Petition for Writ of Certiorari — American Petroleum Institute, et al., Petitioners v. Environmental Defense Center, et al.
Supreme Court briefJan 25, 2023
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APPENDIX
TABLE OF CONTENTS
Appendix A:
Appendix B:
Appendix C:
Appendix D:
Appendix E:
Court of appeals opinion,
June 3, 2022 ..................................................... 1a
District court opinion,
July 14, 2017 .................................................. 68a
District court opinion,
November 9, 2018 ......................................... 92a
Court of appeals order,
September 26, 2022..................................... 158a
Statutory provisions involved ................... 168a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 19-55526
ENVIRONMENTAL DEFENSE CENTER, A CALIFORNIA
NON-PROFIT CORPORATION; SANTA BARBARA
CHANNELKEEPER, A CALIFORNIA NON-PROFIT
CORPORATION; PEOPLE OF THE STATE OF CALIFORNIA,
EX REL. ROB BONTA, ATTORNEY GENERAL; CALIFORNIA
COASTAL COMMISSION; CENTER FOR BIOLOGICAL
DIVERSITY; WISHTOYO FOUNDATION,
PLAINTIFFS-APPELLEES
v.
BUREAU OF OCEAN ENERGY MANAGEMENT,
DEFENDANT-APPELLEE
AMERICAN PETROLEUM INSTITUTE,
INTERVENOR-DEFENDANT-APPELLANT
AND
RICHARD YARDE, REGIONAL SUPERVISOR, OFFICE OF
ENVIRONMENT, BUREAU OF OCEAN ENERGY
MANAGEMENT; DAVID FISH, BUREAU OF SAFETY AND
ENVIRONMENTAL ENFORCEMENT; AMANDA LEFTON,
DIRECTOR, BUREAU OF OCEAN ENERGY MANAGEMENT;
KEVIN M. SLIGH, SR., DIRECTOR, BUREAU OF SAFETY
AND ENVIRONMENTAL ENFORCEMENT;
(1a)
2a
JOAN BARMINSKI, PACIFIC REGION DIRECTOR,
BUREAU OF OCEAN ENERGY MANAGEMENT;
MIKE MITCHELL, ACTING PACIFIC REGION DIRECTOR,
BUREAU OF SAFETY AND ENVIRONMENTAL
ENFORCEMENT; U.S. DEPARTMENT OF THE INTERIOR;
DEB HAALAND, SECRETARY OF THE INTERIOR,
DEFENDANTS
EXXON MOBIL CORPORATION; DCOR, LLC,
INTERVENOR-DEFENDANTS
No. 19-55707
ENVIRONMENTAL DEFENSE CENTER, A CALIFORNIA
NON-PROFIT CORPORATION; SANTA BARBARA
CHANNELKEEPER, A CALIFORNIA NON-PROFIT
CORPORATION; PEOPLE OF THE STATE OF CALIFORNIA,
EX REL. ROB BONTA, ATTORNEY GENERAL; CALIFORNIA
COASTAL COMMISSION; CENTER FOR BIOLOGICAL
DIVERSITY; WISHTOYO FOUNDATION,
PLAINTIFFS-APPELLEES
v.
BUREAU OF OCEAN ENERGY MANAGEMENT;
RICHARD YARDE, REGIONAL SUPERVISOR, OFFICE
OF ENVIRONMENT, BUREAU OF OCEAN ENERGY
MANAGEMENT; DAVID FISH, BUREAU OF SAFETY
AND ENVIRONMENTAL ENFORCEMENT;
AMANDA LEFTON, DIRECTOR, BUREAU OF OCEAN
ENERGY MANAGEMENT; KEVIN M. SLIGH, SR.,
DIRECTOR, BUREAU OF SAFETY AND ENVIRONMENTAL
ENFORCEMENT; BUREAU OF SAFETY
3a
AND ENVIRONMENTAL ENFORCEMENT;
JOAN BARMINSKI, PACIFIC REGION DIRECTOR,
BUREAU OF OCEAN ENERGY MANAGEMENT;
MIKE MITCHELL, ACTING PACIFIC REGION DIRECTOR,
BUREAU OF SAFETY AND ENVIRONMENTAL
ENFORCEMENT; U.S. DEPARTMENT OF THE INTERIOR;
DEB HAALAND, SECRETARY OF THE INTERIOR,
DEFENDANTS
AMERICAN PETROLEUM INSTITUTE; DCOR, LLC,
INTERVENOR-DEFENDANTS
AND
EXXON MOBIL CORPORATION,
INTERVENOR-DEFENDANT-APPELLANT
No. 19-55708
ENVIRONMENTAL DEFENSE CENTER, A CALIFORNIA
NON-PROFIT CORPORATION; SANTA BARBARA
CHANNELKEEPER, A CALIFORNIA NON-PROFIT
CORPORATION,
PLAINTIFFS-APPELLANTS
AND
PEOPLE OF THE STATE OF CALIFORNIA, EX REL. ROB
BONTA, ATTORNEY GENERAL; CALIFORNIA COASTAL
COMMISSION; CENTER FOR BIOLOGICAL DIVERSITY;
WISHTOYO FOUNDATION,
PLAINTIFFS
4a
v.
BUREAU OF OCEAN ENERGY MANAGEMENT;
RICHARD YARDE, REGIONAL SUPERVISOR, OFFICE
OF ENVIRONMENT, BUREAU OF OCEAN ENERGY
MANAGEMENT; DAVID FISH, BUREAU OF SAFETY
AND ENVIRONMENTAL ENFORCEMENT;
AMANDA LEFTON, DIRECTOR, BUREAU OF OCEAN
ENERGY MANAGEMENT; KEVIN M. SLIGH, SR.,
DIRECTOR, BUREAU OF SAFETY AND ENVIRONMENTAL
ENFORCEMENT; BUREAU OF SAFETY AND
ENVIRONMENTAL ENFORCEMENT; JOAN BARMINSKI,
PACIFIC REGION DIRECTOR, BUREAU OF OCEAN
ENERGY MANAGEMENT; MIKE MITCHELL,
ACTING PACIFIC REGION DIRECTOR, BUREAU OF SAFETY
AND ENVIRONMENTAL ENFORCEMENT;
U.S. DEPARTMENT OF THE INTERIOR;
DEB HAALAND, SECRETARY OF THE INTERIOR,
DEFENDANTS-APPELLEES
AMERICAN PETROLEUM INSTITUTE;
EXXON MOBIL CORPORATION; DCOR, LLC,
INTERVENOR-DEFENDANT-APPELLEES
No. 19-55718
ENVIRONMENTAL DEFENSE CENTER, A CALIFORNIA
NON-PROFIT CORPORATION; SANTA BARBARA
CHANNELKEEPER, A CALIFORNIA NON-PROFIT
CORPORATION; PEOPLE OF THE STATE OF CALIFORNIA,
EX REL. ROB BONTA, ATTORNEY GENERAL; CALIFORNIA
COASTAL COMMISSION; CENTER FOR BIOLOGICAL
5a
DIVERSITY; WISHTOYO FOUNDATION,
PLAINTIFFS-APPELLEES
v.
BUREAU OF OCEAN ENERGY MANAGEMENT;
RICHARD YARDE, REGIONAL SUPERVISOR,
OFFICE OF ENVIRONMENT, BUREAU OF OCEAN ENERGY
MANAGEMENT; DAVID FISH, BUREAU OF SAFETY
AND ENVIRONMENTAL ENFORCEMENT;
AMANDA LEFTON, DIRECTOR, BUREAU OF OCEAN
ENERGY MANAGEMENT; KEVIN M. SLIGH, SR.,
DIRECTOR, BUREAU OF SAFETY AND ENVIRONMENTAL
ENFORCEMENT; BUREAU OF SAFETY
AND ENVIRONMENTAL ENFORCEMENT;
JOAN BARMINSKI, PACIFIC REGION DIRECTOR,
BUREAU OF OCEAN ENERGY MANAGEMENT;
MIKE MITCHELL, ACTING PACIFIC REGION DIRECTOR,
BUREAU OF SAFETY AND ENVIRONMENTAL
ENFORCEMENT; U.S. DEPARTMENT OF THE INTERIOR;
DEB HAALAND, SECRETARY OF THE INTERIOR,
DEFENDANTS
AMERICAN PETROLEUM INSTITUTE;
EXXON MOBIL CORPORATION,
INTERVENOR-DEFENDANTS
AND
DCOR, LLC
INTERVENOR-DEFENDANTS-APPELLANT
6a
No. 19-55725
ENVIRONMENTAL DEFENSE CENTER, A CALIFORNIA
NON-PROFIT CORPORATION; SANTA BARBARA
CHANNELKEEPER, A CALIFORNIA NON-PROFIT
CORPORATION; PEOPLE OF THE STATE OF CALIFORNIA,
EX REL. ROB BONTA, ATTORNEY GENERAL; CALIFORNIA
COASTAL COMMISSION; CENTER FOR BIOLOGICAL
DIVERSITY; WISHTOYO FOUNDATION,
PLAINTIFFS-APPELLEES
v.
BUREAU OF OCEAN ENERGY MANAGEMENT;
RICHARD YARDE, REGIONAL SUPERVISOR, OFFICE
OF ENVIRONMENT, BUREAU OF OCEAN ENERGY
MANAGEMENT; DAVID FISH, BUREAU OF SAFETY
AND ENVIRONMENTAL ENFORCEMENT;
AMANDA LEFTON, DIRECTOR, BUREAU OF OCEAN
ENERGY MANAGEMENT; KEVIN M. SLIGH, SR.,
DIRECTOR, BUREAU OF SAFETY AND ENVIRONMENTAL
ENFORCEMENT; BUREAU OF SAFETY
AND ENVIRONMENTAL ENFORCEMENT;
JOAN BARMINSKI, PACIFIC REGION DIRECTOR, BUREAU
OF OCEAN ENERGY MANAGEMENT; MIKE MITCHELL,
ACTING PACIFIC REGION DIRECTOR, BUREAU OF SAFETY
AND ENVIRONMENTAL ENFORCEMENT;
U.S. DEPARTMENT OF THE INTERIOR;
DEB HAALAND, SECRETARY OF THE INTERIOR,
DEFENDANTS-APPELLANTS
AND
7a
AMERICAN PETROLEUM INSTITUTE;
EXXON MOBIL CORPORATION; DCOR, LLC
INTERVENOR-DEFENDANTS
No. 19-55727
PEOPLE OF THE STATE OF CALIFORNIA, EX REL. ROB
BONTA, ATTORNEY GENERAL; CALIFORNIA COASTAL
COMMISSION,
PLAINTIFFS-APPELLEES
v.
ENVIRONMENTAL DEFENSE CENTER, A CALIFORNIA
NON-PROFIT CORPORATION; SANTA BARBARA
CHANNELKEEPER, A CALIFORNIA NON-PROFIT
CORPORATION; CENTER FOR BIOLOGICAL DIVERSITY;
WISHTOYO FOUNDATION,
PLAINTIFFS
v.
BUREAU OF OCEAN ENERGY MANAGEMENT;
RICHARD YARDE, REGIONAL SUPERVISOR, OFFICE
OF ENVIRONMENT, BUREAU OF OCEAN ENERGY
MANAGEMENT; DAVID FISH, BUREAU OF SAFETY
AND ENVIRONMENTAL ENFORCEMENT;
AMANDA LEFTON, DIRECTOR, BUREAU OF OCEAN
ENERGY MANAGEMENT; KEVIN M. SLIGH, SR.,
DIRECTOR, BUREAU OF SAFETY AND ENVIRONMENTAL
ENFORCEMENT; BUREAU OF SAFETY
AND ENVIRONMENTAL ENFORCEMENT;
JOAN BARMINSKI, PACIFIC REGION DIRECTOR, BUREAU
8a
OF OCEAN ENERGY MANAGEMENT; MIKE MITCHELL,
ACTING PACIFIC REGION DIRECTOR, BUREAU OF SAFETY
AND ENVIRONMENTAL ENFORCEMENT;
U.S. DEPARTMENT OF THE INTERIOR;
DEB HAALAND, SECRETARY OF THE INTERIOR,
DEFENDANTS-APPELLEES
AMERICAN PETROLEUM INSTITUTE;
EXXON MOBIL CORPORATION; DCOR, LLC,
INTERVENOR-DEFENDANTS-APPELLEES
No. 19-55728
CENTER FOR BIOLOGICAL DIVERSITY;
WISHTOYO FOUNDATION,
PLAINTIFFS-APPELLEES
AND
ENVIRONMENTAL DEFENSE CENTER, A CALIFORNIA
NON-PROFIT CORPORATION; SANTA BARBARA
CHANNELKEEPER, A CALIFORNIA NON-PROFIT
CORPORATION; PEOPLE OF THE STATE OF CALIFORNIA,
EX REL. ROB BONTA, ATTORNEY GENERAL;
CALIFORNIA COASTAL COMMISSION,
PLAINTIFFS
v.
BUREAU OF OCEAN ENERGY MANAGEMENT;
RICHARD YARDE, REGIONAL SUPERVISOR, OFFICE
OF ENVIRONMENT, BUREAU OF OCEAN ENERGY
MANAGEMENT; DAVID FISH, BUREAU OF SAFETY
9a
AND ENVIRONMENTAL ENFORCEMENT;
AMANDA LEFTON, DIRECTOR, BUREAU OF OCEAN
ENERGY MANAGEMENT; KEVIN M. SLIGH, SR.,
DIRECTOR, BUREAU OF SAFETY AND ENVIRONMENTAL
ENFORCEMENT; BUREAU OF SAFETY
AND ENVIRONMENTAL ENFORCEMENT;
JOAN BARMINSKI, PACIFIC REGION DIRECTOR,
BUREAU OF OCEAN ENERGY MANAGEMENT;
MIKE MITCHELL, ACTING PACIFIC REGION DIRECTOR,
BUREAU OF SAFETY AND ENVIRONMENTAL
ENFORCEMENT; U.S. DEPARTMENT OF THE INTERIOR;
DEB HAALAND, SECRETARY OF THE INTERIOR,
DEFENDANTS-APPELLEES
AMERICAN PETROLEUM INSTITUTE;
EXXON MOBIL CORPORATION; DCOR, LLC,
INTERVENOR-DEFENDANTS-APPELLEES
Filed: June 3, 2022
Before: WALLACE, GOULD, and BEA, Circuit Judges.
OPINION
GOULD, Circuit Judge.
State boundaries extend three miles from their coastlines. Although the land and water beyond that is subject
to federal control, coastal states are entitled to participate
in the federal government’s decisions concerning this
area, known as the Outer Continental Shelf. This appeal
concerns the federal government’s authorization of unconventional oil drilling methods on offshore platforms in
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the Pacific Outer Continental Shelf. These unconventional
oil drilling methods are known within the oil and gas industry as “well stimulation treatments” and encompass,
among other techniques, what is known colloquially as
fracking.1 Well stimulation treatments prolong drilling
operations by enabling oil companies to extract oil otherwise unreachable using conventional drilling methods.
These stimulation treatments pose unknown risks, or so
Plaintiffs contend, because their environmental impacts
have not been fully studied.
Many of the questions that arise from this appeal are
a result of its unique procedural posture. For offshore oil
and development activities, agencies are supposed to conduct environmental review of proposed activities before
approving permits authorizing private companies to conduct such activities. But here, environmental groups
learned through Freedom of Information Act (“FOIA”)
requests that agencies within the U.S. Department of the
Interior had authorized permits for offshore well stimulation treatments without first conducting the normally-required environmental review. The federal agencies, the
Bureau of Ocean Energy Management (“BOEM”) and the
Bureau of Safety and Environmental Enforcement
(“BSEE”), agreed to conduct an environmental review
only after being sued by and reaching settlement agreements with the environmental groups involved in this litigation: the Environmental Defense Center (“EDC”), the
Santa Barbara Channelkeeper, the Center for Biological
Diversity (“CBD”), and the Wishtoyo Foundation. Pursu-
The district court and the parties use “WST” to refer to well stimulation treatments. We decline to use that abbreviation in this opinion
but do not alter quotes from the administrative record in which that
abbreviation is used.
1
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ant to the settlements, the agencies issued an Environmental Assessment (“EA”) evaluating the use of offshore
well simulation treatments and did not prepare a full Environmental Impact Statement (“EIS”). The agencies ultimately concluded that the use of these treatments would
not pose a significant environmental impact and issued a
Finding of No Significant Impact (“FONSI”).
The environmental groups considered the agencies’
environmental review to be inadequate and sued once
again. In this litigation, they assert claims under the National Environmental Policy Act (“NEPA”), 42 U.S.C.
§ 4321 et seq., and under the Endangered Species Act
(“ESA”), 16 U.S.C. § 1531 et seq., against BOEM, BSEE,
and the responsible federal agency officials. The State of
California and the California Coastal Commission (collectively, “California”) also sued, alleging that the agencies
violated NEPA and the Coastal Zone Management Act
(“CZMA”), 16 U.S.C. § 1451 et seq., by not reviewing the
use of well stimulation treatments for consistency with
California’s coastal management program. Exxon Mobil
Corporation (“Exxon”), the American Petroleum Institute (“API”), and DCOR, LLC (“DCOR”) intervened, and
the cases were consolidated. So, the litigants before us include environmental group Plaintiffs, state Plaintiffs, federal agency Defendants, and intervening petroleum industry Defendants.2
The district court granted summary judgment to Defendants on the NEPA claims, and to Plaintiffs on the
ESA and the CZMA claims. All parties timely appealed.
The panel thanks all parties and amici curiae for their extensive
legal briefing, which has assisted the Court.
2
12a
We have jurisdiction over this appeal under 28 U.S.C.
§ 1291, and we affirm in part and reverse in part. We address in turn the following issues: (1) whether the programmatic environmental review was final agency action
under the Administrative Procedure Act (“APA”);
(2) whether the claims are ripe for review now or when the
agencies approve specific permit applications; (3) whether
the agencies’ EA and FONSI violated NEPA; (4) whether
the agencies violated the ESA by not conducting required
consultation with other relevant federal agencies; and
(5) whether the agencies violated the CZMA by not conducting a consistency review with California’s costal program. These issues are addressed in Sections II through
V, infra.
