Center for Biological v. U.S. Dept. of Interior

• Decision Date: 17 April 2009
• Docket Number: No. 07-1247.,No. 07-1344.,07-1247.,07-1344.
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, Petitioner v. UNITED STATES DEPARTMENT OF the INTERIOR, Respondent American Petroleum Institute, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

563 F.3d 466

CENTER FOR BIOLOGICAL DIVERSITY, Petitioner v. UNITED STATES DEPARTMENT OF the INTERIOR, Respondent American Petroleum Institute, Intervenor.

No. 07-1247.

No. 07-1344.

United States Court of Appeals, District of Columbia Circuit.

Argued October 17, 2008.

Decided April 17, 2009.

On Petitions for Review of an Order of the Department of Interior.

William J. Snape III argued the cause for petitioner Center for Biological Diversity. On the briefs were Matthew Vespa, Andrea A. Treece, Miyoko Sakashita, and Brendan R. Cummings.

Peter H. Van Tuyn argued the cause and filed the briefs for petitioners Native Village of Point Hope, et al. James B. Dougherty entered an appearance.

Janis M. Searles was on the brief for amici curiae Ocean Conservancy, et al. in support of petitioners.

Deborah A. Sivas was on the brief for amici curiae W. Michael Hanemann and Charles Kolstad in support of petitioners.

Sambhav N. Sankar, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was Ryan D. Nelson, Deputy Assistant Attorney General. Katherine W. Hazard, Attorney, entered an appearance.

Steven J. Rosenbaum argued the cause for intervenor. With him on the brief were Theodore L. Garrett, Mark W. Mosier, and Erik G. Milito.

Before: SENTELLE, Chief Judge, and GINSBURG and ROGERS, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

Concurring opinion filed by Circuit Judge ROGERS.

SENTELLE, Chief Judge:

In August 2005, the United States Department of Interior (Interior) began the formal administrative process to expand leasing areas within the Outer Continental Shelf (OCS) for offshore oil and gas development between 2007 and 2012. This new five-year Leasing Program included an expansion of previous lease offerings in the Beaufort, Bering, and Chukchi Seas off the coast of Alaska. Petitioners filed independent petitions for review challenging the approval by the Secretary of the Interior (Secretary) of this Leasing Program on various grounds. Specifically, Petitioners argue that: (1) the Leasing Program violates both the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. §§ 1331-1356a, and the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370f, because Interior failed to take into consideration both the effects of climate change on OCS areas and the Leasing Program's effects on climate change (the climate change claims); (2) the Leasing Program also violates both OCSLA and NEPA because Interior approved the Program without conducting sufficient biological baseline research for the three Alaskan seas, and further failed to provide a research plan detailing how it would obtain this baseline data before the next stage of the Program; (3) Interior violated the Endangered Species Act of 1973(ESA), 16 U.S.C. §§ 1531-1544, by failing to consult with either the U.S. Fish and Wildlife Service (Fish and Wildlife) or the National Marine Fisheries Service (NMFS) about potential harm to endangered species in the OCS planning areas before it adopted the Leasing Program; and (4) the Leasing Program violates OCSLA because it irrationally relied on an insufficient study by the National Oceanographic and Atmospheric Administration (the NOAA study) in assessing the environmental sensitivity of the OCS planning areas in the Leasing Program. We hold that Petitioners' NEPA-based climate change claim, Petitioners' NEPA baseline data claim, and Petitioners' ESA claim are not yet ripe for review. We therefore dismiss the petition with respect to these claims.

Nevertheless, we conclude that Petitioners' remaining OCSLA-based challenges are all justiciable. Of these three remaining claims, Petitioners' OCSLA-based climate change claims and their OCSLA-rooted baseline data challenge ultimately lack merit and must fail. However, we find meritorious Petitioners' challenge to the Leasing Program on grounds that the Program's environmental sensitivity rankings are irrational. Accordingly, we vacate the Leasing Program, and remand the Program to the Secretary for reconsideration in accordance with this opinion.

I. BACKGROUND

A. Introduction

The Outer Continental Shelf is an area of submerged lands, subsoil, and seabed that lies between the outer seaward reaches of a state's jurisdiction and that of the United States. 43 U.S.C. § 1331(a). The OCS generally extends from 3 miles to 200 miles off the United States coast. This action concerns a Leasing Program approved by Interior that includes a potential expansion of previous lease offerings in the Beaufort, Bering, and Chukchi Seas off the coast of Alaska. Each of these seas is home to a number of species of wildlife. For instance, the Beaufort and Chukchi Seas are home to two polar bear populations. The North Pacific right whale, an endangered marine mammal, is known to inhabit the Bering Sea. Bowhead whales are also known to feed and migrate through each of these seas. In addition, a number of other species of whale, seals, the Pacific walrus, and various seabirds are indigenous to these seas.

