| August 23, 1994, Decided
SUBSEQUENT HISTORY: Certiorari Denied May
15, 1995,
PRIOR HISTORY: Appeals from the United States District Court for the
Southern District of Florida. (No. 88-1886-CIV-WHM). Wm. M. Hoeveler, Judge.
DISPOSITION: REMANDED.
CORE TERMS: water, consent decree, federal action, state law, water
quality, nonfederal, nutrient, numeric, right to intervene, remedial measures,
restoration, involvement, federal agencies, federal statute, federal agency,
justiciability, sovereignty, regulations, federalize, injunction, remedial, conform,
ecosystems, polluted, diverted, wildlife, Eleventh Amendment, subject matter jurisdiction,
administrative forum, general jurisdiction
COUNSEL: For WEST PALM BEACH, COUNTY FARM BUREAU, ROTH FARMS, K.W.B.
FARMS (92-4314): Robert P. Smith, Tallahassee, FL. For CITY OF CLEWISTON, CITY OF BELLE
GLADE (92-4314): Robert H. Blank, Karl E. Hall, Jr., Miami, FL. For FLORIDA SUGAR CANE
LEAGUE (92-4314): William L. Earl, Osmer D. Batcheller, Judith S. Kavanugh, Miami, FL.
For USA (92-4314): David C. Shilton, Ellen J. Durkee, Appellate Section, Environment
Division, Department of Justice, Washington, D.C. Susan Hill Ponzoli, Miami, FL. For FAS,
SC, NWF, FWF, DOW, ASOTE, WS, NPACA, TCEC, FKCC, EDF (92-4314): Robert G. Dreher, Sierra
Club Legal Defense Fund, Washington, DC. David Guest, Sierra Club Legal Defense,
Tallahassee, FL. For FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION: David A. Crowley,
Robert G. Gough, Dept of Env., Tallahassee, FL. For SOUTH FLORIDA WATER MANAGEMENT
(92-4314): Paul L. Nettleton, R. Benjamine Reid, Miami, FL. Abner T. Cooper, SOUTH FLORIDA
WATER MANAGEMENT DISTRICT, West Palm Beach, FL. For MICCOSUSKEE TRIBE (92-4314): Eric C.
Christu, CARLTON, FIELDS, WARD, ET AL., West Palm Beach, FL. Jerry C. Straus, HOBBS,
STRAUS, DEAN & WILDER, Washington, D.C. For FLORIDA KEYS CITIZENS COALITION, INC.
(92-4314): Thomas W. Reese, St. Petersberg, FL. For WPB COUNTY FARM, BUREAU, ROTH FARMS
AND K.W.B. FARMS (92-4314): Robert P. Smith, Tallahassee, FL.
JUDGES: Before BLACK, Circuit Judge, DYER, Senior Circuit Judge, and
ALAIMO, * Senior District Judge.
* Honorable Anthony A. Alaimo, Senior U.S. District Judge for the Southern District of Georgia, sitting by designation.
OPINION BY: DYER, Senior Circuit Judge:
The Intervenor defendants appeal an interlocutory order granting an injunction entered by
the district court in its Order Entering Settlement Agreement as Consent Decree. They
assert lack of jurisdiction and a host of other issues that exceed the scope of their
limited right to intervene granted by the prior panel in this case. On the cross-appeal of
the United States, the government appeals the judgment of the district court that an
impact statement pursuant to the National Environmental Policy Act of 1969
("NEPA"), 42 U.S.C. § 4321 et seq. (1970), is required. We affirm in
part, reverse in part, and remand for further proceedings.
I. JURISDICTION
Standard of Review
The question of jurisdiction requires this court to satisfy itself not
only of its own jurisdiction but also of the jurisdiction of the district court. Bender
v. Williamsport Area Sch. Dist., 475 U.S. 534, 541-42, 106 S. Ct. 1326, 1331-32, 89
L. Ed. 2d 501 (1986).
Basis of Appellate Jurisdiction
This court has jurisdiction over this appeal pursuant to 28 U.S.C.A. §
1292(a)(1) (West Supp.1992), which grants circuit courts jurisdiction over interlocutory
orders of district courts in granting, continuing, modifying, refusing or dissolving
injunctions. Although interlocutory in nature, the Consent Decree is effectively
dispositive of all claims below.
