WESTERN ORGANIZATION OF RESOURCE COUNCILS AND FRIENDS OF THE EARTH, APPELLANTS v. RYAN ZINKE, IN HIS CAPACITY AS SECRETARY OF THE INTERIOR, ET AL., APPELLEES
No. 15-5294
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 23, 2018 Decided June 19, 2018
Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-01993)
Eric F. Citron argued the cause for appellants. With him on the briefs were Thomas C. Goldstein and Richard E. Ayres. Sarah E. Harrington entered an appearance.
Michael T. Gray, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Jeffrey H. Wood, Acting Assistant Attorney General, and Eric Grant, Deputy Assistant Attorney General.
James Kaste, Deputy Attorney General, Office of the Attorney General for the State of Wyoming, Erik E. Petersen, Supervisory Attorney General, and Michael M. Robinson, Senior Assistant Attorney General, were on the joint brief of intervenors the State of Wyoming, et al. in support of appellees. Margaret I. Olson, Assistant Attorney General, Office of the Attorney General for the State of North Dakota, and Andrew C. Emrich entered appearances.
James M. Auslander and Peter J. Schaumberg were on the brief for amicus curiae National Mining Association in support of defendants-appellees and intervenors-appellees for affirmance of the District Court.
Before: HENDERSON and SRINIVASAN, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court by Senior Circuit Judge EDWARDS.
Concurring opinion filed by Senior Circuit Judge EDWARDS.
EDWARDS, Senior Circuit Judge: The Mineral Leasing Act,
In 2014, Appellants Western Organization of Resource Councils and Friends of the Earth brought suit in the District Court, seeking an order compelling the Secretary to update the Program‘s environmental impact statement. The District Court granted the Secretary‘s motion to dismiss. In so doing the court held that the Secretary had “no duty to supplement the 1979 programmatic EIS for the federal coal management program because there is no remaining or ongoing major federal
Appellants claim that the Secretary‘s failure to supplement the Program‘s PEIS violates both NEPA and the Administrative Procedure Act (“APA“). Appellants note that when the Department issued amended regulations in 1982, “it reaffirmed that it retained an obligation under NEPA to revise or update the 1979 Program EIS when its assumptions, analyses and conclusions [were] no longer valid.” Appellants’ Br. 2. Appellants point out that, since 1979, “tens of thousands of peer-reviewed scientific studies have identified the causes and consequences of continued atmospheric warming and showed that coal combustion is the single greatest contributor to the growing concentration of greenhouse gases in the atmosphere.” Id. at 3. Given that these studies were not available when the Secretary issued the 1979 PEIS or the 1985 supplement, Appellants contend that the Secretary is required to supplement its programmatic environmental analysis.
The federal action establishing the Federal Coal Management Program was completed in 1979. And the Secretary has not proposed to take any new action respecting the Program. In these circumstances, neither NEPA nor the APA requires the Secretary to update the PEIS for the Federal Coal Management Program. We therefore lack authority to compel the Secretary to do so. Accordingly, the judgment of the District Court is affirmed.
I. BACKGROUND
A. Statutory and Regulatory Background
1. The National Environmental Policy Act
NEPA requires all federal agencies to prepare and include an environmental impact statement (“EIS“) in “every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment.”
The Council on Environmental Quality (“CEQ“), established by NEPA, has authority to interpret the statute and has promulgated regulations to guide federal agencies in complying with its mandate. Dep‘t of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004). The CEQ regulations articulate two principles that govern the dispute in this case. First, the regulations require an environmental analysis to account for the cumulative impacts of an action “when added to other past, present, and reasonably foreseeable future actions.”
Second, the CEQ regulations specify when agencies must update their environmental analyses in response to changed conditions. Specifically, agencies must prepare a supplemental impact statement when there exist “significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.”
Thus, to meet its NEPA obligations, an agency must consider the cumulative impacts of a proposed action, see
2. The Federal Coal Management Program
The Mineral Leasing Act empowers the Department to lease rights to coal on public lands.
