measures fail to prevent AIS transfer into the Hudson Bay Basin. Manitoba would
also most benefit from the earliest possible notice of such intrusion into North Dakota’s north
side of the Basin Divide, to protect its waters and population. Manitoba essentially asks the
Court to assume that Reclamation will ignore the teachings of the Safeguarding Report and not
include a representative of the Province on the management team without a court order to do so.
The Court does not accept that assumption and, rather, gives Reclamation the benefit of
presuming it will act reasonably and with full appreciation of the legitimacy of Manitoba’s
concerns when the time comes.
Sympathetic to Manitoba’s long-standing interest in the NAWS Project, in March
2017, this Court directed Reclamation and North Dakota to advise the Court whether they “are
willing to commit to adding a representative of the Province of Manitoba to the Adaptive
Management Team to resolve amicably one issue now pending before the Court.” Minute Order
dated April 3, 2017. Reclamation responded that it “does currently intend to invite Manitoba to
participate on a team to address the development of adaptive management goals and objectives
for the water treatment systems within the Biota WTP.” Recl. Response [Dkt. 278] at 1 (record
citations and internal quotation marks omitted). North Dakota similarly “does not object to
Reclamation inviting Manitoba to designate an appropriate technical representative to participate
on the Adaptive Management Team.” North Dakota’s Response [Dkt. 277] at 1. Both include
caveats, maintaining Reclamation’s final decision-making authority and discretion to decide the
16
make-up of the team, and requiring Manitoba’s representative to have technical expertise. See
Recl. Response at 2; North Dakota Response at 2. The parties’ responses underscore the crux of
Manitoba’s concern—participation in NAWS oversight going forward—and the fact that
Manitoba has not yet been prevented from participation (indeed all parties seem to envision such
continued participation).
C. Risk of AIS Inter-Basin Transfer
Manitoba complains that Reclamation failed to assess adequately the risk that the
Project will transfer AIS into the Hudson Bay Basin. It notes particularly Reclamation’s
continuing insistence that non-Project pathways for invasive species to reach the Hudson Bay
Basin present a greater risk than the transfer of millions of gallons of Missouri River water each
year over the course of future decades. See Manitoba Mot. Sum. J. at 9-10. It further faults
Reclamation for failing to perform a quantitative analysis of the risk of AIS transfer. See id. at
15-19. Manitoba rightly points out significant limitations in Reclamation’s analyses. Dr.
Nicholas Friedenberg, the peer reviewer of the Transbasin Effects Report with most immediately
relevant expertise,4 recommended additional quantitative analysis, but Reclamation adopted a
qualitative approach to assess the risk of AIS transfer. Compare Atkins Peer Review [Dkt. 260-
11] 2015 AR 2015_111 at 10 (“Dr. Friedenberg . . . commented that the Report should have
taken a quantitative rather than qualitative approach to risk analysis.”), with 2015 SEIS, 2015 AR
2015_107 at 335 (“[B]ased on a qualitative assessment of the basin linkages and competing
4
Reclamation retained Atkins, North America to conduct the peer review for the Transbasin
Effects Report. Atkins selected three reviewers with expertise in: (1) fish pathogens and
parasites; (2) ecological risk and consequence analysis; and (3) surface water treatment and
disinfection for waterborne parasites and pathogens. See Atkins Peer Review [Dkt. 260-11]
2015 AR 2015_111 at 7. Dr. Friedenberg, a Senior Scientist in Applied Biomathematics in
“ecological and evolutionary risk analysis,” was selected as the expert in ecological risk and
consequence analysis. See id. at 8, 31.
17
pathways, the risk of AIS transfer by the Missouri River alternatives is considered to be
extremely low compared to non-Project pathways.”).
In response, Reclamation first contends that its obligation was to evaluate the
consequences of AIS transfer if caused by the Project, not the risk of AIS transfer. See Recl.
Reply at 2. Reclamation insists that not a single case exists in which a court has held that an
agency violated NEPA by inadequately assessing the risk of environmental harm. See id. at 3.
Therefore, Reclamation contends, “the only relevance of an agency’s risk assessment is that,
when an agency determines that a potential impact has a low likelihood of occurring, less
detailed analysis of the impact is required.” Id.; see Izaak Walton League of Am. v. Marsh, 655
F.2d 346, 377 (D.C. Cir. 1981) (“Detailed analysis [of environmental consequences] is required
only where impacts are likely. . . . Where adverse environmental impacts are not likely,
expensive and time-consuming studies are not necessary.”) (citation omitted)).
In stressing the distinction between consequence and risk, Reclamation misses the
mark. As Marsh makes clear, consequence and risk are immutably tied: the greater the former,
the greater the need to lessen or avoid the latter. A legitimate EIS must evaluate both risks and
consequences before a reasonable choice can be made among options. Consequence must,
perforce, include the risk of consequence.
There is no doubt, as Reclamation has catalogued, that numerous invasive species
have had disastrous consequences when given the chance to propagate in a new environment.
