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Gulf Restoration Network v. Sally Jewell Secretary of Interior

United States District Court, D. Columbia.

April 9, 2015

Gulf Restoration Network, Plaintiff,
v.
Sally Jewell Secretary of the Interior, et al., Defendants

Page 304

For GULF RESTORATION NETWORK, Plaintiff: Stephen Elston Roady, LEAD ATTORNEY, EARTHJUSTICE, Washington, DC; Michael L. Brown, PRO HAC VICE, WALTZER WIYGUL & GARSIDE, LLC, Gretna, LA; Robert Wiygul, PRO HAC VICE, WALTZER & WIYGUL LLP, Ocean Springs, MS.

For SALLY JEWELL, In her official capacity as Secretary of the Interior, UNITED STATES DEPARTMENT OF THE INTERIOR, KATHRYN SULLIVAN, In her official capacity as Undersecretary of Commerce for Oceans and Atmosphere and NOAA Administrator, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, GINA MCCARTHY, In her official capacity as Administrator, ENVIRONMENTAL PROTECTION AGENCY, TOM VILSACK, In his official capacity as Secretary of Agriculture, U.S. DEPARTMENT OF AGRICULTURE, Defendants: Kristofor R. Swanson, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

Page 305

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff Gulf Restoration Network brought this action under the Administrative Procedure Act challenging the decision of various federal agencies to approve the Gulf State Park Enhancement Project for inclusion in early restoration efforts responsive to the 2010 Deepwater Horizon oil spill. Plaintiff alleges that the decision to approve the project, which is to be located in the State of Alabama's Gulf State Park, violated the Oil Pollution Act of 1990 and the National Environmental Policy Act of 1969.

Before the court is Defendants' motion to transfer the case to the United States District Court for the Southern District of Alabama. After considering the parties' submissions and the relevant law, the court concludes that in the interest of justice, particularly the interest of Alabama's citizens in deciding this controversy at home, this matter shall be transferred.

II. BACKGROUND

A. The Parties

Plaintiff Gulf Restoration Network (" Gulf Restoration" ) is a non-profit organization, based in New Orleans, Louisiana, and incorporated under the laws of the State of Louisiana. Gulf Restoration endeavors " to unite and empower people in protecting and restoring the Gulf [of Mexico]'s natural resources." Amended Complaint, ECF No. 12, ¶ 13 [hereinafter Am. Compl.]. Plaintiff maintains satellite offices in Madison, Mississippi, and St. Petersburg, Florida. It does not have an office in the District of Columbia. Gulf Restoration " has members throughout the states bordering the Gulf of Mexico and nationwide," including " numerous members who live, work, and take advantage of the tremendous outdoor recreation opportunities in and around Gulf State Park and otherwise in the vicinity of the" Gulf State Park Enhancement Project (the " Project" ). Id. ¶ ¶ 13-14. Gulf Restoration alleges

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that the Project will harm its members' enjoyment of the Park. Id. ¶ 14.

Defendants the United States Department of the Interior (" DOI" ), the National Oceanic and Atmospheric Administration (" NOAA" ), the Environmental Protection Agency (" EPA" ), and the United States Department of Agriculture (" USDA" ) (collectively, the " Defendant Agencies" ) serve as " Federal trustees" under the Oil Pollution Act of 1990 (" OPA" ) with respect to the 2010 Deepwater Horizon oil spill (the " Spill" ). Id. ¶ 4. Defendants Sally Jewell, Kathryn Sullivan, Gina McCarthy, and Tom Vilsack are sued by Plaintiff in their official capacities as leaders of the Defendant Agencies--Defendant Jewell is Secretary of the Interior, Defendant Sullivan is Undersecretary of Commerce for Oceans and Atmosphere and the NOAA Administrator, Defendant McCarthy is the Administrator of the EPA, and Defendant Vilsack is Secretary of Agriculture. Id. ¶ ¶ 15-18. All Defendants are based in the District of Columbia. Id. ¶ 12.

