 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 23, 2018                 Decided June 19, 2018

                        No. 15-5294

   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


        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,
                               2
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 Circuit Judge HENDERSON.

   Concurring opinion filed by Senior Circuit Judge
EDWARDS.

    EDWARDS, Senior Circuit Judge: The Mineral Leasing
Act, 30 U.S.C. § 181 et seq. (2012), and the Federal Land
Policy and Management Act of 1976, 43 U.S.C. § 1701 et seq.,
authorize the Secretary of the Department of the Interior
(“Secretary” or “Department”) to lease rights to mine coal on
public lands. In 1979, acting through the Bureau of Land
Management (“BLM”), the Secretary published a
programmatic environmental impact statement (“PEIS”) for a
Federal Coal Management Program (“Program”). The PEIS
was issued pursuant to the requirements of the National
Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332(2)(C),
and it reflected the Secretary’s proposed approach for
exercising his statutory authority. In July of that year, the
Department issued a Record of Decision adopting the Program.
                               3
BLM then promulgated regulations establishing the Program’s
procedures. It amended those regulations in 1982, and last
issued a supplement to the Program’s PEIS in 1985.

     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 action
that confers upon them a duty to do so.” W. Org. of Res.
Councils v. Jewell, 124 F. Supp. 3d 7, 13 (D.D.C. 2015).
Appellants timely appealed to this court.

     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
                                4
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.” 42 U.S.C. § 4332(2)(C). As part of this process,
agencies must “take a ‘hard look’ at their proposed actions’
environmental consequences in advance of deciding whether
and how to proceed.” Sierra Club v. U.S. Army Corps of
Eng’rs, 803 F.3d 31, 37 (D.C. Cir. 2015). This ensures that
agencies “consider every significant aspect of the
environmental impact of a proposed action,” and “inform the
public” of their analysis. Balt. Gas & Elec. Co. v. Nat. Res. Def.
Council, Inc., 462 U.S. 87, 97 (1983).

    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.
                               5
    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.” 40 C.F.R. § 1508.7 (2017); see also id.
§ 1508.25(a)(2). One way agencies can satisfy this requirement
is by “tiering” their analyses. Tiering allows an agency to meet
its NEPA obligations in steps: First, the agency publishes a
PEIS assessing the entire scope of a coordinated federal
program. See Nevada v. Dep’t of Energy, 457 F.3d 78, 91 (D.C.
Cir. 2006). The PEIS ensures that the agency assesses “the
broad environmental consequences attendant upon a wide-
ranging federal program.” Id. at 92. The agency later
supplements that programmatic analysis with narrower EISs
analyzing the incremental impacts of each specific action taken
as part of a program. Id. at 91.

    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.” 40
C.F.R. § 1502.9(c)(1)(ii) (2017).

    Thus, to meet its NEPA obligations, an agency must
consider the cumulative impacts of a proposed action, see id.
§ 1508.25(a), and generally cannot rely on an outdated analysis
to support its actions, see id. § 1502.9(c)(1)(ii).

   2.    The Federal Coal Management Program

    The Mineral Leasing Act empowers the Department to
lease rights to coal on public lands. 30 U.S.C. § 181 et seq.
Prior to 1973, the Department exercised this power in a
“reactive” manner, processing lease applications on a “case-by-
                               6
case basis.” Dep’t of the Interior, BLM, Final Envtl. Statement,
Fed. Coal Mgmt. Program, 1-9 (1979), [hereinafter “PEIS”],
reprinted at J.A. 113, 142. The agency gave “little
consideration” to “total coal reserves under lease or to the need
for additional leasing, and environmental impacts . . . were not
addressed.” Id. But in the 1970s, the Secretary of the Interior
decided that the better course would be to develop a
comprehensive planning system for future coal leasing. See id.
at 1-9–1-10, J.A. 142–43.

    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
                               7
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 5-
88, J.A. 486, and called for further study of the “impacts of
increased coal utilization,” id. at 5-107, J.A. 505.

