Ocean Advocates v. U.S. Army Corps of Engineers
| Decision Date | 15 March 2004 |
| Docket Number | No. 01-36133.,No. 01-36144.,01-36133.,01-36144. |
| Citation | 361 F.3d 1108 |
| Parties | OCEAN ADVOCATES, a non-profit organization; Fuel Safe Washington, a non-profit organization; North Cascades Audubon Society, a non-profit organization; Dan Crawford, an individual; Re Sources, a non-profit organization, Plaintiffs-Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS; Ralph H. Graves, Defendants-Appellees, BP West Coast Products, LLC, f/k/a Atlantic Richfield Company, Intervenor-Appellee. Ocean Advocates, a non-profit organization; Fuel Safe Washington, a non-profit organization; North Cascades Audubon Society, a non-profit organization; Dan Crawford, an individual; Re Sources, a non-profit organization, Plaintiffs-Appellees, v. United States Army Corps of Engineers; Ralph H. Graves, Defendants-Appellants, BP West Coast Products, LLC, f/k/a Atlantic Richfield Company, Intervenor-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John B. Arum, Seattle, WA, for the plaintiff-appellant.
Claudia M. Newman, Seattle, WA, for the plaintiff-appellant.
Elaine Spencer, Seattle, WA, for the defendant-intervenor-appellee/cross-appellant.
Ronald M. Spritzer, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for the defendant-appellee.
Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CV-00-01971-RSL.
Before: D.W. NELSON, THOMAS, Circuit Judges, and PREGERSON, District Judge.*
Ocean Advocates (OA), an environmental group, appeals a summary judgment ruling in favor of the U.S. Army Corps of Engineers (the Corps) and BP West Coast Products (BP).1 OA challenges the issuance and extension of a permit allowing BP to build an addition to its existing oil refinery dock in Cherry Point, Washington. OA argues that the district court erred in granting summary judgment to the Corps and BP, insisting that the permit violates the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, and the Magnuson Amendment to the Marine Mammal Protection Act (MMPA), 33 U.S.C. § 476. BP cross-appeals the district court's denial of its motion for summary judgment on grounds that OA lacks standing and that laches bars this action.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.
Cherry Point is an approximately ten-mile stretch of coastline located in the Strait of Georgia in northeast Puget Sound. It has been described as "a shoreline of statewide significance," by the Whatcom County Hearing Examiner.
BP first constructed a refinery to process Alaskan North Slope crude oil in Cherry Point, south of Point Whitehorn, in 1971. The 1969 permit authorizing this project allowed BP to construct a dock to which tankers would deliver crude oil.
The dock design included two platforms: one for unloading crude oil and one for loading refined product. Just before construction began, BP opted to build only the southern platform and deferred building the northern platform until production at the refinery reached capacity or the loading and unloading of tankers began to interfere with refinery operations. Physical adjustments enabled the southern platform both to unload crude oil and to load refined product so that the dock could function as it would have with both platforms.
BP sought to have the 1969 permit reopened in 1977 so that it could complete the original design of the pier by building the northern platform. Because of the time lapse between granting the original permit and the request to reopen, the Corps required BP to submit a new permit application that would be subject to public notice and comment. BP withdrew the application.
BP again applied for a permit to build the northern platform in 1992. The additional platform would double the refinery's berthing capacity. The existing southern platform would cease to serve the dual functions of unloading crude oil and loading refined oil. Instead, the southern platform would only receive crude oil, while the northern addition would only load refined product.
The Corps provided public notice of the application on June 3, 1992, and received substantive responses from the U.S. Fish and Wildlife Service (FWS), the Lummi Indian Nation, and the Nooksack Indian Tribe.
The FWS raised concerns about the cumulative impact of the construction and operation of the pier when considered together with similar industrial projects in the Strait of Georgia. The FWS worried that the additional platform would facilitate an increase in tanker traffic and product handling, thereby increasing the likelihood of a major oil spill. Three years after the public notice, but before the permit was issued, the FWS requested an environmental impact statement (EIS) to assess increased traffic and the cumulative impact of the additional platform.
