Alaska Wilderness League v. Sally Jewell , 811 F.3d 1111 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALASKA WILDERNESS LEAGUE; No. 13-35866
CENTER FOR BIOLOGICAL
DIVERSITY, INC.; GREENPEACE, INC.; D.C. Nos.
NATIONAL AUDOBON SOCIETY, INC.; 3:12-cv-00048-
NATURAL RESOURCES DEFENSE RRB
COUNCIL, INC.; OCEAN 1:12-cv-00010-
CONSERVANCY, INC.; OCEANA, INC.; RRB
PACIFIC ENVIRONMENT AND
RESOURCES CENTER; REDOIL, INC.;
SIERRA CLUB, ORDER
Plaintiffs-Appellants,
v.
SALLY JEWELL, Secretary of the
Interior; BRIAN SALERNO, Director
of Bureau of Safety and
Environmental Enforcement; MARK
FESMIRE, Regional Director of
Bureau of Safety and Environmental
Enforcement, Alaska Region,
Defendants-Appellees,
SHELL GULF OF MEXICO INC.; SHELL
OFFSHORE INC.,
Intervenor-Defendants–Appellees.
2 ALASKA WILDERNESS LEAGUE V. JEWELL
Filed December 29, 2015
Before: Jerome Farris, Dorothy W. Nelson,
and Jacqueline H. Nguyen, Circuit Judges.
Order;
Dissent by Judge Gould
SUMMARY*
Environmental Law
The panel denied the petition for panel rehearing, and
denied the petition for rehearing en banc on behalf of the
court, concerning decisions by the Bureau of Safety and
Environmental Enforcement not to engage in consultation
pursuant to the Endangered Species Act, and not to prepare
an environmental impact statement pursuant to the National
Environmental Policy Act, before approving Shell Gulf of
Mexico Inc.’s oil spill response plan for offshore drilling in
the Beaufort and Chukchi Seas on Alaska’s Arctic coast.
Judge Nelson voted to grant the petition for panel
rehearing, and recommended granting the petition for
rehearing en banc.
Judge Gould, joined by Judges W. Fletcher and Callahan,
dissented from the denial of rehearing en banc. Judge Gould
wrote that the majority wrongly interpreted the statute that
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ALASKA WILDERNESS LEAGUE V. JEWELL 3
governs oil spill response plans, the 1990 amendments to the
Clean Water Act, as imposing nondiscretionary duties based
on a perceived statutory ambiguity; and in granting the
Bureau of Safety and Environmental Enforcement Chevron
deference on the issue. Judge Gould wrote that this resulted
in the majority wrongly narrowing the application of both the
Endangered Species Act and the National Environmental
Policy Act.
ORDER
Judges Farris and Nguyen voted to deny the petition for
rehearing. Judge Nelson voted to grant the petition for
rehearing. Judge Nguyen voted to deny the petition for
rehearing en banc, and Judge Farris so recommended. Judge
Nelson recommended granting the petition for rehearing en
banc.
The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the
matter en banc, and the matter failed to receive a majority of
the votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for
rehearing en banc are DENIED. No future petitions for
rehearing or petitions for rehearing en banc will be
entertained.
4 ALASKA WILDERNESS LEAGUE V. JEWELL
GOULD, Circuit Judge, with whom W. FLETCHER and
CALLAHAN, Circuit Judges, join, dissenting from the denial
of rehearing en banc:
I respectfully dissent from denial of rehearing en banc in
this case, which concerns decisions by the Bureau of Safety
and Environmental Enforcement (BSEE) not to engage in
consultation pursuant to the Endangered Species Act (ESA),
and not to prepare an environmental impact statement (EIS)
pursuant to the National Environmental Policy Act (NEPA),
before approving Shell’s oil spill response plans for offshore
drilling in the Beaufort and Chukchi Seas. The majority’s
ESA analysis rests first on an erroneous decision to grant
BSEE Chevron deference, based on the majority’s finding an
ambiguity in the statute where none exists, and second on an
incorrect analogy to National Association of Home Builders
v. Defenders of Wildlife, 551 U.S. 644 (2007). The majority
incorrectly interpreted the statute that governs oil spill
response plans, the 1990 amendments to the Clean Water Act
(CWA), as imposing nondiscretionary duties; it granted
Chevron deference to BSEE on this issue based on a
perceived statutory ambiguity. But the statute’s clear
language demonstrates without ambiguity that BSEE
exercises discretion in reviewing and approving oil spill
response plans. Both parts of the majority opinion lead to an
unprecedented and unwise constraining of the powers of the
ESA and NEPA.
