RUDOLPH CONTRERAS, United States District Judge.
On April 20, 2010, the Deepwater Horizon, a deep-water exploratory oil rig, exploded, caught fire, and sank in the Gulf of
The Outer Continental Shelf ("OCS") "is an area of submerged lands, subsoil, and seabed that lies between the outer seaward reaches of a state's jurisdiction and that of the United States." Ctr. for Biological Diversity v. U.S. Dep't of Interior, 563 F.3d 466, 472 (D.C.Cir.2009). In 1953, Congress enacted the Outer Continental Shelf Lands Act of 1953, 43 U.S.C. § 1331, et seq., "to authorize federal leasing of the OCS for oil and gas development." Sec'y of the Interior v. California, 464 U.S. 312, 336, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984). In 1978, the OCSLA was amended "to provide for the `expeditious and orderly development, subject to environmental safeguards,' of resources on the OCS." Id. (quoting 43 U.S.C. § 1332(3)).
The OCSLA provides a four-step process for the development of the OCS. See id. at 337, 104 S.Ct. 656; see also Ctr. for Biological Diversity, 563 F.3d at 473. The first stage of the development process requires the Department of the Interior ("Department") to create a nationwide five-year leasing program. See 43 U.S.C. § 1344(a) ("The Secretary . . . shall prepare and periodically revise, and maintain an oil and gas leasing program. . . . The leasing program shall consist of a schedule of proposed lease sales . . . which he determines will best meet national energy needs for the five-year period following its approval or reapproval."). The second stage allows the Secretary to solicit bids and issue leases for offshore leasing areas. See 43 U.S.C. § 1337. After a lease is approved, a lessee may conduct ancillary activities, which include geological and geophysical explorations and development, and surveys. See 30 C.F.R. § 550.207. The third stage is known as the exploration stage; during this stage, the Secretary reviews the lessee's exploration plan ("EP"). See 43 U.S.C. § 1340. The final stage is known as development and production, and during this stage, the Secretary reviews the development and production plan of the lessee for the purposes of actually producing oil and gas from the leaseholds. See 43 U.S.C. § 1351. The
NEPA was enacted in 1970 "to promote efforts which will prevent or eliminate damage to the environment and biosphere. . . ." 42 U.S.C. § 4321. The Act provides that federal agencies shall "include in every recommendation or report on . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on (i) the environmental impact of the proposed action; (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, [and] (iii) alternatives to the proposed action. . . ." 42 U.S.C. § 4332(2)(C). This is known as the Environmental Impact Statement ("EIS"). NEPA regulations explain that the "primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government." 40 C.F.R. § 1502.1. The "heart of the environmental impact statement" is the analysis of alternatives. 40 C.F.R. § 1502.14. 40 C.F.R. § 1502.14 provides that the agency shall, inter alia, "[r]igorously explore and objectively evaluate all reasonable alternatives," "[d]evote substantial treatment to each alternative considered," and "[i]nclude the alternative of no action" in its analysis. 40 C.F.R. §§ 1502.14(a), (b), (d).
Section 7(a) of the ESA requires federal agencies to "insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species. . . ." 16 U.S.C. § 1536(a)(2). In fulfilling this obligation, "each agency shall use the best scientific and commercial data available." Id. If a proposed agency action "may affect" a listed species, federal agencies are required to formally consult with either the National Marine Fisheries Service ("NMFS") or the Fish and Wildlife Service ("FWS"), depending on whether the species is marine or terrestrial. see Pl.'s Mot. Summ. J. 5 n.3, ECF No. 60; see also 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.01(b); 50 C.F.R. § 402.14(a). Following formal consultation, the NMFS (in this case) must issue a written statement known as a Biological Opinion, explaining how the proposed action will affect the species or its habitat. See Bennett v. Spear, 520 U.S. 154, 158, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citing 16 U.S.C. § 1536(b)(3)(A)).
Section 7(d) of the ESA states that "[a]fter initiation of consultation," the relevant agency "shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section." 16 U.S.C. § 1536(d).
The Gulf of Mexico ("GOM") is a unique and important part of the American landscape and economy. It "includes one of the most extensive estuary systems in the world," "produces more than one-third of
To understand the importance of the lease sales at issue here, it is helpful to wade into the Gulf of Mexico's recent OCS lease sale history. In April 2007, BOEM
On April 20, 2010, a deep-water exploratory oil rig known as the Deepwater Horizon, caught fire and exploded, releasing almost five million barrels of oil into the Gulf over the course of many weeks and months. "The Deepwater Horizon blowout produced the largest accidental marine oil spill in U.S. history, an acute human and environmental tragedy." See National Commission on the BP Deepwater Horizon Oil Spill & Offshore Drilling, Deepwater: The Gulf Oil Disaster and the Future of Offshore Drilling, Report to the President, at 173.
As of the Deepwater Horizon
On July 1, 2011, BOEM issued a Draft SEIS for Lease Sale 216/222. See 76 Fed. Reg. 38,676 (July 1, 2011). Meanwhile, on
Lease Sale 216 had been scheduled to take place in 2011 and Lease Sale 222 had been scheduled for 2012. See Federal-Def.'s Cross-Mot. Summ. J. 6, ECF No. 63. Following the Deepwater Horizon incident, BOEM decided to postpone proposed Lease Sale 216 and combine it with proposed Lease Sale 222. After the 2012 SEIS was published, BOEM held Lease Sale 216/222 in June 2012. Id.
In 2007, the NMFS completed a Biological Opinion ("BO") for five Gulf of Mexico lease sales, including Lease Sale 218 and Lease Sale 216/222. See Pl.'s Mot. Summ. J. 9. In response to the Deepwater Horizon spill, on July 30, 2010, the BOEM reinitiated consultation with the FWS and the NMFS because BOEM explained that "the spill volumes and scenarios used in the analysis for the existing NMFS BO need to be readdressed given the `rare event' of a spill exceeding 420,000 gallons as referenced in the current NMFS BO. . . ." AR7351. BOEM noted that as a result, the "affects to and the status of some listed species or designated critical habitats may have been altered as a result of the DWH incident and therefore require further consideration." Id.
To date, the consultation has not yet been completed. However, BOEM and NMFS have developed an interim consultation process until the new Biological Opinion is issued. "That process gives NMFS the opportunity to review and comment on certain-post lease activities (such as exploration plans)." See Federal-Def.'s Cross-Mot. Summ. J. 9; see also DOI 7496-7501, 7557-58, 7561 (all describing the interim consultation process). NMFS anticipates a March 2015 date of completion of the BO. See Bernhart Decl., ECF No. 75-1.
The plaintiffs, various environmental organizations,
Under the APA, a reviewing court may set aside agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2). Agency action is considered "arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Motor Vehicle Ass'n v. State Farm Mutual Auto. Ins., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). "Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency." Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
Under NEPA, the court's role is "simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious." Baltimore Gas & Elec. v. NRDC, 462 U.S. 87, 97-98, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). "An environmental impact statement is reviewed to ensure that the agency took a hard look at the environmental consequences of its decision to go forward with the project." Nat'l Comm. for the New River v. F.E.R.C., 373 F.3d 1323, 1327 (D.C.Cir.2004) (citations omitted). "When an agency is evaluating scientific data within its technical expertise, an extreme degree of deference to the agency is warranted." Id. (internal quotation marks and citation omitted). Meanwhile, judicial review of agency action under the ESA is governed by the arbitrary and capricious standard. See Cabinet Mountains Wilderness v. Peterson, 685 F.2d 678, 685 (D.C.Cir.1982) ("Since the ESA does not specify a standard of review, judicial review is governed by section 706 of the Administrative Procedure Act."); accord WildEarth Guardians v. Salazar, 670 F.Supp.2d 1, 4 (D.D.C.2009).
The plaintiffs argue that BOEM violated NEPA in three ways: (1) by failing to gather information essential to a reasoned choice among alternatives in violation of 40 C.F.R. § 1502.22; (2) by failing to adequately consider new analyses of the risks of another large oil spill; and (3) by failing to consider a true "no action" alternative. See Pl.'s Mot. Summ. J. 13. Each one of these arguments is addressed below.