See 2015 SEIS, 2015 AR 2015_107 at 153-63; Transbasin Effects Report, 2015 AR 2015_103 at
195 (“Non-indigenous species can alter population, community, and ecosystem structure and
function.”) (citation omitted)); see also Safeguarding Report at 1 (“Invasive species pose one of
the greatest ecological threats to the Nation’s natural resources.”). And there is no doubt that the
18
Missouri River Basin and the Hudson Bay Basin have been geologically separated for ages. See
Manitoba I, 398 F. Supp. 2d at 47 (“NAWS would establish the first artificial link in 10,000
years between the Missouri River Basin and the Hudson River Basin.”). Thus, the consequences
should AIS propagate in the waters of the Hudson Bay Basin are not debatable; the disturbing
question has always concerned the likelihood, i.e., the risk, of such consequences and what
design features to NAWS could reduce that risk and, thus, avoid potentially disastrous
consequences.
These faulty arguments aside, the combination of the 2015 SEIS and ROD now
require treatment and transmission methodologies that will significantly reduce the risks—and
thereby the potential consequences—of AIS transfer between Basins. Critically responsive to
Manitoba’s argument, EPA convinced Reclamation that Conventional Treatment of Missouri
River water in Max, N.D., is necessary before any piping across the Basin Divide, thereby
inactivating and removing biota within the water before it crosses the Divide.5 See Comments to
Draft EIS, 2015 AR 2015_104 at 289; 2015 SEIS, 2015 AR 2015_107 at 89. Conventional
Treatment of the water before transmission, in addition to the pipeline safeguards promised by
Reclamation,6 provide a significantly greater avoidance of the risk of AIS transfer. Both
Manitoba and Canada, as amicus, agree on this point:
5
Manitoba argues further that NAWS will ultimately transfer “the equivalent of 13.6 acre feet of
untreated Missouri River water” into the Hudson Bay Basin. Manitoba Mot. Sum. J. at 11.
Reclamation protests that “[t]his contention is baseless: 100 percent of the Missouri River water
will be treated prior to crossing the basin divide.” Recl. Reply at 4-5; see also North Dakota
Opp’n [Dkt. 251] at 14 (“All of the Project water from the Missouri River would be treated using
Conventional Treatment . . . before it crosses into the Hudson Bay Basin.”). The Court finds that
Manitoba’s fears are based on erroneous interpretations of the data.
6
The 2015 SEIS describes the following safeguards:
These safeguards include isolation valves installed in strategic
locations along the pipeline to minimize the volume of water
19
It is also Manitoba’s long-standing position that, should the Project
ultimately proceed, the Biota WTP must include a “multiple barrier”
incorporating, as a minimum, conventional treatment. . . . The plant
must also be located within the Missouri River Basin so that all biota
removed by the plant and transferred to the plant waste streams
remain within the Missouri River Basin.
See Comments to Draft SEIS, 2015 AR 2015_104 at 227; Canada Amicus Br. [Dkt. 178] at 6
(expressing concern with the transfer of unfiltered water across the Basin Divide).
The Court acknowledges, as Manitoba argues, that the 2015 SEIS and ROD offer
no absolute certainty of protection against AIS being transported by Project pipelines into the
Hudson Bay Basin. However, those documents identified the risks and consequences and
committed to multiple mitigation measures to avoid them, including full Conventional Treatment
before any water leaves the Missouri River Basin and an Adaptive Management Plan to monitor
the water treatment process.7 NEPA requires such analyses and such efforts to avoid the
potential for clearly-disastrous consequences. Given Reclamation’s careful analysis of the
environmental impacts of NAWS, its decision to adopt Conventional Treatment, and its
implementation of other mitigation measures, the Court finds that Reclamation adequately
released into the Hudson Bay basin in the event of a pipeline breach.
Further, where the pipeline crosses a coulee or drainage, the joints
are welded or constructed with restrained joint fittings and encased
in concrete. . . . The pipeline was constructed to meet State Health
Department guidelines for domestic water supply systems buried at
a depth of 7 to 7.5 feet. . . . The State of North Dakota also
conducted rigorous testing of the pipeline following installation.
2015 AR 2015_107 at 47 (citation omitted).
7
In addition, Reclamation has committed to design measures to prevent or address any potential
pipeline leaks. See 2015 SEIS, 2015 AR 2015_107 at 46. The 2015 SEIS discusses the
construction of the various components of the Project and specific safeguards that have been
incorporated into the construction to reduce the risk of AIS transfer. See id. at 47-48. It also
highlights best management practices used during construction to avoid disturbance of aquatic
organisms. See id at 320-23.
20
considered the risk of the transfer of AIS as a result of the Project. “In a NEPA challenge, ‘[t]he
role of the courts is simply to ensure that the agency has adequately considered and disclosed the
environmental impact of its actions and that its decision is not arbitrary or capricious.’”
