Alaska Wilderness League v. Sally Jewell , 788 F.3d 1212 ( 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, OPINION
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
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted
August 13, 2014—Anchorage, Alaska
Filed June 11, 2015
Before: Jerome Farris, Dorothy W. Nelson,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Nguyen;
Dissent by Judge D.W. Nelson
SUMMARY*
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
*
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
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.
COUNSEL
Holly A. Harris (argued), Brettny E. Hardy, and Eric P.
Jorgensen, Earthjustice, Juneau, Alaska, for Plaintiffs-
Appellants.
Maggie B. Smith (argued), Attorney; Robert G. Dreher,
Acting Assistant Attorney General, and David B. Glazer,
Bridget Kennedy McNeil, Kent E. Hanson, and David C.
Shilton, Attorneys, United States Department of Justice,
Environment and Natural Resources Division, Washington,
D.C.; Sarah Doverpike, Office of the Solicitor, Department of
the Interior, Washington, D.C., for Defendants-Appellees
Sally Jewell, Brian Salerno, and Mark Fesmire.
Kathleen Sullivan (argued), William B. Adams, and David S.
Mader, Quinn Emmanuel Urquhart & Sullivan LLP, New
York, New York; Kyle W. Parker, Crowell & Moring LLP,
Anchorage, Alaska, for Intervenors-Defendants–Appellees.
ALASKA WILDERNESS LEAGUE V. JEWELL 5
OPINION
NGUYEN, Circuit Judge:
Shell Gulf of Mexico Inc. and Shell Offshore Inc.
(collectively “Shell”) for many years have sought to develop
offshore oil and gas resources in the remote Beaufort and
Chukchi seas on Alaska’s Arctic coast. Shell secured leases
for the Beaufort Sea in 2005 and 2007, and the Chukchi Sea
in 2008, but its exploration efforts have been waylaid by a
variety of legal, logistical, and environmental problems,
including multiple lawsuits,1 the wreck of one of its drill rigs,2
and the temporary suspension of drilling activities in the
1
See, e.g., Resisting Envtl. Destruction on Indigenous Lands, REDOIL,
v. EPA, 716 F.3d 1155 (9th Cir. 2013) (challenging permitting of
exploratory drilling in the Beaufort and Chukchi Seas); Native Vill. of
Point Hope v. Salazar, 680 F.3d 1123, 1128 (9th Cir. 2012) (challenging
the approval of exploration plans in the Beaufort Sea); Inupiat Comm. of
the Arctic Slope v. Salazar, 486 F. App’x 625 (9th Cir. 2012) (mem.)
(challenging the approval of exploratory drilling plans in the Chukchi
Sea); Native Vill. of Point Hope v. Salazar, 378 F. App’x 747 (9th Cir.
2010) (mem.) (challenging the approval of exploration plans in the
Beaufort and Chukchi Seas); Alaska Wilderness League v. Kempthorne,
548 F.3d 815 (9th Cir. 2008), vacated, 559 F.3d 916 (9th Cir. 2009)
(challenging the approval of exploration plans in the Beaufort Sea),
dismissed as moot sub nom., Alaska Wilderness League v. Salazar,
571 F.3d 859 (9th Cir. 2009); see also Ctr. for Biological Diversity v.
Salazar, 695 F.3d 893 (9th Cir. 2012) (challenging the authorization of
incidental take of polar bears and Pacific walruses related to exploration
activity in the Chukchi Sea); Ctr. for Biological Diversity v. Kempthorne,
588 F.3d 701 (9th Cir. 2009) (same, as to the Beaufort Sea).
2
See Gary Braasch, The Wreck of the Kulluk, N.Y. TIMES, Dec. 30,
2014, at MM24.
6 ALASKA WILDERNESS LEAGUE V. JEWELL
Arctic after the Deepwater Horizon Spill.3 We review here
another challenge, a claim by a coalition of environmental
groups 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. We affirm.
BACKGROUND
I.
The Statutory Schemes
We begin with an overview of the complex statutory
backdrop to BSEE’s approval of the OSRPs in this case.
The Outer Continental Shelf Lands Act (“OCSLA”),
43 U.S.C. § 1331 et seq., establishes a four-stage process for
the exploration and development of offshore oil and gas
resources. First, the Secretary of the Interior prepares and
maintains a five-year oil and gas leasing program. 43 U.S.C.
§ 1344(a). Second, the Secretary may grant oil and gas leases
for submerged lands in the outer continental shelf at a lease
sale, subject to certain terms and provisions. See id.§ 1337(a)–(b). Third, a lessee must “submit an exploration
plan to the Secretary for approval,” id. § 1340(c)(1),
accompanied by an Oil Spill Response Plan required under
3
U.S. Dep’t of the Interior, Decision Memorandum Regarding the
Suspension of Certain Offshore Permitting and Drilling Activities in the
Outer Continental Shelf, July 12, 2010, at 1 available at
http://www.doi.gov/deepwaterhorizon/loader.cfm?csModule=security/
getfile&PageID=38390.
ALASKA WILDERNESS LEAGUE V. JEWELL 7
the Clean Water Act, see 30 C.F.R. § 550.219 (the approval
of which is at issue in this case). In the fourth and final
phase, if exploration reveals oil or gas, a lessee must then
submit “a development and production plan” for the
Secretary’s approval. 43 U.S.C. § 1351(a)(1). Each stage
triggers certain environmental analysis, and the Bureau of
Ocean Energy Management (“BOEM”) is responsible for
managing the process, including the necessary environmental
reviews. See Native Vill. of Point Hope v. Salazar, 680 F.3d
1123, 1128 (9th Cir. 2012).
While OCSLA governs the development of oil and gas
resources, the Clean Water Act provides a framework for
preventing and responding to potential oil spills. See
33 U.S.C. § 1321(b). The Clean Water Act mandates oil spill
contingency planning at four levels: the national, regional,
and area levels, and, lastly, at the level of individual owners
and operators of offshore oil facilities. First, at the national
level, the President prepares a National Contingency Plan that
sets forth “efficient, coordinated, and effective action to
minimize damage from oil and hazardous substance
discharges.” Id. § 1321(d)(2). Second, Regional Response
Teams, co-chaired by the Environmental Protection Agency
and the Coast Guard, prepare Regional Contingency Plans
that coordinate “planning, preparedness, and response
activities” across federal agencies, “states, local governments,
and private entities.” 40 C.F.R. § 300.105(a); see also id. at
300.115. Third, Area Committees prepare Area Contingency
Plans that, “when implemented in conjunction with the
National Contingency Plan, [are] adequate to remove a worst
case discharge, and to mitigate or prevent a substantial threat
of such a discharge.” 33 U.S.C. § 1321(j)(4)(C)(i).
8 ALASKA WILDERNESS LEAGUE V. JEWELL
Fourth and finally, and most relevant to this litigation, the
President must promulgate regulations that require owners
and operators of offshore oil facilities4 to submit an OSRP
“for responding, to the maximum extent practicable, to a
worst case discharge . . . of oil or a hazardous substance.” Id.§ 1321(j)(5)(A)(i). The Secretary of the Interior delegated
this responsibility to BSEE.5 56 Fed. Reg. 54,757, 54,761-62
(Oct. 18, 1991); 76 Fed. Reg. 64,432-01, 64,448 (Oct. 18,
2011). OSRPs must comply with the Clean Water Act’s six
requirements, listed at 33 U.S.C. § 1321(j)(5)(D), one of
which is compliance with the governing Area Contingency
Plan. Id. § 1321(j)(5)(D)(i); 30 C.F.R. § 550.219. BSEE
must “promptly review” submitted plans, “require
amendments to any plan that does not meet the requirements
of this paragraph,” and “shall . . . approve any plan that
meets” the statutory requirements. Id. § 1321(j)(5)(E)(i)–(iii)
(emphasis added).
