United States v. Coal. For Buzzards Bay

• Decision Date: 17 May 2011
• Docket Number: 10–1668.,Nos. 10–1664,s. 10–1664
• Citation: 644 F.3d 26,2011 A.M.C. 1217
• Parties: UNITED STATES et al., Plaintiffs, Appellees,v.COALITION FOR BUZZARDS BAY et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

644 F.3d 26

2011 A.M.C. 1217

UNITED STATES et al., Plaintiffs, Appellees,

v.COALITION FOR BUZZARDS BAY et al., Defendants, Appellants.

Nos. 10–1664

10–1668.

United States Court of Appeals, First Circuit.

Heard April 7, 2011.Decided May 17, 2011.

Seth Schofield, Assistant Attorney General, with whom Martha Coakley, Attorney General, and Pierce O. Cray, Assistant Attorney General, were on brief, for appellants Commonwealth of Massachusetts et al.Jonathan M. Ettinger, Elisabeth M. DeLisle, Amy E. Boyd, and Foley Hoag LLP on brief for intervenor-appellant Coalition for Buzzards Bay.Philip N. Beauregard on brief for Towns of Bourne, Fairhaven, Falmouth, Gosnold, Marion, Mattapoisett, Rochester, Wareham, and Westport, and City of New Bedford, amici curiae.Anisha S. Dasgupta, Attorney, Appellate Staff, Civil Division, United States Department of Justice, with whom Tony West, Assistant Attorney General, Carmen M. Ortiz, United States Attorney, and Mark B. Stern, Attorney, Appellate Staff, were on brief, for federal appellees.C. Jonathan Benner, with whom Jeffrey Orenstein and Reed Smith LLP were on brief, for intervenors-appellees American Waterways Operators et al.Before BOUDIN, SELYA and HOWARD, Circuit Judges.SELYA, Circuit Judge.

Buzzards Bay is a brilliant jewel in the diadem of Massachusetts waters. It comprises an inlet flowing landward from the Atlantic Ocean, thirty miles long and up to ten miles wide. Many people regard it as the gateway to Cape Cod.

The name “Buzzards Bay” is a fluke. Folklore has it that early settlers mistook an indigenous flight of ospreys for buzzards, and the rest is history.

The bay is not only a spectacularly beautiful natural resource but also a major channel of maritime commerce in southeastern Massachusetts. The combined environmental and commercial significance of the bay has sparked a pitched battle between federal and state sovereigns over the nature of preventative measures needed to safeguard against the risk of oil spills. These appeals mark the latest round in that battle.

The overarching question before us involves the Coast Guard's authority to promulgate regulations that preempt state environmental law with respect to tank vessels. But as the proverb teaches, there is many a slip twixt the cup and the lip. Discerning such a slip, we do not reach the preemption question but, rather, hold that, during the rulemaking process, the Coast Guard failed to comply with its obligations under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321–4347. Inasmuch as this bevue was not harmless, we reverse the district court's entry of summary judgment in favor of the Coast Guard, vacate the injunction against the enforcement of state law issued below, and remand for further proceedings.¹

I. BACKGROUND

This case had its genesis in a particularly regrettable maritime misfortune. On April 27, 2003, the Bouchard Barge–120 struck an outcropping of rocks, spilling an estimated 98,000 gallons of oil into Buzzards Bay. Bad things sometimes can lead to good things and, spurred by this incident, the state legislature enacted the Massachusetts Oil Spill Prevention Act (MOSPA), codified as amended primarily at Mass. Gen. Laws ch. 21, §§ 42, 50B–50E; ch. 21M, §§ 1–8. The federal government saw this as a threat to its power to regulate commercial shipping on Buzzards Bay and sued to abrogate certain provisions of the MOSPA. The suit asserted that the challenged provisions of the state statutory scheme were preempted by the Ports and Waterways Safety Act, Pub.L. No. 92–340, 86 Stat. 424, as amended by the Port and Tanker Safety Act, Pub.L. No. 95–474, 92 Stat. 1471, codified at 33 U.S.C. §§ 1221–1232 and scattered sections of 46 U.S.C., and by Coast Guard regulations promulgated thereunder.

The district court (Tauro, J.) granted an injunction. United States v. Massachusetts, 440 F.Supp.2d 24, 48 (D.Mass.2006). The Commonwealth appealed, seeking to reinstate the MOSPA's manning and tug escort requirements for vessels. We vacated the injunction because the district court had not applied the correct analytical model for resolving federal-state regulatory conflicts. United States v. Massachusetts, 493 F.3d 1, 4–5 (1st Cir.2007). The case was remanded for further development of the record. Id. at 4.