The majority’s decision in this case encourages federal
agencies to abrogate their oversight by deciding that a
statute’s requirements limit their discretion to the point of
taking the ESA and NEPA off the table. The majority invites
federal agencies to ignore their ESA and NEPA obligations,
await a challenge, and then defend their inaction under the
ALASKA WILDERNESS LEAGUE V. JEWELL 5
guise of Chevron deference. However, the federal courts
should not be so eager to accept, under the guise of Chevron,
an agency decision that violates existing case law interpreting
the ESA and NEPA, as well as the very logic of those
statutes. Chevron was meant to prevent courts from imposing
their own construction of a statute where Congress has not
“directly addressed the precise question at issue.” Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843
(1984). Instead, courts should defer to an agency’s
“permissible interpretation of a statute.” Id. Chevron was not
meant to force courts into deferring to an agency’s contention
that it lacks discretion over statutorily mandated
requirements. Such a ruling invites abrogation of statutory
responsibilities.
I.
A central flaw in the majority’s decision is that it finds an
ambiguity in 33 U.S.C. § 1321(j)(5) where none exists.
According to this statute, part of the 1990 amendments to the
CWA passed after the Exxon Valdez disaster, an oil
company’s oil spill response plan must show that the
company is capable of “responding, to the maximum extent
practicable, to a worst case discharge, and to a substantial
threat of such a discharge, of oil or a hazardous substance.”
33 U.S.C. § 1321(j)(5)(A)(i). To comply, the proposed plans
must meet six specific requirements. 33 U.S.C.
§ 1321(j)(5)(D). The statute then directs that the President
“shall” take several actions after an oil company submits its
plan: “promptly review” it, “require amendments” to a plan
that does not meet the statutory requirements, and “approve
any plan” that does meet the requirements. 33 U.S.C.
§ 1321(j)(5)(E). According to the majority, the “shall”
language suggests that BSEE “must approve” any conforming
6 ALASKA WILDERNESS LEAGUE V. JEWELL
plan, and thus has no discretion over the adequacy of the
plans. Alaska Wilderness League v. Jewell, 788 F.3d 1212,
1220 (9th Cir. 2015) (emphasis in original). This led the
majority to find an ambiguity in the statute: “It is unclear how
the broad language of section 1321(j)(5)(A)(i), with its
reference to the ‘maximum extent practicable,’ interacts with
the finite statutory criteria of section 1321(j)(5)(D).” Id.“And that means we . . . face a statute whose halves do not
correspond to each other—giving rise to an ambiguity that
calls for Chevron deference.” Id. (quoting Scialabba v.
Cuellar de Osorio, 134 S. Ct. 2191, 2210 (2014)).
However, there is no ambiguity in the statute that
warrants Chevron deference. The CWA amendments
unambiguously give BSEE discretion over oil spill response
plan approval. Section 1321(j)(5)(A)(i) requires an oil spill
response plan to respond “to the maximum extent practicable
to a worst case discharge, and to a substantial threat of such
a discharge, of oil or a hazardous substance.” According to
the majority, “the open-ended nature of [this] phrase . . .
suggests agency discretion.” Alaska Wilderness, 788 F.3d at
1220. The majority agreed with Judge Nelson, who
dissented, that this portion of the statute could be read to
“serve[] as an independent ‘standard’ that must be met in
addition to the list of enumerated requirements at
§ 1321(j)(5)(D).” Id. at 1222, 1229 (Nelson, J., dissenting)
(“[T]he phrase ‘maximum extent practicable’ . . . has a
superlative quality and therefore must refer to the greatest
option in a range of possibilities.”).
