811 F.3d 1111
9th Cir.2015Background
- BSEE approved Shell’s oil spill response plans for Beaufort and Chukchi Seas without ESA consultation or preparing an EIS under NEPA; the panel majority found BSEE lacked discretion to require further review.
- The dispute turns on interpretation of 33 U.S.C. § 1321(j)(5) (1990 CWA amendments) requiring plans to respond “to the maximum extent practicable” and enumerating six approval criteria.
- The panel majority concluded the statute is effectively mandatory ("shall approve" any plan meeting requirements), so Chevron deference to BSEE resolved any ambiguity and foreclosed ESA/NEPA review.
- Judge Callahan (dissenting from denial of rehearing en banc) argues the statute is unambiguous that BSEE must exercise discretion in evaluating plans and therefore must comply with ESA §7 consultation and NEPA where appropriate.
- Dissent emphasizes the statutory text, implementing regulations (30 C.F.R. § 254.*), the National Contingency Plan (NCP) requirements, and Congress’s direction to require amendments to nonconforming plans as evidence that plan approval is discretionary.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 33 U.S.C. § 1321(j)(5) is ambiguous such that Chevron deference to BSEE is warranted | Statute is clear: BSEE must evaluate plans and has discretion to require amendments; no Chevron deference on claim that agency lacks discretion | Statute’s "shall" language and open-ended "maximum extent practicable" create ambiguity; defer to BSEE’s interpretation | Majority accepted agency view and applied Chevron; dissent contends statute unambiguously grants BSEE discretionary review and Chevron was wrongly applied |
| Whether BSEE’s approval is a discretionary action triggering ESA §7 consultation | Approval requires judgment about consistency with NCP and ability to "remove" worst-case discharges to the maximum extent practicable, so ESA consultation is required | If BSEE "must approve" plans meeting statutory criteria, the action is nondiscretionary and ESA §7 does not apply (Home Builders analogy) | Majority held no ESA consultation required; dissent argues Home Builders is inapplicable and ESA consultation should be required |
| Whether NEPA requires an EIS or other NEPA review for plan approval | Because BSEE has discretion to consider environmental values and alternatives, NEPA applies and tiered review could avoid redundancy | If approval is nondiscretionary ministerial act, NEPA does not apply (analogy to Public Citizen) | Majority held NEPA did not apply; dissent maintains NEPA review is required when agency has discretion and potential environmental impacts |
| Proper scope of judicial deference where an agency claims lack of discretion | Courts should not defer to an agency’s claim that a statute removes its discretion; Chevron applies only when statute is genuinely ambiguous | Agency interpretation of its own discretion should receive deference under Chevron when statute is ambiguous | Majority deferred to BSEE; dissent warns against accepting agency self-limiting claims and urges strict textual analysis |
Key Cases Cited
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) (framework for judicial deference to agency statutory interpretations)
- Nat. Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (statute construed as mandatory can preclude ESA consultation)
- Dep't of Transp. v. Public Citizen, 541 U.S. 752 (2004) (NEPA does not apply where agency lacks discretion to consider environmental effects)
- Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004) (permitting tiered ESA review)
- Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191 (2014) (discussing when statutory ambiguity triggers Chevron)