    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 43 C.F.R. § 3420.3–4).
                               8

     In 1982, the Secretary issued another rule purporting to
“eliminate burdensome, outdated . . . provisions of the existing
coal management regulations.” Amendments to Coal Mgmt.
Program Regulations, 47 Fed. Reg. 33,114, 33,114 (July 30,
1982). Because the rule redefined the goal for how leasing
targets should be set, a number of commenters argued that the
proposed rule constituted a “new program” and thus required
its own EIS. See id. The Secretary responded that an
environmental assessment had been performed and it had been
determined that no new EIS was required. See id. at 33,115.

     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
                              9
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.

     In administering the Program, the Department continues to
engage in NEPA-required environmental analysis. Each lease
issued under the Program represents a new “federal action.”
The Department prepares a specific EIS or environmental
assessment for each lease before it is approved. See 43 C.F.R.
§ 3425.3 (2017). These project-specific EISs assess greenhouse
gas emissions related to specific leases; however, they do not
purport to consider the general climate effects of the national
leasing Program as a whole. See CEQ, Final Guidance for Fed.
Dep’ts & Agencies on Consideration of Greenhouse Gas
Emissions & the Effects of Climate Change in NEPA Reviews,
81 Fed. Reg. 51,866, 51,866–67 (Aug. 1, 2016), available at
https://www.gpo.gov/fdsys/pkg/FR-2016-08-05/pdf/2016-
18620.pdf; see also WildEarth Guardians v. Jewell, 738 F.3d
298, 309 (D.C. Cir. 2013).

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,
                               10
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.
                               11
                       II.     ANALYSIS

A. Standard of Review

    This court reviews de novo a district court decision granting
a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). Kim v. United States, 632 F.3d 713, 715 (D.C. Cir.
2011). When reviewing the grant of a motion to dismiss, the
court “must treat the complaint’s factual allegations as true, and
must grant [the] plaintiff the benefit of all inferences that can
be derived from the facts alleged.” Sparrow v. United Air
Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (citations and
internal quotation marks omitted).

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
§ 706(1) of the APA, which states that a “reviewing court shall
. . . compel agency action unlawfully withheld or unreasonably
delayed.” 5 U.S.C. § 706(1). Appellants contend that NEPA
requires the Secretary to supplement the 1979 PEIS for the
Federal Coal Management Program, and that the Department’s
failure to do so constitutes “agency action unlawfully
withheld.” Id. Appellants ask this court to compel the Secretary
to comply with the statute as relief for the Department’s
“failure to act.”
                               12
     The seminal case on § 706(1) actions is Norton v. Southern
Utah Wilderness Alliance (SUWA), 542 U.S. 55 (2004). SUWA
teaches that the only action a court may compel an agency to
take under § 706(1) is discrete action that the agency has a duty
to perform. 542 U.S. at 62–63. The legal duty must be
“ministerial or nondiscretionary” and must amount to “a
specific, unequivocal command.” Id. at 63–64. Appellants
point to two sources that they claim require the Secretary to
update the PEIS – (1) the supplementation requirement in the
CEQ regulations; and (2) statements included by the Secretary
in the initial PEIS and ROD promising to update the
environmental analysis as circumstances changed. Because
neither source requires the Secretary to update the PEIS for the
Federal Coal Management Program, Appellants’ claim fails.

    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.” 40 C.F.R. § 1502.9(c)(1)(ii). They claim that
progress in climate science has produced such new
information.

    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
                              13
    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
                               14
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.
                               15
     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 land. Id. Rejecting this argument, the Court
concluded that NEPA imposed no such requirement. Although
it recognized that a supplemental EIS is sometimes necessary,
the Court held that “approval of a land use plan” was the
“major Federal action” triggering NEPA’s EIS requirement,
and that “action [wa]s completed when the plan [wa]s
approved.” Id. at 72–73. Because there were no proposed
amendments or revisions to the plan, there remained “no
ongoing ‘major Federal action’ that could require
supplementation’” under the first prong of the Marsh test. Id.
at 73.