Order on Appeal
The Consent Decree approves a Settlement Agreement executed by two State
agencies, the South Florida Water Management District ("SFWMD"), the Florida
Department of Environmental Regulation ("DER"), and the United States. The
Intervenor defendants, City of Belle Glade, City of Clewiston, Western Palm Beach County
Farm Bureau, Inc., Florida Sugar Cane League, Inc., Roth Farms, Inc., KWB Farms and the
Florida Fruit & Vegetable Association (hereinafter collectively referred to as the
"Intervenors") are not parties to the Settlement Agreement.
Intervening Legislative Act
During the pendency of this appeal, the Everglades Forever Act,
chapter 94-115, to be codified at section 373.4592, Florida Statutes (Supp.1994), was
passed by the Florida legislature on April 15, 1994, and became effective when signed by
the Governor on May 3, 1994.
Issues Presented
The issue on the Intervenors' appeal is limited to the question of whether
the district court or this court has Article III case or controversy jurisdiction of the
United States' claim of rights and remedy pursuant to 28 U.S.C. §§ 1331 and 1345. The
Intervenors have raised issues on this appeal that exceed the scope of their limited right
to intervene granted by this Court in United States v. S. Fla. Water Management Dist.,
922 F.2d 704, 706 (11th Cir.), cert. denied, U.S., 112 S. Ct. 407, 116 L. Ed. 2d
356 (1991). In both their briefs and at oral argument the Intervenors evidenced no
appreciation for the limited extent of their participation in this litigation. The
Intervenors' sole right is to raise jurisdiction as an issue with respect to Count 1
of the complaint 1.This
Court previously held that the Intervenors had the right to intervene "solely by
reason of the issues raised in Count 1" of the complaint. Id. The grant of
intervention was premised on the Court's concern that the United States sought in Count 1
to have the district court translate narrative water quality standards into numeric
limits. Id. at - , 112 S. Ct. at 708-09. In the initial appeal, it was not
even clear that the United States' complaint sought to have the district court set a
numeric standard. See id. at n. 6, 112 S. Ct. at 708 n. 6 ("In
fairness to the District Court, we note that the United States claimed in that forum that
it was not seeking a numeric standard" (emphasis added)). Thus, our prior
opinion clearly limits the Intervenors' right to intervene solely to the extent that the
district court's resolution of this case might actually set a numeric standard. But the
district court did not set such limits in resolving the case. Instead, the United States
and the State defendants settled their differences by agreeing to return the setting of
numeric limits to the State administrative forum.
By arguing the many issues in which the Intervenors lack standing, they have required this
Court to expend much time and effort which was entirely unnecessary.
The Everglades and the Refuge
The Everglades is a limestone depression filled with grass and thick
organic deposits from a broad southbound sheet of water. There are some 14 miles of canals
and levees, dikes, pumps and water storage areas. This water system artificially
transports water throughout the Kissimmee, Okeechobee and Everglades basins. Vast
quantities of waters are delivered to the Loxahatchee National Wildlife Refuge and the
Everglades National Park. One of the largest consumers of water south of Lake Okeechobee
is the agri-industry located within a 700,000 acre basin called the Everglades
Agricultural Area ("EAA"). The EAA lies south of Lake Okeechobee between the
lake and the water conservation area. The Park provides sanctuary to rare, threatened and
endangered species of wildlife. The Park has diverse and complex ecosystems that require
non-polluted, low nutrient waters for their ecological integrity.
The Refuge is a remnant of the original Northern Everglades, and has the same diversity of
marsh habitat. It is also a sanctuary to unique wildlife species. Low nutrient waters are
also required in the Refuge to preserve its native habitat.
Large quantities of polluted waters have resulted in the destruction of lower forms of
aquatic life essential to the preservation of the sensitive ecosystems in the Park and
Refuge.
Procedural History
Count 1 of the government's complaint alleges that both DER and SFWMD have
failed to exercise their power and responsibilities and failed to enforce State water laws
in (a) regulating polluted water from the EAA that contain harmful nutrients, (b) failing
to prevent violations of State water quality standards for water entering the Park and
Refuge, and (c) having deliberately and consistently diverted polluted waters into the
Refuge.