The majority is wrong that the statute’s “halves do not
correspond to each other.” Id. at 1220. Like the broad
language in § 1321(j)(5)(A)(i), one of the six explicit criteria
requires removal of a worst case discharge “to the maximum
ALASKA WILDERNESS LEAGUE V. JEWELL 7
extent practicable.” 33 U.S.C. § 1321(j)(5)(D)(iii).
Accepting the majority’s conclusion that this phrase
“suggests agency discretion,” there is no ambiguity entitling
BSEE to Chevron deference on the issue of its discretion,
because the phrase appears in both parts of the statute. See
Chevron, 467 U.S. at 842 (“If the intent of Congress is clear,
that is the end of the matter . . . .”). The majority ignored that
the statute’s specific requirements include the same phrase as
the statute’s introduction, which the majority and dissent
agreed suggests agency discretion over response plan
approval.
As explained more fully below, this case is unlike Home
Builders because the statutory duty at issue does not restrict
BSEE’s discretion over approval of oil spill response plans.
The majority makes much of the statute’s requirement that
BSEE “shall” approve any plan that “meets the requirements
of this paragraph,” but it ignores the substance of those
requirements. 33 U.S.C. §§ 1321(j)(5)(E)(i) & (iii). The
requirements do not constitute mere “triggering events,” as in
Home Builders; they require a thorough evaluation of a
response plan. Home Builders, 551 U.S. at 669.
First, one of statute’s explicit requirements is that
response plans must “be consistent with the requirements of
the National Contingency Plan [NCP] and Area Contingency
Plans.” 33 U.S.C. § 1321(j)(5)(D)(i). The NCP contains
numerous phases of operational responses to a spill, including
a special response to worst case discharges, see 40 C.F.R.
§§ 300.300–300.335, and includes several protections for
endangered species. See, e.g., 40 C.F.R. § 300.135(k). The
NCP also requires that environmental evaluations “be
performed to assess threats to the environment, especially
sensitive habitats and critical habitats of species protected
8 ALASKA WILDERNESS LEAGUE V. JEWELL
under the [ESA].” 40 C.F.R. § 300.430(e)(2)(i)(G).
However, the majority does not explain how BSEE could
determine whether a response plan meets the NCP’s
numerous independent requirements if BSEE’s oversight role
is truly just to check the boxes in a “checklist.” Alaska
Wilderness, 788 F.3d at 1220. Whether an oil company’s oil
spill response plan is “consistent with the requirements of the
[NCP] and Area Contingency Plans” is far from a mechanical
determination or “triggering event[].” Home Builders, 551
U.S. at 669.
Second, the CWA amendments require that a company’s
response plan “remove . . . a worst case discharge,”
specifically defining the term “remove” to mean
“containment and removal of the oil . . . from the water and
shorelines or . . . such other actions as may be necessary to
prevent, minimize, or mitigate damage to the public health or
welfare, including . . . fish, shellfish, wildlife, and public and
private property, shorelines, and beaches.” 33 U.S.C.
§ 1321(a)(8). Whether an oil spill response plan provides the
means to “remove” a worst case discharge is also a question
that requires evaluation of the plan—it is not simply a
“triggering event[].” Home Builders, 551 U.S. at 669.
Third, other sections of the CWA governing the federal
government’s spill plans, 33 U.S.C. §§ 1321(d)(1)–(2) &
(j)(4)(B)–(D), contain the same “shall” language as the
sections governing oil spill response plans, yet are
undisputedly subject to ESA consultation. The majority
asserts that “[t]hese provisions . . . are different,” but does not
say why. Alaska Wilderness, 788 F.3d at 1224. The majority
tries to distinguish § 1321(d)(1), which requires the President
to prepare and publish an NCP, by claiming that “[n]othing
in the text prohibits such a plan from being prepared in light
ALASKA WILDERNESS LEAGUE V. JEWELL 9
of concerns that an ESA consultation might raise.” Id. But
the majority does not explain why its analysis of the statute
at issue here looks for explicit mention of ESA consultation
whereas its analysis of a parallel provision looks for an
explicit prohibition on ESA consultation. It is the majority’s
inconsistent textual analysis, not any meaningful distinction
in CWA provisions, that produces these contrary results.
