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Wilderness Society v. Salazar

March 25, 2009

THE WILDERNESS SOCIETY, ET AL., PLAINTIFFS,
v.
KEN SALAZAR,*FN1 SECRETARY OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION

The Wilderness Society and seven other organizations filed this lawsuit against the Secretary of the Interior, the Bureau of Land Management ("BLM"), and the Fish and Wildlife Service ("FWS") challenging the decision by the Secretary to conduct oil and gas leasing in an area of the National Petroleum Reserve-Alaska ("NPR-A"). Plaintiffs filed a motion for partial summary judgment on Counts II through IV, VII and VIII of their first amended complaint, arguing that the Environmental Impact Statement violates the National Environmental Policy Act of 1970 ("NEPA"), 42 U.S.C. § 4331, et seq., Executive Order ("EO") 11,990, and the Endangered Species Act of 1973 ("ESA"), 16 U.S.C. § 1531, et seq. Defendants filed a cross-motion for summary judgment on these counts. Plaintiffs later filed a motion to dismiss without prejudice for lack of jurisdiction Count VIII involving the ESA claim, which the defendants oppose.*fn2 Because Count VIII is moot, it will be dismissed. Because the defendants complied with NEPA and the EO, judgment will be entered for them on the remaining counts.

BACKGROUND

I. HISTORY OF LEASING IN THE NPR-A

The NPR-A was first established in 1923 when President Warren G. Harding set aside 23.5 million acres in northern Alaska to be administered by the Navy as a future oil supply.*fn3 (See Pls.' Stmt. of Material Facts ¶ 2; Defs.' Stmt. of Material Facts ¶ 2.) Administration of the NPR-A was transferred from the Secretary of the Navy to the Secretary of the Interior in 1976, when President Gerald Ford signed the National Petroleum Reserves Production Act in 1976 ("NPRPA"). See 42 U.S.C. § 6502. The NPRPA prohibited production of petroleum or development leading to such production in the NPR-A without prior authorization by Congress. See 42 U.S.C. § 6504(a).

Authorization for such production came in December 1980, when Congress passed the appropriations bill for the fiscal year ending September 30, 1981. See P.L. No. 96-514 (1980). The rider was passed as part of an effort to combat the difficulties caused by the energy crisis. See 126 Cong. Rec. S29489 (1980)(statement of Sen. Stevens) ("[W]e can no longer delay efforts which would increase the domestic supply of oil and lessen our reliance on imports."); see also 126 Cong. Rec. H20533 (1980) (statement of Rep. McDade) ("We are in the middle of an energy crisis."). At the time, a federal drilling program was already in place, but the government wanted to shift exploration efforts to the private sector because the federal program was of limited scope and was expensive to maintain. See S. Rep. No. 96-985 at 34 (1980). To help combat the problem, Congress decided to open up the NPR-A to private companies interested in oil and gas leasing. See 126 Cong. Rec. 31,196 (1980)(statement of Sen. Stevens) ("The conferees have agreed to include language to expedite private leasing and exploration of the entire National Petroleum Reserve in Alaska.") (emphasis added).

When the appropriations bill for fiscal year 1981 was passed, a rider was attached to it stating that the Secretary of the Interior should carry out "an expeditious program" of oil and gas leasing in the NPR-A.*fn4 See P.L. No. 96-514 (1980). Under this directive, the Secretary held a number of lease sales in the early 1980s. (See Pls.' Stmt. of Material Facts ¶ 8; Defs.' Stmt. of Material Facts ¶ 8.) Before the third lease sale, the Bureau of Land Management ("BLM") issued its Final Environmental Impact Statement on Oil and Gas Leasing in the National Petroleum Reserve in Alaska (February 1983). (See Pls.' Stmt. of Material Facts ¶ 8; Defs.' Stmt. of Material Facts ¶ 8.)

II. THE CURRENT OIL AND GAS LEASING PROGRAM

In 1997, the BLM published a Notice of Intent to prepare an Integrated Activity Plan/Environmental Impact Statement ("IAP/EIS") for the NPR-A. See 62 Fed. Reg. 6797 (1997). The goal of the BLM was to determine whether or not new oil and gas leasing should occur in a 4.6 million acre area ("NPR-A planning area" or "planning area") located in the northeast section of the region. (See Northeast National Petroleum Reserve-Alaska, Final Integrated Activity Plan/Environmental Impact Statement ("EIS") at I-1 to 2.) A draft analysis of the IAP/EIS was completed within ten months, and for a 90-day period thereafter, the BLM received public comments on the draft proposals. (See 62 Fed. Reg. 65,440 (1997).) "BLM received approximately 7,000 written comment messages and nearly 200 people testified at the public meetings on the Draft IAP/EIS." (Record of Decision ("ROD") at 23.)