Plaintiff alleges that Defendants violated both OPA and the National Environmental Policy Act of 1969 (" NEPA" ) by approving the Project without adequately considering alternative early restoration projects. See id. ¶ ¶ 76-84. Plaintiff further alleges that Defendants violated OPA by failing to document how the Project will help make Alabama whole from the Spill, see id. ¶ ¶ 95-106, and violated NEPA by failing to justify the need for, or the benefits anticipated from, the Project, as well as insufficiently assessing its environmental impacts, see id. ¶ ¶ 85-94, 107-14.

B. The Decisions at Issue

The process that led to the selection and approval of the Project took place over a three-and-half-year period and involved multiple federal and state actors, as well as multiple public comment periods. The complex and diffuse nature of the decision-making process requires the court to go into some detail about how the Project came to be. The facts set forth below are derived from the parties' pleadings, representations made at the hearing on Defendants' motion to transfer, and post-hearing submissions ordered by the court.

1. The Spill and Early Restoration Efforts

On April 20, 2010, the Deepwater Horizon, an offshore drilling rig operated by British Petroleum (" BP" ), caught fire, exploded, and sank in the Gulf of Mexico. See Defs.' Mot. to Transfer Venue, ECF No. 7 [hereinafter Mot.], Ex. 1, Record of Decision for the Deepwater Horizon Oil Spill: Final Programmatic and Phase III Early Restoration Plan and Early Restoration Programmatic Environmental Impact Statement (Phase III ERP/PEIS), at 3 [hereinafter ROD]. Over the next 87 days, approximately five million barrels of oil and an undetermined amount of natural gas discharged into the Gulf of Mexico. Id. The Spill was " one of the largest . . . in U.S. history," id., and, according to Plaintiff, " caused environmental damage on a scale and of a complexity never before witnessed in the history of American oil production," Am. Compl. ¶ 1. It affected natural resources located throughout the Gulf of Mexico and in coastal areas of Florida, Louisiana, Mississippi, Texas, and most pertinent to this action, Alabama (collectively, the " Affected States" ). ROD at 3.

The Spill and its environmental impacts produced a sweeping response involving a multitude of federal- and state-level actors located in several states and the District of Columbia. The early restoration process was governed by OPA, which provides a mechanism for assigning liability for removal costs and damages caused by oil spills. 33 U.S.C. § 2702(a). Under OPA,

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President Obama designated the Defendant Agencies as " Federal trustees," and the Affected States' governors designated a total of 13 state agencies as " State trustees" (collectively, the Trustees" ).[1] ROD at 1-2. The Trustees were responsible for " assess[ing] natural resource damages" and " develop[ing], and implement[ing] a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent, of the natural resource" harmed by the Spill. 33 U.S.C. § 2706(c)(1). The State trustees included the Alabama Department of Conservation and Natural Resources and the Geological Survey of Alabama (collectively, the " Alabama Trustees" ).[2]

On April 19 and 20, 2011, representatives from DOI, NOAA, 12 State trustees, the United States Department of Justice (" DOJ" ), and BP executed a " Framework for Early Restoration Addressing Injuries Resulting from the Deepwater Horizon Oil Spill." See Mot., Ex. 2, ¶ 1 [hereinafter Framework Agreement]. The Framework Agreement stipulated that the Trustees and BP will " work together to complete identification" and " implementation of early restoration projects that will provide meaningful benefits to accelerate restoration in the Gulf as quickly as practicable, with the goal of beginning projects in 2011 and 2012." Id. ¶ 2. BP agreed to provide $1 billion to fund the early restoration projects. Id. ¶ 4.[3]

2. The Project's Selection

After the Framework Agreement's execution, the Alabama Trustees commenced an " initial screening process" in which they solicited input from the public and considered several hundred potential early restoration projects. See Mot., Ex. 3, Programmatic and Phase III Early Restoration Plan and Early Restoration Programmatic Environmental Impact Statement, at 1, 55 [hereinafter EIS]; see also Mot. Hr'g Tr. 8:22-9:4, Mar. 3, 2015. The " Alabama Trustees considered a range of project types to determine how best to proceed with Early Restoration projects aimed at restoring lost recreational use," including " land acquisition, smaller scale beach and boating access improvements, and development of nearshore artificial diving and fishing ...


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