To achieve this goal, the Secretary undertook a number of administrative actions that eventually resulted in adoption of a Federal Coal Management Program. Initially, the Department commenced notice and comment rule making on “the procedures that the Secretary of the Interior will use to carry out his authority to manage Federal coal.” Proposed Rulemaking, Coal Mgmt., 44 Fed. Reg. 16,800, 16,800 (March 19, 1979). The Secretary‘s “preferred program” allocated land for leasing based on analysis of national and regional coal demand. See PEIS at 3-2-3-3, J.A. 262–63. It included a planning system to decide which areas would be listed for coal production, a system for evaluating the national demand for coal, and procedures for conducting sales, issuing and enforcing leases, and complying with the agency‘s NEPA duties. See id.
In 1979, the agency issued a PEIS to support its proposal. See PEIS, J.A. 113. The PEIS analyzed the Secretary‘s preferred program, as well as several alternatives for a federal coal management plan. These included no new federal leasing; state determination of leasing levels; and emergency leasing only, among others. See id. at v, J.A. 120. The PEIS considered the physical, ecological, socioeconomic, transportation, and energy impacts of the various alternatives. As part of this analysis, the agency acknowledged that emissions resulting from coal mining and combustion could lead to increased atmospheric carbon dioxide, and explained that “there are indications that the rising CO2 levels in the atmosphere could pose a serious problem, commonly referred to as the greenhouse effect.” Id. at 5-88, J.A. 486. It addressed carbon dioxide as a “potential pollutant,” id., and predicted increased levels of emissions from coal production under the proposed alternatives, id. at 5-107, J.A. 505. The agency ultimately stated that “there are uncertainties about the carbon cycle, the net sources of carbon dioxide in the atmosphere, and the net effects of carbon dioxide on temperature and climate,” id. at
In July 1979, the Department officially adopted the Federal Coal Management Program. It published a two-part document approving the Secretary‘s preferred program and discussing its rationale. See Department of the Interior, Secretarial Issue Document, Fed. Coal Mgmt. Program [hereinafter “ROD“], reprinted at J.A. 1391. This document served as the Record of Decision for the Program.
The Secretary additionally promulgated a final rule setting forth the Program procedures. Coal Mgmt.; Federally Owned Coal, 44 Fed. Reg. 42,584 (July 19, 1979). The 1979 rule detailed the steps that BLM would take to implement the Program, and it also set forth the circumstances in which the PEIS was to be updated. Id. at 42,616–20. The rule specified that the Department would supplement its environmental analysis if the Secretary determined that regional production goals and leasing targets “vary significantly from those analyzed,” or that the available tracts may “generate significantly different levels or types of environmental impacts than were anticipated” in the most current PEIS. Id. (previously codified at
The 1982 rule removed the provision that had been included in the 1979 rule addressing the procedures for updating or revising the PEIS. See id. In response to comments suggesting that the deletion would demonstrate a lack of commitment to protecting the environment, the Secretary explained that, “[r]egardless of whether this provision [was] deleted or retained, the Department must revise or update the Program EIS when its assumptions, analyses and conclusions are no longer valid.” Id. The Secretary explained further that, because “[t]he exact procedures necessary for compliance with [NEPA] at some future time are . . . difficult to predict,” the Department decided to delete the provision despite “recognizing that its obligations under [NEPA] remain unchanged.” Id.
In 1985, the Secretary published a supplemental PEIS for the Program. Fed. Coal Mgmt. Program, Final EIS Supplement (October 1985), reprinted at J.A. 1400. The supplemental PEIS claimed to “assess[] the environmental consequences of continuing the federal coal management program as modified [since the original PEIS].” Id., J.A. 1404. The Secretary stated that supplementation was necessary because “[i]n the 6 years since the 1979 [PEIS] was published . . . economic and environmental conditions have changed.” Id. at 3, J.A. 1409. The supplemental PEIS predicted that continued coal leasing would have no long-term impacts on air quality. See id. at 319, J.A. 1436.
Although the Federal Coal Management Program has been modified in various ways over the years, the 1979 regulations and ROD largely remain in effect. Through the BLM, the Secretary continues to run the Program and make leasing and general programmatic management decisions – including how many, where, and to whom leases should be granted.
