Oceana v. Bureau of Ocean Energy Mgmt., Civil Action No.: 12-0981 (RC)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRUDOLPH CONTRERAS
PartiesOCEANA, et al. Plaintiffs, v. BUREAU OF OCEAN ENERGY MANAGEMENT, et al., Defendants. AMERICAN PETROLEUM INSTITUTE, et al., Intervenor-Defendants
Docket NumberCivil Action No.: 12-0981 (RC)
Decision Date31 March 2014

OCEANA, et al. Plaintiffs,
v.
BUREAU OF OCEAN ENERGY MANAGEMENT, et al., Defendants.
1
AMERICAN PETROLEUM INSTITUTE, et al., Intervenor-Defendants

Civil Action No.: 12-0981 (RC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Dated: March 31, 2014


Re Document No.: 60, 63, 68

MEMORANDUM OPINION

GRANTING FEDERAL-DEFENDANTS' MOTION FOR SUMMARY JUDGMENT;
GRANTING INTERVENOR-DEFENDANTS' MOTION FOR SUMMARY JUDGMENT;
DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On April 20, 2010, the Deepwater Horizon, a deep-water exploratory oil rig, exploded, caught fire, and sank in the Gulf of Mexico, resulting in the largest oil spill in the United States in modern history. Less than two years later, the Bureau of Ocean Energy Management ("BOEM"), approved two lease sales in the area where the Deepwater Horizon spill occurred. The plaintiffs bring this action challenging BOEM's approval of those lease sales under the National Environmental Policy Act, the Administrative Procedure Act, and the Endangered Species Act. The plaintiffs also bring suit against the National Marine Fisheries Service

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("NMFS") for failing to issue a Biological Opinion in the wake of the oil spill in violation of the Administrative Procedure Act. All parties2 moved for summary judgment. For the reasons that follow, the Court will grant all the defendants' motions for summary judgment, and deny the plaintiffs' motion for summary judgment.

II. FACTUAL BACKGROUND

A. Statutory Landscape

1. Outer Continental Shelf Lands Act ("OCSLA")

The Outer Continental Shelf ("OCS") "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 Interior, 563 F.3d 466, 472 (D.C. Cir. 2009). In 1953, Congress enacted the Outer Continental Shelf Lands Act of 1953, 43 U.S.C. § 1331, et seq., "to authorize federal leasing of the OCS for oil and gas development." Sec'y of the Interior v. California, 464 U.S. 312, 336 (1984). In 1978, the OCSLA was amended "to provide for the 'expeditious and orderly development, subject to environmental safeguards,' of resources on the OCS." Id. (quoting 43 U.S.C. § 1332(3)).

The OCSLA provides a four-step process for the development of the OCS. See id. at 337; see also Ctr. for Biological Diversity, 563 F.3d at 473. The first stage of the development process requires the Department of the Interior ("Department") to create a nationwide five-year leasing program. See 43 U.S.C. § 1344(a) ("The Secretary . . . shall prepare and periodically

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revise, and maintain an oil and gas leasing program . . . . The leasing program shall consist of a schedule of proposed lease sales . . . which he determines will best meet national energy needs for the five-year period following its approval or reapproval."). The second stage allows the Secretary to solicit bids and issue leases for offshore leasing areas. See 43 U.S.C. § 1337. After a lease is approved, a lessee may conduct ancillary activities, which include geological and geophysical explorations and development, and surveys. See 30 C.F.R. § 550.207. The third stage is known as the exploration stage; during this stage, the Secretary reviews the lessee's exploration plan ("EP"). See 43 U.S.C. § 1340. The final stage is known as development and production, and during this stage, the Secretary reviews the development and production plan of the lessee for the purposes of actually producing oil and gas from the leaseholds. See 43 U.S.C. § 1351. The phase at issue in this case is the second stage—the lease sale stage.3

2. National Environmental Policy Act ("NEPA")

NEPA was enacted in 1970 "to promote efforts which will prevent or eliminate damage to the environment and biosphere . . . ." 42 U.S.C. § 4321. The Act provides that federal agencies shall "include in every recommendation or report on . . . major Federal 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 . . . ." 42 U.S.C. § 4332(2)(C). This is known as the Environmental Impact Statement ("EIS"). NEPA regulations explain that the "primary purpose

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of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government." 40 C.F.R. § 1502.1. The "heart of the environmental impact statement" is the analysis of alternatives. 40 C.F.R. § 1502.14. 40 C.F.R. § 1502.14 provides that the agency shall, inter alia, "[r]igorously explore and objectively evaluate all reasonable alternatives," "[d]evote substantial treatment to each alternative considered," and "[i]nclude the alternative of no action" in its analysis. 40 C.F.R. §§ 1502.14(a), (b), (d).