4
While OCSLA refers to “lessees,” the Clean Water Act refers to
“owners and operators.” Compare 43 U.S.C. § 1331 et. seq. with
33 U.S.C. § 1321. Because this case concerns the approval of OSRPs
under the Clean Water Act, we primarily employ the term “operators.”
5
Initially, a single agency, the Minerals Management Service (“MMS”),
managed compliance with both OCSLA and the Clean Water Act. See
76 Fed.Reg. 64,432, DOI Secretarial Order No. 3229. After the
Deepwater Horizon oil spill in 2010, however, the Secretary divided MMS
into three new entities. Native Vill., 680 F.3d at 1127 (quoting Press
Release, U.S. Dep’t of Interior, Salazar Divides MMS’s Three Conflicting
Missions (May 19, 2010), available at http://www.doi.gov/news/
pressreleases/Salazar-Divides-MMSs-Three-Conflicting-Missions.cfm).
BOEM now manages the development of offshore resources under
OCSLA, and BSEE is responsible for the “enforcement of safety and
environmental functions” under the Clean Water Act, including approval
of the OSRPs at issue here. Id. at 1128.
ALASKA WILDERNESS LEAGUE V. JEWELL 9
Environmental consultation occurs at several points
throughout both OCSLA and the Clean Water Act’s four-
tiered processes. National Environmental Policy Act
(“NEPA”) and Endangered Species Act (“ESA”)
consultations occur when oil and gas exploration leases are
first issued (at OCSLA’s second stage), 43 U.S.C.
§ 1344(a)(1) & (b)(3); see also Sec’y of the Interior v.
California, 464 U.S. 312, 338 (1984), and again when lessee
exploration plans are submitted (at OCSLA’s third stage),
43 U.S.C. § 1340(c). Additional environmental review takes
place upon submission of lessee development and production
plans (OCSLA’s fourth stage), including another round of
NEPA review, see id. § 1351(c), and the submission of
environmental impact statements (“EIS”) to the governors of
any affected states, id. § 1351(f)–(g). The Secretary may
“approve, disapprove, or require modifications” of
development plans, and must reject any plan that would
“probably cause serious harm or damage to . . . the marine,
coastal, or human environments,” when weighed against the
extent of the threat and the potential advantages of allowing
production. Id. § 1351(h)(1).
Likewise, the Clean Water Act has several types of
environmental review built in throughout its various stages.
At the Area Contingency Plan level, Area Committees must
consult with both the U.S. Fish and Wildlife Service and the
National Oceanic and Atmospheric Administration to prepare
“a detailed annex containing a Fish and Wildlife and
Sensitive Environments Plan” that “provide[s] the necessary
information and procedures to immediately and effectively
respond to discharges that may adversely affect” the
environment. 40 C.F.R. § 300.210(c)(4)(I). An operator’s
OSRP must be consistent with the protocols established at
this stage. See 33 U.S.C. § 1321(j)(5)(D)(i). The National
10 ALASKA WILDERNESS LEAGUE V. JEWELL
Contingency Plan also lays out procedures for emergency
consultation in the case of an actual oil spill. See 40 C.F.R.
§ 300.305(e).
II.
The Current Dispute
The case before us arises in the context of these
overlapping statutory schemes, and represents “the latest
chapter in a long-running saga beginning back in April 2002,
when the Minerals Management Service (“MMS”)
established a five-year lease sale schedule for the outer
continental shelf of Alaska.” Native Vill., 680 F.3d at 1126.
After Shell acquired offshore oil leases in the Beaufort Sea in
2005 and 2007, and in the Chukchi Sea in 2008, it submitted
exploration plans, and the required OSRPs, for activities that
were scheduled to commence in the summer of 2010. MMS,
which was then in charge of approving exploration plans and
OSRPs, id. at 1127, approved Shell’s Beaufort Sea OSRP in
March of that year and approved Shell’s Chukchi Sea OSRP
the following month.
The April 2010 Deepwater Horizon oil spill in the Gulf of
Mexico shifted the landscape in a number of ways. BOEM
assumed control over the approval of exploration plans, and
BSEE assumed responsibility for approving OSRPs. Id. at
1128. Also, following a moratorium on all oil and gas
drilling, the Department of the Interior issued new guidance
regarding the content and analysis that should be provided in
OSRPs. See, e.g., U.S. Department of the Interior, Bureau of
Ocean Energy Management, Regulation, and Enforcement,
Information Requirements for Exploration Plans,
Development and Production Plans, and Development
ALASKA WILDERNESS LEAGUE V. JEWELL 11
Operations Coordination Documents on the OCS 3 (2010),
available at http://www.boem.gov/Regulations/Notices-To-
Lessees/2010/10-n06.aspx.6 In response, Shell updated its
OSRPs for the Chukchi and Beaufort Seas in May 2011, and
again in early 2012. BSEE approved the two OSRPs in
February and March of 2012, respectively.
Following these approvals, Plaintiffs sued the Secretary
of the Interior and the Department of the Interior under the
Administrative Procedure Act, challenging BSEE’s approval
of the OSRPs. Shell successfully intervened. The parties
filed cross-motions for summary judgment. The district
court, following extensive briefing and argument, granted
summary judgment in favor of the federal defendants and
Shell. Shell Gulf of Mex. v. Ctr. for Bio. Diversity, Inc., No.
3:12-CV-00048-RRB (D. Alaska Aug. 5, 2013). This appeal
followed.
STANDARDS OF REVIEW
“We review the grant of summary judgment de novo, thus
reviewing directly the agency’s action under the
Administrative Procedure Act’s (“APA”) arbitrary and
capricious standard.” Gila River Indian Cmty. v. United
States, 729 F.3d 1139, 1144 (9th Cir. 2013), as amended (July
9, 2013) (quoting Gifford Pinchot Task Force v. U.S. Fish &
Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir. 2004)) (internal
6
These revised guidelines were then superceded in January 2015. U.S.
Department of the Interior, Bureau of Ocean Energy Management,
Information Requirements for Exploration Plans, Development and
Production Plans, and Development Operations Coordination Documents
on the OCS for Worst Case Discharge and Blowout Scenarios (2015),
available at http://www.boem.gov/NTL-2015-N01/.
12 ALASKA WILDERNESS LEAGUE V. JEWELL
quotation marks omitted). Review under this standard “is
narrow, and [we do] not substitute [our] judgment for that of
the agency.” Ecology Ctr. v. Castaneda, 574 F.3d 652, 656
(9th Cir. 2009) (quoting Lands Council v. McNair, 537 F.3d
981, 987 (9th Cir. 2008) (en banc)) (alterations in original)
(internal quotation marks omitted). Rather, reversal is only
proper
if the agency relied on factors Congress did
not intend it to consider, entirely failed to
consider an important aspect of the problem,
or offered an explanation that runs counter to
the evidence before the agency or is so
implausible that it could not be ascribed to a
difference in view or the product of agency
expertise.
Id. (quoting Lands Council, 537 F.3d at 987) (internal
quotation marks omitted).
Additionally, under Chevron, U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837 (1984), we engage in a three-
step inquiry when reviewing an agency’s interpretation of a
statute that it is entrusted to administer. First, we must decide
whether Congress intended “the agency to be able to speak
with the force of law when it addresses ambiguity in the
statute or fills a space in the enacted law.” United States v.