Grunewald v. Jarvis, 930 F. Supp. 2d 73, 78 (D.D.C. 2013) (quoting Balt. Gas & Elec. Co.. 462
U.S. at 97-98), aff’d, 776 F.3d 893 (D.C. Cir. 2015). The Court cannot “interject itself within the
area of discretion of the executive as to the choice of the action to be taken.” Strycker’s Bay
Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28 (1980) (internal quotation marks
omitted); Robertson, 490 U.S. at 351 (“NEPA merely prohibits uninformed—rather than
unwise—agency action.”).
Reclamation’s decision now rests on its determinations concerning serious and
conflicting policy issues and goals, which are not the purview of the Court.
D. Predetermination Without Analysis of In-Basin Alternatives
Manitoba’s concern from the outset has been that Reclamation would not
impartially consider in-basin water sources fully but, instead, jump immediately to its preferred
choice of Lake Sakakawea water despite its origin outside the Hudson Bay Basin. See Manitoba
Mot. Sum. J. at 41 (arguing that Reclamation “long ago decided that the primary source for the
NAWS project would be Missouri River water transferred across the [Basin Divide]”). Manitoba
points to the fact that $31 million worth of infrastructure required for Reclamation’s preferred
alternative had been construed prior to the 2015 SEIS, see id., and insists that Reclamation has
strategically conducted quantitative analyses only when it “would serve its pre-ordained
Missouri River preference.” Id. at 45. There is some validity to this concern: Reclamation has
come very late to a full EIS for the Project. However, now that it has done so and explained its
21
rejection of in-basin water alternatives, Manitoba’s objections on this basis are insufficient to
cause the Court to reject the 2015 SEIS.
Chapters Three (“Affected Environment”) and Four (“Environmental Impacts”) of
the 2015 SEIS describe the resources that could be affected and the anticipated environmental
impacts caused by the development and operation of NAWS. See 2015 SEIS, 2015 AR
2015_107 at 101-430. Following a lengthy discussion of in-basin sources of water (on the
northern side of the Basin Divide), the 2015 SEIS concluded that the alternatives of Groundwater
with Recharge and/or Groundwater with Recharge and Souris River would increase the number
of days in which the flows in the Souris River would be reduced to near-zero flow which could
lead to higher water temperatures. See id. at 273-89. Changes in flow levels and water
temperatures can potentially affect water quality “due to a reduced capacity to dilute incoming
pollutants and higher productivity with higher temperatures.” Id. at 288, 297. There is also a
risk of impairment to the beneficial uses of fish and aquatic biota. See id. These projections
were found to make both alternatives unacceptable. In selecting Lake Sakakawea as the water
source, the 2015 SEIS explained that the Missouri River System, consisting of six dams and
reservoirs operated by the Army Corps of Engineers, “has the capacity to store 72.3 million [acre
feet] (MAF) of water . . . [making] it the largest reservoir system in North America.” Id. at 133
(citation omitted). Fully one-third of that storage (23.6 MAF) exists in Lake Sakakawea. See id.
at 136. At oral argument, North Dakota emphasized the small percentage of water that would be
diverted from the Missouri River Basin for NAWS.
Manitoba expresses great concern with perceived dual problems: (i)
Reclamation’s failure to build a regional groundwater model to assess the sustainable yield of the
Minot and Sundre aquifers, and therefore the possibility that the Project could be sustained
22
through an in-basin alternative, combined with (ii) its willingness to rely on quantitative models
to support its conclusion that Lake Sakakawea would be a sustainable water source. See
Manitoba Mot. Sum. J. at 44-45. In response, Reclamation points out that the Missouri River
system has been extensively modeled by the Army Corps of Engineers, which allowed for a
complete quantitative analysis. See Recl. Reply at 20. Reclamation also argues that it conducted
a thorough qualitative analysis of the Minot and Sundre aquifers’ sustainable yields and
groundwater for recharge of the aquifers, and also analyzed thoroughly the water supply
potential from combining the aquifers and available water from the Souris River. See id. at 18.
Beyond insisting that a quantitative model of the in-basin water sources would have been best to
assess the sustainability of an in-basin alternative, Manitoba fails to explain why Reclamation’s
current analysis is otherwise lacking. NEPA demands that agencies engage in informed
decision-making. See WildEarth Guardians, 738 F.3d at 303. Reclamation has explained the
logistical and timing difficulties with a quantitative analysis of in-basin water resources with
enough detail to support its decision-making here.
Manitoba offers reverse osmosis as an alternative treatment option for in-basin
water sources, which it argues Reclamation failed to consider carefully and rejected cursorily due
to high costs but without support for that conclusion. See Manitoba Mot. Sum. J. at 47.
Manitoba raised this concern earlier in this litigation and the Court already determined that
Reclamation adequately considered reverse osmosis as an alternative and had good reasons to
reject that option: “Each community’s reverse osmosis plant would require a building large
enough to house the required number of reverse osmosis treatment units[;] . . . the reverse
osmosis process requires high energy use and includes the generation of a brine which requires
disposal[;] . . . [and] the capital costs . . . were more expensive than the capital costs for the
23
preferred alternative.” Manitoba II, 691 F. Supp. 2d at 46 (record citations omitted). Manitoba
points to no new information in the 2015 EIS or the Administrative Record to change the Court’s
decision.
