Alaska Wilderness League v. Sally Jewell

Dissent by Judge D.W. NELSON.

OPINION

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 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-defen-dant 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., es *1215…

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 Bureau should have conducted *1227 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 non-diseretionary 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…

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. 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…