Alaska Wilderness League v. Sally Jewell

Inc.; Mexico Shell Desrochers, Gulf F.3d Shell concern.” public Inc., Intervenor- Offshore at 710. Defendants-Appellees. factors three Connick all Given that 13-35866. No. Turner, conclude against weigh speech protected engage Turner did not Appeals, Court of States United com- he when Amendment the First under Ninth Circuit. City’s about supervisors plained his 13, 2014. Aug. Submitted Argued and em- exempt temporary use hiring and 11, 2015. June Filed ployees. CONCLUSION district the decision affirm

We pursuant claim Turner’s dismissing

court 12(b)(6) reasons stated Rule concurrently filed opinion party Each disposition.

memorandum appeal. costs on own bear its

shall

AFFIRMED. LEAGUE;

ALASKA WILDERNESS Inc.; Diversity, Biological

Center for Inc.; Audobon National

Greenpeace, De Inc.; Resources

Society, Natural Inc.; Council, Conser Ocean

fense Oceana, Inc.; Pacific En Inc.;

vancy, Center; and Resources

vironment Club, Inc.; Plain

REDOIL, Sierra

tiffs-Appellants, Secretary the Interi

Sally JEWELL, Salerno, Bu Director of

or; Brian Safety and Environmental

reau Fesmire, Region

Enforcement; Mark Safety and of Bureau of

al Director Enforcement, Alaska

Environmental Defendants-Appellees,

Region,

Holly A. (argued), Harris Brettny E. Hardy, Jorgensen, and Eric P. Earthjus- tice, Juneau, AK, for Plaintiffs-Appellants. ' Maggie B. Smith (argued), Attorney; Dreher, Robert Acting G. Assistant Attor- ney General, Glazer, B. Bridget David Kennedy McNeil, Hanson, Kent E. Shilton, David C. Attorneys, United States Beaufort in the remote gas resources and and Justice, Environment Department Arctic coast. Alaska’s seas Division, Washington, and Chukchi Resources Natural Sea for the Beaufort leases secured Solic- Shell Office D.C.; Doverpike, Sarah Sea and the Chukchi Interior, Washing- in 2005 itor, Department have been efforts Sally exploration but its Defendants-Appellees D.C., ton, for and legal, logistical, variety of Salerno, waylaid by a and Mark Fesmire. Jewell, Brian multi- including problems, environmental B. William (argued), Sullivan Kathleen drill of its lawsuits,1 of one the wreck ple Mader, Quinn Em S. Adams, David and of suspension temporary and rigs,2 LLP, New & Sullivan Urquhart manuel after in the Arctic drilling activities Parker, & Crowell NY; York, Kyle W. review Spill.3 We Horizon Deepwater AK, for Interve- LLP, Anchorage, Moring by a coali- a claim challenge, another here nors-Defendants-Appellees. Bu- that the groups tion of environmental En- and Environmental Safety of reau (“BSEE”) unlawfully in acted forcement of Shell’s two approving (“OSRPs”). court The district plans favor of judgment in summary granted and intervenor-defen- defendants federal FARRIS, JEROME Before: Shell. We affirm. dant NELSON, and W. DOROTHY NGUYEN, Circuit H. JACQUELINE BACKGROUND Judges. I. NELSON. Judge D.W.

Dissent Statutory Schemes OPINION com- an overview begin with We ap- backdrop to BSEE’s plex NGUYEN, Judge: .Circuit in this case. of the OSRPs proval Off- and Shell Mexico Inc. Gulf of Shell Lands Shelf “Shell”) Continental The Outer many for (collectively Inc. shore seq., es- § 1331 et (“OCSLA”), offshore oil develop sought to have years Cir.2009); (9th Salazar, see also 859 571 F.3d 1.See, In Resisting Envtl. Destruction e.g., Salazar, ERA, REDOIL, 695 Lands, Diversity Biological v. F.3d v. 716 Ctr. digenous for Cir.2013) Cir.2012) (9th (challenging permitting (9th (challenging of the au F.3d and Chuk drilling Beaufort polar exploratory bears take of of incidental thorization Hope Sala Seas); Point v. Vill. Native exploration chi related to of Pacific walruses and Cir.2012) (chal (9th zar, Sea); Biologi Ctr. activity in the Chukchi plans in exploration of lenging (9th F.3d 701 Diversity Kempthorne, 588 v. cal Comm, Sea); Arc Inupiat the Beaufort Sea). Cir.2009) (same, to the Beaufort as (9th Salazar, Fed.Appx. 625 Slope tic approval of Cir.2012) (mem.) (challenging the Kulluk, Braasch, Wreck Gary 2. See plans in the Chukchi drilling exploratory at MM24. Dec. N.Y. Times, Salazar, Hope v. Sea); Vill. Point Native Cir.2010) (9th (mem.) Fed.Appx. 747 Interior, Memo Decision Dep’t U.S. plans exploration approval (challenging Suspension of Certain Regarding randum Seas); Alaska and Chukchi in the Beaufort Drilling Activities in Permitting and Offshore F.3d Kempthorne, League v. Wilderness 12, 2010, Shelf, July Continental Outer (9th vacated, Cir.2008), 559 F.3d 916 http://www.doi.gov/deepwater 1 available explo Cir.2009) approval of (challenging the horizon/loader.cfm?csModule=security/ Sea), dismissed plans in the Beaufort ration nom., getfile&PageID=38390. League v. Wilderness Alaska moot as sub a four-stage- process tablishes for the ex ning at four natiоnal, levels: the regional, ploration levels, and and development and, area lastly, offshore oil at the level of First, individual gas and resources. owners operators and Secretary of of off- First, shore oil facilities. the Interior prepares and maintains a five- national level, the President prepares a year oil National gas leasing program. Contingency Plan that “efficient, sets forth 1344(a). Second, Secretary coordinated, and effective action to mini- may grant oil gas leases for sub mize damage from oil and hazardous sub- merged lands in the outer continental shelf 1321(d)(2). stance discharges.” §Id. Sec- sale, at a lease subject to certain terms ond, Regional Response Teams, co-chaired provisions. 1337(a)-(b). See id. by the Environmental Protection Agency Third, a lessee must “submit an explora and Guard, the Coast prepare Regional plan to Secretary approval,” for Contingency Plans that coordinate “plan- 1340(c)(1), § id. accompanied by an Oil ning, preparedness, and activi- Spill Response required Plan -under the ties” agencies, “states, across fеderal local' Act, Clean Water § 30 C.F.R. see 550.219 governments, private and entities.” 40 (the approval of which is at issue in this 300.105(a); § C.F.R. see also id. at case). In the phase, fourth and final if Third, 300.115. Area prepare Committees exploration oil gas, reveals or a lessee Area Contingency that, Plans “when im- must then submit development “a pro and plemented conjunction with the National plan” duction for Secretary’s approval. Plan, Contingency adequate [are] to re- 1351(a)(1). § 43 U.S.C. Each stage trig move a worst case discharge, and to miti- gers certain analysis, environmental and gate prevent a substantial threat of the Bureau of Ocean Energy Management such discharge.” 33 U.S.C. (“BOEM”) responsible is for managing the § 1321(j)(4)(C)(i). process, including the necessary environ finally, Fourth and and most relevant to mental reviews. See Native Vill. Point this litigation, President promul- must Salazar, Hope F.3d 680 1128 gate regulations that require owners and .2012). Cir operators of offshore oil facilities to sub- While governs OCSLA the development mit an “for OSRP responding, to the maxi- gas resources, of oil and the Clean Water mum practicable, extent to a worst cаse provides a framework for preventing ... of discharge oil or a hazardous sub- responding and to potential spills. oil See (j)(5)(A)(i). § stance.” Id. The Sec- 1321(b). § 33 U.S.C. The Clean Water retary of the Interior delegated this re- Act mandates oil spill contingency plan- sponsibility to BSEE.5 Fed.Reg. 54,757, ’ "lessees,” 4. While OCSLA refers the Clean MMS into divided three new entities. Native Water Act operators.” refers to "owners Vill., and Release, (quoting F.3d at 1127 Press Compare § seq. 1331 et with Interior, Dep't U.S. Salazar Divides MMS's § U.S.C. 1321. Because this case concerns Conflicting 2010), Three (May Missions the Act, of OSRPs under the Water Clean available at http://www.doi.gov/news/ primarily employ "opera- the term pressreleases/Salazar-Divides-MMSs-Three- tors.” Conflicting-Missions.cfm). BOEM now man ages development of offshore resources Initially, 5. single agency, Man- Minerals OCSLA, under and responsible BSEE for agement (“MMS”), Service managed compli- the "enforcement of safety and environmental ance with both and the OCSLA Clean Water Act, functions” under the Clean Water includ 64,432, See Act. 76 Fed.Reg. DOI Secretarial ing approval of the at issue here. OSRPs Id. No. Deepwater Order 3229. After Hori- 2010, however, oil zon Secretary level, Area Com Plan Contingency Area 1991); Fed.Reg. (Oct. 18, 54,761-62 the U.S. 2011). with both must consult (Oct. 18, mittees OSRPs 432-01, 64,448 and National Act’s Fish and Service the Clean Water Wildlife with comply must Atmospheric Administration at 33 U.S.C. and listed Oceanic requirements, six containing a compliance “a annex detailed prepare one 1321(j)(5)(D), § Contingency Area Environ governing Fish and Wildlife Sensitive with necessary C.F.R. 13210)(5)(D)(i); “provide[s] Plan” Plan. Id. ments review” “promptly immediately must procedures to BSEE 550.219. information “require amendments plans, discharges effectively respond submitted require not meet that does any plan the environment. adversely affect” may and “shall paragraph,” 300.210(c)(4)(I). opera of this An ments 40 C.F.R. meets” any plan approve with consistent tor’s OSRP (5)(E)(i)-(iii) (j) § 1321 requirements. stage. established protocols added). (emphasis 1321(j)(5)(D)(i). National lays procedures out also Contingency Plan occurs consultation- Environmental in the case emergency consultation OCSLA throughout both points several spill. See pro Act’s four-tiered actual Clean Water and the 300.305(e). Policy § Environmental National cesses. Species (“NEPA”) Endangered and