The essential, and recurring, question raised by this
case is whether an agency’s conclusion in a programmatic
environmental review that a proposed action would not
have a significant environmental impact constitutes
agency authorization of that proposed action, even if the
agency will have to approve subsequent, individual permits before that action can occur. This question resurfaces throughout this opinion in different forms, as we
must decide whether the agencies’ programmatic environmental review constitutes “final agency action” under
the APA, “agency action” under the ESA, and “Federal
agency activity” under the CZMA. We answer the various
iterations of this question in the affirmative.
We first conclude that we have jurisdiction to review
the challenges to the agencies’ EA and FONSI and that
Plaintiffs’ claims are ripe for review now. After reviewing
the agencies’ EA and FONSI, we hold that the agencies
failed to take the hard look required by NEPA in issuing
their EA and that they should have prepared an EIS for
their proposed action. We reverse the district court’s
13a
grant of summary judgment to Defendants on the NEPA
claims, and we grant summary judgment to Plaintiffs on
these claims. We affirm the district court’s grant of summary judgment to Plaintiffs on the ESA and the CZMA
claims. And we hold that the district court did not abuse
its discretion in fashioning injunctive relief.
I. BACKGROUND
A. Factual Background
Federal law provides that state boundaries extend
three nautical miles from their coastlines. 43 U.S.C.
§ 1312. The submerged land and water beyond the state
boundary, known as the Outer Continental Shelf, id.
§§ 1331(a), 1332(1), is subject to federal control. This appeal centers on the use of well stimulation treatments in
the Pacific Outer Continental Shelf.
Offshore Drilling
Declaring that the oil and natural gas reserves beneath the Outer Continental Shelf are a “vital national resource,” Congress enacted the Outer Continental Shelf
Lands Act (“OCSLA”) to govern the development of offshore oil and gas resources in this region, while recognizing the crucial need to balance resource development with
the protection of the human, marine, and coastal environments. Id. § 1332(3). The OCSLA provides for the right of
coastal states to participate in decisions concerning the
Outer Continental Shelf “to the extent consistent with the
national interest.” Id. § 1332(4)(C).
Congress created four phases for offshore oil and gas
production. First, the Department of the Interior creates
a leasing program to meet national energy needs for a
five-year period. See id. § 1344. Second, the Department
of the Interior holds lease sales. See id. § 1337. Third, the
14a
winning bidders obtain leases and submit exploration
plans to the Department of the Interior, and these plans,
if approved, authorize exploratory drilling. See id. § 1340.
Fourth, if lessees discover commercially viable oil and gas
deposits through their exploratory drilling, they then file
development and production plans that would authorize
them to construct a platform, install equipment, lay pipeline, and conduct other development activities. See id.
§ 1351. Before commercial drilling, lessees must submit
an Application for Permit to Drill or an Application for
Permit to Modify. The Department of the Interior can
then approve the drilling operations, approve with modification, or deny the application. See generally 30 C.F.R.
§§ 250.410-465; id. § 550.281. Lessees are required to revise an approved development and production plan if they
make certain operational changes, like changing the type
or volume of production or increasing the amount of emissions or waste, or if they propose to conduct activities that
require approval of a license or permit that is not described in their approved plan. Id. § 550.283. Id. BOEM
and BSEE, two agencies within the Department of the Interior, manage the oil and gas activities described in
OSCLA.
There are 23 oil and gas platforms in the federal waters on the Pacific Outer Continental Shelf off the coast of
California. Oil companies installed these platforms between 1967 and 1989 and continue to rely on development
and production plans approved in that time period for
their drilling activities.
Well stimulation treatments
Well stimulation treatments include oil extraction
techniques that allow oil production to continue from wells
with declining reservoirs. These practices prolong drilling
operations, and expand total production, by enabling oil
15a
companies to extract oil otherwise unreachable using conventional drilling methods. The well stimulation treatments at issue in this case primarily consist of hydraulic
fracturing (commonly known as fracking), which involves
injecting a mixture of water, sand, and chemicals into a
well at an extremely high pressure to fracture the rock
formation.3
Well stimulation treatments pose a variety of risks.
Not all of the chemicals used in well stimulation treatments have been studied, but the known chemicals include
carcinogens, mutagens, toxins, and endocrine disruptors.
These chemicals can harm aquatic animals and other wildlife in the areas where well stimulation treatments are
used. Well stimulation treatments also emit pollutants, including carcinogens and endocrine disruptors, into the air.
And the high pressures used in these treatments can increase the risk of oil spills, especially because well stimulation treatments are often used on old wells. Enhanced
well life and increased production thus come with a potential environmental price.
B. Procedural History
This appeal stems from prior litigation between the
parties concerning the use of well stimulation treatments
off the coast of California. In 2012, Plaintiff EDC began to
suspect the use of well stimulation treatments on platforms in the Pacific Outer Continental Shelf. Through
FOIA requests, EDC discovered that the relevant federal
This case also involves the use of acid fracturing and matrix acidizing. Acid fracturing is similar to fracking but involves applying an acid
solution at a high pressure to etch channels into the rock. Matrix
acidizing involves injecting a mixture of acids to dissolve the rock, rather than fracture it. All three types of treatments make it easier for
oil and gas to pass through the subterranean rock for extraction.
3
16a
agencies had granted 51 permits authorizing oil companies to perform well stimulation treatments off the coast
of California without any environmental review whatsoever.
Prior litigation, settlement, and environmental review
After the federal agencies refused to conduct an environmental review of these treatments, EDC and CBD
brought separate lawsuits alleging that the agencies had
violated NEPA. The lawsuits culminated in similar settlement agreements, in which the agencies agreed to conduct a programmatic EA pursuant to NEPA to study the
environmental impacts of well stimulation treatments in
the Pacific Outer Continental Shelf. The agencies also
agreed to a temporary moratorium on permit approvals
authorizing well stimulation treatments until they completed the stated environmental review.
Pursuant to the settlement agreements, the agencies
issued a draft EA in February 2016 that examined the
programmatic effects of allowing well stimulation treatments in the Pacific Outer Continental Shelf. There was a
thirty-day public comment period, during which the agencies received thousands of comments from individuals, scientists, federal and state agencies, and elected officials.
The agencies published a final programmatic EA and
FONSI in May 2016.
The “Proposed Action” that the programmatic EA examined was “allow[ing] the use of selected well stimulation treatments on the 43 current active leases and 23 operating platforms” in the Pacific Outer Continental Shelf
without restrictions. Under NEPA, agencies must evaluate the environmental impacts of alternatives to the proposed action, and it specifically mandates consideration of
17a
a “no action” alternative. 42 U.S.C. § 4332; 40 C.F.R.
§ 1502.14. In the EA, the agencies considered four courses
of action as options: (1) the proposed action of allowing the
use of well stimulation treatments without restriction;
(2) allowing well stimulation treatments with a minimum
depth restriction; (3) allowing well stimulation treatments
with a prohibition on the open water discharge of fluids;
and (4) the required “no action” alternative of prohibiting
well stimulation treatments. The environmental impacts
of the first three alternatives were all based on a forecast
of authorizing up to five well stimulation treatments per
year.
Based on the analysis in the programmatic EA, the
agencies determined that the proposed action of allowing
well stimulation treatments without restriction “would
not cause any significant impacts” and accordingly, the
federal agencies issued a FONSI, which concluded the
NEPA environmental review process. In doing so, the
agencies did not consult with the U.S. Fish and Wildlife
Service or the National Marine Fisheries Service pursuant to the ESA before issuing their final EA and FONSI,
nor did they review the proposed action in the EA for consistency with California’s coastal management program
pursuant to the CZMA.
Consolidated lawsuits and district court orders
The two groups of Plaintiffs (the environmental organizations and California) filed separate suits in 2016 challenging the agencies’ programmatic EA and FONSI. All
Plaintiffs alleged that the agencies violated NEPA,
among other reasons, by failing to take a “hard look,”
Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1066
(9th Cir. 2002), at the environmental impacts of allowing
well stimulation treatments in the Pacific Outer Continental Shelf. The environmental groups also alleged that the
18a
agencies violated NEPA by not preparing an EIS. California additionally alleged that the agencies violated the
CZMA by failing to conduct a consistency review to determine if allowing well stimulation treatments in federal waters offshore California is consistent with California’s
coastal zone management program. The environmental
groups also alleged that the agencies violated the ESA by
failing to consult with the U.S. Fish and Wildlife Service
and the National Marine Fisheries Service to ensure the
proposed action in the EA would not jeopardize endangered species or their habitats. The district court consolidated the lawsuits, and allowed Exxon, API, and DCOR
to intervene as Defendants.
The agencies and API filed motions to dismiss, arguing that the district court lacked jurisdiction to hear the
NEPA and CZMA claims because the EA and FONSI did
not constitute reviewable “final agency action” under the
APA, 5 U.S.C. § 551 et seq., and arguing that the ESA
claims were not ripe and were moot. The district court denied the motions, holding that the EA and FONSI were
final agency action because they concluded the agencies’
programmatic environmental review and lifted the moratorium on well stimulation treatments in the Pacific Outer
Continental Shelf. As for the ESA claims, the district
court held that they were ripe because the agencies made
an affirmative and discretionary decision in the EA and
FONSI about whether, and under what conditions, to allow well stimulation treatments in the region. The district
court also held that the ESA claims were not moot because the consultation process under the ESA was not yet
complete.
The parties made cross-motions for summary judgment, which the district court granted in part and denied
in part. It granted summary judgment to Defendants on
19a
the NEPA claims, concluding that the agencies reasonably decided to conduct an EA rather than an EIS and took
a sufficiently hard look at the environmental impacts of
allowing well stimulation treatments. The district court
granted summary judgment to the environmental groups
on the ESA consultation claim, holding that the agencies
violated the ESA by not consulting with the expert wildlife agencies. But the district court also held that the ESA
claim based upon the National Marine Fisheries Service
consultation was moot because that consultation was complete. As to California’s CZMA claim, the district court
granted summary judgment to California because the
agencies did not complete the requisite consistency review under § 1456(c)(1) of the CZMA. The court granted
injunctive relief on the ESA and CZMA claims, enjoining
the agencies from approving any permits for well stimulation treatments until they completed ESA consultation
and CZMA consistency review. Subsequently, intervenor
DCOR filed a motion for reconsideration, arguing that the
court erred in issuing injunctive relief and requesting it to
modify the judgment to allow the agencies to approve
DCOR’s two pending permit applications for well stimulation treatments in the Pacific Outer Continental Shelf.
The district court denied the motion, holding that the injunction it issued was the appropriate remedy for the
ESA and CZMA violations. This appeal followed.
II. JURISDICTION
A. Final Agency Action
As a preliminary matter, we must determine whether
we have subject matter jurisdiction to hear Plaintiffs’
NEPA and CZMA claims. Because neither NEPA nor the
CZMA expressly provide for judicial review, judicial review of these claims is governed by the APA, which limits
review to “final agency action.” 5 U.S.C. § 704. We do not
20a
defer to the agencies’ interpretation of whether their actions constitute “final agency action” because Congress
did not charge BOEM and BSEE with implementing the
APA. See Karuk Tribe of Cal. v. U.S. Forest Serv., 681
F.3d 1006, 1017 (9th Cir. 2012).
Agency action is final and reviewable under the APA
when two conditions are met. The action must “mark the
consummation of the agency’s decision-making process,”
and it must also determine “rights or obligations” or be
one “from which legal consequences will flow.” Bennett v.
Spear, 520 U.S. 154, 177-78 (1997) (internal quotation
marks and citations omitted). The agencies contend that
the programmatic EA and FONSI are not “final agency
actions” because they will still have to approve permits
from private entities wishing to use well stimulation treatments before the treatments will actually be used in the
region. The agencies would have us wait until the agencies
approve site-specific permits before Plaintiffs could challenge the agencies’ actions under the APA. We disagree
and hold that the programmatic EA and FONSI meet
both prongs of Bennett’s test for final agency action.
The EA and FONSI mark the consummation of the
agency’s decision-making process
The EA and FONSI conclude the agencies’ programmatic review under NEPA of allowing well stimulation
treatments in the Pacific Outer Continental Shelf and reflect the agencies’ understanding that CZMA review is
not required for this action. In the programmatic EA, the
agencies considered four alternatives ranging from not
authorizing well stimulation treatments to authorizing
well stimulation treatments without restriction, and, in
the FONSI, the agencies found that “the Proposed Action”—authorizing well stimulation treatments without
restriction—“would not cause any significant impacts.”
21a
There is nothing preliminary or tentative about these documents, even if the agencies included a disclaimer in the
EA that it is “not itself a decision document.”
To be sure, the use of well stimulation treatments will
not occur in practice until an individual permit application
has been approved. But as the district court explained, the
agencies concede that no further programmatic environmental review of these treatments will be conducted. And
it is “the effect of the action and not its label that must be
considered.” Or. Nat. Desert Ass’n v. U.S. Forest Serv.,
465 F.3d 977, 985 (9th Cir. 2006) (citations omitted). Here,
the effect of the FONSI is that it provides the agencies’
final word on the environmental impacts of the proposed
action and concludes that the authorization of well stimulation treatments will not have a significant impact. This
programmatic conclusion will not be revisited, so Plaintiffs here “are able to show . . . a completeness of action by
the agency.” Kern, 284 F.3d at 1070. Absent the proposed
action approved in the EA, no permits could be sought.
We have repeatedly held that final NEPA documents
are final agency actions. Friedman Bros. Inv. Co. v.
Lewis, 676 F.2d 1317, 1318 (9th Cir. 1982); Te-Moak Tribe
of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d
592, 598 (9th Cir. 2010); Rattlesnake Coal. v. EPA, 509
F.3d 1095, 1104 (9th Cir. 2007); Hall v. Norton, 266 F.3d
969, 975, n.5 (9th Cir. 2001). We are bound by these decisions and see no reason to depart from that principle here.
The NEPA review process concludes in one of two ways:
(1) the agency determines through an EA that a proposed
action will not have a significant impact on the environment and issues a FONSI, or (2) the agency determines
that the action will have a significant impact and issues an
EIS and record of decision. See 40 C.F.R. §§ 1505.2 (rec-
22a
ord of decision), 1508.13 (FONSI). Final NEPA documents constitute “final agency action” under the APA,
whether they take the form of an EIS and Record of Decision or an EA and FONSI, because they culminate the
agencies’ environmental review process.
We reject the agencies’ claim that the EA and FONSI
are merely their “first, preliminary steps toward making
a decision about the use of well stimulation treatments in
the federal waters off the California coast,” particularly in
the context of this litigation, where 51 permits authorizing
well stimulation treatments were approved without environmental review. There is no argument or evidence that
these 51 already-approved permits will be revisited, especially after the agencies approved unrestricted use of well
stimulated treatments in the EA and FONSI. It would
make no sense to have a full environmental impact evaluation on one permit or multiple individual permits without
considering the total environmental impact of the full picture. Environmental law does not require a court to miss
the forest for the trees. The agencies’ programmatic approval is not insulated from judicial review.
The FONSI and programmatic EA satisfy the first
prong of the Bennett test because they are the final step
in the agencies’ programmatic review under NEPA and
reflect the agencies’ determination that review under the
CZMA is not warranted.
The EA and FONSI determine rights and obligations and are actions from which legal consequences will flow
The programmatic EA and ensuing FONSI also satisfy the second prong of the Bennett test for final agency
actions. By finding that well stimulation treatments have
23a
no significant environmental impact, the agencies have allowed the permitting process for these treatments to proceed. This return to the pre-settlement status quo and lifting of the moratorium on well stimulation treatments in
the Pacific Outer Continental Shelf strongly affects the legal rights of oil companies, as demonstrated by Intervenors’ involvement in this suit and DCOR’s request for reconsideration of the judgment to allow the agencies to act
on its pending applications. Also, the rights of Plaintiffs to
further environmental review, and the obligation of the
agencies to prepare a full EIS, are fully and finally determined by the FONSI and are not subject to any further
administrative procedure. Legal consequences flow from
the FONSI insofar as oil companies do not need to abide
by any depth, discharge, or frequency limitations in their
permit applications because the agencies have not imposed any such limitations on permit applications. In fact,
the FONSI green lights the unrestricted use of well stimulation treatments, with no cautionary limitations.
The agencies urge us to look for a decision document
outlining a binding plan that is separate from final NEPA
documents for agency action to be “final,” but they concede that their programmatic review of well stimulation
treatments offshore California is complete. In fact, the
agencies describe their “work left to do” as only reviewing
and approving individual, site-specific permits. The conclusion of the programmatic environmental review of offshore well stimulation treatments determines rights, obligations, and legal consequences. The EA and FONSI
meet the Bennett test for “final agency action,” and we
have subject matter jurisdiction over Plaintiffs’ claims.
24a
B. Ripeness
The agencies also contest the ripeness of the NEPA
and CZMA claims.4 Their ripeness arguments echo their
arguments contesting final agency action under the APA.
Although they issued final NEPA documents, the agencies contend that Plaintiffs’ claims are not ripe because
the agencies have not yet issued a formal plan for well
stimulation treatments or acted on site-specific permits.
We review de novo questions of ripeness. Laub v. U.S.
Dept. of Interior, 342 F.3d 1080, 1084 (9th Cir. 2003). We
note at the outset that the agencies raise concerns of prudential ripeness, which are discretionary. Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1140 (9th
Cir. 2000). In any event, we conclude that the agencies’
action satisfies the test for prudential ripeness as established in Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S.
726, 733 (1998).
Evaluating ripeness in the agency context requires
considering “(1) whether delayed review would cause
hardship to the plaintiffs; (2) whether judicial intervention
would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from
further factual development of the issues presented.” Id.
All three considerations support the conclusion that these
claims are ripe for review.
