1000 Friends of Wisconsin, Inc v. Wisconsin Department of Trans , 860 F.3d 480 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16-2321 & 16-2586
1000 FRIENDS OF WISCONSIN INCORPORATED,
Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION, et al.,
Defendants.
Appeals of:
WISCONSIN DEPARTMENT OF TRANSPORTATION and DAVE
ROSS
____________________
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 11-C-0545 — Lynn Adelman, Judge.
____________________
ARGUED NOVEMBER 7, 2016 — DECIDED JUNE 19, 2017
____________________
Before EASTERBROOK and WILLIAMS, Circuit Judges, and
FEINERMAN, District Judge. *
* Of the Northern District of Illinois, sitting by designation.
2 Nos. 16-2321 & 16-2586
EASTERBROOK, Circuit Judge. Because the State of Wiscon-
sin proposed to use federal highway funds to widen Wiscon-
sin Route 23 to four lanes between Fond du Lac and She-
boygan, the U.S. Department of Transportation (USDOT) is-
sued an environmental impact statement evaluating the po-
tential effects of the project. After USDOT made a “record of
decision” permitting the use of federal funds, a group op-
posed to the project filed this suit under the Administrative
Procedure Act and asked the district court to find the state-
ment inadequate and enjoin the project. The court denied the
request for an injunction—after all, Wisconsin can proceed
using its own money whether or not a federal agency has
satisfied the requirements for a federal contribution—but set
aside the record of decision after concluding that the portion
of the statement projecting traffic loads in 2035 had not ade-
quately disclosed all assumptions and other ingredients of
the traffic-forecasting model. 2015 U.S. Dist. LEXIS 67176
(E.D. Wis. May 22, 2015).
USDOT then issued a revised environmental impact
statement with additional details about how the traffic esti-
mates had been generated. The district court concluded,
however, that even as revised the information remains inad-
equate and reiterated the order vacating USDOT’s record of
decision. 2016 U.S. Dist. LEXIS 57413 (E.D. Wis. Apr. 29,
2016). The judge stated that plaintiff is entitled to a declara-
tory judgment but neglected to issue one. We do not see
what sort of declaratory relief would be appropriate, howev-
er, for the central question in the case was resolved by the
order setting aside the record of decision. That order is a fi-
nal decision appealable under 28 U.S.C. §1291, and it has
been appealed.
Nos. 16-2321 & 16-2586 3
But the only appellants are the Wisconsin Department of
Transportation and a state employee (collectively Wiscon-
sin). So we have a mismatch between the relief and the ap-
pellant. The only relief is directed against USDOT, which has
not appealed. The only appellants remain free to continue
the highway project, though on the state’s dime.
The briefs filed in this court ignored the fact that USDOT
has not filed a notice of appeal. For its part, USDOT ignored
the state’s appeal and did not file papers of any kind, even
though every party that is not an appellant becomes an ap-
pellee. After oral argument we issued an order directing all
parties, including USDOT, to file supplemental memoranda
to discuss the significance of the fact that USDOT elected not
to appeal.
USDOT maintains that its decision not to appeal fore-
closes any other challenge to the district court’s decision, and
we agree. The only relief ordered by the district court is the
cancellation of USDOT’s record of decision, the document
that allows federal funding of this project. That was the only
possible relief, because the National Environmental Policy
Act, on which the suit rests, applies only to the national gov-
ernment. The critical language provides: “all agencies of the
Federal Government shall … include in every recommenda-
tion or report on proposals for legislation and other major
Federal actions significantly affecting the quality of the hu-
man environment, a detailed statement by the responsible
official on” environmental effects. 42 U.S.C. §4332(2)(C). This
statute does not impose any duties on states, which is why
Wisconsin remains free to widen the highway using its own
resources.
4 Nos. 16-2321 & 16-2586
Because the federal agency has not appealed, it cannot
distribute funds to Wisconsin for the Route 23 project until it
issues a new environmental impact statement. Wisconsin
cannot seek relief against a judgment that does not bind it. It
would be nothing but an advisory opinion for a court of ap-
peals to discuss the adequacy of this environmental impact
statement, when that discussion cannot change the effect of
the district court’s judgment. This is why decision after deci-
sion, by the Supreme Court and this circuit, holds that, when
the public agency with duties under a judgment elects not to
appeal, a different litigant cannot step into the agency’s
shoes and carry on. See, e.g., Hollingsworth v. Perry, 133 S. Ct.