Manitoba correctly argues that in order to achieve the aims of NEPA, an EIS
“shall serve as the means of assessing the environmental impact of proposed agency actions,
rather than justifying decisions already made.” 40 C.F.R. § 1502.2(g). However, “[t]he standard
for proving predetermination is high” and should not be reached lightly. Stand Up for
California!, 204 F. Supp. 3d at 303 (citing Forest Guardians v. Fish and Wildlife Service, 611
F.3d 692, 714 (10th Cir. 2010)). As the Tenth Circuit has explained, “predetermination occurs
only when an agency irreversibly and irretrievably commits itself to a plan of action that is
dependent upon the NEPA environmental analysis producing a certain outcome, before the
agency has completed that environmental analysis.” Forest Guardians, 611 F.3d at 714; accord
Stand Up for California!, 204 F. Supp. 3d at 304.
It bears noting that “agency officials . . . need not be subjectively impartial.”
Carolina Envtl. Study Grp. v. United States, 510 F.2d 796, 801 (D.C. Cir. 1975). “[A]gencies
are generally driven by policy objectives and frequently prefer one course of action over another
from the beginning of a project,” and, therefore, “[b]ias towards a preferred outcome does not
violate NEPA so long as it does not prevent full and frank consideration of environmental
concerns.” Comm. of 100 on Fed. City v. Foxx, 87 F. Supp. 3d 191, 205-06 (D.D.C. 2015).
Thus, in determining what is an “irreversible and irretrievable” commitment, the
District of Columbia Circuit has looked “to the practical effects of [an] agency’s conduct rather
than whether the conduct suggests subjective agency bias in favor of the project.” Id. at 207. In
Sierra Club v. Peterson, the Circuit held that the agency must prepare an EIS “prior to a
24
decision, when the decisionmaker retains a maximum range of options.” 717 F.2d 1409, 1414
(D.C. Cir. 1983). The Circuit concluded that, by entering a lease without “retain[ing] the
authority to preclude” activities until an EIS was complete, the agency had violated NEPA. Id.
at 1415. In Wyoming Outdoor Council v. Forest Service, the Circuit rejected a challenge to
NEPA compliance by the United States Forest Service after the Service had consented to lease a
specific parcel of land but before the lease had been finalized. 165 F.3d 43, 46 (D.C. Cir. 1999).
The Circuit concluded that the Service had not reached “the point of irreversible and irretrievable
commitment of resources” because at the time the lawsuit was filed, no lease had actually been
issued. Id. at 50.
In one sense, this legal principle is purely commonsensical: no federal agency
can forecast the scope of an action, and the concomitant need for an EIS, until planning is in a
fairly advanced stage. As long as that planning does not obscure or prevent full consideration
and evaluation of environmental impacts, which point underlies the Court’s 2005 Injunction, an
agency’s preference cannot be attacked on subjective grounds.
The Court agrees that Reclamation has been particularly focused on using water
from Lake Sakakawea, with early congressional direction and cheerleading. Congressional
authorization for NAWS was adopted in 1965, before NEPA was enacted on January 1, 1970.
See Act of Aug. 5, 1965, Pub. L. No. 89-108, 79 Stat. 433 (authorizing Reclamation to construct
a project diverting Missouri River water from Lake Sakakawea for irrigation, municipal and
industrial, and other uses in North Dakota); National Environmental Policy Act, 42 U.S.C.
§ 4321 et seq.; see also Garrison Diversion Unit Reformulation Act of 1986, Pub. L. No. 99-294,
100 Stat. 418 (authorizing Reclamation to plan and construct a project providing water to North
Dakota). More recently, Congress amended the law authorizing NAWS, specifying that it does
25
not supersede NEPA and that “[n]o design or construction of any feature or features that
facilitate an out-of-basin transfer from the Missouri River drainage basin shall be authorized
under the provisions of this subsection.” Dakota Water Resources Act of 2000, Pub. L. No. 106-
554, 114 Stat. 2763, § 608(b)(4); see also id. § 608(c)(1) (“Nothing in this section shall be
construed to supersede any requirements under the National Environmental Policy Act or the
Administrative Procedure Act.”).
Thus, these various directives from Congress do not change the purpose of the
Project—water for communities in northwest North Dakota—or NEPA’s requirements that a
federal agency study the environmental impacts of any planned project; evaluate the options,
their potential impacts, and mitigation measures; and then make a reasoned selection among the
options. Reclamation cites the 1965 authorization to explain its focus but the 1965 authorization
has no bearing on whether Reclamation has, today, fulfilled its NEPA obligations.