First, delayed review would cause hardship to Plaintiffs because they are alleging only procedural violations
in this case. Under NEPA, Plaintiffs challenge the agencies’ decision not to issue an EIS; under the ESA, the
Defendants challenge the ripeness of the ESA claim as well. Because NEPA and ESA have different language pertinent to ripeness,
we address Defendants’ challenge to ripeness on the ESA claim in our
discussion of the ESA appeal infra Part IV.
4
25a
agencies’ failure to consult with wildlife experts; and under the CZMA, the agencies’ failure to conduct a consistency review. Delaying review of these procedural injuries would cause hardship to Plaintiffs by denying them
the fundamental safeguards provided by the three environmental statutes. The “asserted injury is that environmental consequences might be overlooked.” Salmon
River Concerned Citizens v. Robertson, 32 F.3d 1346,
1355 (9th Cir. 1994). Delaying review would extend and
compound the harms Plaintiffs allege. Programmatic environmental review “generally obviates the need” for subsequent review at the application level “unless new and
significant environmental impacts arise.” Id. at 1356. And
any additional protective measures Plaintiffs could obtain
by challenging the agency’s conclusions later, at the time
the agencies review specific applications, would only apply
at the site-specific, not the programmatic, level. If the programmatic procedures offend the law, they should be reviewed now.
Second, reviewing Plaintiffs’ claims at this point would
not “inappropriately interfere with further administrative
action.” Ohio Forestry, 523 U.S. at 733. We have established that judicial review does not interfere with further
administrative action when the agency’s decision is at “an
administrative resting place.” Citizens for Better Forestry
v. U.S. Dep’t of Agric., 341 F.3d 961, 977 (9th Cir. 2003).
Here, the agencies’ NEPA documents, and the decisions
contained therein—not to issue an EIS, not to conduct a
consistency review, and not to consult with the wildlife
services—demonstrate that the agencies’ decision making
is at an administrative resting place. The agencies have
concluded their programmatic review of well stimulation
treatments offshore California and maintain that they
have met their procedural obligations under the relevant
environmental statutes. No further administrative action
26a
will be required until oil companies submit permits for
site-specific review. We hold that the final NEPA documents in this case constitute an administrative resting
place for purposes of procedural injuries. See Kern, 284
F.3d at 1071.
Third, there is no need for “further factual development.” Ohio Forestry, 523 U.S. at 733. For claims of procedural injury, we have held that the need for factual development ceases when the alleged procedural violation is
complete. Cottonwood Env’t Law Ctr. v. U.S. Forest Serv.,
789 F.3d 1075, 1084 (9th Cir. 2015).
Our ripeness analysis for claims brought pursuant to
environmental statutes is affected by whether plaintiffs
allege a procedural or substantive violation. This stems
from Ohio Forestry, in which the Supreme Court distinguished between the ripeness of substantive and procedural claims brought under environmental statutes. 523
U.S. at 737. There, the plaintiff’s substantive challenge
under the National Forest Management Act to the
agency’s forest plans was unripe because the plans had
not yet been implemented at the site-specific level. Id. at
739. Yet the Court specifically distinguished its holding
from cases where procedural injuries are alleged, explaining that, by comparison, a person injured by “a failure to
comply with the NEPA procedure may complain of that
failure at the time the failure takes place, for the claim can
never get riper.” Id. at 737.
We have endorsed this distinction. Cottonwood, 789
F.3d at 1084; Kern, 284 F.3d at 1071; Citizens for Better
Forestry, 341 F.3d at 977. In Kern, plaintiffs challenged
an EA and an EIS for two proposed actions in an area
along the Oregon coast. 284 F.3d at 1066. We concluded
that both challenges were ripe and justiciable, differenti-
27a
ating between the substantive claim at issue in Ohio Forestry and the procedural rights conferred by NEPA. Id.
at 1071. Similarly, in Citizens for Better Forestry, we concluded that procedural claims challenging an agency’s
EA, FONSI, and failure to consult under the ESA were
ripe, even though site-specific proposals had not been issued. 341 F.3d at 970-71. Site-specific action, we held, is
“simply a factual coincidence, rather than a basis for legal
distinction.” Id. at 977. This is because the imminence or
occurrence of site-specific action is irrelevant to the ripeness of procedural injuries, which are ripe and ready for
review the moment they happen. Plaintiffs need not wait
for the agencies to act on site-specific permits authorizing
well stimulation treatments. Plaintiffs’ procedural challenges under NEPA and the CZMA to the agencies’ proposed action allowing the use of well stimulation treatments off the coast of California, as adopted in the final
EA and FONSI, are immediately ripe for review.
III.
NEPA
After determining that we have subject matter jurisdiction over Plaintiffs’ claims and that they are ripe for
review, we assess first the merits of Plaintiffs’ NEPA
claims. The district court granted summary judgment to
Defendants on these claims, which we review de novo,
“applying the same standards that applied in the district
court.” Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768,
778 (9th Cir. 2006) (citation omitted). Because judicial review of agency decisions under NEPA is governed by the
APA, we must consider whether the agencies complied
with NEPA’s requirements under the APA’s deferential
arbitrary and capricious standard. Id. An agency’s action
is arbitrary and capricious “only if the agency relied on
factors Congress did not intend it to consider, entirely
failed to consider an important aspect of the problem, or
28a
offered an explanation 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.” Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1257
(9th Cir. 2017) (quoting Conservation Cong. v. U.S. Forest
Serv., 720 F.3d 1048, 1054 (9th Cir. 2013)); see also Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 46-48, 55-57 (1983) (holding that
agency action was arbitrary and capricious where the
agency “did not even consider” a reasonable alternative
that was made known to it and also “failed to articulate a
basis” for its action).
NEPA is the statute that launched the environmental
movement in the 1970s. Richard J. Lazarus, The Making
of Environmental Law, 64-67 (2004). It is the “basic national charter for protection of the environment” and, coincidentally, was borne out of a catastrophic oil spill from
drilling offshore California. 40 C.F.R. § 1500.1(a); NEPA
is at its heart a procedural statute and requires federal
agencies to take a “hard look” at the environmental consequences of their actions. Kern, 284 F.3d at 1066 (quotation omitted). NEPA requires agencies to prepare an EIS
for all “major Federal actions significantly affecting the
quality of the human environment.” 42 U.S.C. § 4332(C).
In this review, the agency must evaluate the environmental impact of its proposed action as well as “alternatives to
the proposed action.” Id. If an agency is unsure whether
its proposed action will have significant environmental impacts, it may first prepare an EA. An EA is a “concise,
public document” providing “sufficient evidence and analysis” for the agency to determine “whether to prepare an
environmental impact statement.” 40 C.F.R § 1508.9
(a)(1). Thus, an EA is intended to help an agency decide if
an EIS is warranted; an EA is not meant to replace or
29a
substitute for an EIS. Anderson v. Evans, 314 F.3d 1006,
1023 (9th Cir. 2002).
When reviewing an EA, we examine it “with two purposes in mind: to determine whether it has adequately
considered and elaborated the possible consequences of
the proposed agency action when concluding that it will
have no significant impact on the environment, and
whether its determination that no EIS is required is a reasonable conclusion.” Ctr. for Biological Diversity v. Nat’l
Highway Traffic Safety Admin., 538 F.3d 1172, 1215 (9th
Cir. 2008).
Plaintiffs allege that the agencies violated NEPA in
two ways. First, Plaintiffs allege that the agencies violated NEPA because the agencies’ EA is inadequate and
does not constitute a “hard look” of the environmental impacts of allowing well stimulation treatments offshore
California. Specifically, Plaintiffs contend that in issuing
the EA, the agencies relied on erroneous assumptions,
used too narrow of a statement of need and purpose, and
did not consider a reasonable range of alternatives. Second, the environmental groups additionally contend that
the agencies violated NEPA by failing to prepare an EIS.
The type of NEPA violation impacts the relief that should
be granted, i.e., whether to vacate the existing EA for
preparation of a new one or whether to remand with orders to prepare a full EIS. We consider each alleged
NEPA violation in turn.
A.
Plaintiffs first allege that the agencies’ EA is inadequate and violates NEPA because the agencies relied
upon erroneous assumptions instead of taking the requisite “hard look” at the potential environmental effects of
30a
authorizing well stimulation treatments offshore California. NEPA requires agencies to take a “hard look” at the
environmental effects of a proposed action before implementing it. To take the requisite hard look, an agency
“may not rely on incorrect assumptions or data” in arriving at its conclusion of no significant impacts. Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 964
(9th Cir. 2005). But Plaintiffs contend that the agencies
reached their conclusion of no significant impacts by relying on incorrect assumptions. We agree.
The faulty assumption that well stimulation treatments would not occur frequently in this region
The central assumption underlying the agencies’ entire EA, and driving their conclusion of no significant impact, is that the use of well stimulation treatments in the
Pacific Outer Continental Shelf would happen so infrequently that any adverse environmental effects would be
insignificant. Based on the available data for past well
stimulation treatment usage and the expected future industry needs, the agencies used what they considered to
be a “reasonable forecast of up to five WSTs per year” for
all three “action alternatives” evaluated in the EA. Plaintiffs challenge this assumption, and for good reason.
Plaintiffs point to record evidence attacking the historical data used by the agencies. The district court
acknowledged the historical data relied upon by the
agency “may not have been perfect” but found that it was
not “so unreliable” as to be arbitrary and capricious for
the agencies to have based their entire projections on it.
We disagree. Plaintiffs raise legitimate doubts about the
agencies’ recordkeeping of well stimulation treatments
and the reasonableness of relying on flawed recordkeeping to formulate an estimate for evaluating environmental
impacts under NEPA.
31a
The agencies do not know the actual number of well
stimulation treatments that have occurred on the Pacific
Outer Continental Shelf because data collection has been
incomplete. At the time the EA and FONSI were published, no “formal data collection system [had] been set
up” to track the use of offshore well stimulation treatments in federal waters. Critically, the agencies’ contention in the EA that only six well stimulation treatments
have been approved on the Pacific Outer Continental
Shelf since 2000 is at odds with the numbers that are
known. The impetus to this litigation was that the agencies had approved 51 permits without conducting environmental review. A 2016 email among BSEE officials regarding what numbers to use in the EA confirms this. In
the email, one official admitted that the agency was “sued
on 13” acidizing jobs but “a lot more routine acid jobs have
taken place” and they “do not have [a] number between
1984-2011.” This email also reveals that the agency had
found more instances of fracking “that were not in the
lawsuit.” In another email, BSEE officials decided to
“leave EA Table 4-1 as is in the absence of definitive information on additional WSTs” because “it appears that
there is not enough information . . . to identify WSTs.” A
BSEE spokesperson acknowledged that the agency “cannot be sure just how often fracking has been allowed.”
EDC’s analysis of information gathered from the FOIA
requests determined that at least 15 instances of fracking
alone occurred offshore California in federal waters.
Aside from questionable and inconclusive historical
records, Plaintiffs also raise legitimate questions about
the soundness of the agencies’ estimates of future usage
of well stimulation treatments in the Pacific Outer Continental Shelf given the age of the reservoirs in this region
and their declining production, as noted by the EA. The
agencies’ response in the EA that the reservoirs offshore
32a
California “are already highly fractured,” which decreases the need for well stimulation treatments, conflicts
with statements made by Intervenors that the wells in
this region “lack any value or utility” without the approval
of well stimulation treatments. It is also at odds with the
agencies’ analysis of the no action alternative in the EA,
in which the agencies warn that wells in the Pacific Outer
Continental Shelf may have to close if well stimulation
treatments are not authorized.
The gaps and errors underlying the agencies’ assumption about well stimulation treatment use would not be as
critical if this assumption was not central to the agencies’
finding of no significant impact. But the agencies repeatedly relied upon the purported infrequent use of these
treatments as a basis for concluding no significant impacts
would occur from offshore treatments with respect to accidents, induced seismicity, air quality, water quality, ecological resources, and fisheries. In response to the repeated reliance on low estimates of well stimulation treatments in the draft EA, the California Coastal Commission
commented that the agencies should “examine several
scenarios of future WST activity” in the final EA and
“identify thresholds at which environmental effects become significant” to place the impacts (or lack thereof) in
context and provide a guide for when additional analysis
would be needed if the agencies’ estimates prove to be inaccurate. Nevertheless, the agencies continued to rely on
the infrequent use of well stimulation treatments as the
driving force behind their finding of no significant impact
in the final EA and FONSI. We agree with Plaintiffs that
the agencies’ excessive reliance on the asserted low usage
of well stimulation treatments distorted the agencies’ consideration of the significance and severity of potential impacts.
33a
Because the EA’s finding relied on the incorrect assumption that well stimulation treatments would be infrequent, we conclude that the agencies acted arbitrarily and
capriciously by offering an analysis that ran “counter to
the evidence before the agency,” Zinke, 856 F.3d at 1257,
and that they failed to take the requisite hard look by
“rely[ing] on incorrect assumptions or data” in arriving at
their conclusion. Native Ecosystems Council, 418 F.3d at
964.
The assumption that an EPA permit would render
impacts insignificant
The agencies also acted arbitrarily and capriciously by
assuming in the EA that compliance with a permit issued
by the EPA under the Clean Water Act, the National Pollution Discharge Elimination System General Permit
(“NPDES permit”), would render the impacts of well
stimulation treatments insignificant.
We have previously held that agencies cannot “tier”
their environmental review under NEPA to assessments
of similar projects that do not “actually discuss the impacts of the project at issue.” South Fork Band Council
of Western Shoshone v. U.S. Dep’t of Interior, 588 F.3d
718, 726 (9th Cir. 2009). Nor have we allowed federal agencies to rely on state permits to satisfy review under
NEPA. Id.; see also Klamath-Siskiyou Wildlands Ctr. v.
Bureau of Land Mgmt., 387 F.3d 989, 998 (9th Cir. 2004).
The same concerns apply here, and we see several issues
with the agencies relying on the NPDES permit to conclude that any impacts from offshore well stimulation
treatments to the marine environment would be insignificant. The NPDES permit is issued by a different federal
agency, and it does not specifically address “the impacts
of the project at issue.” South Fork Band Council, 588
F.3d at 726.
34a
First, the NPDES permit was not created or intended
to be used for the offshore well stimulation treatments at
issue in this appeal. The EPA developed the NPDES permit in 2014 to broadly regulate discharges from a range of
offshore oil and gas activities. However, the NPDES permit does not require monitoring for the most common well
stimulation treatment fluids. In their comments on the
draft EA, Plaintiffs highlighted the risks of relying upon
the NPDES permit, explaining that the “NPDES General
Permit contains no limitations on the discharge of specific
WST chemicals.”
Second, the imperfect fit of what the NPDES permit
requires operators to monitor is compounded by an imperfect fit on when the NPDES permit requires monitoring. The whole effluent toxicity (“WET”) testing required
by the permit is inadequate to measure the impacts of well
stimulation treatments because WET testing is not conducted in conjunction with the use of well stimulation permit broadly encompassing discharges from all offshore oil
and gas activities, WET testing is required only on a quarterly basis, which diminishes to annual testing after four
consecutive “passing” tests. The agencies acknowledged
in the EA that fluids from well stimulation treatments
may not actually be present in samples from WET testing
because of this timing problem. Internal emails among
Department of Interior officials reveal that the monitoring reports associated with the NPDES permit do not
contain enough information to identify well stimulation
treatments. In the final EA, the agencies minimize the
concern over the inadequacy of testing under the NPDES
permit by stating that the permit also requires visual
monitoring and oil and grease sampling in addition to
WET testing. But the agencies do not explain how visual
monitoring or oil and grease sampling would account for
the permit’s lack of toxicity testing for the constituents
35a
specifically discharged from well stimulation treatments.
The missing data and unknown impacts that Plaintiffs
raise concern the toxicity of the chemicals, not the potential for oil spills, and toxicity cannot be accessed visually.
Annual testing that is not conducted in conjunction with
the occurrence of well stimulation treatments, and does
not test the specific constituents used in the well stimulation treatments, is inadequate to assess the impacts of
those treatments.
Third, the EPA—not BOEM or BSEE—oversees the
NPDES permit. The district court dismissed Plaintiffs’
concerns about the adequacy of testing under the NPDES
permit as a mere “wish that EPA would test more frequently.” This reasoning only highlights the problem of
BOEM and BSEE relying on a general permit issued by
the EPA to evaluate the impacts from specific well stimulation treatments. Though the NPDES permit, in theory,
could be modified to test the most common fluids used in
offshore well stimulation treatments, or be modified to require testing in conjunction with the use of these treatments, the agencies responsible for conducting the NEPA
review do not control the permit upon which they rely.
Like the assumption concerning the infrequent use of
well stimulation treatments, the agencies repeatedly relied on the NPDES permit to conclude that the proposed
action would not significantly affect the environment. The
agencies relied on the NPDES permit and its testing to
find that impacts of the proposed action would be minimal
on marine and coastal fish, marine birds, sea turtles, and
fisheries. The agencies acted arbitrarily and capriciously
by relying, in significant part, on these two flawed assumptions throughout the EA, see Native Ecosystems
Council, 418 F.3d at 964. As a result, the EA is inade-
36a
quate, and the agencies violated NEPA by failing to take
the requisite hard look.
B.
Plaintiffs also contend that the EA violates NEPA because the agencies failed to consider a reasonable range
of alternatives and relied upon too narrow a statement of
“purpose and need” in the EA. NEPA requires agencies
to consider alternatives to their proposed action, 42
U.S.C. § 4332(C)(iii), regardless whether an agency issues
an EA or EIS. As we held in Western Watersheds Project
v. Abbey:
NEPA’s requirement that agencies “study, develop,
and describe appropriate alternatives . . . applies
whether an agency is preparing an [EIS] or an [EA].”
Although an agency must still “give full and meaningful consideration to all reasonable alternatives” in an
environmental assessment, the agency’s obligation to
discuss alternatives is less than in an EIS. “The existence of a viable but unexamined alternative renders an
[EA] inadequate.”
