Charles R. Butler, Jr., Senior United States District Judge.
This action arises from restoration efforts by federal and state agencies following the 2010 Deepwater Horizon Oil Spill in the Gulf of Mexico. Specifically, the Plaintiff challenges Defendants' plan to use a portion of funds provided for early restoration of natural resources to partially fund a proposed lodge and conference center at Alabama's Gulf State Park. The parties submitted the matter for resolution on cross motions for summary judgment and came before the Court for oral argument on January 26, 2016. (Docs. 46, 48, 51, & 52.) After careful consideration of the administrative record, the arguments of counsel, and the applicable law, the Court finds Plaintiff is entitled to relief on one of the causes of action asserted in the Second Amended Complaint (SAC).
On April 10, 2010, the offshore drilling rig Deepwater Horizon operated by British Petroleum Exploration and Production, Inc. (BP) "exploded, caught fire and subsequently sank in the Gulf of Mexico, resulting in an unprecedented volume of oil and other discharges." (AR 026319-20.) The oil spill was the largest in United States history, releasing millions of barrels over a period of 87 days and causing damage to natural resources in all five Gulf Coast states. (AR 026320.) "Affected natural resources include[d] ecologically, recreationally, and commercially important species and their nearshore and offshore habitats in the Gulf of Mexico and along the coastal areas of Alabama, Florida,
Gulf Restoration Network (GRN) "is a non-profit membership corporation incorporated under the laws of the State of Louisiana. (SAC ¶ 15, Doc. 34.) GRN "has numerous members who live, work, and take advantage of the tremendous outdoor recreation opportunities in and around Gulf State Park." (Id.) The Defendants are Federal and State Trustees designated pursuant to OPA to conduct a Natural Resources Damages Assessment and "develop a plan for the restoration, rehabilitation, replacement or acquisition of the equivalent, of natural resources under their trusteeship." 33 U.S.C. § 2706(c)(1)(C) & (c)(2)(C). Sally Jewell is sued in her official capacity as Secretary of the United States Department of Interior. Dr. Kathryn Sullivan is sued in her official capacity as the Undersecretary of Commerce for Oceans and Atmosphere and Administrator of National Oceanic and Atmospheric Administration (NOAA). Gina McCarthy is sued in her official capacity as Administrator of the United States Environmental Protection Agency (EPA). Tom Vilsack is sued in his official capacity as Secretary of the United States Department of Agriculture (USDA). Gunter Guy Jr. is sued in his official capacity as the Commissioner of the Alabama Department of Conservation and Natural Resources.
The Oil Pollution Act of 1990, 33 U.S.C. §§ 2701 et seq., was enacted in response to a series of oil spills, the most notorious of which was the 1989 grounding of the tanker Exxon Valdez in Prince William Sound, Alaska.
If the trustees determine that an oil discharge caused injury to natural resources and that restoration is required, they must "identif[y] a `reasonable range' of restoration alternatives, evaluating them against several factors, including cost, potential success, risk of collateral injury, and public health and safety." Gen. Elec., 128 F.3d at 770 (citing 15 C.F.R. § 990.53-990.54.) Next, the trustees develop a Draft Restoration Plan "setting forth the injury assessment procedures employed, the nature and extent of injuries resulting from the discharge, the restoration goals, the range of restoration alternatives considered, how the alternatives were evaluated, and which alternatives were chosen. Id. at 771 (citing 15 C.F.R. § 990.55(b)). After public notice and comment, the trustees adopt a Final Restoration Plan. Id. (citing 15 C.F.R. § 990.55(d)). Finally, the trustees demand payment from the responsible party or parties. Id. (citing 15 C.F.R. § 990.62(a)).