Act II. when oil (“ESA”) occur consultations issued first leases arе gas exploration and Dispute The Current stage), 43 U.S.C. (at second OCSLA’s in the context us arises case The before Sec’y 1344(a)(1) (b)(3); see also & of schemes, overlapping these of 338, 312, California, Interior in a chapter “the latest represents and (1984), and 656, L.Ed.2d 496 78 April in beginning back saga long-running are plans exploration lessee again when Ser 2002, Management Minerals when the (at1 stage), third OCSLA’s submitted lease (“MMS”) five-year established vice 1340(c). environmen Additional continental for the outer schedule sale of submission upon takes place tal review Vill., F.3d at Native of Alaska.” shelf plans production and development lessee oil offshore acquired Shell 1126. After including another (OCSLA’s stage), fourth in and Sea in the Beaufort leases 1351(c), review, id. see round of NEPA 2008, it in Sea 2007, in the Chukchi and im of environmental submission and the and the re plans, exploration submitted (“EIS”) governors pact statements were OSRPs, for activities quired states, 1351(f)-(g). id. any affected of summer of in the to commence scheduled disapprove, Secretary may “approve, The charge in of MMS, then which was 2010. development of or modifications” OSRPs, and plans approving exploration that would reject any plan plans, and Beaufort Sea Shell’s approved id. at damage or harm cause serious “probably approved and year in March OSRP coastal, marine, human envi following Sea Chukchi OSRP Shell’s ex against the ronments,” weighed when month. advan potential and the the threat tent of Id. allowing production.

tages oil Horizon Deepwater April 2010 § n 1351(h)(1). shifted Mexico Gulf ways. BOEM in a number landscape Act has sev- Likewise, the Water Clean of ex- over the control assumed in review built of environmental ‍​​​‌‌‌​‌​‌‌​​‌‌​​​​​​‌​‌​​​‌​​‌​‌‌​‌‌​​​​‌‌​‌​​​‍types eral re- assumed and plans, BSEE ploration At stages. throughout various sponsibility 2013) for approving OSRPs. (quoting Pinchot Task Force Gifford Also, following a moratorium on all v. Serv., U.S. Fish & 378 F.3d Wildlife gas drilling, and Department (9th Cir.2004)) (internal quota Interior issued guidance new regarding omitted). tion marks Review under this the content analysis and should narrow, standard “is and [we not do] sub provided See, e.g., OSRPs. U.S. De- stitute judgment [our] for that of the agen partment Interior, Bureau of Ocean cy.” Ecology Castaneda, Ctr. v. 574 F.3d Energy Management, Regulation, and En- (9th Cir.2009) (quoting Lands forcement, Requirements Information McNair, Council v. Plans, Exploration Develоpment and Pro- Cir.2008) (en banc)) (alterations in original) Plans, duction Development Opera- (internal quotation omitted). marks Rath tions Coordination Documents on the OCS er, reversal only proper (2010), available at http://www.boem.gov/ if the agency relied on factors Congress Regulations/Notices-To-Lessees/2010/10- did not intend it consider, entirely n06.aspx.6 In response, Shell updated its failed to consider an important aspect of OSRPs for the Chukchi and Beaufort Seas the problem, or offered an explanation May 2011, again in early 2012. that runs counter to the evidence before approved BSEE the two OSRPs in Febru- or is so implausible that it ary and March of respectively. could be ascribed to a difference Following these approvals, Plaintiffs view or product expertise. sued the Secretary of the Interior Id. (quoting Council, Lands 537 F.3d at Department of the Interior under the Ad- 987) (internal quotation omitted). marks Act, ministrative Procedure challenging Additionally, Chevron, U.S.A., under BSEE’s approval of the OSRPs. Shell Inc. v. Council, Inc., Natural Res. successfully intervened. parties Def. filed U.S. 104 S.Ct. 81 L.Ed.2d 694 for summary cross-motions judgment. (1984), we engage in a three-steр inquiry court, The district following extensive when reviewing an agency’s briefing interpretation argument, and granted summary of a statute that it judgment is entrusted to adminis favor of the federal defen- First, ter. we and must decide dants whether Con Shell. Shell Mex. v. Ctr. Gulf of gress Inc., intended Bio. “the Diversity, No. be able to 3:12-CV- for (D-Alaska speak with the 5, 2013). 00048-RRB of Aug. force law when it ad appeal ambiguity followed. dresses in the statute or fills a space in the law.” enacted United States