The plaintiffs first argue that BOEM determined that certain information was essential to a reasoned choice among alternatives, and yet made no effort (1) to obtain the essential information or (2) demonstrate that the cost of obtaining it was exorbitant. See Pl.'s Mot. Summ. J. 15. As set forth above, under NEPA, when an agency prepares an EIS, it must "[r]igorously explore and objectively evaluate all reasonable alternatives. . . ." 40 C.F.R. § 1502.14(a). In undertaking such an analysis, "[w]hen an agency is evaluating reasonably foreseeable significant adverse effects on the human environment in an [EIS] and there is incomplete or unavailable information, the agency shall always make clear that such information is lacking." 40 C.F.R. § 1502.22. If the missing information is "essential to a reasoned
The Council on Environmental Quality ("CEQ") promulgates binding regulations on federal agencies to help them implement NEPA. See National Environmental Policy Act Regulations; Incomplete or Unavailable Information, 51 Fed. Reg. 15,618-01 (April 25, 1986). The CEQ explains that "[t]he term `incomplete information' refers to information which the agency cannot obtain because the overall costs of doing so are exorbitant. The term `unavailable information' refers to information which cannot be obtained because the means to obtain it are not known." 51 Fed. Reg. at 15,621. The CEQ regulations further note that the term "overall costs" is intended to encompass "financial costs and other costs such as costs in terms of time (delay) and personnel." Id. at 15,622. It also "intends that the agency interpret `overall costs' in light of overall program needs." Id. Finally, the CEQ guidelines provide that the phrase "`the means to obtain it are not known' is meant to include circumstances in which the unavailable information cannot be obtained because adequate scientific knowledge, expertise, techniques or equipment do not exist." 51 Fed. Reg. at 15,622 (emphasis added). In addition, other NEPA regulations provide that "[i]n circumstances where the provisions of 40 C.F.R. § 1502.22 apply, bureaus must consider all costs to obtain information. These costs include monetary costs as well as other non-monetized costs when appropriate, such as social costs, delays, opportunity costs, and non-fulfillment or non-timely fulfillment of statutory mandates." 43 C.F.R. § 46.125.
In Chapter 4 of the 2012 SEIS, BOEM explained that for thirteen resources, there is "incomplete or unavailable information that is relevant to reasonably foreseeable significant adverse impacts; however, it is not essential to a reasoned choice among alternatives." AR5624.
AR5709-10.
BOEM made similar statements regarding the Live Bottom (Pinnacle Trend) habitat, see AR5721; Topographic Features, see AR5781; Marine Mammals, see AR5839; Sea Turtles, see AR5858-59; Coastal and Marine Birds, see AR5879; Gulf Sturgeon, see AR5907; Fish Resources and Habitat, see AR5922; Commercial Fishing, see AR5938; Environmental Justice, see AR6010; and Diamondback Terrapins, see AR6060-61.
BOEM explained the methodologies it relied on generally, and then explained the scientific studies it relied on specifically for each of the eleven resources. Generally, BOEM included the following section as to its methodology in Appendix B of the SEIS:
On the more specific level, BOEM relied on various studies, both dated pre- and post-oil spill, and made evaluations of the environmental impacts to the particular resource in light of those studies. See, e.g., AR5707 ("The panhandle [of Florida] was exposed to oil and tarballs from the DWH event, but the majority of the seagrass beds in south Florida received little impact from the DWH event (USDOC, NOAA, 2010e). It is assumed these communities will be similar to how they were
The plaintiffs first argue that BOEM failed to comply with 40 C.F.R. § 1502.22 because it did not explain why the overall costs to obtaining the essential missing information were exorbitant. 40 C.F.R. § 1502.22 first requires that "[w]hen an agency is evaluating reasonably foreseeable significant adverse effects on the human environment in an environmental impact statement and there is incomplete or unavailable information, the agency shall always make clear that such information is lacking." 40 C.F.R. § 1502.22(b) goes on to state that if the essential, missing, information "cannot be obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are not known," then the agency must include four particular statements in the EIS.
BOEM stated that certain information that may be essential to a reasoned choice among alternatives was incomplete or unavailable. See supra, at 155. The plaintiffs argue that BOEM did not satisfy 40 C.F.R. § 1502.22 because BOEM failed to demonstrate or explain why the overall cost to obtaining the essential information was exorbitant. See Pl.'s Mot. Summ. J. 15; Pl.'s Reply 3-4. But 40 C.F.R. § 1502.22 itself does not require such a demonstration—it only requires that "[i]f the information . . . cannot be obtained because the overall costs of obtaining it are exorbitant," then the agency must disclose the four enumerated statements in
And regardless of whether the regulation required such an explanation, BOEM nevertheless provided one. In the 2012 SEIS, BOEM repeatedly stated that the essential unavailable research may take years to complete, and that it was not within BOEM's ability to obtain the information within the timeframe contemplated by the SEIS, thus stating that "the means to obtain [missing information] are not known." 40 C.F.R. § 1502.22(b). BOEM also repeatedly stated that "[r]egardless of the costs of acquiring these data, given the realities of the NRDA process,
BOEM thus explained that the reason the information could not be obtained was because of the ongoing research being conducted post-oil spill, and that regardless of cost, it was not within BOEM's ability to obtain the information from the NRDA process. BOEM's discussion of its inability to obtain the essential information because the data was not yet available from the NRDA, and might not be for years, therefore suffices for purposes of demonstrating that the "means to obtain[ing]" the information were not known. And BOEM's discussion of the delay in timing of the information being available suffices for purposes of determining whether "the overall costs" were exorbitant (regardless of whether BOEM had to "demonstrate" exorbitance or not), per the CEQ guidelines.
The CEQ regulations further provide that "one of the costs that must be weighed by decisionmakers is the cost of uncertainty—i.e., the costs of proceeding without more and better information." 51 Fed. Reg. at 15,624 (quoting Alaska v. Andrus, 580 F.2d 465, 473 (D.C.Cir.1978), vacated on other grounds by Western Oil & Gas Ass'n v. Alaska, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978)). To be sure, BOEM could have waited until all the essential post-oil spill data became available before it moved forward with the lease sales. But nothing in 40 C.F.R. § 1502.22 requires the agency to halt action in the face of uncertain information—it just requires disclosure that such information is lacking, and commands the agency to provide as comprehensive an analysis it can with the information available to it. Courts have recognized that "NEPA does not require that complete information about the environmental impact of a project
The plaintiffs next argue that even if BOEM had satisfied the requirement to demonstrate that it could not obtain essential information due to exorbitant cost, see Pl.'s Reply 4, it still failed to comply with the final step
For instance, with respect to sea turtles, BOEM cited an OSAT 2010 study and then determined that "[i]t is likely that there were effects on individual sea turtles in the vicinity of the DWH event spill caused by spilled oil and/or response activities. . . . [but] [w]ithout any further data than what exist [sic] from NMFS and FWS (which have jurisdiction over sea turtles in water and on land, respectively), it is impossible to determine if the spill has led to population-level effects or if sea turtles are experiencing chronic effects or persistent adverse impacts from the spill at the population level." AR5854. With respect to the gulf sturgeon, BOEM cited to an OSAT 2010 and 2011 study as well as an FWS study from 2010 that discussed the effects of the oil spill on the gulf sturgeon's critical habitat. AR5912. BOEM then concluded that "critical habitat from Lake Borgne to the Florida/Alabama State line has at least been exposed to oil from the DWH event. . . . but did not exceed USEPA's benchmarks for aquatic life in either sediments or water." Id. For birds, BOEM explained that it had no peer-reviewed studies of the impacts of oil spills on birds in the Gulf of Mexico, but in place of that, "investigations of spills in other areas, mathematical modeling, and laboratory tests (e.g., toxicity tests and veterinarian studies of rehabilitation) are used for insight into DWH impacts on all life history stages of birds. . . . Although information from the DWH event would be useful, it is not expected to significantly change this existing body of science." AR5885. BOEM thus applied the scientific information it had before it to
Moreover, BOEM included a Catastrophic Spill Event Analysis in Appendix B of the 2012 SEIS. There, BOEM cited its general "Methodology," quoted above (see AR6562), and proceeded to apply that methodology to the rest of Appendix B, which analyzed the effects of a Catastrophic Spill on every resource identified in the Gulf of Mexico. See AR6563-6612. BOEM also included a 100-page bibliography in Appendix B, compliant with CEQ guidelines for "literature searches and peer review," see 51 Fed. Reg. at 15,622, illustrating that BOEM's subject matter experts relied upon consultation with outside sources, including scientists, to complete the 2012 SEIS. See AR6315-6412. BOEM then spent over fifty pages evaluating the environmental impacts of a catastrophic spill based upon the various sources of credible scientific evidence it cited. See AR6563 ("[T]his analysis, based on credible, scientific evidence, identifies the most likely and most significant impacts from a high-volume blowout and oil spill that continued for an extended period of time."). 40 C.F.R. § 1502.22(b)(4) requires that the agency "use[] available data to explore the potential impacts and articulate[] the basis for its decision." Cabinet Res. Grp. v. U.S. Fish & Wildlife Serv., 465 F.Supp.2d 1067, 1100 (D.Mont. 2006). BOEM did just that. As such, it complied with 40 C.F.R. § 1502.22, and did not violate NEPA on these grounds.