719 F.3d 1035, 1050 (9th Cir. 2013) (alteration in original)
(citations omitted). In considering which alternatives to
analyze, agencies must provide a “detailed statement” regarding why they were eliminated or not considered. 40
C.F.R. §§ 1502.14(a); 1508.9(b)
Purpose and need statement
Whether the range of alternatives considered is reasonable is to some degree circumscribed by the scope of
the statement of “purpose and need,” so we begin our
analysis there. Westlands Water Dist. v. U.S. Dept. of Interior, 376 F.3d 853, 865 (9th Cir. 2004). Agencies enjoy a
good deal of discretion in framing the “purpose and need”
37a
of an EA or EIS, id. at 866, but the statement cannot “unreasonably narrow[] the agency’s consideration of alternatives so that the outcome is preordained.” Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, 1084-85 (9th
Cir. 2013).
Here, the EA explains the “purpose of the proposed
action (use of certain WSTs, such as hydraulic fracturing)
is to enhance the recovery of petroleum and gas from new
and existing wells on the [Pacific Outer Continental
Shelf], beyond that which could be recovered with conventional methods.” And the need is “the efficient recovery of
oil and gas reserves” from the Pacific Outer Continental
Shelf. California contends that by defining the purpose of
the EA in terms of the proposed action, the agencies predetermined the outcome. California stresses the EPA’s
comments on the draft EA, in which the EPA recommended that BOEM and BSEE revise the EA’s “purpose
and need” statement because “[s]uch a narrow and prescriptive statement identifies a solution, rather than the
underlying need.”
While the “purpose and need” statement is narrow, it
does not necessarily fail under our deferential standard of
review. The district court found that the “purpose and
need” statement was “largely a product of the settlement
agreements.” The settlement agreements required the
agencies to evaluate the environmental effects of continuing to approve well stimulation treatments, which explains why they framed the “purpose and need” statement
in this way. The focus of the EA was naturally affected by
the settlement agreements. In light of the discretion we
must afford the agencies, we do not agree with Plaintiffs
that the EA’s statement of “purpose and need” unduly
constrained the agencies’ consideration of alternatives regarding the use of well stimulation treatments.
38a
Reasonable range of alternatives
That the statement of “purpose and need” did not violate NEPA’s procedural commands does not necessarily
mean that the agencies considered a reasonable range of
alternatives, which is the question to which we next turn.
Agencies do not have to consider infinite, unfeasible, or
impractical alternatives, but they must consider reasonable ones. Westlands Water, 376 F.3d at 868. The existence
of a “viable but unexamined alternative” renders the environmental review conducted under NEPA inadequate.
Id. (citation omitted).
Here, the proposed action that the agencies examined
in the EA was allowing the use of well stimulation treatments on the Pacific Outer Continental Shelf without restriction. The agencies also examined three alternatives:
(1) authorizing well stimulation treatments at depths
more than 2,000 feet below the seafloor surface; (2) authorizing well stimulation treatments but prohibiting the
open water discharge of waste fluids, and (3) prohibiting
the use of well stimulation treatments altogether (the “no
action” alternative that NEPA requires agencies to consider). In the EA, the agencies acknowledged that the
three “action alternatives” they considered were similar
because they all “include the use of the same four types of
WST” so the “nature and magnitude” of any impacts will
be similar. Plaintiffs argue that the lack of any meaningful
difference among the alternatives did not allow the informed decision making that NEPA requires.
California and other commenters had suggested specific alternatives for the agencies to consider in the final
EA, such as prohibiting well stimulation treatments in
specific locations or at particular times of year, requiring
the disclosure of well stimulation treatment constituents
39a
and additives, requiring notice to be given to state agencies and the public before well stimulation treatments are
conducted, requiring testing of well stimulation fluids, or
limiting the number of well stimulation treatments in a
given year. Responding to these proposed alternatives in
the Final EA, as they were required to do, the agencies
summarily dismissed them. The agencies concluded in the
appendix: “There were no commenters who proposed that
the [programmatic EA] include a wider range of alternatives that also suggested an additional alternative for review that would lend itself to meaningful analysis.” The
agencies gave no explanation for why the alternatives proposed did not lend themselves to meaningful analysis. In
the body of the EA, the agencies discussed in more detail
a few alternatives that they had considered but eliminated, but these alternatives involved imposing stipulations on fluid volume, constituents, and pressure. The
eliminated alternatives relate in substance to only one of
the alternatives that Plaintiffs and other commenters suggested the agencies consider.
We conclude that the agencies did not meet their obligation under NEPA to “give full and meaningful consideration to all reasonable alternatives.” Western Watersheds, 719 F.3d at 1050 (citation omitted). We first address the proposal to limit the number of treatments per
year. The agencies contend that there was no need to consider such an alternative because they “already had one
alternative that allowed zero treatments and another alternative that allowed up to five,” so an alternative that
allowed “some number in between” would have been unnecessary. The agencies principally rely on Montana Wilderness Ass’n v. Connell, 725 F.3d 988, 1004 (9th Cir.
2013), a case in which we determined that an agency did
not need to consider a “middle ground” alternative between zero and six airstrips for a proposed action.
40a
The district court found this argument persuasive, but
the district court and the Defendants both mistakenly assumed that the proposed action in the EA was limited to
five well stimulation treatments per year. In granting
summary judgment to Defendants on the NEPA claims,
the district court erroneously concluded that the EA “examined a proposal for allowing up to five WST approvals
per year” so “there was no need for the agencies to consider imposing different limits on the number of WSTs”
allowed per year. This relies upon a misreading of the EA.
Nowhere in the text of “Alternative 1: Proposed Action—Allow Use of WSTs” is there any limit on the number of well stimulation treatments imposed. The agencies
argue that they use “a reasonable forecast of . . . up to five
WST applications per year” to calculate potential impacts.
In discussing the other “action alternatives” in the EA,
the agencies note that these alternatives too are premised
on—but not limited to—five well stimulation treatments
per year “to analyze the potential impacts.”
The proposed action does not have a five treatmentsper-year limit (nor do any of the actions, for that matter).
Rather, the agencies used a five-per-year estimate to calculate environmental impacts. Commenters flagged that
the EA does not actually limit the use of well stimulation
treatments to five per year and that the agencies should
revise their analysis in the final EA to account for the possibility that more well stimulation treatments will be used
than they estimate. It was highly arbitrary for the agencies repeatedly to premise their finding of no significant
impact on a limit of five well stimulation treatments per
year, without in fact considering an alternative that imposed such a five-treatment limit.
41a
The agencies have asserted in their briefing what they
contend are persuasive reasons as to why the other alternatives proposed by commenters were not considered by
the agencies. They contend that agencies can already access a website that gives them notice of well stimulation
treatments. They also contend that they could not require
the disclosure of fluid constituents because some of the
chemicals are proprietary to the oil companies. These reasons fail because they are post-hoc rationalizations not
contained in the Final EA. As such, we may not consider
them, given the well-established principle that “an
agency’s action must be upheld, if at all, on the basis articulated by the agency itself” rather than “appellate
counsel’s post hoc rationalizations.” Or. Nat’l Desert Ass’n
v. Bureau of Land Mgmt., 625 F.3d 1092, 1120 (9th Cir.
2010) (citations omitted); see also SEC v. Chenery Corp.,
332 U.S. 194, 196 (1947).
NEPA requires agencies to “give full and meaningful
consideration” to all viable alternatives “in [the] environmental assessment”—not in appellate briefing after the
fact. Western Watersheds, 719 F.3d at 1050 (citation omitted). We hold that the agencies violated NEPA by failing
to consider a reasonable range of alternatives in the EA.
In summary, the agencies’ EA is inadequate both because the agencies failed to take the requisite “hard look”
by relying on incorrect assumptions and also because the
agencies did not consider a reasonable range of alternatives in the EA.
C.
The environmental groups also challenge the agencies’
decision not to prepare an EIS as a separate violation of
NEPA. An EIS must be prepared if there are “substantial
42a
questions” regarding whether the agency’s proposed action may have significant impacts. Ocean Advocates v.
U.S. Army Corps of Eng’rs, 402 F.3d 846, 864-65 (9th Cir.
2005). In challenging an agency decision not to prepare an
EIS, plaintiffs need not prove that significant environmental effects will occur; they need only raise a “substantial question” that they might. Id. This presents a “low
standard” that is permissive for environmental challenge.
Cal. Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d
1072, 1097 (9th Cir. 2011) (citation omitted). When challenged actions are novel, there is more need for an EIS.
See Monsanto v. Geertson Seed Farms, 561 U.S. 139, 177
(2010) (Stevens, J., dissenting) (noting that an EIS is especially important where the environmental threat is
novel). If the agency does not prepare an EIS, it must submit a “convincing statement of reasons” to explain why
the proposed action’s environmental impacts will not be
significant. Ocean Advocates, 402 F.3d at 864 (citation
omitted). Conclusory assertions about insignificant impacts will not suffice. Id. Here, the environmental impacts
of extensive offshore fracking are largely unexplored,
making it terra incognita for NEPA review. For this reason, among others, the important issues here warranted a
full NEPA analysis in an EIS. We hold that the agencies
acted arbitrarily and capriciously by not preparing an
EIS, and by limiting their assessment to an EA that did
not fully evaluate the environmental impacts of fracking.
The NEPA regulations in effect at the time the agencies issued the EA set forth criteria for the agencies to
consider when determining whether an action will significantly affect the environment and consequently requires
43a
a full EIS. 40 C.F.R. § 1508.27.5 These regulations required an agency to consider “both context and intensity.”
Id. Context refers to the setting and circumstances of the
proposed action, including “society as a whole (human, national), the affected region, the affected interests, and the
locality.” Id. § 1508.27(a). Intensity “refers to the severity
of impact” and requires analysis of ten specific factors. Id.
§ 1508.27(b). Meeting just one of these “significance factors” may be sufficient for us to require an agency to prepare an EIS, Ocean Advocates, 402 F.3d at 865, but here
we find multiple factors met.
Offshore well stimulation treatments may adversely affect endangered or threatened species
One significance factor is whether the action “may adversely affect an endangered or threatened species.” 40
C.F.R. § 1508.27(b)(9). After the agencies issued the EA
and FONSI and were sued because of the lack of consultation under the ESA, the agencies belatedly commenced
consultations with the requisite wildlife agencies. In doing
so, the agencies advised that they concluded that the western snowy plover, the California least tern, and the southern sea otter all were likely to be adversely affected by oil
spills. This finding of adverse effects, especially after the
EA was published, is prima facie evidence that an EIS
should have been prepared. And in responding to the
agencies’ request for formal consultation, the Fish and
Wildlife Service demanded additional information in order to address potential effects to other endangered species. This significance factor is readily met.
The NEPA regulations have been revised, 85 Fed. Reg. 43,304
(July 16, 2020), but we look to the regulations in place at the time of
the challenged decision. See, e.g., California v. Norton, 311 F.3d 1162,
1167 n.2 (9th Cir. 2002).
5
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Well stimulation treatments in the Pacific Outer
Continental Shelf would affect unique geographic
areas
Another significance factor weighing in favor of an
EIS is that the authorization of well stimulation treatments in this region affects unique geographic areas. 40
C.F.R. § 1508.27(b)(3). The regulations require agencies
to consider the existence of “[u]nique characteristics of
the geographic area such as proximity to historic or cultural resources.” Id. The Santa Barbara Channel, where
most of the offshore drilling on the Pacific Outer Continental Shelf takes place, is a unique area with proximity
to “park lands . . . or ecologically critical areas.” Id. Many
of its waters and islands have special designation, including the Channel Islands National Park and Marine Sanctuary. The amicus brief filed by Members of Congress refers to the area as the “Galapagos of North America” and
notes that 25 endangered species are present in the channel on a seasonal or permanent basis.
In the Final EA, the agencies responded to concerns
about the unique characteristics of the area by asserting
that the platforms’ distance from the Channel Islands Marine Sanctuary would mitigate any effects to the area. But
Plaintiffs contend that the entire Santa Barbara Channel
region is a unique and globally important ecosystem:
“Cool, subarctic waters converge with warmer, equatorial
waters in the Channel, fostering a richness of marine and
other wildlife, including blue, fin, humpback, minke, and
killer whales, porpoises, dolphins, pinnipeds (seals and
sea lions), the southern sea otter, and hundreds of species
of birds, fishes, and invertebrates.” These species rely on
the entire Channel, not just the Park and Sanctuary, for
their survival and recovery. And the affected area also has
“proximity to historic or cultural resources” including the
45a
submerged remains of the Chumash people. Congress expressly designated the Channel Islands National Park to
protect important cultural resources, including “archaeological evidence of substantial populations of Native
Americans.” 16 U.S.C. § 410ff(6). This significance factor
satisfies the standard we apply to evaluate whether preparing an EIS is required.
The effects of offshore well stimulation treatments
are highly uncertain and involve unknown risks
An EIS is also warranted when the possible effects of
the proposed action are “highly uncertain or involve
unique or unknown risks.” 40 C.F.R. § 1508.27(b)(5). The
lack of data regarding the toxicity of well stimulation fluids, and the uncertainty this poses for evaluating the potential environmental effects of the proposed action, counsels us that an EIS should have been prepared. The agencies lack toxicity data for “31 of the 48 distinct chemicals”
used in offshore well stimulation treatments. During the
period for public comment on the agencies’ draft EA, scientists identified as a critical data gap the fact that “no
studies have been conducted on the toxicity and impacts
of well stimulation fluids discharged in federal waters.”
They urged the agencies to conduct a full EIS due to the
“many data gaps and uncertainties.” The regulatory body
in California that supervises oil and gas development, the
Division of Oil, Gas, and Geothermal Resources, also commented on the draft EA that “effects of discharging WST
fluids on marine life are not fully understood due to the
lack of toxicity data” and urged the agencies to conduct
toxicity testing to address this gap.
An agency must prepare an EIS where uncertainty regarding the environmental effects of a proposed action
may be resolved through further data collection. Nat’l
Parks & Conserv. Ass’n v. Babbitt, 241 F.3d 722, 732 (9th
46a
Cir. 2001), abrogated on other grounds by Monsanto, 561
U.S. 139. In Babbitt, we held that the National Park Service needed to prepare an EIS before authorizing more
cruise ships to enter Glacier Bay National Park because
of the level of uncertainty posed by increased vessel traffic. 241 F.3d at 731-733. We concluded that the agency’s
statement of reasons for why the missing information
could not be obtained was unconvincing, and we explained
that an agency’s “lack of knowledge does not excuse the
preparation of an EIS; rather it requires the [agency] to
do the necessary work to obtain it.” Id. at 733.
In the final EA and FONSI, the agencies acknowledged the “unknown toxicity of WST fluid constituents”
but concluded that the uncertainty is mitigated by several
factors. First, the agencies assert that they know the toxicity values of many of the chemicals used in the treatments. Second, the chemicals will be diluted with seawater. Third, the agencies assert that they have no reason
to believe that chemicals for which they have no toxicity
data are likely to be more toxic than the chemicals for
which they have toxicity data. Fourth, the agencies contend that historical discharges of water containing trace
amounts of similar chemicals have been discharged into
the ocean “for decades” and studies have not detected significant effects. The agencies also contend that it would be
impossible to test the toxicity of every chemical used in
well stimulation treatments against every potentially exposed species.
We are not persuaded that this reasoning is permissible as a basis to avoid preparing an EIS evaluating alternatives to introducing novel and toxic chemicals in the marine environments at risk here. That the well stimulation
fluids will be diluted with seawater does not excuse the
data gaps regarding the specific “effects of discharging
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WST fluids on marine life” nor the lack of data on the
“chronic impacts of these chemicals” in seawater. The record reflects that some well stimulation treatment fluids
have been tested on land, but this does not help us to assess the unknown effects of these fluids in a marine environment. That the agencies know the toxicity of some
chemicals used in well stimulation treatments does not adequately respond to the concerns raised about the uncertainty of how these chemicals interact when mixed together, when interacting with subsurface minerals, or
when coming into contact with surrounding formation
rock. The regulations implementing NEPA require agencies to obtain missing information when it is “essential to
a reasoned choice” and the costs of obtaining it are not
“exorbitant.” 40 C.F.R. § 1502.22(a). The agencies have
not provided convincing reasons for why these data gaps
are not essential or could not be mitigated through further
study. Nor did they consider, as discussed above, an alternative that allows offshore well stimulation treatments
but requires testing to help fill in these data gaps. Guesswork by the agencies does not discharge their responsibilities under NEPA.
The importance of gathering more information about
the toxicity of well stimulation treatment fluids is important here where the programmatic EA represents the
first time the agencies have analyzed the environmental
impacts of offshore well stimulation treatments. We can
agree with the agencies that they need not test every
chemical against every marine species. But Plaintiffs
point to the lack of toxicity data not to suggest that the
agencies must test every chemical but that the unknown
risks posed by these chemicals warrant fuller review of
the proposed action through an EIS. “No matter how
thorough, an EA can never substitute for preparation of
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an EIS, if the proposed action could significantly affect
the environment.” Anderson, 314 F.3d at 1023.
Defendants’ reliance on Salmon River Concerned Citizens v. Robertson is unpersuasive. In Salmon River, we
upheld the agency’s analysis of the effects of herbicide formulation when toxicity data was missing for some of the
ingredients. 32 F.3d 1346, 1358-60 (9th Cir. 1994). An important point overlooked by Defendants, however, is that
the agencies in that case had prepared an EIS and had
taken steps to reduce uncertainty regarding the missing
information. Id. at 1358 n.21. The lack of toxicity data in
Salmon River and the preparation of an EIS in that case
give more reason to believe that an EIS should have been
prepared in this situation, where there is a lack of toxicity
data and the effects of well stimulation fluids pose unknown risks. The record establishes that Plaintiffs have
raised “substantial questions” relating to several significance factors about the effects of allowing well stimulation
treatments offshore California.6 We hold that the agencies
violated NEPA by not providing an EIS on the effects of
authorizing offshore well stimulation treatments.
D.
To summarize our discussion of the alleged NEPA violations, we are compelled to conclude that the agencies
did not take the “hard look” mandated by NEPA. They
relied on flawed assumptions in the EA that distorted and
rendered irrational their finding of no significant impact.
