ELR Citation: ELR 21397
No(s). s. 92-4314, -4831 (11th Cir. Aug 23, 1994)

The court holds that a district court had jurisdiction under 28 U.S.C. §1345 to approve a settlement agreement between the United States and two Florida state agencies requiring the agencies to enforce state water quality standards applicable to the Everglades National Park and Loxahatchee National Wildlife Refuge. The court first holds that the issue on the intervenors' appeal is limited to whether the district court has jurisdiction under Article III of the U.S. Constitution over the federal government's claims against the state. The intervenors lack standing to assert all other claims, because those issues exceed the scope of their right to intervene. The court next holds that the action satisfies Article III's case-or-controversy requirement. As long as an action is justiciable, the federal government may sue in federal court regardless of the suit's subject matter; the suit need not be based on a federal statute or constitutional right to satisfy the case-or-controversy requirement. The suit is justiciable because the United States has specifically alleged a direct and continuing injury to its property interest as owner of the park and refuge from the state's failure to adequately enforce state water quality standards applicable to the areas.

Reversing the district court, the court next holds that U.S. participation in the settlement agreement is not a major federal action requiring an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). The proposed state remedial measures were not converted into federal responsibilities even though they resulted from a state-federal agreement. The federal government does not possess the requisite control to federalize the project, because the state agencies retain their authority to make the decisions concerning the restoration program. NEPA applies only when the federal government is the decisionmaker, not when it is merely involved in state decisionmaking. Also, U.S. ability to withhold consent and invoke dispute resolution procedures does not provide the control necessary to treat the state's remedial actions as major federal action. The court notes, however, that the federal government may be required to prepare an EIS if it proposes specific federal actions during implementation of the remedial measures. Finally, the court remands the case to the district court for reconsideration in light of state legislation affecting the Everglades that was enacted during pendency of this appeal.

[A related decision is published at 21 ELR 20774.]

Counsel for Plaintiffs
Jerry Jackson
Skadden, Arps, Slate, Meagher & Flom
1440 New York Ave. NW, Washington DC 20005
(202) 371-7000

Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
William L. Earl
Peeples, Earl & Blank
One Biscayne Tower
Two S. Biscayne Blvd., Ste. 3636, Miami FL 33131
(305) 358-3000

Before BLACK, Circuit Judge, DYER, Senior Circuit Judge, and ALAIMO^*, Senior District Judge.