North Carolina v. Raimondo
| Decision Date | 20 September 2021 |
| Docket Number | 2:20-CV-59-FL |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | STATE OF NORTH CAROLINA, Plaintiff, v. GINA M. RAIMONDO, U.S. Secretary of Commerce, in her official capacity; RICHARD W. SPINRAD, Under Secretary of Commerce for Oceans and Atmosphere, in his official capacity; and the NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, Defendants.[1] |
This case is before the court on defendants' motion to dismiss for lack of jurisdiction (DE 11), and plaintiff's motion to vacate agency decision (DE 17). The motions have been briefed fully, and the issues raised are ripe for ruling. For the following reasons, defendants' motion is granted in part and denied in part, and plaintiff's motion is granted.
Plaintiff commenced this action on August 26, 2020, under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. seeking judicial review of defendants' decision (the “decision” or “defendants' decision”) overruling plaintiff's objection to a seismic survey that non-party, WesternGeco, proposed to conduct in the Atlantic Ocean off of the North Carolina coastline (the “seismic survey”). Plaintiff seeks a declaration that defendants violated the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq, and the Administrative Procedure Act, by issuing the decision; an order holding unlawful and setting aside the decision; and costs and fees.
Defendants filed the instant motion to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), September 4, 2020, correspondence from WesternGeco to defendants withdrawing an application for a permit to conduct the seismic survey, and providing notice that it is no longer planning to conduct the seismic survey. Defendants also rely upon an order entered in case South Carolina Coastal Conservation League v. Ross, No. 2:18-CV-3326-RMG (D.S.C. Oct. 6, 2020), dismissing without prejudice that action as moot.
Plaintiff responded in opposition to the motion to dismiss, and filed the instant motion to vacate agency decision, on January 11 2021. Plaintiff relies upon a complete copy of its objection to the seismic survey, which is referenced in the complaint. Defendants thereafter replied in support of their motion and responded in opposition to plaintiff's motion. Finally plaintiff replied in support of its motion.
The facts alleged in the complaint may be summarized as follows. Providing context to the challenged agency action in this case, the complaint first includes statutory and regulatory background, which the court incorporates herein in part for ease of reference.
The Outer Continental Shelf Lands Act allows the United States to grant “oil and gas lease[s] on submerged lands of the Outer Continental Shelf.” 43 U.S.C. §§ 1331, 1337(a)(1). It also allows the Secretary of the Interior to “authorize[]” “any person” to “conduct geological and geophysical explorations” on areas of the outer continental shelf that are not leased. 43 U.S.C. § 1340(a)(1).
The Department of the Interior's Bureau of Ocean Energy Management administers a regulatory program governing geological and geophysical exploration “on unleased lands” of the outer continental shelf. 30 C.F.R. § 551.2(a). Any person “must have a [Bureau of Ocean Energy Management]-approved permit to conduct [geological and geophysical] exploration . . . for oil, gas, or sulphur resources” on unleased lands of the outer continental shelf. Id. § 551.4(a). The seismic survey at issue in this case is proposed to occur on unleased lands of the outer continental shelf and therefore requires a permit from the Bureau of Ocean Energy Management.
The Coastal Zone Management Act allows each “coastal state” to adopt a “management program” “to guide public and private uses of lands and waters in the coastal zone” and to submit such program to the Secretary of Commerce “for review and approval.” 16 U.S.C. § 1453(4), (12), § 1454. North Carolina's “coastal zone” extends three miles into the Atlantic Ocean. Id. § 1453(1); 43 U.S.C. § 1312.
After a state's management program has been approved, any applicant for a federal permit to conduct any activity affecting any land or water use or natural resource of the state's coastal zone must provide the state with a certification. The applicant must certify “that the proposed activity complies with the enforceable policies of the state's approved program and that such activity will be conducted in a manner consistent with the program.” 16 U.S.C. § 1456(c)(3)(A).
As pertinent here, for a state to secure the right to require that a federal permit applicant submit a Coastal Zone Management Act consistency certification, the state must notify the permit applicant that its unlisted activity has reasonably foreseeable coastal effects and therefore is subject to the Coastal Zone Management Act consistency process. See 15 C.F.R. §§ 930.53(a)(2), 930.54.
