Home » Case Summaries » 2015 » Alaska Wilderness League v. Jewell, 788 F.3d 1212 (9th Cir. 2015)

 
 

Alaska Wilderness League v. Jewell, 788 F.3d 1212 (9th Cir. 2015)

 

In this case, the Alaska Wilderness League, as part of a coalition of environmental groups[1] (collectively, the Coalition), sought review of actions taken by the Bureau of Safety and Environmental Enforcement (BSEE) in approving oil spill response plans (OSRPs) submitted by Shell, along with exploration plans, as required under the Clean Water Act (CWA).[2] The Coalition claimed that BSEE’s approval of the OSRPs violated the Administrative Procedure Act (APA),[3] the Endangered Species Act (ESA),[4] and the National Environmental Policy Act (NEPA).[5] The district court granted summary judgment in favor of the federal defendants and Shell, and the Ninth Circuit affirmed.

The Outer Continental Shelf Lands Act (OCSLA)[6] provides a process for the exploration and development of offshore oil and gas resources that includes submission of an exploration plan to the Secretary of the Interior for approval.[7] Although the OCSLA governs the actual development of oil and gas resources, the CWA supplements the OCSLA by providing structured guidance for preventing and responding to potential oil spills. The CWA requires that an OSRP accompany the exploration plan for the purpose of contingency planning and places statutory requirements on what must be included in an OSRP.[8] BSEE must “promptly review” submitted OSRPs, “require amendments to any plan that does not meet the requirements [of the Act],” and “shall . . . approve any plan that meets” the statutory requirements of the CWA.[9]

The court reviewed the district court’s grant of summary judgment de novo. In its review, the court considered BSEE’s actions in approving the OSRPs under the arbitrary and capricious standard set forth in the APA.[10] The court noted that under that narrow standard of review, it could not substitute its own judgment for that of the agency. BSEE had authority to promulgate rules regarding OSRPs and to review submitted plans for compliance with the requirements of the CWA; accordingly, the court reviewed BSEE’s interpretation of the CWA to determine whether it was reasonable.

The Coalition challenged BSEE’s approval of Shell’s OSRPs as arbitrary and capricious under the APA. Specifically, the Coalition claimed that Shell’s OSRP assumed that in a worst case discharge of 25,000 barrels of oil per day it could recover 90 to 95 % of any oil spilled in the Arctic Ocean, which the Coalition characterized as an unrealistic and impossibly high recovery rate. The Coalition asserted that, because Shell assumed such an impossibly high recovery rate, BSEE’s approval of the OSRP was necessarily arbitrary and capricious. The court, however, held that the record did not support the Coalition’s claim regarding the impossibly high recovery rate; rather, Shell was claiming it had the capacity to store 95 % of the amount discharged, not that it could actually recover that much. Accordingly, the court rejected the Coalition’s claim.

The Coalition next argued that BSEE violated section7 of the ESA, which requires federal agencies to consult with appropriate environmental agencies prior to taking actions that may affect endangered species.[11] The court explained that the consultation requirement is only triggered if there is discretionary Federal involvement or control because consultation is meaningless if the agency lacks power to implement changes.[12] The court concluded that approval of OSRPs is a nondiscretionary action, and thus ESA consultation is not triggered. In reaching this conclusion, the court applied the Chevron[13] framework to evaluate BSEE’s interpretation of the CWA. Under this framework, the court first reviews the governing statute for ambiguity. If it finds ambiguity, the court then reviews if the agency’s interpretation of the statute is reasonable.

The first step of Chevron required the court to review the relevant portions of the CWA for ambiguity. Upon review, the court found the statute ambiguous in two ways: in the language itself, and in the statute’s structure. The court noted that the text of the CWA does not explicitly grant or deny BSEE discretion to consider additional environmental factors, such as the presence of endangered species, in the OSRP approval process. The court further noted that the applicable sections of the CWA suggest no agency discretion because they appear to operate as a checklist, with BSEE approving any OSRP that meets all requirements. Finally, the court concluded that the statute’s structure added to the ambiguities of the text by characterizing BSEE’s discretion using both broad language and finite criteria. Because the statute’s text was ambiguous, the court proceeded to the second step of the Chevron analysis.

The second step of Chevron required the court to review BSEE’s interpretation of the ambiguous statute and determine if the interpretation was reasonable. If BSEE’s interpretation was a reasonable construction of the statute, the court must defer to BSEE’s interpretation. BSEE read the statute as an instruction to issue regulations that explain how operators can comply with the statutory checklist. BSEE interpreted the CWA to require approval of OSRPs that meet the statutory requirements. The Ninth Circuit concluded that these interpretations of the governing statutes were both reasonable and consistent with the legislative history. Therefore, the court deferred to BSEE’s interpretation of the statute, and held that BSEE’s approval of the OSRPs was a nondiscretionary act that did not trigger the consultation requirement under the ESA.

Finally, the Coalition claimed that BSEE violated NEPA by failing to prepare an Environmental Impact Statement (EIS) before approving Shell’s ORSPs. NEPA requires federal agencies to provide an EIS for all “major Federal actions significantly affecting the quality of the human environment.”[14] The court rejected this claim because NEPA exempts agencies from the EIS requirement where an agency’s action is nondiscretionary. Because the court had already concluded that BSEE must approve all OSRPs that meet the statutory requirements and could not refuse to perform that action, BSEE’s approval of the plan fell within the NEPA exception. Thus, BSEE did not need to submit an EIS prior to approving an OSRP.

Because BSEE’s approval of Shell’s OSRPs did not violate the APA, the ESA, or NEPA, the Ninth Circuit affirmed the district court’s grant of summary judgment in favor of the federal defendants and Shell.

Footnotes    (↵ returns to text)

  1. Plaintiff-appellants included the Center for Biological Diversity, Inc., Greenpeace, Inc., the National Audobon Society, Inc., the Natural Resources Defense Council, Inc., Ocean Conservancy, Inc., Oceana, Inc., the Pacific Environment and Resources Center, REDOIL, Inc., and the Sierra Club.
  2. Federal Water Pollution Control Act, 33 U.S.C. §§ 1251–1387 (2012). See 30 C.F.R. § 550.219 (2015) (describing information regarding potential oil and hazardous substance spills required as accompaniment to the exploration plan).
  3. 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5335 (2012).
  4. Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544 (2012).
  5. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  6. 43 U.S.C. §§ 1331–1356a (2012).
  7. Id. § 1344.
  8. CWA, 33 U.S.C. § 1321(j)(5)(D) (2012).
  9. Id. § 1321(j)(5)(E)(i)–(iii).
  10. APA, 5 U.S.C. § 706 (2012).
  11. ESA, 16 U.S.C. § 1536(a) (2012).
  12. 50 C.F.R. § 402.03 (2015).
  13. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).
  14. NEPA, 42 U.S.C. § 4332(C) (2012).
Print this pageEmail this to someoneTweet about this on TwitterShare on Facebook

Comments are closed

Sorry, but you cannot leave a comment for this post.