36 F.4th 850
9th Cir.2022Background
- Environmental groups (EDC, Santa Barbara Channelkeeper, CBD, Wishtoyo) used FOIA to learn BOEM/BSEE had authorized ~51 offshore well-stimulation permits (including hydraulic fracturing/acidizing) without prior environmental review.
- The agencies settled prior suits and issued a programmatic Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) for allowing unrestricted well-stimulation treatments on Pacific OCS platforms; no programmatic EIS was prepared.
- Plaintiffs (environmental groups) and State of California/Coastal Commission sued alleging violations of NEPA, the ESA (failure to consult), and the CZMA (failure to perform consistency review); oil-industry parties intervened.
- The district court granted summary judgment to defendants on NEPA but granted summary judgment to plaintiffs on ESA and CZMA claims and enjoined permit approvals until consultation and consistency review were completed.
- Ninth Circuit: held EA/FONSI were reviewable final agency action and ripe; reversed district court on NEPA (EA inadequate; EIS required), affirmed on ESA and CZMA, vacated the EA, and instructed injunctive relief to bar permit approvals until an EIS and required consultations/consistency review are completed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Final agency action (APA jurisdiction) | EA/FONSI consummated agency decision and have legal effect allowing permits; thus reviewable now | EA/FONSI are programmatic/preliminary; site-specific permits must be issued before review | EA/FONSI are final agency action under Bennett; jurisdiction exists |
| Ripeness of NEPA/CZMA claims | Procedural injuries are ripe now; delay would deny procedural protections and cause hardship | Claims unripe until site-specific permit decisions | Prudential ripeness satisfied under Ohio Forestry factors; review now appropriate |
| NEPA adequacy of EA (hard look) | EA relied on flawed assumptions (low frequency forecast; reliance on EPA NPDES monitoring) and failed to consider reasonable alternatives | Agencies had discretion; forecast and reliance on NPDES were reasonable; EA sufficient | EA arbitrary and capricious: relied on incorrect assumptions, failed to take hard look, and failed to consider reasonable alternatives |
| Failure to prepare EIS | Substantial questions and data gaps (toxicology, impacts to unique marine area and listed species) warranted an EIS | Impacts not likely significant; EA and existing monitoring sufficed | Multiple 40 C.F.R. §1508.27 significance factors met; EIS required; EA vacated and remanded for EIS |
| ESA consultation requirement | Programmatic EA/FONSI amounted to affirmative, discretionary agency action that triggers §7 consultation | No discrete agency action; consultation deferred to site-specific permits | EA/FONSI constituted agency action under Karuk test; agencies violated ESA by not consulting; summary judgment for plaintiffs affirmed |
| CZMA consistency review | Programmatic authorization is a “Federal agency activity” under §1456(c)(1) and not limited to §(c)(3) permit-level review; California’s review required now | CZMA review should be deferred to applicant-level §(c)(3) process; EA is a bare NEPA document | Programmatic action qualifies as Federal agency activity and falls outside exclusive §(c)(3) scope; CZMA violation affirmed |
| Injunctive relief scope | Injunction needed to prevent irreparable environmental harm until ESA/CZMA compliance and EIS complete | Injunction overly broad; monetary harms to industry outweigh plaintiffs’ speculative harms | Injunction upheld as not an abuse of discretion; court must amend injunction to bar permit approvals until a full EIS and requisite consultations/consistency review are completed |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (final agency action requires consummation of decision-making and legal consequences)
- Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (ripeness test for procedural vs substantive environmental claims)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (arbitrary and capricious standard for agency rulemaking/decisions)
- Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (agencies may not rely on incorrect assumptions/data for NEPA hard-look)
- Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846 (substantial question standard for requiring an EIS)
- Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (agency action for ESA §7 when agency affirmatively authorizes private activity and retains discretion)
- Western Watersheds Project v. Abbey, 719 F.3d 1035 (requirement to consider reasonable alternatives in an EA)
- All. for the Wild Rockies v. U.S. Forest Serv., 907 F.3d 1105 (vacatur as presumptive remedy for NEPA violations)