Center for Biological Diversity et al v. Jackson et al, No. 3:2012cv01920 - Document 33 (N.D. Cal. 2012)
Court Description: ORDER GRANTING DEFENDANTS' MOTION TO DISMISS by Judge William Alsup [granting 17 Motion to Dismiss]. (whasec, COURT STAFF) (Filed on 9/4/2012)
Download PDF
<![CDATA[
Center for Biological Diversity et al v. Jackson et al Doc. 33 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 11 For the Northern District of California United States District Court 10 CENTER FOR BIOLOGICAL DIVERSITY, SURFRIDER FOUNDATION, AND PACIFIC ENVIRONMENT, 12 13 14 15 16 17 18 No. C 12-01920 WHA Plaintiffs, v. LISA JACKSON, in her official capacity as Administrator of the United States Environmental Protection Agency; the ENVIRONMENTAL PROTECTION AGENCY; ROBERT J. PAPP, in his official capacity as Commander of the United States Coast Guard; and the UNITED STATES COAST GUARD, ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Defendants. / 19 20 INTRODUCTION 21 In this action brought under Section 7(a)(2) of the Endangered Species Act, defendants 22 move to dismiss claim one of the complaint pursuant to FRCP 12(b)(6). This order agrees that 23 the Act imposes a duty of consultation but holds that the duty to consult is adequately honored 24 under the regulations issued by Environmental Protection Agency. For the following reasons, 25 defendants’ motion is GRANTED. 26 27 28 STATEMENT The complaint in this action was filed by the Center for Biological Diversity, Surfrider Foundation and Pacific Environment against Environmental Protection Agency its administrator Dockets.Justia.com 1 Lisa Jackson and United States Coast Guard and its commander Robert J. Papp. Claim one 2 names only Environmental Protection Agency as defendant. Defendants seek to dismiss only 3 claim one of the complaint. Plaintiffs allege in claim one EPA’s listing of chemical dispersants 4 on the National Contingency Plan Product Schedule triggers a duty, on the part of EPA, to 5 consult pursuant to Section 7(a)(2) of the Endangered Species Act. 6 The coastal waters of California are host to endangered species and their critical habitats 7 including black abalone, loggerhead sea turtles and leatherback sea turtles. The 2010 Deepwater 8 Horizon oil spill in the Gulf of Mexico provided new information that dispersant use may harm 9 listed species or critical habitats. There is not yet long-term data available from Deepwater Horizon but available information indicates dispersants are toxic to aquatic organisms. 11 For the Northern District of California United States District Court 10 Marine Fisheries Service has identified the use of dispersants may be detrimental to jellyfish. 12 Because jellyfish are a primary constituent element to the critical habitat of the leatherback sea 13 turtle; dispersant use would have a negative effect on the leatherback’s critical habitat 14 (Compl. ¶ 84–98). 15 In the event of an oil spill, the federal government’s duties are set forth in the Clean 16 Water Act. Within the executive branch, oil spill removal responsibility has been delegated to 17 EPA and Coast Guard. All removal must be conducted pursuant to the National Contingency 18 Plan. The Clean Water Act requires that the NCP shall include a product schedule. The product 19 schedule, at the time of the filing of the complaint, listed seventeen dispersants including Corexit 20 9500A and 9527A, both which were used in Deepwater Horizon. Currently, there are eighteen 21 dispersants listed (Opp. 18). EPA maintains and updates the product schedule. The Code of 22 Federal Regulations sets forth the process for maintaining the product schedule and the process 23 for adding products to it. 40 C.F.R. 300.905(a) and 300.920. 24 In addition to the NCP, the Clean Water Act requires the development of area and 25 regional contingency plans. Regional and area response teams address the “desirability of using 26 appropriate dispersants . . . listed on the NCP product schedule.” 40 C.F.R. 300.910(a). 27 Generally, only products listed in a preauthorization plan are utilized in a spill situation. Ibid. 28 2 1 The regulations provide for limited exceptions if there is a threat to human life or the spill 2 occurred in an area not covered by a contingency plan. 40 C.F.R. 300.910(b)(c). 3 Claim one alleges EPA’s listing of chemical dispersants on the product schedule triggers 4 a duty, on the part of EPA, to consult pursuant to Section 7(a)(2) of the Endangered Species Act. 5 Defendants seek to dismiss claim one as barred by the statute of limitations and for failure to 6 state claim pursuant to FRCP 12(b)(6). 