After the close of this 90-day period, the Final EIS was published on August 7, 1998. (See 63 Fed. Reg. 42,431 (1998).) The EIS included six alternative oil and gas leasing plans, among them a "Preferred Alternative" plan, which would have opened up 87% of the planning area to oil and gas leasing. (See EIS at IVB-1 to IV-G-83.) After a last round of comments, the Secretary issued the Record of Decision ("ROD") on October 7, 1998. (Pls.' Stmt. of Material Facts ¶ 28; Defs.' Stmt. of Material Facts ¶ 28.) The plan set forth in the ROD not only adopted the Preferred Alternative, but also set forth some conditions for implementation, among them compliance with restrictions on surface activities, consultations with local residents, and continued protection of the wildlife environment. (See ROD at v.)

On April 5, 1999, BLM gave final notice of the initial lease sale under the ROD and the initial lease sale took place on May 5, 1999, during which BLM issued 133 leases. (See Pls.' Stmt. of Material Facts ¶ 29; Defs.' Stmt. of Material Facts ¶ 29.) As of the time that plaintiffs filed their motion for partial summary judgment, one company, ARCO Alaska, Inc., had applied for a permit to drill in the NPR-A. (See Pls.' Stmt. of Material Facts ¶ 30; Defs.' Stmt. of Material Facts ¶ 30.) BLM released an Environmental Assessment on ARCO's application, in which BLM made a Finding of No Significant Impact, and approved the application on January 28, 2000. (See Pls.' Stmt. of Material Facts ¶ 30; Defs.' Stmt. of Material Facts ¶ 30.) Since then, additional leases have been issued and oil companies continue to propose and conduct oil and gas activities in the planning area. (See Joint Status Report, Docket Entry 150, at 2-3.)

DISCUSSION

"Summary judgment is appropriate when the pleadings and the evidence demonstrate that 'that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Feirson v. Dist. of Columbia, 506 F.3d 1063, 1065 (D.C. Cir. 2007) (quoting Fed. R. Civ. P. 56(c). Challenges to agency compliance with NEPA are brought under the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. Karst v. EPA, 475 F.3d 1291, 1295 (D.C. Cir. 2007). The EIS is reviewed under the APA to determine whether the agency's actions were "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Communities Against Runway Expansion, Inc. v. FAA, 355 F.3d 678, 685 (D.C. Cir. 2004). "A court reviewing an EIS considers whether an 'agency took a 'hard look' at the environmental consequences of its decision to go forward with the project." Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562, 568 (D.C. Cir. 2007) (quoting Communities Against Runway Expansion, 355 F.3d at 685). While the review must be careful, the ultimate standard is a narrow one. A court is not to substitute its judgment for that of the agency. Envtl. Def. v. United States Army Corps of Eng'rs, 515 F. Supp. 2d 69, 75 (D.D.C. 2007).

I. NEPA

"Under NEPA, a federal agency must prepare an EIS for 'major Federal actions significantly affecting the quality of the human environment.'" Duncan's Point Lot Owners Ass'n v. FERC, 522 F.3d 371, 376 (D.C. Cir. 2008) (quoting 42 U.S.C. § 4332(2)(C)). "This rather general legislative language has been explained and interpreted in guidelines published by the Council on Environmental Quality (CEQ), the agency established by NEPA to serve as a research, resource, and advisory body to the President." Natural Resources Defense Council v. Morton, 388 F. Supp. 829, 832 (D.D.C. 1974), aff'd without opinion, 527 F.2d 1386 (D.C. Cir.), cert. denied, 427 U.S. 913 (1976). The regulations promulgated by the CEQ are binding on all federal agencies implementing NEPA. See 40 C.F.R. § 1500.3; Communities Against Runway Expansion, 355 F.3d at 681.

The purpose of NEPA is to incorporate environmental considerations into federal agencies decision-making processes by requiring agencies to prepare EISs and to inform the public that environmental considerations were taken into account during decision-making. City of Dania Beach v. Federal Aviation Administration, 485 F.3d 1181, 1185 (D.C. Cir. 2007); see Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139, 143 (1981)). However, NEPA's mandate is essentially procedural, and the Supreme Court has noted the impropriety of federal courts introducing additional procedural or substantive standards into the statutory provisions. See City of Alexandria v. Slater, 198 F.3d 862, 866 (D.C. Cir. 1999); North Slope Borough v. Andrus, 642 F.2d 589, 598 (D.C. Cir. 1980). "Obedience to NEPA is a matter of the administrative agency acquiring and digesting useful information about the environmental ramifications of major federal projects." North Slope Borough, 642 F.2d at 599. "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." Hammond v. Norton, 370 F. Supp. 2d 226, 240 (D.D.C. 2005) (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976) (quoting Natural Resources Defense Council v. Morton, 458 F.2d 827, 838 (D.C. Cir. 1972))).