Three petitioners—Center for Biological Diversity, Alaska Wilderness League, and Pacific Environment—are non-profit activist organizations whose members have been working to preserve and protect the waters and living environments off the coast of Alaska. The remaining petitioner—the Native Village of Point Hope, Alaska—is a federally recognized tribal government whose members use the Chukchi Sea coast for subsistence hunting, fishing, whaling, and gathering, as well as cultural and religious activities.

B. Outer Continental Shelf Lands Act

OCSLA establishes a procedural framework under which Interior may lease areas of the OCS for purposes of exploring and developing the oil and gas deposits of the OCS's submerged lands. See 43 U.S.C. §§ 1334, 1337; see also California v. Watt (Watt I), 668 F.2d 1290, 1295-1300 (D.C.Cir.1981). In order to ensure "the expeditious but orderly development of OCS resources," Watt I, 668 F.2d at 1297 OCSLA provides that Interior undertake a four-stage process in order to develop an offshore oil well. See Sec'y of the Interior v. California, 464 U.S. 312, 337, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984). As we noted in Watt I, the leasing program's four-stage process is "pyramidic in structure, proceeding from broad-based planning to an increasingly narrower focus as actual development grows more imminent." Watt I, 668 F.2d at 1297. This multi-tiered approach was designed "to forestall premature litigation regarding adverse environmental effects that ... will flow, if at all, only from the latter stages of OCS exploration and production." Sec'y of Interior, 464 U.S. at 341, 104 S.Ct. 656.

First, during the preparation stage, Interior creates a leasing program by preparing a five-year schedule of proposed lease sales. 43 U.S.C. § 1344. At this stage, "prospective lease purchasers acquire no rights to explore, produce, or develop" any of the areas listed in the leasing program. Sec'y of Interior, 464 U.S. at 338, 104 S.Ct. 656. Second, during the lease-sale stage, Interior solicits bids and issues leases for particular offshore leasing areas. 43 U.S.C. § 1337(a). Third, during the exploration stage, Interior reviews and determines whether to approve the lessees' more extensive exploration plans. 43 U.S.C. § 1340. Interior allows this exploration stage to proceed only if it finds that the lessees' exploration plan "will not be unduly harmful to aquatic life in the area, result in pollution, create hazardous or unsafe conditions, unreasonably interfere with other uses of the area, or disturb any site, structure, or object of historical or archeological significance." 43 U.S.C. § 1340(g)(3). Fourth and final is the development and production stage. During this stage, Interior and those affected state and local governments review an additional and more detailed plan from the lessee. 43 U.S.C. § 1351. If Interior finds that the plan would "probably cause serious harm or damage ... to the marine, coastal or human environments," then the plan, and consequently the leasing program, may be terminated. 43 U.S.C. § 1351(h)(1)(D)(i).

The Leasing Program at issue has only completed its first stage—preparation of the five-year program under Section 18 of OCSLA, 43 U.S.C. § 1344. Under Section 18, the Secretary is required to prepare, periodically revise, and maintain "an oil and gas leasing program" that consists of "a schedule of proposed lease sales indicating, as precisely as possible, the size, timing, and location of leasing activity which he determines will best meet national energy needs for the five-year period following its approval or reapproval." 43 U.S.C. § 1344(a). The Secretary must prepare and maintain a leasing program consistent with several principles. First, the Secretary must ensure that a leasing program is "conducted in a manner which considers economic, social, and environmental values of the renewable and nonrenewable resources contained in the [OCS], and the potential impact of oil and gas exploration on other resource values of the [OCS] and the marine, coastal, and human environments." 43 U.S.C. § 1344(a)(1). Second, the Secretary must consider additional factors with respect to the timing and location of exploration, development, and production of oil and gas in particular OCS areas. These factors include, inter alia: a region's "existing information concerning the geographical, geological, and ecological characteristics"; "an equitable sharing of developmental benefits and environmental risks among the various regions"; "the interest of potential oil and gas producers in the development of oil and gas resources"; "the relative environmental sensitivity and marine productivity of different areas of the [OCS]"; and "relevant environmental and predictive information for different areas of the [OCS]." 43 U.S.C §§ 1344(a)(2)(A), (B), (E), (G), (H). Next, Interior must ensure, ...