Louisiana v. Biden
| Decision Date | 23 August 2021 |
| Docket Number | Civil Action 2:21-cv-778 |
| Parties | STATE OF LOUISIANA, ET. AL. v. JOSEPH R. BIDEN, JR., ET. AL. |
| Court | U.S. District Court — Western District of Louisiana |
TERRY A. DOUGHTY JUDGE
REPORT AND RECOMMENDATION
Before the court is defendants' Motion to Dismiss all Claims except for Count VI of the plaintiffs' complaint, a Motion to Dismiss for Lack of Jurisdiction, and a Motion to Dismiss the President of the United States as a defendant. Doc. 128. The motions have been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. 636. The plaintiffs oppose the motions and the defendants have replied. Docs. 124 and 145.
For the reasons stated herein, we RECOMMEND that the court DENY defendants' Motions to Dismiss.
The present suit arises from the issuance of a pause[1] on offshore oil and gas lease sales by President Joseph Biden (“the President”). On January 27, 2021, President Joseph Biden issued Executive Order 14008 (“EO 14008”). Section 208 of the Order provides in pertinent part:
To the extent consistent with applicable law, the Secretary of the Interior shall pause new oil and natural gas leases on public lands or in offshore waters pending completion of a comprehensive review and reconsideration of Federal oil and gas permitting and leasing practices in light of the Secretary of the Interior's broad stewardship responsibilities over the public lands and in offshore waters, including potential climate and other impacts associated with oil and gas activities on public lands or in offshore waters.
Exec. Ord. 14008, Tackling the Climate Crisis at Home and Abroad, 86 Fed. Reg. 7619, 7624-25 (Jan. 27, 2021). In a purported attempt to comply with the executive order agencies within the Department of the Interior (“DOI”) rescinded or postponed all scheduled onshore and offshore lease sales. Doc. 1, pp. 26-36.
On March 24, 2021, plaintiffs[2] filed suit against the President and a number of government officials.[3] Plaintiffs allege that the defendants' actions were contrary to the Mineral Leasing Act (“MLA”) and the Outer Continental Shelf Lands Act (“OCSLA”). Id., p. 4. Plaintiffs bring eight claims under the Administrative Procedure Act (“APA”). Id., pp. 43-48. The APA claims in Counts I and VI request that the court compel specific lease sales since the Bureau of Land Management (“BLM”) and the Bureau of Ocean Energy Management (“BOEM”) have “unlawfully withheld or unreasonably delayed” executions of these lease sales. Id., pp. 43-44, ¶¶ 127-133; pp. 46-47 ¶¶ 156-159. Counts II-V, VII, and VIII ask the court to vacate and enjoin the action of either BOEM or BLM for three different violations of the APA: acting in an “arbitrary and capricious” manner, acting “contrary to law, ” or failing to employ a notice and comment period before acting. Id., pp. 43-48, ¶¶ 141, 146, 150, 155, 163, 167. Alternatively, plaintiffs seek relief under Count IX, which alleges a citizen suit under OCSLA. Id., pp. 48-40, ¶¶ 168-174. Finally, Count X alleges a claim for ultra vires review of the President's issuance of EO 14008. Id., pp. 49-50, ¶¶ 175-177.[4]
On March 31, 2021, plaintiffs filed a Motion for Preliminary Injunction requesting that the district court enjoin defendants from implementing the rescission and postponements of certain lease sales and requesting that the court order the agencies to disregard the pause on new leases. Doc. 3, pp. 1-2. Plaintiffs sought injunctive relief pursuant to the APA. Doc. 3, att. 1, pp. 16-26. After hearing oral argument on the matter, the district court granted the motion and issued the injunction. Docs. 139 and 140. That ruling ordered that the named agency officials[5] be enjoined and restrained nationwide from implementing Executive Order 14008's pause “with respect to Lease Sale 257, Lease Sale 258, and all eligible lands onshore.” Id., p. 43.
