Friday, June 1, 2012

Gulf Restoration Network, Inc., et al v. Ken Salazar (DOI)

May 30: In the U.S. Court of Appeals, Fifth Circuit, Case No. 10-60411, consolidated with Case Numbers 10-60413, 10-60414, 10-60415, 10-60416. Petitions for Review of Orders of the Department of Interior (DOI). The Appeals Court recounts that on April 20, 2010, BP's Deepwater Horizon, an oil drilling rig on the outer continental shelf, 50 miles from Louisiana, exploded, causing a three-month long spill of 4.9 million barrels of oil into the Gulf of Mexico. Before and during the oil spill, the Department of the Interior (DOI) continued to process mineral lessees' applications for approval of plans for exploration and development of new oil wells.
    The petitioners in this case, the Sierra Club, the Gulf Restoration Network, and the Center for Biological Diversity (the Center), filed petitions for judicial review in the Appeals Court challenging sixteen DOI plan approvals, issued between March 29 and May 20, 2010, under the Outer Continental Shelf Lands Act (OCSLA). Specifically, the petitioners argue that the DOI's approvals of the plans violated both the OCSLA and the National Environmental Policy Act of 1969 (NEPA) because: (1) the DOI failed to consider the BP Deepwater Horizon disaster in approving further deepwater drilling; and (2) the DOI conducted an inadequate review of the plans under NEPA, because it incorrectly applied "categorical exclusions" (from the NEPA requirements of preparing environmental assessments or environmental impact statements) to those plans, which should not have been so excluded because they involved drilling in "relatively untested deep water," "areas of high biological sensitivity," "areas of high seismic risk or seismicity," or "areas of hazardous natural bottom conditions." As to the second argument, the Center emphasizes that the BP Deepwater Horizon disaster further shows the inherent inadequacy of the DOI's environmental analyses underlying the categorical exclusions. The petitioners requested the Appeals Court to vacate the DOI's approvals of the sixteen plans and remand the plans to the DOI for further proceedings consistent with OCSLA and NEPA.
    The Appeals Court indicates, "We conclude that: (1) the petitioners' OCSLA-based challenges are justiciable, except for four, which have become moot; (2) the DOI's approval of the exploratory and development plans are subject to judicial review by this
court under OCSLA, 43 U.S.C. § 1349(c)(2); (3) the petitioners' failure to participate in the administrative proceedings related to the DOI's approval of the plans as required by § 1349(c)(3) does not oust our jurisdiction because that participation requirement is a non-jurisdictional administrative exhaustion rule; but, (4) the petitioners have not shown sufficient justification for excusing them
from that exhaustion requirement in this case. Accordingly, except for four of the petitioners' petitions for judicial review that are dismissed as moot, the petitioners' petitions for judicial review are dismissed because of their failure to participate in the administrative proceedings."
    The Appeals Court says further, "The petitioners have not shown that, under OCSLA, the DOI's actions or omissions caused their failure to participate in the administrative proceedings, as required by §1349(c)(3), in order to subject the DOI's approval of the plans involved here to judicial review. For these reasons we conclude that, if we could recognize an exception to §1349(c)(3)(A)'s requirement that judicial review shall be available only to a person who participated in the pertinent administrative proceeding, the petitioners have not shown that they are entitled to such an exception or excuse in this case."
    Access the complete opinion (click here). [#Energy/OCS, #CA5]
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