Sierra Club v. U.S. Dept. of Agriculture, et al

Filing

OPINION filed [1438026] (Pages: 12) for the Court by Judge Rogers [12-5095]

USCA Case #12-5095

Document #1438026

Filed: 05/28/2013

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 16, 2013

Decided May 28, 2013
No. 12-5095
SIERRA CLUB,
APPELLEE
v.

UNITED STATES DEPARTMENT OF AGRICULTURE,
RURAL UTILITIES SERVICE, ET AL.,
APPELLEES
SUNFLOWER ELECTRIC POWER CORPORATION,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01860)

Sharon M. Mattox argued the cause for appellant Sunflower
Electric Power Corporation. With her on the briefs were
Thomas S. Meriwether, Carol Dinkins, and N. Beth Emery.
Amanda W. Goodin argued the cause for appellee Sierra
Club. With her on the brief were Kristen L. Boyles and Jan
Hasselman.
Brian C. Toth, Attorney, U.S. Department of Justice, argued
the cause for appellee U.S. Department of Agriculture. With him

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on the brief was Andrew R. Varcoe, Attorney, U.S. Department
of Agriculture.
Before: GARLAND, Chief Judge, and ROGERS and GRIFFITH,
Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Intervenor Sunflower Electric
Power Corporation appeals the grant of summary judgment to
the Sierra Club based on violations of the National
Environmental Policy Act by the U.S. Department of
Agriculture’s Rural Utilities Service. The district court ruled
that the Service unlawfully failed to prepare an environmental
impact statement (“EIS”) before granting approvals and
financial assistance to Sunflower’s expansion of its coal-fired
power plant, and remanded the matter to the Service, enjoining
it from granting further approvals until it completed an EIS. We
dismiss the appeal for lack of jurisdiction. This court lacks
jurisdiction under 28 U.S.C. § 1291 because Sunflower appeals
a non-final remand order that is not immediately appealable by
a private party. This court lacks jurisdiction under§ 1292(a)(1)
because the injunction serves no purpose beyond the remand.
I.
The Rural Electrification Act, 7 U.S.C. §§ 902(a), 904,
authorizes the Secretary of Agriculture to make loans for
improving electric service in rural areas by financing the
construction and operation of power plants. Pursuant to the
Secretary’s delegation of authority, the Service — then known
as the Rural Electrification Administration — provided more
than $540 million in loans and loan guarantees to Sunflower
Electric Cooperative, Inc. (“Old Sunflower”) in 1980, for the
construction of a coal-fired power plant near Holcomb, Kansas.

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Before granting the loan and loan guarantees, the Service
prepared an EIS for the coal-fired plant in accord with the
National Environmental Policy Act, 42 U.S.C. § 4332(2)(C),
which requires an EIS for any “major Federal actions
significantly affecting the quality of the human environment.”
A “major Federal action” is defined to include “projects and
programs entirely or partly financed, assisted, . . . or approved
by federal agencies.” 40 C.F.R. § 1508.18(a).
As of 2002, Old Sunflower still owed hundreds of millions
of dollars and had little prospect of making appreciable
payments. That year the Service consented to a debt settlement
and corporate restructuring pursuant to the Consolidated Farm
and Rural Development Act, 7 U.S.C. § 1981(b)(4), which
authorizes the adjustment, modification, or release of prior loan
agreements. As part of the restructuring, a newly organized
Sunflower Electric Power Corporation (“Sunflower”) acquired
most of Old Sunflower’s assets by issuing promissory notes to
its creditors, including the Service. The 2002 restructuring
enabled Sunflower to pursue developing additional power plants
at the Holcomb site, but required Sunflower to obtain written
approval from the Service before taking certain actions related
to the expansion.
Between 2005 and 2007, the Service approved a series of
agreements between Sunflower and others to develop three new
coal-fired power plants at the Holcomb site. In October 2007,
however, the State of Kansas denied an air quality permit for the
expansion project on the ground that new coal-fired plants
would harm human health and the environment by contributing
to global warming. In 2009 Sunflower negotiated a settlement
agreement with Kansas to allow an expansion project of a single
coal-fired plant. Sunflower has neither sought nor obtained the
Service’s approval of the 2009 settlement agreement.