B. Procedural History
Appellants Western Organization of Resource Councils and Friends of the Earth are nonprofit organizations whose members are concerned about the environmental and climate-related impacts of coal production and combustion. In 2014, Appellants sued the Secretary and other Department officials, claiming that the Department‘s failure to update the Federal Coal Management Program‘s PEIS violates NEPA and the APA. The States of Wyoming and North Dakota and the Wyoming Mining Association intervened as defendants.
The Secretary and other defendants before the District Court filed a motion to dismiss. The District Court granted the motion on August 27, 2015. W. Org. of Res. Councils, 124 F. Supp. 3d 7. The District Court held that, because the Program was established and the Department had not proposed to take any new action respecting the Program, the Department had no obligation to prepare a new or supplemental PEIS. See id. at 12-13. Appellants then filed a timely appeal in this court.
While this appeal was pending, then-Secretary of the Department of the Interior, Sally Jewell, issued an order pausing all activity on new leases to permit the agency to revisit the PEIS. Sec‘y of the Interior, Order No. 3338 (Jan. 15, 2016), reprinted at J.A. 1438. The order explained that “[n]umerous scientific studies indicate that reducing [greenhouse gas] emissions from coal use worldwide is critical to addressing climate change.” Id. at 4, J.A. 1441. Secretary Jewell therefore concluded that, in light of the “lack of any recent analysis of the Federal coal program as a whole, a more comprehensive, programmatic review [wa]s in order.” Id. at 6, J.A. 1443. On the parties’ joint motion, this court held the case in abeyance.
On March 29, 2017, newly appointed Secretary Zinke ordered an immediate halt to “[a]ll activities associated with the preparation of the [new] PEIS” and lifted the moratorium on new leasing. See Sec‘y of the Interior, Order No. 3348 (Mar. 29, 2017), reprinted at J.A. 1476–77. The court then granted Appellants’ motion to rescind the order holding the case in abeyance and to set a briefing schedule.
II. ANALYSIS
A. Standard of Review
This court reviews de novo a district court decision granting a motion to dismiss under
B. The Merits of Appellants’ Claim
Appellants claim that NEPA requires the Secretary to issue a supplemental PEIS analyzing the climate impacts of federal coal leasing. Because NEPA does not provide a cause of action, we review the Secretary‘s compliance with its statutory mandate under the APA. See Tulare Cty. v. Bush, 306 F.3d 1138, 1143 (D.C. Cir. 2002).
Appellants’ cause of action in this case rests solely on
The seminal case on
1. NEPA and the CEQ Regulations
In challenging the Secretary‘s failure to act, Appellants first point to the requirement in the CEQ regulations that agencies supplement their environmental impact statements to take account of “significant new information relevant to environmental concerns and bearing on the proposed action or its impacts.”
Appellants also rely heavily on the Supreme Court‘s decision in Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989). They contend that:
[T]he Supreme Court explained in Marsh [that] NEPA‘s duty to supplement an EIS applies when “remaining governmental action would be environmentally ‘significant,‘” the agency retains an “opportunity to weigh the benefits of the project versus the detrimental effects on the environment,” and “new information is sufficient to show that the remaining action will ‘affect the quality of the human environment’ . . . to a significant extent not already considered.” Interior‘s continuing management of the coal-leasing program easily brings this case within that test because—among other things—we now know that continued authorization of leases to extract (and then burn) federal coal is “affect[ing] the quality of the human environment . . . to a significant extent not already considered.” The climate-change implications of that ongoing action are substantial and should now be informed
by 38 years of research that Interior expressly called for in its 1979 PEIS, but has never considered in a supplemental programmatic analysis. Marsh forbids this result, as does the plain text of the governing regulation . . . .
Appellants’ Br. 30–31 (quoting Marsh, 490 U.S. at 371–74) (emphases removed).