Fourth, the majority attempts to distinguish response plan
approval from the NCP, which according to the statute should
“include, but not be limited to” a number of factors “that
might be deemed necessary after an ESA consultation
occurs,” including “water pollution control and conservation
and trusteeship of natural resources (including conservation
of fish and wildlife).” 33 U.S.C. § 1321(d)(2); Alaska
Wilderness, 788 F.3d at 1224. This argument by the majority
apparently is intended to bolster its conclusion that unlike the
NCP, 33 U.S.C. § 1321(j)(5)(E) “leaves no room for the
inclusion of additional factors.” Alaska Wilderness, 788 F.3d
at 1224. But the majority does not mention that, as explained
above, one of the very requirements BSEE must consider
before approving an oil spill response plan is its
“consisten[cy] with the requirements of the [NCP].”
33 U.S.C. § 1321(j)(5)(D)(i); Alaska Wilderness, 788 F.3d at
1224. It is unavailing to distinguish response plan approval
from the supposedly more broad-based NCP, when
consistency with the NCP is one of the factors to be
considered in approving an oil spill response plan.
Fifth, as the dissent explained, BSEE’s implementing
regulations make clear that the agency can exercise its
discretion to benefit protected species. Alaska Wilderness,
788 F.3d at 1228 (Nelson, J., dissenting). For example, the
regulations require operators to identify resources of
10 ALASKA WILDERNESS LEAGUE V. JEWELL
“environmental importance” that could be harmed by a
“worst case discharge scenario,” and to provide strategies to
protect them. 30 C.F.R. §§ 254.26(a), (c). The regulations
also require operators to identify procedures to “protect
beaches, waterfowl, other marine and shoreline resources, and
areas of special . . . environmental importance.” 30 C.F.R.
§ 254.23(g)(4). The majority does not explain how BSEE’s
cursory review of an oil spill response plan could be
consistent with the agency’s own regulations. These
regulations underscore that § 1321(j)(5)(D) is not just a
“checklist statute.” Alaska Wilderness, 788 F.3d at 1220.
BSEE reasoned that its implementing regulations define
“maximum extent practicable” as “within the limitations of
available technology, as well as the physical limitations of
personnel, when responding to a worst case discharge in
adverse weather conditions.” 30 C.F.R. § 254.6; Federal
Defendants’ Opposition to Rehearing En Banc at 12–13.
According to BSEE, nothing in this language gives it the
discretion to consider a wide range of factors consistent with
the general meaning of the word “maximum.” Id. at 12. That
argument persuaded the majority. But Judge Nelson’s dissent
persuasively explains the unreasonableness of this reasoning.
See Alaska Wilderness, 788 F.3d at 1229 (Nelson, J.,
dissenting). Even under BSEE’s definition of “maximum
extent practicable,” BSEE must determine whether Shell’s
response plans met the standard. And, as even the majority
reasoned, the term “maximum extent practicable” “suggests
agency discretion because of [its] open-ended nature . . . .”
Id. at 1220.
Finally, further evidence that the CWA amendments
contemplated active review comes from 33 U.S.C.
§§ 1321(j)(5)(E)(ii) & (iii), which direct BSEE to “require
ALASKA WILDERNESS LEAGUE V. JEWELL 11
amendments to any plan that does not meet the requirements
of this paragraph,” or to approve a plan that does meet them.
That Congress has given BSEE the responsibility to decide
whether an oil spill response plan meets the statutory criteria,
and has directed the agency to require amendments to
nonconforming plans, is further evidence that the statute
imparts discretion. Nowhere does the majority explain why
Congress would task BSEE with requiring amendments to a
nonconforming plan if it truly sought to cabin the agency’s
discretion or to make the requirements of the CWA
amendments mere “triggering events.” Home Builders,
551 U.S. at 669.
The approval process for oil spill response plans requires
agency discretion. It was wrong to grant BSEE Chevron
deference on this issue.
II.
