Northern Alaska Environmental Center v. Kempthorne

• Decision Date: 26 July 2006
• Docket Number: No. 05-35085.,05-35085.
• Citation: 457 F.3d 969
• Parties: NORTHERN ALASKA ENVIRONMENTAL CENTER; National Audubon Society; The Wilderness Society; Natural Resources Defense Council; Sierra Club; Alaska Wilderness League; Center for Biological Diversity, Plaintiffs-Appellants, v. Dirk KEMPTHORNE;<SMALL><SUP>*</SUP></SMALL> Henry Bisson; United States Bureau of Land Management; Fish and Wildlife Service; United States Department of the Interior, Defendants-Appellees, Arctic Slope Regional Corporation; Conocophillips Alaska, Inc.; Anadarko Petroleum Corporation; State of Alaska, Defendants-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

457 F.3d 969

NORTHERN ALASKA ENVIRONMENTAL CENTER; National Audubon Society; The Wilderness Society; Natural Resources Defense Council; Sierra Club; Alaska Wilderness League; Center for Biological Diversity, Plaintiffs-Appellants, v. Dirk KEMPTHORNE;^* Henry Bisson; United States Bureau of Land Management; Fish and Wildlife Service; United States Department of the Interior, Defendants-Appellees Arctic Slope Regional Corporation; Conocophillips Alaska, Inc.; Anadarko Petroleum Corporation; State of Alaska, Defendants-Intervenors-Appellees.

No. 05-35085.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 15, 2005.

Filed July 26, 2006.

Deirdre McDonnell, Earthjustice, Juneau, AK, for the plaintiffs-appellants.

John A. Bryson, Department of Justice, Washington, D.C., for the defendant-appellees.

Jeffrey W. Leppo, Seattle, Washington, for the defendants-intervenors-appellees.

Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief Judge, Presiding. D.C. No. CV-04-00006-J-JKS.

Before MARY M. SCHROEDER, Chief Judge, ARTHUR L. ALARCÓN and ANDREW J. KLEINFELD, Circuit Judges.

SCHROEDER, Chief Judge.

Since the administration of President Warren G. Harding, the United States has looked to the petroleum and natural gas resources underlying the wilderness of Northern Alaska, but development has come slowly. The frigid region is far reaching and so is the range of wildlife that inhabits it.

The government now proposes to lease vast reaches of the northernmost part of the state, known as the Northwest Planning Area ("NWPA"). In this litigation, a group of environmental plaintiffs have challenged the adequacy of the Final Environmental Impact Statement ("FEIS") prepared by the Bureau of Land Management ("BLM") for its plan to offer long term oil and gas leases in the NWPA. The leases would enable the oil companies to undertake exploration to determine what sites, if any, can be developed for productive drilling. The National Environmental Policy Act ("NEPA") requires an assessment of the effects of major federal action on the surrounding environment.

According to plaintiffs, the FEIS issued by the Secretary and BLM to open the NWPA to oil and gas leasing does not comply with the requirements of NEPA. Plaintiffs allege that the Department of Interior and BLM violated NEPA because the FEIS failed to evaluate sufficiently site specific environmental consequences, failed to consider reasonable alternatives, did not discuss mitigation measures, and did not assess the cumulative impacts of leasing and other activities plaintiffs claim to be reasonably foreseeable. Plaintiffs also argue that the Biological Opinion ("BiOp") issued by the Fish and Wildlife Service ("FWS") violates the Endangered Species Act ("ESA").

The plaintiffs' main contention is that the analysis undertaken for the EIS was inadequate, because it lacked site specific analysis for particular locations where drilling might occur. The government responds, we conclude cogently, that no such drilling site analysis is possible until it is known where the drilling is likely to take place, and that can be known only after leasing and exploration. The government points out that the environmental consequences at specific sites can be assessed in connection with later applications for permits for drilling at those sites, and that no permits should issue without extensive site specific analysis of adverse environmental effects and of the mitigation measures appropriate to minimize them. On that basis, we affirm the district court's grant of summary judgment in favor of the government.

BACKGROUND

President Harding established the Naval Petroleum Reserve on Alaska's North Slope in 1923. It was fifty years later, in 1976, that the National Petroleum Reserve Protection Act ("NPRPA") transferred authority over the Reserve to the Secretary of Interior. The Reserve was subsequently renamed the National Petroleum Reserve-Alaska ("NPR-A"). It remains the largest single unit of public land in the United States and covers 23.6 million acres. It is also an important habitat for vegetation, fish, and wildlife.