STANDARDS OF REVIEW Corp., 218, 229, 121 Mead (2001). “We review 150 L.Ed.2d grant Next, the of summary we judg- novo, ment de ask thus reviewing Congress “whether has directly directly spo the agency’s ken precise action under to the question at Administrative If issue. (“APA”) Procedure Act’s intent arbitrary Congress clear, of ca- and that is the end pricious matter; standard.” Gila River court, Indian for the as aswell Cmty. v. States, United agency, give effect to the unambigu Cir.2013), as amended (July ously expressed intent of Congress.” 6. guidelines These revised super- were then Plans, Development and Operations Coordina- January ceded in Department 2015. U.S. of tion Documents on the OCS Worst Case for Interior, Bureau of Energy Ocean Man- Discharge (2015), and Blowout Scenarios agement, Requirements Explo- at http://www.boem.gov/NTL-2015- available Information for Plans, Development ration and Production N01/. the shoreline toward migrate 842-43, assumed

Chevron, U.S. contractor] response [Shell’s where is silent the statute Finally, if 2778. hand, equipment then and personnel mobilize the issue would as to ambiguous for long deploy as boom reading so the oil and intercept agency’s defer one. a reasonable protection.7 shoreline interpretation 843, 104S.Ct. reading of straightforward on a two.assumptions— OSRPs, made Shell

DISCUSSION “drive spilled oil would percent that would mainland,” half of which toward I. and skimming systems be recovered Procedures Act The Administrative “migrate toward of which would half ap BSEE’s argue that Plaintiffs “seal[ing] purposes shoreline”—for arbitrary the OSRPs' was proval need- response assets shoreline potential the Administra in violation capricious suggests text OSRPs’ Nothing ed.” Act. See Procedures tive per- to 95 predicting Shell was Plaintiffs, Shell 706(2)(A). According Indeed, recovery rate. mechanical cent case that, of a worst in the event assumed esti- it was clear that make Shell’s OSRPs a mechani achieve would discharge, Shell as- response potential shoreline mating the any percent 90 to recovery of cal with an comply in order needed sets assumption Arctic Ocean—an spilled calcula- certain requiring law Alaska state unrealistic as characterize Plaintiffs a worst magnitude regarding tions however, Plaintiffs, unsupported. spill. BSEE’s scenario oil case recórd, shows have misread opera- an information identify specific percent a 90 to 95 never assumed Shell discussing its worst provide when tor must as recovery And even rate. mechanical scenario, regula- and these discharge case did, rely not did it BSEE suming that recovery an estimated not do tions approving Shell’s assumption any such oil. See spilled for rate OSRPs. 254.26(a)-(d). short, sim- the record of Shell’s OSRPs portion pertinent claim that Plaintiffs’ support ply does follows: reads as recovery high impossibly assumed Shell shoreline potential To scale percent. rate of almost pur- needed, planning assets from Moreover, equally clear it is upon assets based these poses, Shell did not that BSEE administrative record 25,- of the assumption percent that me- рercent to 95 purported a rely on day (“bopd”) ] per of oil 000-[barrels Shell’s recovery approving rate chanical offshore escapes primary discharge under were OSRPs While Shell’s OSRPs. at blowout. recovery efforts Atmo- consideration, National Oceanic to 2,500 is assumed bopd unrecovered concern expressed Administration spheric It as- is the mainland.... drift toward mechani- claiming it would that “Shell was reaching the oil half suméd that spilled recovery percent oil cally by recovered is environment nearshore more incident, many times any which from systems dispatched skimming currently performance the best than barge large, mobile [a 286, R. at Excerpts of 1,250 Pis.’ are achievable.” remaining bopd tug]. Excerpts OSRP. Pls.’ Beaufort Shell’s Sea Shell’s Chukchi quote is taken from 7. This 959, 907, 24-10 ECF No. . R. at ECF at Excerpts of of R. Pls.’ Sea OSRP. analogous was claim made An No. 24-10. responded agency ECF No. 24-3. BSEE that action. Even assuming, without a misreading plan, “this was which deciding, approval that the of the OSRPs not a performance standard. Shell is action, agency was we conclude that it was claiming capacity up to have the to stоre a nondiscretionary action- and thus ESA’s percent case discharge] [worst consultation requirement was not trig volume, not that it would able to actual- be gered. Congress Because “delegated] has ly collect that much.” Id. This record authority” administrative agency internally acknowledged shows BSEE interpret statute, Chevron’s frame some “confusion” “planning over the v. work applies. Co., See Adams Fruit Inc. OSRPs, performance issue” in the but Barrett, 638, nonetheless reaffirmed view that Shell (1990) (“A 108 L.Ed.2d 585 precondi “in way claiming ability was no to re- tion to deference under Chevron is a con percent cover 90 of the oil.” 288. gressional delegation of administrative au Thus, Plaintiffs’ claim that ap- BSEE’s thority.”). below, As discussed at Chevron proval of the arbitrary OSRPs was One, Step we find provisions the relevant capricious ground on the that Shell as- of the Clean Water Act ambiguous, and sumed an impossibly high recovery rate “Congress therefore directly has spo [not] fails. ken precise to the question at issue.” Chevron, 467 U.S. at 104 S.Ct. 2778. II. Two, At Step Chevron we find the agency Endangered Species

Thé interpretation reasonable, and therefore Next, argue Plaintiffs must accord its interpretation BSEE should defer engaged 843, 104 have in ESA consultation before ence. See id. S.Ct. 2778. approving the OSRPs. Section of ESA A. Chevron Step 1: The Statute’s Am-

requires agencies federal to consult with biguity the appropriate agencies environmental taking before an action may affect Act, The Clean Water as amended endangered species or habitats. 16 U.S.C. the Oil Pollution Act of offers three 1536(a)(4); see also Nat’l Res. pertinent Def. instructions regarding the con- Jewell, Council v. tent operators’ OSRPs. Cir.2014). Even if there is “ac First, 1321(j)(5XA)(i), at 33 U.S.C.

tion,” however, ESA trig consultation is statute states that “[t]he President shall gered only if “there is discretionary Fed issue an ... op- control,” eral involvement or prepare erator and submit to the added), (emphasis 402.03 con because President a plan responding, sultation would merely “meaningless maximum practicable, extent to a worst exercise” if the power lacks the discharge, case and to substantial threat implement changes that would benefit en discharge, such a of oil or a hazardous dangered Babbitt, species, Sierra Club v. Second, substance.” 1321(j)(5)(D), 1502, 1509 Cir.1995).8 the requirements statute lists six Here, we Specifically, need not decide whether OSRPs “shall” meet. OSRPs approval BSEE’s of the OSRPs constitutes must we discretionary Because determine that (quoting Turtle Island Restoration occur, agency action did not we need Serv., not Network v. Nat'l Marine Fisheries “may decide whether the action affect a listed (9th Cir.2003) (internal quota- F.3d species designated or critical habitat.” Karuk omitted)). tion marks Serv., Tribe Cal. v. U.S. Forest F.3d of The text does structure. require- the statute’s

