Alaska Wilderness League v. Jewell

788 F.3d 1212

ALASKA WILDERNESS LEAGUE; Center for Biological Diversity, Inc.; Greenpeace, Inc.; National Audobon Society, Inc.; Natural Resources Defense Council, Inc. ; Ocean Conservancy, Inc.; Oceana, Inc.; Pacific Environment and Resources Center; REDOIL, Inc. ; Sierra Club, Plaintiffs–Appellants

v. Sally JEWELL, Secretary of the Interior; Brian Salerno, Director of Bureau of Safety and Environmental Enforcement; Mark Fesmire, Regional Director of Bureau of Safety and Environmental Enforcement, Alaska Region, Defendants–AppelleesShell Gulf of Mexico Inc.; Shell Offshore Inc., Intervenor–Defendants–Appellees.

No. 13–35866.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 13, 2014.

Filed June 11, 2015.

Holly A. Harris (argued), Brettny E. Hardy, and Eric P. Jorgensen, Earthjustice, Juneau, AK, for Plaintiffs–Appellants.

Maggie B. Smith (argued), Attorney; Robert G. Dreher, Acting Assistant Attorney General, and David B. Glazer, Bridget Kennedy McNeil, Kent E. Hanson, and David C. Shilton, Attorneys, United States

Department of Justice, Environment and Natural Resources Division, Washington, D.C.; Sarah Doverpike, Office of the Solicitor, Department of the Interior, Washington, D.C., for Defendants–Appellees Sally Jewell, Brian Salerno, and Mark Fesmire.

Kathleen Sullivan (argued), William B. Adams, and David S. Mader, Quinn Emmanuel Urquhart & Sullivan LLP, New York, NY; Kyle W. Parker, Crowell & Moring LLP, Anchorage, AK, for Intervenors–Defendants–Appellees.

Appeal from the United States District Court for the District of Alaska, Ralph R. Beistline, Chief District Judge, Presiding. D.C. Nos. 3:12–cv–00048–RRB, 1:12–cv–00010–RRB.

Before: JEROME FARRIS, DOROTHY W. NELSON, and JACQUELINE H. NGUYEN, Circuit Judges.

Dissent by Judge D.W. NELSON.

OPINION

NGUYEN, Circuit Judge:

Shell Gulf of Mexico Inc. and Shell Offshore Inc. (collectively “Shell”) for many years have sought to develop offshore oil and gas resources in the remote Beaufort and Chukchi seas on Alaska's Arctic coast. Shell secured leases for the Beaufort Sea in 2005 and 2007, and the Chukchi Sea in 2008, but its exploration efforts have been waylaid by a variety of legal, logistical, and environmental problems, including multiple lawsuits,¹ the wreck of one of its drill rigs,² and the temporary suspension of drilling activities in the Arctic after the Deepwater Horizon Spill.³ We review here another challenge, a claim by a coalition of environmental groups that the Bureau of Safety and Environmental Enforcement (“BSEE”) acted unlawfully in approving two of Shell's oil spill response plans (“OSRPs”). The district court granted summary judgment in favor of the federal defendants and intervenor-defendant Shell. We affirm.

BACKGROUND

I.The Statutory Schemes

We begin with an overview of the complex statutory backdrop to BSEE's approval of the OSRPs in this case.

The Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq., establishes a four-stage process for the exploration and development of offshore oil and gas resources. First, the Secretary of the Interior prepares and maintains a five-year oil and gas leasing program. 43 U.S.C. § 1344(a). Second, the Secretary may grant oil and gas leases for submerged lands in the outer continental shelf at a lease sale, subject to certain terms and provisions. See id. § 1337(a)-(b). Third, a lessee must “submit an exploration plan to the Secretary for approval,” id. § 1340(c)(1), accompanied by an Oil Spill Response Plan required under the Clean Water Act, see 30 C.F.R. § 550.219 (the approval of which is at issue in this case). In the fourth and final phase, if exploration reveals oil or gas, a lessee must then submit “a development and production plan” for the Secretary's approval. 43 U.S.C. § 1351(a)(1). Each stage triggers certain environmental analysis, and the Bureau of Ocean Energy Management (“BOEM”) is responsible for managing the process, including the necessary environmental reviews. See Native Vill. of Point Hope v. Salazar, 680 F.3d 1123, 1128 (9th Cir.2012).

While OCSLA governs the development of oil and gas resources, the Clean Water Act provides a framework for preventing and responding to potential oil spills. See 33 U.S.C. § 1321(b). The Clean Water Act mandates oil spill contingency planning at four levels: the national, regional, and area levels, and, lastly, at the level of individual owners and operators of offshore oil facilities. First, at the national level, the President prepares a National Contingency Plan that sets forth “efficient, coordinated, and effective action to minimize damage from oil and hazardous substance discharges.” Id. § 1321(d)(2). Second, Regional Response Teams, co-chaired by the Environmental Protection Agency and the Coast Guard, prepare Regional Contingency Plans that coordinate “planning, preparedness, and response activities” across federal agencies, “states, local governments, and private entities.” 40 C.F.R. § 300.105(a) ; see also id. at 300.115. Third, Area Committees prepare Area Contingency Plans that, “when implemented in conjunction with the National Contingency Plan, [are] adequate to remove a worst case discharge, and to mitigate or prevent a substantial threat of such a discharge.”33 U.S.C. § 1321(j)(4)(C)(i).