3. Endangered Species Act ("ESA")

Section 7(a) of the ESA requires federal agencies to "insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species . . . ." 16 U.S.C. § 1536(a)(2). In fulfilling this obligation, "each agency shall use the best scientific and commercial data available." Id. If a proposed agency action "may affect" a listed species, federal agencies are required to formally consult with either the National Marine Fisheries Service ("NMFS") or the Fish and Wildlife Service ("FWS"), depending on whether the species is marine or terrestrial. see Pl.'s Mot. Summ. J. 5 n.3, ECF No. 60; see also 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.01(b); 50 C.F.R. § 402.14(a). Following formal consultation, the NMFS (in this case) must issue a written statement known as a Biological Opinion, explaining how the proposed action will affect the species or its habitat. See Bennett v. Spear, 520 U.S. 154, 158 (1997) (citing 16 U.S.C. § 1536(b)(3)(A)).

Section 7(d) of the ESA states that "[a]fter initiation of consultation," the relevant agency "shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any

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reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section." 16 U.S.C. § 1536(d).

B. Lease Sales in the Gulf of Mexico

The Gulf of Mexico ("GOM") is a unique and important part of the American landscape and economy. It "includes one of the most extensive estuary systems in the world," "produces more than one-third of the nation's domestic seafood supply," and is home to many endangered species, such as the sperm whale, the West Indian manatee, several species of sea turtles, beach mice, the whooping crane, and the gulf sturgeon. See Am. Compl. ¶¶ 43-45. At the same time, the OCS of the Gulf of Mexico is responsible for 20% of total U.S. crude oil production. See Intervenor-Def.'s Cross-Mot. Summ. J. 17, ECF No. 68.

To understand the importance of the lease sales at issue here, it is helpful to wade into the Gulf of Mexico's recent OCS lease sale history. In April 2007, BOEM4 published a Multisale EIS, which covered eleven lease sales planned for in the Gulf of Mexico. See Am. Compl. ¶ 46, see also Outer Continental Shelf (OCS), Western and Central Gulf of Mexico (GOM), Oil and Gas Lease Sales for Years 2007-2012, 72 Fed. Reg. 18,667 (April 13, 2007). Three of these eleven Lease Sales, Lease Sales 206, 216, and 222, were located in the Central Planning Area ("CPA") of the Gulf of Mexico—where the Deepwater Horizon spill took place. See Am. Compl. ¶ 46. Another one of the eleven leases was located in the Western Planning Area ("WPA") of the Gulf of Mexico, Lease Sale 218. Am. Compl. ¶ 47. In September 2008, after Congress repealed a moratorium on drilling, BOEM issued a Supplemental EIS for seven lease sales that had been covered in the 2007 Multisale EIS, called the 2009-2012 Supplemental EIS. Am. Compl. ¶ 57; see also AR2433-2917.

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On April 20, 2010, a deep-water exploratory oil rig known as the Deepwater Horizon, caught fire and exploded, releasing almost five million barrels of oil into the Gulf over the course of many weeks and months. "The Deepwater Horizon blowout produced the largest accidental marine oil spill in U.S. history, an acute human and environmental tragedy." See National Commission on the BP Deepwater Horizon Oil Spill & Offshore Drilling, Deepwater: The Gulf Oil Disaster and the Future of Offshore Drilling, Report to the President, at 173.5

As of the Deepwater Horizon6 oil spill in 2010, there were two lease sales remaining in the Gulf under the 2007 Multisale EIS: Lease Sale 218 and Lease Sale 222 (which was combined with Lease Sale 216 in 2012). Am. Compl. ¶ 58. In light of...

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