On June 7, 2021, the defendants filed the instant motions, seeking dismissal of all claims except for Count VI, [6] and seeking dismissal of the President as a defendant. Doc. 128. Defendants move to dismiss Count X, plaintiffs' ultra vires claim, arguing that the language of EO 14008 is “facially valid” and therefore could not have been in excess of authority. Id., att. 1, pp 18-21. For 12(b)(6) dismissal of Count IX, the OCSLA citizen suit, defendants argue that plaintiffs failed to comply with OCSLA's requirement that a would-be plaintiff provide notice of intent to sue 60 days before filing a citizen suit claim. Id., pp. 23-26. Defendants urge that plaintiffs have not sufficiently alleged that they would have suffered “immediate” harm to their legal interests, which constitutes a statutory exception to OCSLA's 60-day notice requirement for citizen suits. Id. Finally, defendants challenge the jurisdiction of the court and argue that the agency actions at issue are not reviewable under the APA. Id., pp. 26-32. While the APA only allows for review of “final agency action, ” defendants argue and plaintiffs' challenge pertains to a wide-ranging program and not discrete agency actions. Id., pp. 26-29. Even if there were proper “actions” to review, defendants contend that those actions would still not be “final” as they are only temporary pauses on leasing. Id., pp. 29-32.
In their opposition, plaintiffs argue that EO 14008 is invalid on its face as its directives cannot be implemented without contravening applicable law. Doc. 142, pp. 21-23. As to their OCSLA citizen suit claim, plaintiffs contend that their complaint sets out the immediate threat of both economic harm and to harm their statutorily vested legal interest in the notice and comment period of lease sales. Id., pp. 24-25. As to the leasing pause as an APA violation, plaintiffs argue that a decision need not be permanent to be considered “final” and therefore subject to judicial review under the APA. Id., pp. 25-29. They urge that the overarching decision to halt all processes for oil and gas leasing was a clear and discrete agency action. Id., p. 27. Further, the cancellation of specific onshore leases, the rescission of offshore Lease Sale 257, and the halt of Lease Sale 258 were certainly discrete and final agency actions that are subject to judicial review under the APA. Id., pp. 29-32.[7]
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows for dismissal of a claim when a plaintiff “fail[s] to state a claim upon which relief can be granted.” When reviewing such a motion, the court should focus exclusively on the complaint and its attachments. Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir. 2012). The court may also take judicial notice of public records. Papasan v. Allain, 106 S.Ct. 2932, 2935 n.1 (1986). The court reviews such motions “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” Bustos v. Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010). While factual assertions are presumed to be true, “labels and conclusions” and “formulaic recitation of the elements of a cause of action” are not enough to withstand a 12(b)(6) motion. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Additionally, “the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.'” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)). The court's task in evaluating a motion to dismiss under Rule 12(b)(6) is “not to evaluate the plaintiff's likelihood of success, ” but instead to determine whether the claim is both legally cognizable and plausible. Billups v. Credit Bureau of Greater Shreveport, No. 14-401, 2014 WL 4700254 at *2 (W.D. La. Sep. 22, 2014) (quoting Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)).
OCSLA and the MLA are the two comprehensive statutory regimes that govern oil and natural gas development on the Outer Continental Shelf (“OCS”) and on federal lands.
OCSLA directs the Secretary of the Interior (“the Secretary”) to make the OCS “available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs.” 43 U.S.C. § 1332(3). By statute, states benefit economically from oil and gas leasing production on the OCS. OCSLA provides certain coastal states with a percentage of bonuses, rents, royalties, and other revenues arising from oil and gas sales and development. Id. § 1337(g). Several plaintiffs also receive revenues arising from leases under OCSLA's coastal impact assistance program and the Gulf of Mexico Energy Security Act. Id. § 1331(a) note and § 1356a.
OCSLA directs the Secretary to administer a leasing program and to sell exploration interests in portions of the OCS to the highest bidder. Id. § 1334(a) and 1337(a)(1). BOEM, a federal agency under the DOI, oversees the process of offshore oil and gas leasing. The statute sets out a four-stage process for developing federal offshore lands: (1) development of a Five-Year Leasing Program; (2) holding lease sales; (3) exploration of the leased land by the lessees; and (4) development and production. Hornbeck Offshore Servs., L.L.C. v. Salazar, 696 F.Supp.2d 627, 632-33 (E.D. La. 2010) (citing Sec'y of the Interior v. California, 104 S.Ct. 656, 669-70 (1984)).
The first stage of the leasing process promotes dialogue with and input from affected states and local governments. See 43 U.S.C. §§ 1344(c)-(d);1345(a); 1351(a)(3). In developing a Five-Year Program, the Secretary “must solicit comments from interested federal agencies...
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