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Center for Biological Diversity v. Zinke

United States District Court, District of Columbia

May 4, 2017

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff,
v.
RYAN ZINKE, in his official capacity as Secretary, U.S. Department of the Interior, et al., Defendants.

          MEMORANDUM OPINION

          KETANJI BROWN JACKSON United States District Judge

         On April 20, 2010, the Deepwater Horizon oil rig exploded in the Gulf of Mexico, killing eleven workers, contaminating roughly 1, 100 miles of shoreline, and causing significant losses to the environment and the economy throughout the region. (See Compl., ECF No. 1, ¶¶ 52-56.) See generally In re Deepwater Horizon, 753 F.3d 570 (5th Cir. 2014). President Obama immediately established an independent commission to analyze the disaster and to recommend changes to the federal government's regulatory regime for offshore drilling. (See Compl. ¶ 58.) In addition, the Council on Environmental Quality ("CEQ"), which is an entity within the Executive Office of the President, initiated a review of the procedures that the Department of the Interior uses for subjecting offshore oil and gas exploration and development projects to the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § § 4321-4370h. (See Compl. ¶ 59.) See also CEQ, Review of MMS NEPA Policies, Practices, and Procedures for OCS Oil and Gas Exploration and Development, 75 Fed. Reg. 29, 996 (May 28, 2010). Both the independent commission and the CEQ recommended major revisions to Interior's NEP A procedures, including changes to certain regulatory provisions that permit the agency to bypass the project-specific environmental review that is typically required for all major federal actions-provisions that are known as "categorical exclusions." (Compl. ¶¶ 68-69 (describing the independent commission's report), 65 (describing the CEQ's report); see also Letter from Abigail Ross Hopper, Dir., Bureau of Ocean Energy Mgmt. & Brian Salerno, Dir., Bureau of Safety & Envtl. Enf't, to Miyoko Sakashita, Oceans Dir., Ctr. for Biological Diversity (June 23, 2016) ("Denial of Pet. for Rulemaking"), Ex. 1 to Def.'s Mot. to Dismiss, ECF. No. 11-2, at 5 (quoting from the CEQ's report).)[1] Interior took these calls for reform under advisement, and initiated a review of its own NEP A procedures that commenced on October 8, 2010. See Dep't of the Interior, Notice of Intent to Conduct a Review of Categorical Exclusions for Outer Continental Shelf Decisions ("Notice of Intent"), 75 Fed. Reg. 62, 418, 62, 418 (Oct. 8, 2010).

         Interior's internal NEP A review is still ongoing to date-now more than six years later. (See Compl. ¶ 66.) Frustrated with the agency's failure to announce reforms and concerned about the alleged dire environmental consequences of Interior's existing NEP A procedures, Plaintiff Center for Biological Diversity ("CBD") filed this lawsuit seeking to compel Interior to complete its NEPA review and announce whether, in the agency's view, revisions to its NEPA policies are necessary. (See Id. ¶ 10.) CBD maintains that Interior's failure to finish its review and reveal the results constitutes "agency action . . . 'unreasonably delayed'" within the meaning of the scope-of-review provision of the Administrative Procedure Act ("AP A"), 5 U.S.C. §§ 701-706. (Compl. ¶ 77 (quoting 5 U.S.C. § 706(1)).) And to bolster the claim that Interior has a legal duty to take the actions CBD seeks to compel, CBD invokes a CEQ regulation that states: "Agencies shall continue to review their policies and procedures and in consultation with the [CEQ] to revise them as necessary to ensure full compliance with the purposes and provisions of [NEPA]." 40C.F.R. § 1507.3(a). (See Compl. ¶ 77.)

         Before this Court at present is Interior's ripe motion to dismiss CBD's complaint. (See Def.'s Mem. in Supp. of Mot. to Dismiss ("Mot."), ECF No. 11-1; see also PL's Resp.& Opp'n to Def.'s Mot. to Dismiss ("Opp'n"), ECF No. 13; Def.'s Reply Mem. in Supp. of Mot. to Dismiss ("Reply"), ECF No. 14.) On March 31, 2017, this Court issued an order that GRANTED Interior's motion to dismiss, and DISMISSED CBD's lawsuit. (See ECF No. 17.) This Memorandum Opinion explains the reasons for that order. In short, the Court has concluded that, although the text of 40 C.F.R. § 1507.3(a) plainly establishes that an agency has an ongoing obligation to review its own NEPA procedures and to make changes "as necessary, " that regulation does not mandate that an agency complete its ongoing review-i.e., make a final decision regarding whether or not revisions are warranted-much less demand that an agency publicly announce its decision to decline to revise its existing rules. What is more, it is clear to this Court that the agency-review obligation that section 1507.3(a) establishes does not qualify as the type of "discrete" agency action that a federal court can supervise consistent with the circumscribed judicial role that the APA contemplates. See Norton v. S. Utah Wilderness All. (SUWA), 542 U.S. 55, 62-64, 66- 67 (2004). Consequently, this Court agrees with Interior that CBD's complaint must be dismissed because it fails to state a claim upon which relief can be granted.