The National Environmental Policy Act of 1969 (NEPA) "establishes a `national policy [to] encourage productive and enjoyable harmony between man and his environment,' and was intended to reduce or eliminate environmental damage and to promote `the understanding of the ecological systems and natural resources important to' the United States." Dept. of Transportation v. Public Citizen, 541 U.S. 752, 756, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 42 U.S.C. § 4321). NEPA "does not mandate particular results" but instead requires agencies to analyze the environmental impact of their proposed actions. Id. To this end, NEPA imposes "action-forcing procedures" on Federal agencies. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). The "heart" of NEPA is the Environmental Impact Statement (EIS). Id. If a proposed major Federal action would significantly affect the quality of the human environment, the official(s) responsible for the proposal must prepare an EIS that examines the adverse environmental impacts of the action, alternatives to the proposed action, "the relationship between short-term uses of man's environment and the maintenance and enhancement of long-term productivity," and "any irreversible and irretrievable commitments of resources" involved in the proposed action. 42 U.S.C. § 4332(2)(C).
Federal regulations further define the requirements an EIS must meet. 40
The Administrative Procedures Act (APA), 5 U.S.C. §§ 701-70, permits any person adversely affected by a Federal agency's action to obtain judicial review of that action in Federal court. Id. §§ 702, 703. "The APA provides for judicial review of `final agency action for which there is no other adequate remedy in a court.'" Franklin v. Massachusetts, 505 U.S. 788, 796, 112 S.Ct. 2767, 120 L.Ed.2d 636 (1992) (quoting 5 U.S.C. § 704). Thus, when a statutory scheme (such as NEPA or OPA) provides no private right of action, an aggrieved party may seek review under the APA. See, e.g., Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (reviewing agency's NEPA action under APA); Bean Dredging, LLC v. United States, 773 F.Supp.2d 63 (D.D.C.2011) (reviewing agency's OPA action under APA). An agency's action may be set aside under the APA if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.S § 706(2)(A). The "arbitrary and capricious" standard of review is highly deferential. As the Eleventh Circuit has explained:
North Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1538-39 (11th Cir.1990).
The Deepwater Horizon's unprecedented oil spill, beginning April 20, 2010 and continuing 87 days until the oil well was capped, triggered OPA's natural resources damage assessment (NRDA) provisions. Federal Trustees and State Trustees from the five affected states (Alabama, Florida, Louisiana, Mississippi, and Texas) began to assess injuries to natural resources from the spill. One year later the Trustees entered into an agreement with BP.
Early restoration projects were planned to take place in three phases. (AR 015251-53.) Phase I and Phase II, which totaled $71 million, were approved in April and December 2012, respectively. The project at issue here is part of Phase III.
The Phase III plan, finalized in June 2014, is composed of 44 projects in five states. (AR 105185.) Two types of projects were chosen for funding in this phase: (1) restoration of habitats and living coastal and marine resources and (2) recreational use opportunities. (AR 015191.) The total cost of these projects is approximately $627 million, approximately one-third of which ($230 million) is dedicated to recreational use. (AR 015193.) The projects are intended to be independent of each other, so that selection of one project does not affect the viability of any other project. (AR 015193.)
At an estimated $85.5 million the Gulf State Park Enhancement Project is the most expensive recreational use project, by far, and the second most expensive Phase III project.
At the time Phase III was approved, the Gulf State Park lodge and conference center was little more than a concept.
The Trustees prepared and submitted a Phase III Programmatic Environmental Impact Statement (PEIS) for public comment and held public meetings before adopting the final PEIS in June 2014. (AR 015184-88.) The PEIS is broad, covering all Phase III projects, and uses "[a] programmatic approach to assist the Trustees in evaluation of proposed projects." (AR 015190.) Four categories of potential programs were identified: (1) No action (i.e., no additional early restoration); (2) Restoration of habitat and living and coastal marine resources; (3) Enhanced recreational use opportunities; (4) a combination of (2) and (3). (AR 015191.) The Trustees chose alternative (4) — a combination of restoration and recreational use. (Id.) Each of the 44 projects falls within one of these broad programmatic categories, sometimes referred to as "alternatives". (AR 015195-015197.) The PEIS explained the purpose and need for Phase III action as follows: "For the purpose of accelerating meaningful restoration of injured natural resources and their services resulting from the Spill, the Trustees propose to continue implementation of Early Restoration in accordance with the Oil Pollution Act (OPA) and using funds made available in the Framework Agreement." (AR 015239.)