Manitoba’s concerns do not rise to the level of predetermination. The Court has
already considered, on multiple occasions, the potential environmental impact of construction on
the NAWS project prior to the completion of a final EIS and has issued, and subsequently
modified, a tailored injunction to accommodate competing interests. North Dakota and
Reclamation have complied with the Court’s orders. See Injunction [Dkt. 95] at 5
(accommodating competing interests “by permitting work to proceed to the extent it does not
affect the environment or the NEPA process”); see also March 24, 2006 Minute Order (granting
Defendants’ motion to modify the injunction); March 18, 2010 Minute Order (granting North
Dakota’s unopposed motion to modify the injunction); October 25, 2010 Order [Dkt. 193]
(granting in part and denying in part North Dakota’s motion to modify the injunction); March 1,
2013 Order [Dkt. 208] (modifying order to allow North Dakota to finish the Minot treatment
26
plant upgrade but not permitting any further pipeline construction or contracts); February 7, 2017
Order [Dkt. 273] (granting consent motion to modify injunction to allow upgrades for flood
protection); April 11, 2017 Order [Dkt. 276] (granting North Dakota’s motion to modify
following remand). NAWS construction has been closely monitored by this Court to avoid the
very concerns inherent to predetermination.
More importantly, the fact that Reclamation started with a preference for the
outcome does not require rejection of its 2015 SEIS and ROD, as long as those documents
demonstrate the full consideration of environmental consequences and avoidance of those
consequences, as mandated by the law. See Foxx, 87 F. Supp. 3d at 205-06. Because the Court
finds that the 2015 SEIS and ROD together pass muster under NEPA, it does not find
Manitoba’s complaints concerning predetermination as a basis to reject them.
E. The State of Missouri’s Claims
The State of Missouri joined this lawsuit as a plaintiff in February 2009 and
challenges the 2015 SEIS and ROD for alleged failures to consider thoroughly the effects of
annually withdrawing billions of gallons of water from Lake Sakakawea on the downstream
residents of the Missouri River. Missouri proudly states that it sues as parens patriae on behalf
of its residents. See Missouri’s Mot. Sum. J. at 44. Reclamation opposes Missouri’s attacks on
its studies and conclusions and also contends that Missouri has not shown that it has standing to
sue. See Recl. Mot. Sum. J. at 44-45. Before it can consider the merits of Missouri’s challenges,
the Court must first establish with certainty that it has jurisdiction over the State’s claims.
Missouri bears the burden of establishing its standing. See DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 341 (2006) (stating that courts have an obligation to assure themselves of litigants
standing under Article III). Ultimately, “[i]f a dispute is not a proper case or controversy [under
27
Article III of the United States Constitution], the courts have no business deciding it, or
expounding the law in the course of doing so.” Id. Absent standing, the Court’s exercise of
judicial power “would be gratuitous and thus inconsistent with the Art. III limitation.” Simon v.
E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976).
In this instance, the dispute concerns whether Missouri, in its role as parens
patriae of its residents, can sue the Federal Government.
1. Parens Patriae
Parens patriae is a Latin term with the literal meaning “parent of the country.”
See Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 600 (1982). It
represents a legal doctrine arising in English common law that recognized the inherent sovereign
power and authority of the King to protect persons who were legally unable to act on their own
behalf. See id. The concept has been carried over to the United States and evolved away from
the traditional concept of a state “stepping in to represent the interests of particular citizens who,
for whatever reason, cannot represent themselves.” Id. Quite the contrary, the American
concept of parens patriae requires a state to assert a quasi-sovereign interest, apart from the
interests of particular private parties. Id. at 607.
Missouri v. Illinois provides an early discussion of a state’s right to represent its
residents. 180 U.S. 208 (1901). Missouri sought a remedy from Illinois in the form of “relief
against the pouring of sewage and filth through [a drainage canal], by artificial arrangements,
into the Mississippi river, to the detriment of the state of Missouri and her inhabitants.” Id. at
248. Under those circumstances, the Supreme Court explained:
[I]t must surely be conceded that, if the health and comfort of the
inhabitants of a state are threatened, the state is the proper party to
represent and defend them. If Missouri were an independent and
sovereign state all must admit that she could seek a remedy by
28
negotiation, and, that failing, by force. Diplomatic powers and the
right to make war having been surrendered to the general
government, it was to be expected that upon the latter would be
devolved the duty of providing a remedy, and that remedy, we think,
is found in the constitutional provisions we are considering.
Id. at 241. The referenced “constitutional provisions” are found in the Constitution’s Article III,
section 2, which states: “The judicial power shall extend to all Cases, in Law and Equity, arising
under this Constitution, the Laws of the United States, and Treaties made, or which shall be
made, under their Authority; . . . to Controversies between two or more states.” U.S. Const. art.
III, § 2. Relying on Article III, the Court held that Missouri had standing to sue for an injury to
the “health and comfort of the inhabitants” of the state. Missouri, 180 U.S. at 241.
