Center for Biological Diversity v. Bernhardt, No. 18-73400 (9th Cir. 2020)
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CBD filed suit challenging the legality of BOEM's and FWS's actions, arguing that the agencies failed to comply adequately with the procedural requirements imposed by the National Environment Policy Act (NEPA), the Endangered Species Act (ESA), and the National Marine Fisheries Services (MMPA). Relying on a biological opinion prepared by FWS and BOEM's own environmental impact statement (EIS), BOEM's Regional Supervisor of Leasing and Plans signed a record of decision approving the Liberty project, an offshore drilling and production facility. The site of the Liberty project is governed by the Outer Continental Shelf Lands Act (OCSLA).
After determining that it had jurisdiction over CBD's claims, the Ninth Circuit vacated BOEM's approval of the Liberty project, concluding that BOEM acted arbitrarily and capriciously by failing to quantify the emissions resulting from foreign oil consumption in its EIS as required by NEPA, or, at least, explaining thoroughly why it cannot do so and summarizing the research upon which it relied. The panel also held that FWS violated the ESA by (1) relying upon uncertain, nonbinding mitigation measures in reaching its no-adverse-effect conclusion in its biological opinion, and (2) failing to estimate the Liberty project's amount of nonlethal take of polar bears. Because FWS's biological opinion is flawed and unlawful, the panel concluded that BOEM's reliance on FWS's opinion is arbitrary and capricious. The panel granted in part and denied in part the petition for review, remanding for further proceedings.
Court Description: Appellate Jurisdiction / Environmental Law. The panel granted in part, and denied in part, a petition for review brought by plaintiff conservation groups challenging the U.S. Department of Interior’s Bureau of Ocean Energy Management (“BOEM”)’s approval of the Liberty project – an offshore drilling and production facility along the coast of Alaska in the Beaufort Sea; vacated BOEM’s approval of the project; and remanded to the agency for further proceedings. The site of the Liberty project is governed by the Outer Continental Shelf Lands Act (“OCSLA”). Before Hillcorp Alaska, LLC could begin drilling, it had to obtain approval of the Liberty project from BOEM. Three environmental statutes and their concomitant regulations governed BOEM’s approval: the National Environmental Policy Act (“NEPA”); the Endangered Species Act (“ESA”); and the Marine Mammal Protection Act of 1973. Relying on a biological opinion prepared by the U.S. Fish and Wildlife * The Honorable Leslie E. Kobayashi, United States District Judge for the District of Hawaii, sitting by designation. CTR. FOR BIO. DIVERSITY V. ZINKE 3 Service and BOEM’s environmental impact statement (“EIS”), BOEM’s Regional Supervisor of Leasing and Plans signed a record of decision approving the Liberty project. The panel held that it had original jurisdiction over plaintiff’s challenge to BOEM’s approval of the Liberty project under the OCSLA’s 43 U.S.C. § 1349(c)(2), which included plaintiff’s challenge to the EIS prepared under NEPA and the biological opinion prepared under the ESA. The panel held that it also had jurisdiction over plaintiff’s claims that BOEM’s conditional approval of the Liberty project violated the ESA. The panel further held that the two statutes relevant to plaintiff’s Section 7 ESA claim – the OCSLA and the ESA - had conflicting jurisdictional provisions, and it would follow the more specific statute – the OCSLA. The OCSLA bifurcated jurisdiction between the courts of appeal and district courts. The panel concluded that under the OCSLA, it had jurisdiction to review whether BOEM’s approval violated the ESA. The panel concluded that BOEM acted arbitrarily and capriciously by failing to quantify the emissions resulting from foreign oil consumption in its EIS as required by the NEPA, or, at least, explaining thoroughly why it could not do so and summarizing the research upon which it relied. The panel also held that the Fish and Wildlife Service violated the ESA by (1) relying upon uncertain, nonbinding mitigation measures in reaching its no-adverse-effect conclusion in its biological opinion, and (2) failing to estimate the Liberty project’s amount of nonlethal take of polar bears. Because the panel concluded that Fish and Wildlife Service’s biological opinion was flawed and unlawful, the panel further concluded that BOEM’s reliance on the Fish and Wildlife Service’s opinion was arbitrary and 4 CTR. FOR BIO. DIVERSITY V. ZINKE capricious. In all other respects, the panel denied the petition for review.
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