2652 (2013); Diamond v. Charles, 476 U.S. 54 (1986); Princeton
University v. Schmid, 455 U.S. 100 (1982); Kendall-Jackson Win-
ery, Ltd. v. Branson, 212 F.3d 995 (7th Cir. 2000).
We suggested in Kendall-Jackson that there might be an
exception to this principle if the decision not to appeal could
itself be the subject of judicial review. Suppose an agency
had a statutory duty to appeal but failed to live up to its le-
gal obligations. Or suppose that USDOT had a statutory du-
ty to pay for state highway projects on request and to do
whatever it took (including litigation) to provide those
funds. Then a court of appeals might be able to proceed in
two steps: review the agency’s decision not to appeal, and if
that decision was arbitrary and capricious proceed to the
merits. But Wisconsin does not contend that USDOT has a
statutory duty to fund the Route 23 project, to prepare a bet-
ter environmental impact statement, or to appeal an adverse
decision. If USDOT had said something like “we will not
fund this project because we do not think the traffic projec-
tion sufficiently reliable,” Wisconsin would not have had
Nos. 16-2321 & 16-2586 5
any legal redress. But that’s essentially what USDOT did
conclude when deciding not to appeal.
Wisconsin insists that it has standing because it is a “lead
agency” and cooperated with USDOT to produce and de-
fend the environmental impact statement. See 23 U.S.C.
§139; 23 C.F.R. §771.109(c)(1). But the question is not whether
the state suffers insult from the district court’s evaluation of
its handiwork or injury from the judgment—it does, because
the district court’s judgment costs it a lot of money (unless
USDOT comes up with a new environmental impact state-
ment). The question is whether that injury is redressable on
appeal.
Standing has three components: injury, causation, and
redressability. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). Having chosen not to appeal, USDOT re-
mains bound by the judgment no matter what happens in
this court. A timely appeal in civil litigation is a jurisdictional
requirement. Bowles v. Russell, 551 U.S. 205 (2007). A court of
appeals cannot modify a judgment to make it more favorable
to a party that did not file a notice of appeal. See, e.g., Green-
law v. United States, 554 U.S. 237 (2008). This court therefore
lacks authority to disturb the order against USDOT whether
or not we are persuaded by the state’s arguments. As long as
USDOT remains bound, nothing this court says could unlock
the federal Treasury for the Route 23 project. Wisconsin suf-
fers a concrete injury, caused by the district court’s decision,
but that injury is not redressable in this appeal.
The appeals are dismissed for lack of a justiciable contro-
versy.
6 Nos. 16-2321 & 16-2586
FEINERMAN, District Judge, dissenting.
The court holds that Wisconsin satisfies two components
of standing, injury and causation, but not the third, redress-
ability. According to the court, because the United States
Department of Transportation (USDOT) did not appeal the
district court’s judgment vacating the record of decision, it
remains bound by the judgment. From that premise, the
court concludes that the injury the judgment inflicts on Wis-
consin—which the court describes as the loss of federal
funds for a state highway project—could not be redressed by
our reversing the judgment.
That conclusion, in my view, is incorrect. “Redressability
‘examines the causal connection between the alleged injury
and the judicial relief requested.’” Lac Du Flambeau Band of
Lake Superior Chippewa Indians v. Norton, 422 F.3d 490, 501
(7th Cir. 2005) (quoting Allen v. Wright, 468 U.S. 737, 753 n.19
(1984)). Wisconsin cannot obtain federal funding for—or, as
will be explained, even proceed with—its highway project
without a record of decision that includes an environmental
impact statement prepared in compliance with the National
Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.
