Sierra Club v. Nat'l Marine Fisheries Serv.

SIERRA CLUB, et al., Plaintiff, v. NATIONAL MARINE FISHERIES SERVICE, et al., Defendants.

Civil Action No. 20-cv-3060-PX

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

May 24, 2021

MEMORANDUM OPINION

Pending in this Administrative Procedure Act (the "APA") and Endangered Species Act (the "ESA") case is the motion to transfer venue filed by Defendants National Marine Fisheries Service ("NMFS") and Chris Oliver, Assistant Administrator for National Oceanic and Atmospheric Administration ("NOAA") Fisheries. ECF No. 16.¹ The matter is fully briefed, and no hearing is necessary. See Loc. R. 105.6. For the following reasons, the motion is DENIED.

I. Background

This matter involves regulating oil and gas activities in land under federal waters known as the Outer Continental Shelf ("OCS"). Located in the Gulf of Mexico, the region of the OCS relevant here (the "Gulf OCS") begins about three miles offshore from the outer boundary of several states including Texas and Louisiana and extends to the outer boundary of the United States' Exclusive Economic Zone located 200 nautical miles from shore. ECF No. 1 ¶ 34; 43U.S.C. §§ 1301(a)(2), 1331 et seq.; 48 Fed. Reg. 10,605 (Mar 14, 1983). As the "epicenter of the nation's offshore oil and gas industry," the Gulf OCS is home to "tens of thousands of active wells, thousands of production platforms, tens of thousands of miles of underwater pipelines" and a commensurate high volume of vessel trips. ECF No. 1 ¶ 3. At the same time, the Gulf OCS is inhabited by scores of endangered or threatened marine species protected under the ESA. Id. ¶ 43. Chief among them are the Bryde's whale and the Kemp's ridley sea turtle, both of whom are at grave risk of extinction. Id. ¶¶ 44-45.

The Outer Continental Shelf Lands Act (the "OCSLA"), 43 U.S.C. § 1331 et seq., proscribes the development of the OCS's oil and gas resources to include leases extended to private corporations to explore, develop and produce oil and gas extracted from the area. The Department of the Interior, through its agencies, is responsible for enforcing safety and environmental standards for offshore oil and gas activities. 30 C.F.R. § 550.101. Section 7 of the ESA applies to federal gas an oil leases extended pursuant to OCSLA. ECF No. 1 ¶ 50. Section 7 mandates federal agencies to ensure that any contemplated agency action "is not likely to jeopardize the continued existence of any endangered [] or threatened species or result in the destruction or adverse modification of habitat of such species[.]" 16 U.S.C. § 1536(a)(2); ECF No. 1 ¶ 5. Accordingly, any agency whose contemplated action "may effect" ESA protected species must first initiate "formal consultation" with the appropriate wildlife service prior to taking any such action. 50 C.F.R. § 402.14(a); ECF No. 1 ¶ 25.

Pertinent to this matter, Defendant NMFS is the federal agency within NOAA that is tasked with ensuring that agency action complies with the ESA as applied to marine species. ECF No. 1 ¶ 20. Defendant Oliver leads these efforts. Id. ¶ 21. Formal consultation requires NMFS to evaluate the current status and environmental baseline of affected species and criticalhabitats, assess cumulative effects on such species and habitats, and ascertain whether effects of the proposed action, when added to the environmental baseline together with any cumulative effects, is likely to jeopardize the continued existence of the species or adversely modify their critical habitats. 50 C.F.R. § 402.14(g).

NMFS memorializes its formal consultation in a biological opinion that sets forth its findings and conclusions. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h). If NMFS concludes adverse effects are likely, it must also propose "reasonable and prudent alternatives" designed to avoid such adverse effects. 16 U.S.C. § 1536(b)(3)(A); ECF No. 1 ¶ 157. NMFS must separately determine whether the proposed agency action is likely to incidentally take members of a listed species even if the action would not jeopardize the species or its habitat on the whole; the opinion must also specify the amount or extent of such takes and propose measures to limit the take. 50 C.F.R. § 402.14(i); ECF No. 1 ¶¶ 31-32; see also 16 U.S.C. § 1532(19) (defining "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct").

Regarding the Gulf OCS, NMFS has conducted several formal consultations in recent decades pertaining to federal oil and gas leases. ECF No. 1 ¶¶ 6, 49-53. After one such consultation in 2007, NMFS issued a biological opinion concluding that the proposed oil and gas activities in the Gulf OCS would not jeopardize ESA protected species or habitats. Id. ¶ 52. NMFS specifically predicted that because the risk of a potentially large oil spill was low, any related harms to the animals and their habitats would be minimal. Id. ¶ 53.

