456 F.Supp.3d 81
D.D.C.2020Background
- Plaintiffs (Gulf Restoration Network, Sierra Club, Center for Biological Diversity) sued the Department of the Interior, BOEM and officials under NEPA and the APA challenging BOEM’s decisions to hold Gulf of Mexico Lease Sales 250 and 251.
- BOEM prepared a Programmatic EIS, a Multistate EIS, and a December 2017 Supplemental EIS that tiered from the Multistate EIS; records of decision authorized Lease Sale 250 (Feb. 2018) and Lease Sale 251 (June 2018).
- Plaintiffs challenged three aspects of BOEM’s analyses: the no-action alternative, BOEM’s reliance on BSEE safety regulations (and concerns about proposed rollbacks/GAO findings), and BOEM’s use of an 18.75% royalty rate despite a 12.5% shallow-water rate change.
- BOEM explained its no-action alternative as cancellation simply postponing development (likely to occur in future sales), relied on then-effective BSEE rules (proposed rollbacks were not final), and reanalyzed activity forecasts after the royalty change, concluding the change would not materially alter impacts.
- The district court (Walton, J.) applied APA review (arbitrary-and-capricious standard) and denied plaintiffs’ summary judgment, granting summary judgment to the federal defendants and intervenors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| No-action alternative: whether BOEM analyzed a true no-action alternative | BOEM irrationally assumed cancelling a sale merely postpones impacts and that future leasing would produce the same effects, so no true no-action analysis | BOEM reasonably described foreseeable consequences: cancellation would likely lead to later leasing and similar cumulative impacts given OCSLA mandate and Gulf activity | Court: BOEM considered a true no-action alternative; analysis reasonable and consistent with precedent (Oceana) |
| Reliance on BSEE safety rules: whether BOEM unreasonably relied on rules given proposed rollbacks and GAO concerns | BOEM knew substantial safety reforms were being repealed and GAO identified enforcement weaknesses, so reliance was unlawful | BOEM relied on BSEE rules that were still in effect when the Supplemental EIS issued; proposed rules have no legal effect and BOEM reasonably assumed enforcement by BSEE | Court: reliance was not arbitrary or capricious; proposed rules are speculative and GAO findings did not render BOEM’s assumption demonstrably incorrect |
| Royalty rate and supplementation: whether BOEM had to supplement the EIS after shallow-water rate reduced from 18.75% to 12.5% | Using 18.75% understated expected activity and skewed impact analysis; BOEM should have prepared a supplemental EIS | BOEM reanalyzed via Office of Resource Evaluation, found the change would not materially alter forecasts or impacts; new info not significant to require supplementation | Court: BOEM took a hard look and reasonably declined to prepare a supplemental EIS; decision not arbitrary or capricious |
| Remedy: whether plaintiffs are entitled to vacatur or injunctive relief | Plaintiffs sought vacatur/injunction if NEPA violations proved | Defendants/intervenors argued plaintiffs failed to show entitlement to equitable relief | Court: did not reach remedy because plaintiffs did not prevail on merits; relief denied |
Key Cases Cited
- Indian River Cty. v. U.S. Dep’t of Transp., 945 F.3d 515 (D.C. Cir. 2019) (NEPA imposes procedural obligations; review under APA)
- Theodore Roosevelt Conservation Partnership v. Salazar, 661 F.3d 66 (D.C. Cir. 2011) (NEPA focuses attention on environmental effects; procedural, not substantive, duties)
- Oceana v. Bureau of Ocean Energy Mgmt., 37 F.3d 147 (D.D.C. 2014) (upholding BOEM no-action analysis in Gulf lease context)
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (U.S. 1989) (supplemental EIS required only for significant new information)
- Motor Vehicles Mfrs. Ass’n v. State Farm, 463 U.S. 29 (U.S. 1983) (arbitrary-and-capricious standard and requirement for reasoned explanation)
- Sierra Club v. Federal Energy Regulatory Commission, 867 F.3d 1357 (D.C. Cir. 2017) (EIS deficiencies must be significant enough to undermine informed decisionmaking)
- North Carolina Wildlife Federation v. North Carolina Dep’t of Transp., 677 F.3d 596 (4th Cir. 2012) (agencies must disclose underlying assumptions when relying on data)
- Center for Biological Diversity v. U.S. Dep’t of the Interior, 623 F.3d 633 (9th Cir. 2010) (agency must not assume identical impacts where controlling law makes outcomes different)
- Friends of Back Bay v. United States Army Corps of Engineers, 681 F.3d 581 (4th Cir. 2012) (finding arbitrary assumptions about enforcement funding undermined NEPA analysis)