Two flawed holdings flow from the majority’s erroneous
Chevron determination. Specifically, the majority narrowed
the application of both the ESA and NEPA. First, the
majority’s approach sets a dangerous precedent for ignoring
ESA § 7. Undisputedly, ESA consultation is only required
when an agency takes a “discretionary” action. 50 C.F.R.
§ 402.03. As explained above, however, response plan
approval pursuant to the requirements of 33 U.S.C.
§ 1321(j)(5)(D) is discretionary because it requires BSEE to
analyze whether the requirements have been met. BSEE
should therefore be required to consult under the ESA. The
majority concluded otherwise based on its incorrect analogy
to Home Builders. At issue in Home Builders was a
requirement in CWA § 402(b) that the Environmental
Protection Agency (EPA) “shall approve” a transfer of CWA
12 ALASKA WILDERNESS LEAGUE V. JEWELL
permitting authority from the federal government to a state
upon a showing that the state had met nine specified criteria.1
Home Builders, 551 U.S. at 650–51. The Supreme Court
described the “shall approve” language in CWA § 402(b) as
“mandatory” and held that EPA did not have discretion to
deny a transfer application. Id. at 661. Because the ESA
required consultation for all discretionary agency actions, the
Court’s majority concluded that application of the ESA would
impermissibly “engraft[] a tenth criterion onto the CWA.” Id.
at 663. Here, the majority claims that, like CWA § 402(b),
the six requirements for response plan approval in 33 U.S.C.
§ 1321(j)(5)(D) are mandatory, and the ESA is not applicable.
However, this case differs from Home Builders for at least
three reasons. First, Home Builders hinged partially on the
fact that the ESA was passed after the CWA, and did not
explicitly overrule CWA § 402(b). Home Builders, 551 U.S.
1To become the permitting authority, the state must demonstrate that it
has the ability: (1) to issue fixed-term permits that apply and ensure
compliance with the CWA’s substantive requirements and which are
revocable for cause; (2) to inspect, monitor, and enter facilities and to
require reports to the extent required by the CWA; (3) to provide for
public notice and public hearings; (4) to ensure that the EPA receives
notice of each permit application; (5) to ensure that any other State whose
waters may be affected by the issuance of a permit may submit written
recommendations and that written reasons be provided if such
recommendations are not accepted; (6) to ensure that no permit is issued
if the Army Corps of Engineers concludes that it would substantially
impair the anchoring and navigation of navigable waters; (7) to abate
violations of permits or the permit program, including through civil and
criminal penalties; (8) to ensure that any permit for a discharge from a
publicly owned treatment works includes conditions requiring the
identification of the type and volume of certain pollutants; and (9) to
ensure that any industrial user of any publicly owned treatment works will
comply with certain of the CWA’s substantive provisions. 33 U.S.C.
§§ 1342(b)(1)–(9).
ALASKA WILDERNESS LEAGUE V. JEWELL 13
at 662. But here, 33 U.S.C. § 1321(j)(5) postdates the ESA
by seventeen years. There is no concern here, as there was in
Home Builders, that ESA consultation would implicitly
amend a prior statute.
The second distinction is that in Home Builders, the
parties appeared to agree that the state had authority to
perform each of the nine enumerated functions in CWA
§ 402(b). Home Builders, 551 U.S. at 672 (“[T]here is no
dispute that Arizona has satisfied each of those statutory
criteria”); see also Alaska Wilderness, 788 F.3d at 1229
(Nelson, J., dissenting). The parties’ disagreement was
instead about whether ESA consultation added an extra step
to transfer of permitting authority. Here, the question is not
whether the ESA adds an extra step to the approval process,
but how much discretion there is in the existing steps of
33 U.S.C. § 1321(j)(5)(D). On this the parties do not agree.
This distinction means that although Home Builders is
controlling precedent, its particular outcome does not bind
this case.
Third, the conditions in § 1321(j)(5)(D) that must be met
for response plan approval are substantively different than the
conditions for state permitting authority in Home Builders.
There, the Supreme Court characterized the conditions as
“triggering events” with a mechanical cause and effect.