See 23 U.S.C. § 139(n)(2); 42 U.S.C. § 4332(C). The district
court held that the environmental impact statement (and
thus the record of decision) associated with the project vio-
lated NEPA. If we reverse the judgment—meaning if we
hold that the record of decision complied with NEPA—
Wisconsin once again will be eligible to receive federal fund-
ing for and proceed with the project. Such a reversal quite
plainly would redress the injury Wisconsin sustained from
the judgment. See In re Navigant Consulting, Inc., Sec. Litig.,
275 F.3d 616, 620 (7th Cir. 2001) (“Class members suffer inju-
Nos. 16-2321 & 16-2586 7
ry in fact if a faulty settlement is approved, and that injury
may be redressed if the court of appeals reverses. What more
is needed for standing?”), vacated on other grounds, 536
U.S. 920 (2002). It follows that Wisconsin’s appeal satisfies
the redressability component of standing.
The court holds otherwise on the strength of four prece-
dents: Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); Diamond
v. Charles, 476 U.S. 54 (1986); Princeton Univ. v. Schmid, 455
U.S. 100 (1982); and Kendall-Jackson Winery, Ltd. v. Branson,
212 F.3d 995 (7th Cir. 2000). The court describes those deci-
sions as holding “that, when the public agency with duties
under a judgment elects not to appeal, a different litigant
cannot step into the agency’s shoes and carry on.” Ante, at 4.
That description does not accurately capture Princeton
University, which concerned the New Jersey Supreme
Court’s reversal on state constitutional grounds of a criminal
trespass conviction premised on the defendant’s violating a
university regulation governing access to campus. 455 U.S.
at 101. Princeton sought review, arguing that the ruling vio-
lated its federal constitutional rights. Id. at 101-02. New Jer-
sey joined Princeton’s challenge but declined to take a posi-
tion on the merits. Id. at 102.
In considering jurisdiction, the Supreme Court first held
that because the State had not taken a position on the merits,
its presence did not give rise to an Article III case or contro-
versy. Ibid. The Court then held that Princeton itself had no
standing because it had amended the regulation underlying
the trespass conviction. Id. at 103. The Court explained that
because the state supreme court’s judgment “does not pre-
vent [Princeton] from having the validity of its new regula-
tion ruled upon in another enforcement action, the Universi-
8 Nos. 16-2321 & 16-2586
ty is without standing to invoke our jurisdiction.” Ibid. It
thus was Princeton’s own conduct, not the State’s litigation
strategy, that deprived it of appellate standing. The neces-
sary implication is that had Princeton not amended the regu-
lation, it would have had standing. See Federation of Advertis-
ing Industry Representatives, Inc. v. City of Chicago, 326 F.3d
924, 930 (7th Cir. 2003) (describing Princeton University as il-
lustrating the “general rule that repeal, expiration, or signifi-
cant amendment to challenged legislation ends the ongoing
controversy and renders moot a plaintiff’s request for injunc-
tive relief”). Indeed, the fact that the Supreme Court ana-
lyzed Princeton’s standing separately from the State’s
demonstrates that the State’s declining to take a position on
the merits did not, by itself, foreclose Princeton’s standing.
Nor does the court’s description adequately capture Di-
amond and Hollingsworth, as neither turned on redressability.
The appellant in Diamond, a physician, sought to challenge
in the Supreme Court our invalidation of an Illinois abortion
law, while Illinois itself chose not to. 476 U.S. at 60-61. (The
physician was an appellant, not a petitioner, because the Su-
preme Court at the time had appellate jurisdiction over court
of appeals decisions invalidating a state statute. See 28
U.S.C. § 1254(2) (1982).) The Court held that the physician
lacked standing to pursue the appeal, not on redressability
grounds, but because he had not suffered injury in fact. Dia-
mond, 476 U.S. at 65-67. As the Court explained, “a desire
that the Illinois Abortion Law as written be obeyed” is not
the kind of interest that Article III recognizes as sufficient for
standing. Id. at 66. Hollingsworth, in which supporters of a
California law unsuccessfully sought to challenge its invali-
dation by the Ninth Circuit on federal constitutional
grounds after California itself declined to do so, also turned
Nos. 16-2321 & 16-2586 9
on injury in fact, not redressability. 133 S. Ct. at 2662 (“Here,
… petitioners had no ‘direct stake’ in the outcome of their
appeal. Their only interest in having the District Court order
reversed was to vindicate the constitutional validity of a
generally applicable California law.”).