Mead Corp., 533 U.S. 218, 229 (2001). Next, we ask
“whether Congress has directly spoken to the precise question
at issue. If the intent of Congress is clear, that is the end of
the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”
Chevron, 467 U.S. at 842–43. Finally, if the statute is silent
or ambiguous as to the issue at hand, we then defer to the
ALASKA WILDERNESS LEAGUE V. JEWELL 13
agency’s reading so long as its interpretation is a reasonable
one. Id. at 843.
DISCUSSION
I.
The Administrative Procedures Act
Plaintiffs argue that BSEE’s approval of the OSRPs was
arbitrary and capricious in violation of the Administrative
Procedures Act. See 5 U.S.C. § 706(2)(A). According to
Plaintiffs, Shell assumed that, in the event of a worst case
discharge, Shell would achieve a mechanical recovery of 90
to 95 percent of any oil spilled in the Arctic Ocean—an
assumption that Plaintiffs characterize as unrealistic and
unsupported. Plaintiffs, however, have misread the record,
which shows that Shell never assumed a 90 to 95 percent
mechanical recovery rate. And even assuming that it did,
BSEE did not rely on any such assumption in approving
Shell’s OSRPs.
The pertinent portion of Shell’s OSRPs reads as follows:
To scale the potential shoreline response
assets needed, and for planning purposes,
Shell based these assets upon the assumption
that 10 percent of the 25,000-[barrels of oil
per day (“bopd”)] discharge escapes the
primary offshore recovery efforts at the
blowout. This unrecovered 2,500 bopd is
assumed to drift toward the mainland . . . . It
is assumed that half of the oil reaching the
nearshore environment is recovered by the
14 ALASKA WILDERNESS LEAGUE V. JEWELL
skimming systems dispatched from [a large,
mobile oil spill response barge and tug]. The
remaining 1,250 bopd are assumed to migrate
toward the shoreline where [Shell’s spill
response contractor] would mobilize
personnel and equipment to intercept the oil
and deploy boom for shoreline protection.7
Thus, on a straightforward reading of the OSRPs, Shell
made two assumptions—that 10 percent of spilled oil would
“drive toward the mainland,” half of which would be
recovered by skimming systems and half of which would
“migrate toward the shoreline”—for purposes of “scal[ing]
the potential shoreline response assets needed.” Nothing in
the OSRPs’ text suggests that Shell was predicting a 90 to 95
percent mechanical recovery rate. Indeed, Shell’s OSRPs
make clear that it was estimating the potential shoreline
response assets needed in order to comply with an Alaska
state law requiring certain calculations regarding the
magnitude of a worst case scenario oil spill. BSEE’s
regulations identify the specific information an operator must
provide when discussing its worst case discharge scenario,
and these regulations do not require an estimated recovery
rate for spilled oil. See 30 C.F.R. § 254.26(a)–(d). In short,
the record simply does not support Plaintiffs’ claim that Shell
assumed an impossibly high recovery rate of almost 100
percent.
Moreover, it is equally clear from the administrative
record that BSEE did not rely on a purported 90 to 95 percent
7
This quote is taken from Shell’s Chukchi Sea OSRP. Pls.’ Excerpts of
R. at 959, ECF No. 24-10. An analogous claim was made in Shell’s
Beaufort Sea OSRP. See Pls.’ Excerpts of R. at 907, ECF No. 24-10.
ALASKA WILDERNESS LEAGUE V. JEWELL 15
mechanical recovery rate in approving Shell’s OSRPs. While
Shell’s OSRPs were under consideration, the National
Oceanic Atmospheric Administration expressed concern that
“Shell was claiming it would mechanically recovery 95
percent of oil spilled in any incident, which is many times
more than the best performance currently achievable.” Pls.’
Excerpts of R. at 286, ECF No. 24-3. BSEE responded that
“this was a misreading of the plan, which is not a
performance standard. Shell is claiming to have the capacity
to store up to 95 percent of the [worst case discharge]
volume, not that it would be able to actually collect that
much.” Id. This record shows that BSEE internally
acknowledged some “confusion” over the “planning v.
performance issue” in the OSRPs, but nonetheless reaffirmed
its view that Shell was “in no way claiming an ability to
recover 90 percent of the oil.” Id. at 288. Thus, 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.
II.
The Endangered Species Act
Next, Plaintiffs argue that BSEE should have engaged in
ESA consultation before approving the OSRPs. Section 7 of
ESA requires federal agencies to consult with the appropriate
environmental agencies before taking an action that may
affect endangered species or habitats. 16 U.S.C.
§ 1536(a)(4); see also Nat’l Res. Def. Council v. Jewell,
749 F.3d 776, 779 (9th Cir. 2014). Even if there is agency
“action,” however, ESA consultation is triggered only if
“there is discretionary Federal involvement or control,” 50
C.F.R. § 402.03 (emphasis added), because consultation
16 ALASKA WILDERNESS LEAGUE V. JEWELL
would be merely a “meaningless exercise” if the agency lacks
the power to implement changes that would benefit
endangered species, Sierra Club v. Babbitt, 65 F.3d 1502,
1509 (9th Cir. 1995).8
Here, we need not decide whether BSEE’s approval of the
OSRPs constitutes agency action. Even assuming, without
deciding, that the approval of the OSRPs was agency action,
we conclude that it was a nondiscretionary action and thus
ESA’s consultation requirement was not triggered. Because
Congress has “delegat[ed] administrative authority” to the
agency to interpret this statute, Chevron’s framework applies.
See Adams Fruit Co., Inc. v. Barrett, 494 U.S. 638, 649
(1990) (“A precondition to deference under Chevron is a
congressional delegation of administrative authority.”). As
discussed below, at Chevron Step One, we find the relevant
provisions of the Clean Water Act ambiguous, and therefore
“Congress has [not] directly spoken to the precise question at
issue.” Chevron, 467 U.S. at 842. At Chevron Step Two, we
find the agency interpretation reasonable, and therefore we
must accord its interpretation deference. See id. at 843.
A. Chevron Step 1: The Statute’s Ambiguity
The Clean Water Act, as amended by the Oil Pollution
Act of 1990, offers three pertinent instructions regarding the
content and approval of operators’ OSRPs. First, at
8
Because we determine that discretionary agency action did not occur,
we need not decide whether the action “may affect a listed species or
designated critical habitat.” Karuk Tribe of Cal. v. U.S. Forest Serv.,
681 F.3d 1006, 1027 (quoting Turtle Island Restoration Network v. Nat’l
Marine Fisheries Serv., 340 F.3d 969, 974 (9th Cir. 2003) (internal
quotation marks omitted)).
ALASKA WILDERNESS LEAGUE V. JEWELL 17
33 U.S.C. § 1321(j)(5)(A)(i), the statute states that “[t]he
President shall issue regulations which require an . . . operator
. . . to prepare and submit to the President a plan for
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.” Second, at § 1321(j)(5)(D),
the statute lists six requirements that OSRPs “shall” meet.
Specifically, OSRPs must
(i) be consistent with the requirements of
the National Contingency Plan and Area
Contingency Plans;
(ii) identify the qualified individual having
full authority to implement removal actions,
and require immediate communications
between that individual and the appropriate
Federal official and the persons providing
personnel and equipment pursuant to clause
(iii);
(iii) identify, and ensure by contract or
other means approved by the President the
availability of, private personnel and
equipment necessary to remove to the
maximum extent practicable a worst case
discharge (including a discharge resulting
from fire or explosion), and to mitigate or
prevent a substantial threat of such a
discharge;
(iv) describe the training, equipment
testing, periodic unannounced drills, and
response actions of persons on the vessel or at
18 ALASKA WILDERNESS LEAGUE V. JEWELL
the facility, to be carried out under the plan to
ensure the safety of the vessel or facility and
to mitigate or prevent the discharge, or the
substantial threat of a discharge;
(v) be updated periodically; and
(vi) be resubmitted for approval of each
significant change.
