Alaska Wilderness League v. Jewell, 788 F.3d 1212 (9th Cir. 2015) (affirming the district court’s ruling that: (i) the Bureau of Safety and Environmental Enforcement’s approval of the challenged oil spill response plans was not arbitrary and capricious; (ii) the Endangered Species Act did not require the Bureau of Safety and Environmental Enforcement to consult with any environmental agencies before approving oil spill response plans; (iii) the Bureau of Safety and Environmental Enforcement was entitled to Chevron deference for its interpretation of the Oil Pollution Act; and (iv) the National Environmental Policy Act did not require the Bureau of Safety and Environmental Enforcement to do an environmental impact statement before approving an oil spill response plan).

The Outer Continental Shelf Lands Act (“OCSLA”) outlines the procedure for exploration and development of oil and gas resources offshore. This process has four stages. First, the Secretary of Interior creates a five-year leasing program under which operators may search and mine for oil and gas. Second, the Secretary must approve the leases under agreed upon terms and conditions. Third, the lessee must provide the Secretary with a plan of exploration and an Oil Spill Response Plan (“OSRP”) pursuant to the Clean Water Act (“CWA”). Fourth, after searching for oil and gas, and successfully finding either, the lessee has must submit a production and development plan to the Secretary for approval.

At the third stage, the Secretary of the Interior has delegated its power to the Bureau of Safety and Environmental Enforcement (“BSEE”) to approve OSRPs to prevent and respond to oil spills. The CWA requires these plans at four levels: national, regional, local, and individual. At the individual level, owners and operators must propose an OSRP for approval that outlines their response to a potential “worst case discharge” of oil or some other hazardous substance.

Shell Gulf of Mexico Inc. and Shell Offshore Inc. (collectively “Shell”) acquired three leases for offshore exploration and production—two leases in the Beaufort in 2005 and 2007, and one in the Chukchi Seas in 2008. Shell complied with all regulations at the time for intended exploration, but due to the Deepwater Horizon oil spill in 2010, the Secretary of the Interior placed a temporary moratorium on all offshore drilling. The United States Department of Interior required owners and operators to provide new information in all OSRPs after the moratorium ended. To comply with the new criteria, Shell updated its OSRPs for its three leases. BSEE approved the updated Beaufort and Chukchi Seas OSRPs.

Alaska Wilderness League, a coalition of environmental groups, sued Secretary of Interior, Sally Jewell, in her official capacity because of the approval of Shell’s three OSRPs. Shell intervened as a co-defendant. On cross-motions for summary judgment, the United States District Court for the District of Alaska (“district court”) ruled in favor of Jewell and Shell. Alaska Wilderness League appealed to the United States Court of Appeals, Ninth Circuit (“Court”). The Court reviewed the granting of summary judgment de novo and reviewed the record of the agency’s action under the arbitrary and capricious standard.

First, Alaska Wilderness League argued BSEE’s approval of the OSRPs was arbitrary and capricious because Shell assumed it would be able to recover ninety to ninety-five percent of any oil spilled in either of the seas via mechanical means. A figure that Alaska Wilderness League claimed was unrealistic and that Shell failed to support with any evidence. The Court did not agree with Alaska Wilderness League’s interpretation, finding instead that Shell could store, not recover, ninety to ninety-five percent of any spilled oil. Further, the Court found that BSEE did not rely on this information in approving Shell’s OSRPs. Therefore, the Court found that the record did not support Alaska Wilderness League’s argument. Accordingly, the Court concluded BSEE’s approval of the OSRPs was not arbitrary and capricious.

The Court next addressed Alaska Wilderness League’s argument that BSEE failed to consult with other agencies in order to comply with the Endangered Species Act (“ESA”). The Court disagreed. The Court reasoned that ESA only triggers consultation when the agency’s involvement is discretionary, and, in this case, BSEE’s approval of the OSRPs was non-discretionary. Therefore, the Court held that ESA did not require BSEE to do a consultation.

The Court then went through a two-step Chevron deference analysis to assess BSEE’s interpretation of the applicable sections of the CWA. At step one of its Chevron analysis, whether the statute in question is ambiguous, the Court found that the CWA was ambiguous in both its structure and its language. The Court found the CWA has ambiguous language because of three pertinent sections: (i) 33 U.S.C. § 1321(j)(5)(A)(i) requires an operator to “prepare and submit . . . a plan for responding, to the maximum extent practicable, to a worst case discharge;” (ii) § 1321(j)(5)(D) lists six requirements that the OSRP “shall” meet; and (iii) § 1321(j)(5)(E)(iii) states that if the OSRP meets all six requirements, then BSEE “shall” approve it.