The Alabama Gulf State Enhancement Project was designated a restoration project designed to make up for the loss of recreational use caused by the spill. According to the PEIS, the lodge/conference center portion of the project would make up for lost recreational use by creating approximately 120,000 new visitor nights per year and a roughly comparable number of visitor-days at the park. The PEIS did not explore any potential alternative projects; instead, it concluded that the only alternative to the project is "No Action", i.e., "the Trustees would not pursue the Gulf State Park Enhancement Project as part of Phase III Early Restoration." (AR 016360.)
In this action, GRN challenges the lodge/conference center contained within the Alabama Gulf State Park Enhancements Project. GRN asserts that the Trustees' actions were arbitrary and capricious (in violation of the APA) in three respects. First, the PEIS failed to conduct the alternatives analysis required by both NEPA and OPA. Specifically, GRN argues the PEIS is deficient because it does not discuss alternatives to the lodge/conference center other than the "no action" alternative. This, GRN alleges, is a violation of NEPA and OPA. Second, GRN contends the PEIS "provides little or no data to
Both the Federal Trustees and the State Trustee deny their actions were arbitrary and capricious, although their arguments are not identical. With respect to the alternatives analysis, the State Trustee argues the program-level alternatives analysis was sufficient to meet NEPA and OPA requirements. The Federal Trustees, on the other hand, do not rely on the program-level alternatives analysis. Instead, they argue the project-level alternatives analysis (which discussed only the proposed project and "no action") was sufficient under the circumstances to meet the requirements of NEPA and OPA. Both Federal and State Trustees argue GRN's second claim is not a valid NEPA claim because the alleged missing data does not relate to the environmental effects of the proposed action. Likewise, both contend that the PEIS adequately addressed the cumulative environmental impacts of the project.
Both NEPA and OPA require a comparative analysis of the proposed project and the alternatives to the project. 40 C.F.R. § 1502.14 (NEPA); 15 C.F.R. § 990.55(b) (OPA). Although OPA and NEPA focus on different substantive goals, the process is the same. In fact the OPA process was intended to "mirror[] the decisionmaking process embodied in NEPA." 61 Fed. Reg. 440, 441 (1996). Consequently, the two claims will be analyzed as one.
40 C.F.R. § 1502.14.
Initially, the State Trustee argues that the programmatic alternatives analysis satisfies the alternatives requirement. That analysis considered alternatives at the broader program level, not at the specific project level. It examined the types of program alternatives that could be adopted in Phase Three Early Restoration: (1) No action (i.e., no additional early restoration); (2) Restoration of habitat and living and coastal marine resources; (3) Enhanced recreational use opportunities; (4) a combination of (2) and (3). Of those alternative programs, the Trustees chose option (4). Option (4) consisted of 44 different projects in five states. When an agency proposes to commit resources to a specific project as part of a broader program, it must provide a sufficiently detailed alternatives analysis of the project. See Ilio'ulaokalani Coalition v. Rumsfeld, 464 F.3d 1083, 1095-96 (9th Cir.2006) (because Army did not consider site-specific alternatives in programmatic EIS, alternatives analysis was required in supplemental EIS); see also New Mexico ex re. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 716-19 (10th Cir.2009) (discussing need for site-specific alternatives analysis for oil and gas leases on federal land). The PEIS's examination of programmatic alternatives is not project specific and, therefore, does not satisfy the alternatives analysis requirement.