(i) with be consistent Contingency deny Plan or BSEE discre- explicitly grant not National of the ments Plans; Contingency environmental Area to consider additional and process. approval individual in the OSRP (ii) qualified factors the identify re- the authority implement which directs 1321(j)(5)(A)(i), having full Section actions, require immediate oper- and requiring regulations moval to issue agency that individual between plan communications ... a prepare and submit ators “to official and Federal appropriate the extent responding, maximum for personnel providing persons discharge,” to a worst case practicable, (iii); to clause pursuant equipment of the because agency discretion suggests (iii) by contract and ensure identify, “maxi- phrase of the nature open-ended Presi- by the approved means or other other On the practicable.” mum extent of, person- availability private dent hand, like a checklist 1321(j)(5)(D) reads necessary remove equipment nel and “any statute, approve and BSEE must a practicable extent maximum to the of this requirements meets the plan that (including a dis- discharge case worst 1321(j)(5)(E)(iii). paragraph,” explosion), fire or resulting from charge no suggest sections these a prevent substantial mitigate or and to ‍​​​‌‌‌​‌​‌‌​​‌‌​​​​​​‌​‌​​​‌​​‌​‌‌​‌‌​​​​‌‌​‌​​​‍discretion. discharge; threat of such to the ambi structure adds The statute’s (iv) training, equipment describe are listed These two directives guity. drills, and unannounced testing, periodic paragraph portions of the two separate ves- on the persons actions requirements. an OSRP’s that delineates out facility, to be carried or at sel language of how the It is unclear broad safety to ensure plan under its reference 1321(j)(5)(A)(i),with section facility mitigate and to the vessel or in practicable,” the “maximum extent discharge, or the substantial prevent statutory finite criteria with the teracts discharge; threat of a means we 1321Q)(5)(D). “And section (v) periodically; and updated halves do ... a statute whose face (vi) approval be resubmitted giving rise to each correspond other — change. significant each deference.” calls for Chevron ambiguity an if mandates then Id. statute — Osorio, de v. Cuellar Sci alabba met, stating are requirements the above 2191, 2210, 189 -, U.S. approve any shall President that “the (2014) opinion). We (plurality L.Ed.2d of this requirements meets the plan that agency’s interpretation must defer All 1321(j')(5)(E)(iii). paragraph.” unreasonable. unless it is the statute extent “maximum instructions —’the three Chevron, 104 S.Ct. 2778. six enumerated language, practicable” criteria, the President’s Step 2: Reasonable- B. Chevron within requirement approve” “shall —fall Interpretation Agency’s of the ness (specifically, statutory section the same step, second Reaching Chevron’s (5)). to the Clean Pursuant paragraph inter agency’s directive, has is- if determine Act’s Water governing ambiguous forth what that set pretation sued set meet the criteria “the must do to one. When operator a reasonable statute is pt. 254. permissible in this out section. based answer is agency’s statute,” we must de construction in two ambiguous statute findWe “impose view and itself, agency’s and fer the statutory language ways—in own construction on the statute.” issue [our] opera- delineate how Chevron, 843, 2778; at U.S. 104 S.Ct. tors can comply with statutory check- Inst., Young Cmty. see also Nutrition § list 1321(j)(5)(D). Thus, enumerated 974, 981, 2360, 476 U.S. 106 S.Ct. agency reasonably understands its dis- (1986) L.Ed.2d (noting that the court cretion be constrained “preclude[d] is ... from substituting its 1321(j)(5)(D)’s list of requirements judgment for that of [agency]” when which, upon satisfaction, their trigger man- agency’s interpretation of a statute it datory agency approval of the OSRP. rational”). “sufficiently administers is Our deference to agency’s reading is argues BSEE the purpose of an similar provided to that by the Supreme private operators OSRP is to ensure that in Young Court v. Community Nutrition response capacity have consistent with fed- Institute, 106 S.Ct. contingency plans eral of a event (1986). L.Ed.2d 959 Young, In the Su- discharge. worst case Congress has preme Court considered a statute which limited its discretion to reviewing an required the Food and Drug Administra- OSRP to determine if it the six meets (“FDA”) to “promulgate regulations requirements enumerated section limiting the quantity poisonous [of dele- 1321(j)(5)(D) agency’s and the coterminous terious substances that cannot be avoided implementing regulations. BSEE reads within foods] therein or thereon to such an its regulations as providing further refine- extent as agency] [the necessary.” -finds statutory ment of the criteria and the 476 U.S. at (quoting framework under which compliance with 346). interpreted The FDA will be criteria assessed. Since the provision “give it the discretion to de- (and statute mandates that the President cide promulgate” whether to a quantity now, by delegation) BSEE ap- “shall ... limit, plaintiffs while the interpreted the prove plan that any require- meets the require statute to agency to set a limit ments this paragraph,” whenever a poisonous pres- substance was 1321(j)(5)(E), BSEE it contends ent. Id. at 106 S.Ct. 2360 (emphasis lacks apart discretion consider factors added), Applying the Chevron frame- from these statutory delineated criteria. work, the first found Court We conclude that interpre BSEE’s language ambiguous to be ques- as to reasonable, tation of the statute is аgency’s tion of the discretion and then thus we must defer to agency. Signifi deferred to interpretation, the FDA’s find- cantly, the sections on agency which the ing it sufficiently “to pre- rational to relies, § (j)(5)(D)-(E), speak /iirectly clude a from substituting judg- court plan to what a shall contain and what the ment for [agency].” that of the Id. 980- approve. shall Section 81, 106 2360. No regulation explicit- 1321(j)(5)(A)(i), contrast, circu more ly agency’s reflected the view of its discre- itous, discussing what the President’s im tion, position but its was consistent with plementing regulations should require. the statutory scheme longstanding (“The See id. President shall regula issue agency policy. 981-84, tions operator owner or S.Ct. 2360. prepare and submit to the President plan like in responding, Young, position Just BSEE’s to the maximum extent practicable, to a consistent worst case dis with the statute’s scheme ”). charge .... words, agency’s other longstanding policy. ap- 1321(j)(5)(A)(i) reads as an plicable instruction to regulations “provide specific in- 1222 history to assist they may legislative we look to to what as operators