Massachusetts v. Mellon discussed parens patriae and a state’s role in
representing its residents in the context of a challenge to the Maternity Act, 42 Stat. 224, c. 135
(1921). 262 U.S. 447, 479 (1923). The purpose of the Maternity Act, and a federal bureau
established to receive reports on state use of federal grants, was to reduce maternal and infant
mortality. See id. Under the law, future federal grants would be withheld from states which had
“not . . . properly expended” grant monies, as determined by the bureau. Id. Massachusetts
challenged the unequal apportionment of the grants among the states, i.e. between those that
agreed to comply and those, like Massachusetts, that did not. Id. The Supreme Court found that
Massachusetts could not continue its suit because the case “called upon [the Supreme Court] to
adjudicate, not rights of person or property, not rights of dominion over physical domain, not
quasi sovereign rights actually invaded or threatened, but abstract questions of political power, of
sovereignty, of government.” Id. at 484-85. As pertinent to this lawsuit, the Court continued:
[T]he citizens of Massachusetts are also citizens of the United
States. It cannot be conceded that a state, as parens patriae, may
institute judicial proceedings to protect citizens of the United States
from the operation of the statutes thereof. While the state, under
29
some circumstances, may sue in that capacity 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. In
that field it is the United States, and not the state, which represents
them as parens patriae, when such representation becomes
appropriate; and to the former, and not to the latter, they must look
for such protective measures as flow from that status.
Id. at 485-86 (citation omitted).
Leaping forward to 1982, Alfred L. Snapp & Son, Inc. “involve[d] the 1978 apple
harvest on the east coast . . . [which was] apparently a good year for apples, resulting in a
substantial need for temporary farm laborers to pick the crop.” 458 U.S. at 597. The lawsuit was
brought by the Commonwealth of Puerto Rico for injunctive relief requiring East Coast apple
growers to comply with federal law and for a declaration that the growers had preferred foreign
over domestic laborers, to the detriment of the workers and economy of Puerto Rico and in
violation of federal law. See id. at 598. The question before the Court was whether Puerto Rico
could sue in its role as parens patriae of its resident apple-pickers, although relatively small in
number compared to its entire population. See id. at 599.
Snapp included a lengthy exegesis on the doctrine of parens patriae and how it is
distinguishable from other state’s rights. First, the Court “easily identified” true sovereign
interests of each state: the sovereign power of a state to create and enforce its laws, and the
sovereign power of a state to demand recognition from other sovereigns, which “most frequently
. . . involves the maintenance and recognition of borders.” Id. at 601. Second, the Court
identified two “nonsovereign interests:” a state’s proprietary interests, such as its ownership in
land or a business venture, and the interests of a private party resident in the state, in which case
the state is “no more than a nominal party.” Id. at 601-02. Finally, the Court elaborated on a
third category of distinguishable interests, which it called “quasi-sovereign interests.”
30
Quasi-sovereign interests stand apart from all three of the above:
They are not sovereign interests, proprietary interests, or private
interests pursued by the State as a nominal party. They consist of a
set of interests that the State has in the well-being of its populace.
Formulated so broadly, the concept risks being too vague to survive
the standing requirements of Art. III: A quasi-sovereign interest
must be sufficiently concrete to create an actual controversy
between the State and the defendant.
Id. at 602. In granting standing to Puerto Rico, the Court distinguished that case from
Massachusetts v. Mellon on the basis that Puerto Rico brought suit “against private defendants.”
Id. at 610, n.16. Relying on Massachusetts v. Mellon it further opined that “[a] State does not
have standing as parens patriae to bring an action against the Federal Government.” Id.
Without referencing these earlier decisions, Missouri relies on Massachusetts v.
EPA, 549 U.S. 497 (2007), to support its standing here. See Missouri Mot. Sum. J. at 44-47. In
that case, the Commonwealth of Massachusetts sued the federal Environmental Protection
Agency to require it to engage in rulemaking to regulate greenhouse gas emissions from
automobiles. See Massachusetts v. EPA, 549 U.S. at 504. Massachusetts contended that global
warming was inexorably raising sea levels and injuring the Commonwealth’s coastlines. See id.
at 522. The federal government challenged the Commonwealth’s standing. See id. at 517.
In a decision authored by Justice Stevens, the Supreme Court was persuaded that
global warming is a legitimate scientific prediction and that damage to the Massachusetts
coastline could be foreseen. Id. at 521. It therefore found that Massachusetts had satisfied the
requirements for standing as defined in Lujan v. Defenders of Wildlife, which required that “the
party bringing suit must show that the action injures him in a concrete and personal way.” 504
U.S. 555, 581 (1992); see Massachusetts v. EPA, 549 U.S. at 521.
Specifically, the Supreme Court found that Massachusetts had standing because it
had a “special position and interest,” namely, it “is a sovereign State” rather than a private
31
individual and it “does in fact own a great deal of the territory alleged to be affected.”
Massachusetts v. EPA, 549 U.S. at 518-19 (internal quotation marks omitted). It also suggested
that Massachusetts had a procedural right under the statute:
Congress has ordered EPA to protect Massachusetts (among others)
by prescribing standards . . . . Congress has moreover recognized a
concomitant procedural right to challenge the rejection of its
rulemaking petition as arbitrary and capricious . . . . Given that
procedural right and Massachusetts’ stake in protecting its quasi-
sovereign interests, the Commonwealth is entitled to special
solicitude in our standing analysis.