BOEM did repeatedly state in somewhat boilerplate fashion that "BOEM subject-matter experts have used available scientifically credible evidence in this analysis and based it upon accepted scientific methods and approaches." See supra, at 157. The plaintiffs argue that "[i]t is insufficient for BOEM to simply state that it used such methodologies without record evidence," see Pl.'s Reply 5. But Chapter 4 of the 2012 SEIS, along with Appendix B reference numerous studies and evaluate what information BOEM did have in light of the proposed impact of the lease sales going forward. Just because BOEM did not specifically re-cite and evaluate those studies in the sections where the above-quoted language comes from does not mean that it did not make the requisite evaluations at all. On the contrary, BOEM stated generally that it was relying on accepted scientific methods and approaches and then specifically applied relevant studies for each effected resource it examined throughout the 2012 SEIS.
Finally, the plaintiffs argue that BOEM did not gather the essential information required by 40 C.F.R. § 1502.22. The vast administrative record and foregoing discussion undermines this contention. To be sure, BOEM lacked certain information, which it disclosed in the SEIS, because many of the effects of the oil spill on the environment are still unknown. However, in every place it reasonably could, BOEM updated its analyses in light of the information it did have available. BOEM took a hard look at the effects of the Deepwater Horizon oil spill and incorporated all the information it reasonably could in the 2012 SEIS. As such, it did not violate 40 C.F.R. § 1502.22.
The plaintiffs next argue that BOEM failed to adequately consider new information about the risks of future oil spills. Pl.'s Mot. Summ. J. 17. Specifically, the plaintiffs argue that BOEM (1) failed to incorporate critical information from its new spill risk analysis prior to the completion of the SEIS, (2) significantly downplayed the Gulf spill in the analysis it did perform, and (3) failed to conduct new
Before diving into the depths of the studies and tables, some background information is useful. NEPA regulations provide that agencies are allowed to "tier their environmental impact statements to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review." See 40 C.F.R. § 1502.20. As BOEM explained, the 2012 SEIS "tiers from" the 2007 Multisale EIS and the 2009-2012 Supplemental EIS. AR5445. The main oil spill study relied upon by BOEM in the 2007 Multisale EIS, the 2009-2012 Supplement, and the Draft SEIS was a study by Anderson and Labelle (2000). AR5556. The Anderson and Labelle study was updated by BOEM's own draft report, entitled "Update of Oil Spill Occurrence Rates for Offshore Oil Spills" [hereinafter "Draft Report"]. See id. ("Anderson and Labelle (2000) have [sic] been updated by DOI's draft report, Update of Oil Spill Occurrence Rates for Offshore Oil Spills (USDOI, BOEMRE, 2011a)."). BOEM also explained that in light of this update, "[p]latform and pipeline spill rates and likely spill sizes published in the Multisale EIS have thus become outdated. Readers should note that Tables 4-13, 4-14, 4-16, and 4-35 of the Multisale EIS and Table 3-6 of the 2009-2012 Supplemental EIS use the 2000 spill rates and sizes rather than the 2011 spill rates and sizes." Id.
The Draft Report incorporated new data based on the Deepwater Horizon spill (called the "Macondo" spill in the report) into BOEM's figures for oil spill occurrences. See DOI REF 48326-48339. BOEM generally structures its analysis in terms of oil spill size. The relevant spill sizes for purposes of this case are the larger spill sizes: ≥ 1,000 bbl and ≥ 10,000 bbl (bbl standing for barrel). After updating its calculations to include oil spills up through 2010 (including the Macondo spill), BOEM concluded, inter alia, that:
Id.
The plaintiffs first argue that BOEM completed an updated risk analysis in light of the Deepwater Horizon spill—the Draft Report—and yet did not provide data from that new analysis in the 2012 SEIS. See Pl.'s Mot. Summ. J. 19. The plaintiffs' argument focuses on Table 3-5, provided at AR6471. Table 3-5 is entitled "Mean Number and Sites of Spills Estimated to Occur in OCS Offshore Central Planning Area Waters from an Accident Related to Rig/Platform and Pipeline Activities Supporting a CPA Proposed Action Over a 40-Year Time Period." See id. The significance of the table is that it provides "[t]he risk of various sizes of oil spills occurring in the CPA." See, e.g., AR5822.
The plaintiffs take issue with Table 3-5's exclusion of the ≥ 10,000 bbl category from the table's body itself. In the 2007 Multisale EIS, the risk of various oil spills occurring in the CPA was provided in Table 4-35, and in the 2009-2012 Supplement EIS performed, it was moved to Table 3-6. See AR5578. As BOEM explained in the 2012 SEIS, these figures use the 2000 spill rates rather than the updated 2011 spill rates. AR5556. In these prior iterations, the tables provided a category for oil spills ≥ 10,000 bbl. In addition, the SEIS for Lease Sale 218 as well as the Draft SEIS for Lease Sale 216/222 include a table that includes a ≥ 10,000 bbl category. Essentially, of all the EISs or SEISs performed in the Gulf of Mexico CPA and WPA for the 2007-2012 leasing period, the 2012 SEIS is the only one that excludes a ≥ 10,000 bbl category in the table body estimating mean number and sizes of oil spills. Instead, in the notes section directly under the table, BOEM states "[a] spill size group for ≥ 10,000 bbl was not included in the table, because the catastrophic Deepwater Horizon oil spill (4.9 million bbl) was the only spill this size range during 1996-2010, and thus meaningful statistics (such as median spill size) could not be calculated." AR6471. In the Draft Report, BOEM gave the following explanation for its treatment of the ≥ 10,000 bbl category:
DOI REF 48339 (emphasis added).
Thus, BOEM included the Macondo spill in Table 3-5 for spill rates statistics for spills ≥ 1,000 bbl, but excluded the Macondo spill from median spill size statistics for spills ≥ 1,000, explaining that using the 4.9 million barrel figure would overwhelm the record. And BOEM did not include separate statistics in the table for spills ≥ 10,000 bbl at all, because it determined that it could not meaningfully provide them, given that the Macondo spill was the only spill in that category for the relevant 15-year period.