Fourth and finally, and most relevant to this litigation, the President must promulgate regulations that require owners and operators of offshore oil facilities⁴ to submit an OSRP “for responding, to the maximum extent practicable, to a worst case discharge ... of oil or a hazardous substance.” Id. § 1321(j)(5)(A)(i). The Secretary of the Interior delegated this responsibility to BSEE.⁵

56 Fed.Reg. 54,757, 54,761 –62 (Oct. 18, 1991); 76 Fed.Reg. 64,432 –01, 64,448 (Oct. 18, 2011). OSRPs must comply with the Clean Water Act's six requirements, listed at 33 U.S.C. § 1321(j)(5)(D), one of which is compliance with the governing Area Contingency Plan. Id. § 1321(j)(5)(D)(i) ; 30 C.F.R. § 550.219. BSEE must “promptly review” submitted plans, “require amendments to any plan that does not meet the requirements of this paragraph,” and “shall ... approve any plan that meets” the statutory requirements. Id. § 1321(j)(5)(E)(i)-(iii) (emphasis added).

Environmental consultation occurs at several points throughout both OCSLA and the Clean Water Act's four-tiered processes. National Environmental Policy Act (“NEPA”) and Endangered Species Act (“ESA”) consultations occur when oil and gas exploration leases are first issued (at OCSLA's second stage), 43 U.S.C. § 1344(a)(1) & (b)(3) ; see also Sec'y of the Interior v. California, 464 U.S. 312, 338, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984), and again when lessee exploration plans are submitted (at OCSLA's third stage), 43 U.S.C. § 1340(c). Additional environmental review takes place upon submission of lessee development and production plans (OCSLA's fourth stage), including another round of NEPA review, see id. § 1351(c), and the submission of environmental impact statements (“EIS”) to the governors of any affected states, id. § 1351(f) -(g). The Secretary may “approve, disapprove, or require modifications” of development plans, and must reject any plan that would “probably cause serious harm or damage to ... the marine, coastal, or human environments,” when weighed against the extent of the threat and the potential advantages of allowing production. Id. § 1351(h)(1).

Likewise, the Clean Water Act has several types of environmental review built in throughout its various stages. At the Area Contingency Plan level, Area Committees must consult with both the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration to prepare “a detailed annex containing a Fish and Wildlife and Sensitive Environments Plan” that “provide [s] the necessary information and procedures to immediately and effectively respond to discharges that may adversely affect” the environment. 40 C.F.R. § 300.210(c)(4)(I). An operator's OSRP must be consistent with the protocols established at this stage. See 33 U.S.C. § 1321(j)(5)(D)(i). The National Contingency Plan also lays out procedures for emergency consultation in the case of an actual oil spill. See 40 C.F.R. § 300.305(e).

II.The Current Dispute

The case before us arises in the context of these overlapping statutory schemes, and represents “the latest chapter in a long-running saga beginning back in April 2002, when the Minerals Management Service (“MMS”) established a five-year lease sale schedule for the outer continental shelf of Alaska.” Native Vill., 680 F.3d at 1126. After Shell acquired offshore oil leases in the Beaufort Sea in 2005 and 2007, and in the Chukchi Sea in 2008, it submitted exploration plans, and the required OSRPs, for activities that were scheduled to commence in the summer of 2010. MMS, which was then in charge of approving exploration plans and OSRPs, id. at 1127, approved Shell's Beaufort Sea OSRP in March of that year and approved Shell's Chukchi Sea OSRP the following month.

The April 2010 Deepwater Horizon oil spill in the Gulf of Mexico shifted the landscape in a number of ways. BOEM assumed control over the approval of exploration plans, and BSEE assumed responsibility for approving OSRPs. Id. at 1128. Also, following a moratorium on all oil and gas drilling, the Department of the Interior issued new guidance regarding the content and analysis that should be provided in OSRPs. See, e.g., U.S. Department of the Interior, Bureau of Ocean Energy Management, Regulation, and Enforcement, Information Requirements for Exploration Plans, Development and Production Plans, and Development Operations Coordination Documents on the OCS 3 (2010), available at http://www.boem.gov/Regulations/Notices–To–Lessees/2010/10–n06. aspx.⁶ In response, Shell updated its OSRPs for the Chukchi and Beaufort Seas in May 2011, and again in early 2012. BSEE approved the two OSRPs in February and March of 2012, respectively.

Following these approvals, ...