Sierra Club v. United States Department of Agriculture (716 F.3d 653, 2013)

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Interven or 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. 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.

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 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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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, — U.S.-, 131 S.Ct. 884, 891, 178 L.Ed.2d 703 (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 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, 114 S.Ct. 1992, 128 L.Ed.2d 842 (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, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (quoting Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (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, 126 S.Ct. 952, 163 L.Ed.2d 836 (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, 130 S.Ct. 599 (quoting Digital Equip. Corp., 511 U.S. at 868, 114 S.Ct. 1992). This court, in turn, has consistently 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 invF tation 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, 114 S.Ct. 1992, and Sunflower’s contention is not “an appealing prospect for adding to it,” id. at 871, 114 S.Ct. 1992. 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, 114 S.Ct. 1992. And this court has recognized that although § 1291 inevitably results in some delay,