structions Act ambiguous Water an interpretation Clean our statute [the] meet must do to trigger Chevron). the then on In its comments the requirements,” under under mandatory agency’s Pollution Act version of the Oil Senate compare 30 E.g., 1321(j)(5)(E)(iii). § was incor- language much of whose 254.5(b) the OSRP (requiring § C.F.R. ultimately Bill that into the House porated the National Contin with consistent “be Act, the Water passed and Clean amended Area Con appropriate the Plan and gency Commerce, Science, on and the Committee Plan(s)”) with tingency imposed that the bill Transportation noted the same re (imposing 1321(j)(5)(D)(i) § spill for the “[s]pecific requirements [oil C.F.R. compare quirement); 101-99, at Rep. contingency] plans.” S. about information 254.23(g) (requiring § (1989), 1990 U.S.C.C.A.N. reprinted in in “will follow the operator procedures Congress suggests that spill”) with of a event obligations impose specific likely meant the OSRP to (requiring 1321(j)(5)(D)(iii) § in upon operators their or other by contract “identify, and ensure amorphous an and create preparations, of, availability private per means Branch to in- for the Executive standard necessary to remove equipment sonnel and Cong. See also terpret enforce. a worst practicable maximum extent to the 1990) (statement (Aug. Reс. S11931-01 Further, inter discharge”). BSEE’s case Warner) (noting that bill “[t]he of Sen. Depart with pretation is consistent contingency plan- rigorous new imposes the inter position on longstanding ment’s vessels,” on areas and ning requirements the statute. regulations with action of its obliging “the President take while rule, final its 1997 promulgating When major and to deter- charge oilspills of all require regulatory MMS understood complete”). cleanup when mine with the ments to be coextensive pream in the rule’s requirements, stating the breadth of dissent on The focuses regula bring rule will MMS that “[t]he ble prac- “maximum extent 1321(j)(5)(A)(i)’s Pollu with Oil tions into conformance that be- language emphasizes ticable” Plans for Response 1990.” like a language reads broad cause of the Coast Facilities Located Seaward mandate, of which the evaluation would (Mar. 25, Line, Fed.Reg. discretion, significant 1997). Moreover, has ex Department consultation engage ESA BSEE must in its understanding confirmed this pressly the dis- an OSRP. Under approving before fact that “the briefing appeal. view, 1321(j)(5)(A)(i)’s “maximum sent’s to us in comes Secretary’s interpretation as language serves practicable” extent not, in ... does legal form of a brief must be met independent “standard” case, make it of this the circumstances re- of enumerated addition list deference,” it “re- long so as unworthy of 1321(j)(5)(D). The dis- quirements fair and considered agency’s flectes] statute, however, reading of sent’s in question.” judgment on the matter ambiguity gives short shrift to 452, 462, Robbins, Auer v. statute’s text and structure. (1997). 905, 137 L.Ed.2d 79 course, agree Of Pollu- history of Oil legislative prac- “maximum extent 1321(j)(5)(A)(i)’s support further passage tion Act’s lends broad, statute language ticable” Natural Res. interpretation. See BSEE’s support read to arguably could be Agency, Envtl. Prot. Council v. Def. ac- Cir.2008) But we must interpretation. dissent’s (providing F.3d agency’s cord Chevron deference to the clearly define maximum extent practica understanding. focusing alternative While ble” and that regulations “the fully are 1321(j)(5)(A.)(i), §on largely the dissent consistent with” the maximum extent prac presence 1321(j)(5)(D), overlooks the ticable standard. Argument 7:55, Oral at lays specific out a list of require- 8:44, available http://www.ca9.uscourts. ments that OSRPs must meet. BSEE gov/media/view_video.php?pk_vid= 0000006548; subsection, reads this and the mandatory We also do not regu find the agency approval required specific once the latory definition to be problematic. “In met, requirements § 1321(j)(5)(E), are see definition, the absence of ... a we con to eliminate its discretion. This interpre- statutory strue a term in accordance with assuredly “permissible tation is a construc- ordinary its or natural meaning.” F.D.I.C. ambiguous tion” of the statutory language 471, v. Meyer, U.S. Chevron, and structure. 467 U.S. at (1994). 127 L.Ed.2d 308 A natural reading 104 S.Ct. 2778. And it is not our role to of the regulation operators indicates that displace agency’s the reasonable construc- prepared must be to respond to an tion of a responsible statute that it is (to highest degree the possible Mead, administering. U.S. “maximum”), not exceeding “the limita (“[A] 121 S.Ct. 2164 reviewing court has no tions of technology available ... [and] rejecting agency’s business exercise of physical limitations of personnel.” generally authority conferred to resolve C.F.R. 254.6. agency While the could a particular statutory ambiguity simply be- have been more explicit by specifying that cause agency’s chosen resolution seems “maximum practicable” extent means the unwise.”). highest degree response possible “within id., limitations of technology,” dissent resists the available Chevron defer- such a clarification superfluous ence that we must would be give agency’s since the interpretation by plain meaning of “maximum” finding the implementing Therefore, leads to the same regulations reading. to be an unreasonable inter- say cannot that the pretation agency regulation of the regulations statute. The eon s “[im]permissible titutes an define “maximum practicable” extent construction of Chevron, the statute.” mean “within the limitations of U.S. available 104 S.Ct. 2778. technology, the.physical as well as limita- personnel.” tions of 254.6. importantly, More regulatory this defini argues dissent that this definition is tion is largely peripheral analysis. to our incomplete it because fails to account for agency’s We defer to the interpretation superlative nature of the word “maxi- here not because of its regulatory promul mum” provides and instead a definition gation, but “statutory because we face a only of what “practicable.” Since the inconsistency giving ... ambigu rise to an incomplete, definition is the dissent rea- ity that calls for Chevron deference.” Cu sons, unrеasonable, it is therefore obviat- Osorio, ellar de 134 S.Ct. at 2210 (plurality ing need apply for this court to Chev- opinion). The text and structure of the ron’s framework. statute are unclear as to whether the stat

Tellingly, grants ute even Plaintiffs do discretion to a rely not use broad, purported vagueness agency’s of the indeterminate standard to review OSRPs, implementing regulations. To the con- or whether it mandates trary, Plaintiffs’ counsel plans conceded the ade- that meet requirements quacy regulatory 1321(j)(5)(D). definition at oral awith self- “Confronted “[tjhe argument, stating that contradictory, ambiguous provision in The absence scheme, additional factors. [agency] complex from the words apparent construction discretion textually reasonable chose alone, phrase purpose but from approve” view of with its “shall consonant Id. at ... law.” meets the underlying any plan [the] policies approve “shall as our own not “assume We do paragraph.” requirements of role,” and agency’s expert added). responsible 1321(J)(5)(E)(emphasis § inter- reasonable to BSEE’s instead defer regula- argue that “[t]he Plaintiffs next it has in a statute gap pretation of a long plan as say that so tions never Id. interpreting. tasked with been ques- in fashion various addresses some ar- of additional a number We address tions, plan conclude the agency must They note Plaintiffs. raised guments Pis.’ statutory mandates.” meets governing the statutory sections that the Yet, 30 C.F.R. Br. at 46. Opening plans, government’s federal 254.9(b) infor- states that the explicitly § 1321(d)(l)-(2), (j)(4)(B)-(D), contain §§ to “ensure is collected mation OSRP formulations, yet approve” same “shall ... operator prepared is that the owner consulta- admittedly subject to ESA’s are “verify spill” an oil and to respond to to how- provisions, requirements. tion These mandates” of the Oil compliance with the 1321(d)(1) ever, different. Section are to the Clean Act’s amendments Pollution prepare “shall that the President states event, explicit an any Act. In such Water Plan Contingency publish a National prerequisite is not a pronouncement sub- oil and hazardous for removal of See, e.g., apply. deference to Chevron Nothing section.” pursuant to this stances 981-82, 106 S.Ct. Young, 476 U.S. plan a from prohibits in text such interpretation of (deferring to the FDA’s that an light of concerns being ‍​​​‌‌‌​‌​‌‌​​‌‌​​​​​​‌​‌​​​‌​​‌​‌‌​‌‌​​​​‌‌​‌​​​‍prepared even in statutory provision ambiguous an Similarly, raise. might consultation ESA explicitly stat- regulation of a the absence 1321(d)(2) the National specifies position); Fernandez ing agency’s for effi- Contingency provide Plan “shall Cir.1988) Brock, F.2d coordinated, cient, action to and effective of Labor’s in- (deferring Secretary to the hazardous damage from oil and minimize ambiguous that was terpretation of statute include, and “shall discharges,” substance discretion). agency presence as to the limited to” a list of enumerated but be con- argue that ESA’s Finally, plaintiffs a National suggests This factors. (and should) because requirement triggered con- is Plan could sultation Contingency might deciding be tain factors that exercises discretion additional BSEE necessary an ESA consulta- are met. statutory deemed after criteria whether six Likewise, however, the President tion occurs. while irreconcilable position, Contingen- Area approve shall “review and decision in Na- Supreme Court’s with Plans,” language suggest does not cy Home Builders v. tional Association of any meeting rеquire- a list of set plan 644, 671, Wildlife, 551 U.S. Defenders approved. Compare must id. ments (2007), L.Ed.2d 467 127 S.Ct. id. 1321(j)(4)(B)-(D) with cannot defeat an held that ESA 1321(j)(5)(D)-(E). statutory nondiscretionary di- agency’s there listed The statute at issue rective. 1321(j)(5)(E)’s language, con-