The Secretary does not contest Appellants’ assertion that the analyses of climate impacts of coal leasing in the PEIS and supplemental PEIS are outdated. Nor does the Secretary dispute Appellants’ claims that the availability of meaningful scientific research measuring greenhouse gas emissions and their climate impacts qualify as “significant new information bearing on” federal coal leasing and its impacts. Instead, the Secretary asserts that the Department no longer has any NEPA obligations related to the Federal Coal Management Program. On this point, the Secretary contends that, because “BLM is not proposing to take any new action in reliance on the 1979 [P]EIS, . . . [the supplementation] regulation simply does not apply.” Sec‘y‘s Br. 19. And the Secretary contends that Marsh is inapposite because “[t]he Court in Marsh never considered any programmatic EIS, let alone the question whether a programmatic EIS must be supplemented.” Id. at 22.
The Court‘s decision in Marsh is a good starting point for our analysis. At issue in Marsh was the construction of a dam by the Army Corps of Engineers in the Rogue River Basin in southwest Oregon. Environmental groups sued to enjoin construction of the dam, arguing that NEPA required the Corps to issue a second EIS considering new information developed after it published its initial statement. At the time the law suit was filed, the dam had been approved, but construction was far from complete. See Marsh, 490 U.S. at 363–70.
The Marsh Court confirmed that preparation of “postdecision supplemental environmental impact statements is at times necessary to satisfy the Act‘s ‘action-forcing’ purpose” and explained when that is the case. Id. at 370–71. The Court indicated that, “although it would make sense to hold NEPA inapplicable at some point in the life of a project,” the law requires that agencies “file environmental impact statements when the remaining governmental action would be environmentally ‘significant.‘” Id. at 371–72 (some internal quotation marks omitted). The Court clarified that this duty to supplement requires agencies to “take a ‘hard look’ at the environmental effects of their planned action, even after a proposal has received initial approval” when (1) “there remains ‘major Federal action’ to occur,” and (2) “the new information is sufficient to show that the remaining action will ‘affect the quality of the human environment’ in a significant manner or to a significant extent not already considered.” Id. at 374. The Court concluded that the construction work that remained to be completed on the dam satisfied the first part of this test, but it deferred to the Corps’ determination that the newly identified information was insufficient to merit a new EIS. See id. at 385.
Although the decision in Marsh lends some support for Appellants’ position in this case, the Court‘s subsequent decision in SUWA does not. In SUWA, environmental groups sought to compel BLM to supplement an EIS it had issued in advance of approving a federal land-use plan. 542 U.S. at 60–61. The groups argued that NEPA required BLM to take account of increased use of off-road vehicles in certain parts of the managed
The SUWA Court reconciled its decision with Marsh. In Marsh, the Court explained, the dam‘s construction was the “major Federal action” triggering NEPA, so there remained “action” to occur because construction was incomplete. Id. By contrast, in SUWA, the approval of the land management plan was the relevant “major Federal action.” Id. The action thus terminated with the plan‘s approval, and there was no duty to supplement the EIS after that point. It did not matter that the plan continued to govern actions that took place after the approval. See id.
These cases make clear that the supplementation inquiry turns on how the “propos[ed] . . . Federal action” is defined.
We agree with the Secretary that SUWA controls the disposition of this case. The Program here is functionally identical to the plan the Court evaluated in SUWA. In both cases, the agency established an approach for managing resources in the future. Under both the SUWA plan and the Federal Coal Management Program that is at issue in this case, the agency continued to engage in activities governed by the overarching scheme for which the initial EIS was prepared. As SUWA makes clear, the fact that actions continue to occur in compliance with the Program does not render the original action incomplete. Accordingly, the Department‘s NEPA obligation for the Federal Coal Management Program terminated with its adoption in 1979.
Appellants argue that because the Program is properly viewed as ongoing, it was not complete when approved. They point out that “environmentally significant decisions plainly remained” to be made in carrying out the Program, including in pricing future leases, allocating new leases, and issuing guidance and manuals. Appellants’ Br. 34-35. Because “[t]hese responsibilities . . . lead directly to the mining and burning of federal coal,” Appellants argue, the “myriad ‘environmentally significant’ steps the agency continues to take” demonstrate that there remains ongoing “major Federal action” under the Program. Id. at 36.
