Edwardsen v. US. Dept. of the Interior

• Decision Date: 26 September 2001
• Docket Number: INTERVENOR-RESPONDENTS,No. 99-71397,99-71397
• Citation: 268 F.3d 781
• Parties: (9th Cir. 2001) CHARLES EDWARDSEN, JR., BILL TEGOSEAK, ABEL AKPIK, ROSEMARY AHTUANGARUAK, JOSEPH AKPIK, MABEL KALEAK, GREENPEACE, INC., PETITIONERS, v. UNITED STATES DEPARTMENT OF THE INTERIOR, MINERALS MANAGEMENT SERVICE, RESPONDENT, AND BP EXPLORATION (ALASKA) INC., STATE OF ALASKA,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 781

268 F.3d 781 (9th Cir. 2001)

CHARLES EDWARDSEN, JR., BILL TEGOSEAK, ABEL AKPIK, ROSEMARY AHTUANGARUAK, JOSEPH AKPIK, MABEL KALEAK, GREENPEACE, INC., PETITIONERS, v. UNITED STATES DEPARTMENT OF THE INTERIOR, MINERALS MANAGEMENT SERVICE, RESPONDENT, AND BP EXPLORATION (ALASKA) INC., STATE OF ALASKA, INTERVENOR-RESPONDENTS.

No. 99-71397

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 8, 2001

Filed September 26, 2001

Jennifer B. App and Michael J. Frank, Trustees for Alaska, Anchorage, Alaska, for the petitioner Greenpeace, Inc.

Nancy S. Wainwright, Anchorage, Alaska, for individual petitioners.

Mark R. Haag, U.S. Department of Justice for the respondents.

Frederick R. Anderson, Jonathan R. Stone and David F. Williams, Cadwalader, Wickersham & Taft, Washington, D.C., for the intervenor-respondent.

Appeal from the United States Department of the Interior

Before: Schroeder, Chief Judge, T.G. Nelson and Silverman, Circuit Judges.

Schroeder, Chief Judge:

Since 1978, the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331 et seq., has set forth the procedures for administrative approval of offshore oil drilling on the Outer Continental Shelf. In this case, six native Alaskans and the environmental organization Greenpeace, Inc., seek review of the Secretary of the Interior's approval of the development and production plan ("DPP") for the Northstar oil and gas development project, located off the north coast of Alaska in the Beaufort Sea. Petitioners ("Edwardsen") challenge both the adequacy of the final environmental impact statement ("EIS") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the compliance of the oil discharge prevention and contingency plan ("spill response plan") with the requirements of § 4202(a) of the Oil Pollution Act of 1990 ("OPA"), codified at 33 U.S.C. § 1321(j). We have jurisdiction to review the NEPA claims. We lack jurisdiction, however, to review the spill response plan, because it was approved in a separate agency action and OPA vests review of such plans in the district court. See 33 U.S.C. § 1321(n).

BACKGROUND

BP Exploration (Alaska), Inc. ("BPXA") seeks to produce oil from Northstar, an oil and gas reservoir that extends from two to eight miles off the north coast of Alaska in the Beaufort Sea. It is a harsh environment: the average annual temperature is eleven degrees Fahrenheit, and ice covers coastal areas of the sea for at least nine months each year.

Undeterred by the severe climate conditions, a number of animal species make their home in the Beaufort Sea and on its shores. These include caribou and the endangered bowhead whale. For over 4,000 years, the area has also been home to the Inupiat Eskimo, whose traditional subsistence lifestyle includes the hunting of caribou and bowhead whales.

Beneath the Beaufort Sea, the Northstar reservoir contains an estimated 158 million barrels of oil reserves. The state and federal governments sold leases to this field in 1979. The federal leases account for about twenty percent of the reserves, and state leases make up the remainder. Exploration began in 1983.

BPXA acquired the rights of the original lessees in 1995 and applied for federal, state, and local approval to begin producing oil from the Northstar reservoir. BPXA proposes to reconstruct and expand Seal Island, an artificial gravel island located near the center of the Northstar reservoir on state submerged lands. BPXA plans to drill oil and gas production wells, gas injection wells, and waste disposal wells from Seal Island. Some wells are to be in the federal portions of the reservoir. A six-mile-long pipeline, buried beneath the sea floor, will carry oil from Seal Island to the shore. A second pipeline, submerged in the same trench as the oil pipeline, will carry natural gas to Seal Island for use as fuel. On shore, the oil pipeline will run for eleven miles above ground to a connection with the Trans-Alaska Pipeline. The Trans-Alaska Pipeline will transport Northstar oil to Valdez, Alaska. From there, tankers will carry the oil to ports in the western U.S. and abroad. Production from the project is expected to last fifteen years.

