Northern Alaska Environmental Center v. Department of the Interior, No. 19-35008 (9th Cir. 2020)
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The Ninth Circuit affirmed the district court's grant of summary judgment for federal agencies and officials and ConocoPhillips in an action brought under the National Environmental Policy Act (NEPA) challenging the BLM's 2017 offer and sale of oil and gas leases in the National Petroleum Reserve-Alaska.
The panel first held that plaintiffs' actions are not entirely time barred by the Naval Petroleum Reserves Production Act (NPRPA). To the extent plaintiffs argued that the 2017 lease sale was a distinct federal action requiring a tiered or stand-alone NEPA analysis, the panel found that their challenge is justiciable. Because the panel can reasonably construe the defined scope of the 2012 environmental impact statement (EIS) to include the 2017 lease sale, the panel deferred to BLM's position that the 2012 EIS was the EIS for the 2017 lease sale. Therefore, the panel found that the BLM met the NEPA requirement for the 2017 lease sale of preparing at least an initial EIS, any challenge to the adequacy of which is now time barred. Furthermore, although plaintiffs alleged significant new information and circumstances known to BLM before the 2017 lease sale, the panel stated that the appropriate rubric for considering these allegations—given the existence of an initial EIS—is supplementation, and plaintiffs have waived any supplementation claim.
Court Description: Environmental Law. The panel affirmed the district court’s summary judgment in favor of federal agencies and officials and intervenor ConocoPhillips Alaska, Inc. in a National Environmental Policy Act (“NEPA”) action brought by environmental groups challenging the Bureau of Land Management (“BLM”)’s 2017 offer and sale of oil and gas leases in the National Petroleum Reserve-Alaska (the Reserve). In 2012, BLM published a document styled as a combined Integrated Activity Plan (“IAP”) and Environmental Impact Statement (“EIS”), designed to determine the appropriate management of all BLM-managed lands in the Reserve. In 2017, BLM issued a call for * The Honorable John R. Tunheim, United States Chief District Judge for the District of Minnesota, sitting by designation. NAEC V. USDOI 3 nominations and comments on all unleased tracts for the 2017 lease sale. The panel first held that, to the extent plaintiffs argued that the 2017 lease sale was a distinct federal action requiring a tiered or standalone NEPA analysis, their claims were not barred by the Naval Petroleum Reserves Production Act 60- day limitations period applicable to the 2012 EIS. The panel agreed with the environmental groups that the 2017 lease sale required some form of site-specific analysis, but found that the instant dispute was whether the required analysis had already been prepared. The panel held that the fact that the 2012 EIS provided a programmatic-level analysis for the IAP did not preclude the legal possibility that it also served as the necessary site-specific analysis for future lease sales. The panel also was not persuaded that the degree of site specificity required for the 2017 lease sale was so clearly greater than that reflected in the 2012 EIS that the 2012 EIS could not have covered the 2017 lease sale. The panel declined to inquire whether the 2012 EIS adequately analyzed the impacts of the 2017 lease sale, finding that this approach would rob the statute of limitations of effect in situations where some steps of a previously studied action remain to occur after expiration of the limitations period. The panel also declined to inquire whether the 2017 lease sale was in conformity with the IAP, finding that this approach fails to account for whether members of the public have fair notice of when they should challenge the NEPA compliance of a particular action. Instead, the panel inquired whether the 2012 EIS purported to be the EIS for the 2017 lease sale, as reflected in the 2012 EIS’ defined scope. The panel concluded that 4 NAEC V. USDOI the expressly defined scope of the 2012 EIS was somewhat ambiguous as to this question, but that the language regarding future NEPA requirements provided reasonable notice that the intended scope encompassed actual future lease sales. The panel also found that construing the scope of the 2012 EIS as such was not unreasonable when considering the analysis performed therein and the applicable law. Thus, the panel deferred to BLM’s reasonable position that the 2012 EIS was the EIS for the 2017 lease sale. The panel therefore held that BLM met the NEPA requirement for the 2017 lease sale of preparing at least an initial EIS, any challenge to the adequacy of which is now time barred. Although plaintiffs alleged significant new information and circumstances known to BLM before the 2017 lease sale, the appropriate rubric for considering these allegations—given the existence of an initial EIS—was supplementation, and plaintiffs waived any supplementation claim.
The court issued a subsequent related opinion or order on December 22, 2020.
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