Section criteria; if those criteria statutory nine trast, “shall requires that the President satisfied, agency bore nondis- were the re- approve any plan that meets specific ac- cretionary duty perform This lan- quirements paragraph.” of this (namely, certain permitting transfer for the inclusion guage leaves no room authorities). state Id. at cies from powers preparing a full EIS “the analysis 2518. Home Builders’s environmental impact of an action it could directly applicable may Citizen, here.9 BSEE not refuse perform.” Pub. only statutory whether the cri- U.S. at determine S.Ct. 2204. “where 1321(j)(5)(D) teria in 33 U.S.C. have no ability prevent has a cer- met, met, they been and if have been tain effect statutory due its limited au- plan. thority approve actions,” BSEE must Since de- over the relevant termining whether the criteria not need “[does] to consider the trigger have been achieved does not ESA’s environmental effects arising from” those requirement, argu- 2204; consultation Plaintiffs’ actions. see again Club, (“The ment fail. also Sierra 65 F.3d at 1513 Management’s] [Bureau Land inability sum, deferring agency’s inter- meaningfully to influence right- Seneca’s pretation of the statute that it has been of-way construction leads us to conclude administer, regu- entrusted to and its own that procedural requirements of lations, that approval we hold BSEE’s of case.”). NEPA do not apply to this a nondiscretionary OSRPs was act that trigger requirement did not for inter- Here, as our analysis sug ESA agency consultation under the ESA. gests, BSEE reasonably that concluded it ápprove any OSRP that meets the

III. statutory requirements. See 33 U.S.C. § 1321(j)(5)(D)-(E). Thus, Policy even assuming, The National Environmental without deciding, approval that BSEE’s Finally, argue, Plaintiffs and the “major Shell’s OSRPs constitutes a Feder agrees, dissent that BSEE violated NEPA action,” al approval subject its is not to by failing prepare to an Environmental requirements. NEPA’s (“EIS”) Impact approv Statement before ing the requires OSRPs. NEPA federal accepts argument dissent Plaintiffs’ agencies provide “major to for all authority EIS that no prevents BSEE from significantly Federal affecting requiring actiоns changes Shell to make quality of the human environment.” OSRPs in order to minimize adverse envi- 4332(C); § Dep’t see also ronmental effects. contrary, On the Citizen, Transp. 752, 757, v. Pub. 541 U.S. authority just BSEE’s is so constrained. (2004). 124 S.Ct. 159 L.Ed.2d governing statute mandates that the NEPA’s implementing regulations define ... approve any plan “shall that “[mjajor Federal action” to “ac requirements” include meets the of the statutory may major tions with effects that 1321(j)(5)(E). section. lan- potentially subject which are guage statutory Federal is similar to the mandate responsibility.” Citizen, control and at in gov- C.F.R. issue Public where the major 1508.18. Even when a federal ac erning required statute that the Federal occurs, however, NEPA remains sub Motor Safety Carrier Administration (“FMCSA”) ject to a “rule of agen- reason” that frees register person “shall points 9. The dissent timing out that Home Builders 2518. This factual distinction in does See, part passed change relied in on the fact that analysis. ESA was not the outcome of our requiring per- e.g., Canyon after the statute the transfer of Grand Trust United States Bu- Reclamation, mitting power, provisions while the reau Cir.2012) Clean Water (relying Act at issue here were enacted in on Home Buildеrs to hold 1990, post-dating passage. required ESA’s 1972 part by that action a 1992 Builders, 662-64, consultation). Home 551 U.S. at 127 S.Ct. statute did not ESA an environmental assess- development of ... as a motor car transportation provide willing Exploration Plan person ment of Shell’s Revised if finds rier [it] that statute’s Similarly, with” Shell’s comply for the Chukchi Sea. able to Citizen, Pub. was considered Beaufort Sea OSRP requirements. (alterations original) 124 S.Ct. submitted exploration plan Shell regarding 13902(a)(1)). Exam (quoting both of Flaxman Island Leases. its mandate, Supreme ining this here underwent NEPA at issue OSRPs registration of FMCSA found Court step third review OCSLA’s —which trigger not did motor carriers cross-border requirement with the consistent no [had] “FMCSA because review NEPA stage. See id. be submitted OSRPs the cross- prevent ability categorically sum, required BSEE is not In we conclude carriers, ... motor operations border approving prepare prior an EIS impact of the the environmental [and thus] OSRPs. no ef would have operations cross-border Id. at decisionmaking.” on FMCSA’s fect CONCLUSION was NEPA review 2204. 124 S.Ct. OSRPs Shell’s was BSEE’s lacked the FMCSA because required not ... or otherwise “arbitrary, capricious, con consider environmental power to with law.” 5 U.S.C. not in accordance statutory obli of its outside sequences 706(2)(A). OSRPs, never Shell 768-70, See id. gation. on, asserted, rely ever a 90 nor did BSEE similarly restricts here The statute recovery rate for percent to 95 mechanical required is to BSEE discretion. BSEE’s deference, as According spilled oil. meets the statute’s approve an OSRP must, interpretation to BSEE’s agency reason which requirements, regulations, BSEE and its statute own checklist of six to ably interprets be deny approval once it discretion to lacked § 1321(j)(5)(D). forth requirements set OSRPs satisfied the determined then, process, Applying NEPA to Therefore, ESA statutory requirements. pre agency an merely “require would review were not and NEPA consultation the environmental pare a full EIS due required. not refuse to it could impact of an 'action AFFIRMED. clearly violate which perform,” -would Citizen, Pub. “rule of NEPA’s reason.” NELSON, Judge, Circuit D.W. Senior 769, 124 dissenting: that NEPA review not mean This does Bu- majority that the agree I with the Indeed, en- the NEPA entirely absent. is En- Safety Environmental reau of required to that is assessment vironmental Bureau) (the not act an did forcement plan exploration conducted as Shell’s аpprov- manner in arbitrary capricious ef- the environmental expressly considered and I concur in response plans, the oil ing su- As mentioned OSRPs. fects Shell’s as to that issue. I majority opinion OSRP, is the which pra, operator’s an however, from the re- dissent, respectfully Act’s oil of the Water step fourth Clean majority opinion. mainder framework, must be submit- spill response view, required to was my the Bureau explora- a lessee’s conjunction ted in with the En- pursuant in consultation engage step. third is OCSLA’s plan, (ESA) ap- before dangered Species Act dated a memorandum C.F.R. 550.219.In More- response plans. proving Shell’s 17, 2012, clarified that February BSEE over, have conducted the Bureau should was considered the Chukchi OSRP analysis pursuant sponse to the National Environ- plans. It did. “The ESA’s consul- (NEPA) Policy Act approv- mental before duty triggered tation is ... only when the ing response the oil I plans. would agency authority has to take action and grant summary judgment reverse the as discretion to decide what action to take. consultation compliance ESA with There point is no in consulting agen- if the NEPA. cy has no choices.” Ctr. Safety Fоod Vilsack, (9th Cir.2013). 718 F.3d 1. ESA Consultation more, What is “the discretionary control majority holds that the Bureau’s retained the federal agency also must approval response plan of an oil a non- capacity have the to inure to the benefit of action, and, thus, diseretionary the Bureau protected Tribe, species.” Karuk obligation had no pursuant to consult to F.3d at 1024. disagree. the ESA. I agency “Whether must consult does not turn oh degree of discretion that Agency a. Action agency exercises regarding the action question The first is whether the Bureau in question, but on whether agency has engaged It did. The action. any discretion to act in a manner beneficial duty only to consult exists “agency where protected to a species or its habitat.” action” present. Natural Res. Def. Jewell, Natural Res. Council v. Defense Houston, Council v. 146 F.3d (9th Cir.2014) (en banc). 749 F.3d (9th Cir.1998). Agency action includes words, In other if could take agencies’ “federal private authorization of action that protected species, benefits activities,” such as the Bureau’s agency must conduct ESA consultation. of the oil plans here. Karuk , id.; Tribe, see also Karuk F.3d Serv., Tribe Cal. v. U.S. Forest (“[T]o avoid the consultation obli Cir.2012); gation, an agency’s competing statutory § 1321(j)(5)(F). require mandate must that it perform spe course, Of all agency not actions necessi- nondiscretionary cific acts rather than Indeed, tate only consultation. those ac- goals.”). Ultimately, achieve broad “[t]he “may tions that protected species affect” a relevant question is whether the trigger the requirement, 50 C.F.R. private activity could influence a to benefit 402.14(a), § though “may the affect” re- species, listed not whether it must do quirement threshold, admittedly is an low Tribe, so.” Karuk 681 F.3d at 1025. Tribe, Here, Karuk 681 F.3d at 1027. the view, my In the Bureau’s decision to approval response plans of the oil satisfies approve reject spill or an oil response plan “may the affect” standard. In the event of precisely the kind of discretionary act spill, an oil carry Shell would have to out triggers ESA consultation. The Oil its oil response plan, governs the Pollution Act requires private protection owners or wildlife. 30 C.F.R. 254.5(a). Thus, operators facilities, of vessels and such the Bureau’s as decision to Shell, approve prepare spill the oil to an oil response plans, response plan. or to re- quire plans, 1321(j). amendments to “may response plan those protected species. affect” a explain must an operator how like Shell respond will “to the maximum prac- extent Agency b. Discretion ticable, to a worst discharge, case and to a Next, we must consider whether the Bu- substantial threat of such a discharge, of reau had approve discretion to the oil re- oil or a hazardous substance.” 33 U.S.C. I dis- Bureau discretion. the absence phrase “maximum 1321(j)(5)(A)(i). consulta- avoid The Bureau cannot Congress agree. suggests practicable”