Following the submission of a certification by a federal permit applicant, the state may notify the federal permitting agency whether “the state concurs with or objects to the applicant's certification.” 16 U.S.C. § 1456(c)(3)(A).
If the state objects to a consistency certification for a federal permit, the permit applicant may “appeal” the objection to the Secretary of Commerce. 15 C.F.R. Part 930, Subpart H. According to the complaint, this is not an appeal in the traditional sense. The Coastal Zone Management Act does not task the Secretary with determining whether the State properly objected to the certification. Instead, the Secretary determines whether the State's objection should be overridden. See id. §§ 930.120 -.121.
One basis on which the Secretary may override a State's objection is a finding by the Secretary that “the activity is consistent with the objectives of” the Coastal Zone Management Act. 16 U.S.C. § 1456(c)(3)(A). In order for the Secretary to make this finding, the proposed activity must, inter alia, “further[] the national interest as articulated in § 302 or § 303 of the [Coastal Zone Management] Act, in a significant or substantial manner.” 15 C.F.R. § 930.121.
If a federal permit applicant is required to submit a consistency certification, the federal permitting agency may not issue the permit over a State's objection unless the Secretary of Commerce overrides that objection. 16 U.S.C. § 1456(c)(3)(A). The Secretary delegated to National Oceanic and Atmospheric Administration the authority to perform functions prescribed in the Coastal Zone Management Act, including administering and deciding consistency appeals such as the one at issue in this case.
According to the complaint, seismic surveying is a technique for collecting data regarding oil and gas deposits beneath the bed of the ocean. To conduct a seismic survey, a vessel tows dozens of airguns just below the water surface, which emit a blast roughly every ten to fifteen seconds, and the echoes thereof are recorded by listening devices.
The data generated by the blasts and echoes is analyzed to yield information about what oil and gas deposits, if any, might lie beneath the ocean floor. According to the complaint, the sounds emitted by seismic survey airguns are among the loudest that humans regularly introduce into the ocean and can propagate hundreds of miles through the water. Due to reverberation, noise levels allegedly remain elevated even between pulses over fifty miles from the survey vessel. While a survey is underway, there is allegedly no “quiet time” in the water over an expansive radius around the vessel. (Compl. ¶ 23). “A single [seismic] survey can continue for months at a time and operate day and night.” (Id. ¶ 24).
In April 2014, WesternGeco applied to the Bureau of Ocean Energy Management for a permit to conduct its seismic survey in the Atlantic Ocean. According to the complaint, “WesternGeco proposes to conduct a two-dimensional survey using one vessel to tow an array of twenty-four airguns.” (Id. ¶ 26). “Seismic operations are planned for approximately 208 days over a period of about a year.” (Id.). The survey area would stretch from South Carolina's southern boundary to Virginia's northern boundary and include the entire length of North Carolina's coast. The blue polygon in the figure below, which is excerpted from the complaint, shows the areal extent of the survey.
(Id. ¶ 25).
The complaint alleges that a number of uses and resources of North Carolina's coastal zone would be adversely affected by the proposed seismic survey. “These uses and resources include commercial and recreational fishing, tourism, research and endangered species.” (Id. ¶ 27). For example, according to the complaint, “the noise from airguns can affect marine life while species are in state waters even if the airguns never enter state waters.” (Id. ¶ 28). In addition, “species may be affected by the noise emanating from airguns while in federal waters, and then return to state waters in an injured state, or fail to return at all due to impacts from the airguns.” (Id. ¶ 29). Thus, according to the complaint, “seismic surveying will negatively affect North Carolina's commercial and recreational fisheries, ” as well as “threatened and endangered species, ” such as the right whale, loggerhead turtle, and other resources of the coastal zone. (Id. ¶¶ 34-40).
“In addition to the survey project proposed by WesternGeco in this case, four other companies . . . are also seeking permits to conduct seismic surveys of the Atlantic [outer continental shelf] during the same period.” (Compl ¶ 41). “The surveys will...
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