This argument cannot be squared with the governing precedent. Neither Marsh nor SUWA looked to decisions made pursuant to the relevant action in determining whether the duty to supplement applied. They looked instead to the status of the action itself. Appellants have failed to identify any specific pending action, apart from the Program‘s continued existence, that qualifies as a “major Federal action” under NEPA. So the only pertinent action for purposes of the court‘s analysis is the one for which that document was prepared – the adoption of the Federal Coal Management
Appellants urge us to read SUWA narrowly, claiming that its holding applies only where, as there, a regulation specifically indicates that the approval of a plan is the relevant action for NEPA purposes. See 542 U.S. at 73 (citing
Appellants also assert that by deeming the Program‘s adoption to be the relevant “major Federal action,” we foreclose any challenge to the agency‘s failure to consider the cumulative climate impacts of federal coal leasing. They argue that doing so allows the Department to avoid its duty to study the impacts of its actions and justify its decision to the public. In Appellants’ view, this outcome “render[s] NEPA review [a] ‘paperwork’ formality,” Appellants’ Br. 34, and allows the Department to “hide the ball indefinitely, leaving the public to guess at both the environmental costs of one of the Nation‘s predominant sources of carbon pollution and the agency‘s views on what many voting citizens believe to be the defining environmental-protection issue of our time,” id. at 69.
We understand that Appellants’ claims are not frivolous. As noted above, Appellants have pointed to significant scientific studies that have identified the causes and consequences of continued atmospheric warming and showed that coal combustion is the single greatest contributor to the growing concentration of greenhouse gases in the atmosphere. Given that these studies were not available when the Secretary issued the 1979 PEIS and the 1985 supplement, Appellants raise a compelling argument that the Secretary should now revisit the issue and adopt a new program or supplement its PEIS analysis.
Appellants have several avenues to raise their claims regarding the climate-change implications of coal leasing. First, as the Department points out in its brief, see Sec‘y‘s Br. 17, Appellants may petition the Secretary for a rule making, seeking to have the coal management regulations take into account the serious environmental impacts of any coal leasing program. If the Secretary denies the petition for rule making, Appellants may seek judicial review of that determination. See Massachusetts v. EPA, 549 U.S. 497, 527–28 (2007).
Second, Appellants may, when appropriate, challenge specific licensing decisions on the ground that the EIS prepared in support of any such decision fails to satisfy NEPA‘s mandate to consider the cumulative environmental impacts of coal leasing. Such a claim might challenge any attempt by BLM to rely on (or tier to) the 1979 PEIS on the ground that it is too outdated to support new federal action. See
Our holding in this case is also limited to the record before us. We are bound by established law holding that NEPA requires an agency to update its EIS only when it has proposed major federal action that is not yet complete. As explained above, the adoption of the Federal Coal Management Program was the relevant action in this case, and it was completed in 1979. Therefore, no “major Federal action” remains as part of that action, and NEPA does not provide a legal duty to supplement the PEIS.
2. The Department‘s Alleged Prior Statements that It Was Obliged Under NEPA to Revise or Update the 1979 PEIS
In further support of their claims in this case, Appellants rely on statements that the Secretary included in the original regulatory materials for the Program. In the PEIS, the Department stated that the first level of environmental “analysis would be contained in this [PEIS], updated when necessary.” PEIS at 3-68, J.A. 328 (emphasis added). And in both the PEIS and ROD, the Department stated that “[n]ational and interregional impacts of the Federal coal management program are analyzed in [the PEIS, which] would be updated when conditions change sufficiently to require new analyses of those impacts.” Id. at 3-9, J.A. 269; ROD at 98, J.A. 1399 (emphasis added). Appellants contend that these statements committed the agency to update the PEIS, even if NEPA does not require it.
These cited statements might have created a binding duty on the agency at one point. See
To be sure, the agency indicated in its discussion of the revision that, at the time, it believed NEPA required periodic updates to the PEIS apart from any new proposed action. See id. (stating the Department‘s view that “[r]egardless of whether th[e] provision [was] deleted or retained, the Department must revise or update the Program EIS when its assumptions, analyses and conclusions are no longer valid“). But intervening case law indicates that NEPA imposes no such requirement. See SUWA, 542 U.S. at 72–73.