extent to obligated it is not plans create because tion here like Shell intended entities nondiscretionary acts.” to an oil respond specific “perform capacity that have Tribe, 1024. Neither degree, given F.3d at possible greatest Karuk to the implementing 30 C.F.R. its Act nor Oil Pollution logistical constraints. practi- “maximum extent mechanical (defining rigid, forth a sets 254.6 avail- limitations of specify “within when as requirements cable” set physical as the as well technology, response plan. approve able Bureau At same off; personnel”). limitations be ticked checklist is no There does broad, subjective standard time, Rather, Bureau not rote. in a or specific to act direct Bureau range of environmen- a wide must consider rather, but, contem- way, clearly defined deciding tal, and other factors ecological Bureau will exercise plates that meets the response plan an oil whether an oil determining whether judgment when practicable” standard. extent “maximum ex- the “maximum plan satisfies note that the government and the Shell Karuk requirement. See practicable” tent regu- interprets implementing Bureau Tribe, 1024-25. “maximum coextensive with lations as regulations bolster implementing Thus, they practicable” standard. extent the Bu- view, they make clear that as my contend, majority agrees, both and the to benefit discretion can exercise its reau the Bu- give regulations do not that the instance, regu- For species. protected that we should any discretion and reau operator both an owner lations to the Bureau’s deference accord Chevron im- “environmental identify resources of Pollution Act. Yet of the Oil interpretation by a could harmed portance” that disagree. again, I and to discharge scenario” case “worst Chevron, analysis pursuant Our used to that will be strategies provide Council, U.S.A., v. Natural Res. Inc. Def. resources. protect those Inc., (c). addition, regula- 254.26(a), §§ (1984), questions. involves two L.Ed.2d 694 operator to an owner or also call for tions has di- First, Congress “whether askwe it how, spill, event of an oil explain precise question rectly spoken to beaches, waterfowl, ma- other “protect will so, If Id. at issue.” resources, areas of rine and shoreline unambig- give “must effect the court importance.” special environmental Congress.” Id. uously intent of expressed Furthermore, 254.23(g)(4). “if the 842-43, But 104 S.Ct. 2778. under- response plans themselves Shell’s ambiguous respect with is silent or statute wildlife. importance protecting score the issue, the question for specific to appendix an entire plan Each devotes agency’s answer whether the court is protection tactics discussing wildlife of the permissible a constructiоn based on protect to wildlife. includes measures statute.” Id. have us government would Shell and the implementing Here, I do believe lacked the Bureau discretion hold that definition contain a regulations reasonable states Oil Pollution Act because the here The practicable.” extent of “maximum any oil approve” the Bureau “shall only once. phrase reference that meets the plan practica- extent “Maximum They provide: compul- § 1321. This criteria. of avail- the limitations within reflects ble means argument goes, sory language, the state, technology, physical ty able as well as the to a unless that state lacked the personnel, responding authority perform limitations of when the nine functions discharge spelled 661, to a worst case adverse out in the statute. Id. at If weather conditions.” 30 C.F.R. 254.6. S.Ct. 2518. The Court described the stat full occupies complete utory defini language “mandatory” as and the list “maximum practicable,” tion of extent it is “exclusive,” nine functions as holding unreasonable and not entitled to deference. that “if specified the nine criteria are satis “maximum,” fied, superlаtive, The word the EPA does not have the discretion highest possible magnitude means “the or to deny a transfer application.” Id. At the quantity something,” “highest, great time, however, same the ESA required Dictionary, Maximum, English consultation, est.” Oxford in addition to the nine enu http ://www/oed.com/view/Entry/11 merated factors. Id. at 5275?redirectedFrom=maximum# eid 2518. Faced with these irreconcilable (last 2015). Thus, April visited statutory directives, the Court held that phrase “maximum extent practicable” also the later-enacted ESA did not amend the superlative quality has a and therefore Clean Water Act in part because requiring greatest option must refer to the in a ESA consultation “engraft[ would a tenth ] range possibilities. But the Bureau’s criterion onto [Clean Water Act].” Id. 663, 127 superlative, definition is not a as it refers S.Ct. 2518. a range possibilities, taking into ac case, however, significant differs in Thus, practical gives count limits. it effect respects First, from Home Builders. only to term “practicable” ignor while Supreme analysis Court’s in Home Build- ing the term “maximum.” We should not hinged ers part the fact ESA defer to this incomplete nonsensical and came after the Clean Water Act. See id. at I.N.S., definition. Coronado-Durazo v. 662-64, Here, however, 127 S.Ct. 2518. (9th Cir.1997) (“We postdated the Oil Pollution Act of 1990 are not obligated accept interpreta an (Oil ESA. 33 seq. U.S.C. et Pollu- tion that is demonstrably irrational or Act); (ESA, tion seq. 1531 et clearly contrary to plain and sensible 1972). fact, passed in Congress passed (internal meaning quota of the statute.” the Oil Pollution Act after ESA consulta- omitted)).