     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. 42
U.S.C. § 4332(2)(C). The Secretary argues that the relevant
actions here were the 1979 and 1982 final rules, and that they
– like the plan in SUWA – were completed when promulgated.
                              16
Appellants, in turn, argue that the action should be viewed as
encompassing the Program broadly, including the leases and
orders that the Department issues on an ongoing basis. On this
view, there remains sufficient activity to occur as part of the
Program to require supplementation.

     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
                               17
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 Program. That action was
completed when the Secretary issued the ROD and
promulgated the final rule in 1979.

     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 43 C.F.R.
§ 1601.0–6). They claim that because there is no similar
regulation here, SUWA does not control. Appellant’s view of
the record is mistaken. The Secretary’s 1979 Final Rule
referred to “the adoption of the Federal coal management
program on June 1 and 2, 1979” as “a major Federal action
significantly affecting the quality of the human environment”
for which the 1979 EIS was published. 44 Fed. Reg. at 42,608
(emphasis added). And the PEIS identified the proposed action
as “the adoption of the . . . Federal coal management program.”
PEIS at iv, J.A. 119 (emphasis added). Appellants provide no
persuasive reason to treat the agency’s definition of the action
here differently than the regulation in SUWA.

     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
                               18
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 40 C.F.R.
                               19
§ 1508.28; id. § 1502.9(c)(1)(ii). NEPA compels the
Department to include a complete environmental analysis in its
proposal for any new major Federal action – even actions taken
pursuant to the Federal Coal Management Program. See
SUWA, 542 U.S. at 73. Indeed, the Secretary admits that any
deficiencies in the PEIS “may affect the ability of BLM to ‘tier’
to that document when making individual leasing decisions.”
Sec’y’s Br. 24. Our decision in WildEarth Guardians v. Jewell,
738 F.3d 298 (D.C. Cir. 2013), is not to the contrary. In that
case, the court rejected a challenge to the sufficiency of the
climate impacts analysis provided in the EIS for a specific
licensing decision. Id. at 308–11. But the appellants in that case
did not argue that tiering to the PEIS was inadequate because
the PEIS had not been supplemented, and the court did not
address that issue. See id.

     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
                              20
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 40 C.F.R. § 1505.3 (stating that
“conditions established in the [EIS] or during its review and
committed as part of the decision shall be implemented”); Tyler
v. Cisneros, 136 F.3d 603, 608 (9th Cir. 1998) (citing 40 C.F.R.
§ 1505.3 for the proposition that, where an agency commits to
a measure in its EIS, the agency is required to implement the
measure). In 1982, however, as part of its final rule amending
the coal leasing regulations, the Department removed the
provision explaining the circumstances in which the PEIS
should be updated. See 47 Fed. Reg. at 33,115. In doing so, the
Department made clear that it did not intend to bind itself to
any supplementation duty beyond that imposed by NEPA.

      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, 543 U.S. at 72–73.
                           21
                   III.   CONCLUSION

    On the record before us, neither NEPA nor the
Department’s own documents create a legal duty for the
Secretary to update the Federal Coal Management Program’s
PEIS. Therefore, this court has no authority to compel the
Department to supplement its analysis. The decision of the
District Court is hereby affirmed.

