United States District Court, D. Columbia.
For Oceana, Center For Biological Diversity, Natural Resources Defense Council, Plaintiffs: Catherine M. Wannamaker, LEAD ATTORNEY, PRO HAC VICE, Atlanta, GA USA; Sierra B. Weaver, DEFENDERS OF WILDLIFE, Washington, DC USA.
For Defenders of Wildlife, Plaintiff: Catherine M. Wannamaker, LEAD ATTORNEY, PRO HAC VICE, Atlanta, GA USA; Michael P. Senatore, LEAD ATTORNEY, DEFENDERS OF WILDLIFE, Washington, DC USA.
For Bureau of Ocean Energy Management, Tommy P. Beaudreau, Director, Bureau of Ocean Energy Management, United States Department of Interior, Kenneth Lee Salazar, Secretary of the Interior, Defendants: James A. Maysonett, Kevin W. McArdle, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Environment & National Resources Division, Washington, DC USA; Michael D. Thorp, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA.
For National Marine Fisheries Service, Samual D. Rauch, III, Acting Assistant Administrator, National Marine Fisheries Service, Rebecca M. Blank, Acting Secretary of Commerce, Defendants: James A. Maysonett, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE ENVIRONMENT & Natural Resources Division, Washington, DC USA; Michael D. Thorp, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC USA.
For Apache Corporation, Apache Deepwater LLC, Intervenor Defendants: Carmen M. Rodriguez, LEAD ATTORNEY, PRO HAC VICE, JONES WALKER LLP, Lafayette, LA USA; Douglas C. Longman, LEAD ATTORNEY, PRO HAC VICE, JONES WALKER, WAECHTER, POITEVENT, CARRERE, AND DENEGRE, Lafayette, LA USA; Robert B. Bieck, Jr., LEAD ATTORNEY, JONES, WALKER, WAECHTER, POITEVENT, CARRERE & DENEGRE, New Orleans, LA USA.
For National Ocean Industries Association, Intervenor Defendant: David Longly Bernhardt, LEAD ATTORNEY, BROWNSTEIN HYATT FARBER SCHRECK, LLP, Washington, DC USA; Ryan Anthony Smith, LEAD ATTORNEY, BROWNSTEIN HYATT FARBER SCHRECK, Washington, DC USA.
For Conocophillips Company, Intervenor Defendant: David Austin Barker, LEAD ATTORNEY, BEVERIDGE & DIAMOND, PC, Washington, DC USA; Jonathan A. Hunter, Stephen W. Wiegand, LEAD ATTORNEYS, PRO HAC VICE, LISKOW & LEWIS, New Orleans, LA USA.
For Exxon Mobil Corporation, Intervenor Defendant: Jonathan A. Hunter, LEAD ATTORNEY, PRO HAC VICE, Lesley Foxhall Pietras, LEAD ATTORNEY, Stephen W. Wiegand, LEAD ATTORNEY, PRO HAC VICE, LISKOW & LEWIS, New Orleans, LA USA.
For Statoil Gulf of Mexico LLC, Intervenor: Michael B. Wigmore, LEAD ATTORNEY, VINSON & ELKINS, LLP, Washington, DC USA.
For American Petroleum Institute, Independent Petroleum Association of America, U.S. Oil & Gas Association, International Association of Drilling Contractors, Intervenors: Steven J. Rosenbaum, LEAD ATTORNEY, COVINGTON & BURLING LLP, Washington, DC USA.
Re Document No.: 60, 63, 68
RUDOLPH CONTRERAS, United States District Judge.