Id. The statute then mandates approval if the above
requirements are met, stating that “the President shall . . .
approve any plan that meets the requirements of this
paragraph.” Id. § 1321(j)(5)(E)(iii). All three instructions—
the “maximum extent practicable” language, the six
enumerated statutory criteria, and the President’s “shall
approve” requirement—fall within the same statutory section
(specifically, paragraph (5)). Pursuant to the Clean Water
Act’s directive, the agency has issued regulations that set
forth what an operator must do to meet the criteria set out in
this section. 30 C.F.R. pt. 254.
We find the statute ambiguous in two ways—in the
statutory language itself, and in the statute’s structure. The
text does not explicitly grant or deny BSEE discretion to
consider additional environmental factors in the OSRP
approval process. Section 1321(j)(5)(A)(i), which directs the
agency to issue regulations requiring operators “to prepare
and submit . . . a plan for responding, to the maximum extent
practicable, to a worst case discharge,” suggests agency
discretion because of the open-ended nature of the phrase
“maximum extent practicable.” On the other hand,
§ 1321(j)(5)(D) reads like a checklist statute, and BSEE must
approve “any plan that meets the requirements of this
ALASKA WILDERNESS LEAGUE V. JEWELL 19
paragraph,” 33 U.S.C. § 1321(j)(5)(E)(iii). Thus, these
sections suggest no agency discretion.
The statute’s structure adds to the ambiguity. These two
directives are listed in two separate portions of the paragraph
that delineates an OSRP’s requirements. 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). “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.” Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191,
2210 (2014) (plurality opinion). We must defer to the
agency’s interpretation of the statute unless it is unreasonable.
Chevron, 467 U.S. at 843.
B. Chevron Step 2: The Reasonableness of the Agency’s
Interpretation
Reaching Chevron’s second step, we must determine if
the agency’s interpretation of the ambiguous governing
statute is a reasonable one. When “the agency’s answer is
based on a permissible construction of the statute,” we must
defer to the agency’s view and not “impose [our] own
construction on the statute.” Chevron, 467 U.S. at 843; see
also Young v. Cmty. Nutrition Inst., 476 U.S. 974, 981 (1986)
(noting that the court is “preclude[d] . . . from substituting its
judgment for that of the [agency]” when the agency’s
interpretation of a statute it administers is “sufficiently
rational”).
BSEE argues that the purpose of an OSRP is to ensure
that private operators have response capacity consistent with
federal contingency plans in the event of a worst case
20 ALASKA WILDERNESS LEAGUE V. JEWELL
discharge. Thus, Congress has limited its discretion to
reviewing an OSRP to determine if it meets the six
enumerated requirements of section 1321(j)(5)(D) and the
agency’s coterminous implementing regulations. BSEE reads
its regulations as providing further refinement of the statutory
criteria and the framework under which compliance with the
criteria will be assessed. Since the statute mandates that the
President (and now, BSEE by delegation) “shall . . . approve
any plan that meets the requirements of this paragraph,”
33 U.S.C. § 1321(j)(5)(E), BSEE contends that it lacks
discretion to consider factors apart from these delineated
statutory criteria.
We conclude that BSEE’s interpretation of the statute is
reasonable, and thus we must defer to the agency.
Significantly, the sections on which the agency relies,
§ 1321(j)(5)(D)–(E), speak directly to what a plan shall
contain and what the agency shall approve. Section
1321(j)(5)(A)(i), in contrast, is more circuitous, discussing
what the President’s implementing regulations should require.
See id. (“The President shall issue regulations which require
an owner or operator . . . to prepare and submit to the
President a plan for responding, to the maximum extent
practicable, to a worst case discharge . . . .”). In other words,
the agency reads § 1321(j)(5)(A)(i) as an instruction to issue
regulations that delineate how operators can comply with the
statutory checklist enumerated at § 1321(j)(5)(D). Thus, the
agency reasonably understands its discretion to be
constrained by § 1321(j)(5)(D)’s list of requirements which,
upon their satisfaction, trigger mandatory agency approval of
the OSRP.
Our deference to the agency’s reading is similar to that
provided by the Supreme Court in Young v. Community
ALASKA WILDERNESS LEAGUE V. JEWELL 21
Nutrition Institute, 467 U.S. 974 (1986). In Young, the
Supreme Court considered a statute which required the Food
and Drug Administration (“FDA”) to “promulgate regulations
limiting the quantity [of poisonous or deleterious substances
that cannot be avoided within foods] therein or thereon to
such an extent as [the agency] finds necessary.” 476 U.S. at
977 (quoting 21 U.S.C. § 346). The FDA interpreted this
provision to “give it the discretion to decide whether to
promulgate” a quantity limit, while the plaintiffs interpreted
the statute to require the agency to set a limit whenever a
poisonous substance was present. Id. at 977 (emphasis
added), 980. Applying the Chevron framework, the Court
first found the statutory language to be ambiguous as to the
question of the agency’s discretion and then deferred to the
FDA’s interpretation, finding it “to be sufficiently rational to
preclude a court from substituting its judgment for that of the
[agency].” Id. at 980–81. No regulation explicitly reflected
the agency’s view of its discretion, but its position was
consistent with the statutory scheme and longstanding agency
policy. Id. at 977, 981–84.
Just like in Young, BSEE’s position is consistent with the
statute’s scheme and the agency’s longstanding policy. The
applicable regulations “provide specific instructions to
operators as to what they must do to meet [the] Clean Water
Act requirements,” which then trigger the agency’s
mandatory approval under § 1321(j)(5)(E)(iii). E.g., compare
30 C.F.R. § 254.5(b) (requiring the OSRP to “be consistent
with the National Contingency Plan and the appropriate Area
Contingency Plan(s)”) with 33 U.S.C. § 1321(j)(5)(D)(i)
(imposing the same requirement); compare 30 C.F.R.
§ 254.23(g) (requiring information about procedures the
operator “will follow in the event of a spill”) with 33 U.S.C.
§ 1321(j)(5)(D)(iii) (requiring the OSRP to “identify, and
22 ALASKA WILDERNESS LEAGUE V. JEWELL
ensure by contract or other means . . . the availability of,
private personnel and equipment necessary to remove to the
maximum extent practicable a worst case discharge”).
Further, BSEE’s interpretation is consistent with the
Department’s longstanding position on the interaction of its
regulations with the statute. When promulgating its 1997
final rule, MMS understood its regulatory requirements to be
coextensive with the statutory requirements, stating in the
rule’s preamble that “[t]he rule will bring MMS regulations
into conformance with the Oil Pollution Act of 1990.”
Response Plans for Facilities Located Seaward of the Coast
Line, 62 Fed. Reg. 13991, 13991 (Mar. 25, 1997). Moreover,
the Department has expressly confirmed this understanding
in its briefing on appeal. The fact that “the Secretary’s
interpretation comes to us in the form of a legal brief . . . does
not, in the circumstances of this case, make it unworthy of
deference,” so long as it “reflect[s] the agency’s fair and
considered judgment on the matter in question.” Auer v.
Robbins, 519 U.S. 452, 462 (1997).
The legislative history of the Oil Pollution Act’s passage
lends further support to BSEE’s interpretation. See Natural
Res. Def. Council v. Envtl. Prot. Agency, 526 F.3d 591, 603
(9th Cir. 2008) (providing that we may look to legislative
history to assist our interpretation of an ambiguous statute
under Chevron). In its comments on the Senate version of the
Oil Pollution Act of 1990, much of whose language was
incorporated into the House Bill that ultimately passed and
amended the Clean Water Act, the Committee on Commerce,
Science, and Transportation noted that the bill imposed
“[s]pecific requirements for the [oil spill contingency] plans.”