The plaintiffs' concern with this category's exclusion from the body of the table is understandable. Given that every prior version of the table includes the ≥ 10,000 bbl category, the Court is puzzled as to why BOEM decided in the 2012 SEIS—which was only undertaken to account for changes in light of the Deepwater Horizon spill (a spill ≥ 10,000 bbl)—to exclude that figure from the table body itself. While the Court likely would not have relegated that category to the "Notes" section of the table, and, for the sake of consistency, have kept the category in the table as it appeared in the Draft SEIS (with updated figures—regardless of whether or not they were "meaningful"), see AR4861, the Court cannot say that BOEM excluded the category from consideration in the 2012 SEIS altogether, as the plaintiffs would have the Court find. Even if the body of Table 3-5 itself does not provide statistics for a ≥ 10,000 bbl category spill occurring, the 2012 SEIS still does. For instance, in Chapter 4 of the SEIS, BOEM states repeatedly that "[t]he risk of various sizes of oil spills occurring in the CPA is presented in Table 3-5. The possibility of a spill over 10,000 bbl in the OCS of the CPA is estimated to be ≥ 1-1 spill, over the 40-year cycle for the proposed action for the 5-Year Program." AR5807, AR5622 (same); see also AR5822 ("The possibility of a spill ≥ 10,000 bbl in the CPA is estimated to be up to one spill in the 40-year period for the proposed action."), AR5831 (same).
Though BOEM did not necessarily create a table and conduct its analysis the way the Court might have, it still took a "hard look" at the ≥ 10,000 bbl category, and in turn the Deepwater Horizon spill in the 2012 SEIS generally. As such, BOEM was not arbitrary and capricious in excluding the ≥ 10,000 bbl category from the body of the table itself—a single table within an SEIS of over 1,100 pages in length. See Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) ("While we may not supply a reasoned basis for the agency's action that the agency itself has not given, we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.") (internal quotation marks and citations omitted); Wilderness Soc'y v. Salazar, 603 F.Supp.2d 52, 59 (D.D.C.2009) ("The court's role is to ensure that the agency takes a `hard look' at the environmental consequences of an action, not to interject its own judgment as to the course of action to be taken.") (quoting Hammond v. Norton, 370 F.Supp.2d 226, 240 (D.D.C.2005)); see also Miami-Dade Cnty. v. EPA, 529 F.3d 1049, 1065 (11th Cir.2008) ("courts must be extremely deferential when an agency's decision rests on the evaluation of complex scientific data within the agency's technical expertise. . . . although a reviewing court may not rubber stamp an agency decision, it must look at the agency's decision not as the chemist, biologist, or statistician that it is qualified neither by training nor experience to be, but as a reviewing court exercising . . . certain minimal standards of rationality") (internal quotation marks and citations omitted). BOEM took a hard look at the Deepwater Horizon event in the 2012 SEIS and its exclusion of a ≥ 10,000 bbl category from Table 3-5 does not undermine that conclusion.
The plaintiffs next argue that BOEM ignored its duty to assess the risks of deepwater drilling. See Pl.'s Mot. Summ. J. 21. The administrative record shows that BOEM did consider the risks of deepwater drilling, throughout the 2012 SEIS. BOEM first noted that "[i]n response to increasing deepwater activities in the GOM, this Agency developed a comprehensive strategy to address NEPA compliance and environmental issues in the deepwater areas. A key component of that strategy was the completion of a Programmatic EA [environmental assessment] to evaluate the potential effects of the deepwater technologies and operations." AR5488. BOEM also explained that it "prepared a series of technical papers that provide a summary description of the different types of structures that may be employed in the development and production of hydrocarbon resources in the deepwater areas of the GOM (Regg et al., 2000). The Programmatic EA and technical papers were used in the preparation of this Supplemental EIS." Id.
The Draft Report, relied upon by BOEM in the 2012 SEIS, also discussed the move into deepwater drilling. BOEM stated that spill rates for OCS platform spills ≥ 1,000 bbl increased over time, "due to the Macondo spill." DOI REF 48335. BOEM explained, "[t]hese rates are still relatively low. . . . Prior to these two spills, the last OCS Platform spill ≥ 1,000 bbl occurred in 1980, and the last OCS Platform spill ≥ 10,000 bbl occurred in 1970." DOI REF 48326. BOEM acknowledged that "[i]t is worth noting that this most recent 15-year period spans the move of OCS oil production into deepwater (≥ 1,000 ft water depth). In 1996, deepwater oil production in the Gulf of Mexico was just under 20% of the total oil production in the region. In 2010, that percentage had increased to 81%." DOI REF 48335. In addition, BOEM explained that it calculates spill rates "based on the assumption that spills occur in direct proportion to the volume of oil handled and are expressed as number of spills per billion barrels of oil handled." AR5576. And in the Draft Report, BOEM found that after taking the Deepwater Horizon spill into account, "tests indicate the volume of oil handled between OCS platform spills still appears to be nonrandom," thus showing that spills are correlated with the volume of production, not with the depth of production. See DOI REF 48334.
BOEM thus explained that the increase in spill rates over the 15-year period was attributable almost exclusively to the Macondo spill, and not to any other trend in the data suggesting that as offshore drilling goes into deeper water so too does the frequency of oil spills. See id.; see also AR6280 ("BOEM uses data on past OCS production and spills, along with estimates of future production, to evaluate the risk of future spills. Data on the numbers, types, sizes, and other information on past spills, including those that are relevant to ultra-deepwater wells, were reviewed to develop the spill scenario for analysis in this Supplemental EIS. Past spill data used in the model indicate that there is no trend of increased number of spills based on exploration in deeper water prior to Macondo.") (emphasis added).
In their comments to the draft SEIS, but not in their briefs, the plaintiffs indicated
The plaintiffs also argue that "the Bureau failed to conduct a new OSRA run taking the Deepwater Horizon spill into account." Pl.'s Mot. Summ. J. 22. OSRA is the Oil Spill Risk Analysis Model BOEM uses "to estimate the likely trajector[y] of hypothetical offshore spills ≥ 1,000 bbl. The trajectories, combined with estimated spill occurrence, are used to estimate the risk of future spills occurring and contacting environmental features." AR5577. In the wake of the Deepwater Horizon disaster, BOEM conducted a "special OSRA run . . . in order to estimate the impacts of a possible future catastrophic or high-volume, long-duration oil spill." AR6635. BOEM explained that "overall OSRA is designed for use as a risk-based assessment, [but] for this analysis, only the conditional probability, the probability of contact to the resource, was calculated. The probability of a catastrophic spill occurring was not calculated; thus the combination of the probability of a spill and the probability of contact to the resources from the hypothetical spill locations were not performed." Id. BOEM continued by noting that "[r]esults from this trajectory analysis provide input to the final product by estimating where spills might travel on the ocean's surface and what land segments might be contacted if and when another catastrophic spill occurs, but it does not provide input on the probability of another catastrophic spill occurring." Id. (emphasis added). In the results section, BOEM notes that "[i]t should be reiterated
The plaintiffs take issue with BOEM's concession that "the probability of a catastrophic spill occurring was not calculated." AR6636; see also Pl.'s Mot. Summ. J. 23. They cite to a 2010 internal document that explained that "[d]ue to time constraints and catastrophic spills not being the focus of the supplemental EIS, OSRA will not be rerun for spills ≥ 1,000 barrels."
The plaintiffs do not persuasively explain why BOEM had to calculate the probability of a catastrophic oil spill within the OSRA run. They argue that the failure to calculate the probability of a ≥ 10,000 bbl spill occurring in the OSRA run means that "the only information given to the public is that the spill rate for an oil spill over 1,000 bbls is 1.13 and the estimated spill size is 2,200 bbl, which is actually lower than the spill size stated in the Multisale EIS 2007. Compare AR5576 to 1872." Pl.'s Mot. Summ. J. 23. But the public was provided with more information than just that regarding spill rates. As set forth above, though the four corners of Table 3-5 itself do not provide an estimated spill rate for spills ≥ 10,000 bbl, the notes underneath the table disclose to the public the size of the Deepwater Horizon spill (4.9 million bbls), and the table includes the Deepwater Horizon spill in the data for spill rates for spills ≥ 1,000 bbl. See DOI REF 48339. And in several places, the 2012 SEIS references the probability of a catastrophic oil spill occurring. See, e.g., AR5822 ("The possibility of a spill ≥ 10,000 bbl in the CPA is estimated to be
As to the smaller spill size identified in Table 3-5, BOEM explained that the 2,200 bbl figure was based on updated data from the Draft Report, which included information up through 2010, whereas the previous version only included information from 1985-1999, see AR5576, and that the smaller number in Table 3-5 was due to the fact that Table 3-5 only represents median spill size for that particular area of the CPA, whereas prior versions of the table represent median spill size for the entire CPA and the WPA. See Federal-Def.'s Cross-Mot. Summ. J. 23. On technical calculations such as these, the Court must defer to the agency.