Count 2 alleges that SFWMD has violated State statutory and common law by operating
unpermitted structures.
Count 3 alleges that SFWMD breached a contract with the United States Corps of Engineers
which sets forth water quality standards for deliveries to the Park to insure that surface
waters are of sufficient purity to prevent ecological damage to the Park.
Count 4 alleges that SFWMD breached a 50-year contract with the United States under which
it was agreed that the Service should use the property there delineated as a wildlife
management area to promote the conservation of wildlife, fish and game.
The relief prayed for by the government is, inter alia, that DER and SFWMD be
mandated to carry out their statutory duties to enforce all applicable water quality
standards in waters diverted to the Park and Refuge, and to act within their authority to
insure that the waters delivered to the Park and Refuge conform to the requirements of the
1984 and 1951 contracts.
The defendants DER and SFWMD denied that the district court has federal question
jurisdiction under 28 U.S.C. § 1331 or subject matter jurisdiction under section 1345;
that there is no case or controversy under Article III of the Constitution; nor is there
any federal statute authorizing such action, or a Florida statute under which the State
agencies have clearly consented to the suit. The defendants also asserted that the State's
administrative remedies provide an adequate remedy at law.
After years of lengthy, complex, and acrimonious litigation, the United States, DER and
SFWMD resolved all of their respective claims against each other by entering into a
Settlement Agreement which the district court approved and entered as a Consent Decree. In
a lengthy Memorandum Opinion and Order, United States v. S. Fla. Water Management
Dist., 847 F. Supp. 1567 (S.D.Fla.1992), the district court exhaustively reviewed and
then approved the terms of the Agreement as fair, adequate and reasonable. The Agreement
is not self-executing in that its provisions are to be carried out in accordance with Florida law and procedures.
DISCUSSION
The decisive issue on this appeal is whether the district court has
jurisdiction to entertain this action.
The Intervenors attack as fundamental error in the entry of the Consent Decree the court's
lack of jurisdiction. The district court held it had jurisdiction of this action primarily
because 28 U.S.C. § 1345 unequivocally grants jurisdiction without regard to the subject
matter of the litigation. The Intervenors challenge the court's jurisdiction, arguing that
there is no case or controversy.
28 U.S.C. § 1345 -- Subject Matter Jurisdiction
The district court held that:
the Court's jurisdiction over this case is predicated primarily, though
not exclusively, upon 28 U.S.C. § 1345: "Except as otherwise provided by Act of
Congress, the district courts shall have original jurisdiction of all civil actions, suits
or proceedings commenced by the United States, or by any agency or officer thereof
expressly authorized to sue by Act of Congress.
The district court went on to say:
Under § 1345, the mere presence of the United States as a plaintiff in this case is
enough to vest this Court with jurisdiction absent Congressional authority clearly
indicating otherwise.
* * * * * *
It is also evident from the statutory language that ... a clear Act of Congress is
required to divest district courts of their jurisdiction over actions commenced
by the United States. The phrase "Except as otherwise provided by Act of Congress,'
at the beginning of the section was inserted to make clear that jurisdiction exists
generally in district courts in the absence of special provisions conferring it elsewhere.
S. Fla. Water Management Dist., 847 F. Supp. 1567 (S.D.Fla.) (emphasis in the
original).
The Intervenors concede, as they must, that there is no subject matter bar as such to
United States' suits against the States. See United States v. Marchetti, 466 F.2d
1309, 1313 (4th Cir.), cert. denied, 409 U.S. 1063, 93 S. Ct. 553, 34 L. Ed. 2d
516 (1972); United States v. California, 328 F.2d 729, 732 (9th Cir.), cert.
denied, 379 U.S. 817, 85 S. Ct. 34, 13 L. Ed. 2d 29 (1964); United States v.
Puerto Rico, 551 F. Supp. 864, 865 (D.P.R.1982), aff'd., 721 F.2d 832 (1st
Cir.1983); 14 Charles A. Wright et al., Federal Practice and Procedure § 3651
(1985). The Intervenors submit, however, that Section 1345 "simply assigns to the
district court, it does nothing to create or define the jurisdiction created by Article
III." We disagree.
