On June 24, 2015, the United States District Court for the District of Minnesota endorsed the “NEPA Exception” in holding that a two-county diversion board did not need to post a bond for a preliminary injunction. Richland/Wilkin Joint Powers Authority v. U.S. Army Corps of Engineers, No. 13-2262 (D. Minn., June 24, 2015).

 

President Nixon signs the National Environmental Policy Act (NEPA) on January 1, 1970. (Source: USDA on Flicker, photo 20120106-OC-AMW-0082).

President Nixon signs the National Environmental Policy Act (NEPA) on January 1, 1970. (Source: USDA on Flicker, photo 20120106-OC-AMW-0082).

The diversion board brought an action including a claim under the National Environmental Policy Act (NEPA) that challenged a plan by the U.S. Army Corps of Engineers and a local government sponsor to build a diversion structure to protect the Fargo-Moorhead metro area from floodwaters.Many courts ruling on cases asserting claims under NEPA have not required plaintiffs seeking preliminary injunctions to post a bond. These courts have cited the important public interest in the enforcement of NEPA and the deterrence to litigation that would result if substantial bonds were required.

Although the Eight Circuit has not expressly adopted the NEPA Exception, the District Court found the rationale of the Exception compelling and applicable to the facts in this case, even though the plaintiff was a governmental entity, not a citizen group (to whom the NEPA exception has most frequently been extended). Notably, one of the plaintiff’s bases for seeking an injunction was that state environmental review, under Minnesota’s Environmental Policy Act (MEPA), was not yet complete. The court held that it was “appropriate to apply the logic behind the NEPA exception to the bond requirement in the context of MEPA.”

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