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Also in October 2007, the Sierra Club sued the Service and
Agriculture Department officials (together, “the Service”),
alleging that they violated the National Environmental Policy
Act by failing to prepare an EIS before approving the 2002
restructuring and subsequent agreements related to the
expansion project. Sunflower intervened by right as a defendant
pursuant to Federal Rule of Civil Procedure 24(a). The district
court granted summary judgment to the Sierra Club, concluding
that the Service’s decisions to provide necessary approvals and
financial assistance for the expansion project constituted “major
Federal actions” requiring an EIS under 42 U.S.C. § 4332(2)(C)
and 40 C.F.R. § 1508.18. Sierra Club v. Dep’t of Agric. (“Sierra
Club I”), 777 F. Supp. 2d 44, 57–64 (D.D.C. 2011).
At the Service’s request, the district court ordered additional
briefing on the appropriate remedy, id. at 68, and, upon review
thereof, granted declaratory and limited injunctive relief. Sierra
Club v. Dep’t of Agric. (“Sierra Club II”), 841 F. Supp. 2d 349,
352, 364 (D.D.C. 2012). The district court denied the Sierra
Club’s and the Service’s requests that Sunflower be ordered to
seek Service approval of the 2009 settlement agreement, as
neither that agreement nor the continuing validity of the earlier
2007 approvals were before the district court, id. at 357. It also
denied the Sierra Club’s request that Sunflower be enjoined
from commencing construction or entering other arrangements
for the expansion project, id. at 360–62. Instead, the district
court enjoined the Service from issuing any further “approvals
or consents for agreements or arrangements directly related to,”
or taking “any other major federal actions in connection with,”
the expansion project without first completing an EIS. Id. at
360. With the injunction, and the Service’s “emphatic
conclusion that Sunflower must seek additional approvals” from
it before the expansion project could proceed, id. at 362, the
district court concluded that there was no need to vacate the
2002 restructuring or 2007 approvals. Id. at 362–63. The

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district court remanded the matter to the Service “to determine
what further action, if any, is necessary.” Id. at 364.
The Service and Sunflower timely appealed, but the Service
abandoned its appeal and moved to dismiss Sunflower’s appeal
for lack of jurisdiction.
II.
“Because this court may not proceed without appellate
jurisdiction, we must address the motion to dismiss before
considering the arguments on the merits.” Pueblo of Sandia v.
Babbitt, 231 F.3d 878, 880 (D.C. Cir. 2000) (citing Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)).
A.
“The jurisdiction of a Court of Appeals under 28 U.S.C.
§ 1291 extends only to ‘appeals from . . . final decisions of the
district courts.’” Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011)
(quoting 28 U.S.C. § 1291). “It is black letter law that a district
court’s remand order is not normally ‘final’ for purposes of
appeal under 28 U.S.C. § 1291.” N.C. Fisheries Ass’n v.
Gutierrez, 550 F.3d 16, 19 (D.C. Cir. 2008); Pueblo of Sandia,
231 F.3d at 880. This rule promotes judicial economy and
efficiency by avoiding the inconvenience and cost of two
appeals: one from the remand order and one from a later district
court decision reviewing the proceedings on remand. Pueblo of
Sandia, 231 F.3d at 880 (citing In re St. Charles Preservation
Investors, Ltd., 916 F.2d 727, 729 (D.C. Cir. 1990)). It also
leaves open the possibility that an appeal may prove
unnecessary if the remanded proceedings satisfy all parties. Id.
“[T]here is a limited exception permitting a government
agency to appeal immediately [from a remand order under
§ 1291], but that path is not normally available to a private