7 8 9 11 For the Northern District of California United States District Court 10 ANALYSIS Section 7(a)(2) of the Endangered Species Act provides that [e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency. . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species. . . . 12 13 The Clean Water Act directs the President to “prepare and publish a National 14 Contingency Plan for removal of oil and hazardous substances.” 33 U.S.C. 1321(d)(1). 15 The NCP must “provide for efficient, coordinated, and effective action to minimize damage from 16 oil and hazardous substance discharges, including containment, dispersal, and removal of oil and 17 hazardous substances.” 33 U.S.C. 1321(d)(2). Pursuant to Section 1321(d)(2)(G), the NCP shall 18 include a product schedule prepared in cooperation with the States, identifying: 19 (i) dispersants, other chemicals, and other spill mitigating devices and substances, if any, that may be used in carrying out the Plan, 20 21 22 23 24 25 26 27 (ii) the waters in which such dispersants, other chemicals, and other spill mitigating devices and substances may be used, and (iii) the quantities of such dispersant, other chemicals, or other spill mitigating device or substance which can be used safely in such waters, which schedule shall provide in the case of any dispersant, chemical, spill mitigating device or substance, or waters not specifically identified in such schedule that the President, or his delegate, may, on a case-by-case basis, identify the dispersants, other chemicals, and other spill mitigating devices and substances which may be used, the waters in which they may be used, and the quantities which can be used safely in such waters. 28 3 1 The President has delegated his authority to establish and implement the NCP to EPA, Coast 2 Guard and other federal agencies. The NCP regulations, promulgated by EPA, provide for 3 oil-spill contingency planning at the national, regional and area level. 4 Plaintiffs contend the mere listing of a dispersant to the product schedule triggers a 5 consultation requirement under the ESA. The order disagrees and holds that the duty to consult 6 arises only at the plan or implementation stage. 7 This issue turns on whether or not the NCP regulations properly implement the duty to 8 consult pursuant to Section 7 of the ESA. The regulations include two separate agency actions 9 where the duty to consult may arguably be triggered: (i) at the point a dispersant is listed to the product schedule and (ii) at the point contingency planning occurs. Under the regulations, 11 For the Northern District of California United States District Court 10 however, the duty to consult is specified to occur at the contingency planning stage and not the 12 listing stage. As illustrated by 40 C.F.R. 300.210(c)(4)(i), 13 14 15 16 17 18 19 20 21 Area Committees shall incorporate into each ACP a detailed annex containing a Fish and Wildlife and Sensitive Environments Plan that is consistent with the RCP and NCP. The annex shall be prepared in consultation with the USFWS and NOAA and other interested natural resource management agencies and parties. It shall address fish and wildlife resources and their habitat, and shall include other areas considered sensitive environments in a separate section of the annex, based upon Area Committee recommendations. The annex will provide the necessary information and procedures to immediately and effectively respond to discharges that may adversely affect fish and wildlife and their habitat and sensitive environments, including provisions for a response to a worst case discharge. Such information shall include the identification of appropriate agencies and their responsibilities, procedures to notify these agencies following a discharge or threat of` a discharge, protocols for obtaining required fish and wildlife permits and other necessary permits, and provisions to ensure compatibility of annex-related activities with removal operations. 22 In the situation where there is no applicable contingency plan the implementing 23 regulations still call for consultation. Pursuant to 40 C.F.R. 300.910(b), for spill situations not 24 addressed by preauthorization plans 25 26 27 28 the OSC, with the concurrence of the EPA representative to the RRT and, as appropriate, the concurrence of the RRT representative from states with jurisdiction over the navigable waters threatened by the release or discharge, and in consultation with the DOC and DOI natural resource trustees, when practicable, may authorize the use of dispersants. . . provided that the products are listed on the NCP Product Schedule. 