S. Rep. 101-99, at 4 (1989), reprinted in 1990 U.S.C.C.A.N.
749, 752. This suggests that Congress likely meant to impose
specific obligations upon operators in their oil spill response
ALASKA WILDERNESS LEAGUE V. JEWELL 23
preparations, and not create an amorphous standard for the
Executive Branch to interpret and enforce. See also
136 Cong. Rec. S11931-01 (Aug. 2, 1990) (statement of Sen.
Warner) (noting that “[t]he bill imposes rigorous new
contingency planning requirements on areas and vessels,”
while obliging “the President to take charge of all major
oilspills and to determine when cleanup is complete”).
The dissent focuses on the breadth of § 1321(j)(5)(A)(i)’s
“maximum extent practicable” language and emphasizes that
because this language reads like a broad mandate, the
evaluation of which would require significant agency
discretion, BSEE must engage in ESA consultation before
approving an OSRP. Under the dissent’s view,
§ 1321(j)(5)(A)(i)’s “maximum extent practicable” language
serves as an independent “standard” that must be met in
addition to the list of enumerated requirements at
§ 1321(j)(5)(D). The dissent’s reading of the statute,
however, gives short shrift to the ambiguity in the statute’s
text and structure.
Of course, we agree that § 1321(j)(5)(A)(i)’s “maximum
extent practicable” language is broad, and the statute arguably
could be read to support the dissent’s interpretation. But we
must accord Chevron deference to the agency’s alternative
understanding. While focusing on § 1321(j)(5)(A)(i), the
dissent largely overlooks the presence of § 1321(j)(5)(D),
which lays out a list of specific requirements that OSRPs
must meet. BSEE reads this subsection, and the mandatory
agency approval required once the specific requirements are
met, see § 1321(j)(5)(E), to eliminate its discretion. This
interpretation is assuredly a “permissible construction” of the
ambiguous statutory language and structure. Chevron,
467 U.S. at 843. And it is not our role to displace the
24 ALASKA WILDERNESS LEAGUE V. JEWELL
agency’s reasonable construction of a statute that it is
responsible for administering. See Mead, 533 U.S. at 229(“[A] reviewing court has no business rejecting an agency’s
exercise of its generally conferred authority to resolve a
particular statutory ambiguity simply because the agency’s
chosen resolution seems unwise.”).
The dissent resists the Chevron deference that we must
give to the agency’s interpretation by finding the
implementing regulations to be an unreasonable interpretation
of the statute. The regulations define “maximum extent
practicable” to mean “within the limitations of available
technology, as well as the physical limitations of personnel.”
30 C.F.R. § 254.6. The dissent argues that this definition is
incomplete because it fails to account for the superlative
nature of the word “maximum” and instead provides a
definition only of what is “practicable.” Since the definition
is incomplete, the dissent reasons, it is therefore
unreasonable, obviating the need for this court to apply
Chevron’s framework.
Tellingly, even Plaintiffs do not rely on the purported
vagueness of the agency’s implementing regulations. To the
contrary, Plaintiffs’ counsel conceded the adequacy of the
regulatory definition at oral argument, stating that “[t]he
regulations clearly define maximum extent practicable” and
that “the regulations are fully consistent with” the maximum
extent practicable standard. Oral Argument at 7:55, 8:44,
available at http://www.ca9.uscourts.gov/media/view_
video.php?pk_vid=0000006548. We also do not find the
regulatory definition to be problematic. “In the absence of
. . . a definition, we construe a statutory term in accordance
with its ordinary or natural meaning.” F.D.I.C. v. Meyer, 510
U.S. 471, 476 (1994). A natural reading of the regulation
ALASKA WILDERNESS LEAGUE V. JEWELL 25
indicates that operators must be prepared to respond to an oil
spill to the highest degree possible (to the “maximum”), not
exceeding “the limitations of available technology . . . [and]
the physical limitations of personnel.” 30 C.F.R. § 254.6.
While the agency could have been more explicit by
specifying that “maximum extent practicable” means the
highest degree of response possible “within the limitations of
available technology,” id., such a clarification would be
superfluous since the plain meaning of “maximum” leads to
the same reading. Therefore, we cannot say that the agency
regulation constitutes an “[im]permissible construction of the
statute.” Chevron, 467 U.S. at 843.
More importantly, this regulatory definition is largely
peripheral to our analysis. We defer to the agency’s
interpretation here not because of its regulatory promulgation,
but because we face a “statutory inconsistency . . . giving rise
to an ambiguity that calls for Chevron deference.” Cuellar de
Osorio, 134 S. Ct. at 2210 (plurality opinion). The text and
structure of the statute are unclear as to whether the statute
grants the agency discretion to use a broad, indeterminate
standard to review OSRPs, or whether it mandates approval
of plans that meet the requirements of § 1321(j)(5)(D).
“Confronted with a self-contradictory, ambiguous provision
in a complex statutory scheme, the [agency] chose a textually
reasonable construction consonant with its view of the
purpose and policies underlying . . . [the] law.” Id. at 2213.
We do not “assume as our own the responsible and expert
agency’s role,” and instead defer to BSEE’s reasonable
interpretation of the gap in a statute it has been tasked with
interpreting. Id.
We address a number of additional arguments raised by
Plaintiffs. They note that the statutory sections governing the
26 ALASKA WILDERNESS LEAGUE V. JEWELL
federal government’s spill plans, at §§ 1321(d)(1)–(2),
(j)(4)(B)–(D), contain the same “shall approve” formulations,
and yet are admittedly subject to ESA’s consultation
requirements. These provisions, however, are different.
Section 1321(d)(1) states that the President “shall prepare and
publish a National Contingency Plan for removal of oil and
hazardous substances pursuant to this section.” Nothing in
the text prohibits such a plan from being prepared in light of
concerns that an ESA consultation might raise. Similarly,
§ 1321(d)(2) specifies that the National Contingency Plan
“shall provide for efficient, coordinated, and effective action
to minimize damage from oil and hazardous substance
discharges,” and “shall include, but not be limited to” a list of
enumerated factors. This suggests that a National
Contingency Plan could (and should) contain additional
factors that might be deemed necessary after an ESA
consultation occurs. Likewise, while the President shall
“review and approve Area Contingency Plans,” this
language does not suggest that any plan meeting a list of
set requirements must be approved. Compare id.
§ 1321(j)(4)(B)–(D) with id. § 1321(j)(5)(D)–(E).
Section 1321(j)(5)(E)’s language, in contrast, requires that
the President “shall . . . approve any plan that meets the
requirements of this paragraph.” This language leaves no
room for the inclusion of additional factors. The absence of
agency discretion is apparent not from the words “shall
approve” alone, but from the phrase “shall . . . approve any
plan that meets the requirements of this paragraph.” Id.
§ 1321(j)(5)(E) (emphasis added).
Plaintiffs next argue that “[t]he regulations never say that
so long as a plan addresses in some fashion various questions,
the agency must conclude the plan meets the statutory
ALASKA WILDERNESS LEAGUE V. JEWELL 27
mandates.” Pls.’ Opening Br. at 46. Yet, 30 C.F.R.