Home Builders, 551 U.S. at 669. Arizona had to show that it
had the ability to perform nine specific tasks. Once it had
done so, the agency had no choice but to transfer CWA
permitting authority. Id. at 669. This reading is consistent
with the Supreme Court’s conclusion that CWA § 402(b)
imposed nondiscretionary requirements on EPA. Id. at 661.
Here, as explained above, the requirements are not simple
enough to be considered mere “triggering events.” Id. at 669.
14 ALASKA WILDERNESS LEAGUE V. JEWELL
They require evaluation of whether an oil spill response plan
actually meets, for example, the requirement that it be
consistent with the NCP, or the requirement that it ensure the
availability of personnel and equipment necessary to remove
a worst case discharge to the “maximum extent practicable.”
33 U.S.C. §§ 1321(j)(5)(D)(i), (iii).
By not correcting the majority’s holding through en banc
rehearing, we have permitted a gross alteration of Supreme
Court precedent and given federal agencies unwarranted and
unprecedented authority over whether their statutory duties
are discretionary or not, which directly impacts whether ESA
consultation is required. ESA consultation is required for
“any action authorized, funded, or carried out by” a federal
agency—with the rare exception for cases such as Home
Builders, where a statute’s requirements are clearly
“triggering events” rather than independent requirements, and
where there is no dispute that the requirements have been
met. Neither is true of the statute at issue here, 33 U.S.C.
§ 1321(j)(5). This is clear from the statute itself, and the
majority was wrong to adopt the agency’s contrary
interpretation under the guise of Chevron.
The majority’s decision also misapplies NEPA precedent.
NEPA requires federal agencies to prepare an EIS for all
“major Federal actions significantly affecting the quality of
the human environment.” 42 U.S.C. § 4332(2)(C). In a
narrow exception, NEPA does not apply where an agency
lacks the discretion to consider environmental values in its
decision making process. See Dep’t of Transp. v. Public
Citizen, 541 U.S. 752, 767–69 (2004). Here, the majority
held that BSEE reasonably concluded that it “must approve
any [response plan] that meets the statutory requirements.”
Alaska Wilderness, 788 F.3d at 1225. “Thus, even assuming,
ALASKA WILDERNESS LEAGUE V. JEWELL 15
without deciding, that BSEE’s approval of Shell’s [response
plans] constitutes a ‘major Federal action,’ its approval is not
subject to NEPA’s requirements.” Id. The majority
analogized this case to Public Citizen, where the governing
statute required the Federal Motor Carrier Safety
Administration (FMCSA) to register a person to provide
transportation as a motor carrier if it found the person willing
and able to comply with the statute’s requirements. Public
Citizen, 541 U.S. at 766. NEPA review was not required in
Public Citizen because the agency lacked the power to
consider environmental consequences outside its statutory
obligation. Id. at 768–70.
The majority’s analogy to Public Citizen is
unsupported. As explained above, § 1321(j)(5)(D) imposes
a discretionary duty on BSEE. In Public Citizen, the
Supreme Court held that FMCSA did not have to account for
certain environmental effects in its environmental assessment
because it had “no ability to countermand” executive action
by the President, so its action did not have a “reasonably
close causal relationship” to any negative environmental
impacts. Public Citizen, 541 U.S. at 766–67. That is not the
case here, because BSEE does have the authority to consider
environmental values in its decision-making process. BSEE’s
approval of response plans is discretionary, and it would
provide a “reasonably close causal relationship” between the
agency action and environmental effects, including a “worst
case discharge,” stemming from a potential spill. See Public
Citizen, 541 U.S. at 767; 33 U.S.C. § 1321(j)(5)(A)(i).2
2
Deference to BSEE’s views may also be tempered here because we are
assessing whether BSEE’s review and approval of an oil spill response
plan under the CWA is non-discretionary within the meaning of NEPA.
As the D.C. Circuit has explained, “the court owes no deference to the
16 ALASKA WILDERNESS LEAGUE V. JEWELL
In sum, the impact of the majority’s decision is to take the
ESA and NEPA off the table when considering oil spill
response plans, which are a required component of offshore
drilling proposals. This violates the language of 33 U.S.C.