Id. at 519-20 (citations omitted).8 However, while the majority referred to “quasi-sovereign
interests,” it never once mentioned a role for Massachusetts as parens patriae and never
distinguished or overruled Snapp and its limitations on the doctrine. Rather, the Court appears to
have relied on two other bases to give Massachusetts standing: a nonsovereign proprietary
interest, id. at 519 (finding that “Massachusetts does in fact own a great deal of the” affected
land); and a statutory conferral of standing, id. at 520 (“Congress has . . . recognized a
concomitant procedural right.”). In dissent, Chief Justice Roberts said that there was confusion
in the majority’s standing analysis: “The Court asserts that Massachusetts is entitled to ‘special
solicitude’ due to its ‘quasi-sovereign interests’ . . . ‘in its capacity as a landowner.’ . . . In the
context of parens patriae standing, however, we have characterized state ownership of land as a
‘nonsovereign interest.’” Id. at 539 (Roberts, CJ, dissenting) (quoting Snapp, 458 U.S. at 601).
The Chief Justice added: “On top of everything else, the 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
8
This “procedural right” was directly challenged by the Chief Justice in dissent: “The reader
might think from this unfortunate phrasing that Congress said something about the rights of
States in this particular provision of the statute. Congress knows how to do that when it wants to
. . . but has done nothing of the sort here.” Snapp, 549 U.S. at 537 (Roberts, CJ, dissenting)
(citations omitted).
32
direct injury—against the Federal Government.” Id. Reading the opinion as a whole, and
assuming any omissions to be intentional, the majority’s reference to quasi-sovereign interests
without further elaboration on the doctrine of parens patriae does not suggest, in this Court’s
view, that Justice Stevens intended to rely on parens patriae to grant Massachusetts standing or
to overturn years of case law on the doctrine.
Relevant cases decided by the D.C. Circuit must also be considered. The Circuit
has already ruled that a state cannot proceed as parens patriae when the United States, the
superior “parent of the country,” is the defendant. Commonwealth of Pennsylvania v. Kleppe
illustrates the point. 533 F.2d 668 (D.C. Cir. 1976). In that case, Pennsylvania sued the
Administrator of the Small Business Administration (SBA) over its classification of geographic
areas entitled to SBA relief from a devastating hurricane, which had the result of omitting hard-
hit areas in the Commonwealth. See id. at 670. The D.C. Circuit recognized that “in some
instances a state may . . . sue to vindicate the interests of its citizens.” Id. at 671. However, it
decided that the extent to which a state may sue as a representative of its residents “must be
qualified by [a] statement of the type and extent of the interests to be represented, and of the
defendants against whom the action is brought.” Id. at 673 (emphasis added).
Thus, “when a state seeks to sue either another state, or some branch of the
federal government, significant policy concerns, apart from the injury itself, become relevant in
determining the state’s fitness to bring suit.” Id. at 675-76. Explaining its meaning, the District
of Columbia Circuit added that “these concerns involve the proper allocation of authorities
within the federal system.” Id. at 676. The constitutional underpinning of the relationship
between the states and the Federal Government propels these concerns and thus “important
arguments for denying state standing do exist.” Id. Because the Constitution established a
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strong central government (intended to have constitutional powers broader and with greater
authority than its predecessor under the Articles of Confederation), and also recognized that
“powers not delegated to the United States . . . are reserved to the States,” U.S. Const. amend. X,
both the federal government and the states “act as parens patriae within their separate spheres of
activity.” Kleppe, 533 F.2d at 677. Thus, when it comes to a question of federal law, the issue
devolves to which entity is the appropriate parens patriae.
As expressed in Kleppe, “the state can not [sic] have a quasi-sovereign interest
[when] the matter falls within the sovereignty of the Federal Government.” Id. Discussing
Massachusetts v. Mellon, the District of Columbia Circuit opined “[w]hile it is debatable whether
the Court in that case meant to bar all state parens patriae suits against the Federal Government,
the opinion makes clear at least that the federal interest will generally predominate and bar any
such action.” Id. Quoting Massachusetts v. Mellon, the Court further inferred that by stating,
“‘it is no part of [a state’s] duty or power to enforce [the rights of its citizens] in respect of their
relations with the federal government,’” the Supreme Court seemed to espouse “a flat denial of
state parens patriae power in areas where federal power exists, and thus would bar any such suit
against the Federal Government.” Id. at 677 n.52 (quoting Massachusetts v. Mellon, 262 U.S. at
485-86). Despite inclining “to the view that no asserted state interest in economy or welfare
would support standing to challenge a program running directly between the Federal
Government and the citizens,” the District of Columbia Circuit declined to make such a holding
and limited its ruling to the facts before it. Id. at 679. In regard to Pennsylvania’s claims that the
SBA’s allocation of disaster relief funds was injurious to its citizens, because Pennsylvania’s
complaint would take the Court “very far into the internal workings of a federal agency” and “it
is difficult to see how a state could more substantially intrude itself” into federal operations, the
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Circuit concluded that Pennsylvania had no standing as parens patriae to sue the federal agency.
Id. at 680.
