Gulf Restoration Network v. Bernhardt, Civil Action No. 18-1674 (RBW)

• Decision Date: 21 April 2020
• Docket Number: Civil Action No. 18-1674 (RBW)
• Citation: 456 F.Supp.3d 81
• Parties: GULF RESTORATION NETWORK, et al., Plaintiffs, v. David BERNHARDT, in his official capacity as Secretary of the United States Department of the Interior, et al., Defendants, and American Petroleum Institute, et al., Intervenor-Defendants.
• Court: U.S. District Court — District of Columbia

456 F.Supp.3d 81

GULF RESTORATION NETWORK, et al., Plaintiffs,

v. David BERNHARDT, in his official capacity as Secretary of the United States Department of the Interior, et al.,¹ Defendants,andAmerican Petroleum Institute, et al., Intervenor-Defendants.

Civil Action No. 18-1674 (RBW)

United States District Court, District of Columbia.

Signed April 21, 2020

Brettny Elaine Hardy, Pro Hac Vice, Earthjustice, San Francisco, CA, Christopher D. Eaton, Pro Hac Vice, Stephen D. Mashuda, Earthjustice, Seattle, WA, for Plaintiffs Gulf Restoration Network, Center for Biological Diversity.

Stephen D. Mashuda, Earthjustice, Seattle, WA, for Plaintiff Sierra Club.

Thomas Wayne Ports, Jr., U.S. Department of Justice, Washington, DC, for Defendants Ryan Zinke, Joseph Balash, U.S. Department of the Interior, Bureau of Ocean Energy Management.

Steven J. Rosenbaum, Bradley K. Ervin, Covington & Burling LLP, Washington, DC, for Intervenor-Defendant American Petroleum Institute.

John Charles Martin, Holland & Hart LLP, Nikesh Jindal, King & Spalding LLP, Washington, DC, Sarah C. Bordelon, Holland & Hart LLP, Reno, NV, for Intervenor-Defendant Chevron U.S.A. Inc.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiffs, Gulf Restoration Network, Sierra Club, and the Center for Biological Diversity (collectively, the "plaintiffs"), filed this civil action for declaratory and injunctive relief against the United States Department of the Interior (the "Department"); David Bernhardt, in his official capacity as the Secretary of the Interior (the "Secretary"); Casey Hammond, in his official capacity as the Acting Assistant Secretary of Land and Minerals Management; and the Bureau of Ocean Energy Management ("BOEM") (collectively, the "federal defendants"), "challeng[ing] the [allegedly] unlawful decisions by [the federal defendants] ... to hold Offshore Lease Sale[ ] 250 [ (‘Lease Sale 250’) ] and [Offshore Lease Sale] 251 [ (‘Lease Sale 251’) ] in the Gulf of Mexico in reliance on arbitrary environmental analyses" pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 – 4370m-12 (2018), and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 – 706 (2018). Complaint for Declaratory and Injunctive Relief ("Compl." or the "Complaint") ¶ 1. The American Petroleum Institute ("API") and Chevron U.S.A. Inc. ("Chevron") (collectively, the "intervenor-defendants") join the federal defendants in defending this action. Currently pending before the Court are (1) the Plaintiffs’ Motion for Summary Judgment and Request for a Hearing ("Pls.’ Mot."), (2) the Federal Defendants’ Cross-Motion for Summary Judgment and Opposition to Plaintiffs’ Motion for Summary Judgment ("Fed. Defs.’ Mot."), (3) the American Petroleum Institute's Cross-Motion for Summary Judgment ("API's Mot."), and (4) Chevron U.S.A. Inc.’s Cross-Motion for Summary Judgment ("Chevron's Mot."). Upon careful consideration of the parties’ submissions,² the Court concludes for the following reasons that it must deny the plaintiffs’ motion for summary judgment and grant the federal defendants’ and the intervenor-defendants’ (collectively, the "defendants") cross-motions for summary judgment.

I. BACKGROUND

A. Statutory and Regulatory Background

1. The NEPA

Congress enacted the NEPA for the purpose of "promot[ing] efforts which will prevent or eliminate damage to the environment and biosphere[.]" 42 U.S.C. § 4321 ; see also id. § 4371. To advance these objectives, the NEPA provides that a federal agency shall include, inter alia,

in every recommendation or report on ... major [f]ederal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, [and] (iii) alternatives to the proposed action[.]

Id. § 4332(C). This statement is commonly referred to as an environmental impact statement ("EIS"). See Oceana v. Bureau of Ocean Energy Mgmt., 37 F. Supp. 3d 147, 151 (D.D.C. 2014). The pertinent regulations implemented pursuant to this provision of the NEPA require the agency to prepare a programmatic EIS in certain circumstances. See 40 C.F.R. § 1508.25. A supplement to the programmatic EIS is required when either "the agency makes substantial changes in the proposed action that are relevant to environmental concerns[,]" id. § 1502.9(c)(1)(i), or "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts[,]" id. § 1502.9(c)(1)(ii).

