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Northern Alaska Environmental Center v. Kempthorne

 

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Various environmental organizations appealed a district court’s grant of summary judgment upholding the adequacy under the National Environmental Policy Act (NEPA)[1] and the Endangered Species Act (ESA)[2] of a Final Environmental Impact Statement (FEIS) prepared by the Bureau of Land Management (BLM) in connection to its plan to offer long term gas and oil leases in Alaska’s Northwest Planning Area (NWPA). The Ninth Circuit affirmed the summary judgment, holding that the FEIS violated neither NEPA nor the ESA.

The NWPA is part of the 23.6 million-acre National Petroleum Reserve-Alaska (NPR-A). Congress lifted the prohibition on petroleum development in the NPR-A in 1980.[3] In 1998, BLM opened 87% of the NPR-A’s Northeast Planning Area to oil and gas leasing. The NWPA consists of 8.8 million acres to the west of the Northeast Planning Area and is an important wildlife and vegetation habitat. BLM is now in the early stages of planning petroleum development in the NWPA.

An Alaskan district court held that BLM’s FEIS was adequate under NEPA and the ESA, granting summary judgment to the government.[4] Plaintiffs appealed. The Ninth Circuit reviews district court grants of summary judgment de novo.[5] In considering substantive agency actions with respect to NEPA, the Ninth Circuit inquires whether, under the Administrative Procedure Act (APA) ,[6] the agency’s action was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”[7] The court defers to an agency’s decision that is “fully informed and well-considered.”[8] The plaintiffs alleged that BLM’s FEIS violated NEPA by inadequately performing site-specific analysis and by failing to consider reasonable alternatives, mitigating measures, and cumulative impacts of reasonably foreseeable actions. Plaintiffs also alleged that BLM violated the ESA by employing an insufficient Biological Opinion (BiOp) in formulating its FEIS.

The Ninth Circuit began by addressing plaintiffs’ argument that BLM’s FEIS failed to adequately perform site-specific analysis of the environmental impact of the oil and gas leases in the NWPA. NEPA requires such analysis if a federal agency has made an “irretrievable commitment of resources” to a project.[9] Plaintiffs argued that NEPA required BLM to perform site-specific analysis of the environmental impact of exploration and development on each of the 488 parcels where exploratory drilling and development could occur within the NWPA. The court reasoned, however, that before lessees began exploring for oil and gas, the government could not possibly determine which parcels would be suited for further exploratory work and development, and therefore require a site-specific analysis. In order to give effect to Congress’s intent, not only as expressed in NEPA but also as indicated in the 1980 act removing the prohibition on petroleum exploration in the NPR-A, the court held that the FEIS was adequate because it considered “hypothetical situations that represented the spectrum of foreseeable results.”[10] The FEIS analyzed two hypothetical situations, one involving the lease of half of the available parcels for exploration but no actual development and the other involving the discovery and development of all resources available. The court recognized that in order to open the land for development, as Congress requires, a multi-stage lease process would be necessary; it would frustrate development, and therefore the wishes of Congress, if the court required BLM to determine the environmental impact of all stages of development at the exploration stage, during which it is impossible to determine future impact on specific parcels. The court distinguished Conner v. Burford,[11] which did not discuss the requisite degree of specificity in an EIS, only whether one needed to be done at all. The court also noted the inherent uncertainty in multi-stage projects.[12] While holding that the analysis in the FEIS at issue did not violate the APA, the Ninth Circuit maintained that challenges to the EIS at such an early stage are generally permissible. The court stressed that NEPA would apply to all future stages of development, so that later development plans would be subject to further review.[13]

Next, the Ninth Circuit addressed plaintiffs’ allegation that BLM violated NEPA by not considering a wide enough array of alternatives in the FEIS[14] and failing to include the “Audubon Alternative.”[15] The court indicated that an agency’s consideration of alternatives under NEPA “is sufficient if it considers an appropriate range of alternatives, even if it does not consider every available alternative.”[16] Therefore, agencies need not consider alternatives at odds “with the basic policy objectives for the management of the area.”[17] Plaintiffs argued that the FEIS was inadequate because it failed to consider alternatives, such as the Audubon Alternative, that called for moderate development (as opposed to full development or no development). The court concluded that BLM’s Preferred Alternative actually constituted moderate development because, although it makes 96% of the NWPA available for oil and gas leasing, it included restrictions on leases. The court pointed out that BLM incorporated parts of the Audubon Alternative in its Preferred Alternative and provided adequate reasons for eliminating the other parts as inconsistent with the NWPA project.[18]

The Ninth Circuit next addressed plaintiffs’ assertion that the EIS violated NEPA by failing to adequately discuss mitigating measures. Plaintiffs argued that the EIS did not sufficiently analyze the effectiveness of its mitigation measures. The court provided that a valid EIS need only contain “a reasonably complete discussion of possible mitigation measures,” and demonstrate “that environmental consequences have been fairly evaluated”[19] The court reasoned that because the extent of development and consequent future environmental impacts are uncertain, BLM’s lease stipulations and Required Operating Procedures that imposed pre-application requirements were sufficient to meet NEPA’s requirements.

