Alaska Wilderness League v. Jewell, No. 13-35866 (9th Cir. 2015)
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Plaintiffs filed suit alleging 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. The court concluded that plaintiffs’ claim that BSEE’s approval of the OSRPs was arbitrary and capricious on the ground that Shell assumed an impossibly
high recovery rate fails because the record simply does not support plaintiffs’ claim that Shell assumed an impossibly high recovery rate of almost 100 percent. According deference to the agency's interpretation of its own statute and regulations, the court held that BSEE's approval of the OSRPs was a nondiscretionary act that did not trigger a requirement for inter-agency consultation pursuant to the Endangered Species Act (ESA), 16 U.S.C. 1536(a)(4). Finally, the court concluded that BSEE is not required to prepare an environmental impact statement prior to approving the OSRPs pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. 4332(C). Accordingly, the court affirmed the judgment.
Court Description: Environmental Law. The panel affirmed the district court’s summary judgment in favor of federal defendants and Shell Gulf of Mexico, Inc. and Shell Offshore Inc. in an action brought by environmental groups alleging that the Bureau of Safety and Environmental Enforcement acted unlawfully in approving two of Shell’s oil spill response plans for its oil leases in the Beaufort and Chukchi Seas on Alaska’s Arctic coast. The panel held that the Bureau’s approval of Shell’s oil spill response plans was not arbitrary, capricious, or ALASKA WILDERNESS LEAGUE V. JEWELL 3 otherwise not in accordance with law under the Administrative Procedures Act. Concerning the plaintiffs’ contention that the Bureau should have engaged in Endangered Species Act consultation before approving the plans, the panel applied Chevron analysis to the Clean Water Act provisions. At Chevron Step One, the panel held that the relevant portions of the Clean Water Act were ambiguous; and at Chevron Step Two, the panel held that the Bureau’s interpretation of the provisions was reasonable. The Bureau interpreted the provisions to conclude that Congress limited the Bureau’s discretion to only reviewing an oil spill response plan to determine if it met the six enumerated requirements of 33 U.S.C. § 1321(j)(5)(D), and the implementing regulations. According deference to the Bureau’s interpretation of the Clean Water Act and its own regulations, the panel held that the Bureau lacked discretion to deny approval once it determined that the oil spill response plans satisfied the statutory requirements. The panel concluded that the Bureau’s approval of the plans was a nondiscretionary act that did not trigger a requirement for interagency consultation under the Endangered Species Act. The panel rejected plaintiffs’ contention that the Bureau violated the National Environmental Policy Act by failing to prepare an Environmental Impact Statement before approving the plans. The panel held that the Bureau reasonably concluded that it must approve any plan that met the statutory requirements of the Clean Water Act. The panel concluded that the Bureau’s approval of Shell’s plans was not subject to the requirements of the National Environmental Policy Act. 4 ALASKA WILDERNESS LEAGUE V. JEWELL Judge D.W. Nelson dissented. Judge Nelson concurred with the majority that the Bureau did not act in an arbitrary or capricious manner in approving the plans, but dissented from the remainder of the majority opinion. Judge Nelson would hold that the Bureau was required to engage in Endangered Species Act consultation, and conduct analysis pursuant to the National Environmental Policy Act, and she would reverse the summary judgment accordingly.
The court issued a subsequent related opinion or order on December 29, 2015.
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