The NPR-A prohibited petroleum exploration until 1980 when Congress, driven by the fuel crisis of the previous decade, directed the Secretary to carry out an "expeditious program of competitive leasing of oil and gas" on the Reserve. 42 U.S.C. § 6508. The Congressional Act also recognized the subsistence interests of Native American tribes in the area and the need to protect the environment. In 1998, the BLM opened up 4.6 million acres, or 87 percent of the Northeast Planning Area of the Reserve to oil and gas leasing, while carving out various special areas as off limits to leasing. The Northeast Planning Area is also the subject of litigation in the district court.

The portion of the NPR-A at issue here is the Northwest Planning Area, consisting of 8.8 million acres to the west of the Northeast Planning Area. The historical background of the region is well summarized in the district court's opinion in this case that is published at 361 F.Supp.2d 1069 (D.Alaska 2005).

DEVELOPMENT OF THE FEIS

The BLM published a draft EIS for the NWPA in January 2003 and received considerable critical comment. The BLM published the Final EIS in December 2003 to open parts of the NWPA to leasing. The FEIS adopted the Preferred Alternative of the draft EIS, opening the BLM administered lands in the NWPA to leasing subject to certain significant limitations. The BLM would defer for 10 years any leasing on the western most portion of the NWPA, consisting of approximately 17 percent of the proposed area; the FEIS identified the Kasegaluk Lagoon as a special area because of important migratory bird and marine mammal habitat. It imposed no surface occupancy restrictions along the coastal areas and deep water lakes, comprising about 16 percent of the area, and imposed stipulations on development that included set back restrictions and seasonal prohibitions on exploration and development in several of the areas richest in wildlife resources.

Under the plan, the leases are to be offered as individual parcels that vary in size and are identified by number. At the time this record was developed, only a relatively small proportion of the parcels had received bids and only a few leases had been issued. Of the 488 parcels available for leasing, approximately 120 received bids. No exploration had begun.

In assessing the environmental impact of the leasing program for purposes of preparing the FEIS, the BLM had no way of knowing what, if any, areas subsequent exploration would find most suitable for drilling. Thus, it did not do an analysis of any specific parcels.

The BLM did do an analysis of the possible effects of drilling in the climatic environment of the region. That analysis projected two hypotheticals, representing each end of the available spectrum of possibilities. On the basis of experiences in drilling elsewhere in Alaska, the BLM projected types of drilling and patterns of development that might ensue, if, under the first scenario, half of the available parcels were leased for exploration, but no actual development occurred, and, in the second scenario if the total resources available in the area were to be discovered and developed.

The FEIS conducted an analysis under each scenario for each of the natural resources affected in the area, as, for example, water, wildlife, and specific bird species. Because the analysis was based upon hypothetical future projections of what might be undertaken in the exploration and development phases, and was conducted on a resource by resource basis, the EIS did not attempt to examine the impact on specific parcels. That is what gives rise to this litigation.

Plaintiffs filed this action in the United States District Court for the District of Alaska on February 16, 2004. Their principal claim was that by not undertaking a parcel by parcel analysis of the environmental consequences of projected exploration and drilling, the BLM had failed to satisfy the NEPA requirement of site specific analysis. The district court held that the resource by resource analysis of the effects of development in the overall area to be offered for leasing satisfied the site specific analysis requirement of NEPA. It also rejected the plaintiffs' secondary NEPA challenges and their claim that there was a violation of the ESA. This appeal followed.

DISCUSSION

This court reviews de novo the district court's grant of summary judgment upholding an agency decision. Natural Resources Defense Council v. U.S. Dept. Of Interior, 113 F.3d 1121, 1123 (9th Cir. 1997). The appropriate inquiry under the Administrative Procedure Act ("APA") is whether the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). NEPA requires an EIS to address:

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Edwardsen v. United States Department of the Interior, 268 F.3d 781, 784 (9th Cir.2001); see also 42 U.S.C. § 4332(2)(C)(i)-(v).

Ultimately, NEPA requires federal agencies to issue an EIS before undertaking "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.11 (1985). A court's inquiry, when reviewing whether an agency complied with NEPA, is whether the agency adequately considered a project's potential impacts and whether the consideration given...