§ 254.9(b) explicitly states that the information in the OSRP
is collected to “ensure that the owner or operator . . . is
prepared to respond to an oil spill” and to “verify compliance
with the mandates” of the Oil Pollution Act’s amendments to
the Clean Water Act. In any event, such an explicit
pronouncement is not a prerequisite for Chevron deference to
apply. See, e.g., Young, 476 U.S. at 981–82 (deferring to the
FDA’s interpretation of an ambiguous statutory provision
even in the absence of a regulation explicitly stating the
agency’s position); Fernandez v. Brock, 840 F.2d 622, 633
(9th Cir. 1988) (deferring to the Secretary of Labor’s
interpretation of statute that was ambiguous as to the presence
of agency discretion).
Finally, plaintiffs argue that ESA’s consultation
requirement is triggered because BSEE exercises discretion
in deciding whether the six statutory criteria are met. This
position, however, is irreconcilable with the Supreme Court’s
decision in National Association of Home Builders v.
Defenders of Wildlife, 551 U.S. 644, 671 (2007), which held
that ESA cannot defeat an agency’s nondiscretionary
statutory directive. The statute at issue there listed nine
statutory criteria; if those criteria were satisfied, the agency
bore a nondiscretionary duty to perform a specific action
(namely, transfer certain permitting powers to state
authorities). Id. at 661. Home Builders’s analysis is directly
applicable here.9 BSEE may only determine whether the
9
The dissent points out that Home Builders relied in part on the fact that
ESA was passed after the statute requiring the transfer of permitting
power, while the provisions of the Clean Water Act at issue here were
enacted in 1990, post-dating ESA’s 1972 passage. See Home Builders,
551 U.S. at 662–64. This factual distinction in timing does not change the
28 ALASKA WILDERNESS LEAGUE V. JEWELL
statutory criteria in 33 U.S.C. § 1321(j)(5)(D) have been met,
and if they have been met, BSEE must approve the plan.
Since determining whether the statutory criteria have been
achieved does not trigger ESA’s consultation requirement,
Plaintiffs’ argument must again fail.
In sum, deferring to the agency’s interpretation of the
statute that it has been entrusted to administer, and its own
regulations, we hold that BSEE’s approval of the OSRPs was
a nondiscretionary act that did not trigger a requirement for
inter-agency consultation under the ESA.
III.
The National Environmental Policy Act
Finally, Plaintiffs argue, and the dissent agrees, that
BSEE violated NEPA by failing to prepare an Environmental
Impact Statement (“EIS”) before approving the OSRPs.
NEPA requires federal agencies to provide an EIS for all
“major Federal actions significantly affecting the quality of
the human environment.” 42 U.S.C. § 4332(C); see also
Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004).
NEPA’s implementing regulations define “[m]ajor Federal
action” to include “actions with effects that may be major and
which are potentially subject to Federal control and
responsibility.” 40 C.F.R. § 1508.18. Even when a major
federal action occurs, however, NEPA remains subject to a
“rule of reason” that frees agencies from preparing a full EIS
outcome of our analysis. See, e.g., Grand Canyon Trust v. United States
Bureau of Reclamation, 691 F.3d 1008, 1020 (9th Cir. 2012) (relying on
Home Builders to hold that agency action required in part by a 1992
statute did not require ESA consultation).
ALASKA WILDERNESS LEAGUE V. JEWELL 29
on “the environmental impact of an action it could not refuse
to perform.” Pub. Citizen, 541 U.S. at 769. Thus, “where an
agency has no ability to prevent a certain effect due to its
limited statutory authority over the relevant actions,” the
agency “[does] not need to consider the environmental effects
arising from” those actions. Id. at 770; see also Sierra Club,
65 F.3d at 1513 (“The [Bureau of Land Management’s]
inability meaningfully to influence Seneca’s right-of-way
construction leads us to conclude that the procedural
requirements of NEPA do not apply to this case.”).
Here, as our ESA analysis suggests, BSEE reasonably
concluded that it must approve any OSRP that meets the
statutory requirements. See 33 U.S.C. § 1321(j)(5)(D)–(E).
Thus, even assuming, without deciding, that BSEE’s approval
of Shell’s OSRPs constitutes a “major Federal action,” its
approval is not subject to NEPA’s requirements.
The dissent accepts Plaintiffs’ argument that no authority
prevents BSEE from requiring Shell to make changes to the
OSRPs in order to minimize adverse environmental effects.
On the contrary, BSEE’s authority is just so constrained. The
governing statute mandates that the agency “shall . . . approve
any plan that meets the requirements” of the statutory section.
Id. § 1321(j)(5)(E). This language is similar to the statutory
mandate at issue in Public Citizen, where the governing
statute required that the Federal Motor Carrier Safety
Administration (“FMCSA”) “shall register a person to
provide transportation . . . as a motor carrier if [it] finds that
the person is willing and able to comply with” that statute’s
requirements. Pub. Citizen, 541 U.S. at 766 (alterations in
original) (quoting 49 U.S.C. § 13902(a)(1)). Examining this
statutory mandate, the Supreme Court found that FMCSA
registration of cross-border motor carriers did not trigger
30 ALASKA WILDERNESS LEAGUE V. JEWELL
NEPA review because “FMCSA [had] no ability
categorically to prevent the cross-border operations of . . .
motor carriers, [and thus] the environmental impact of the
cross-border operations would have no effect on FMCSA’s
decisionmaking.” Id. at 768. NEPA review was not required
because the FMCSA lacked the power to consider
environmental consequences outside of its statutory
obligation. See id. at 768–70.
The statute here similarly restricts BSEE’s discretion.
BSEE is required to approve an OSRP that meets the statute’s
requirements, which the agency reasonably interprets to be
the checklist of six requirements set forth in § 1321(j)(5)(D).
Applying NEPA to this process, then, would merely “require
an agency to prepare a full EIS due to the environmental
impact of an action it could not refuse to perform,” which
would clearly violate NEPA’s “rule of reason.” Pub. Citizen,
541 U.S. at 769.
This does not mean that NEPA review is entirely absent.
Indeed, the NEPA environmental assessment that is required
to be conducted as to Shell’s exploration plan expressly
considered the environmental effects of Shell’s OSRPs. As
mentioned supra, an operator’s OSRP, which is the fourth
step of the Clean Water Act’s oil spill response framework,
must be submitted in conjunction with a lessee’s exploration
plan, which is OCSLA’s third step. 30 C.F.R. § 550.219. In
a memorandum dated February 17, 2012, BSEE clarified that
the Chukchi OSRP was considered in the development of an
environmental assessment of Shell’s Revised Exploration
Plan for the Chukchi Sea. Similarly, Shell’s Beaufort Sea
OSRP was considered in the exploration plan Shell submitted
regarding its Flaxman Island Leases. Thus, both of the
OSRPs at issue here underwent NEPA review at OCSLA’s
ALASKA WILDERNESS LEAGUE V. JEWELL 31
third step—which is consistent with the requirement that
OSRPs be submitted at this stage. See id. In sum, we
conclude BSEE is not required to prepare an EIS prior to
approving the OSRPs.
CONCLUSION
BSEE’s approval of Shell’s OSRPs was not “arbitrary,
capricious, . . . or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). In its OSRPs, Shell never asserted, nor
did BSEE ever rely on, a 90 to 95 percent mechanical
recovery rate for spilled oil. According deference, as we
must, to BSEE’s interpretation of the statute and its own
regulations, BSEE lacked discretion to deny approval once it
determined that the OSRPs satisfied the statutory
requirements. Therefore, ESA consultation and NEPA
review were not required.
AFFIRMED.
D.W. NELSON, Senior Circuit Judge, dissenting:
I agree with the majority that the Bureau of Safety and
Environmental Enforcement (the Bureau) did not act in an
arbitrary or capricious manner in approving the oil response
plans, and I concur in the majority opinion as to that issue. I
respectfully dissent, however, from the remainder of the
majority opinion.