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party.” N.C. Fisheries Ass’n, 550 F.3d at 19–20 (internal
citations omitted); N. Air Cargo v. USPS, 674 F.3d 852, 857
(D.C. Cir. 2012); Am. Hawaii Cruises v. Skinner, 893 F.2d 1400,
1402 n.* (D.C. Cir. 1990). The reason for this asymmetry is that
a government agency cannot later challenge its own actions
complying with a remand order, whereas a private party
dissatisfied with the action on remand may still challenge the
remanded proceedings — as well as the remand order requiring
them — after the proceedings are complete. See Lakes Pilots
Ass’n, Inc. v. U.S. Coast Guard, 359 F.3d 624, 625 (D.C. Cir.
2004); NAACP v. U.S. Sugar Corp., 84 F.3d 1432, 1436 (D.C.
Cir. 1996); Occidental Petroleum Corp. v. SEC, 873 F.2d 325,
330–32 (D.C. Cir. 1989).
The collateral order doctrine, invoked by Sunflower, is a
“practical construction” of § 1291, Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 867 (1994), that allows
appeal of a “small category” of rulings “that are conclusive, that
resolve important questions separate from the merits, and that
are effectively unreviewable on appeal from the final judgment
in the underlying action,” Mohawk Indus., Inc. v. Carpenter, 558
U.S. 100, 106 (2009) (quoting Swint v. Chambers Cnty.
Comm’n, 514 U.S. 35, 42 (1995)). Sunflower maintains that its
appeal fits within the doctrine because the district court
conclusively ruled that certain Service actions qualified as major
federal actions requiring an EIS, and its interests “‘will be
irretrievably lost in the absence of an immediate appeal,’”
Appellant’s Br. at 18–19 (quoting Occidental, 873 F.2d at 329).
The Supreme Court, however, has repeatedly emphasized the
narrow and modest scope of the collateral order doctrine, see
Will v. Hallock, 546 U.S. 345, 350 (2006), which “must ‘never
be allowed to swallow the general rule that a party is entitled to
a single appeal, to be deferred until final judgment has been
entered,’” Mohawk, 558 U.S. at 106 (quoting Digital Equip.
Corp., 511 U.S. at 868). This court, in turn, has consistently

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declined invitations to apply the doctrine to private-party
appeals from remand orders. See N.C. Fisheries Ass’n, 550 F.3d
at 20 n.5; Lakes Pilots Ass’n, 359 F.3d at 625; Am. Hawaii
Cruises, 893 F.2d at 1403. We decline Sunflower’s invitation
to extend the collateral order doctrine here.
Sunflower fails to cite a single case in its favor and neither
establishes that the district court resolved important questions
separate from the merits, nor demonstrates that the district
court’s decision will be unreviewable in a future appeal. For
example, if the Service imposes environmental conditions on the
expansion project and ultimately withholds additional approvals
on environmental grounds, Sunflower can appeal and renew its
argument that the Service lacks such authority. Or if the Service
grants additional approvals and the Sierra Club or another
plaintiff challenges the EIS as inadequate, then Sunflower can
intervene as of right and, if the plaintiff prevails, argue on
appeal that the adequacy of the EIS is irrelevant because the
Service’s minor approvals over the years did not constitute, by
accumulation, “major Federal actions” under 42 U.S.C.
§ 4332(2)(C). The remanded proceedings may, “as a practical
matter,” prevent Sunflower from raising some of its objections
to the district court’s decision in a subsequent appeal, but “the
mere identification of some interest that would be ‘irretrievably
lost’ has never sufficed” to invoke the collateral order doctrine,
Digital Equip. Corp., 511 U.S. at 872, and Sunflower’s
contention is not “an appealing prospect for adding to it,” id. at
871. To the extent Sunflower objects that, even if it ultimately
receives the approvals it seeks, it will have been injured by the
“cost and delay” resulting from the Service’s preparation of an
EIS, Reply Br. 3, the Supreme Court has instructed that “the
strong bias of § 1291 against piecemeal appeals almost never
operates without some cost.” Id. at 872. And this court has
recognized that although § 1291 inevitably results in some
delay, “Congress has determined that such delay must be