They did not give full and meaningful consideration to a
reasonable range of alternatives. This failure to take the
Having determined that several significance factors are present
and an EIS is warranted, we need not reach Plaintiffs’ additional arguments that the impacts of offshore well stimulation treatments are
highly controversial or that the agencies did not adequately analyze
the cumulative impacts of allowing well stimulation treatments.
6
49a
requisite “hard look” renders the EA inadequate under
NEPA. The agencies also should have prepared a full EIS
in light of the unknown risks posed by the well stimulation
treatments and the significant data gaps that the agencies
acknowledged. NEPA review cannot be used “as a subterfuge designed to rationalize a decision already made.”
Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000). But
that appears to be what happened here. The agencies,
which had already ventured down the path of allowing
well stimulation treatments without environmental review until they were sued by the environmental groups,
did not give a meaningful assessment of reasonable alternatives, offered post-hoc rationalizations for their decision, and disregarded necessary caution when dealing
with the unknown effects of well stimulation treatments
and the data gaps associated with a program of regular
fracking offshore California in order to increase production and extend well life.
We reverse the district court’s grant of summary
judgment upholding the EA and hold that the agencies violated NEPA both because their EA was inadequate and
also because they should have prepared an EIS. We vacate the inadequate EA, which is the presumptive remedy
for agency action that violates the NEPA as reviewed
through the APA. See All. for the Wild Rockies v. U.S.
Forest Serv., 907 F.3d 1105, 1121 (9th Cir. 2018). We remand to the district court with instructions to amend its
injunction to prohibit the agencies from approving permits for well stimulation treatments until the agencies
have issued an EIS and have fully and fairly evaluated all
reasonable alternatives.
50a
IV. ESA
The environmental groups also sued the agencies under the ESA, alleging that they violated the ESA’s consultation requirement. On this issue, the district court
granted summary judgment to Plaintiffs, and Defendants
appeal. We review this issue de novo. Grand Canyon
Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008, 1016
(9th Cir. 2012). The agencies’ sole argument in appealing
the district court’s ESA ruling is that the ESA claim is not
ripe. They argue that there was no “agency action” requiring consultation. The district court rejected this argument, as do we.
The fundamental purpose of the ESA is to conserve
endangered and threatened species as well as their critical habitats. 16 U.S.C. § 1531(b). The ESA provides protections for listed species such as prohibiting unauthorized taking of the species, preserving necessary habitat
for species’ survival, and, as pertinent here, requiring consultations with expert wildlife agencies about the risks to
wildlife species from any proposed federal action. Section
7(a)(2) of the ESA requires agencies to consult with expert wildlife agencies to ensure that any agency action “is
not likely to jeopardize” any endangered or threatened
species or result in the “adverse modification” of their
habitats. Id. § 1536(a)(2). The statute defines agency action as “any action authorized, funded, or carried out” by
an agency. Id.; see also 50 C.F.R. § 402.02 (further defining agency action as “all activities or programs of any kind
authorized, funded, or carried out, in whole or in part, by
Federal agencies”). Depending on the species, the federal
agency must consult with one of two expert wildlife agencies, the U.S. Fish and Wildlife Service or the National
Marine Fisheries Service. The ESA’s implementing reg-
51a
ulations require agencies to review proposed actions “at
the earliest possible time.” 50 C.F.R § 402.14(a).
The ESA provides for two types of consultation. Informal consultation is proper if the acting federal agency
concludes that its action is not likely to adversely affect
any species listed in the ESA. 50 C.F.R. § 402.13(a). If the
wildlife expert agency concurs in writing, informal consultation is complete, and no further action is required under
the ESA. Id. § 402.13(c). If, on the other hand, the acting
agency concludes that its proposed action is likely to adversely affect any listed species, formal consultation is required. Id. § 402.14(a). In the case of formal consultation,
the acting agency must first prepare a biological assessment, and then send a letter to the expert wildlife agency
requesting formal consultation and providing information
about the proposed action. Id. § 402.14(c). The expert
wildlife agency will then prepare a biological opinion that
determines whether the action is likely to cause “jeopardy” for a listed species or its critical habitat. 16 U.S.C.
§ 1536(b); 50 C.F.R. §§ 402.14(g), (h).
Here, the agencies did not engage in consultation before issuing the EA. In the final EA, they responded to
comments expressing concern over the lack of ESA consultation, explaining that they believed consultation was
unnecessary because the EA is a “decision support tool
for future proposals” but does not approve any well stimulation treatments itself. After being sued over the lack of
consultation, and a week before filing their motion to dismiss, the agencies initiated the ESA consultation process
by sending biological assessments to the expert wildlife
agencies. In the biological assessment sent to the National
Marine Fisheries Service, BOEM and BSEE determined
that no species would likely be adversely affected by the
use of well stimulation treatments. The National Marine
52a
Fisheries Service concurred in the agencies’ no adverse
effects determination, which concluded the ESA consultation process because no formal consultation was required.
For species under the jurisdiction of the Fish and Wildlife
Service, BOEM and BSEE determined that three species—the western snowy plover, California least tern, and
southern sea otter—were likely to be adversely affected
by oil spills. The Fish and Wildlife Service requested more
information before beginning formal consultation, which
was required because of the agencies’ conclusion that
three species were likely to be adversely affected.
The district court held that the ESA claim regarding
the initial failure to consult with the National Marine
Fisheries Services was cured, and consequently mooted,
by completion of the consultation with that agency. But
because the agencies had not completed consultation with
the Fish and Wildlife Service, the district court held that
this claim was not moot. BOEM and BSEE have advised
us that consultation with the Fish and Wildlife Service is
still ongoing, making this claim ripe for our review.
We use a two-step test to determine whether an action
qualifies as a sufficient “agency action” under the ESA.
First, relying on the text of the statute, which is always
the appropriate starting place for analysis, Blue Lake
Rancheria v. United States, 653 F.3d 1112, 1115 (9th Cir.
2011), we consider whether an agency “affirmatively authorized, funded, or carried out the underlying activity.”
Karuk Tribe, 681 F.3d at 1021. If this standard is met, we
next determine whether the action was discretionary, in
this context meaning that the agency had “some discretion to influence or change the activity for the benefit of a
protected species.” Id.
The district court correctly held that by issuing the
EA and FONSI for the proposed action of allowing well
53a
stimulation treatments offshore California, the agencies
“affirmatively authorized” private companies to proceed
with these treatments. In a case such as this where a mix
of federal and private action is involved, Karuk Tribe instructs that there is agency action for ESA purposes if the
agency made an “affirmative, discretionary decision about
whether, or under what conditions, to allow private activity to proceed.” Id. at 1027. There, we held that the Forest
Service violated the ESA by not consulting with wildlife
agencies before approving four notices of intent to conduct mining activities within a national forest. Id. at 102227. The approval of the notices of intent “affirmatively decide[d] to allow the mining to proceed,” even though, like
here, the private companies would still need to obtain subsequent federal permits before conducting the challenged
activity. Id. at 1024. By issuing the EA and FONSI, and
concluding that well stimulation treatments would have
no significant impact, the agencies “affirmatively decide[d]” to allow the treatments to proceed. Id.
The second step of the Karuk Tribe test is also met
because the agencies had “discretion to influence or
change the activity for the benefit of a protected species.”
Id. at 1021. This standard is met by agency action that itself does not directly authorize private activity but rather
establishes criteria for future private activity and has an
“ongoing and long-lasting effect.” Pacific Rivers Council
v. Thomas, 30 F.3d 1050, 1053 (9th Cir. 1994); see also
Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1031-33
(9th Cir. 2005), abrogated on other grounds as recognized
in Cottonwood, 789 F.3d at 1089 (holding that the
agency’s registration of pesticides triggered ESA consultation even though implementation of the pesticides might
approve additional, later approvals). In Pacific Rivers, we
rejected the Forest Service’s argument that the ESA did
not apply to programmatic documents that themselves
54a
did not “mandate any action.” 30 F.3d at 1055. We disagreed, concluding that these programmatic documents
constituted agency action because they “set forth criteria”
that would influence future activities. Id.
The agencies argue that these cases do not apply here
because the EA did not establish binding criteria for well
stimulation treatment use. This argument is without
merit. Throughout the EA, the agencies presented and
dismissed alternative options that would have imposed restrictions affecting the oil companies’ subsequent applications. In other words, the agencies had “discretion to influence or change the activity for the benefit of a protected
species.” Karuk Tribe, 681 F.3d at 1021. Choosing the alternative without any restrictions as their proposed action
sets an unregulated and uncontrolled future direction for
the use of well stimulation treatment. The agencies rejected Alternative 2, which set depth restrictions. They
also rejected Alternative 3, which set discharge restrictions. The agencies implemented no restrictions
whatsoever. The agencies should not enjoy insulation
from ESA consultation for selecting the alternative without restriction. In substance, the agencies decided to let
fracking proceed unregulated.
The programmatic analysis and approval of the use of
offshore well stimulation treatments without restriction in
the EA and FONSI meets our definition of “agency action.” The agencies make no other arguments about the
merits of the ESA claims brought by the environmental
groups. Concluding that the proposed action in the agencies’ EA and FONSI constitutes “agency action” under
the ESA, we affirm the district court’s grant of summary
judgment to the environmental groups on the ESA claims.
55a
V. CZMA
We next turn to California’s CZMA claim. Congress
enacted the CZMA to “preserve, protect, develop, and
where possible, to restore or enhance, the resources of the
Nation’s coastal zone for this and succeeding generations.” 16 U.S.C. § 1452(1). When a “Federal agency activity” affects the coastal zone of a state, the CZMA requires
the federal agency to review the proposed activity and determine whether it is consistent with the affected state’s
coastal management program. Id. § 1456(c)(1)(A). California alleges that the agencies violated the CZMA because
they did not conduct a consistency review to determine
whether the use of offshore well stimulation treatments is
consistent with California’s coastal management program. The agencies contend that the proposed action in
the programmatic EA and FONSI is not a “Federal
agency activity” and does not warrant CZMA consistency
review because private companies would still have to obtain permit approval before performing well stimulation
treatments.
Upon de novo review of this question of statutory interpretation, we agree with the district court that the
agencies’ proposed action to allow well stimulation treatments in the Pacific Outer Continental Shelf qualifies as a
“Federal agency activity” under § (c)(1) of the CZMA. We
hold that the agencies violated the CZMA by failing to
conduct the requisite consistency review with California’s
coastal management program. Summary judgment was
properly granted to California on the CZMA claims.
A.
Whenever a “Federal agency activity” may affect a
state’s coastal zone, the CZMA requires review of the action to confirm that it is consistent with the affected
56a
state’s coastal management program. 16 U.S.C. § 1456.
Not all consistency review under the CZMA is the same,
however. If the federal agency takes the action itself, then
§ 1456(c)(1) of the CZMA requires the agency to “provide
a consistency determination” to the designated state
agency specifying whether the proposed action is consistent with the state’s coastal management program. But
if the agency is not taking the action itself, and instead is
approving a proposed plan or issuing a federal license or
permit to an applicant, then § 1456(c)(3) requires the applicant to conduct the consistency review and include a
“consistency certification” in its application confirming
that the proposed activity complies with the affected
state’s coastal management program. Id. § 1456(c)(3). In
other words, § (c)(1) review reaches activities where the
federal agency is the “principal actor” while § (c)(3) review encompasses the “federally approved activities of
third parties.” Sec’y of the Interior v. California, 464 U.S.
312, 332 (1984). If a proposed federal agency activity can
be reviewed under § (c)(3), the CZMA specifically provides that it cannot be reviewed under § (c)(1). 16 U.S.C.
§ 1456(c)(1)(A). Review under § (c)(1) and § (c)(3) is therefore mutually exclusive. California v. Norton, 311 F.3d
1162, 1170 (9th Cir. 2002).
Classification of a proposed activity under § (c)(1) or
§ (c)(3) impacts more than who is required to conduct the
consistency review. The speed of review also differs. Review of a “Federal agency activity” under § (c)(1) requires
more than three months because the agency must complete the CZMA review process at least 90 days before
giving final approval to the proposed activity. Id. § 1456(c)
(1)(C).7 By contrast, if a state does not respond to a private
The agencies contend that this review could take years due to
their resource limitations.
7
57a
applicant’s consistency certification within three months,
the state’s concurrence is “conclusively presumed” by
statute. Id. § 1456(c)(3)(B)(ii). Review under § (c)(3) also
allows the Secretary of Commerce to approve a proposed
activity over a state’s objections that the activity is not
consistent with its coastal management program. In this
way, § (c)(3) review encourages oil and gas development
by expediting the consistency review process and giving
states less leverage to block proposed activities.
B.
We must first decide whether the proposed action in
the programmatic EA and FONSI is a “Federal agency
activity.” If it is a “Federal agency activity,” then we must
then decide whether the action falls outside the scope of
the permit and license review of § (c)(3). We answer both
questions in the affirmative.
The proposed action is a “Federal agency activity”
The CZMA does not define “Federal agency activity,”
but the implementing regulations do. The regulations
broadly define “Federal agency activity” as encompassing
“any functions performed by or on behalf of a Federal
agency in the exercise of its statutory responsibilities.” 15
C.F.R. § 930.31(a). The proposed action in the programmatic EA and FONSI—”Alternative 1: Proposed Action—Allow Use of WSTs”—readily meets this definition.
Deciding whether, and under what circumstances, to allow certain drilling activities on the Pacific Outer Continental Shelf is a function performed by the agencies pursuant to their “statutory responsibilities” under the
OCSLA to make oil and gas reserves in this region “available for expeditious and orderly development, subject to
environmental safeguards, in a manner which is con-
58a
sistent with the maintenance of competition and other national needs.” 43 U.S.C. § 1332(3). And the agencies prepared the EA and FONSI as an “exercise of [their] statutory responsibilities” under NEPA, also satisfying the
definition of “Federal agency activity” provided by the
regulations. 15 C.F.R. § 930.31(a).
The CZMA regulations further provide that “Federal
agency activity” covers a “range of activities where a Federal agency makes a proposal for action initiating an activity or a series of activities when coastal effects are reasonably foreseeable,” such as a “plan that is used to direct
future agency actions.” 15 C.F.R. § 930.31(a) (emphasis
added). It would strain the English language for us to say
that the “Proposed Action” in the programmatic EA is not
a “proposal for action.” Id. And we are further convinced
that the proposed action here is a plan that BSEE and
BOEM will use to “direct future agency actions.” Id. The
proposed action in the EA and FONSI is for the agencies
to “approve the use of fracturing and non-fracturing
WSTs” at all oil platforms on the Pacific Outer Continental Shelf if the treatments are “deemed compliant with
performance standards identified in BSEE regulations.”
This proposed action is a “plan that is used to direct future
agency actions,” and meets the regulatory definition of a
“Federal agency activity.” 15 C.F.R. § 930.31(a).
We reject the agencies and Intervenors’ contention
that the programmatic EA is a “bare NEPA analysis”
document divorced from any agency action. The district
court correctly determined that the EA and its proposed
action “reflects a plan for allowing WSTs” on the Pacific
Outer Continental Shelf and “is not merely an abstract
analytical document unmoored from any proposed action.” By concluding that the proposed action of allowing
well stimulation treatments would not lead to significant
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environmental impacts, the agencies return to the premoratorium status quo of approving well stimulation
treatments offshore California that existed prior to Plaintiffs’ FOIA requests and the ensuing litigation. As described supra in our discussion of the ESA claims, the
agencies’ proposed action of allowing well stimulation
treatments without restrictions on a programmatic level
constitutes a plan that will shape and direct future agency
activity in consideration of site-specific permits.
The proposed action falls outside the scope of
§ (c)(3) of the CZMA
After determining that the proposed action is a “Federal agency activity” under the CZMA, we must next decide whether it falls outside the scope of § (c)(3) of the
CZMA, which covers applications for federal permits and
licenses authorizing activities in the coastal zone. 16
U.S.C. § 1456(c)(3)(A). This is because an action cannot be
reviewed under § (c)(1) if it can be reviewed under § (c)(3)
of the CZMA. Id. § 1456(c)(1)(A). Our decision in Norton
is instructive.
Norton involved the Department of the Interior’s decision to grant suspensions of oil leases off the coast of
California to extend the lives of the leases and avoid their
premature expiration. 311 F.3d at 1165. Like in this case,
California sued, seeking an injunction that would require
the agencies to conduct CZMA consistency review under
§ (c)(1) and to issue an EIS under NEPA. Id. at 1169. In
explaining why § (c)(1) review applied to the lease suspensions in Norton, we provided a history of the CZMA,
which we briefly repeat here.
In 1990, Congress specifically amended the CZMA to
overturn the Supreme Court’s decision in Secretary of the
Interior v. California, 464 U.S. 312 (1984). In Secretary of
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the Interior, the Court held that the original sales of
leases to oil companies were not subject to consistency review because the activities specifically affecting the
coastal zone would be reviewed later, under § (c)(3), when
the oil companies submitted plans to the federal agencies
for approval. Id. at 667-68. Amending the CZMA in 1990
to overturn Secretary of the Interior, Congress specifically provided that the sale of leases could be reviewable
under § (c)(1) of the CZMA even if site-specific activities
conducted under those leases would be subsequently reviewed under § (c)(3). See H.R. Conf. Rep. No. 01-508 at
970 (1990); H.R. Conf. Rep. No. 01-508 at 970 (1990); see
also Norton, 311 F.3d at 1173 (discussing this legislative
history).
In Norton, we interpreted Congress’s 1990 amendments to the CZMA as allowing duplicative review for actions of different scope and at different stages in oil production. We held that “section (c)(3) review will be available to California at the appropriate time for specific individual new and revised plans as they arise, and section
(c)(1) review is available now for the broader effects implicated” by the agency action. 311 F.3d at 1174. We emphasized that the lease suspensions at issue in Norton
“[had] never been reviewed by California,” and the agency
decision “represent[ed] a significant decision to extend
the life of oil exploration and production off of California’s
coast, with all of the far reaching effects and perils that go
along with offshore oil production.” Id. at 1173. We reject
the attempts by the agencies and Intervenors to cabin
Norton’s application to lease suspensions and find it on all
fours with the facts of this case.