As for Kendall-Jackson, the court’s description of its hold-
ing—“when the public agency with duties under a judgment
elects not to appeal, a different litigant cannot step into the
agency’s shoes and carry on,” ante, at 4—is correct as far as it
goes. Liquor suppliers injured by a state law sued the state
liquor commissioners responsible for enforcing the law and
certain liquor distributors the law favored; the district court
entered a preliminary injunction against the commissioners,
prohibiting them from enforcing the law, but entered no re-
lief against the distributors; and the distributors, but not the
commissioners, appealed. 212 F.3d at 995-97. We dismissed
the appeal, holding that the distributors lacked standing:
“Because the Commission has not appealed, it remains
bound by the injunctions no matter what happens on the
distributors’ appeals, so it is not clear what point the distrib-
utors’ appeals can serve.” Id. at 997. “The critical question,”
we observed, “[wa]s this: when a district judge enters an or-
der creating obligations only for Defendant A, may the court
of appeals alter the judgment on appeal by Defendant B
when obligations imposed on A indirectly affect B?” Id. at
998. As we explained, the answer to that question is no, and
the reason lies in redressability: “Sure the injunction injures
[the distributors], but how can their appeal redress that inju-
ry given that the injunction will continue to bind the Com-
mission?” Ibid.
10 Nos. 16-2321 & 16-2586
Kendall-Jackson is good law, but two fundamental matters
distinguish it from this case. The first concerns the nature of
the judgment from which the appeal was taken, and the sec-
ond concerns the identity of the appellant.
As for the nature of the judgment, the district court in
Kendall-Jackson enjoined state officials from enforcing a state
law. Because the liquor commissioners, having not appealed,
would remain bound by the injunction regardless of the out-
come of the distributors’ appeal, we held that the appeal
could not redress the distributors’ injury. But the district
court here entered no injunction. Rather, the court declared
that the record of decision violated NEPA, vacated it, and
expressly declined to issue an injunction. This is the full text
of the order:
IT IS ORDERED AND ADJUDGED that the
plaintiff has prevailed on its claim for declara-
tory relief under NEPA, that the March 17,
2014 record of decision is vacated, and that the
plaintiff’s remaining claims, including its
claims for injunctive relief, are moot.
Although the order might have included more detail, the na-
ture of the relief granted is plain. The complaint sought de-
claratory relief against not only USDOT, but also Wisconsin
(actually, against the Wisconsin Department of Transporta-
tion (WisDOT) and its secretary, Dave Ross). It asked the
court to “[d]eclar[e] that the Federal Defendants and [Wis-
consin] have failed to comply with … NEPA … by failing to
prepare an adequate [environmental impact statement].”
The district court granted that relief, which means that it en-
tered judgment against both USDOT and Wisconsin.
Nos. 16-2321 & 16-2586 11
As Wisconsin tells us in its post-argument brief, it
planned to rely on the record of decision not just to obtain
USDOT funds for the highway project, but also to acquire
permits required by the Clean Air Act, wetlands permits
from the Army Corps of Engineers, and approvals from the
National Park Service. See 23 U.S.C. § 139(d)(8)(A) (“all Fed-
eral permits and reviews … shall rely on a single environ-
mental document”). It therefore is incorrect for the court to
say—without addressing, let alone refuting, Wisconsin’s
submission—that the district court’s judgment leaves Wis-
consin “free to continue the highway project, though on the
state’s dime.” Ante, at 3. Even if Wisconsin were willing to
foot the bill, the district court’s judgment halts the project in
its tracks. Reversing the district court’s judgment would
clear the way for Wisconsin to proceed using its own funds,
and that alone suffices to establish redressability. See Larson
v. Valente, 456 U.S. 228, 243 n.15 (1982) (“[A] plaintiff satisfies
the redressability requirement when he shows that a favora-
ble decision will relieve a discrete injury to himself. He need
not show that a favorable decision will relieve his every inju-
ry.”) (quoted in Massachusetts v. E.P.A., 549 U.S. 497, 525
(2007)). Neither Kendall-Jackson nor the three other prece-
dents cited by the court say otherwise.
Although the analysis could stop there, it bears mention
that Wisconsin could establish redressability, and thus
standing, even if its only injury were the loss of federal
funds. Recall that the judgment in Kendall-Jackson was an in-
junction prohibiting state officials from enforcing a state law.