With respect to the Gulf State Park project, the PEIS discussed only two alternatives: (1) go forward with the project as proposed or (2) no action. GRN points to several reasonable alternatives that could have been addressed:
The Trustees do not dispute that these are, in theory, reasonable alternatives. They argue, however, that these alternatives are unreasonable because they could not have been implemented under the Framework Agreement.
The Trustees' circular logic goes something like this: All funding for early restoration comes from BP via the Framework Agreement. The Framework Agreement provides that only projects agreed to by BP and the Trustees in a Project Stipulation will be funded. No project can go forward without funding. Unless BP and the Trustees have agreed to a project, any other project is not a reasonable alternative because it cannot be funded. Therefore, BP and the Trustees decide which alternatives are reasonable because only BP and the Trustees decide which projects are funded. Simply put, the Trustees choose a project, take it to BP, enter a Project Stipulation, and there can be no alternative other than the "no action" alternative.
The purpose of alternatives analysis "is to inform both the public and the decisionmaker," by giving them clearly defined alternatives. Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C.Cir.1991). Of course, only alternatives that are reasonable, or feasible, require
At both the program level and the project level, the Trustees have unreasonably narrowed the universe of possible alternatives to two: (1) go forward with the project as proposed or (2) no action. In the PEIS programmatic alternatives analysis, the Trustees combined projects involving restoration of habitat and marine life with projects involving recreational use. By doing so, they created projects that could be funded under the Framework Agreement. At the project level, the Trustees contend that the only reasonable alternative is a project that can be funded. Since funding requires a Project Stipulation between the Trustees and BP, only those projects are reasonable.
Moreover, the Trustees are simply wrong in their conclusion that the Framework Agreement/Project stipulation precludes the funding of alternative projects. The Trustees argue that a full alternatives analysis was not possible because there was no method for funding any alternative project. The Project Stipulation provides that "[a]t any time after BP[] has made full payment [of Phase III funds], the Trustees may for good cause elect not to implement the Early Restoration Project."
This case demonstrates the importance of providing a clear and meaningful analysis of alternatives. The Trustees and BP agreed to take $58.5 million dollars ($117 million total, with NRD offsets) out of the "pot" of funds available for early restoration with the intention of setting those funds aside for possible use in a project that, at the time, was little more than an idea and could not come to fruition for many years, if at all. Clearly, the Trustees failed to evaluate whether there were reasonable restoration alternatives that would have conformed to the requirements of OPA and NEPA. Their failure to do so was arbitrary and capricious. GRN is entitled
In this cause of action, GRN alleges that the PEIS does not satisfy NEPA's requirement that "the environmental impact statement be supported by evidence that the agency has made the necessary environmental analysis," 40 C.F.R. § 1502.1, because it does not "identify any methodologies used" or "make explicit reference... to the scientific and other sources relied upon." 40 C.F.R. § 1502.24. Specifically, GRN contends the record does not support the Trustees conclusion that a lodge and conference center would make up for lost recreational use by bringing new visitors to the beach. In support of its claim, GRN points to the lack of data to support the number of visitor nights the lodge/conference center would bring or to support the need for short-term lodging in the area. However, as the Trustees point out, these alleged deficiencies do not relate to the environmental analysis required by NEPA but to the issue of lost recreational use, a claim that can only be asserted under OPA. 40 C.F.R. § 1502.1. Because GRN points to no deficiency in that regard, it has failed to meet its burden of proving that the Trustees acted arbitrarily and capriciously. The Trustees are entitled to summary judgment on this cause of action.
An environmental impact statement must consider not only the direct effects of a proposed action but also cumulative impacts and indirect effects of "past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions." Utahns for Better Transp. v. United States Dep't of Transp., 305 F.3d 1152, 1174 (10th Cir.2002), modified, 319 F.3d 1207 (10th Cir.2003); see also 40 C.F.R. § 1508.7 (defining cumulative impacts); 40 C.F.R. § 1502.16 (EIS must include discussion of indirect effects); 40 C.F.R. 1508.8 (defining indirect effects); see also Sierra Club v. Marsh, 976 F.2d 763, 770 (1st Cir.1992) (discussing direct and indirect effects requirement). GRN asserts the PEIS failed to consider the following indirect effects or cumulative impacts: (1) the reconfiguration of an intersection or widening State Road 182 at one entrance to the proposed lodge/conference center; (2) the construction of a new road to accommodate a likely increase in traffic; and (3) the likelihood the project will lead to new development. None of these actions are reasonably foreseeable.