Like the agency action at issue in Norton, the proposed action of allowing well stimulation treatments without restriction in the Pacific Outer Continental Shelf “has
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never been reviewed by California” and is a “significant
decision to extend the life of oil exploration and production” by allowing companies to access oil they could otherwise not obtain through conventional drilling methods.
Id. As in Norton, we are not concerned about duplicative
review because there is none: the agencies’ programmatic
decision differs in scope and in stage from the agencies’
later decisions about specific permit applications.
And even though the agencies and Intervenors urge
us to hold that the authorization of well stimulation treatments should be subject to the expedited consistency review of § (c)(3) and not § (c)(1), they concede that permits
for well stimulation treatment would not necessarily require review under § (c)(3). Further, the CZMA does not
apply to development and production undertaken pursuant to an oil and gas lease that was issued prior to September 18, 1978, in an area in which oil or gas had been
discovered prior to that date. See 43 U.S.C. § 1351(a)(1).
In fact, Intervenor DCOR maintains that it is not required
to file a Supplemental Development and Production Plan
for its proposed use of well stimulation treatments because of this exemption. This means that well stimulation
treatments very well could continue to evade environmental review, just as they did before this litigation. These
facts underscore to us the need for programmatic-level
consistency review to take place under § (c)(1) of the
CZMA for the programmatic-level proposed action by the
agencies to authorize offshore well stimulation treatments. Even if site-specific permits could, or would, be reviewed later pursuant to § (c)(3) of the CZMA, this does
not change our interpretation of the statute or our decision in Norton. We hold that the agencies’ proposed action
falls outside the scope of § (c)(3) review and is “Federal
agency activity” requiring the agencies to conduct a consistency review pursuant to § (c)(1) of the CZMA. Section
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(c)(1) review must be available now for the “broader effects implicated” by the agencies’ proposed action. Norton, 311 F.3d at 1174.
It is important to keep in mind that in this sphere of
the law, both the federal government and California have
an important role to play to keep the coastline safe and
prosperous. Indeed, management of the coastal zone is a
paradigmatic example of complementary joint regulation
by state and federal governments to advance important
interests through our dual federalism system. See, e.g.,
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 630
(2012) (Ginsburg, J., concurring in part and dissenting in
part) (“[T]he interests of federalism are better served
when States retain a meaningful role in the implementation of a program of such importance.”); see also 16 U.S.C.
§ 1451(i) (discussing cooperation among federal, state,
and local governments as the key to protection of the
coastal zone).
VI. RELIEF
Intervenors Exxon and DCOR challenge the injunctive relief the district court awarded to remedy the ESA
and CZMA violations, which enjoined the agencies from
approving any permits allowing well stimulation treatments offshore California until the agencies completed
consultation with the Fish and Wildlife Service and consistency review with California.
We review a district court’s decision to issue injunctive
relief for an abuse of discretion. California v. Azar, 911
F.3d 558, 568 (9th Cir. 2018). We first must determine,
upon de novo review, whether the district court “identified
the correct legal rule to apply.” Id. (citation omitted). If
the district court applied the correct legal standard, we
will reverse only if the district court’s application was “(1)
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illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record.” Id.
(citation omitted).
The district court applied the correct four-factor test
for injunctive relief. Before issuing a permanent injunction, a district court must find that a plaintiff demonstrated:
(1) that it has suffered an irreparable injury; (2) that
remedies available at law, such as monetary damages,
are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the
plaintiff and defendant, a remedy in equity is warranted;
and (4) that the public interest would not be disserved by
a permanent injunction.
Monsanto, 561 U.S. at 156-57 (citation omitted). The district court identified this standard and found that Plaintiffs established all four factors in both the ESA and
CZMA contexts. We cannot conclude that the district
court’s application of this test was illogical, implausible, or
without support from the record. Azar, 911 F.3d at 568.
The injunction is narrowly tailored to remedy the agencies’ ESA and CZMA violation—prohibiting the agencies
from approving permits allowing offshore well stimulation
treatments until the consultation with the Fish and Wildlife Service and the consistency review with California
have been completed.
Intervenors’ primary contention is that the district
court presumed irreparable harm to Plaintiffs from the
procedural violations of the ESA and CZMA. We agree
with Exxon and DCOR that Monsanto makes clear that
courts may not make such a presumption, but we do not
agree that the district court did so here. As the district
court points out in its order, the irreparable harm in this
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case extends beyond the mere procedural violation of the
ESA and encompasses the issuance of permits that could
lead to harm to endangered species or be inconsistent
with California’s coastal zone management program. The
district court recognized that a risk of irreparable harm is
present here because the agencies “have made no clear
commitment” to withhold the issuance of well stimulation
permits pending the completion of consultation. We agree
that the failure to consult with the wildlife agencies and
conduct a consistency review with California “can no
longer be cured” once drilling permits are issued.
The district court’s conclusion on irreparable harm is
also supported by facts in the record and inferences that
follow. The programmatic EA identifies harmful effects of
well stimulation treatments on listed species, and the
agencies’ Biological Assessment determined that three
species were likely to be adversely affected. The environmental groups submitted declarations with their summary judgment briefs detailing how their members face
imminent harm from the harm that well stimulation treatments pose to wildlife.
This potential harm to endangered species supports a
finding of irreparable harm because “[o]nce a member of
an endangered species has been injured, the task of preserving that species becomes all the more difficult.” Nat’l
Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d
803, 818 (9th Cir. 2018) (citation omitted). Environmental
injury, by its nature, “is often permanent or at least of
long duration, i.e., irreparable.” Amoco Prod. Co. v. Vill.
of Gambell, 480 U.S. 531, 545 (1987). That the agencies
might conduct ESA review on individual permits in the
future does not affect our analysis. Site-specific review
cannot cure a failure to consult at the programmatic level,
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and incremental-step consultation is inadequate to comply with the ESA. See Conner v. Burford, 848 F.3d 1441,
1455 (9th Cir. 1988). Were it otherwise, “a listed species
could be gradually destroyed, so long as each step on the
path to destruction is sufficiently modest.” Nat’l Wildlife
Fed’n, 524 F.3d at 930.
It was reasonable for the district court to conclude
that the agencies’ violations of the ESA and CZMA would
result in irreparable harm if the agencies could approve
well stimulation treatment permits before the protective
environmental requirements of these statutes were followed. And the district court did not abuse its discretion
in its analysis of the other three factors. The Supreme
Court has recognized that injury to the environment “can
seldom be adequately remedied by money damages and is
often permanent.” Amoco, 480 U.S. at 545. Nor did the
district court abuse its discretion in finding that the balance of hardships and the public interest favors injunctive
relief. It determined that “any interest in proceeding forward” with well stimulation treatments is outweighed by
the public interest in ensuring that the proposed action is
reviewed for consistency with California’s coastal management plan and undergoes consultation with expert
wildlife agencies. The ESA, as one of the most far-reaching environmental statutes, “did not seek to strike a balance between competing interests” but rather “singled
out the prevention of species . . . as an overriding federal
policy objective.” Lazarus, supra, at 73. The district court
did not abuse its discretion by fashioning relief that advances this overriding federal policy objective. And upon
DCOR’s motion for reconsideration, and after receiving
full briefing on the Monsanto factors, the district court
determined that DCOR’s “projection of tens of millions”
of dollars in injuries were speculative and temporary. Because the oil “will still remain in the ground,” the district
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court reasonably concluded that DCOR’s lost profits will
likely be delayed, not lost. And the district court doubted
whether any claimed losses would even be attributed to
the injunction it granted because DCOR did not submit
the supplemental development and production plan the
agencies requested in January 2017.
The district court’s findings on injunctive relief do not
amount to an abuse of discretion. The district court applied the correct test and gave additional consideration to
the Monsanto factors when considering the merits of
DCOR’s motion for reconsideration.8 We affirm the injunctive relief previously fashioned by the district court
and remand with instructions that the district court
amend its injunction to enjoin the agencies from approving well stimulation treatment permits until the agencies
issue a complete EIS, rather than the inadequate EA on
which they had relied.
CONCLUSION
The district court had subject matter jurisdiction and
properly held that Plaintiffs’ claims were ripe. We reverse
the grant of summary judgment to Defendants on the
NEPA claims, and we affirm the grant of summary judgment to Plaintiffs on the ESA and CZMA claims. We remand for further proceedings consistent with this opinion.
DCOR also challenges the district court’s denial of its motion for
reconsideration. In that motion, DCOR sought to have the district
court amend the injunction to allow the agencies to consider DCOR’s
two pending permits to conduct well stimulation treatments in the
Pacific Outer Continental Shelf. We review for an abuse of discretion
a district court’s decision to deny a motion to alter or amend a judgment. McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003). The
district court did not abuse its discretion in determining that DCOR
did not meet the standards articulated in Rule 59(e) or 60(b) for this
exceptional type of relief.
8
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AFFIRMED IN PART, REVERSED IN PART, AND
REMANANDED.
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APPENDIX B
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
No. CV 16-8418 PSG (FFMx)
ENVTL. DEF. CTR. ET AL.,
PLAINTIFFS,
v.
BUREAU OF OCEAN ENERGY MGMT. ET AL.,
DEFENDANTS
Filed: July 14, 2017
ORDER DENYING DEFENDANTS’ MOTIONS
TO DISMISS
GUTIERREZ, United States District Judge.
Before the Court are Defendants Bureau of Ocean Energy Management (“BOEM”), Richard Yarde, David
Fish, Abigail Hopper, Brian Salerno, Bureau of Safety
and Environmental Enforcement (“BSEE”), Joan
Barminski, Mark Fesmire, U.S. Department of the Interior, and Sally Jewell (collectively “federal Defendants”),
and Intervenor Defendant American Petroleum Institute’s (“API”) motions to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
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12(b)(1). Dkts. # 43, 46. Defendants move to dismiss on
two grounds. First, they argue that Plaintiffs’ National
Environmental Policy Act (“NEPA”) and Coastal Zone
Management Act (“CZMA”) claims are not justiciable because Plaintiffs cannot identify a “final agency action”
that makes BOEM and BSEE’s actions subject to judicial
review under § 702 of the Administrative Procedure Act
(“APA”). Second, Defendants argue that Plaintiffs’ Endangered Species Act (“ESA”) claim is not ripe and moot.
The Court received oppositions to Defendants’ motions from three sets of Plaintiffs: (1) Environmental Defense Center and Santa Barbara Channel Keeper (“EDC”
and “EDC Opp.”), Dkts. # 57, 60; (2) the People of the
State of California and the California Coastal Commission
(“State Opp.”), Dkt. # 58; and (3) the Center for Biological
Diversity and the Wishtoyo Foundation (“CBD” and
“CBD Opp.”), Dkts. # 64, 66.1
The Court finds this matter appropriate for decision
without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15.
Having read and considered the papers filed in connection
with these motions, the Court DENIES Defendants’ motions to dismiss.
I. Background
This consolidated case relates to two prior cases previously brought in this Court: Environmental Defense
Center et al. v. BSEE et al., No. CV 14-9281 PSG (FFMx),
and Center for Biological Diversity et al. v. BOEM et al.,
No. CV 15-1189 PSG (FFMx). The cases alleged that the
Unless otherwise indicated, citations to “EDC Opp.” and “CBD
Opp.” refer to Plaintiffs’ oppositions to the federal Defendants’ motion to dismiss. Dkts. # 43, 64. Similarly, citations to “Mot.” and “Reply” refer to the federal Defendants’ motion to dismiss, Dkt. # 43, and
the reply, Dkt. # 70.
1
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federal Defendants violated NEPA by approving fifty-one
permits that authorized offshore well-stimulation treatments (“WSTs”)—more commonly known as “fracking”
or “acidizing”—on the Pacific Outer Continental Shelf
(“POCS”) without conducting an adequate environmental
review. See EDC Opp. 4:16-27. Both prior cases culminated in substantively similar Settlement Agreements entered by the Court on March 24, 2016. See CV 14-9281,
Dkt. # 85; CV 15-1189, Dkt. # 85. In the Settlement
Agreements, the federal Defendants agreed to conduct an
Environmental Assessment (“EA”) of the potential environmental impacts of WSTs off the coast of California in
the vicinity of Santa Barbara, Ventura, and Los Angeles
counties. See Settlement Agreement (CV 15-1189), Dkt.
# 43-1, at 8, ¶ I.A; Settlement Agreement (CV 14- 981),
Dkt. # 43-1, at 18, ¶ I.A.
Specifically, in the Settlement Agreements, the federal Defendants agreed: BOEM and BSEE will undertake a programmatic Environmental Assessment
(“EA”) pursuant to the National Environmental Policy Act (“NEPA”) to analyze the potential environmental impacts of well-stimulation practices on the
Pacific OCS, including hydraulic fracturing and acid
well stimulation. The focus of the EA will be on foreseeable future well-stimulation activities requiring
federal approval, not past completed or expired activities for which no further federal actions remain, except to the degree that analysis of such past actions
may be relevant to assessing the environmental baseline and/or an analysis of cumulative or other effects.
This assessment will result in a determination that either an Environmental Impact Statement (“EIS”) and
Record of Decision (“ROD”) is required or a Finding
of No Significant Impact (“FONSI”) is appropriate.
BOEM and BSEE shall complete and issue the final
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programmatic EA by May 28, 2016, and will also issue
a FONSI by that date if BOEM and BSEE determine
that a FONSI is the appropriate outcome of the EA
See Settlement Agreement (CV 15-1189), Dkt. # 43-1, at
8, ¶ I.A; Settlement Agreement (CV 14- 981), Dkt. # 43-1,
at 18, ¶ I.A. Although Plaintiffs reserved their right to
challenge the “EA/FONSI or EIS/ROD” as a separate legal action, the Settlement Agreement also states that
“[n]othing in this Settlement Agreement constitutes, or
may be construed to constitute, a waiver of sovereign immunity by the United States.” See Settlement Agreement
(CV 15-1189), Dkt. 43-1, at 8, 13, ¶¶ I.A, E; Settlement
Agreement (CV 14-981), Dkt. # 43-1, at 19, 23, ¶¶ I.A, F.
As required by the Settlement Agreements, BOEM
and BSEE completed a timely EA and ultimately decided
to issue a FONSI, concluding that the use of WSTs on the
POCS would have “no significant impact” on the “human
environment.” See Hall Decl., Exs. 1A, 1B, Dkt. # 57-1.
Prior to issuing the EA and FONSI, BOEM and BSEE
released a draft EA and solicited comments from many
sources, including Plaintiffs. See State Compl. ¶¶ 42-47.
The EA focused on the “Proposed Action” of “allowing the
use of WSTs” without restriction. See Hall Decl., Exs. 1A,
1B, Dkt. # 57-1. The EA compared this “Proposed Action”
to three alternatives: (1) allow use of WSTs with subsurface seafloor depth stipulations, (2) allow use of WSTs but
no open water discharge of WST waste fluids, and (3) do
not allow the use of WSTs. Hall Decl., Ex. 1B, Dkt. # 571, at 307. In the final EA, BOEM and BSEE adopt the
Proposed Action and “propose to allow the use of selected
well stimulation treatments (“WSTs”) on the 43 current
active leases and 23 operating platforms on the Southern
California Outer Continental Shelf.” Hall Decl., Ex. 1A, at
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23:6-9. BOEM and BSEE acknowledged that, if the Proposed Action were approved:
BSEE technical staff and subject matter experts will
continue to review applications for permit to drill
(APDs) and applications for permit to modify (APMs),
and, if deemed compliant with performance standards
identified in BSEE regulations at Title 30, Code of
Federal Regulations, Part 250, subpart D (30 CFR
Part 250, subpart D), will approve the use of fracturing
and non-fracturing WSTs at the 22 production platforms1 located on the 43 active leases on the POCS.
Id. at 308. BOEM and BSEE formally concluded in the
FONSI:
It is our determination that the Proposed Action
would not cause any significant impacts. It is our determination that implementing the Proposed Action
does not constitute a major federal action significantly
affecting the quality of the human environment within
the meaning of Section 102(2)(C) of the National Environmental Protection Act.
Id. at 312. Plaintiffs describe this decision as ending the
“moratorium on permit approvals involving the use of
WSTs” and “opening the door to these practices.” See,
e.g., EDC Opp. 2:1-3.
After BOEM and BSEE issued its EA and FONSI,
Plaintiffs filed suit in the Centra District of California
challenging the EA and FONSI. See Envt’l Def. Ctr. et al.
v. Bureau of Ocean Energy Mgmt. et al., CV 16-8418 (filed
BOEM and BSEE reference a different number of platforms in
the EA and the FONSI. The EA refers to 23 “operating platforms,”
see Hall Decl., Ex. 1A, at 23:6–9, while the FONSI refers to 22 “production platforms,” id., Ex. B, at 308.
1
73a
Nov. 11, 2016); Ctr. for Biological Diversity et al. v. Bureau of Ocean Energy Mgmt. et al., CV 16-8473 (filed Nov.
15, 2016); California et al. v. U.S. Dep’t of Interior et al.,
CV 16-9352 (filed Dec. 19, 2016). Plaintiffs allege that the
federal Defendants violated NEPA by “failing to take a
hard look at the impacts of their action by neglecting to
analyze all potential impacts or a reasonable range of alternatives, and understating the frequency and intensity
of the impacts.” EDC Opp. 1:12-16. The State of California
additionally alleges that Defendants violated CZMA by
failing to prepare a consistency determination for the Proposed Action.1 State Compl. ¶¶ 66-69. The EDC and CBD
Complaints allege that Defendants violated the ESA because they “failed to engage in consultation to ensure
their action does not jeopardize listed species or result in
the destruction or adverse modification of their critical
habitat.” EDC Compl. ¶ 204. All three cases were transferred to this Court, and the Court consolidated the cases
for all purposes on February 17, 2017, administratively
closing the two later-filed cases. See CV 16-8418, Dkt.