Specifically, the Court found the text ambiguous as to whether BSEE has the discretion to consider any additional environmental factors in making its determination of an OSRP. The Court found that the “maximum extent practicable” language in § 1321(j)(5)(A)(i) suggested the agency had discretion in its approval of an OSRP. However, the Court also found §§ 1321(j)(5)(D) and 1321(j)(5)(E)(iii) to be a laundry list of requirements that an OSRP must meet. If an OSRP meets those requirements, then BSEE must approve the plan; removing any agency discretion. Additionally, the Court found the statute’s structure ambiguous because of the discretionary language in one section, and the rigid language in the one following it. The Court found this difference created “a statute whose halves do not correspond to each other – giving rise to ambiguity that calls for Chevron deference.” Under this finding of ambiguity, the Court found it must defer to BSEE’s interpretation of the statute as long as its interpretation is reasonable.

The Court then underwent the second step of the Chevron analysis to determine whether BSEE’s interpretation was reasonable. Courts must defer to an agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. The Court found that BSEE’s interpretation of the statute was reasonable. BSEE argued that § 1321(j)(5)(A)(i) mandated it to promulgate regulations that help operators follow the OSRP requirements listed in § 1321(j)(5)(D). Then, separately, § 1321(j)(5)(D)-(E) lists exactly what the OSRP shall include and the agency shall approve. The Court agreed with BSEE’s interpretation that the statute mandated the agency to publish regulations to outline how operators can comply with the list. The Court also agreed with BSEE’s interpretation that it could not consider anything more than the list when granting an OSRP. The Court, having found BSEE’s interpretation to be reasonable, deferred to the agency’s interpretation.

The Court also found that BSEE’s interpretation was consistent with longstanding agency policy. The Court explained how BSEE has a history of regulating in conformity with the goals of the Oil Pollution Act that amended the CWA. The legislative history of the Oil Pollution Act suggests that Congress meant to create specific requirements of OSRPs, not guidelines open to interpretation by the courts or agencies.

Lastly, the Court addressed Alaska Wilderness League’s four additional arguments. First, Alaska Wilderness League argued that the similarity in language between the requirements listed in § 1321(j)(5)(E) and the section of the statute governing federal response plans to spills subjected the approval of OSRPs to ESA consultation. However, the Court disagreed with this interpretation. Under the sections of the statute governing federal response plans, an ESA recommendation may prompt agency action, but the plan “shall include, but not be limited to” a number of factors. This federal response plan requirement, unlike that in § 1321(j)(5)(E), does not limit the factors to those listed.

Second, Alaska Wilderness League argued that the regulations contain no language to support approval of the OSRPs just because they address the clean up plan to some degree. The Court quickly dismissed this argument. The Court found that the statute states that the purpose of the OSRP is to prepare a response plan for an accident at sea resulting in release of oil, and that Congress ordered these plans be in compliance with “the Oil Pollution Act’s amendments to the Clean Water Act.” The Court deferred to BSEE’s interpretation that the OSRPs were sufficient and justly approved, despite any explicit language governing BSEE’s decision.

Third, Alaska Wilderness League argued that BSEE had discretion over whether OSRPs met the criteria in § 1321(j)(5)(E), thus triggering ESA consultation. The Court found this argument to be at odds with previous Supreme Court’s rulings. The Supreme Court previously held that “ESA cannot defeat an agency’s nondiscretionary statutory directive.” The Court held that BSEE’s act of granting OSRPs was nondiscretionary, and so it did not trigger any interagency review under ESA.

Lastly, Alaska Wilderness League claimed that BSEE violated the National Environmental Policy Act (“NEPA”) by failing to do an environmental impact statement (“EIS”) before approving the OSRPs. Under NEPA, all federal agencies must conduct an EIS before conducting any “major Federal action” that significantly affects the environment. However, the Court noted that there is an exception to this requirement when the environmental impact is the result of a decision over which the agency had no discretion. The Court ruled that because BSEE had no discretion over the approval of the OSRPs under the statute, it also had no discretion over the environmental impacts, making BSEE exempt from performing an EIS.

Accordingly, the Court affirmed the district court’s ruling.

D.W. Nelson, Senior Circuit Judge, dissenting.

Senior Circuit Judge Nelson agreed with the majority’s ruling that BSEE acted appropriately when it approved the OSRPs in question, but dissented to all other aspects of the majority opinion. Specifically, the dissent agreed with Alaska Wilderness League’s contention that BSEE’s action was discretionary, triggering an ESA consultation.

The dissent also disagreed with the majority’s finding that BSEE was exempt from performing a NEPA analysis. The dissent did not agree with the majority’s interpretation of the NEPA exception. The dissent argued that as a regulator of environmental consequences “the [BSEE] did in fact possess the kind of discretion that necessitated NEPA review.”

William James Tilton

Image: Deepwater Horizon oil spill, Gulf of Mexico. Flickr user Green Fire Productions, Creative Commons.