tion marks and citation already had been required for seven- regulations merely clarify that owners and years. teen the concern that ESA Shell, operators, such as will not be held to implicitly consultation an amended exclu- impossibly high standard that exceeds statutory requirements sive set of technological capabilities current and other Oil adding require- Pollution new logistical constraints. ‍​​​‌‌‌​‌​‌‌​​‌‌​​​​​​‌​‌​​​‌​​‌​‌‌​‌‌​​​​‌‌​‌​​​‍beyond ment original enactment is ab- majority Moreover, relies on the Natl Ass’n parties sent here. both Home Builders v. Wildlife, Home appeared agree Builders that the Defenders of possessed authority perform 168 L.Ed.2d state (2007), to hold that the Bureau has no each of the nine enumerated functions but discretion to disagreed determine whethеr Shell com- about whether ESA consultation plied with the six statutory factors enu- an step process. added extra to the 662, merated in the Oil Pollution Act. I find this ques- 551 U.S. at 127 S.Ct. 2518. The argument unpersuasive. In Home Build- tion here is of a different sort. It is not ers, Supreme Court noted that practicable” whether the “maximum extent required Clean Water Act the Environ- standard adds an step additional mental Protection Agency approve approval process to an spill response for oil application to permitting plans transfer authori- interpret but about how to “maxi-

1230 authority regu- to “statutory has is one of which practicable,” mum extent consequences” of a the environmental late items the Bureau subjective many League. Wilder- major federal action. to.approve an oil consider whether Mountains Biodiver- ness plan. response Defenders-Blue Serv., 549 F.3d sity Project v. U.S. Forest 2. NEPA Consultation (9th Cir.2008). 1211, That is the circumstance here. Bu- that because the majority holds approve any to no choice but reau had possess in fact the kind The Bureau did that met the enumerated plan response re- that necessitated NEPA of discretion Act, Pollution the Oil requirements imple- Act and its The Oil Pollution view. exempt from NEPA review. Bureau was grant sig- the Bureau menting regulations disagree. I activities authority regulate nificant to of offshore facili- operators of owners and national commit “declare[s] NEPA demand ties. promoting environ protecting toment protecting wild- plan provisions include Phosphate Ashley Creek quality.” mental im- special and areas of environmental life Norton, Cir. 420 F.3d v.Co. §§ 254.23(g)(3)-(4), portance. 2005). goals these broad NEPA achieves (7). addition,- apply the Bureau must uninformed— “merely prohibiting] amorphous “maximum ex- the broad agency action.” Rob rather than unwise— in considering standard practicable” tent Council, Valley v. Methow Citizens ertson response plan. 33 validity of an oil 332, 351, 490 U.S. (D)(iii). (j)(5)(A)(i) §§ & (1989). NEPA Specifically, L.Ed.2d subjective process gives the Bureau prepare a detailed requires agencies authority amendments to the (EIS) for impact statement environmental Thus, 1321(j)(5)(E)(ii). I Id. at plan. affect significantly Federal actions “major regu- that because the Bureau would hold human environment.” ing quality prevention activities and response lates the 4332(2)(C). An EIS “must Shell, and because it of entities like efforts public decisionmakers and inform that those enti- authority to ensure retains would alternatives which the reasonable protect efforts will the envi- response ties’ impacts minimize adverse en avoid or effectively in the event of an oil ronment the human environ quality hance the duty it from its spoil, exempt is not League ment.” Wilderness Defenders- conduct NEPA review. Biodiversity Project v. Mountains Blue Serv., 1068-69 U.S. Forest Morever, specifical- the Oil Pollution (9th Cir.2012) (internal quotation marks to consider environ- ly directs the Bureau omitted). and citation decisionmaking pro- in its mental factors analysis NEPA requiring cess. any Here, not conduct the Bureau did core focus in line with “NEPA’s squarely majority for- analysis, NEPA decisionmaking.” improving agency of the oil reasoning gives, Citizen, at 769 n. Pub. 541 U.S. of rea- plan fell within the “rule 1500.1(c). 2204; Be- S.Ct. C.F.R. Citizen, Transp. v. Pub. Dep’t son.” protection lies at the cause environmental 752, 769, pursuant to the core of the Bureau’s duties (2004). words, In other where L.Ed.2d 60 Act, NEPA review would not Pollution Oil specific take ac- obligated an offend the rule of reason. tion, im- analysis of the environmental the Bureau I not think that purpose. no also do pact of that action serves duty conduct NEPA re- discharged its apply where an exception But this’ does not by relying previous analyses on view America, impact of oil UNITED STATES of

considered the environmental Plaintiff-Appellee, gas exploration and natural the Arctic. may

Certainly, agency rely prior on discharge pursuant to analysis to its duties Citizen, NEPA. Pub. 541 U.S. at Boyle YAMASHIRO, Steven 1500.1(c) 2204; 40 C.F.R. Defendant-Appellant. (“NEPA’s purpose generate pa- is not to No. 12-50608. perwork paperwork excellent —even —but action.”); to foster excellent United Appeals, States Court of (“If 46.120(b) existing analyses NEPA Ninth Circuit. assumptions appropriate include data and hand, analysis [agency] for the Argued and Submitted Dec. 2014. existing analyses should use these NEPA Filed June underlying assump- their data and and/or feasible.”). tions where discharge

But an cannot its pursuant solely by relying

duties to NEPA analyses if prior analyses those do not

fulfill purpose ensuring NEPA’s “that has taken a hard look at the

environmental proposed effects of the ac tion.” Biological Diversity Ctr. v. U.S. Serv.,

Forest 349 F.3d Cir.

2003) (internal quotation marks and cita omitted). Here, the documents on

which the Bureau relied did not discuss approving

alternatives to Shell’s

plans. N. Cmty. Idaho Action Newtork v. Dep’t Transp., U.S.

(9th Cir.2008) (noting requires an EIS alternatives);

“rigorous” evaluation of 46.120(c). prior analyses

C.F.R. do

provide some consideration of oil re

sponse techniques, they nothing but have ‍​​​‌‌‌​‌​‌‌​​‌‌​​​​​​‌​‌​​​‌​​‌​‌‌​‌‌​​​​‌‌​‌​​​‍say about alternatives to pro Shell’s

posed plans. The Bureau did not dis

charge duty to NEPA. pursuant I grant

Because would reverse the

summary judgment duty to Shell as to the

to conduct ESA consultation and NEPA

analysis, respectfully I dissent.

Case Details

Case Name: Alaska Wilderness League v. Sally Jewell

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 11, 2015

Citation: 788 F.3d 1212

Docket Number: 13-35866

Court Abbreviation: 9th Cir.