# 22.
After Plaintiffs filed this litigation and a week before
the federal Defendants filed their motion to dismiss in
1
The CZMA encourages states to develop management plans for
their coastal zones and requires federal agency activities occurring
within the coastal zone, or affecting the water or resources of the
coastal zone, to be “carried out in a manner which is consistent to the
maximum extent practicable with the enforceable policies of approved State management programs.” 16 U.S.C. § 1452(1). In order
to ensure consistency, the federal agency must submit a “consistency
determination” to the relevant state agency for review. Id.
§ 1456(c)(1)(C); 15 C.F.R. § 930.36. The state agency then informs the
federal agency of its concurrence with or objection to the consistency
determination. 15 C.F.R. § 930.41.
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March 2017, BOEM and BSEE prepared and submitted
Biological Assessments to the National Marine Fisheries
Service and the U.S. Fish and Wildlife Service (collectively, “the Services”). See Mitchell Decl., Dkt. # 43-1,
Exs. 2, 4. The ESA indicates that the submission of such
a Biological Assessment to the Services is one of the first
steps in the ESA “consultation” process. See 50 C.F.R.
§ 402.14(c); 16 U.S.C. § 1536(c); see also Mot. 5:1-18.
The federal Defendants now move to dismiss the Complaints on Rule 12(b)(1) grounds. Intervenor Defendant
API joins in the federal Defendants’ arguments, and
raises some limited, additional concerns about the CZMA
claim. See API’s Reply, Dkt. # 68.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(1) requires a
court to dismiss a case if the court lacks subject matter
jurisdiction. Fed. R. Civ. P. 12(b)(1). At the pleading
stage, plaintiffs bear the burden of demonstrating that
the court has subject matter jurisdiction and must do so
by “clearly alleg[ing] facts demonstrating” each element.
See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)
(citing Warth v. Seldin, 422 U.S. 490, 518 (1975)).
A jurisdictional attack under Rule 12(b)(1) may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d
1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d
1214, 1242 (9th Cir. 2000)). In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. Id. By contrast, in a factual attack, the challenger
disputes the truth of the allegations that, by themselves,
would otherwise invoke federal jurisdiction. Id. Here, Defendants’ attack on the Complaint is a factual attack because Defendants challenge whether the EA and FONSI
75a
are final agency actions under the APA, and they cite to
the declaration of Michael Mitchell and other exhibits to
support their argument. See id. (citing Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003) (recognizing that a jurisdictional challenge is factual where it
“relied on extrinsic evidence and did not assert lack of
subject matter jurisdiction solely on the basis of the pleadings”)); see also Friends of the River v. U.S. Army Corps
of Eng’rs, 870 F. Supp. 2d 966, 972 (E.D. Cal. 2012) (reviewing a motion to dismiss as a factual challenge where
defendants attached exhibits and argued that the agency
had not yet taken a “final agency action”).
In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint
without converting the motion to dismiss into a motion for
summary judgment. Savage v. Glendale Union High Sch.,
343 F.3d 1036, 1039 n.2 (9th Cir. 2003). The court need not
presume the truthfulness of plaintiffs’ allegations. White,
227 F.3d at 1243. “Once the moving party has converted
the motion to dismiss into a factual motion by presenting
affidavits or other evidence properly brought before the
court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of
establishing subject matter jurisdiction.” Savage, 343
F.3d at 1039 n.2.
III.
Discussion
Defendants raise two arguments for dismissing the
Complaints under Rule 12(b)(1). First, Defendants argue
that the EA and the FONSI are not “final agency action[s],” and therefore Plaintiffs’ NEPA and CZMA
claims are not justiciable under § 702 of the APA. See Mot.
6:20-7:21. Second, Defendants assert that Plaintiffs’ ESA
claims are not ripe because BOEM and BSEE have not
taken any action that would trigger the ESA’s section 7
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consultation requirements, or are otherwise moot because
BOEM and BSEE have already started the consultation
process by submitting Biological Assessments to the Services. The Court first addresses the NEPA and CZMA arguments, and then turns to the ESA arguments.
A. Justiciability of Plaintiffs’ NEPA and CZMA
Claims
The United States, as sovereign, is immune from suit
“save as it consents to be sued.” Tobar v. United States,
639 F.3d 1191, 1195 (9th Cir. 2001) (quoting United States
v. Mitchell, 445 U.S. 535, 538 (1980)). Neither the NEPA
nor the CZMA statutes provide for judicial review. See,
e.g., City of Sausalito v. O’Neill, 386 F.3d 1186, 1205-06
(9th Cir. 2004); Marsh v. Or. Natural Res. Council, 490
U.S. 360, 375-76 (1989); cf. Bennett v. Spear, 520 U.S. 154,
173-74 (1997) (recognizing that the ESA has its own citizen-suit provision that provides judicial review for claims
such as those brought here). The only mechanism for judicial review of an agency’s NEPA or CZMA determination is § 702 of the APA, which provides a limited waiver
of the federal government’s sovereign immunity to allow
judicial review over NEPA and CZMA claims. See Rattlesnake Coal. v. EPA, 509 F.3d 1095, 1104-05 (9th Cir. 2007).
Section 702 provides a right to judicial review of “final
agency action for which there is no other adequate remedy in court.” 5 U.S.C. § 702; Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 882 (1990); see also Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153 (1970) (recognizing § 702 as a form of non-constitutional, statutory
standing that requires the plaintiff to identify an “agency
action” and show that the “interest sought to be protected
. . . is arguably within the zone of interests to be protected
or regulated by statute”).
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The parties dispute whether the EA and the FONSI
issued by BOEM and BSEE in March 2016 are “final
agency actions.” The EA and the FONSI are both products created by NEPA. NEPA is a federal statute that informs agency decisionmakers of the significant environmental effects of proposed major federal actions, and ensures that relevant information is made available to the
public. See 42 U.S.C. § 4332(2)(C); Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 349 (1989). NEPA
review begins with the preparation of an EA that evaluates whether a Proposed Action might have a “significant
impact” on the environment. See 40 C.F.R. §§ 1501.4,
1508.9. If the analysis in the EA demonstrates that the
Proposed Action will not have a significant impact, the
agency prepares a FONSI. Id. §§ 1501.4(c), 1508.13. If the
analysis demonstrates that the Proposed Action will have
a significant impact, the agency prepares an Environmental Impact Statement (“EIS”). See 42 U.S.C. § 4332(2)(C).
When an agency prepares an EIS, it must also issue a
Record of Decision (“ROD”) that states the agency’s decision, identifies alternatives considered, and discusses how
environmental harms will be avoided or minimized. 40
C.F.R. § 1505.2. Although an agency might determine
that an EIS is not necessary, an agency may still choose
to conduct additional site-specific environmental analysis.
Id. § 1508.28.
Plaintiffs argue that the EA and the FONSI are “final
agency actions” that qualify for judicial review. Defendants counter that the EA and the FONSI are neither
“agency actions” nor are they “final” because BOEM and
BSEE must still issue a permit to any entity that wishes
to use WSTs on the POCS. Defendants would have Plaintiffs wait until BOEM and BSEE issue permits before
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challenging the agencies’ actions in Court.1 See Mot.
18:23-25 (“NEPA analyses themselves can only be challenged when they are relied upon to support a final agency
action that is properly subject to judicial review.”).
The Court first examines whether the EA and FONSI
are “agency actions,” and then, having found that they
are, the Court examines whether the EA and FONSI are
“final” agency actions subject to judicial review.
i. Agency Action
An “agency action” is the “whole or part of an agency
rule, order, license, sanction, relief, or the equivalent or
denial thereof.” 5 U.S.C. § 551(13). A “license” includes
“the whole or a part of an agency permit . . . approval . . .
or other form of permission.” Id. § 551(8). Courts have interpreted the term “agency action” broadly to “cover comprehensively every manner in which an agency may exercise its power.” Whitman v. Am. Trucking Ass’ns, 531
There is some dispute among the parties as to whether BOEM
and BSEE have already issued two permits for WSTs to DCOR, LLC
for DCOR well S-55 and DCOR well B-35. See EDC Opp. 17:2-18:15.
Defendants assert that the DCOR permits are not for WSTs because
they authorize only “routine clean-up operations involving the use of
acid at volumes that fell below the threshold for being considered
‘well stimulation treatments.’” Mot. 16:2-11; see also Settlement
Agreement (CV 15-1189), Dkt. # 43-1, at 9:9-10 (“Well stimulation
treatment does not include routine well cleanout work”); Settlement
Agreement (CV 14-981), Dkt. # 43-1, at 19:18-26 (same). Plaintiffs
contend that even these routine clean-up operations can be environmentally harmful, and the “complaint specifically identifies these
forms of acid use as part of the challenge,” so Plaintiffs assert that
these permits are necessarily encompassed in the Settlement Agreement and the moratorium on WSTs. EDC Opp. 18:2-12. The Court
does not reach this issue for it finds that the EA and the FONSI are
“final agency actions” subject to judicial review.
1
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U.S. 457, 478 (2001) (citing FTC v. Standard Oil Co. of
Cal., 449 U.S. 232, 238 n.7 (1980)).
Plaintiffs assert that the EA and the FONSI are
“agency actions” because they constitute an “approval or
other form of permission.” EDC Opp. 14:12-13. They point
out that the EA and the FONSI selected among alternative proposals, and ultimately elected to “propose to allow
the use of well stimulated treatments.” See Hall Decl., Ex.
1A, at 23. Defendants contend that the EA and FONSI
are not approvals of any sort because they do “not actually
approve anything—[they] merely serve[] as the procedural end point to close out this preliminary analysis.”
Mot. 14:1-3.
This issue is resolved by the Ninth Circuit’s decision
in Laub v. U.S. Department of the Interior, 342 F.3d 1080,
1088-89 (9th Cir. 2003). In Laub, the Ninth Circuit concluded that the CALFED Bay-Delta Program’s EIS and
ROD were agency actions because “the Preferred Program Alternative set out in the EIS will influence subsequent site-specific actions.” Id. at 1088 (citing Idaho Conservation League v. Mumma, 956 F.3d 1508, 1520 (9th
Cir. 1992)). Although CALFED’s decision to conduct an
EIS and issue a ROD is the opposite of the conclusion that
BOEM and BSEE reached here when they decided to issue a FONSI, the FONSI similarly influences subsequent
site-specific actions. See Hall Decl., Ex. 1B. As the Ninth
Circuit explained in Laub:
Whenever a broad environmental impact analysis has
been prepared and a subsequent narrower analysis is
then prepared on an action included within the entire
program or policy, the subsequent analysis need only
summarize the issues discussed in the broader analysis and incorporate discussions from the broader anal-
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ysis by reference. This is known as tiering. Tiered documents focus on issues specific to the subsequent action and rely on the analysis of issues already decided
in the broader programmatic review. Absent new information or substantially changed circumstances,
documents tiering from the CALFED Final Programmatic EIS/EIR will not revisit the alternatives that
were considered alongside CALFED’s Preferred Program Alternative nor will they revisit alternatives that
were rejected during CALFED’s alternative development process.
342 F.3d at 1088 (citing the ROD issued by CALFED).
BOEM and BSEE’s finding of no significant environmental impact will similarly affect subsequent WST permitting decisions. Although BOEM and BSEE may conduct site-specific environmental analysis when issuing
permits, BOEM and BSEE will never need to revisit their
determination that WSTs have no significant environmental impact or their rejection of alternative plans. Therefore, as the Ninth Circuit recognized in Laub, the FONSI
is a document that grants “approval or other form of permission” to the Proposed Action. See id.; see also Salmon
River Concerned Citizens v. Robertson, 32 F.3d 1346,
1355 (9th Cir. 1994) (“[P]laintiffs need not wait to challenge a specific project when their grievance is with the
overall plan.”). The EA and FONSI are therefore “license[s]” that qualify as “agency action[s]” as defined in
the APA. See 5 U.S.C. § 551(8), (13).
ii. Final Agency Action
In addition to disputing whether the EA and the
FONSI are “agency actions,” the parties dispute whether
the EA and the FONSI are “final agency actions.” See
Mot. 17:17-18:3. An agency action is considered “final” if
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it (1) “mark[s] the consummation of the agency’s decision
making process,” and (2) is “one by which rights or obligations have been determined or from which legal consequences will flow.” Bennett, 520 U.S. at 177-78 (the “Bennett” finality test). “[T]he core question is whether the
agency has completed its decision-making, and whether
the result of that process is one that will directly affect the
parties.” Indus. Customers of Nw. Utils. v. Bonneville
Power Admin., 408 F.3d 638, 646 (9th Cir. 2005) (quoting
Franklin v. Massachusetts, 505 U.S. 788, 797 (1992)).
The Ninth Circuit has repeatedly held that final
NEPA documents constitute final agency actions that are
immediately justiciable to procedural challenges. See, e.g.,
Laub, 342 F.3d at 1088-89 (treating an EIS/ROD as “final
agency action”); Or. Nat. Desert Ass’n v. Bureau of Land
Mgmt., 625 F.3d 1092, 1118 (9th Cir. 2010) (finding “no
doubt” that a citizen may challenge a final NEPA decision); Or. Nat. Res. Council v. Harrell, 52 F.3d 1499, 1503
(9th Cir. 1995) (holding a ROD as a final agency action);
accord Sierra Club v. U.S. Army Corps of Eng’rs, 446
F.3d 808, 815 (8th Cir. 2006) (finding that a FONSI is a
“final agency action” and noting that “[t]he Supreme
Court has strongly signaled that an agency’s decision to
issue . . . an environmental impact statement is a ‘final
agency action’ permitting immediate judicial review under NEPA”); Highway J Citizens Group v. Mineta, 349
F.3d 938, 958 (7th Cir. 2003) (stating that NEPA “documents are intended to be the culmination of an agency’s
environmental assessment”). In finding that the FONSI
is a “final agency action,” this Court therefore joins a longline of cases that allow judicial review after an agency culminates its NEPA process.
Defendants attempt to distinguish this line of cases by
citing to Center for Biological Diversity v. Salazar, 706
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F.3d 1085, 1095-96 (9th Cir. 2013), and Foundation on
Economic Trends v. Lyng, 943 F.2d 79, 86-87 (D.C. Cir.
1991), but the Court is not persuaded that either case controls here because neither case addresses the relevant
point. In Salazar, for example, the Ninth Circuit concluded that NEPA review was not required when the Bureau of Land Management issued a new reclamation bond
for mining operations in Arizona. 706 F.3d at 1095. The
court did not hold, however, that the issue was not justiciable. Similarly, in Foundation on Economic Trends, the
D.C. Circuit held that the plaintiff did not have standing
to challenge what it deemed an “informational injury.” 943
F.3d at 85. But the D.C. Circuit expressly excluded “the
typical NEPA case,” like this one, where a plaintiff faults
a federal agency for failing to conduct an environmental
review that “might change its mind and thereby avert
damage to those interests.” Id. at 84 (“In such cases, . . .
the alleged injury arises directly from the agency’s proposed action rather than from the agency’s failure to create or consider an impact statement.”). Neither Salazar
nor Foundation on Economic Trends is therefore persuasive here.
Rather, Plaintiffs are correct that this case more
closely resembles Cure Land, LLC v. U.S. Department of
Agriculture, 833 F.3d 1223, 1231 (10th Cir. 2016); accord
Sierra Club, 446 F.3d at 815. In Cure Land, the Tenth
Circuit expressly held that a FONSI is a “final agency action” that satisfies § 702’s finality requirement because it
is the final step in the agency’s NEPA decision-making
process, and “there is no indication that the FONSI’s conclusion . . . is tentative or interlocutory in nature.” Id. The
court also reasoned that “legal consequences” flow from
the FONSI because “it establishes changes to the conservation program the agency may implement immediately.”
Id. It was the FONSI, and not any later action, that
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caused plaintiff’s harm because the determination of the
no significant environmental impact is the “procedural injury” that plaintiff advanced in its litigation. Id. (citing
Ohio Forestry Ass’n, 523 U.S. at 737).
The same reasoning that applied in Cure Land applies
to the EA and FONSI now before the Court. BOEM and
BSEE’s FONSI meets the first Bennett finality requirement because it is the final step in BOEM and BSEE’s
NEPA process and effectively lifts the moratorium on
WSTs in the POCS. See Bennett, 520 U.S. at 177-78. Additionally, the agencies’ determination was not equivocal.
BOEM and BSEE concluded, “It is our determination
that the Proposed would not cause any significant impacts.” Hall Decl., Ex. 1B, at 312. Although the agencies
note that additional site-specific analysis may be required,
the agencies concede that no additional environmental
analysis is required on a programmatic level.
The FONSI also meets the second Bennett finality requirement because it determines “rights or obligations.”
Bennett, 520 U.S. at 177-78. By finding that WSTs have
no significant environmental impact, BOEM and BSEE
allowed the WST permitting process to proceed. This
surely impacts legal rights, as indicated by the Intervenors’ involvement in this suit, as well as the legal rights of
Plaintiffs, who contend that they have incurred a procedural injury by BOEM and BSEE’s alleged failure to consider certain factors in their environmental analysis.
Having thus reviewed the relevant case law, the Court
finds ample precedent for concluding that the EA and
FONSI are “final agency action[s]” subject to judicial review. Defendants’ motion to dismiss Plaintiffs’ NEPA and
CZMA claims is therefore DENIED.
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B. ESA Claims
The EDC and CBD Plaintiffs additionally allege that
federal Defendants violated section 7(a)(2) of the ESA by
failing to consult the Services before issuing their completed EA and FONSI. Section 7(a)(2) of the ESA requires federal agencies to ensure that any action that they
“authorize, fund, or carry out is not likely to jeopardize
the continued existence of any endangered species or
threatened species or result in the destruction or adverse
modification of designated critical habitat.” See 16 U.S.C.
§ 1536(a)(2); 50 C.F.R. §§ 402.02 (definition of an “action”), 402.03. The ESA uses the term “action agency” to
refer to the agency that is taking the action that requires
consultation. Here, BOEM and BSEE are the “action
agencies.”