In my view, the Bureau was required to engage in
consultation pursuant to the Endangered Species Act (ESA)
before approving Shell’s oil response plans. Moreover, the
32 ALASKA WILDERNESS LEAGUE V. JEWELL
Bureau should have conducted analysis pursuant to the
National Environmental Policy Act (NEPA) before approving
the oil response plans. Thus, I would reverse the grant of
summary judgment as to ESA consultation and compliance
with NEPA.
1. ESA Consultation
The majority holds that the Bureau’s approval of an oil
response plan is a nondiscretionary action, and, thus, the
Bureau had no obligation to consult pursuant to the ESA. I
disagree.
a. Agency Action
The first question is whether the Bureau engaged in
agency action. It did. The duty to consult exists only where
“agency action” is present. Natural Res. Def. Council v.
Houston, 146 F.3d 1118, 1125 (9th Cir. 1998). Agency
action includes “federal agencies’ authorization of private
activities,” such as the Bureau’s approval of the oil response
plans here. Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d
1006, 1021 (9th Cir. 2012); 33 U.S.C. § 1321(j)(5)(F).
Of course, not all agency actions necessitate consultation.
Indeed, only those actions that “may affect” a protected
species trigger the requirement, 50 C.F.R. § 402.14(a), though
the “may affect” requirement is an admittedly low threshold,
Karuk Tribe, 681 F.3d at 1027. Here, the approval of the oil
response plans satisfies the “may affect” standard. In the
event of an oil spill, Shell would have to carry out its oil
response plan, which governs the protection of wildlife. 30
C.F.R. § 254.5(a). Thus, the Bureau’s decision to approve the
ALASKA WILDERNESS LEAGUE V. JEWELL 33
oil response plans, or to require amendments to those plans,
“may affect” a protected species.
b. Agency Discretion
Next, we must consider whether the Bureau had
discretion to approve the oil response plans. It did. “The
ESA’s consultation duty is triggered . . . only when the
agency has authority to take action and discretion to decide
what action to take. There is no point in consulting if the
agency has no choices.” Ctr. for Food Safety v. Vilsack,
718 F.3d 829, 842 (9th Cir. 2013). What is more, “the
discretionary control retained by the federal agency also must
have the capacity to inure to the benefit of a protected
species.” Karuk Tribe, 681 F.3d at 1024.
“Whether an agency must consult does not turn on the
degree of discretion that the agency exercises regarding the
action in question, but on whether the agency has any
discretion to act in a manner beneficial to a protected species
or its habitat.” Natural Res. Defense Council v. Jewell,
749 F.3d 776, 784 (9th Cir. 2014) (en banc). In other words,
if the agency could take action that benefits protected species,
the agency must conduct ESA consultation. See id.; see also
Karuk Tribe, 681 F.3d at 1024 (“[T]o avoid the consultation
obligation, an agency’s competing statutory mandate must
require that it perform specific nondiscretionary acts rather
than achieve broad goals.”). Ultimately, “[t]he relevant
question is whether the agency could influence a private
activity to benefit a listed species, not whether it must do so.”
Karuk Tribe, 681 F.3d at 1025.
In my view, the Bureau’s decision to approve or reject an
oil spill response plan is precisely the kind of discretionary
34 ALASKA WILDERNESS LEAGUE V. JEWELL
act that triggers ESA consultation. The Oil Pollution Act
requires private owners or operators of vessels and facilities,
such as Shell, to prepare an oil spill response plan.
33 U.S.C. § 1321(j). This response plan must explain how an
operator like Shell will 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.”
33 U.S.C. § 1321(j)(5)(A)(i). The phrase “maximum
extent practicable” suggests that Congress intended entities
like Shell to create plans that have the capacity to respond to
an oil spill to the greatest possible degree, given logistical
constraints. See 30 C.F.R. § 254.6 (defining “maximum
extent practicable” as “within the limitations of available
technology, as well as the physical limitations of personnel”).
At the same time, this broad, subjective standard does not
direct the Bureau to act in a specific or clearly defined way,
but, rather, contemplates that the Bureau will exercise its
judgment when determining whether an oil response plan
satisfies the “maximum extent practicable” requirement. See
Karuk Tribe, 681 F.3d at 1024–25.
The implementing regulations bolster my view, as they
make clear that the Bureau can exercise its discretion to
benefit a protected species. For instance, the regulations
require both an owner or operator to identify resources of
“environmental importance” that could be harmed by a
“worst case discharge scenario” and to provide strategies that
will be used to protect those resources. 30 C.F.R.
§§ 254.26(a), (c). In addition, the regulations also call for an
owner or operator to explain how, in the event of an oil spill,
it will “protect beaches, waterfowl, other marine and
shoreline resources, and areas of special . . . environmental
importance.” 30 C.F.R. § 254.23(g)(4). Furthermore, Shell’s
response plans themselves underscore the importance of
ALASKA WILDERNESS LEAGUE V. JEWELL 35
protecting wildlife. Each plan devotes an entire appendix to
discussing wildlife protection tactics and includes measures
to protect wildlife.
Shell and the government would have us hold that the
Bureau lacked discretion here because the Oil Pollution Act
states that the Bureau “shall approve” any oil response plan
that meets the statutory criteria. 33 U.S.C. § 1321. This
compulsory language, the argument goes, reflects the absence
of Bureau discretion. I disagree. The Bureau cannot avoid
consultation here because it is not obligated to “perform
specific nondiscretionary acts.” Karuk Tribe, 681 F.3d at
1024. Neither the Oil Pollution Act nor its implementing
regulations sets forth a rigid, mechanical set of requirements
that specify when the Bureau must approve an oil response
plan. There is no checklist to be ticked off; approval is not
rote. Rather, the Bureau must consider a wide range of
environmental, ecological and other factors in deciding
whether an oil response plan meets the “maximum extent
practicable” standard.
Shell and the government note that the Bureau interprets
the implementing regulations as coextensive with the
“maximum extent practicable” standard. Thus, they contend,
and the majority agrees, both that the regulations do not give
the Bureau any discretion and that we should accord Chevron
deference to the Bureau’s interpretation of the Oil Pollution
Act. Yet again, I disagree.
Our analysis pursuant to Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837 (1984), involves two
questions. First, we ask “whether Congress has directly
spoken to the precise question at issue.” Id. at 842. If so, the
court “must give effect to the unambiguously expressed intent
36 ALASKA WILDERNESS LEAGUE V. JEWELL
of Congress.” Id. at 842–43. But “if the statute is silent or
ambiguous with respect to the specific issue, the question for
the court is whether the agency’s answer is based on a
permissible construction of the statute.” Id.Here, I do not believe the implementing regulations
contain a reasonable definition of “maximum extent
practicable.” The regulations reference the phrase only once.
They provide: “Maximum extent practicable means 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.
If this occupies the full and complete definition of “maximum
extent practicable,” it is unreasonable and not entitled to
deference. The word “maximum,” a superlative, means “the
highest possible magnitude or quantity of something,” or
“highest, greatest.” Maximum, Oxford English Dictionary,
http://www/oed.com/view/Entry/115275?redirectedFrom=
maximum#eid (last visited April 27, 2015). Thus, the phrase
“maximum extent practicable” also has a superlative quality
and therefore must refer to the greatest option in a range of
possibilities. But the Bureau’s definition is not a superlative,
as it refers to a range of possibilities, taking into account
practical limits. Thus, it gives effect only to the term
“practicable” while ignoring the term “maximum.” We
should not defer to this nonsensical and incomplete
definition. Coronado-Durazo v. I.N.S., 123 F.3d 1322, 1324
(9th Cir. 1997) (“We are not obligated to accept an
interpretation that is demonstrably irrational or clearly
contrary to the plain and sensible meaning of the statute.”
