982 F.3d 723
9th Cir.2020Background
- Hilcorp proposed the submerged "Liberty" oil-development project in Foggy Island Bay (Beaufort Sea); site lies on the outer Continental Shelf and would be the first fully submerged federal-waters development.
- BOEM approved the project after preparing an EIS under NEPA and relying on a biological opinion (BiOp) from the U.S. Fish and Wildlife Service under the ESA; the project also implicates the MMPA for marine-mammal take.
- CBD challenged BOEM and FWS actions, arguing (a) NEPA violations for flawed greenhouse-gas alternatives analysis and omission of foreign-oil consumption emissions, and (b) ESA/MMPA violations for an unlawful BiOp and incidental-take statement.
- The Ninth Circuit reviewed under OCSLA/APA (original jurisdiction over BOEM approvals) and applied the rule-of-reason/abuse-of-discretion standards for EIS adequacy and ESA review.
- Court held BOEM’s EIS arbitrary and capricious for failing to quantify or adequately explain omission of foreign-oil consumption emissions; held parts of FWS’s BiOp unlawful for relying on indefinite MMPA mitigation and failing to quantify nonlethal (harassment) take of polar bears.
- Remedy: BOEM’s approval vacated and remanded for further proceedings; petition granted in part and denied in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| NEPA: comparability of action vs. no-action lifecycle GHG methods | BOEM used inconsistent methods making alternatives incomparable. | BOEM used compatible approaches (action alternatives included domestic downstream emissions; no-action modeled substituted sources) so comparison was valid. | Court: BOEM did not arbitrarily use different methods; comparisons were sufficiently relative. |
| NEPA: omission of foreign-oil consumption emissions in no-action analysis | BOEM unlawfully omitted reasonably foreseeable indirect emissions from changed foreign consumption. | BOEM said effect would be negligible and lacked reliable data to estimate foreign emissions. | Court: Omission was arbitrary; BOEM must quantify or thoroughly explain/justify inability to estimate foreign consumption emissions. |
| ESA/MMPA: reliance on mitigation measures in FWS BiOp | FWS relied on uncertain, nonbinding, future MMPA authorizations and vague mitigation, making BiOp unlawful. | Government: mitigation measures and polar-bear special rule permit reliance on MMPA process; measures will be secured. | Court: FWS relied on indefinite mitigation tied to future MMPA approvals; measures are not sufficiently specific or certain—reliance was arbitrary and capricious. |
| ESA: incidental-take statement failing to quantify nonlethal take | FWS failed to quantify nonlethal (harassment) take or provide proxy/triggers as required. | Government: nonlethal disturbance may not constitute quantifiable take that requires numeric limits. | Court: FWS contemplated nonlethal harassment and triggers; it should have quantified nonlethal take or explained why not—failure violated ESA. |
| BOEM reliance on BiOp | BOEM cannot satisfy Section 7 by relying on a legally flawed BiOp. | BOEM relied on FWS expertise and its BiOp in approving the project. | Court: Because parts of the BiOp are unlawful, BOEM’s reliance was arbitrary and capricious; approval vacated and remanded. |
Key Cases Cited
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (NEPA requires procedure not specific results)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (arbitrary-and-capricious standard)
- Sierra Club v. F.E.R.C., 867 F.3d 1357 (D.C. Cir.) (agencies must quantify downstream GHGs or explain infeasibility)
- Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917 (9th Cir.) (mitigation must be certain, enforceable)
- Ctr. for Biological Diversity v. Salazar, 695 F.3d 893 (9th Cir.) (ESA Section 7 and incidental-take obligations; MMPA compliance does not substitute for BiOp requirements)
- Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062 (9th Cir.) (NEPA "rule of reason" and hard-look review)
- Bob Marshall All. v. Hodel, 852 F.2d 1223 (9th Cir.) (meaningful no-action alternative analysis)
- Ariz. Cattle Growers Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229 (9th Cir.) (need for numeric caps or adequate proxy in incidental-take statements)
- Ctr. for Biological Diversity v. U.S. Dep't of Interior, 623 F.3d 633 (9th Cir.) (EIS requirement for major federal actions)