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tolerated.” Salazar ex rel. Salazar v. District of Columbia, 671
F.3d 1258, 1261 (D.C. Cir. 2012).
Both the Ninth and Eighth Circuits have held that a district
court order remanding for preparation of an EIS does not
constitute a “final decision” appealable by a private party under
the collateral order doctrine or 28 U.S.C. § 1291 more generally.
See Pit River Tribe v. USFS, 615 F.3d 1069, 1074–77 (9th Cir.
2010); Izaak Walton League of America v. Kimbell, 558 F.3d
751, 762–63 (8th Cir. 2009). The reasoning of those cases
applies here. As in Pit River Tribe, 615 F.3d at 1076, Sunflower
“will have an opportunity to participate in the [Service’s
environmental review] processes on remand,” and if the Service
grants Sunflower the approvals it seeks, then “any decision by
this court may prove entirely unnecessary.” Although, as
Sunflower notes, the Ninth Circuit allowed a private-party
appeal in Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th
Cir. 2011), the circumstances of that case do not apply here. In
Sierra Forest Legacy, a remand was ordered to cure a deficiency
in an EIS, the agency prepared a draft supplemental statement
before the appeal was heard, and the appellant maintained that
neither the district court order nor the draft supplemental EIS
addressed the alleged violations, id. at 1174–75. On these
unique facts, the Ninth Circuit distinguished Pit River Tribe and
concluded that the remand order was effectively final under
§ 1291 because “the work of both the district court and the
agency is complete.” Id. at 1176. The same is not true here.
As an alternative basis for jurisdiction under § 1291,
Sunflower contends that the remand order is final because it
leaves “nothing for [the Service] to do.” Appellant’s Br. 16.
“[S]everal courts, including this one, have noted that remand
orders may be considered final where a court remands for solely
‘ministerial’ proceedings.” Pueblo of Sandia, 231 F.3d at 881.
Sunflower relies on Skagit County Public Hospital Dist. No. 2

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v. Shalala, 80 F.3d 379, 384 (9th Cir. 1996), and Ringsby Truck
Lines, Inc. v. United States, 490 F.2d 620, 624 (10th Cir. 1974).
In those cases, however, further agency action on remand was
effectively precluded, whereas here the Service may prepare an
EIS and consider additional approvals related to the expansion
project. If Sunflower attempts to commence construction on the
expansion project without obtaining additional Service approval,
then the Service may seek to enjoin construction based on
breach of contract, see Sierra Club II, 841 F. Supp. 2d at 357.
Each of these actions would entail significant discretion on the
part of the Service. Thus, as in Pueblo of Sandia, 231 F.3d at
881, “the district court’s remand order contemplates more than
[a] ministerial act.”
In sum, Sunflower’s contentions “do[] not hold up under the
broad scrutiny to which all claims of immediate appealability
under § 1291 must be subjected,” Digital Equip. Corp., 511 U.S.
at 871, and, for the following reasons, its invocation of
§ 1292(a)(1) also fails under our precedent.
B.
One statutory exception to the “final decision” requirement
is § 1292(a)(1), which permits appeal from “[i]nterlocutory
orders of the district courts . . . granting, continuing, modifying,
refusing or dissolving injunctions.” “Because § 1292(a)(1) was
intended to carve out only a limited exception” to the general
policy against piecemeal review, the Supreme Court has
“construed the statute narrowly,” Carson v. Am. Brands, Inc.,
450 U.S. 79, 84 (1981), and approached it “somewhat gingerly
lest a floodgate be opened,” Switzerland Cheese Ass’n, Inc. v. E.
Horne’s Mkt., Inc., 385 U.S. 23, 24 (1966). This court, while
acknowledging that articulating the scope of § 1292(a)(1) is
“resistant to brief summary,” has explained that if a district court
order “clearly grant[s] or den[ies] a specific request for
injunctive relief . . . it falls within the plain text of § 1292(a)(1)