If the loss of funds were Wisconsin’s only injury, and if the
district court had not only vacated the record of decision and
declared that it violated NEPA, but also enjoined USDOT
from funding the highway project, Kendall-Jackson would de-
12 Nos. 16-2321 & 16-2586
feat Wisconsin’s standing. But the district court did not en-
join USDOT from doing anything. The object of its judgment
was the record of decision, period; the court vacated the rec-
ord of decision and declared that it violated NEPA. So an
appellate decision reversing the judgment would reinstate
the record of decision, and thereby reopen the gates to fed-
eral funding without any need to upset an injunction against
a party, USDOT, that has not appealed.
The distinction between injunctive and declaratory relief
is real, not illusory. The Civil Rules have long recognized the
difference, see Fed. R. Civ. P. 57, 65, as has the Supreme
Court. See Steffel v. Thompson, 415 U.S. 452, 469 (1974)
(“[D]ifferent considerations enter into a federal court’s deci-
sion as to declaratory relief, on the one hand, and injunctive
relief, on the other.”); Zwicker v. Koota, 389 U.S. 241, 254
(1967) (“[A] request for a declaratory judgment that a state
statute is overbroad on its face must be considered inde-
pendently of any request for injunctive relief against the en-
forcement of that statute.”); see also Badger Catholic, Inc. v.
Walsh, 620 F.3d 775, 782 (7th Cir. 2010) (noting that a declara-
tion differs from an injunction, and stating that “if the entry
of a regulatory injunction can be avoided by a simpler de-
claratory judgment, everyone comes out ahead”); Jordan v.
Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011) (“Where a plaintiff
seeks both an injunction and declaratory relief, the district
court has a duty to decide the appropriateness and the mer-
its of the declaratory request irrespective of its conclusion as
to the propriety of the issuance of an injunction.”) (brackets
omitted). “A declaratory judgment … is merely a declaration
of legal status and rights; it neither mandates nor prohibits
state action.” Perez v. Ledesma, 401 U.S. 82, 124 (1971) (Bren-
nan, J., concurring in part and dissenting in part). “[E]ven
Nos. 16-2321 & 16-2586 13
though a declaratory judgment has ‘the force and effect of a
final judgment,’ 28 U.S.C. § 2201, it is a much milder form of
relief than an injunction. Though it may be persuasive, it is
not ultimately coercive; noncompliance with it may be inap-
propriate, but is not contempt.” Id. at 125-26 (Brennan, J.,
concurring in part and dissenting in part); see also Kennedy
v. Mendoza-Martinez, 372 U.S. 144, 155 (1963) (explaining that
declaratory relief operates “in a totally noncoercive fash-
ion”); Peterson v. Lindner, 765 F.2d 698, 703 (7th Cir. 1985)
(deeming a declaration less coercive than an injunction).
The distinction between declaratory and injunctive relief
is significant for this case. Because the district court granted
only declaratory relief, USDOT has no duties under the
court’s judgment that would remain in place if the declara-
tion were reversed. This therefore is not a case where,
“[b]ecause [USDOT] has not appealed, it [would] remain
bound by [an] injunction[] no matter what happens on [Wis-
consin’s] appeal[].” Kendall-Jackson, 212 F.3d at 997. To the
contrary, and as noted, if Wisconsin prevails on the merits
and the record of decision is reinstated, there would be no
lingering injunction that, despite Wisconsin’s victory, would
nonetheless preclude USDOT from funding the project.
In this sense, Wisconsin’s appeal is much like the one we
permitted in Great Western Casualty Co. v. Mayorga, 342 F.3d
816 (7th Cir. 2003). An insurer brought suit against its in-
sured as well as the tort claimant who had sued the insured,
seeking a declaration of non-coverage. Id. at 817. The district
court ruled for the insurer; the tort claimant appealed, but
the insured did not. Ibid. This raised the question whether
the tort claimant, who had no direct relationship with the
insurer, had standing to appeal. We answered yes, explain-
14 Nos. 16-2321 & 16-2586
ing that the tort claimant’s “practical interest in the [in-
sured’s] insurance status gives her standing … .” Ibid. Had
the district court for some reason enjoined the insured from
accepting coverage, its failure to appeal would, under Ken-
dall-Jackson, have deprived the tort claimant of standing. But
because the object of the district court’s judgment was the
insurance policy, not the insured, the tort claimant could ap-
peal even though the insured had taken a powder. See also
Truck Ins. Exch. v. Ashland Oil, Inc., 951 F.2d 787, 789 (7th Cir.
