Center for Biological Diversity v. Zinke, Civil Action No. 2016-0738

Background

Deepwater Horizon spill (2010) prompted CEQ and presidential commission recommendations to revise Interior’s NEPA procedures, particularly categorical exclusions permitting no project-specific environmental review.
CEQ regulation 40 C.F.R. § 1507.3(a) requires agencies to adopt NEPA implementing procedures and to “continue to review” and “revise them as necessary.”
Interior announced a review of its categorical exclusions for Outer Continental Shelf (OCS) decisions in 2010; the review remained ongoing more than six years later, while Interior continued approving OCS actions using existing categorical exclusions.
Center for Biological Diversity (CBD) petitioned for rulemaking to eliminate relevant categorical exclusions; after receiving no timely final decision, CBD sued under the Administrative Procedure Act (APA) § 706(1) seeking orders to (a) compel Interior to act on the petition, (b) complete the NEPA-procedures review within 90 days, and (c) issue revisions within 120 days.
Interior moved to dismiss; it later denied the petition (mooting that claim). The district court granted Interior’s motion and dismissed CBD’s remaining claim that Interior unreasonably delayed completion/publication of its NEPA-procedures review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 40 C.F.R. § 1507.3(a) creates a mandatory duty to complete an agency's ongoing review of NEPA procedures (i.e., make a final decision whether revisions are needed)	CBD: §1507.3(a) uses mandatory language and therefore requires Interior to finish the review and decide whether to revise procedures.	Interior: §1507.3(a) requires only a continuous duty to review and to revise "as necessary," not a mandatory, time‑bound final decision.	Court: No mandatory duty to complete the review; the regulation prescribes an ongoing, non‑finite obligation.
Whether §1507.3(a) requires publication/announcement of the review’s results in the Federal Register	CBD: Agency must publish final decision whether revisions are needed.	Interior: The regulation only requires initial publication when adopting procedures; it contains no publication requirement for ongoing review outcomes.	Court: No separate publication duty arises from §1507.3(a). Any notice-and-comment duties would derive from the APA, not §1507.3(a).
Whether the “as necessary” language is sufficiently mandatory to support an APA §706(1) claim for unreasonable delay	CBD: "Revise them as necessary" imposes an enforceable obligation to revise where warranted.	Interior: "As necessary" confers discretion; similar formulations have been held non‑mandatory.	Court: "Shall ... revise as necessary" is discretionary and not sufficiently mandatory for §706(1).
Whether the duty in §1507.3(a) is a discrete, reviewable agency action under §706(1)	CBD: Failure to finish review is compelable delay of agency action.	Interior: The regulation prescribes broad, programmatic, ongoing review and not a discrete, final action; courts cannot supervise internal deliberations.	Court: The duty is non‑discrete and programmatic; §706(1) only reaches discrete, mandatory actions, so CBD’s claim fails.

Key Cases Cited

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (discrete, mandatory action required for APA §706(1) relief)
Department of Transportation v. Public Citizen, 541 U.S. 752 (NEPA‘s EIS requirement and CEQ regulatory authority)
Russello v. United States, 464 U.S. 16 (expressio unius inference from differing statutory language)
Cutler v. Hayes, 818 F.2d 879 (D.C. Cir.) (agency must proceed with reasonable dispatch when method chosen implements an existing statutory duty)
Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir.) ("as necessary" language too discretionary to create enforceable duty)
El Paso Nat. Gas Co. v. United States, 750 F.3d 863 (D.C. Cir.) (general follow‑the‑law directives fail SUWA discreteness test)