BPXA applied to the U.S. Army Corps of Engineers (the "Corps") for permits under Section 404 of the Clean Water Act, 33 U.S.C. § 1344, and Section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403, and to the Minerals Management Service of the U.S. Department of the Interior ("MMS") for approval of the DPP under OCSLA, 43 U.S.C. § 1351.

In 1995, the Corps determined that the issuance of a permit would constitute a "major Federal action" that would require the preparation of an EIS. The MMS and the U.S. Environmental Protection Agency ("EPA") followed suit in 1996. A single EIS was prepared by the Corps, as lead federal agency, in conjunction with the MMS, the U.S. Fish and Wildlife Service, National Marine Fisheries Service, and the EPA, with the assistance of a third-party contractor funded by BPXA. In July 1999, the MMS adopted the EIS "for use in its decision." Two months later, the MMS approved the DPP, in accordance with the recommendation of the state of Alaska.

In October 1999, the petitioners sought review of the MMS' approval of the DPP in this court. Petitioner Greenpeace, Inc., is an international environmental organization. The individual petitioners are Inupiat Eskimos who maintain that the approval of Northstar threatens their ability to continue hunting, fishing, and gathering traditional subsistence resources.

DISCUSSION

A. NEPA Claims

OCSLA, as amended in 1978, identifies four distinct stages in the development of an offshore oil well on the Outer Continental Shelf. See Secretary of the Interior v. California, 464 U.S. 312, 336-337 (1984). "The four stages are: (1) formulation of a five year leasing plan by the Department of the Interior; (2) lease sales; (3) exploration by the lessees; (4) development and production. Id. at 337. The final stage--development and production--is at issue here."

Before commencing development and production, the lessee must submit a development and production plan to the Department of the Interior for approval. See 43 U.S.C. § 1351(a)(1). The required scope and contents of the DPP are defined by 43 U.S.C. § 1351(c) and 30 C.F.R.§ 250.204. The Secretary must forward the DPP to the governor of any affected state and, upon request, to any affected local government. 43 U.S.C. § 1351(a)(3). The Secretary is required to accept the recommendations of the governor upon determining that they "provide for a reasonable balance between the national interest and the well-being of the citizens of the affected State." 43 U.S.C. § 1345(c). The Secretary's action to approve, require modification of, or disapprove a DPP is subject to judicial review only in the United States Court of Appeals for the circuit in which the affected state is located. 43 U.S.C. § 1349(c)(2).

Edwardsen contends that in approving the DPP, the Secretary, acting through the MMS, erred by relying upon an environmental impact statement ("EIS") that did not comply with the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. NEPA requires federal agencies proposing "major Federal actions " that may significantly affect the quality of the human environment to prepare a detailed EIS. See 42 U.S.C. § 4332(2)(C). NEPA does not expressly provide for judicial review. See Daniel R. Mandelker, NEPA Law and Litigation § 4.03(2) (2d ed. 2000). Because the alleged NEPA violation arises under OCSLA, which provides for exclusive jurisdiction in the court of appeals, we have original jurisdiction over the NEPA claim. See id.; cf. Nat'l Parks and Conservation Ass'n v. FAA, 998 F.2d 1523, 1527-28 (10th Cir. 1993) (exercising original jurisdiction over alleged NEPA violations under the statutory review provision of the FAA Act).

We review an EIS under a rule of reason to determine whether it contains a "reasonably thorough discussion of the significant aspects of probable environmental consequences." Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1376 (9th Cir. 1998) (holding an EIS inadequate for failing to comply with the National Forest Management Act, failing to consider cumulative effects, and insufficiently discussing mitigating measures) (quotation marks and citation omitted). We must ensure that the agency took a "hard look" at environmental impacts. Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 473 (9th Cir. 2000). In our review, we must not substitute our judgment for that of the agency. Id.

1. Direct and Indirect Effects

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.

42 U.S.C. § 4332(2)(C)(i)-(v) (2000). "Impacts" and "effects" include direct and indirect effects. See 40 C.F.R. § 1508.8 (2000). Direct effects are those that the proposed action causes and that occur at the same time and place as the action. 40 C.F.R. § 1508.8(a) (2000). Indirect effects are "caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." 40 C.F.R.§ 1508.8(b) (2000).

Edwardsen argues that the EIS contains an inadequate analysis of direct and indirect effects because it does not include a site-specific oil spill trajectory analysis. The OCSLA regulations the MMS promulgated that relate to the EIS do not require a lessee to conduct a site-specific analysis of the...