More importantly, however, BOEM took a "hard look" at the Deepwater Horizon spill because it still conducted a special OSRA run for the specific purpose of "estimat[ing] the impacts of a possible future catastrophic spill." AR6636. BOEM assumed—a 100% probability in other words—that a catastrophic spill would occur and sought out to analyze the impacts of such a spill. BOEM's approach was therefore not arbitrary and capricious—it took a hard look at the Deepwater Horizon event by running a catastrophic spill run in the first instance to determine what the impacts of another catastrophic spill occurring would be.
The plaintiffs conclude their "hard look argument" by arguing that BOEM's "oil spill risk analysis does not satisfy NEPA's requirement for scientific integrity or informed decisionmaking" citing 40 C.F.R. § 1502.24. See Pl.'s Mot. Summ. J. 24. 40 C.F.R. § 1502.24 requires that agencies "insure the professional integrity, including the scientific integrity, of the discussion and analyses in environmental impact statements." The D.C. Circuit has explained that this provision "does not require that an agency employ the best, most cutting-edge methodologies." Theodore Roosevelt Conservation P'ship v. Salazar, 616 F.3d 497, 511 (D.C.Cir.2010). In that case, BLM had relied on a methodology called the Scheffe method to measure air quality analyses in its EIS. Id. at 510. In response to criticism that the method was outdated, BLM admitted that the method "used outdated measurements
Similarly here, BOEM admitted that "[p]latform and pipeline spill rates and likely spill sizes published in the Multisale EIS have thus become outdated" because the studies relied upon "have been updated by DOI's draft report." AR5556; see also AR6141. However, as set forth above, BOEM explained that "[f]uture OSRA runs will use this updated historical spill rate information," and noted, as set forth above, that "[a] special OSRA run was conducted in order to estimate the impacts of a possible future catastrophic spill." AR6141. Though BOEM did not rerun OSRA to account for a new ≥ 1,000 bbl spill, it did not have to employ the "best, most cutting-edge methodolog[y]," because it reasonably concluded that a "new OSRA run . . . would not be expected to substantially affect probabilities in comparison with those obtained from the previous OSRA run." AR5577. And because BOEM conducted a special OSRA run assuming a catastrophic spill would occur, BOEM did take a hard look at the problem. BOEM reasonably relied upon information that was available to it at the time it made its decision, and "particularly given the many months required to conduct full analysis with the new data," its decision to do so was not arbitrary and capricious. Theodore Roosevelt Conservation P'ship v. Salazar, 605 F.Supp.2d 263, 273 (D.D.C.2009), aff'd, 616 F.3d 497 (D.C.Cir. 2010) (internal quotation marks omitted).
The plaintiffs next argue that BOEM violated NEPA by not considering a true no action alternative, in the 2012 SEIS. As a threshold matter, the intervenor-defendants argue that the plaintiffs have waived this argument because they failed to raise it with BOEM at the administrative level. See Intervenor-Def.'s Cross-Mot. Summ. J. 42-43. "As the Supreme Court has long admonished, `[p]ersons challenging an agency's compliance with NEPA must structure their participation so that it . . . alerts the agency to the [parties'] position and contentions,' in order to allow the agency to give the issue meaningful consideration." Nevada v. Dep't of Energy, 457 F.3d 78, 88 (D.C.Cir.2006) (quoting Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 764, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004)). Though the intervenor-defendants argue that the plaintiffs did not raise the no action issue in their comments to the Draft SEIS, the Court disagrees. Specifically, in its "overarching problems" section of its comments submission, the plaintiffs stated that "[t]he DSEIS does
Having found that the plaintiffs did not waive their no action alternative argument, the Court now turns to the discussion of that issue on the merits. The no action alternative requirement is found in 40 C.F.R. § 1502.14(d). That section provides that analysis of alternatives is "the heart of the environmental impact statement." 40 C.F.R. § 1502.14. This section demands that the agency "[r]igorously explore and objectively evaluate all reasonable alternatives," including "the alternative of no action." Id. §§ 1502.14(a), (d). CEQ put forth a memorandum explaining the concept of "no action" as "instances involving federal decisions on proposals for projects. `No action' in such cases would mean the proposed activity would not take place, and the resulting environmental effects from taking no action would be compared with the effects of permitting the proposed activity or an alternative activity to go forward." See Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 18,026-01, 18,027 (March 23, 1981). That guideline goes on to explain that "[w]here a choice of `no action' by the agency would result in predictable actions by others, this consequence of the `no action' alternative should be included in the analysis. For example, if denial of permission to build a railroad to a facility would lead to construction of a road and increased truck traffic, the EIS should analyze this consequence of the `no action' alternative." Id.
In the 2012 SEIS, BOEM analyzed four alternatives: Alternative A (The Proposed Action of Lease Sale 216/222), Alternative B (The Proposed Action Excluding the Unleased Blocks Near Biologically Sensitive Topographic Features), Alternative C (The Proposed Action Excluding the Unleased Blocks within 15 Miles of the Baldwin County, Alabama, Coast), and Alternative D (No Action). See AR5446-47. BOEM described the No Action Alternative as follows:
AR5541. In the "Summary of Impacts" statement for Alternative D, BOEM explained that "[c]anceling the lease sale would eliminate the effects described for Alternative A. The incremental contribution of the proposed lease sale to cumulative effects would also be avoided, but effects from other activities, including other OCS lease sales, would remain." Id. The conclusion, however, went on to explain that "the resulting development of oil and gas would most likely be postponed to a future sale; therefore, the overall level of OCS activity in the CPA would only be reduced to a small percentage, if any. Therefore, the cancellation of the proposed lease sale would not significantly change the environmental impacts of overall OCS activity." Id. BOEM goes on to note that "[o]ther sources of energy may substitute for the lost production" of oil and gas and "[r]evenues collected by the Federal Government (and thus revenue disbursement to the States) would be adversely affected also." Id.
Given the language and explanation in the 2012 SEIS of Alternative D, the Court finds that BOEM did consider a true no action alternative as mandated by NEPA, and that its analysis was reasonable. BOEM analyzed what the environmental impact would be if the proposed action, Lease Sale 216/222, was cancelled. That conclusion was that "[a]ny potential environmental impacts resulting from the proposed lease sale would not occur or would be postponed." AR5541. However, BOEM further explained that the environmental impact of cancelling this particular lease "would not significantly change" because the Central Planning Area of the Gulf of Mexico is a hotbed for oil and gas leases generally. And, practically speaking, if this particular lease sale did not go forward, another lease sale in the same area eventually would (because BOEM is statutorily tasked with developing the OCS)
And moreover, the CEQ encourages agencies to include in the no action alternatives analysis situations "where a choice of `no action' by the agency would result in predictable actions by others." 46 Fed. Reg. 18,026, 18,027 (Mar. 23.1981). Courts have upheld such analyses. See Young v. Gen. Serv. Admin., 99 F.Supp.2d 59, 74 (D.D.C.2000) (finding the GSA's no action alternative analysis reasonable because "where, as here, a decision by the government not to consolidate its facilities on
The plaintiffs analogize this case to Ctr. for Biological Diversity v. U.S. Dep't of Interior, 623 F.3d 633 (9th Cir.2010) and N. Carolina Wildlife Fed. v. N. Carolina Dep't of Transp., 677 F.3d 596 (4th Cir. 2012). In Center for Biological Diversity, the plaintiffs brought suit against the Department of the Interior challenging the Bureau of Land Management's ("BLM") approval of a land exchange in Arizona. 623 F.3d at 636. The EIS at issue had a "No Action Alternative" but it stated that "foreseeable uses of the selected lands are assumed to be the same for all alternatives." Id. at 640 (internal quotation marks omitted). Because the EIS made such an assumption, it contained "no comparative analysis of the environmental consequences of the land exchange and the no action alternative." Id. The court found that BLM acted arbitrarily and capriciously in assuming that the environmental impacts on the land at issue would be the same regardless of who owned the lands— a private entity or the federal government —because in reality the manner and extent of the mining activity allowed differed depending on landowner, due in large part to different obligations imposed on those two entities by the Mining Law of 1872. Id. at 642-43. The court therefore held that BLM failed to take a hard look at the environmental consequences of the exchange in violation of NEPA by "failing to perform a comparative analysis of the likely environmental consequences of the proposed land exchange, on the one hand, and the no action alternative, on the other." Id. at 650.