Granting Federal-Defendants' Motion for Summary Judgment; Granting Intervenor-Defendants' Motion for Summary Judgment; Denying Plaintiffs' Motion for Summary Judgment
On April 20, 2010, the Deepwater Horizon, a deep-water exploratory oil rig, exploded, caught fire, and sank in the Gulf of
Mexico, resulting in the largest oil spill in the United States in modern history. Less than two years later, the Bureau of Ocean Energy Management (" BOEM" ), approved two lease sales in the area where the Deepwater Horizon spill occurred. The plaintiffs bring this action challenging BOEM's approval of those lease sales under the National Environmental Policy Act, the Administrative Procedure Act, and the Endangered Species Act. The plaintiffs also bring suit against the National Marine Fisheries Service (" NMFS" ) for failing to issue a Biological Opinion in the wake of the oil spill in violation of the Administrative Procedure Act. All parties  moved for summary judgment. For the reasons that follow, the Court will grant all the defendants' motions for summary judgment, and deny the plaintiffs' motion for summary judgment.
II. FACTUAL BACKGROUND
A. Statutory Landscape
1. Outer Continental Shelf Lands Act (" OCSLA" )
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, 385 U.S.App.D.C. 257 (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; 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
phase at issue in this case is the second stage--the lease sale stage.
2. National Environmental Policy Act (" NEPA" )
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).
3. Endangered Species Act (" ESA" )
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).
B. Lease Sales in the Gulf of Mexico
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
the nation's domestic seafood supply," and is home to many endangered species, such as the sperm whale, the West Indian manatee, several species of sea turtles, beach mice, the whooping crane, and the gulf sturgeon. See Am. Compl. ¶ ¶ 43-45. At the same time, the OCS of the Gulf of Mexico is responsible for 20% of total U.S. crude oil production. See Intervenor-Def.'s Cross-Mot. Summ. J. 17, ECF No. 68.
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  published a Multisale EIS, which covered eleven lease sales planned for in the Gulf of Mexico. See Am. Compl. ¶ 46, see also Outer Continental Shelf (OCS), Western and Central Gulf of Mexico (GOM), Oil and Gas Lease Sales for Years 2007-2012, 72 Fed. Reg. 18,667 (April 13, 2007). Three of these eleven Lease Sales, Lease Sales 206, 216, and 222, were located in the Central Planning Area (" CPA" ) of the Gulf of Mexico--where the Deepwater Horizon spill took place. See Am. Compl. ¶ 46. Another one of the eleven leases was located in the Western Planning Area (" WPA" ) of the Gulf of Mexico, Lease Sale 218. Am. Compl. ¶ 47. In September 2008, after Congress repealed a moratorium on drilling, BOEM issued a Supplemental EIS for seven lease sales that had been covered in the 2007 Multisale EIS, called the 2009-2012 Supplemental EIS. Am. Compl. ¶ 57; see also AR2433-2917.
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  oil spill in 2010, there were two lease sales remaining in the Gulf under the 2007 Multisale EIS: Lease Sale 218 and Lease Sale 222 (which was combined with Lease Sale 216 in 2012). Am. Compl. ¶ 58. In light of the spill, on November 10, 2010, BOEM issued a notice of intent to prepare a Supplemental EIS (" SEIS" ) for Lease Sale 216/222 and Lease Sale 218. See Outer Continental Shelf (OCS), Western and Central Planning Areas, Gulf of Mexico (GOM) Oil and Gas Lease Sales for the 2007-2012 5-Year OCS Program, 75 Fed. Reg. 69,122 (November 10, 2010). The purpose of undertaking the SEIS was " to consider new circumstances and information arising, among other things, from the Deepwater Horizon blowout and spill." See 75 Fed. Reg. at 69,122. BOEM explained that the focus of the SEIS would be " on updating the baseline conditions and potential environmental effects of oil and natural gas leasing, exploration, development, and production in the WPA and CPA." Id.
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
December 14, 2011, BOEM held the first lease sale since the Deepwater Horizon explosion in the Gulf of Mexico--for Lease Sale 218. See Outer Continental Shelf (OCS), Western Planning Area (WPA) Gulf of Mexico Oil and Gas Lease Sale 218, 76 Fed. Reg. 70,473-01 (Nov. 14, 2011). On January 20, 2012, BOEM issued the final SEIS for Lease Sale 216/222 (" 2012 SEIS" ). See AR5438-6673. This 2012 SEIS concluded that " [n]o substantial new information, with the exception of archeological resources, was found that would alter the impact conclusions as presented in the Multisale EIS and the 2009-2012 Supplemental EIS for a CPA lease sale." AR5448. BOEM also explained that " [i]t is important to note that, barring another catastrophic oil spill, which is a low probability accidental event, the adverse impacts associated with the proposed CPA lease sale are small, even in light of the DWH event." AR5624.