         I. BACKGROUND

         A. Environmental Review Of Major Fe deral Actions Under NEPA

         NEPA's core provision is the requirement that, whenever any federal agency proposes a "major Federal action[] significantly affecting the quality of the human environment, " the agency must prepare a comprehensive document that essentially details and evaluates "the environmental impact of the proposed action" and assesses other alternatives. 42 U.S.C. § 4332(2)(C). This provision-often called the "environmental impact statement" or "EIS" requirement-is "[a]t the heart of NEPA." Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004).

         To implement the EIS mandate, NEPA requires agencies to consult with the CEQ (a body that Congress created in the NEPA statute itself, see 42 U.S.C. § 4342) to identify procedures that ensure that environmental values are considered in agency decision making. Id. § 4332(2)(B). The CEQ has the "authority to issue regulations interpreting [NEVA], "Pub. Citizen, 541 U.S. at 757, and the CEQ's regulations apply to all federal agencies. 40C.F.R. § 1507.1.[2]

         Notably, the CEQ's regulations offer agencies the option of preparing a less-burdensome "environmental assessment" in lieu of an EIS under certain circumstances, See 40 C.F.R. § 1508.9; see also 42U.S.C. § 4332(2)(C); 40 C.F.R. § 1501.4(c), (e), and the regulations also provide agencies with a way to avoid undertaking any environmental analysis at all with respect to certain proposed actions under consideration. To bypass the environmental review entirely, an agency must identify "categorical exclusions" from the EIS requirement; these must be types of agency actions "which do not individually or cumulatively have a significant effect on the human environment." 40 C.F.R. § 1508.4 (describing categorical exclusions); see also Id. § 1507.3(b)(2)(h) (instructing each agency to identify categorical exclusions). For example, Interior has promulgated categorical exclusions for "[p]ersonnel actions and investigations and personnel services contracts[, ]" as well as for "[i]nternal organizational changes and facility and bureau reductions and closings." 43 C.F.R. § 46.210(a), (b). The CEQ's regulations make clear that if a proposed action falls within one of an agency's established categorical exclusions, "neither an environmental assessment nor an environmental impact statement is required[, ]" except in "extraordinary circumstances[.]" 40 C.F.R. § 1508.4.

         A CEQ regulation requires each agency to develop its own "implementing procedures" to "supplement" the CEQ's rules, id. § 1507.3(a), and also provides that each agency's procedures must identify categorical exclusions, see Id. § 1507.3(b)(2)(h). Interior's NEP A procedures are codified across both the Code of Federal Regulations and Interior's Department Manual, see 43 C.F.R. part 46; Dep't of the Interior, Dep't Manual, Part 516 (May 27, 2004); see also Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23, 28 (D.C. Cir. 2008), and both of these sources contain lists of agency actions that are categorically excluded from NEPA's EIS requirement. See43 C.F.R. § 46.210; Dep't Manual, Part 516, Ch. 15.4.[3] Significantly for present purposes, the same CEQ regulation states that an agency must "continue to review" its own policies and procedures, presumably including its designated categorical exclusions, and "revise them as necessary[.]" 40C.F.R. § 1507.3(a) ("Agencies shall continue to review their policies and procedures and in consultation with [CEQ] to revise them as necessary to ensure full compliance with the purposes and provisions of [NEPA].").

         B. Interior's NEPA Procedures For Offshore Drilling Projects

         Interior's Department Manual contains several categorical exclusions that specifically pertain to the authority that Interior has under the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. §§ 1331-1356b, "to grant and manage leases for recovery of oil, gas, and other minerals from submerged lands located on the Outer Continental Shelf." Mesa Operating Ltd. P'ship v. U.S. Dep't of Interior, 931 F.2d 318, 319 (5th Cir. 1991). OSCLA's mandate that Interior manage mineral leases in the Outer Continental Shelf encompasses four distinct stages of regulatory responsibility: "(1) formulation of a five year leasing plan by the Department of the Interior; (2) lease sales; (3) exploration by the lessees; [and] (4) development and production." Sec'y of the Interior v. California, 464 U.S. 312, 337(1984). "Each stage involves separate regulatory review[, ]" id., and it is well established that NEPA's requirements apply of their own force to each stage of the OCSLA regulatory process, Vill. of False Pass v. Clark, 733 F.2d 605, 609 (9th Cir. 1984); see, e.g., Oceana v. Bureau of Ocean Energy Mgmt., 37 F.Supp.3d 147, 154-74 (D.D.C. 2014) (evaluating whether OCSLA lease sales complied with NEPA).

         As relevant here, Interior has determined that, with certain exceptions, no EIS need be created before the agency undertakes two different types of OSCLA approvals: (1) "[a]pproval of an offshore lease or unit exploration, development/production plan ... in the central or western Gulf of Mexico[, ]" or (2) "[a]pproval of an Application for Permit to Drill ... an offshore oil and gas exploration or development well[.]" Dep't Manual, Part 516, Ch. 15.4(C)(10), (12). These categorical exclusions are of particular interest to CBD's staff and its members, several of whom live near and enjoy the Gulf of Mexico (see Compl. ¶¶ 15-16), because Interior invoked these categorical exclusions when it approved British Petroleum's "initial and revised exploration plan, as well as its permit to drill the Macondowell" in the Gulf of Mexico (id. ¶ 57), and as a result of several failures in the machinery attached to the Macondo well, it "blew out and caused the Deepwater Horizon oil rig to explode" (id. ¶ 52). See In re Deepwater Horizon, 753 F.3d at 571.