III. CONCLUSION
On the record before us, neither NEPA nor the Department‘s own documents create a legal duty for the Secretary to update
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring in part and concurring in the judgment: I concur in all but a small portion of the opinion. I write separately to express where and why I separate myself. I also explain why, in my view, the majority correctly does not reach the issue addressed by Judge Edwards in his concurrence.
First, I do not join the portion of the opinion that identifies alternative avenues by which the plaintiffs might press their claim. See Maj. Op. 18–19. Although I do not necessarily disagree with my colleagues’ reflections, I think it is neither necessary nor appropriate to advise parties on potential avenues of relief not before us. See, e.g., Republic of Venezuela v. Phillip Morris Inc., 287 F.3d 192, 199–200 (D.C. Cir. 2002) (court should not “declare, for the government of future cases, principles . . . which cannot affect the result as to the thing in issue in the case before it” (quoting California v. San Pablo & Tulare R.R. Co., 149 U.S. 308, 314 (1893))). I would leave it up to a future court to decide whether the alternatives discussed are sufficient to pursue the claim we reject in this appeal.
Second, I briefly explain why, in my view, the majority properly declines to address the Government‘s argument that the failure to prepare a supplemental Environmental Impact Statement (EIS) is not “final agency action” under section 704 of the Administrative Procedure Act (APA). Although my colleague believes we should address the “very important issue” raised by the Government, Concurring Op. 1, I think we should “confine ourselves to deciding only what is necessary to the disposition of the immediate case,” Whitehouse v. Ill. Cent. R.R. Co., 349 U.S. 366, 373 (1955). In Norton v. Southern Utah Wilderness Alliance (SUWA), 542 U.S. 55 (2004), the United States Supreme Court approached the same two issues we face here: whether the National Environmental Policy Act (NEPA),
EDWARDS, Senior Circuit Judge, concurring: In opposing Appellants’ claim in this case, the Department pressed two arguments:
Appellants’ cause of action in this case rests solely on
As noted in the opinion for the court, the seminal case on
The APA authorizes suit by “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute.”
5 U.S.C. § 702 . Where no other statute provides a private right of action, the “agency action” complained of must be ”final agency action.”§ 704 (emphasis added). “[A]gency action” is defined in§ 551(13) to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” (Emphasis added.) The APA provides relief for a[n] [agency‘s] failure to act in§ 706(1) : “The reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed.”
SUWA‘s reference to “final agency action” under
The lower courts have remained a bit at sea over how to interpret the words in SUWA referring to
Courts have implicitly recognized that unlawfully withheld actions are considered final under
§ 704 . Some emphasize, for example, that an agency must carry out nondiscretionary duties required by law, without discussing whether the withheld duty would be considered a final agency action. Courts have sometimes described§ 706(1) as an exception to the APA “finality” requirement. This description may be slightly inaccurate, however, for§ 704 of the APA defines the type of agency actions subject to judicial review and, in relevant part, limits judicial review to final agency actions.5 U.S.C. § 704 .Section 706(1) , by contrast, defines the “scope” of judicial review over reviewable agency actions. Id. § 706.
S. Utah Wilderness All. v. Norton, 301 F.3d 1217, 1229 n.9 (10th Cir. 2002) (citations omitted), rev‘d, 542 U.S. 55 (2004). The Supreme Court‘s decision in SUWA does not directly address the concerns raised by Judge Ebel. Nevertheless, the case law remains clear that a party may pursue a claim under
SUWA says that ”
The Secretary argues that “the decision not to prepare a supplemental EIS is not a ‘final agency action’ as that term is defined in
In an apparent effort to overcome the obvious frailties in its argument, the Department makes much of the fact that an
The fact that the preparation of an EIS may be a “procedural” matter is irrelevant to whether Appellants have raised a viable claim under
The Supreme Court‘s discussion of standing to vindicate “procedural rights” reinforces this point. In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the Court offered the following example:
[U]nder our case law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency‘s failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years.
Id. at 572 n.7. Lujan did not address the scope of
In any event, I find no merit in the Secretary‘s attempt to limit the scope of judicial review under
The Secretary‘s position is flawed because it conflates the question regarding the scope of