With the case pending before the district court, the Coast Guard changed the legal seascape by promulgating a final rule relating to navigation in Buzzards Bay (the 2007 Rule). This rule, unlike the version previously before this court, purported expressly to preempt the challenged provisions of the MOSPA. See 72 Fed.Reg. 50,052, 50,056–57 (Aug. 30, 2007). It established manning and escort requirements limited to Buzzards Bay. See id. at 50,052.

As part of the rulemaking process that culminated in the issuance of the 2007 Rule, the Coast Guard eschewed the preparation of either an environmental impact statement (EIS) or an environmental assessment (EA). It determined instead that its proposed action fell within a categorical exclusion that obviated any such analysis.

There are material differences between the protections afforded by the MOSPA and those afforded by the 2007 Rule. The MOSPA, with an exception not relevant here, requires a tugboat escort for all tank vessels transiting Buzzards Bay that carry 6,000 or more barrels of oil. Mass. Gen. Laws ch. 21M, § 6. The 2007 Rule has a variant tug escort provision, which does not apply at all to double-hulled barges. See 72 Fed.Reg. at 50,054, 50,059. Similar disparities exist as to manning requirements. The MOSPA demands that “[t]he navigation watch on all tow vessels transiting Buzzards bay and carrying 6,000 or more barrels of oil shall consist of at least 1 licensed deck officer or tow vessel operator, who shall serve exclusively as a lookout” and that “[t]hree licensed officers or tow vessel operators shall be on a tow vessel” when it is escorting a tank barge. Mass. Gen. Laws ch. 21M, § 4(a). The MOSPA also establishes crew requirements for tank barges. Id. § 4(b). Once again, the 2007 Rule takes a divergent approach; as to manning requirements, it is in some respects broader than the MOSPA and in some respects narrower. See 72 Fed.Reg. at 50,059.

Due to circumstances beyond the parties' control, the case below was passed from judge to judge to judge. On October 29, 2007, the Coast Guard renewed its motion for an injunction against the enforcement of the challenged MOSPA provisions. While that motion was pending, Judge Lindsay allowed the Commonwealth to file counterclaims alleging that the Coast Guard, in the process of promulgating the 2007 Rule, had violated both the Administrative Procedure Act (APA), 5 U.S.C. §§ 551–559, 701–706, and the NEPA.

In the fall of 2008, the district court (Young, J.), acting in conformity with a magistrate judge's recommendation, preliminarily enjoined the enforcement of the challenged MOSPA provisions. The parties subsequently cross-moved for summary judgment. The magistrate judge recommended that summary judgment enter for the Coast Guard on the ground that the 2007 Rule preempted the challenged MOSPA provisions.

On de novo review, the district court (Woodlock, J.) found a NEPA violation, but concluded that this violation was “essentially harmless” because “the substance of the Coast Guard's actual rulemaking analysis was the functional equivalent of what an environmental impact statement would have generated.” United States v. Massachusetts, 724 F.Supp.2d 170, 174–75 (D.Mass.2010). The court proceeded to overrule the Commonwealth's other objections, found preemption appropriate, entered a declaratory judgment for the Coast Guard, and permanently enjoined enforcement of the controverted portions of the state statute. Id. at 175. These timely appeals followed.

II. NEPA COMPLIANCE

We review an appeal from the entry of summary judgment de novo. URI Student Senate v. Town of Narragansett, 631 F.3d 1, 7 (1st Cir.2011). In the administrative law context, our evaluation is informed by the APA. See Assoc'd Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.1997). That paradigm applies here. Under it, we may set aside agency action if that action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).²

Employing this yardstick, an agency rule fails “if the agency relied on improper factors, failed to consider pertinent aspects of the problem, offered a rationale contradicting the evidence before it, or reached a conclusion so implausible that it cannot be attributed to a difference of opinion or the application of agency expertise.” Assoc'd Fisheries, 127 F.3d at 109.

In this case, our task begins and ends with the issue of NEPA compliance. We focus the lens of our inquiry accordingly.

A. The NEPA Framework.

The NEPA “is our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). It has dual objectives. “First, it ‘places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.’ ” Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (quoting Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). “Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.” Id.

As a means of achieving its twin goals, the NEPA directs federal agencies, “to the fullest extent possible,” to prepare an EIS for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332. Timing is important. If the NEPA's prescribed analysis is to factor into the decisionmaking process as Congress intended, the agency must “consider all significant environmental impacts before choosing a course of action.” Sierra Club v. Marsh, 872 F.2d 497, 502 (1st Cir.1989); see Vt. Yankee, 435...