                                               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), 42 U.S.C. § 4332, imposed a duty to
supplement an EIS and whether the agency’s failure to do so
was actionable under the APA. 542 U.S. at 72–73. It set forth
                               2
the order of operations in mandatory terms: “Before addressing
whether a NEPA-required duty is actionable under the APA,
we must decide whether NEPA creates an obligation in the first
place.” Id. at 72 (emphasis added). After holding that NEPA
did not require a supplemental EIS, the Supreme Court went no
further; it did not decide whether the claim was actionable
under the APA. Id. at 72–73. In deciding this appeal, the
majority follows the Supreme Court’s—rather than the
Government’s—roadmap. Cf. Yousuf v. Samantar, 451 F.3d
248, 255 (D.C. Cir. 2006) (stating general proposition that “we
follow the guidance of the Supreme Court”); Broudy v. Mather,
460 F.3d 106, 118 (D.C. Cir. 2006) (noting that parties’ “briefs
[do not] follow the approach of the Supreme Court . . . to
specifically identify claims as ‘backward-looking’ or ‘forward-
looking’” and identifying claims based on Supreme Court
precedent). We first address whether NEPA required a
supplemental EIS. Answering that question in the negative, we
need not and do not proceed further—an outcome I believe
proper under SUWA and judicial restraint principles.
    EDWARDS, Senior Circuit Judge, concurring: In opposing
Appellants’ claim in this case, the Department pressed two
arguments: (1) Declining to prepare a supplemental EIS is not,
by itself, a “failure to act” that qualifies as reviewable “final
agency action” under § 704 of the APA; and (2) The NEPA
regulations do not require the Department to supplement its
PEIS in this case. Because we agree with the Department on
the second point, the majority has declined to address the first
point. I write separately to address the first point. Why?
Because the Department’s argument raises a very important
issue regarding the scope of § 706(1) of the APA, and, in my
view, the Department’s argument regarding the reach of § 704
is both wrong and mischievous.

      Appellants’ cause of action in this case rests solely on
§ 706(1) of the APA, which states that a “reviewing court shall
. . . compel agency action unlawfully withheld or unreasonably
delayed.” 5 U.S.C. § 706(1). Appellants contend that NEPA
requires the Secretary to supplement the 1979 PEIS for the
Federal Coal Management Program, and that the Department’s
failure to do so constitutes “agency action unlawfully
withheld.” Id. Appellants ask this court to compel the Secretary
to comply with the statute as relief for the Department’s
“failure to act.”

     As noted in the opinion for the court, the seminal case on
§ 706(1) actions is Norton v. Southern Utah Wilderness
Alliance (SUWA), 542 U.S. 55 (2004). The District Court
correctly explained that “[a] claim under the ‘unlawfully
withheld’ provision of § 706(1) can proceed only if it contends
that the ‘agency failed to take a discrete agency action that it is
required to take.’” W. Org. of Res. Councils v. Jewell, 124 F.
Supp. 3d 7, 10 (D.D.C. 2015) (quoting SUWA, 542 U.S. at 64).
In SUWA, the Court also explained how § 706(1) fits into the
APA review framework:
                                2
   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, 542 U.S. at 61–62.

    SUWA’s reference to “final agency action” under 5 U.S.C.
§ 704 is perplexing insofar as it may pertain to actions under
§ 706(1) for “failure to act.” There is a well-recognized two-
part test to determine whether an action is a “final agency
action” under § 704. “First, the action must mark the
‘consummation’ of the agency’s decisionmaking process—it
must not be of a merely tentative or interlocutory nature.”
Bennett v. Spear, 520 U.S. 154, 177–78 (1997). “And second,
the action must be one by which ‘rights or obligations have
been determined,’ or from which ‘legal consequences will
flow.’” Id. Obviously, this test does not easily accommodate an
agency’s failure to act. If an agency has failed to act with
respect to a matter that a complaining party seeks to compel
under § 706(1), it is hard to comprehend the contested inaction
as “final action” as that term is defined in Bennett v. Spear.
And, yet, the Court’s decision in SUWA leaves no doubt that an
agency’s failure to act may be challenged under § 706(1) if the
                                3
action is discrete and one that the agency is required to take.
See 542 U.S. at 64.

    The lower courts have remained a bit at sea over how to
interpret the words in SUWA referring to § 704 and § 706(1).
Judge Ebel’s discussion of this issue in the Tenth Circuit case
leading to the Supreme Court’s decision in SUWA is
illuminating:

    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 5
U.S.C. § 706(1) without satisfying the test of Bennett v. Spear.
See, e.g., Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S.
1, 19–20, 19 n.10 (2013) (noting, without discussion of Bennett
v. Spear’s final agency action requirement, that a litigant
“would be free to seek a writ of mandamus” under § 706(1));
Pub. Citizen Health Research Grp. v. Comm’r, FDA, 740 F.2d
                                  4
21, 32 (D.C. Cir. 1984) (holding that “the court can undertake
review [under § 706(1)] as though the agency had denied the
requested relief and can order an agency to either act or provide
a reasoned explanation for its failure to act”).