When there is justiciability, the United States may, under section 1345, sue in the
federal court irrespective of subject matter. In the seminal case of Flast v. Cohen,
392 U.S. 83, 94-95, 88 S. Ct. 1942, 1949-50, 20 L. Ed. 2d 947 (1968), the Supreme Court
defined "case or controversy" as used in Article III of the Constitution:
Embodied in the words "cases" and "controversies" are two
complementary but somewhat different limitations. In part those words limit the business
of the federal courts to questions presented in an adversary context and in a form
historically viewed as capable of resolution through the judicial process. And in part,
those words define the role assigned to the judiciary in a tripartite allocation of power
to assure that the federal courts will not intrude into areas committed to other branches
of government. Justiciability is the term of art employed to give expression to the dual
limitation placed upon federal courts by the case-and-controversy doctrine.
We explore the application of this doctrine to this case.
Case or Controversy
Preliminarily, to define the issues in Count 1, it is important to consider what the
district court did and what it did not do. This is because the thrust of the Intervenors'
argument is that this is simply "litigation to coerce the making of State regulations
that a federal judge deems suitable under State law for United States' property
interests." We do not accept this as a correct statement of the issue involved.
Rather, as the district court explained: "Nothing in this Agreement is intended to
abrogate the District's and DER's duties to act in accordance with Florida law. Indeed,
the Agreement requires the District and DER to fulfill their obligations under existing
state law." 847 F. Supp. at 1572. The district court concluded that "the
Agreement does no more than set in motion a process. . . . The Agreement effects a
transfer of these proceedings to a state administrative forum." Id. at 1582.
The government's amended complaint did not seek, nor does the Consent Decree provide, that
the government's role is to force the State to compose or enforce stricter State law
regulations. On the contrary, the Agreement commits the State to perform certain remedial
measures which are fully authorized by State law. The essence of the Agreement is to
achieve compliance with State law.
This background dictates that the narrow issue before us is whether the district court has
jurisdiction of this suit brought by the United States, as a proprietary owner of the Park
and Refuge, to protect its property from the nutrient pollution emanating from the EAA, by
requiring the State agencies to carry out their State statutory duties to enforce the
applicable water quality standards in waters diverted to the Park and Refuge.
Focusing on Article III, Section 2, of the Constitution which extends the federal judicial
power to "controversies to which the United States shall be a party," the
Intervenors argue that the settling parties are free to enter into any agreement that they
may choose, but the district court may not enter such an agreement as a consent decree
unless it is founded upon a federal statute or constitutional right.
To support this position, the Intervenors rely on restrictions on federal suits against
states based on the powers granted to Congress and the residual state powers under the
Tenth Amendment. They point to cases which strike down as unconstitutional an intrusion by
Congress into the lawmaking functions of the states, and argue by analogy that the same
principles apply to Article III jurisdiction. See New York v. United States,
U.S. , 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992)
(under the Tenth Amendment Congress may not compel the states to enact or administer a
federal regulatory program); Gregory v. Ashcroft, 501 U.S. 452, 460-66, 111 S.
Ct. 2395, 2401-03, 115 L. Ed. 2d 410 (1991) (requiring "plain statement"
in acts of Congress to override state decisions); Will v. Mich. Dept. of State Police,
491 U.S. 58, 65, 109 S. Ct. 2304, 2309, 105 L. Ed. 2d 45 (1989) (requirement of a clear
statement in legislation with intent to affect the federal balance); Garcia v. San
Antonio Metro. Transit Auth., 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985)
(category of "traditional governmental function" is untenable standard for
judicial decisions regarding state immunity under the Commerce Clause).
Intervenors submit that Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984) condemns a federal court in instructing state
officials on how to conform their conduct to state law. We observe that the court was
there called upon to determine whether the claim against the petitioners in carrying out
their official duties violated state law and, therefore, is a claim against the
state barred by the Eleventh Amendment. There is no suggestion in the case sub judice
that the Consent Decree violates state law. On the contrary, its object was to
require adherence to state law.