Similarly, in North Carolina Wildlife Federation, plaintiffs challenged two agencies' decision to approve construction of a new twenty-mile toll road in North Carolina. 677 F.3d at 598. The agencies prepared an EIS that analyzed five different alternatives to building the road, including a "no build" (no action) scenario. Id. at 602. The plaintiffs challenged the EIS on the grounds that the agencies "conflated the `no build' and `build' scenarios" because in their "no build" analysis, they included data that "assumed the existence of the" toll road. Id. The court found that the agencies had acted arbitrarily and capriciously by evaluating the "no build" data under the assumption that the toll road construction would go forward. Id. at 602-603. The court held that by failing to disclose "the [no-build] data's underlying assumptions" that the toll road would be built, "the Agencies failed to take the required hard look at environmental consequences," and violated NEPA. Id. at 605 (citations omitted). The plaintiffs also cite Friends of Yosemite Valley v. Scarlett, for the proposition that "[a] no action alternative in an EIS is meaningless if it assumes the existence of the very plan being proposed." 439 F.Supp.2d 1074, 1105 (E.D.Cal.2006), aff'd sub nom. Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024 (9th Cir.2008).
Because the cases plaintiffs cite are distinguishable, the Court is not persuaded that BOEM's no action alternative analysis was unreasonable. In North Carolina, for instance, the no-build alternative was unreasonable because it incorporated data whose underlying statistical assumption was that the toll road would be built. The
In this case, by contrast, the OCSLA mandates that the Secretary, who delegates authority to BOEM, implement lease sales of the OCS in 5-year increments. See 43 U.S.C. § 1344. As such, regardless of this particular lease sale going forward, in all likelihood, another one eventually will in the CPA of the Gulf of Mexico. The plaintiffs present no facts or argument undermining that assumption. BOEM here did not make an incorrect assumption, but rather acknowledged a practical reality of the OCSLA statutory scheme. And moreover, it did undertake a separate analysis in consideration of the no action alternative that was different from its analysis for the other alternatives. Compare AR6068-6069 (Alternative D analysis) with AR5514-5539 (Alternative A analysis).
* * *
In sum, BOEM did not violate NEPA. It complied with 40 C.F.R. § 1502.22, incorporated all the new data it had into the 2012 SEIS, considered the effects of deepwater drilling, ran a special OSRA model run to account for impacts of an assumed catastrophic oil spill, and considered a true no action alterative. Though the Court may have done things a little differently with respect to Table 3-5, BOEM still considered the ≥ 10,000 bbl category in its analysis, and therefore took a "hard look" at the effects of the Deepwater Horizon spill in the 2012 SEIS.
The plaintiffs also bring claims under the ESA. They argue that BOEM did not comply with the ESA's requirement to insure against the jeopardy of endangered species by approving the lease sales without the benefit of a Biological Opinion assessing important new information. See Pl.'s Mot. Summ. J. 27. Plaintiffs argue (1) that BOEM had to complete consultation with NMFS, not just re-initiate it;
The first ESA issue is whether BOEM violated the ESA by failing to complete consultation with the NMFS before proceeding with Lease Sales 216/222 and 218. Section 7(a) of the ESA requires that "[e]ach federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species. . . ." 16 U.S.C. § 1536(a)(2) (emphasis added). Section 7(a)(2) "imposes two obligations upon federal agencies. The first is procedural and requires that agencies consult with the FWS [or NMFS] to determine the effects of their actions on endangered or threatened species and their critical habitat. The second is substantive and requires that agencies insure that their actions not jeopardize endangered or threatened species or their critical habitat." Fla. Key Deer v. Paulison, 522 F.3d 1133, 1138 (11th Cir.2008). With respect to the procedural requirement, 50 C.F.R. § 402.14(a) provides that "[e]ach Federal agency shall review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitat. If such a determination is made, formal consultation is required."
In this case, BOEM and the NMFS engaged in a formal consultation during the 2007 Multisale EIS phase that resulted in the 2007 Biological Opinion issued by the NMFS. See Federal-Def.'s Cross-Mot. Summ. J. 8. That BO concluded that the proposed action in the 2007 Multisale "will not appreciably reduce the likelihood of survival and recovery of the listed species considered in this biological opinion." AR7138. On July 30, 2010, in the wake of the Deepwater Horizon event, BOEM contacted the NMFS to reinitiate consultation. See Bernhart Decl. ¶ 4, ECF No. 63-1. Since then, the agencies have been working closely to issue a new BO. See id. Thus, the procedural aspect of section 7(a)(2) has been met. The BO, however, has not yet been issued, and NMFS anticipates a March 2015 date of completion. See Bernhart Decl. ¶¶ 5-6, ECF No. 75-1.
While the plaintiffs argue that under the ESA, BOEM had to complete its consultation with the NMFS before it issued its Record of Decision for Lease Sales 216/222 and 218,
All courts considering lease sales under the OCSLA have concluded that "lease sales do not constitute an `irreversible or irretrievable commitment of resources' within the meaning of section 7(d)." Vill. of False Pass v. Watt, 565 F.Supp. 1123, 1163 (D.Alaska 1983), aff'd sub nom. Vill. of False Pass v. Clark, 733 F.2d 605 (9th Cir.1984); see also N. Slope Borough v. Andrus, 642 F.2d 589, 611 (D.C.Cir.1980) ("Plainly, the preliminary activities permitted by this lease sale entail no `irreversible or irretrievable commitment of resources with respect to the Agency action which has the effect of foreclosing . . . alternative measures which avoid jeopardizing the continued existence of any endangered or threatened species . . . .'"); Conservation Law Foundation of New England, Inc. v. Andrus, 623 F.2d 712, 714-716 (1st Cir. 1979) (rejecting appellants' argument that the lease sale stage constituted an irreversible or irretrievable commitment of resources for purposes of a preliminary injunction); Defenders of Wildlife, 871 F.Supp.2d at 1326 ("Nothing in BOEM's mere approval of bids for Lease Sale 213 could reasonably be viewed as constituting an irreversible or irretrievable commitment of resources under § 7(d).")
The two courts most recently confronting this particular issue have found that BOEM did not have to complete consultation with the NMFS before it could continue its operations in the Gulf of Mexico post-Deepwater Horizon spill, precisely because of the structure of the OCSLA. See Defenders of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242, 1253 (11th Cir.2012) (explaining that at the exploration plan stage, "the ESA does not require BOEM to delay approval of the Shell EP until results of reinitiated consultation are received."); Defenders of Wildlife, 871 F.Supp.2d at 1327 (explaining that at the lease sale stage, "this is not a case in which the § 7(d) prohibition on irreversible or irretrievable commitments of resources foreclosed BOEM from taking action with respect to Lease Sale 213 pending the conclusion of the reinitiated consultation with expert agencies.").