    SUWA says that “§ 706(1) empowers a court . . . to compel
an agency to perform a ministerial or non-discretionary act, or
to take action upon a matter, without directing [how] it shall
act.” 542 U.S. at 64 (emphasis added). There is no doubt that
SUWA means to endorse “failure to act” claims under § 706(1)
so long as a complaining party has sufficiently alleged “that an
agency failed to take a discrete agency action that it is required
to take.” Id. And “legally required” “discrete” actions that have
not been performed, as in the context of a § 706(1) claim,
cannot satisfy the finality requirements of Bennett v. Spear. In
opposing Appellants’ action in this case, the Secretary seems
not to understand this point.

      The Secretary argues that “the decision not to prepare a
supplemental EIS is not a ‘final agency action’ as that term is
defined in section 704 and is therefore not by itself subject to
direct judicial review.” Sec’y’s Br. 13. However, this is
irrelevant to any assessment of the viability of a claim under
§ 706(1). The Secretary also contends that “[a] completed EIS
is . . . not, by itself, final agency action that is subject to review,
so the failure to complete one is not a ‘failure to act’ that may
be independently reviewed under the APA in the absence of
some challenge to a substantive final agency action for which
an EIS or supplemental EIS should have been prepared.” Id. at
14–15 (emphasis removed). This argument finds no support in
the language of § 706(1) and it completely distorts the Court’s
holding in SUWA.

   In an apparent effort to overcome the obvious frailties in its
argument, the Department makes much of the fact that an EIS
                               5
is merely “a procedural prerequisite to a decision by the agency
to undertake a ‘major Federal action.’” Id. at 15 (emphasis
added). According to the Secretary, “[a]s a procedural
prerequisite to some other final agency action, an EIS is not
directly reviewable under the APA, but is subject to review on
the review of the final agency action.” Id. at 16.

    The fact that the preparation of an EIS may be a
“procedural” matter is irrelevant to whether Appellants have
raised a viable claim under § 706(1). The Secretary seems not
to comprehend that “procedural rights” claims may be viable
without regard to whether they result in any enforceable
substantive rights.

    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 § 706(1)
review, but the Court’s discussion is instructive. As that
decision suggests, the right to challenge an agency’s failure to
act in preparing an EIS is not diminished by the fact that such
a suit protects merely a plaintiff’s “procedural right” to have
the EIS issued, rather than any “substantive right” regarding
the action the agency will ultimately take.
                               6

    In any event, I find no merit in the Secretary’s attempt to
limit the scope of judicial review under § 706(1). In assessing
claims under § 706(1) – even in cases in which the claimants
have lost – this court has never followed the approach the
Secretary suggests in this case. See, e.g., Anglers Conservation
Network v. Pritzker, 809 F.3d 664, 670–72 (D.C. Cir. 2016)
(analyzing the scope of § 706(1) without regard to the test of
“final agency action” under § 704); El Paso Nat. Gas Co. v.
United States, 750 F.3d 863, 890 (D.C. Cir. 2014) (explaining
that claims under § 706(1) are viable when the allegedly
withheld action is (1) “legally required” and (2) “discrete”).
Our decision in Public Citizen v. Office of U.S. Trade
Representatives, 970 F.2d 916 (D.C. Cir. 1992), on which the
Secretary purports to rely, is inapposite because it says nothing
about the scope of § 706(1).

    The Secretary’s position is flawed because it conflates the
question regarding the scope of § 706(1) with the question
relating to the merits of Appellants’ “failure to act” claim. The
Secretary’s line of reasoning finds no support in SUWA or in
other decisions that have addressed the scope of § 706(1).