Next, the Ninth Circuit addressed plaintiffs’ allegation that the EIS violated NEPA by failing to address the cumulative impacts of reasonably foreseeable actions. Plaintiffs argued that the EIS should have considered the proposal within a BLM Notice of Intent to remove certain wildlife protections in an area adjacent to the NWPA, which would modify that adjacent area’s EIS. The court noted that NEPA requires a FEIS to address the cumulative impacts of reasonably foreseeable future actions,[20] and provided that proposed actions[21] and actions described in a Notice of Intent[22] are both reasonably foreseeable under NEPA. The Ninth Circuit provided that BLM’s Notice of Intent had the effect of judicially estopping the agency from refusing to consider all impacts in the NWPA resulting from changes to the adjacent area’s EIS.[23] The court indicated that BLM should consider the cumulative impacts of the changes detailed in the Notice of Intent later in the NWPA development process.

Finally, the Ninth Circuit reached plaintiffs’ claims under the ESA. Plaintiffs argued that BLM and the United States Fish and Wildlife Service (FWS) violated the ESA by relying on improper assumptions in considering the whole BLM action and by ignoring the irregular distribution of two endangered bird species. The court noted that the ESA “requires the Secretary of the Interior to ensure that an action of a federal agency is not likely to jeopardize the continued existence of any . . . endangered species,”[24] using “the best scientific and commercial data available.”[25] Due to the lack of information about specific future activities, the Ninth Circuit held that FWS validly relied on projections of potential development activity.[26] The court noted that BLM must reinitiate consultation with FWS if the BiOp’s assumptions later prove inaccurate.[27]

In conclusion, the Ninth Circuit upheld the district court’s grant of summary judgment to BLM, holding that BLM’s FEIS violated neither NEPA nor the ESA.


[1] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-70e (2000).

[2] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-44 (2000).

[3] 42 U.S.C. § 6508a (2000).

[4] N. Alaska Envtl. Ctr. v. Norton, 361 F. Supp. 2d 1069, 1085 (D. Alaska 2005).

[5] Natural Res. Def. Council v. U.S. Dep’t of Interior, 113 F.3d 1121, 1123 (9th Cir. 1997).

[6] Administrative Procedure Act, 5 U.S.C. §§ 551-59, 701-06, 1305, 3105, 3344, 4301, 5335, 5362, 7521 (2000).

[7] Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998) (quoting the APA, 5 U.S.C. § 706(2)(A) (2000)).

[8] Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988) (quoting Jones v. Gorden, 792 F.2d 821, 828 (9th Cir. 1986).

[9] Conner v. Burford, 848 F.2d 1441, 1446 (9th Cir. 1988).

[10] N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 972 (9th Cir. 2006).

[11] 848 F.2d 1441 (9th Cir. 1988).

[12] See N. Slope Borough v. Andrus, 642 F.2d 589, 605-06 (1980) (

[13] See 43 C.F.R. § 3162.3-1(c) (2006).

[14] See 42 U.S.C. § 4332(2)(C)(iii) (2000) (mandating that all federal agencies provide a detailed alternatives analysis in every recommendation or report on proposals for legislation or major federal actions).

[15] The Audubon Society proposed the Audubon Alternative in a comment to the draft EIS, recommending that BLM not offer leases on 35% of the high oil potential area.

[16] Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1181 (9th Cir. 1990).

[17] Id. at 1180-81 (citing Cal. v. Block, 690 F.2d 753, 767 (9th Cir. 1982)).

[18] See 40 C.F.R. § 1502.14(a) (2006) (requiring that an agency explain its reasoning for eliminating an alternative).

[19] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989).

[20] See 40 C.F.R. § 1508.25(a)(2) (2006) (requiring that a FEIS consider “[c]umulative actions, which when viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement”).

[21] Lands Council v. Powell, 379 F.3d 738, 746 (9th Cir. 2004) rev’d on other grounds, 395 F.3d 1019 (9th Cir. 2005).

[22]Tenakee Springs v. Clough, 915 F.2d 1308, 1313 (9th Cir. 1990); Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 812 (9th Cir. 1999).

[23] See Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1357-58 (9th Cir. 1994) (“[h]aving persuaded the district court that it understands its duty to follow NEPA in reviewing future site-specific programs, judicial estoppel will preclude the Forest Service from later arguing that it has no further duty to consider the cumulative impact of site specific programs.”).

[24] Conner v. Burford, 848 F.2d 1441, 1451-52 (9th Cir. 1988); see also 16 U.S.C. § 1536(a)(2) (2000)

[25] 16 U.S.C. § 1536(a)(2) (2000).

[26] See Conner v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988) (providing that the ESA requires agencies to “make projections, based on potential locations and levels [of] oil and gas activity, of the impact of production on protected species”).

[27] See 50 C.F.R. § 402.16(b) (2006).

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