§ 1321(j)(5), which by its terms requires discretionary
evaluation of oil spill response plans. The statute calls on
BSEE to assess whether response plans give protection to the
“maximum extent practicable.” 33 U.S.C. § 1321(j)(5)(A)(i).
A federal agency cannot determine if protection is to the
“maximum extent practicable” without exercising some
discretion in judgment. If discretion is needed, then
claimants with standing, and the federal courts, must be part
of the approval process until decisions are made in litigation.
III.
I agree with the majority that the ESA and NEPA do not
require an agency to provide redundant analysis. NEPA and
its implementing regulations accommodate this concern by
allowing agencies to take a “tiered” approach to
environmental review. See 40 C.F.R. § 1502.20 (encouraging
tiering of NEPA review). We have also allowed for tiering of
ESA review. See Gifford Pinchot Task Force v. U.S. Fish &
Wildlife Serv., 378 F.3d 1059, 1067–68 (9th Cir. 2004).
Thus, BSEE’s NEPA and ESA review of the proposed
[agency’s] interpretation of NEPA . . . because NEPA is addressed to all
federal agencies and Congress did not entrust administration of NEPA to
[BSEE] alone.” Grand Canyon Trust v. Fed. Aviation Admin., 290 F.3d
339, 342 (D.C. Cir. 2002). Moreover, Congress demonstrated in the CWA
that it knows how to exempt agency approvals from environmental
review. See 33 U.S.C. § 1371(c) (exempting certain actions by EPA from
NEPA review). That Congress did not similarly exempt BSEE’s oil spill
response plan approval, pursuant to the CWA, from NEPA or ESA review
strongly suggests that Congress intended the statutes to apply.
ALASKA WILDERNESS LEAGUE V. JEWELL 17
approval of Shell’s oil spill response plans need not be
burdensome or redundant if the foreseeable impacts of
approving the plans, and reasonable alternatives, were already
addressed in an EIS and biological opinion completed at an
earlier stage of development. If this were the case, BSEE
could, for example, prepare a shorter environmental
assessment tiered to the earlier EIS to satisfy NEPA. See 40
C.F.R. § 1508.9 (describing an environmental assessment).
Here, the majority does not address whether BSEE satisfied
NEPA and the ESA through tiered environmental review.
Rather, the majority rules that oil spill response plan approval
is exempt from the ESA and NEPA altogether.
It is true that BSEE reviewed Shell’s oil spill response
plans only after other higher-level planning activities,
including preparing an EIS for each of its five-year leasing
programs and preparing a biological opinion evaluating the
likelihood that drilling will jeopardize species protected by
the ESA. See, e.g., NMFS, Beaufort and Chukchi Seas
Biological Opinion, http://goo.gl/YECHFu. But an oil spill
response plan may raise significant environmental risks
beyond those analyzed at a granular level at a previous stage
of development. For example, alternative means of
containing an oil spill, such as the controversial use of
dispersants, may themselves significantly impact listed
species, other environmental resources, and the safety of first
responders and the public to varying degrees. Review of
these risks and of alternative response actions would not be
redundant or duplicative if they were not considered in a
previous EIS and biological opinion. Indeed, the higher
planning levels govern the whole gamut of offshore drilling
operations. Oil spill response plans—while nominally a
“lower,” implementation-level action—are the first
component to be deployed when a spill actually happens. It
18 ALASKA WILDERNESS LEAGUE V. JEWELL
is ill-advised for the court to accept, under the guise of
Chevron, BSEE’s refusal to complete NEPA and ESA review
of these plans, especially since these plans may not be as
effective in redressing spills and preserving the environment
as they could be with environmental review of alternatives
and input from federal wildlife agencies.
I also emphasize this case’s importance notwithstanding
Shell’s recent suspension of its Arctic drilling program.