Next, the Intervenors draw our attention to Kasper v. Bd. of Election Comm'rs of City
of Chicago, 814 F.2d 332 (7th Cir.1987), where the court quoted Pennhurst,
465 U.S. at 106, 104 S. Ct. at 911: "It is difficult to think of a greater intrusion
on state sovereignty than when a federal court instructs state officials on how to conform
their conduct to state law." 814 F.2d at 342. Intervenors extrapolate this language
as being applicable to this case. We find it to be clearly out of context. The court made
it crystal clear in Kasper that "the Republican plaintiffs' complaint
contends that the Board has neglected its duties under state law. Yet, the decree does not
stop with perfecting the Board's adherence to state law and exercising such discretion as
the Board possesses. It commits the Board to violate state law." Id.
at 341 (emphasis in the original). There is not a whisper of a suggestion that in this
case the government is attempting to require the State to violate the law.
The Intervenors concede that the Tenth Amendment is not a limitation on Article III
jurisdiction in this case, nor is it argued that the Eleventh Amendment has any
applicability. We do not perceive how these cited decisions are helpful in determining
whether there is a controversy question in this case.
Next, the Intervenors rely on cases in which citizens sue the federal or state sovereigns
and the integrity of separated powers of reserved sovereignty is continually reaffirmed.
They argue that these principles are not different when the United States sues a state.
Such cases are Allen v. Wright, 468 U.S. 737, 104 S. Ct. 3315, 82 L. Ed. 2d 556
(1984); City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d
675 (1983); O'Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674
(1974). But these cases are bottomed on the plaintiff's lack of injury in not satisfying
the "case or controversy" requirement. Allen held that in a citizen's
suit the plaintiff must allege personal injury fairly traceable to the defendant's
allegedly wrongful conduct. Lyons declared that to satisfy the "case or
controversy" requirement of Article III, "the plaintiff must show that he
"has sustained, or is in immediate danger of sustaining, some direct injury' as a
result of the challenged official conduct." 461 U.S. at 101-02, 103 S. Ct. at 1665. O'Shea
was a citizens' civil rights suit "where none of the named plaintiffs ... [has]
suffered any injury." 414 U.S. at 495, 94 S. Ct. at 676.
Here it is alleged with specificity the direct and continuing injury and damage to the
ecosystems of the Park and Refuge because of nutrient water flowing from the EAA which
could have been, and should be, prevented by the State agencies acting to enforce their
own laws and regulations.
Intervenors next argue that Firefighters Local Union No. 1784 v. Stotts, 467 U.S.
561, 104 S. Ct. 2576, 81 L. Ed. 2d 483 (1984) and System Fed'n No. 91 v. Wright,
364 U.S. 642, 81 S. Ct. 368, 5 L. Ed. 2d 349 (1961) demonstrate the inappropriateness of
the Consent Decree. We find these cases inapposite. Firefighters was a Title VII
case concerned with an injunction entered outside of the scope of the consent decree. System
Fed'n was concerned with a change of statutory law that was in conflict with the
terms of the consent decree. The court there held that it must be free to modify the terms
of the consent decree where a change in the law brings those terms in conflict with
statutory law. 364 U.S. at 651-53, 81 S. Ct. at 373-74.
Finally, the Intervenors insist that there is no case or controversy in the district court
because the action is not based on a constitutional right or a federal statute. We have
found no authority to support this broad statement. On the contrary, in United States
v. California, 328 F.2d 729 (9th Cir.1964), the court stated that "the
Constitution grants . . . jurisdiction . . . over civil suits brought by the United States
against a State without specific consent regardless of the nature of the controversy,
provided the issue is justiciable. . . ." Id. at 731. The court
pointed out in United States v. Hill, 224 U.S. App. D.C. 138, 694 F.2d 258
(D.C.Cir.1982) that "although other special jurisdictional provisions may also give
the district court jurisdiction over some cases brought by the United States, the
government need not have any specific statutory authorization for a particular action
inasmuch as general jurisdiction is conferred by Section 1345." Id. at 268
(emphasis in original). Again, in United States v. Marchetti, 466 F.2d 1309 (4th
Cir.), cert. denied, 409 U.S. 1063, 93 S. Ct. 553, 34 L. Ed. 2d 516 (1972), the
court held that jurisdiction arises from the United States as a party. "The
government can sue even if there is no specific authorization. In such cases, however, it
must have some interest to be vindicated sufficient to give it standing." Id.
at 1313.