In response, BP insisted that the dock expansion would decrease the risk of oil spills because the new dock would reduce the amount of time tankers spent anchored at sea while waiting to dock. Therefore, BP argued, the additional dock would diminish the potential for oil spills "during anchorage and bunkering," when ships are most vulnerable. BP also noted that in the event of a spill, the new dock would contain "state of the art" oil spill containment equipment.
Other public comments were similar. The Lummi Indian Nation expressed concern that the new platform would, among other things, increase tanker traffic and the risk of oil spills and requested that the Corps require an EIS before issuing the permit. The Nooksack Indian Tribe had similar misgivings. Its primary worry was that greater vessel traffic would mean increased handling of fuel and other toxic substances, which, in turn, would create a larger risk of harm to fish resources. Both the Lummi Nation and the Nooksack Tribe entered mitigation agreements with BP and ultimately withdrew their objections to the permit.
Meanwhile, the marbled murrelet2 was listed as a threatened species under the Endangered Species Act, 16 U.S.C. §§ 1531-44. See 50 C.F.R. § 17.11 (2002). The Corps accordingly asked BP to consider how the dock addition would affect this bird. BP concluded that although "[m]arbled murrelet[s] are susceptible to death or injury from oil spills" and although "[o]il spills are chance events that could have an impact on local populations of murrelets near Cherry Point," an oil spill containment boom made that already "remote" threat "negligible."
The Corps granted the permit on March 1, 1996, concluding that constructing the northern platform probably would not result in adverse cumulative impacts to fish and wildlife resources in the Cherry Point area. The Corps also agreed with BP that the project would reduce the chance of oil spills while ships anchored because the pier extension would decrease tanker wait time. Moreover, the Corps found that the additional pier likely would diminish the devastation associated with an oil spill during bunkering of tankers at dock because oil spill containment booms would surround the new platform. The Corps also made a Finding of No Significant Impact (FONSI), determining that the pier addition "will not significantly affect the quality of the human environment," and that an EIS therefore was not required.
OA contacted the Corps on October 9, 1997, asking it to reopen the permit granted BP and requesting a more complete evaluation of the cumulative impacts that the new platform would have on vessel traffic safety. OA also asked the Corps to consider whether the permit violated the Magnuson Amendment, 33 U.S.C. § 476, which regulates permits for oil transport terminals in Puget Sound. The Corps declined to reopen or reconsider the permit.
In July 1999, the Washington State Department of Natural Resources (WSDNR) issued a Screening Level Ecological Risk Assessment (SLERA). This report concluded that additional ship traffic associated with the expanded pier would elevate the probability of an oil spill. Although the reduction in temporary anchoring while waiting to dock would decrease the chance of an oil spill, the SLERA noted that the number of vessels using the pier would increase eighteen to thirty-six percent over five years, which would increase the likelihood of an oil spill. This increase in ship traffic would occur, according to the SLERA, whether or not BP built the pier extension.
OA contacted the Corps on September 29, 1999, and again asked it to reconsider the permit. OA argued that the Corps' previous denial of its request to reopen the permit relied on inaccurate information, including that the refinery was operating "at capacity." New data demonstrated that the refinery had increased its output and that the project would promote additional tanker traffic and an increased potential for an oil spill. For these reasons, OA suggested that the permit violated the Magnuson Amendment and requested a "full" EIS.
The Corps asked BP to address OA's concerns. BP continued to allege that the dock extension would benefit the environment by reducing the risk of oil spills; any further environmental analysis was unnecessary. As for the Magnuson Amendment claim, BP pointed to the statutory language, which prohibits permits that "may result in any increase in the volume of crude oil capable of being handled" at a facility. Id. (emphasis added). The new dock could not violate the Magnuson Amendment, BP argued, because the northern pier would load only refined oil. In addition, BP noted that the northern platform would leave the refinery pipes untouched, meaning that the refinery's pumping or hydraulic capacity —...
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