Although the program is on hold, and the administration has
recently canceled existing Arctic lease sales, oil markets are
cyclical and it is all but certain that higher future oil prices, a
warming Arctic, or both will once again make drilling in the
Arctic cost-effective. The Department of the Interior’s latest
five-year drilling plan still includes offshore lease sales in
Alaska. Whenever Shell begins its Arctic drilling permitting
process again, BSEE will give Shell’s oil spill response plans
the same cursory review it did here. If this case is not
corrected by Supreme Court review, it will have two severe
consequences. First, it will preclude judicial review of oil
spill response plans when Shell’s Arctic drilling plans
resume. In light of BSEE’s obvious reluctance to give the
term “maximum extent practicable” its natural meaning in
33 U.S.C. §§ 1321(j)(5)(A)(i) & (j)(5)(D)(iii), it is undeniable
that Shell’s oil spill response plans will not be as responsive
to the needs of endangered and threatened species as they
would be with ESA consultation. And it is all but certain that
BSEE’s review of the response plans—the first line of
defense in the event of a major oil spill—will be far more
cursory than it would be if the public process, review of
foreseeable impacts, and consideration of alternatives
necessary under NEPA were provided.
ALASKA WILDERNESS LEAGUE V. JEWELL 19
Second, and equally important, our court now has chosen
to accept an agency’s own opinion about the scope of its
discretion in order to make this case fit into the narrow
exceptions of Home Builders and Public Citizen. By ignoring
our proper role in this litigation, we have enabled BSEE’s
abrogation of its oversight role over response plan approval,
and we have invited other federal agencies to do the same any
time a statutory duty could arguably be cast as “mandatory”
or “nondiscretionary.” The message we send to agencies, and
to oil companies, is “we trust you and will rely on your
judgment without review by federal agency experts and
public input.” This is not the role envisioned by Congress
when it passed the 1990 CWA amendments, which require an
oil spill response plan to demonstrate its ability to respond,
“to the maximum extent practicable, to a worst case
discharge,” or when it passed the ESA, which requires
“[e]ach Federal agency” to consult with federal wildlife
agencies to “insure that any action authorized, funded, or
carried out by such agency” is not likely to jeopardize
protected species or adversely modify their critical habitat.
33 U.S.C. § 1321(j)(5)(A)(i); 16 U.S.C. § 1536(a)(2). It is
not the role envisioned by NEPA, which mandated that “all
agencies” shall utilize a “systematic, interdisciplinary
approach” in planning and decision making, and shall prepare
an EIS for all major federal actions significantly affecting the
human environment, which include “any irreversible and
irretrievable commitments of resources which would be
involved in the proposed action should it be implemented.”
42 U.S.C. § 4332. It is not the role for the courts Chevron
envisioned by approving deference to an agency’s
“permissible construction of the statute” only in response to
statutory ambiguity. Chevron, 467 U.S. at 843.
20 ALASKA WILDERNESS LEAGUE V. JEWELL
Although this case deals with a complicated regulatory
framework, at bottom it turns on simple answers to simple
questions: If an oil company submits an oil spill response
plan to BSEE, does the federal government have discretion to
consider alternative response actions in order to ensure that
any approved plan responds to a worst case spill to the
maximum extent practicable? Could alternative methods of
responding to a spill themselves have varying impacts on
listed species that now thrive in the Beaufort and Chukchi
Seas, such as the bowhead whale, the humpback whale, the
bearded seal, and the Steller sea lion, as well as other aspects
of the human environment? See BOEM Biological Opinion,
Lease Sale 193, http://goo.gl/YECHFu. If such dangers and
alternative courses of action are present, is it the aim of
Congress to have the agency that oversees drilling perform
public environmental review of the proposed plan and consult
with federal agencies that oversee listed species? If Congress
has required that an oil spill response plan must respond to
the spill to the maximum extent practicable, will that not
require a discretionary judgment of the regulating agency,
here the Bureau of Safety and Environmental Enforcement?
The answers to these questions are “yes.” Only if BSEE
scrutinizes whether an oil spill response plan gives protection
to the maximum extent practicable will our treasured public
trust resources be protected to the maximum extent
practicable.
By not correcting the majority’s holding through en banc
review, we have let stand a decision that misapplies core
principles of administrative and environmental law, and have
set a dangerous precedent of deferring to a federal agency’s
view of its own discretion, even when a statute is not
ambiguous. I respectfully dissent.