         C. Interior's Review Of Its NEPA Procedures After The Deepwater Horizon Oil Spill

         The Deepwater Horizon oil spill spurred a series of efforts to review and reform the federal government's regulatory regime for offshore drilling projects, as explained above. (See Compl. ¶¶ 58-59.) Both the CEQ and the commission that President Obama convened issued reports, and both reports recommended, in particular, that Interior revise its categorical exclusions related to offshore drilling. (Id. ¶¶ 65, 68-69.) Adding its voice to the chorus, Plaintiff CBD specifically petitioned Interior in June of 2010, requesting that the agency initiate a rulemaking for the purpose of eliminating the categorical exclusions that permit the agency to approve leases for outer continental shelf drilling without an environmental review. (Compl. ¶ 61; see also Denial of Pet. for Rulemaking at 2-3.)

         On October 8, 2010, Interior published a notice of its "intent to conduct a broad review of its categorical exclusions . . . for Outer Continental Shelf (OCS) decisions." Notice of Intent, 75 Fed. Reg. at 62, 418. The notice invited public comments and set a comment deadline one month later. Id. at 62, 419. More than six years later, Interior's review is still ongoing. (Compl. ¶ 66; Denial of Pet. for Rulemaking at 5.) Moreover, Interior has continued to approve permits in the Gulf of Mexico at every stage of the OCSLA review process-including drill permits-pursuant to its categorical exclusions from the EIS requirement. (Compl. ¶ 72.)

         D. Procedural History

         CBD filed this lawsuit on April 20, 2016, seeking to compel Interior to respond to CBD's petition for rulemaking and complete the agency's ongoing review of its categorical exclusions under NEPA. (See Compl.) CBD's two-count complaint charges Interior with unreasonably delaying its response to CBD's rulemaking petition in violation of the APA (see Id. ¶ 75), and with failing to complete a legally required review of its categorical exclusions, in violation of "the APA and/or NEPA" (id. ¶ 77 (citing 40 C.F.R. § 1507.3)). CBD's complaint seeks an order declaring that both failures constitute "agency action unlawfully withheld or unreasonably delayed" within the meaning of 5 U.S.C. § 706(1), and it asks this Court to compel Interior (1) to act on CBD's rulemaking petition within 30 days, (2) to complete the agency's review of its NEPA procedures within 90 days, and (3) to "issue the necessary revisions" of its NEPA procedures within 120 days. (Id., Prayer for Relief ¶¶ 1-4.)

         Interior has moved to dismiss the case. In its motion, Interior first notes that it denied CBD's petition for rulemaking shortly before its motion was filed (Mot. at 15-17 (citing Denial of Pet. for Rulemaking)), and as a result, Interior argues (and CBD concedes) that the complaint's first claim is moot (id. at 18-23).[4] Second, with respect to CBD's claim that Interior has unlawfully failed to complete its review of its NEPA procedures, Interior argues that CBD fails to state a claim for relief because CBD has not identified a mandatory duty to take discrete action so as to substantiate a claim for agency action "unreasonably delayed" under 5 U.S.C. § 706(1). (Mot. at 23-26 (invoking Federal Rule of Civil Procedure 12(b)(6)).) This Court held a hearing regarding Interior's motion on February 2, 2017, and it issued an Order dismissing CBD's action on March 31, 2017, which was based on the following analysis of the standards, claims, and issues in this case.

         II. LEGAL STANDARDS

         A. APA Claims Brought Under 5 U.S.C. § 706(1)

         In its "scope of review" provision, the APA authorizes courts to "compel agency action unlawfully withheld or unreasonably delayed[.]" 5 U.S.C. § 706(1). Unlike the provision that instructs courts to "set aside" unlawful agency action, id. § 706(2), the § 706(1) provision "provides relief for a failure to act[.]" SUWA, 542 U.S. at 62 (emphasis added). Notably, however, only certain types of agency failures can support a claim under § 706(1). It is well established that "a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take." Id. at 64 (emphasis in original). These two limitations play different roles: "The limitation to discrete agency action precludes . . . broad programmatic attack[s, ]" id. (emphasis added), while "[t]he limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law[, ]" id. at 65 (emphasis in original).

         The discreteness limitation precludes using "broad statutory mandates" to attack agency policy, the better to "avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve." Id. at 64, 66. A statutory provision "containing] only a general follow-the-law directive . . . flunks SUWA's discreteness test[, ]"for example, because it does not prescribe a specific action that a court can competently compel and supervise. El Paso Nat. Gas Co. v. United States,750 F.3d 863, 891 (D.C. Cir. 2014); see also Anglers Conservation Network v. Pritzker,809 F.3d 664, 670 (D.C. Cir. 2016) (explaining that"ยง 706(1) grants judicial review only if a federal ...


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