The Trustees contend the first argument, regarding road changes to accommodate the lodge entrance, is based on a misreading of the record. The cited paragraph from the PEIS states:
(AR 016432, emphasis added.) The wording could be clearer, but what this paragraph describes is two entrances. The first would provide complete access in and out via a traffic light at SR 182 and 135. The second would provide only limited access — eastbound vehicles could turn right into the second entrance and exiting vehicles could only turn right onto SR 182. If increased access were desired, i.e., to make this entrance accessible to and from both east and west, it would be necessary to widen SR 182 or reconfigure the intersection. Therefore, contrary to GRN's argument, the record does not support the claim that additional roadwork would be reasonably foreseeable.
Likewise, the record does not support GRN's claim that construction of a new north-south road would likely be necessary to support the increase in traffic resulting from the proposed lodge/conference center. The Trustees conducted a traffic study, detailed in the PEIS, and concluded the impacts of increased traffic would be moderate, with the greatest increase in travel delay being 12.1 seconds during peak periods. (AR 016432-34.) Based on this information, the Trustees concluded that new road construction was not reasonably foreseeable. (AR 018412.) The only evidence GRN cites to the contrary is a newspaper article in which the mayor of Gulf Shores expressed his support for the lodge/convention center because he believed it would force the state to build a north-south road through Gulf State Park. The mayor's opinion does not contradict the Trustees' traffic study, nor does it provide evidence that the state would be likely to construct a new road to accommodate lodge/conference center traffic.
Finally, GRN criticizes the PEIS's conclusion that the project will not result in substantial new development. GRN does not actually point to any evidence that substantial new development is likely to occur. Instead, it merely points out alleged inconsistencies in the Trustees' projections. Specifically, one justification for the project is the lack of short-term lodging, but the traffic study assumed 75% of the conference attendees would stay offsite. The traffic study focused on peak flows and assumed the conference center was in full use. (AR 016432.) In other words, it was not predicting the number of visitors, only what would happen to traffic if the conference center was at maximum capacity. GRN's only other argument is a conclusory assertion that the projected number of annual visitors will "inexorably" lead to new development. As the Trustees point out, the projected number — 210,000 visitors per year — equates to approximately 310 visitors per day. Nothing in the record indicates to the Court that an increase of this size would make new development reasonably foreseeable.
In sum, the Trustees did not act arbitrarily or capriciously in failing to consider indirect effects or cumulative impacts that were not reasonably foreseeable. Therefore, they are entitled to summary judgment on this cause of action.
GRN seeks the following relief: (1) a declaration that the Federal Trustees violated NEPA and OPA by approving the lodge/conference center; (2) "Declare unlawful and set aside the Record of Decision as it relates to the [lodge/conference center];" (3) "Declare unlawful and set aside the Project Stipulation, as it relates to approving the [lodge/conference center];"
GRN has prevailed on their claim that the Trustees failed to conduct a NEPA/OPA alternatives analysis with respect to the allocation of $58.5 million in BP early restoration funds to partially fund the lodge/conference center. The Court can, and will, enjoin the use of those funds pending further review by the Trustees.
The Court will withhold ruling on GRN's request for attorney's fees and costs pending further briefing. Within thirty days of the date of this order, GRN may file a properly supported motion, including citation to authority permitting the award of fees and costs as well as documentation supporting the hours expended and the hourly rate charged. A briefing schedule will be entered after the motion is filed.
Summary judgment is
