Eighth Circuit Reaffirms That There Is No Right Of Action Under NEPA Prior To Final Agency Action
Published Date: July 10, 2019
Contractors that often do work for the federal government are likely familiar with the National Environmental Policy Act (“NEPA”). NEPA requires federal agencies to prepare an Environmental Impact Statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.” Once an agency issues a final EIS, the federal agency will provide environmental clearance via a Record of Decision (“ROD”). Environmental and other citizens-organizations can attempt to delay or stop a federal project by challenging the processes under which an EIS and/or a ROD are prepared and issued. The Eighth Circuit Court of Appeals recently decided a case presenting the question whether citizen groups must wait until an EIS and ROD are finalized and issued prior to filing suit under NEPA.
In Lakes & Parks Alliance of Minneapolis v. Federal Transit Administration, the plaintiff sued under NEPA trying to stop a federal project which included a proposed transit line connecting downtown Minneapolis to the southwestern Twin Cities suburbs. The plaintiff was a non-profit group of residents who lived in or frequently used the area near the proposed construction site. Plaintiff did not wait for the EIS or ROD to be finalized; instead, the plaintiff sued during the time that the regional transportation agency was preparing the final EIS and seeking approval of each city and county along the proposed route of the transit line, as required by Minnesota law. The defendants filed motions to dismiss on the basis that the final EIS and ROD had not been issued, and therefore, the plaintiff did not have a cognizable cause of action under NEPA. The district court ultimately denied the regional transportation authority’s motion to dismiss in order to preserve a “narrow” cause of action under NEPA to prevent the authority from taking actions that could “eviscerate” any federal remedy later available to the plaintiff. In so doing, the district court relied on a Fourth Circuit case, South Carolina Wildlife Federation v. Limehouse, in which the district court implied a right of action “to stop state action that could render a NEPA violation a fait accompli and eviscerate the federal remedy.”
The Eighth Circuit reversed, reaffirming its prior precedent that NEPA’s statutory text provides no right of action outside of the Administrative Procedure Act for review of final agency action such as the issuance of an EIS or a ROD. The Eighth Circuit found the Limehouse case to be distinguishable for several reasons: “In Limehouse, there was still a federal agency party to the suit, the final EIS and ROD had been issued, and the Fourth Circuit used its own precedent that established that there is standing to assert procedural allegations under NEPA against state defendants in order to preserve the environmental status quo pending federal review.” Because of these distinguishing factors, Limehouse could not be used under Eighth Circuit precedent for the plaintiff’s cause of action, and, therefore, the plaintiff had no cause of action through which it could state a plausible claim.
This Eighth Circuit opinion provides protection against citizen organizations attempting to short-circuit environmental review of federal projects and reaffirms that the organizations have only a cause of action under the Administrative Procedure Act review process once an EIS and/or ROD are issued.