The plaintiffs further argue that, regardless of the implications of section 7(d), the re-initiation of consultation does not render BOEM necessarily compliant with section 7(a). To be sure, BOEM has an independent obligation to comply with section 7(a)(2) regardless of whether section 7(d) applies. See Defenders of Wildlife, 871 F.Supp.2d at 1327 ("As the Federal Defendants properly recognize, avoiding irreversible or irretrievable commitment of resources under § 7(d) does not necessarily discharge their obligations as to the no jeopardy requirement of § 7(a). . . . [t]he point is that BOEM's actions with respect to Lease Sale 213 could still violate § 7(a), notwithstanding their compliance with § 7(d)."); see also Florida Key Deer v. Brown, 386 F.Supp.2d 1281, 1293-94 (S.D.Fla.2005) ("Section 7(d) does not excuse federal agencies from meeting the requirements of Section 7(a)(2).").
However, BOEM has met the requirements of both 7(d) and 7(a)(2) in this case. Under section 7(a), BOEM must insure that its actions do not cause jeopardy to any endangered species. In the OCSLA lease sale context, courts across the board hold that lease sales are not jeopardy-inducing agency actions. See Defenders of Wildlife, 871 F.Supp.2d at 1329-30 ("The inescapable fact of the matter is that BOEM's approval of a bid, and the issuance of a lease to an oil drilling/development/exploration company, is a narrowly circumscribed event, in terms of its repercussions for listed species and their habitat. . . . It does not authorize full scale exploration, development, or production."); see also id. ("The purchase of an OCS lease, standing alone, entails no right to explore, develop, or produce oil and gas resources on the OCS.") (quoting Sec'y of the Interior, 464 U.S. at 340, 104 S.Ct. 656); Tribal Vill. of Akutan v. Hodel, 869 F.2d 1185,
Moreover, BOEM took efforts to insure that Lease Sale 216/222 itself would not jeopardize any listed species, while it awaited (awaits) NMFS's Biological Opinion. First, BOEM included stipulations in Lease Sale 216/222 to provide for the protection of certain species. See AR1100-11, AR1096 (map showing areas where stipulations made). For instance, with respect to live bottoms, lessees, "[p]rior to any drilling activities or the construction or placement of any structure for exploration or development on this lease . . . will submit to [BOEM-Regional Director ("RD")] a live-bottom survey report." AR1101. "If it is determined that the live bottoms might be adversely impacted by the proposed activity, the BOEM-RD will require the lessee to undertake any measure deemed economically, environmentally, and technically feasible to protect the pinnacle area. These measures may include, but are not limited to . . . relocation of operations, and monitoring to assess the impacts of the activity on the live bottoms." Id. And with respect to endangered species generally, BOEM included a list of six actions lessees must take to insure that its lease activities "prevent or minimize harm to the environment," including "maintain[ing] a distance of 90 meters or greater from whales," and "employ[ing] mitigation measures . . . for all seismic surveys." AR1110. Such lease stipulations show that BOEM set out to minimize harm to the endangered species in the Gulf of Mexico, and therefore insure no-jeopardy.
In North Slope, for instance, the D.C. Circuit found that certain lease stipulations "represent part of the Secretary's attempt to protect wildlife from the outset. . . [and] are intended to ensure, as much as possible, the continued prosperity of marine life in the area." 642 F.2d at 595-96. That court found this to be an important factor is assessing whether the agency had comported with the ESA. Id. at 610 ("We hold that section 7(a)(2) was not violated as the Secretary incorporated in the `final notice of sale' the suggested alternatives that NMFS indicated could ensure the freedom from jeopardy for the endangered whales. These savings alternatives, of course, constituted the bulk of the lease stipulations and the mitigating measures subsumed under `Information to Lessees.'").
Second, BOEM also developed new safety regulations for deepwater drilling, as set forth above, to insure that another blowout spill would not occur. See Oil and Gas and Sulphur Operations in the Outer
The plaintiffs in reply argue that BOEM did not insure that the ancillary activities
Moreover, ancillary activities themselves undergo a multi-step review wherein a lessee must insure to the BOEM regional supervisor that its activities will not cause harm to the environment. 30 C.F.R. § 550.207 provides that after a lease is approved, a lessee may conduct ancillary activities, which include geological and geophysical explorations and development, and surveys. Before a lessee can conduct any ancillary activities, however, it must notify the Regional Supervisor of BOEM in writing and, inter alia, "[d]escribe the potential adverse environmental effects of the proposed activity and any mitigation to eliminate or minimize these effects on the marine, coastal, and human environment." 30 C.F.R. § 550.208(d)(4). The Regional Supervisor then reviews the notice "to ensure that [the] ancillary activity complies with the performance standards listed in 550.202(a), (b), (d), and (e)." 30 C.F.R. § 550.209. Under 30 C.F.R. § 550.202(e), a lessee must demonstrate that its activities do "not cause undue or serious harm or damage to the human, marine, or coastal environment." Thus, there are statutory safeguards in place to insure that ancillary activities allowed at the lease sale stage do not cause harm to the environment.
Moreover, with respect to ancillary activities, BOEM issued certain Notices to Lessees ("NTL") to insure that protective measures are taken when engaging in ancillary activity. See Notice to Lessees and
The plaintiffs next argue that BOEM's reliance on the NMFS's 2007 Biological Opinion
The defendants are right on their first point. 50 C.F.R. § 402.14(g) confers duties on the expert agency—NMFS or FWS—not on BOEM. See 50 C.F.R. § 402.12(g) ("Service responsibilities during formal consultation are as follows. . . ."). As such, its requirements are inappropriately cited by the plaintiffs.
As to BOEM's reliance on the 2007 Biological Opinion, the most recent court decision considering this issue found that it was not arbitrary and capricious for BOEM to rely on the 2007 Biological Opinion, in addition to the new evidence it considered. See Defenders of Wildlife, 684 F.3d at 1253 ("Given the Bureau's broad consideration of the Deepwater Horizon disaster and new safety measures, the Bureau did not act arbitrarily when it relied on the 2007 consultation in conjunction with more recent studies") (emphasis added); see also Defenders of Wildlife, 871 F.Supp.2d at 1331-32 ("As to the narrow lease-sale stage at issue herein, the likely effects on listed species and critical habitat appear no different after Deepwater Horizon than before.") (emphasis added); Cf. N. Slope, 642 F.2d at 610 n. 131 ("It is quite clear that a favorable biological opinion
Similarly here, in light of the fact that BOEM relied on the 2007 Biological Opinion, supplemented that with the new evidence before it, peppered throughout the 2012 SEIS, see, e.g., Chapter 4 of the 2012 SEIS, and also took steps to implement new safety and mitigation measures, the Court finds that BOEM comported with section 7(a) of the ESA. In addition, the plaintiffs
And while the plaintiffs argue that the 2007 BO lacks sufficiently specific information about the size and tract location of the lease sales, and production estimates for the lease sales, see Pl.'s Mot. 34-35, all of this information is somewhat speculative at the lease sale stage, thereby negating the impact of any changes since 2007 on figures such as production estimates, tract sizes, etc. See Wilderness Soc'y, 603 F.Supp.2d at 60 ("limited information available at the leasing stage necessarily limits the scope of the environmental analysis"); Tribal Village of Akutan, 869 F.2d at 1192 ("[w]e are the least troubled by what may seem to be incomplete or speculative data at the lease sale stage."). Moreover, any changes in that production-related information will not change the likely impacts of ancillary activities on listed species and critical habitat at the narrow lease-sale stage.
In sum, BOEM did not violate the ESA because it relied on the best available science, it took action to insure no-jeopardy, and its actions were not tantamount to an irreversible and irretrievable commitment of resources, so it did not need to await completed consultation with NMFS before it proceeded with the lease sales.