Where NEPA analysis is required, its role is primarily information-forcing .... It is now well-established that [the] NEPA imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions. It is equally clear that [the] NEPA does not impose a duty on agencies to include in every EIS a detailed explanation of specific measures which will be employed to mitigate the adverse impacts of a proposed action.

Indian River Cty., Fla. v. U.S. Dep't of Transp., 945 F.3d 515, 522 (D.C. Cir. 2019). Thus, "because [the] NEPA's requirements are ‘essentially procedural,’ the statute does ‘not mandate particular substantive environmental results.’ Instead, [the] NEPA ‘focus[es] Government and public attention on environmental effects of proposed agency action.’ " Id. at 522–23 (fourth alteration in original) (citation omitted) (quoting Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66, 68 (D.C. Cir. 2011) ). The NEPA requirements "simply ... ensure that the agency has adequately considered and disclosed the environmental impacts of its actions." Id. at 523 (alteration in original) (quoting WildEarth Guardians v. Jewell, 738 F.3d 298, 308 (D.C. Cir. 2013) ).

2. The Outer Continental Shelf Lands Act

"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." Ctr. for Biological Diversity v. U.S. Dep't of the Interior, 563 F.3d 466, 472 (D.C. Cir. 2009). The Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. §§ 1331 – 1356b (2018), "establishes a procedural framework under which [the] [Department] may lease areas of the [Outer Continental Shelf] for purposes of exploring and developing the oil and gas deposits of the [Outer Continental Shelf's] submerged lands." Id. The

OCSLA's mandate that [the] [Department] manage mineral leases in the Outer Continental Shelf encompasses four distinct stages of regulatory responsibility: (1) formulation of a five year leasing plan by the Department ...; (2) lease sales; (3) exploration by lessees; [and] (4) development and production. Each stage involves separate regulatory review[,] and it is well established that [the] NEPA's requirements apply of their own force to each stage of the OCSLA regulatory process.

Ctr. for Biological Diversity v. Zinke, 260 F. Supp. 3d 11, 18 (D.D.C. 2017) (fourth and fifth alterations in original) (citation and internal quotation marks omitted).

Relevant to this case, "during the lease-sale stage, [the] [Department] solicits bids and issues leases for particular offshore leasing areas." Ctr. for Biological Diversity, 563 F.3d at 473 (citing 43 U.S.C. § 1337(a) ).

B. Factual Background

1. The Parties

The plaintiffs are three environmental non-profits and networks, see Compl. ¶¶ 13–15; cf. Fed. Defs.’ Answer ¶¶ 13–15; API's Answer ¶¶ 13–15; Chevron's Answer ¶¶ 13–15, and the federal defendants are the agencies and officials charged with administering lease sales under the OCSLA, see Compl. ¶¶ 17–20; Fed. Defs.’ Answer ¶¶ 17–20; API's Answer ¶¶ 17–20; Chevron's Answer ¶¶ 17–20. Specifically, (1) the Department is "the federal department with authority, through the Secretary, under [the] OCSLA to hold lease sales for oil and gas rights on the Outer Continental Shelf and to issue leases[,]" Compl. ¶ 19; cf. Fed. Defs.’ Answer ¶ 19; API's Answer ¶ 19; Chevron's Answer ¶ 19; (2) the Secretary "is the chief officer of the Department ... charged with overseeing the proper administration and implementation of the ... OCSLA[,]" Compl. ¶ 17; cf. Fed. Defs.’ Answer ¶ 17; API's Answer ¶ 17; Chevron's Answer ¶ 17; (3) the BOEM "is the federal agency within the Department ... to which the Secretary has delegated authority under [the] OCSLA to hold lease sales for oil and gas rights on the Outer Continental Shelf[,]" id. ¶ 20; cf. Fed. Defs.’ Answer ¶ 20; API's Answer ¶ 20; Chevron's Answer ¶ 20; and (4) the Assistant Secretary of Land and Minerals Management "is the official to whom the Secretary delegated authority to sign records of decision to hold lease sales under [the] OCSLA[,]" id. ¶ 18; cf. Fed. Defs.’ Answer ¶ 18; API's Answer ¶ 18; Chevron's Answer ¶ 18. API is a "trade association of the oil and natural gas industry[,]" whose "members are deeply engaged in the exploration for and development of offshore oil and gas resources as leaseholders, lease operators, and service companies, including in the Gulf of Mexico." API's Mot. to Intervene at 2. Chevron "conducts operations in the [Outer Continental Shelf] in the Gulf of Mexico and has participated in a number of lease sales, including the [l]ease [s]ales challenged in the Complaint." Chevron's Mot. to Intervene at 4.

2. Lease Sales 250 and 251

In November 2016, the Department began developing the 2017–2022 Five Year Outer Continental Shelf Leasing Program (the "2017–2022 program"), which proposed "a schedule of [eleven] potential lease sales in four [Outer Continental Shelf] planning areas[,] [including] ten sales in the [Gulf of Mexico] Program Area." AR 4269. Lease Sales 250 and 251, the subjects of the plaintiffs’ legal challenge, were included in the 2017–2022 program proposed lease sale...