Resisting Environmental Destruction on Indigenous Lands, Redoil v. United States Environmental Protection Agency
716 F.3d 1155
9th Cir.2012Background
- Shell sought permits to explore in the Chukchi and Beaufort Seas using the Discoverer drillship and a fleet of support vessels; the drilling would occur July 1 to November 30 each year.
- EPA issued PSD permits requiring Best Available Control Technology (BACT) for the Discoverer when anchored and for attached support vessels, but not for unattached vessels in the fleet.
- REDOIL challenged the permits, arguing BACT should apply to the entire associated fleet within 25 miles of the Discoverer.
- On remand, EPA revised permits to exempt a 500-meter ambient air radius around the drillship from ambient air standards, conditioned on a Coast Guard safety zone and public-access restrictions.
- EAB denied reconsideration and REDOIL petitioned for review, challenging both the BACT applicability to the fleet and the 500-meter ambient air exemption.
- Court applies Chevron deference to the EAB and upholds EPA’s interpretations, denying REDOIL’s petitions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does BACT apply to associated fleet vessels? | REDOIL argues § 7627 unambiguously requires BACT for all vessels near the OCS source. | EPA and Shell contend statute is ambiguous; BACT applies to the Discoverer and attached vessels, not to unattached support vessels. | BACT does not apply to unattached mobile vessels; statute is ambiguous and EPA's interpretation is reasonable. |
| Is the 500-meter ambient air exemption lawful? | REDOIL claims exemption conflicts with ambient air definition and EPA regulations. | EPA's exemption, conditioned on a safety zone, is consistent with ambient air regulation and Costle letter guidance. | Exemption is a permissible interpretation, not plainly erroneous or inconsistent. |
Key Cases Cited
- Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (Supreme Court 1984) (establishes deference to reasonable agency interpretations when statute is ambiguous)
- In re: Shell Gulf of Mexico, Shell Offshore, Inc., 2010 WL 5478647 (E.P.A. 2010) (EAB decision applying/deferring to agency interpretation on OCS emissions)
- Santa Barbara County Air Pollution Control Dist. v. EPA, 31 F.3d 1179 (D.C. Cir. 1994) (upheld EPA regulation excluding in-transit vessels from OCS sources)
- U.S. v. Mead Corp., 533 U.S. 218 (Supreme Court 2001) (establishes framework for Chevron deference and agency adjudications)
- In re Lyon Cnty. Landfill, 406 F.3d 981 (8th Cir. 2005) (EAB decisions treated as formal adjudications worthy of Chevron deference)
- North Cal River Watch v. Wilcox, 633 F.3d 766 (9th Cir. 2011) (legislative history may be consulted to resolve ambiguity)