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and is appealable without any further showing.” Salazar, 671
F.3d at 1261 (internal quotation marks omitted). And even if
the terms of the order do not grant or deny a specific request for
an injunction, the order may still be appealable if it has the
“practical effect” of doing so. Id. (quoting Carson, 450 U.S. at
83). At the same time, our precedent instructs that, for purposes
of determining whether a district court order is immediately
appealable, entry of a specific remedy does not always change
the overall character of the order as a remand. See Cnty. of Los
Angeles v. Shalala, 192 F.3d 1005, 1011–12 (D.C. Cir. 1999).
In such instances, this court will “construe [the district court’s
order] as a remand . . . and ignore, for jurisdictional purposes, its
later order on specific relief.” Id. at 1012; see also N. Air
Cargo, 674 F.3d at 857.
The district court granted some of the injunctive relief
requested by the Sierra Club and the Service. See Sierra Club
II, 841 F. Supp. 2d at 357–60. It enjoined the Service from
issuing “any approvals or consents for agreements or
arrangements directly related to the Holcomb Expansion Project,
or [taking] any other major federal actions in connection with
the Holcomb Expansion Project, until an EIS is complete.” Id.
at 360, 363–64. Sunflower consequently maintains that the
district court decision is appealable as an interlocutory order
under § 1292(a)(1). Nonetheless, the Service contends that the
limited injunction, which is directed against the Service rather
than Sunflower, does not provide a basis to review Sunflower’s
appeal under § 1292(a)(1). Relying on County of Los Angeles,
the Service maintains that “[a]n injunction like the one here that
does nothing more than provide more detail to the parameters of
a remand order is, in substance, treated as a remand for purposes
of Section 1291 and thus is not immediately appealable by a
private intervenor.” Gov’t Resp. Br. 11.

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The district court declined to vacate the Service’s prior
approvals or to enter an injunction against Sunflower. See
Sierra Club II, 841 F. Supp. 2d at 361–63. Instead, it granted
declaratory relief, entered a limited injunction against the
Service, and remanded the matter to the Service for further
proceedings. See id. at 363–64. Notably, the Service had
requested the injunctive relief in its supplemental briefing in the
district court. See id. at 359–60 & n.8. At the time, the Service
was still contesting the district court’s grant of summary
judgment to the Sierra Club for failure to prepare an EIS and
planned to appeal, but wanted to ensure that the expansion
project did not commence until any necessary EIS had been
completed. On appeal, the Service has acquiesced in the merits.
At oral argument, its counsel agreed that, pursuant to the
judgment of the district court, the Service must prepare an EIS
if Sunflower seeks additional approvals for the expansion
project, and committed that the Service would do so on remand
even absent the injunction. Oral Arg. Recording at 32:50-33:33.
(Neither the Sierra Club nor Sunflower suggest that those
representations were made in bad faith.) Consequently, the
Service maintains that the injunction serves no additional
purpose beyond the remand order.
In a similar case, the Eighth Circuit held that it lacked
jurisdiction under § 1292(a)(1) where a defendant-intervenor,
rather than the defendant agency, sought to appeal a district
court order enjoining the agency from taking further action until
it prepared an EIS. See Izaak Walton League, 558 F.3d at 763.
Here, as in that case, “[e]ven if the district court had not granted
[injunctive] relief, or if this court now vacated the injunction,”
the Service could still withhold further approvals for
Sunflower’s expansion project until completion of an EIS. Id.
Allowing Sunflower’s private-party appeal from the remand
order, based on a limited injunction entered against the Service,
would be to permit an end run around the § 1291 finality

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requirement and the “general congressional policy against
piecemeal review.” Carson, 450 U.S. at 84.
Accordingly, because the injunction against the Service
serves no function beyond the remand order, and pursuant to
County of Los Angeles this court must ignore the injunction for
jurisdictional purposes, we dismiss Sunflower’s appeal for lack
of jurisdiction. We thus can express no position on the merits of
the injunction or Sunflower’s contention that the Sierra Club’s
case was moot when filed. “If we lack jurisdiction, we cannot
vacate the district court’s order for lack of jurisdiction because
we lack the power to do so.” Defenders of Wildlife v.
Perciasepe, ___ F.3d ___, 2013 WL 1729598, at *8 (D.C. Cir.
April 23, 2013).

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