(internal quotation marks and citation omitted)). The
regulations merely clarify that owners and operators, such as
Shell, will not be held to an impossibly high standard that
ALASKA WILDERNESS LEAGUE V. JEWELL 37
exceeds current technological capabilities and other logistical
constraints.
The majority relies on the Nat’l Ass’n of Home Builders
v. Defenders of Wildlife, 551 U.S. 644 (2007), to hold that the
Bureau has no discretion to determine whether Shell
complied with the six statutory factors enumerated in the Oil
Pollution Act. I find this argument unpersuasive. In Home
Builders, the Supreme Court noted that the Clean Water Act
required the Environmental Protection Agency to approve an
application to transfer permitting authority to a state, unless
that state lacked the authority to perform the nine functions
spelled out in the statute. Id. at 661. The Court described the
statutory language as “mandatory” and the list of nine
functions as “exclusive,” holding that “if the nine specified
criteria are satisfied, the EPA does not have the discretion to
deny a transfer application.” Id. At the same time, however,
the ESA required consultation, in addition to the nine
enumerated factors. Id. at 662. Faced with these
irreconcilable statutory directives, the Court held that the
later-enacted ESA did not amend the Clean Water Act in part
because requiring ESA consultation would “engraft[] a tenth
criterion onto the [Clean Water Act].” Id. at 663.
This case, however, differs in significant respects from
Home Builders. First, the Supreme Court’s analysis in Home
Builders hinged in part on the fact that the ESA came after
the Clean Water Act. See id. at 662–64. Here, however, the
Oil Pollution Act of 1990 postdated the ESA. 33 U.S.C.
§ 2701 et seq. (Oil Pollution Act); 16 U.S.C. § 1531 et seq.
(ESA, passed in 1972). In fact, Congress passed the Oil
Pollution Act after ESA consultation already had been
required for seventeen years. Thus, the concern that ESA
consultation implicitly amended an exclusive set of statutory
38 ALASKA WILDERNESS LEAGUE V. JEWELL
requirements of the Oil Pollution Act by adding a new
requirement beyond the original enactment is absent here.
Moreover, both parties in Home Builders appeared to agree
that the state possessed the authority to perform each of the
nine enumerated functions but disagreed about whether ESA
consultation added an extra step to the process. See 551 U.S.
at 662. The question here is of a different sort. It is not
whether the “maximum extent practicable” standard adds an
additional step to the approval process for oil spill response
plans but about how to interpret “maximum extent
practicable,” which is one of many subjective items the
Bureau must consider in whether to approve an oil spill
response plan.
2. NEPA Consultation
The majority holds that because the Bureau had no choice
but to approve any oil response plan that met the enumerated
requirements in the Oil Pollution Act, the Bureau was exempt
from NEPA review. I disagree.
NEPA “declare[s] a national commitment to protecting
and promoting environmental quality.” Ashley Creek
Phosphate Co. v. Norton, 420 F.3d 934, 945 (9th Cir. 2005).
NEPA achieves these broad goals by “merely prohibit[ing]
uninformed—rather than unwise—agency action.” Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989).
Specifically, NEPA requires agencies to prepare a detailed
environmental impact statement (EIS) for “major Federal
actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C). An EIS “must
inform decisionmakers and the public of the reasonable
alternatives which would avoid or minimize adverse impacts
or enhance the quality of the human environment.” League
ALASKA WILDERNESS LEAGUE V. JEWELL 39
of Wilderness Defenders-Blue Mountains Biodiversity Project
v. U.S. Forest Serv., 689 F.3d 1060, 1068–69 (9th Cir. 2012)
(internal quotation marks and citation omitted).
Here, the Bureau did not conduct any NEPA analysis,
which the majority forgives, reasoning that approval of the oil
response plan fell within the “rule of reason.” Dep’t of
Transp. v. Pub. Citizen, 541 U.S. 752, 769 (2004). In other
words, where an agency is obligated to take specific action,
an analysis of the environmental impact of that action serves
no purpose. Id. But this exception does not apply where an
agency has “statutory authority to regulate the environmental
consequences” of a major federal action. League of
Wilderness Defenders-Blue Mountains Biodiversity Project
v. U.S. Forest Serv., 549 F.3d 1211, 1217 (9th Cir. 2008).
That is the circumstance here.
The Bureau did in fact possess the kind of discretion that
necessitated NEPA review. The Oil Pollution Act and its
implementing regulations grant the Bureau significant
authority to regulate the activities of owners and operators of
offshore facilities. The regulations demand that the plan
include provisions for protecting wildlife and areas of special
environmental importance. 30 C.F.R. §§ 254.23(g)(3)–(4),
(7). In addition, the Bureau must apply the broad and
amorphous “maximum extent practicable” standard in
considering the validity of an oil response plan. 33 U.S.C.
§§ 1321(j)(5)(A)(i) & (D)(iii). This subjective process gives
the Bureau the authority to require amendments to the plan.
Id. at § 1321(j)(5)(E)(ii). Thus, I would hold that because the
Bureau regulates the response activities and prevention
efforts of entities like Shell, and because it retains authority
to ensure that those entities’ response efforts will protect the
40 ALASKA WILDERNESS LEAGUE V. JEWELL
environment effectively in the event of an oil spoil, it is not
exempt from its duty to conduct NEPA review.
Morever, the Oil Pollution Act specifically directs the
Bureau to consider environmental factors in its
decisionmaking process. Thus, requiring NEPA analysis is
squarely in line with “NEPA’s core focus on improving
agency decisionmaking.” Pub. Citizen, 541 U.S. at 769 n.2;
40 C.F.R. § 1500.1(c). Because environmental protection lies
at the core of the Bureau’s duties pursuant to the Oil Pollution
Act, NEPA review would not offend the rule of reason.
I also do not think that the Bureau discharged its duty to
conduct NEPA review by relying on previous analyses that
considered the environmental impact of oil and natural gas
exploration in the Arctic. Certainly, an agency may rely on
prior analysis to discharge its duties pursuant to NEPA. See
Pub. Citizen, 541 U.S. at 767; 40 C.F.R. § 1500.1(c)
(“NEPA’s purpose is not to generate paperwork—even
excellent paperwork—but to foster excellent action.”); 43
C.F.R. § 46.120(b) (“If existing NEPA analyses include data
and assumptions appropriate for the analysis at hand, the
[agency] should use these existing NEPA analyses and/or
their underlying data and assumptions where feasible.”).
But an agency cannot discharge its duties pursuant to
NEPA solely by relying on prior analyses if those analyses do
not fulfill NEPA’s purpose of ensuring “that the agency has
taken a hard look at the environmental effects of the proposed
action.” Ctr. for Biological Diversity v. U.S. Forest Serv.,
349 F.3d 1157, 1166 (9th Cir. 2003) (internal quotation marks
and citation omitted). Here, the documents on which the
Bureau relied did not discuss alternatives to approving Shell’s
response plans. N. Idaho Cmty. Action Newtork v. U.S. Dep’t
ALASKA WILDERNESS LEAGUE V. JEWELL 41
of Transp., 545 F.3d 1147, 1153 (9th Cir. 2008) (noting an
EIS requires “rigorous” evaluation of alternatives); 43 C.F.R.
§ 46.120(c). The prior analyses do provide some
consideration of oil spill response techniques, but they have
nothing to say about alternatives to Shell’s proposed plans.
The Bureau did not discharge its duty pursuant to NEPA.
Because I would reverse the grant of summary judgment
to Shell as to the duty to conduct ESA consultation and
NEPA analysis, I respectfully dissent.