260 F. Supp. 3d 11
D.D.C.2017Background
- The Deepwater Horizon spill prompted CEQ and an independent commission to recommend Interior revisit its NEPA procedures, especially categorical exclusions for offshore drilling.
- CEQ regulation 40 C.F.R. § 1507.3(a) directs agencies to adopt NEPA implementing procedures and to “continue to review” and “revise them as necessary.”
- Interior announced an OCS categorical-exclusion review in 2010; the review remained ongoing for years while Interior continued to approve offshore actions using categorical exclusions.
- Center for Biological Diversity (CBD) petitioned Interior to repeal certain categorical exclusions and filed suit in 2016 seeking to compel Interior to complete its review, decide whether revisions were needed, and publish any decision and revisions within court-ordered deadlines.
- Interior moved to dismiss; the Court granted dismissal, holding § 1507.3(a) does not create a discrete, mandatory duty enforceable under the APA § 706(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 40 C.F.R. § 1507.3(a) mandates completion of an agency's NEPA-procedures review (and a decision on revisions) | CBD: § 1507.3(a)’s “shall continue to review” and “revise as necessary” creates a mandatory duty to complete the review and decide whether to revise | Interior: The regulation imposes an ongoing, discretionary review duty, not a required finite decision | Court: No mandatory duty to complete review; duty is continuous and discretionary |
| Whether § 1507.3(a) requires publication of the agency’s decision about revisions | CBD: Final decision must be published (e.g., Federal Register) | Interior: Regulation only requires initial publication for procedures; no publication duty for ongoing review outcomes | Court: No independent publication requirement in § 1507.3(a) |
| Whether the duties in § 1507.3(a) are sufficiently definite/discrete to be enforced under APA § 706(1) | CBD: Agency’s prolonged inaction on the review is a discrete, reviewable failure to act | Interior: The regulation prescribes broad, programmatic obligations unsuitable for judicial compulsion | Court: Duties are programmatic and non-discrete; § 706(1) claim fails |
| Whether an agency’s commencement of a voluntary review creates a judicially enforceable obligation to finish it | CBD: Once Interior started the review, APA requires it to proceed with reasonable dispatch | Interior: Starting a voluntary review does not convert it into a mandatory, legally enforceable duty absent a statutory/regulatory command | Court: Starting a review alone doesn’t create a mandatory duty; Cutler is distinguishable because there the review implemented a statutory mandate |
Key Cases Cited
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (§ 706(1) requires a discrete, mandatory agency action; courts may not compel broad programmatic duties)
- Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) (NEPA’s EIS requirement is central; CEQ has regulatory authority under NEPA)
- Cutler v. Hayes, 818 F.2d 879 (D.C. Cir. 1987) (agency must proceed with reasonable dispatch where review implements a statutory duty)
- Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011) ("shall ... as necessary" formulation can leave agency discretion too broad to support a nondiscretionary duty)
- El Paso Natural Gas Co. v. United States, 750 F.3d 863 (D.C. Cir. 2014) (general follow-the-law directives fail SUWA’s discreteness test)
- Piedmont Environmental Council v. FERC, 558 F.3d 304 (4th Cir. 2009) (agency must consult CEQ before revising NEPA-implementing regulations; did not decide that §1507.3(a) requires a final publish/decide step)