Defenders Of Wildlife v. Bureau Of Ocean Energy Management

Jun 22: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 11-12598 & 11-12599. Petitions for Review of a Decision of the Department of the Interior. The case concerns a challenge to an exploratory drilling plan under the Outer Continental Shelf Lands Act (OCSLA). 43 U.S.C. § 1331 et seq. The Bureau of Ocean Energy Management (BOEM) approved the Shell Exploration Plan S-7444 (Shell EP) to conduct drilling in the Gulf of Mexico. The Shell EP covers ten exploratory wells on offshore Alabama leases in the Central Gulf of Mexico between 7,100 and 7,300 feet deep.

 

    The case is a consolidated appeal in which Petitioners, Defenders of Wildlife, et al. and Gulf Restoration Network, et al. (Petitioners), filed comments on the Shell EP, participated in the administrative proceeding, and filed the petition for review. The only issues on petition for review are whether the Shell EP violates the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA), 16 U.S.C. § 1536 et seq. The Appeals Court ruled, "After reviewing the record, reading the parties' briefs, and having the benefit of oral argument, we deny the petition for review."

 

    The Appeals Court said, "Petitioners insist, BOEM's decision not to prepare an EIS and its subsequent FONSI is a violation of NEPA. Yet, Petitioners simply cannot overcome our extremely deferential 'arbitrary or capricious' standard of review." Among other items, Petitioners argue that BOEM failed to include a site-specific analysis of potential catastrophic spills and underestimated the likelihood of a spill. However, the Appeals Court indicates, "To the contrary, the EA extensively analyzes the risks and consequences of such an event. Appendix B of the EA, 'Catastrophic Spill Event Analysis,' evaluates the impact of a low-probability catastrophic spill. After taking into account regulations put into effect after the Deepwater Horizon disaster, BOEM determined that the risk of another spill was low. While this analysis is derived from a generalized scenario, it is based on the only two large spill disasters in the Gulf of Mexico -- the 1979 Ixtoc blowout in the Bay of Campeche Mexico and the 2010 Deepwater Horizon disaster. An oil spill is an unexpected event, and its parameters cannot be precisely known in advance. Thus, it is appropriate for BOEM to summarize potential impacts resulting from a hypothetical oil spill."

 

    Further the Petitioners argued that BOEM's failed to evaluate the worst case discharge spill of 405,000 barrels of oil per day, but the appeals Court ruled, ". . .BOEM is not required to base its NEPA analysis on a worst case scenario. . . NEPA does not require a 'worst case discharge' analysis. Thus, we conclude that BOEM's reliance on analysis based on a lower spill rate, which it determined to be more likely than the worst case discharge, was not arbitrary or capricious or in violation of NEPA."

 

    Additionally, Petitioners' final complaint with BOEM's site-specific analysis is that the EA fails to discuss some endangered species present in the Gulf, including the piping plover, Gulf sturgeon, and various species of beach mice. The Appeals Court said, "Petitioners suggest that every EA requires a detailed analysis of each species that could possibly be affected by a potential oil spill. NEPA clearly does not require such analysis. An EA is intended to be a document that '[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].' 40 C.F.R. § 1508.9(a)(1). Although the EA does not describe every possible environmental effect of an oil spill, BOEM took a hard look at environmental impacts, and its site-specific analysis of expected drilling operations is consistent with NEPA."

 

    Access the complete opinion (click here). [#Energy/OCS, #Wildlife, #Water]

 

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