In 14 Charles A. Wright et al., Federal Practice and Procedure § 3651 (1985),
the authors state:
The government need not have specific statutory authorization for a particular action
inasmuch as general jurisdiction is conferred by Section 1345. . . . When the United
States is not suing to vindicate a specific federal statutory right but simply bringing
suit under the general jurisdictional provision in Section 1345, it has been held that it
must have an interest in the dispute that is sufficient to give it standing. . . . The
government's interest need not be pecuniary or proprietary; it simply may decide to
litigate to assure the proper implementation of its policies and programs.
We conclude that this action does present a case or controversy. The justiciability of
the controversy rests on the government's assertion that the use of its public lands is
being destroyed by nutrient-laden water because the State agencies are not fulfilling
their legislatively enacted duties. Nor does it intrude, in the circumstances of this
case, into areas reserved by the sovereignty of the State.
II. NATIONAL ENVIRONMENTAL POLICY ACT
The United States appeals the judgment of the district court that the federal
government's participation in negotiating and implementing the Settlement Agreement, which
requires State remedial action to be taken, is major federal action within the meaning of
section 102 of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §
4321, and, therefore, preparation of an Environmental Impact Statement ("EIS")
is required, but not simultaneously with or as a condition to the implementation of the
Settlement Agreement. We reverse 2.
The underlying facts are set forth in the Intervenors' appeal.
Standard of Review
The district court's findings of fact are reviewable for clear error. See Newell v.
Prudential Ins. Co. of Am., 904 F.2d 644, 649 (11th Cir.1990). Whether control is the
sort that NEPA regards as significant for EIS purposes is a question of law subject to de
novo review. Sierra Club v. Hodel, 848 F.2d 1068, 1089 (10th Cir.1988).
Major Federal Action
In Save Barton Creek Ass'n v. Fed. Highway Admin., 950 F.2d 1129 (5th
Cir.1992), the court held that:
NEPA requires that federal agencies consider the environmental consequences of
"major federal action significantly affecting the quality of the human
environment". 42 U.S.C. § 4332(a)(C). The requirements of NEPA, which include, among
other things, the submission of an EIS, apply only when the federal government's
involvement in a project is sufficient to constitute "major federal action".
950 F.2d at 1133 (footnote omitted).
We must therefore determine whether, at this juncture, sufficient federal involvement
exists in what is proposed in the Settlement Agreement to constitute major federal action
affecting the environment under NEPA.
The focus in this case is on the federal agencies' control and responsibility over
material aspects of the specific project. See, e.g., Maryland Conservation Council,
Inc. v. Gilchrist, 808 F.2d 1039, 1042-43 (4th Cir.1986) (exercise of federal
approval power over state project). Major federal action can exist when the primary actors
are not federal agencies. Macht v. Skinner, 286 U.S. App. D.C. 296, 916 F.2d 13
(D.C.Cir.1990); Save Barton Creek Ass'n, 950 F.2d at 1133. There are no
clear standards for defining the point at which federal participation transforms a state
project into federal action. "Federal courts have not agreed on the amount of federal
involvement necessary to trigger the applicability of NEPA." Village of Los
Ranchos de Albuquerque v. Barnhart, 906 F.2d 1477, 1480 (10th Cir.1990), cert.
denied, 498 U.S. 1109, 111 S. Ct. 1017, 112 L. Ed. 2d 1099 (1991). The touchstone of
major federal activity constitutes a federal agency's authority to influence nonfederal
activity. "The federal agency must possess actual power to control the nonfederal
activity." Sierra Club, 848 F.2d at 1089.
The fact that proposals have been made as the result of a state-federal compromise
agreement to compel a nonfederal party to undertake its legal responsibility does not
convert the proposed state remedial measures into federal responsibilities for NEPA
purposes. The power to influence the outcome of a lawsuit by advocacy and negotiation is
not synonymous with a federal agency's authority to exercise control over a nonfederal
project which requires federal approval as a legal precondition to implementation. We must
bear in mind that the district court properly found that the Agreement requires the
agencies to fulfill their obligations under State law by setting in motion a process to
effect a transfer of the proceedings to a State administrative forum. The rendering of
advice and technical consultation to aid in the defense of the Settlement Agreement in
legal proceedings does not significantly affect the environment and does not federalize
the State activities. The possibility that federal funding will be provided in the future
is not sufficient to federalize a state project, even when such funding is likely. Atlanta
Coalition on the Transp. Crisis, Inc. v. Atlanta Regional Comm'n, 599 F.2d 1333, 1347
(5th Cir.1979).