1992) (holding that the tort claimant’s right to appeal a
judgment of non-coverage while the insurer stands aside “is
conferred in recognition that a tort victim has a practical, al-
beit only a potential, financial interest in the tortfeasor’s in-
surance policy, and the impairment of such an interest is an
injury that will support standing under Article III”). Wiscon-
sin’s position here is materially identical to the tort claim-
ant’s in Mayorga, and the same result should be reached.
So, even if the loss of federal funds for the highway pro-
ject were the only harm the district court’s judgment inflict-
ed on Wisconsin, the State still has established redressability
given the nature of the judgment. And if not, Wisconsin
would have established redressability based on the non-
funding consequences of the judgment on its ability to pro-
ceed with the project.
This case is about redressability, but it’s also about feder-
alism. The appellants in Kendall-Jackson—like the appellants
in Hollingsworth, Diamond, and Princeton University—were
private actors. The appellant here is a State. This matters be-
cause “States are not normal litigants for the purposes of in-
voking federal jurisdiction”; rather, they are “entitled to a
special solicitude in … standing analysis.” Massachusetts, 549
Nos. 16-2321 & 16-2586 15
U.S. at 518, 520; see also Texas v. United States, 809 F.3d 134,
154 (5th Cir. 2015), aff’d by an equally divided court, 136 S.
Ct. 2271 (2016); Wyoming ex rel. Crank v. United States, 539
F.3d 1236, 1241-42 (10th Cir. 2008); Se. Fed. Power Customers,
Inc. v. Green, 514 F.3d 1316, 1322 (D.C. Cir. 2008). Although
special solicitude does not create standing where it manifest-
ly lacks, see Michigan v. E.P.A., 581 F.3d 524, 529 (7th Cir.
2009) (holding that Michigan had no standing to challenge
federal regulatory action that benefitted it), the circumstances
here warrant recognizing Wisconsin’s standing.
Those circumstances concern, first and foremost, the joint
efforts by USDOT and Wisconsin in developing the envi-
ronmental impact statement and record of decision associat-
ed with the highway project. The federal highway funding
statute provides that the States “determine which projects
shall be federally financed.” 23 U.S.C. § 145(a). Under NEPA,
a project “significantly affecting the quality of the human
environment” requires the “responsible Federal official” to
ensure that an environmental impact statement has been
prepared. 42 U.S.C. § 4332(C). Significantly, NEPA provides
that an environmental impact statement for a federally
funded state project may be “prepared by a State agency or
official,” so long as “the responsible Federal official furnish-
es guidance and participates in such preparation” and “in-
dependently evaluates such statement prior to its approval
and adoption … .” 42 U.S.C. § 4332(D). The federal highway
statute likewise provides that the “lead agency,” a term de-
fined to mean both USDOT and “any State … governmental
entity serving as a joint lead agency,” must prepare the rec-
ord of decision and environmental impact statement. 23
U.S.C. § 139(a)(4), (c)(6), (n)(2); see also 23 C.F.R.
§ 771.109(c)(1) (“The lead agencies are responsible for man-
16 Nos. 16-2321 & 16-2586
aging the environmental review process and the preparation
of the appropriate environmental review documents.”).
As Wisconsin notes in its post-argument brief, that is
precisely what happened here. The record of decision lists
both USDOT and WisDOT as lead agencies. Significant por-
tions of the record of decision were prepared by Wisconsin
alone. The district court’s decision recognizes this, referring
(in a non-complimentary way) to what “WisDOT prepared,”
what “WisDOT had not fully explained,” the “methodology
that WisDOT purported to use,” what “WisDOT had failed
to identify,” and “WisDOT’s conclusion.” The district court
even observed that “WisDOT … seems to have performed
most of the work that is at issue in this suit.”