 

The fifteen inches or more of precipitation that began falling the second week of September caused massive flooding across the state of Colorado, with some describing the torrential rains as a “one-in-a-thousand-year rainfall event.”

As Colorado floodwaters recede, new health risks have begun to arise, and residents now face a threat of contaminated waters. Gary Wockner, Colorado program director for Clean Water Action, said: “[the biggest] concern is oil and gas and fracking chemicals in the water. . . . Oil, gas, and fracking chemicals are poisonous to people and animals and could pollute farms and drinking water supplies.” The full extent of damage is not yet known, as many areas have not yet been inspected.

Floodwaters caused the release of more than 43,000 gallons of oil and more than 18,000 gallons of produced water. Carl Erickson, a Colorado resident and activist with the local group Weld Air and Water, said that the flooding has served as a “wake-up call” that oil and gas development has its consequences.

Anadarko Petroleum Corporation reported two oil spills – 323 barrels (13,500 gallons) along the St. Vrain River, and 125 barrels (5,250 gallons) into the South Platte River. Environmental Protection Agency (“EPA”) spokesman, Matthew Allen, said that both releases involved condensate, a mixture of oil and water. Anadarko workers attempted to contain the South Platte oil spill by placing absorbent booms in the water, but state officials reported the booms have only collected residual oil. The Colorado Oil and Gas Association (“COGA”) is currently working with the Colorado Department of Public Health and Environment, the National Response Center, and the EPA to monitor cleanup efforts.

The flooding reportedly affected at least a thousand gas wells. Noble Energy estimates it shut down between five to ten percent of its wells. In addition, a four-inch Anadarko natural gas pipeline began leaking after the ground around it washed away. Anadarko spokesman, John Christiansen, stated that Anadarko promptly shut off the pipeline and contained the leak.

The flood’s impact on Colorado’s oil and gas fields and the resulting threat to health and the environment is of particular concern to Representative Jared Polis, who serves on the House Committee on Natural Resources (the “Committee”). In a joint letter with Representative Peter DeFazio, the Committee’s ranking Democrat, Polis asked the panel’s chairman, Representative Doc Hastings, to hold a hearing in order to “fully understand the [potentially] grave consequences resulting from [the] flood.” In the letter, Polis stressed that a congressional inquiry might help identify “best practices,” which could mitigate future contamination caused by flooding.  Best practices, include prohibitions on open pits of produced water; closed loop systems for recycling produced water; ways of securing holding tanks, which can be swept away by flood waters; and limitations on well drilling in flood plains.

Additional problems could emerge once inspectors examine sites more thoroughly. Currently, the EPA is working with the Federal Emergency Management Agency (“FEMA”), as well as state and local agencies, to assess the flood’s impact on drinking water and wastewater. Wockner stated, “It’s great news that the EPA is engaging. We have serious concerns that because [Colorado] has so few inspectors and regulators, the [oil and gas] industry is out there self-policing. We need [the] EPA to step in and make sure the public and environment are protected.”

The September 2013 floods have been described as “the worst natural disaster in Colorado so far this century.” Now that the waters have begun to recede, the long process of cleanup and reconstruction can begin. If you would like to help, please visit: www.helpcoloradonow.com.


Sources:

Samantha-Rae Tuthill, Thousands of Gallons of Oil Released into Colorado Floodwaters, AccuWeather, Sept. 20, 2013, http://www.accuweater.com/en/weather-news/water-contamination-boulder-fl/17865986.

Colleen Slevin and Matthew Brown, Colorado Flooding Triggers Oil Spills, Shutdowns, The Boston Globe, Sept. 20, 2013, http://www.bostonglobe.com/business/2013/09/19/colorado-flooding-triggers-oil-spills-shutdowns/2cG8nHJBmyNmjEAApJYh8L/story.html.

Keith Coffman, Likely Death Toll in Colorado Floods Rises to At Least 10, Reuters, Sept. 20, 2013, http://www.reuters.com/article/2013/09/20/us-usa-colorado-flooding-idUSBRE98I0YX20130920.

Tom Yulsman, Colorado Floods: Rescue and Recovery from ‘Biblical’ Rainfall, Sept. 20, 2013, http://nation.time.com/2013/09/18/on-the-ground-in-colorado-digging-out-after-the-deluge/.

Tom Kenworth, Full Extent of Oil and Gas Spills From Colorado Floods Remains Unknown, Oct. 7, 2013, http://thinkprogress.org/climate/2013/10/07/2738341/oil-spills-colorado-floods/.

Editorial, As Colorado Floods Recede, A Will to Rebuild, The Denver Post, Oct. 7, 2013, http://www.denverpost.com/editorials/ci_24107674/colorado-floods-recede-will-rebuild