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.
C. Endangered Species Act consultation
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, brought suit against BOEM and NMFS alleging NEPA, ESA, and APA violations. They argue that (1) BOEM violated NEPA and was arbitrary and capricious in issuing its 2012 SEIS because it failed to take a " hard look" at the environmental impacts of Lease Sale 216/222 and failed to consider a no action alternative; (2) that BOEM violated the ESA by failing to insure against jeopardy to listed species in issuing Lease Sales 216/222 and 218; and (3) that NMFS violated the APA by unreasonably delaying
the issuance of the Biological Opinion. The Court turns to the relevant legal standards and analyzes each argument in turn.
A. APA Standard of Review
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, 362 U.S.App.D.C. 276 (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, 222 U.S.App.D.C. 228 (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).
B. NEPA Claims
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.
1. 40 C.F.R. § 1502.22
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
choice among alternatives and the overall costs of obtaining it are not exorbitant, the agency shall include the information in the [EIS]." Id. § 1502.22(a). If, on the other hand, the missing information cannot be obtained " because the overall costs of obtaining it are exorbitant or the means to obtain it are not known," the agency must include within the EIS: " (1) [a] statement that such information is incomplete or unavailable; (2) a statement of the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment; (3) a summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment; and (4) the agency's evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community." Id. § 1502.22(b).
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. For eleven other resources, however, BOEM concluded that " there is incomplete or unavailable information that is relevant to reasonably foreseeable significant adverse impacts and may be essential to a reasoned choice among alternatives." Id. BOEM analyzed each of those eleven resources, which are Seagrass Communities, Live Bottoms, Topographic Features, Marine Mammals (the sperm whale and the West Indian manatee, specifically), Sea Turtles, Coastal and Marine Birds, Gulf Sturgeon, Fish Resources and Essential Fish Habitat, Commercial Fisheries, Environmental Justice, and Diamondback Terrapins. See AR5624-25.
Because the plaintiffs take issue with BOEM's treatment of each of these eleven resources for which there was " incomplete or unavailable [yet essential] information," the Court must examine what, exactly, BOEM did to determine whether it complied with the requirements of 40 C.F.R. § 1502.22(b). With respect to Seagrass Communities, BOEM concluded the following:
[T]here remains uncertainty regarding the impacts of the DWH event on submerged vegetation . . . . BOEM cannot definitively determine that the incomplete or unavailable information being developed through the NRDA process would not be essential to a reasoned choice among alternatives. Nevertheless, the ongoing research on submerged vegetation after the DWH event is being conducted through the NRDA process. These research projects may be years from completion, and data and conclusions have not been released to the public. Regardless of the costs involved, it is not within BOEM's ability to obtain this information from the NRDA process within the timeline of this Supplemental EIS. In light of this incomplete and unavailable information, BOEM subject-matter experts have used credible scientific information that is available and applied it using scientifically accepted methodology.
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:
Two general approaches are utilized to analyze a catastrophic event under NEPA. The first approach is a bounding analysis for each individual resource category (e.g., marine mammals, sea turtles, etc.). A bounding analysis involves selecting and evaluating a different set of factors and scenarios for each resource in the context of a worst-case analysis. The second approach involves the selection of a single set of key circumstances that, when combined, result in catastrophic consequences. The second approach is used for a site-specific analysis and, consequently, its possible application is more limited. Accordingly, this analysis combines the two approaches, relying on a generalized scenario while identifying site-specific severity factors for individual resources. This combined approach allows for the scientific investigation of a range of possible, although not necessarily probable, consequences of a catastrophic blowout and oil spill in the Gulf of Mexico.
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 ...