The plaintiffs' final argument is that NMFS's delay in producing its BO in the wake of the Deepwater Horizon spill is unreasonable, and asks this Court to compel NMFS to complete consultation by a date-certain. See Pl.'s Mot. Summ. J. 39,
As set forth above, the ESA provides for consultation between expert agencies (NMFS) and action agencies (BOEM) to insure that the action agency's action is not likely to jeopardize endangered species. 16 U.S.C. § 1536(a)(2). Following formal consultation, the NMFS must issue a written statement known as a Biological Opinion, explaining how the proposed action will affect the species or its habitat. See Bennett v. Spear, 520 U.S. 154, 158, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citing 16 U.S.C. § 1536(b)(3)(A)). The Biological Opinion must include "(1) "[a] summary of the information on which the opinion is based; (2) a detailed discussion of the effects of the action on listed species or critical habitat; and (3) The Service's opinion on whether the action is likely to jeopardize the continued existence of a listed species . . . ." 50 C.F.R. § 402.14(h). Meanwhile, to comply with its consultation obligations under section 7(a), the action agency "shall conduct a biological assessment for the purpose of identifying any endangered or threatened species which is likely to be affected by such action." 16 U.S.C. § 1536(c). "The Federal agency [BOEM] requesting formal consultation shall provide the Service [NMFS] with the best scientific and commercial data available or which can be obtained during the consultation for an adequate review of the effects that an action may have upon listed species or critical habitat." 50 C.F.R. § 402.14(d).
As set forth above, BOEM reinitiated consultation with NMFS in July 2010. Since then, the parties have been engaged in constant communication to set up timelines for achieving the goals of consultation and for producing a new Biological Opinion. See AR7496-7501. They have set up an interim consultation process and timetables for achieving those goals. See Bernhart Decl., Ex., ECF No. 63-1. The agencies also expanded the scope of the initial consultation to include all leases currently pending, and all expected lease sales in the Gulf of Mexico up through 2022.
Meanwhile, NMFS originally represented to the Court that the Biological Opinion would be completed by October 31, 2014. See Bernhart Decl. ¶ 4, ECF No. 75-1. NMFS later updated that date to November 18, 2014. Id. It has since represented to the Court that NMFS's Biological Opinion will be completed by March 18, 2015, explaining that the "most critical outstanding issue for completing the Biological Opinion concerns the nature and extent of reduction in risk of oil well blowouts and catastrophic releases of oil into the environment resulting from regulatory measures and industry incentives implemented since the Deepwater Horizon incident." See Bernhart Decl. ¶¶ 5-6.
The APA empowers a reviewing court to "compel agency action unlawfully withheld or unreasonably delayed." 5 U.S.C. § 706(1). "Section 706 of the APA `leaves in the courts the discretion to decide whether agency delay is unreasonable.'" Cobell v. Norton, 240 F.3d 1081, 1096 (D.C.Cir.2001) (quoting Forest Guardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir.1999)). In reviewing an unreasonable delay claim, the D.C. Circuit has stated that the inquiry has taken on a "hexagonal contour[]" because there are up to six factors a court can consider, though "the standard is hardly ironclad." Telecomms. Research & Action Ctr. v. FCC ("TRAC"), 750 F.2d 70, 80 (D.C.Cir. 1984). The TRAC court listed the following factors as useful guidance: First, "the time agencies take to make decisions must be governed by a `rule of reason.'" Id. Second, "where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason." Id. Third, "delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake." Id. Fourth, "the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority." Id. Fifth, "the court should also take into account the nature and extent of the interests prejudiced by delay." Id. Finally, "the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed." Id. (internal quotation marks and citation omitted).
At the outset, the parties disagree on the actual length of delay in this case. The plaintiffs argue that the Court should measure the delay from the time that consultation began, in July 2010. See Pl.'s Reply 23. This would make NMFS's delay in issuing its Biological Opinion nearly four years to date, and nearly five years to projected completion. Alternatively, the defendants argue that the Court should begin assessing the delay from the time BOEM issued its Biological Assessment and provided it to NMFS in February 2013, based on the argument that they could not have begun the Biological Opinion prior to the receipt of the assessment. See Federal-Def.'s Reply 24; Intervenor's Cross-Mot. Summ. J. 61. By this calculation, NMFS's delay would be approximately over one-year to date, and just over two years to projected completion.
The Court need not reach the difficult issue of when the clock started running, because regardless of the length of delay, the Court finds that NMFS has acted reasonably throughout the consultation process. And moreover, because context means everything in assessing an alleged
In determining whether or not the agency delay is reasonable, the Court first assesses the statutory scheme set up by Congress. See, e.g., TRAC, 750 F.2d at 80. The relevant statutory provision here states as follows: "Consultation . . . shall be concluded within the 90-day period beginning on the date on which initiated or. . . within such other period of time as is mutually agreeable to the Secretary and the Federal agency." 16 U.S.C. § 1536(b)(1)(A) (emphasis added). To the extent that this scheme informs the reasonableness inquiry, it demonstrates that the agency and the Secretary have a great deal of discretion in mutually setting their own timelines. The 90-day timeline is nothing more than a default setting, and there is no limitation in the statute on the length of the period of time that the Secretary and the agency can agree to extend the 90-day default period.
Despite this, the plaintiffs argue that the defendants' delay is unreasonable because it "flies in the face of the Fisheries Service's own policy for completing consultations in 135 days." See Pl.'s Mot. Summ. J. 41. NMFS's policy specifically states that "[t]he Services ensure the biological opinion . . . is prepared and delivered within 135 days of initiation of formal consultation. . . . If the Services need more time to analyze the data or prepare the final opinion, or if the action agency needs time to provide data or review a draft opinion, an extension may be requested by either party. Both the Services and the action agency must agree to the extension. Extensions should not be indefinite, and should specify a schedule for completing the consultation." See Endangered Species Act Consultation Handbook: Procedures for Conducting Section 7 Consultation and Conferences, U.S. Fish & Wildlife Service and National Marine Fisheries Service, March 1998, at 4-7.
The consequences of the agency's delay, the next factor in the analysis, also cuts in favor of the government here. Delays are generally not tolerable "when human health and welfare are at stake." TRAC, 750 F.2d at 80. The plaintiffs have alleged that the delay will threaten endangered species. See Pl.'s Reply 16. But, as set forth above, the lease sales are a narrow, circumscribed event in the OCSLA scheme that will have minimal impact on endangered species. See Defenders of Wildlife, 871 F.Supp.2d at 1329-30. And though NEPA covers agency action that significantly impacts the quality of the human environment, it is unclear how any delay in NMFS's BO here would harm the human environment. On the contrary, an order compelling the agency to issue its BO immediately might undermine the entire process, and arguably have even harsher consequences than any delay. As the defendants have articulated, critical new data is being analyzed and a premature decision could undermine the time already put in and "only threaten NMFS's ability to conduct a thorough and searching analysis." Federal-Def.'s Cross-Mot. Summ. J. 45.
The final three factors—other agency priorities, nature and extent of interests prejudiced, and any agency impropriety or lassitude (or lack thereof)—also cut in favor of NMFS. Here, the defendants have offered several relevant explanations for the delay: (1) the scientific and regulatory questions are "staggeringly complex," and the BO examines effects 50 years into the future; (2) production of the BO requires coordination between BOEM, NMFS, and two other agencies—Bureau of Safety and Environmental Enforcement ("BSEE"), and EPA; and (3) NMFS has limited resources—its Southeast Regional Office has a staff of 16 members, only two of whom are available to work on this particular BO. See Federal-Def.'s Cross-Mot. Summ. J. 40-41; see also Bernhart Decl. ¶¶ 4-7. In light of the amount of information
The Court notes, however, that by the time NMFS produces its Biological Opinion in 2015, the Deepwater Horizon oil spill will be five years behind it. The Court, though, does not question the holistic approach the agencies are taking in ambitiously assessing the environmental impact of oil and gas exploration and production on endangered and threatened species and their designated critical habitats throughout the Gulf of Mexico, rather than assessing each lease sale separately. This approach seems sensible, even preferable. But, of course, such an ambitious endeavor takes time. And the time expended to date seems to have been reasonably spent. The APA requires no more.
For the foregoing reasons, the federal-defendants' and intervenor-defendants' motions for summary judgment are