Although the ESA does not require action agencies to
reach a certain substantive outcome, the ESA mandates
procedures that an action agency must follow before authorizing, funding, or carrying out “actions.” If a proposed
action “may affect” a listed species or critical habitat, the
action agency must, at least, informally consult with the
Services. See 50 C.F.R. § 402.13(a). An informal consultation includes discussions and correspondence between the
action agency and the Services, and may include a Biological Assessment prepared by the action agency for the
Services’ review. Id. §§ 402.13, 402.14(c); 16 U.S.C.
§ 1536(c). If during informal consultation, the action
agency and the Services concur that the action is not likely
to adversely affect a listed species or critical habitat, no
further consultation is necessary. 50 C.F.R. §§ 402.13(a),
402.14(b)(1). However, if the action agency or the Services
determines that the action is “likely to adversely affect”
listed species or critical habitat, the agencies then engage
in “formal consultation.” Id. §§ 402.13(a), 402.14(a)-(b).
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Formal consultation leads to the issuance of a “Biological
Opinion” or “BiOp” by the Services that assesses the likelihood of “jeopardy” to the species or “destruction or adverse modification” of critical habitat. Id. § 402.14(g)-(h).
Defendants contend that Plaintiffs’ ESA claim is not
ripe and moot. First, Defendants assert that the ESA
claim is not ripe because BOEM and BSEE have not yet
taken an “action” that triggers the ESA. Second, Defendants argue that the ESA claim is moot because BOEM
and BSEE sent Biological Assessments to the Services in
March 2017, and so have already begun the consultation
process required by ESA. The Court first addresses ripeness and then turns to mootness.
i. Ripeness
Defendants challenge the ripeness of Plaintiffs’ ESA
claim on two grounds. First, they argue that the claim is
“unripe” because BOEM and BSEE have not yet taken
an “action” that would require ESA consultation. See Mot.
at 22. Second, the federal Defendants assert that adjudication of Plaintiffs’ ESA challenge at this point is improper because future site-specific consultations might
result in mitigation or elimination of any potential harm.
In response, Plaintiffs point to the EA and the FONSI,
and assert that BOEM and BSEE were required to consult the Services before issuing these determinations. Because they allege procedural injuries, Plaintiffs additionally contend that their claims are ripe now.
The ESA requires consultation with the Services for
any “agency action” that “may affect” a listed species or
critical habitat. 16 U.S.C. § 1536(a)(2). An “action” for
ESA purposes is “all activities or programs of any kind
authorized, funded, or carried out, in whole or in part, by
Federal agencies,” and includes the “granting of licenses”
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and “actions directly or indirectly causing modifications
to the land, water or air.” 50 C.F.R. § 402.02. The Ninth
Circuit assesses the “action” inquiry under the ESA in
two steps: “First, we ask whether a federal agency affirmatively authorized, funded, or carried out the underlying
activity. Second, we determine whether the agency has
some discretion to influence or change the activity for the
benefit of a protected species.” Karuk Tribe of Cal. v. U.S.
Forest Serv., 681 F.3d 1006, 1020-21 (9th Cir. 2012) (en
banc). “There is ‘agency action’ whenever an agency
makes an affirmative, discretionary decision about
whether, or under what conditions, to allow private activity to proceed.” Id. at 1011.
The record in this case shows that the EA and the
FONSI qualify as “action” under the ESA. In the FONSI,
BOEM and BSEE “affirmatively authorize[d]” private
entities to proceed with WSTs on the POCS, reasoning
that such activities would not have a significant environmental impact on human activities. See Hall Decl., Ex. 1B.
Although private entities must still obtain permits from
BOEM and BSEE to conduct site-specific WSTs, the EA
and FONSI set an affirmative future direction for these
activities and set the course for how these activities are
conducted. See Karuk Tribe of Cal., 681 F.3d at 1011
(treating a “Notice of Intent” to authorize mining activities as an “agency action” because the notice described
“under what conditions” mining could proceed on the Klamath River). Plaintiffs have also shown that WSTs “may
affect” twenty-five threatened or endangered species, and
the Biological Assessments that Defendants submitted to
the services confirm as much. See Mitchell Decl., Exs. 2,
5. Moreover, it is clear that BOEM and BSEE had “some
discretion” over how to supervise WSTs, given that the
EA and FONSI presented and dismissed alternative options, including safety measures that could have changed
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how WSTs were conducted. Indeed, having now issued its
FONSI, there is no opportunity for BOEM or BSEE to
revisit those alternatives on a programmatic scale.
The Court similarly rejects Defendants’ arguments
that challenges to the EA and the FONSI are not procedurally ripe. “The doctrine of ripeness prevents courts
from becoming involved in abstract questions which have
not affected the parties in a concrete way.” S. Cal. Edison
Co. v. FERC, 770 F.2d 779, 785 (9th Cir. 1985). To determine ripeness in an agency context, courts consider:
(1) whether delayed review would cause hardship to
the plaintiffs; (2) whether judicial intervention would
inappropriately interfere with further administrative
action; and (3) whether the courts would benefit from
further factual development of the issues presented.
Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733
(1998); Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 940 (9th Cir. 2006) (applying this
test to an ESA claim). Judicial intervention does not interfere with further administrative action when an
agency’s decision is “at an administrative resting place.”
Citizens for Better Forestry v. U.S. Dep’t of Agric., 341
F.3d 961, 977 (9th Cir. 2003). Further, courts have held
that “no additional factual development is necessary after
a procedural injury has occurred.” Cottonwood Envtl.
Council v. U.S. Forest Serv., 789 F.3d 1075, 1084 (9th Cir.
2015) (citing Ohio Forestry Ass’n, 523 U.S. at 737 (holding
that a procedural dispute is ripe “at the time the [procedural] failure takes place”)).
The Court finds Plaintiffs’ ESA claim ripe for judicial
review. Plaintiffs do not argue for a particular substantive
result, but rather Plaintiffs allege that BOEM and BSEE
failed to comply with the procedural requirements of the
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ESA when they did not consult with the Services before
issuing the EA and FONSI. Because courts have held that
plaintiffs asserting procedural injuries “may complain of
that failure at the time the failure takes place” and “the
claim can never get riper,” Ohio Forestry Ass’n, 523 U.S.
at 737, Plaintiffs have incurred injury and their claim is
ripe now. Moreover, the Court is confident that judicial
review at this juncture would not interfere with further
administrative action because BOEM and BSEE have
reached “an administrative resting place.” Citizens for
Better Forestry, 341 F.3d at 977. The agencies are at a
“resting place” because they have not yet issued a significant number, if any, permits for WSTs but have definitively concluded that WSTs do not have any significant
environmental effects. Finally, the Court does not need to
wait for “further factual development” because the procedural injury, if any, has already occurred.
In sum, the Court concludes as a matter of law that the
EA and the FONSI are “action” under the ESA. This
holding comports with other Ninth Circuit cases that have
come to the same result under factually analogous circumstances. See P. Rivers Council v. Thomas, 30 F.3d 1050,
1051 (9th Cir. 1994) (concluding that a programmatic document that “set out guidelines” for forest management
was an ESA-triggering action); Wash. Toxic Coal. v. Envtl. Protection Agency, 413 F.3d 1024, 1031-33 (9th Cir.
2005) (concluding that the approval and registration of
certain pesticides was subject to ESA consultation because it approves of certain practices, even though the implementation of the pesticides might involve additional
approvals).
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ii. Mootness
Defendants next contend that Plaintiffs’ ESA claim is
moot because Defendants submitted Biological Assessments to the Services the week before they filed their motion to dismiss. See Mot. 24:10-25:20. Plaintiffs counter
that their ESA claim is not moot because the Biological
Assessments are incomplete, and because there is still action that the Court can take to remedy the Plaintiffs’ injuries. See EDC Opp. 22:18-25:20; CBD Opp. 20:14-25:24.
The basic question in determining mootness is
“whether there is a present controversy as to which effective relief can be granted.” N.W. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988) (citing United
States v. Geophysical Corp., 732 F.2d 693, 698 (9th Cir.
1986)); see also W. Oil & Gas Ass’n v. Sonoma Cty., 905
F.2d 1287, 1290 (9th Cir. 1990) (distinguishing the ripeness inquiry, which asks “whether there is yet any need
for the court to act” from the mootness inquiry, which
asks “where there is anything left for the court to do”).
“[I]n deciding a mootness issue, ‘the question is not
whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.” N.W.
Envtl. Def. Ctr., 849 F.2d at 1244-45. Because of this
standard, the burden of demonstrating mootness is a
“heavy” one. Cty. of Los Angeles v. Davis, 440 U.S. 625,
631 (1979).
Plaintiffs point to at least two steps that the Court can
still take to provide effective relief to Plaintiffs even
though Defendants have already submitted Biological Assessments to the Services. First, Plaintiffs contend that
there remains a “live controversy” over whether Defendants must initiate formal consultation that results in a
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BiOp, and the Court could still order the federal Defendants to initiate such a process. See Or. Nat. Desert Ass’n
v. Tidwell, 716 F. Supp. 2d 982, 995 (D. Or. 2010) (holding
that claim is not moot “in light of the fact that federal defendants have yet to demonstrate that formal consultation has been properly initiated”).
Second, Plaintiffs argue that their claim as to Defendants’ failure to initiate consultation is still live because
BOEM and BSEE’s Biological Assessments are incomplete. See EDC Opp. 23:19-25:7. Plaintiffs fault the Biological Assessments for (1) failing to assess the full range of
activities challenged in Plaintiffs’ complaint, including
how toxic chemicals will affect certain species and the potential impact of large-scale oil spills; and (2) for omitting
any consideration of the effects on the scalloped hammerhead shark. See id. When plaintiffs have been able to identify such failures in ESA consultations in the past, courts
have not rendered plaintiffs’ claims moot because the
Court can still offer effective relief by requiring defendants to assess the full range of possible effects. See, e.g.,
Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 782 (9th
Cir. 2014) (ruling that a consultation claim was not moot
where a BiOp did not discuss certain impacts to certain
species); Cal. Trout, Inc. v. U.S. Bureau of Reclamation,
115 F. Supp. 3d 1102, 1114 n.9 (C.D. Cal. 2015) (requiring
defendants to engage in full consultation that addresses
additional effects).
Defendants do not offer a convincing retort to Plaintiffs’ claims. See Reply 10:7-12:23. Although the Court has
no reason to doubt that “formal consultation could still occur” and that BOEM and BSEE will continue to consult
the Services, id. 11:10-13, this does not mean that there is
nothing left for the Court to do. Defendants offer no reason why the Court could not still require BOEM and
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BSEE to conduct a more complete Biological Assessment,
or to engage in formal consultation, if warranted.
Because Plaintiffs have shown that the Court may still
grant “effective relief,” the Court DENIES Defendants’
motion to dismiss the ESA claim on the ground that it is
moot.
IV. CONCLUSION
The Court DENIES Defendants’ motions to dismiss.
It concludes that the EA and FONSI are “final agency action[s]” that make Plaintiffs’ NEPA and CZMA claims
subject to judicial review under § 702 of the APA. Additionally, the Court concludes that Plaintiffs’ ESA claim is
ripe because BOEM and BSEE have already taken an
“action” that triggered the ESA’s consultation requirements and because the Court can still take meaningful action to remedy Plaintiffs’ injuries even though Defendants
have submitted Biological Assessments to the Services.
IT IS SO ORDERED.
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APPENDIX C
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
No. CV 16-8418-PSG (FFMx)
ENVIRONMENTAL DEFENSE CENTER ET AL.,
PLAINTIFFS,
V.
BUREAU OF OCEAN ENERGY MANAGEMENT ET AL.,
DEFENDANTS
Filed: November 9, 2018
ORDER GRANTING IN PART AND DENYING IN
PART THE CROSS-MOTIONS FOR SUMMARY
JUDGEMENT
GUTIERREZ, United States District Judge.
Before the Court are seven motions for summary
judgment relating to a federal proposal to allow the use of
fracking and acidizing in oil production off the coast of
California. Plaintiffs the State of California and the California Coastal Commission (“California Plaintiffs”), Environmental Defense Center and Santa Barbara Channelkeeper (“EDC Plaintiffs”), and Center for Biological
Diversity and Wishtoyo Foundation (“CBD Plaintiffs”)
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(collectively “Plaintiffs”) ask the Court to find that the
Federal Defendants violated their statutory obligations
under the National Environmental Policy Act (“NEPA”),
Endangered Species Act (“ESA”), and Coastal Zone Management Act (“CZMA”).1 Federal Defendants Bureau of
Ocean Energy Management (“BOEM”), Richard Yarde,
David Fish, Walter Cruickshank, Scott Angelle, Bureau
of Safety and Environmental Enforcement (“BSEE”),
Joan Barminski, Mark Fesmire, United States Department of the Interior, and Ryan Zinke, Secretary of the Interior (collectively “the Federal Defendants”), as well as
Intervenor Defendants American Petroleum Institute
(“API”), DCOR, LLC (“DCOR”), and Exxon Mobil Corporation (“Exxon”) (collectively “Defendants”) ask the
Court to uphold the federal actions.2 The parties have filed
oppositions and replies.3 The Court held a hearing on this
matter on November 5, 2018.
After considering the moving papers and the arguments made at the hearing, the Court GRANTS in part
and DENIES in part all seven motions. Specifically, the
Court concludes that the Federal Defendants satisfied
their obligations under the National Environmental Policy Act (“NEPA”) in preparing the environmental assessment that is the subject of this suit. But the Court also
concludes that the Federal Defendants violated the Endangered Species Act (“ESA”) by failing to consult with
the relevant federal services and violated the Coastal
See Dkts. # 95 (“California Mot.”), 96 (“EDC Mot.”), 97 (“CBD
Mot.”).
1
2
See Dkts. # 102 (“Gov’t Cross-Mot.”), 106 (“API Cross-Mot.”), 107
(“DCOR Cross-Mot.”), 108 (“Exxon Cross-Mot.”).
Dkts. # 109 (“CBD Opp.”), 111 (“EDC Opp.”), 113 (“California
Opp.”), 118 (“Gov’t Reply”), 119 (“API Reply”), 120 (“DCOR Reply”),
121 (“Exxon Reply”).
3
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Zone Management Act (“CZMA”) by failing to prepare a
consistency determination and submit it to California for
review as required by that statute.
I. Background
A. Underlying Facts
This is a consolidated case that is a successor to two
cases previously brought in this Court: Environmental
Defense Center v. BSEE, CV 14-9281 PSG (FFMx), and
Center for Biological Diversity v. BOEM, CV 15-1189
PSG (FFMx). In those cases, the plaintiffs alleged that
the Federal Defendants violated NEPA by approving
fifty-one permits for offshore well-stimulation treatments
(“WSTs”)—more commonly known as “fracking” or
“acidizing”—on the Pacific Outer Continental Shelf
(“POCS”) without conducting an adequate environmental
review. See July 14, 2017 Order, Dkt. # 74, at 2. Both prior
cases culminated in substantively similar settlement
agreements entered by the Court on March 24, 2016. See
Settlement Agreement, CV 14-9281, Dkt. # 79-1; Settlement Agreement, CV 15-1189, Dkt. # 41-1. In the settlement agreements, the Federal Defendants agreed to conduct an Environmental Assessment (“EA”) of the potential environmental impacts of WSTs off the coast of California in the vicinity of Los Angeles, Santa Barbara and
Ventura counties. See Settlement Agreement (CV 151189), ¶ I.A; Settlement Agreement (CV 14-9281), ¶ I.A.
Specifically, in the Settlement Agreements, the Federal Defendants agreed:
BOEM and BSEE will undertake a programmatic Environmental Assessment (“EA”) pursuant to the National Environmental Policy Act (“NEPA”) to analyze
the potential environmental impacts of well-stimulation practices on the Pacific OCS, including hydraulic
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fracturing and acid well stimulation. The focus of the
EA will be on foreseeable future well-stimulation activities requiring federal approval, not past completed
or expired activities for which no further federal actions remain, except to the degree that analysis of such
past actions may be relevant to assessing the environmental baseline and/or an analysis of cumulative or
other effects. This assessment will result in a determination that either an Environmental Impact Statement (“EIS”) and Record of Decision (“ROD”) is required or a Finding of No Significant Impact
(“FONSI”) is appropriate. BOEM and BSEE shall
complete and issue the final programmatic EA by May
28, 2016, and will also issue a FONSI by that date if
BOEM and BSEE determine that a FONSI is the appropriate outcome of the EA.
See id. The Federal Defendants agreed to withhold approvals of future applications for permits for WSTs on the
POCS until the Final EA was completed. See Settlement
Agreement (CV 15- 1189), ¶ I.C; Settlement Agreement
(CV 14-9281), ¶ I.C.
The Federal Defendants issued a Draft EA on February 22, 2016. See Administrative Record, Dkt. # 93
(“AR”), 16024 et seq. After a thirty-day public comment
period, they issued a Final EA in May 2016. See id. 106599
et seq. The Final EA examined the Proposed Action of allowing the use of WSTs on the POCS (“Alternative 1”).
Under this proposal,
BSEE technical staff and subject matter experts
[would] continue to review applications for permit to
drill (APDs) and applications for permit to modify
(APMs), and, if deemed compliant with performance
standards identified in BSEE regulations at Title 30,
Code of Federal Regulations, Part 250, subpart D (30
96a
CFR Part 250, subpart D), will approve the use of fracturing and non-fracturing WSTs at the 22 production
platforms located on the 43 active leases on the POCs.
Id. 16288-89. The Final EA also examined three more limited proposals: applying subsurface seafloor depth stipulations to future permit approvals (“Alternative 2”), prohibiting open water discharge of WST waste fluids (“Alternative 3”), and not allowing any use of WSTs in the future (“Alternative 4”). Id. 16289-90. After hundreds of
pages of analysis, the Final EA concluded that none of the
four proposals were “expected to result in adverse impacts on the environment.” See id. 16504. Based on the
analysis in the Final EA, BOEM and BSEE issued a
Finding of No Significant Impact (“FONSI”) on May 27,
2016. See id. 16568-75.
B. Procedural History
In late 2016, the three groups of Plaintif
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