4 consultation must also be occur at the listing stage. This order disagrees. The regulatory 3 scheme properly implements Section 7 of the ESA because it provides for consultation before 4 any dispersant is actually used. First, as detailed above, it is unlikely that merely adding a 5 dispersant to the product schedule would result in environmental impact without any 6 consultation. Second, at the listing phase, dispersant use is not authorized because “the listing of 7 a product on the NCP Product Schedule does not constitute approval of the product.” 40 C.F.R. 8 300.920(e). Third, the regulatory scheme expressly provides for consultation at the planning 9 phase. Consultation need only be required once, not twice. The planning stage is the best point 10 to conduct consultation because it can be directed at the specific geographic waters involved and 11 For the Northern District of California Plaintiffs contend that, in addition to the consultations required by the regulation, 2 United States District Court 1 tailored to benefit the species and habitats affected within those waters. Further, Chevron 12 deference is owed to the agency’s judgment in how to best implement the duty to consult. 13 Chevron v. Nat'l Resources Defense Council, 467 U.S. 837, 844 (1984). 14 The case law also supports this interpretation of the statute. Plaintiffs’ rely upon several 15 decisions within our circuit that involve land-management plans to establish the product 16 schedule, like land-management plans, trigger consultation even though the agency action is 17 indirect (Opp. 12). See Citizens for Better Forestry v. U.S. Dep’t Agric., 481 F. Supp. 2d 1095 18 (N.D. Cal. 2007); Pac. Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994); Lane Country 19 Audubon Soc’y v. Jamison, 958 F.2d 290 (9th Cir. 1992). These decisions, however, all involved 20 management plans that set forth criteria for future agency action. Here, at issue is the mere 21 listing of a dispersant to a product schedule, which by itself, cannot lead to future use of the 22 product. The contingency plans are what authorize use. The regulations provide for 23 consultation prior to the use of a dispersant. 24 The Clean Water Act and implementing EPA regulations provide a framework for 25 consultation during the contingency planning phase and not at the listing phase. Plaintiffs’ claim 26 consultation is triggered as well at the listing phase is an incorrect interpretation of the Act. 27 Defendants motion to dismiss claim one pursuant to FRCP 12(b)(6) is GRANTED. 28 * * 5 * 1 This order need not determine if claim one is barred by the statute of limitations because 2 based on statutory interpretation of the Endangered Species Act plaintiffs have failed to state a 3 claim pursuant to FRCP 12(b)(6) . 4 5 6 7 CONCLUSION For the reasons stated, claim one is dismissed without leave to amend, any attempted amendment being futile. The Court hereby orders that defendants shall file and serve the administrative record(s) 8 by OCTOBER 4, 2012. The parties shall file a status report by OCTOBER 19, 2012 indicating 9 whether they are in agreement that the record is complete or whether any party intends to file a motion regarding the completeness of the record or the need for extra-record materials. 11 For the Northern District of California United States District Court 10 By NOVEMBER 16, 2012, plaintiffs will file a motion for summary judgment pursuant to Civil 12 Local Rule 7-2 and FRCP 56. Defendants will serve and file any opposition and counter-motion 13 within 28 CALENDAR DAYS of service of plaintiffs’ motion. Plaintiffs will serve and file their 14 combined opposition and reply within FOURTEEN CALENDAR DAYS after service of defendants’ 15 opposition and counter-motion. Defendants shall file their reply (not to exceed ten pages) 16 within FOURTEEN 17 If, however, the parties are unable to reach agreement regarding the sufficiency of the 18 administrative record, any motion regarding the completeness of the administrative record or 19 the need for extra-record materials shall be filed by NOVEMBER 2, 2012. If any such motions 20 are filed, the parties shall submit, within FOURTEEN CALENDAR DAYS after the Court’s ruling 21 on the motions, a proposed briefing schedule for cross-motions for summary judgment. CALENDAR DAYS of service of plaintiffs’ combined opposition and reply. 22 23 IT IS SO ORDERED. 24 25 Dated: September 4, 2012. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 26 27 28 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