Despite all this, the court says that NEPA “applies only
to the national government.” Ante, at 3. Whether this is cor-
rect as a purely formal matter—and it likely is not given the
extensive federal-state cooperation that NEPA expressly
contemplates—is immaterial. As we have explained, “the
solidest grounds [for standing] are practical,” as “[t]he doc-
trine is needed … to prevent the federal courts from being
overwhelmed by cases, and to ensure that the legal remedies
of primary victims of wrongful conduct will not be usurped
by persons trivially or not at all harmed by the wrong com-
plained of.” Am. Bottom Conservancy v. U.S. Army Corps of
Eng’rs, 650 F.3d 652, 656 (7th Cir. 2011). Wisconsin’s in-
volvement here is by no means trivial; it was not simply an
interested bystander to the preparation of the environmental
impact statement and record of decision. Rather, as the co-
lead agency, Wisconsin was integrally and intimately in-
volved, and its extensive participation was expressly con-
templated by NEPA. Thus, even if the conventional redress-
Nos. 16-2321 & 16-2586 17
ability analysis were close—which it is not, particularly giv-
en that the district court entered judgment against both
USDOT and WisDOT, and that the judgment prohibits Wis-
consin from proceeding with the project even with its own
money—the special solicitude we owe Wisconsin as a State
would require finding that it has established redressability
and accordingly has standing to pursue this appeal.
Recognizing Wisconsin’s standing does not contravene
Greenlaw v. United States, 554 U.S. 237 (2008). The court de-
scribes Greenlaw as holding that an appeals court “cannot
modify a judgment to make it more favorable to a party that
did not file a notice of appeal.” Ante, at 5. Greenlaw is not so
broad; it holds only that an appeals court cannot modify a
judgment to make it more favorable to a non-appealing par-
ty if the non-appealing party was the appellee and did not
cross-appeal. 554 U.S. at 244–45 (“[I]t takes a cross-appeal to
justify a remedy in favor of an appellee.”); see also, e.g., Rich-
ardson v. City of Chicago, 740 F.3d 1099, 1101-02 (7th Cir. 2014)
(citing Greenlaw to justify leaving undisturbed a component
of the district court’s judgment that harmed an appellee who
did not cross-appeal); Harris v. Quinn, 656 F.3d 692, 694 n.1
(7th Cir. 2011) (same), rev’d in part on other grounds, 134 S.
Ct. 2618 (2014); American Bottom Conservancy v. U.S. Army
Corps of Eng’rs, 650 F.3d 652, 660 (7th Cir. 2011) (same); Unit-
ed States v. Avila, 634 F.3d 958, 961 (7th Cir. 2011) (referring
to Greenlaw as imposing a “cross-appeal rule”); Onyango v.
Nick & Howard, LLC, 607 F. App’x 552, 556 (7th Cir. 2015)
(same as Richardson); Anderson v. Anderson, 554 F. App’x 529,
531 (7th Cir. 2014) (same); United States v. Hollis, 445 F. App’x
888, 889 (7th Cir. 2011) (same). Greenlaw does not warrant
dismissing an appeal brought by a losing party on the
ground that another losing party did not appeal. In fact, as
18 Nos. 16-2321 & 16-2586
discussed above, we allowed precisely such appeals in Great
Western Casualty Co. v. Mayorga, supra, and Truck Insurance
Exchange v. Ashland Oil, Inc., supra.
Imagine a case, much like Massachusetts and Texas, where
several States bring suit to enjoin the federal government to
do X—say, more vigorously enforce the environmental laws,
or the immigration laws, in certain respects. Suppose that
the district court enters judgment for the federal government
and that all but one of the States appeal. Reversing the
judgment would benefit the non-appealing State by enjoin-
ing the federal government to do X, but would that fact de-
prive the other States of standing to appeal and thereby dis-
able the appeals court from hearing their appeal? Of course
not, and any reading of Greenlaw that would lead to that re-
sult is incorrect. Cf. Massachusetts, 549 U.S. at 518 (allowing
the case to proceed upon finding that one State, Massachu-
setts, had standing, noting that “[o]nly one of the petitioners
needs to have standing to permit us to consider the petition
for review”); Texas, 809 F.3d at 146 n.2, 155 (same, where the
one State was Texas).
For these reasons, I respectfully dissent from the dismis-
sal of Wisconsin’s appeal for lack of a justiciable controversy,
and would proceed to the merits.