Regrettably, NMFS was flat wrong. In 2010, the Deepwater Horizon oil rig exploded, releasing nearly five million barrels of oil into the Gulf of Mexico or hundreds of times more oil than the worst-case scenario predicted in the 2007 biological opinion. ECF No. 1 ¶ 54. Theexplosion contaminated over 43,000 square miles of surface waters and over 1,300 miles of shoreline and killed or seriously harmed over 100,000 individuals of species listed as threatened or endangered. Id. ¶ 56. A decade later, the affected species and habitats have yet to recover from this disaster. Id. ¶¶ 54-57.

In response, NMFS reinitiated formal consultation to review anew federally authorized OCS oil and gas leases. Id. ¶ 58. After nearly a decade of research, wrangling and associated litigation, the NMFS finally published in March 2020 a 694-page biological opinion on the impact of oil and gas activities in the region. See ECF No. 16-4 (hereinafter the "2020 biological opinion"). The opinion, at bottom, concluded that the proposed action would jeopardize the Bryde's whale but that "reasonable and prudent alternatives" would mitigate related harms. Id. at 624-27. As to the remaining scores of endangered species, the opinion concluded none would be jeopardized by the proposed activity nor would the animal habitats be adversely modified. Id. at 624.

On October 21, 2020, nonprofit conservation and environmental organizations Sierra Club, Center for Biological Diversity, Friends of the Earth, and Turtle Island Restoration Network (collectively "Plaintiffs") filed this action, alleging that the 2020 biological opinion, to include its environmental analyses, proposed reasonable and prudent alternatives, and take analyses, are arbitrary and capricious in violation of the APA and ESA. ECF No. 1. Plaintiffs identify four critical failings of the 2020 biological opinion: (1) failure to correct the flawed analysis that caused NMFS to underestimate the risk of a catastrophic spill like Deepwater Horizon; (2) not accounting for the significant alteration to the endangered species habitats caused by the Deepwater Horizon disaster; (3) not considering climate-related population shifts that would compound the current threats to the endangered species posed by the proposed leasingactivity; and (4) not considering certain sublethal harms to and threats to the recovery of ESA protected species. Id. ¶¶ 63-124. Plaintiffs further aver that the 2020 biological opinion proposes wholly insufficient reasonable and prudent alternatives and fails to set proper "incidental take" parameters under the ESA. Id. ¶¶ 125-141; 156-170. As a result, say Plaintiffs, the 2020 biological opinion is arbitrary and capricious, constitutes an abuse of discretion, is not in accordance with Section 7 of the ESA, and thus must be vacated. Plaintiffs further seek an order that directs NMFS to prepare a "sufficiently protective biological opinion within six months," and ensure that NMFS complies with "the ESA, APA and every other order of this Court." Id. at p. 39.

Defendants now move to transfer this case to the United States District Court for the Southern District of Texas or for the Eastern District of Louisiana. ECF No. 16. For the following reasons, the motion is DENIED.

II. Analysis

The propriety of transfer is governed by 28 U.S.C. § 1404(a), which states, "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." To prevail on their transfer motion, Defendants "must show by a preponderance of the evidence that the proposed transfer will better and more conveniently serve the interests of the parties and witnesses and better promote the interests of justice." Jones v. Koons Auto., Inc., 752 F. Supp. 2d 670, 680-81 (D. Md. 2010) (quoting Helsel v. Tishman Realty & Constr. Co., 198 F. Supp. 2d 710, 711 (D. Md. 2002)) (internal quotation marks omitted). They cannot rely on conclusory allegations of hardship to meet this burden, but rather must demonstrate, by affidavits from witnesses and parties or otherwise, evidence of "thehardships they would suffer if the case were heard in the plaintiff's chosen forum." Dow v. Jones, 232 F. Supp. 2d 491, 499 (D. Md. 2002).

When deciding the propriety of transfer, the Court must first determine whether the action could have been brought in the requested district. In re: Volkswagen of Am., Inc., 545 F.3d 304, 312 (4th Cir. 2008). If venue is proper in the transferee forum, the Court next considers several non-exclusive factors such as "(1) the weight accorded the plaintiff's choice of venue; (2) witness convenience and access; (3) convenience of the parties; and (4) the interest of justice." Lynch v. Vanderhoef Builders, 237 F. Supp. 2d 615, 617 (D. Md. 2002). Importantly the plaintiff's choice of forum is accorded special consideration such that "[u]nless the balance of the factors 'is strongly in favor of the...