A. Count II: Site-Specific Impacts

Plaintiffs contend that defendants failed to comply with NEPA because the EIS supporting the decision to make land in the planning area available for oil and gas leasing did not contain site-specific assessments of environmental impacts. (See Pls.' Mem. of P. & A. in Supp. of Pls.' Mot. for Partial Summ. J. on Counts II-IV and VII-VIII of the First Am. Compl. ("Pls.' Mem. in Supp.") at 6.) Defendants counter that the level of specificity of the EIS analysis was appropriate for the leasing stage given the available information and the phased nature of oil and gas development, and that NEPA and the CEQ regulations allow for deferring further analysis until more information is available. Defendants state that the Department of the Interior ("DOI") has followed an accepted procedure in using for the EIS all the currently available information to analyze the foreseeable site-specific impacts of leasing in the planning area, while still recognizing that additional information concerning the precise locations where the site-specific impacts may occur will simply not be available until after BLM issues leases and the lessees determine where, when and how they propose to conduct their field activities. (Fed. Defs.' Mem. in Opp'n to Pls.' Mot. for Partial Summ. J. on Counts II-IV and VII-VIII of the First Am. Compl. & in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Opp'n & Mem. in Supp.") at 20.)

Where an agency administering oil and gas leasing on federal lands "chooses not to retain the authority to preclude all surface disturbing activities, then an EIS assessing the full environmental consequences of leasing must be prepared at the point of commitment -- when the leases are issued." Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983); see also Wyoming Outdoor Council v. United States Forest Service, 165 F.3d 43, 49 (D.C. Cir. 1999) (holding that "point of irreversible and irretrievable commitment of resources and concomitant obligation to fully comply with NEPA do not mature until leases are issued"); Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1227 (9th Cir. 1988) (holding that "leases which 'do not reserve to the government the absolute right to prevent all surface-disturbing activity' cannot be sold without preparation of an EIS"). The action at issue here -- BLM's decision to issue leases which do not preclude all surface disturbing activity --is a commitment of resources which requires an EIS assessing the environmental consequences.*fn5

At the same time, the analysis in an EIS is governed by the CEQ regulations, which require that only the "reasonably foreseeable" environmental impacts be considered in an EIS:

When 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. In addition, in the context of Outer Continental Shelf Lands Act ("OCSLA") leasing, courts have acknowledged that the limited information available at the leasing stage necessarily limits the scope of the environmental analysis. For example, the Ninth Circuit in Tribal Village of Akutan v. Hodel, noted that

[w]e are least troubled by what may seem to be incomplete or speculative data at the lease sale stage. Prior to exploration, it is difficult to make so much as an educated guess as to the volume of oil likely to be produced or the probable location of oil wells. 869 F.2d 1185, 1192 (9th Cir. 1989). The court further stated that "[t]he omission of speculative information from an environmental impact statement prepared at the lease sale stage is permissible; however, an environmental impact statement which is incomplete due to the omission of ascertainable facts, or the inclusion of erroneous information, violates the disclosure requirement of 42 U.S.C. § 4332(2)(C)." Id. at 1192 n.1.

The "rule of reason" requires that consideration be given to practical limitations on the agency's analysis, such as the information available at the time. See Transmission Access Policy Study Group v. FERC, 225 F.3d 667, 736 (D.C. Cir. 2000); North Slope Borough, 642 F.2d at 600. In North Slope Borough, the D.C. Circuit reversed the district court in part and held that the environmental impact statement prepared for a lease sale pursuant to OCSLA was valid under NEPA. However, the court noted that the district court was correct in stating that "'[t]he decision of how much detail to include is one for the agency itself,' guided by a 'rule of reason.'" Id. (quoting North Slope Borough v. Andrus, 486 F. Supp. 326, 345 (D.D.C. 1979)).

The CEQ regulations also provide for "tiering" of environmental analyses under certain circumstances.

Agencies are encouraged 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 (§ 1508.28). Whenever a broad environmental impact statement has been prepared (such as a program or policy statement) and a subsequent statement or environmental assessment is then prepared on an action included within the entire program or policy (such as a site specific action) the subsequent statement or environmental assessment need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference and shall concentrate on the issues specific to the subsequent action. The subsequent document shall state where the earlier document is available. Tiering may also be appropriate for different stages of actions.

40 C.F.R. § 1502.20 "Tiering" refers to the coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared. Tiering is appropriate when the sequence of statements or analyses is:

(a) From a program, plan, or policy environmental impact statement to a program, plan, or policy statement or analysis of lesser scope or to a site-specific statement or analysis.

(b) From an environmental impact statement on a specific action at an early stage (such as need and site selection) to a supplement (which is preferred) or a subsequent statement or analysis at a later stage (such as environmental mitigation). Tiering in such cases is appropriate when it helps the lead agency to focus on the issues which are ...


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