The district court concluded that the State's restoration program is federalized by three
factors: (1) the influence exercised by the United States through the settlement
negotiations and remedial measures proposed in the Settlement Agreement; (2) the United
States' participation in research and monitoring and the administrative actions
contemplated by the Agreement; and (3) the United States' continuing power to withhold
consent and invoke dispute resolution mechanisms concerning the State agencies'
restoration program decisions.
As we have previously discussed at some length, the first two of the three factors relied
on by the district court in finding that the State's restoration program is federalized
under the Settlement Agreement are insufficient for purposes of NEPA. In sum, the federal
government does not possess the requisite control to federalize a project when the state
agencies retain their state law authority to make the decisions concerning the project. See
Village of Los Ranchos, 906 F.2d at 1480-81.
NEPA applies only when there is federal decision-making, not merely federal involvement in
nonfederal decision-making. The State agencies will implement the remedial program
pursuant to existing authority under Florida law and in accordance with State statutory
schedules and procedures.
The third factor relied upon by the district court is the United States' continuing power
to withhold consent and invoke dispute resolution mechanisms. However, we read the
retained jurisdiction provision of the district court to be limited to the parties to the
Agreement without power to implicate third parties. Thus, jurisdiction is retained only
for the purpose of insuring that there will be no unilateral action that would contravene
the provisions of the Agreement and precipitate fresh litigation. This limitation
provision does not provide the control necessary to presently treat the State agencies'
remedial activity as major federal action.
The United States does not contend that NEPA obligations will never arise during the
implementation of the remedial measures. The objection is to scope and timing. We agree.
NEPA obligations may attach to specific activities which may be proposed as part of the
State's implementation program. A federal agency may undertake a major federal action in
the form of funding as a part of the restoration program, issuance of a permit or license
to a State agency, or a change of operations over which the federal agency has authority.
It would be premature and serve no useful purpose to now require the preparation of an EIS
when no specific federal action has been proposed. See Environmental Defense Fund v.
Marsh, 651 F.2d 983, 999 (5th Cir. Unit A July 1981) (preparatory designs and studies
not completed); Kleppe v. Sierra Club, 427 U.S. 390, 399-402, 96 S. Ct. 2718,
2725-27, 49 L. Ed. 2d 576 (1976) (no factual predicate for EIS without a proposed plan).
NEPA does not require evaluation of hypothetical proposals, impacts and alternatives
concerning a nonexistent federal proposal. This would seem to be an impossible task. If
and when such activities are actually proposed, the responsible agency will have to comply
with NEPA requirements, and the question of whether an EIS is required will then be
addressed. Now, none of these types of federal action has yet
been performed.
CONCLUSION
In the appeal of the Intervenors, No. 92-4314, the district court and this
court have jurisdiction of the cause pursuant to the provisions of 28 U.S.C. §§ 1331 and
1345.
In view of the enactment of the Everglades Forever Act by the Florida legislature during
the pendency of this appeal, we REMAND this cause to the district court for further
consideration in the light of this legislation.
In the appeal of the United States, No. 92-4831, the United States is not required, at
this time, to prepare an EIS under NEPA.
Footnotes
1. The Intervenors
attempt to argue that: (1) they were denied due process; (2) the Attorney General lacked
independent authority to bring the claims without the consent of the responsible
contracting agencies; (3) the court's exercise of jurisdiction violated fundamental
principles of abstention, comity and federalism; (4) the Settlement Agreement violates the
Florida Sunshine Law; (5) the Settlement Agreement exceeds the scope of the proceedings;
(6) the Agreement violates the Flood Control Act; (7) the Agreement violates the Farmland
Protection Policy Act. The Intervenors lack standing to raise these issues because they
are outside of the limited scope of the intervention that was permitted by this Court.
2. This
appeal by the United States, No. 92-4831, is consolidated with Intervenors' appeal, No.
92-4314.
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