Maryland People’s Counsel v. Federal Energy Regulatory Comm’n, 760 F.2d 318
(D.C. Cir. 1985) (Scalia, J.), enlarged upon this analysis. In that case, the plaintiff challenged a
“natural gas special marketing program established by the Federal Energy Regulatory
Commission.” Id. at 319. Then-Judge Scalia analyzed whether the plaintiff had standing,
relying on precedent to guide the outcome:
A state’s interest in those aspects of the welfare of its citizens
secured and furthered by government—that is, a state’s so-called
“quasi-sovereign” interest—is unquestionably sufficient to confer
standing upon the state as parens patriae. See, e.g., Alfred L. Snapp
& Son, Inc., v. Puerto Rico, 458 U.S. 592 (1982); Missouri v.
Illinois, 180 U.S. 208 (1901). However, “[a] State does not have
standing as parens patriae to bring an action against the Federal
Government,” Alfred L. Snapp & Son, 458 U.S. at 610, n.16 (citing
Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923)).
Id. at 320. Maryland People’s Counsel also cited Kleppe’s denial of standing to Pennsylvania to
sue a federal agency. Id. Ultimately, however, despite these considerations, the Circuit held that
the Maryland People’s Counsel had standing to sue because it was expressly granted standing by
statute. Id. at 250-51 (finding that the statutory provision was “designed to recognize precisely
the interest of the states in protecting their citizens . . . that is, the states’ parens patriae
interest”).
2. Missouri’s Standing Here
Missouri is very clear that it sues in its role as parens patriae on behalf of its
residents. See Missouri Mot. Sum. J. at 44 (“Missouri has standing to bring this lawsuit in its
capacity as parens patriae.”). However, as the prior discussion makes clear, the identity of the
defendant sued by a state as parens patriae is a matter of consequence. Unless Massachusetts v.
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EPA dramatically changed legal doctrine, a state cannot sue the United States in the state’s role
as parens patriae because the United States is the superior “parent of the country.” Missouri’s
reliance on State of Georgia v. Pennsylvania R. Co. is of no consequences as that case “involved
no question of distribution of powers between the State and the national government.” 324 U.S.
439, 445 (1945).
In this Court’s study of the decision, Massachusetts v. EPA did not change these
longstanding limitations on a state’s standing to sue the federal government as parens patriae.
The majority opinion, which indicated solicitude to the Commonwealth, did not discuss parens
patriae or the doctrine’s underpinnings and limitations. Contrary to relying on parens patriae,
the Supreme Court twice noted that Massachusetts owns a substantial portion of its coastal
property, which was sufficient to have “alleged a particularized injury in its capacity as a
landowner.” Id. at 522, see also id. at 519 (stating that Massachusetts owns a great deal of the
affected territory).
This Court recognizes that a state has standing to sue the federal government in
multiple circumstances. The question here, however, is limited to whether Missouri can sue the
federal government as parens patriae of its residents. The Court concludes that the majority
opinion in Massachusetts v. EPA did not speak to the doctrine of parens patriae, without regard
to whatever status the Commonwealth had claimed below. Instead, the opinion carefully
avoided that doctrine, which might have required overruling decades of precedent.
There is no doubt that the Supreme Court is the last word. See Marbury v.
Madison, 5 U.S. 137 (1803). As to this suit, this Court finds that precedent of the Supreme Court
and the District of Columbia Circuit instruct that Missouri cannot sue the Federal Government in
the State’s role as parens partriae. See Snapp, 458 U.S. at 610, n.16 (“A State does not have
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standing as parens patriae to bring an action against the Federal Government.”); Massachusetts
v. Mellon, 262 U.S. at 485-86 (holding “it is no part of [the states’] duty or power to enforce their
rights in respect of their relations with the federal government”); Maryland People’s Counsel,
760 F.2d at 320 (holding that a state does not have standing as parens patriae to bring an action
against the federal government); Kleppe, 533 F.2d at 677 (holding the state cannot “have a quasi-
sovereign interest because the matter falls within the sovereignty of the Federal Government”).
Ultimately, Massachusetts v. EPA did not disturb those precedents.
Because the State of Missouri advances no other basis for its standing, the Court
must conclude that it has no standing in this suit and that the Court has no jurisdiction to
adjudicate its claims. The Complaint filed by the State of Missouri, Dkt. 271, will be dismissed.
CONCLUSION
After several attempts, Reclamation has produced an EIS that fulfills the
requirements of NEPA. Reclamation and North Dakota’s Motions for Summary Judgment,
Dkts. 242 and 243, will be granted, and Manitoba’s Cross-Motion for Summary Judgment, Dkt.
247, will be denied. Missouri’s Complaint, Dkt. 271, will be dismissed for lack of standing and
its Cross-Motion for Summary Judgment, Dkt. 246, will be denied as moot. Accordingly, the
Court’s Injunction, Dkt. 95, shall be lifted. A memorializing Order accompanies this Opinion.
Date: August 10, 2017
/s/
ROSEMARY M. COLLYER
United States District Judge
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