North Slope Borough et al v. Minerals Management Service et al
Filing
25
Order on Motion for Preliminary Injunction
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
NORTH SLOPE BOROUGH and
ALASKA ESKIMO WHALING
COMMISSION,
Plaintiffs,
Case No. 3:07-cv-0045-RRB
vs.
MINERALS MANAGEMENT SERVICE;
REJANE ‘JOHNNIE’ BURTON, in
her official capacity as
Director, Minerals Management
Service; UNITED STATES
DEPARTMENT OF THE INTERIOR;
and DIRK KEMPTHORNE, in his
official capacity as
Secretary, United States
Department of the Interior,
ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION
Defendants.
I.
INTRODUCTION
Before the Court are Plaintiffs North Slope Borough
(“NSB”)
and
(collectively
the
Alaska
Eskimo
“Plaintiffs”)
with
Whaling
a
Commission
Motion
for
(“AEWC”)
Preliminary
Injunction in which Plaintiffs seek to enjoin the sale by the
ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION - 1
3:07-CV-0045-RRB
United States of America of certain oil and gas leases located in
the Beaufort Sea and referred to more specifically as Oil and Gas
Lease Sale 202.1
The sale is scheduled to occur on April 18, 2002.
Defendants
Minerals
Management
Service
(“MMS”), MMS
Director Rejane “Johnnie” Burton, in her official capacity, United
States Department of Interior (“DOI”), and DOI Secretary Dirk
Kempthorne, in his official capacity (collectively “Defendants”),
oppose at Docket 19.
The Court has read and considered Plaintiffs’ Motion for
Preliminary Injunction, Defendants’ Opposition, Plaintiffs’ Reply,
the 2003 multi-site environmental impact statement (“EIS”) and the
Lease Sale 202 Environmental Assessment (“EA”).
The Court heard
the oral arguments of counsel on April 11, 2007.
II.
BACKGROUND
In 2003, MMS prepared a four-volume EIS to analyze the
impacts of three proposed lease sales in the Beaufort Sea which
were scheduled to occur in 2003 (Lease Sale 186), 2005 (Lease Sale
195), and 2007 (Lease Sale 202).
Lease Sales 186 and 195 occurred
as scheduled with 34 and 117 leases sold respectively in each sale.
Significantly, no blocks are being offered in Lease Sale 202 that
were not previously offered in Lease Sales 186 or 195.
1
Docket 8.
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Because of the time lag between the 2003 EIS and the
later lease sales, MMS planned to prepare an EA for Lease Sales 195
and 202 to determine whether new information or circumstances
arising since the 2003 EIS would require a SEIS.
On October 28,
2005, MMS published a public notice of intent to prepare an EA for
proposed Lease Sale 202.
comment period.
The notice provided a public 30-day
Plaintiff AEWC submitted comments to MMS in
response to the notice.
In August 2006, the agency completed an EA
for Lease Sale 202.
On September 6, 2006, MMS published a public notice in
the Federal Register that it had prepared an EA and a Finding of No
New Significant Impacts (“FONNSI”) for proposed Lease Sale 202.
The
notice
interested
provided
parties
to
a
period
submit
of
30-day
comments
on
comment
the
EA
period
and
for
FONNSI.
Comments by Plaintiffs AEWC and NSB highlighted concerns about
unprecedented industry interest in the Beaufort Sea, unrealistic
single-field development scenarios for Lease Sale 202, impacts from
seismic testing, and potentially significant cumulative impacts
from seismic testing and climate change on subsistence and polar
bears.
In October 2006, MMS published a Proposed Notice of Lease
Sale for Lease Sale 202, setting the bid opening for March 28,
2007.
Subsequently, the date was rescheduled for April 18, 2007.
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In early 2007, Plaintiffs filed a Complaint seeking to
overturn the MMS’s decision not to supplement the 2003 EIS on the
grounds that it was arbitrary and capricious and in violation of
the National Environmental Policy Act (“NEPA”).2
Plaintiffs filed
the underlying Motion for Preliminary Injunction to enjoin Lease
Sale 202.
III. LEGAL STANDARDS
A.
Preliminary Injunction
In order to obtain a preliminary injunction Plaintiffs
must demonstrate either: (1) a likelihood of success on the merits
and a possibility of irreparable injury; or (2) the existence of
serious questions on the merits and a balance of hardships tipping
in their favor.3
“These two formulations represent two points on
a sliding scale in which the required degree of irreparable harm
increases as the probability of success decreases.”4
Where the
public interest is implicated, the court must determine whether the
public interest favors the moving party.5
2
42 U.S.C. § 4231 et. seq.
3
Earth Island Inst. v. United States Forest Serv., 351
F.3d 1291, 1297-98 (9th Cir. 2003).
4
Id. at 1298 (citation omitted).
5
Westlands Water Dist. v. Natural Res. Def. Council, 43
F.3d 457, 459 (9th Cir. 1994).
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The
Court
has
discretion
to
deny
a
request
for
a
preliminary injunction, however the Court “necessarily abuses its
discretion when it bases its decision on an erroneous legal
standard or on clearly erroneous findings of fact.”6
B.
NEPA
To determine whether the Plaintiffs are likely to succeed
on the merits of their claim, the Court must determine whether MMS
fulfilled its obligations under NEPA which mandates the preparation
of an EIS for any major federal action “significantly affecting the
quality of the human environment.”7
The twin objectives of NEPA are to (1) require the
federal
agency
to
“consider
every
significant
aspect
of
the
environmental impact of a proposed action,” and to (2) ensure that
the agency “inform[s] the public that it has indeed considered
environmental concerns in its decisionmaking process.”8 The agency,
however, is not required to elevate environmental concerns over
other appropriate considerations.9
A threshold question in a NEPA case therefore is whether
a proposed project will “significantly affect” the environment,
6
Earth Island Inst., 351 F.3d at 1298 (citation omitted).
7
42 U.S.C. § 4332(C).
8
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council,
Inc., 462 U.S. 87, 97 (1983)(internal citations omitted).
9
Id.
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thereby triggering the requirement for an EIS.10
An agency may
prepare an environmental assessment (“EA”) to determine whether the
environmental impact of a proposed action is significant enough to
warrant preparation of an EIS.11
If the agency determines that an
EIS is not necessary, it will issue a Finding of No Significant
Impact (“FONSI”).12
“Because the very important decision whether
to prepare an EIS is based solely on the EA, the EA is fundamental
to the decision-making process.”13
Where, as in this case, an agency has previously prepared
an EIS, it may prepare an EA to determine whether new information
or circumstances not originally accounted for in the EIS require
preparation of an updated EIS.
“The new circumstance must present
a seriously different picture of the environmental impact of the
proposed project from what was previously envisioned.”14 Based upon
the EA, the agency may prepare a Supplemental EIS (“SEIS”) or,
10
Blue Mountains Biodiversity Project v. Blackwood, 161
F.3d 1208, 1212 (9th Cir. 1998) (citing 42 U.S.C. § 4332(2)(C)).
11
Id. (citing 40 C.F.R. § 1508.9).
12
Metcalf v. Daley, 214 F.3d 1135, 1143 (9th Cir. 2000)
(citing 40 C.F.R. § 1508.9).
13
Id.
14
See Or. Natural Res. Council v. Devlin, 776 F. Supp.
1440, 1449 (D. Or. 1991)(citing Sierra Club v. Froehlke, 816 F.2d
205, 210 (5th Cir. 1987).
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alternatively,
issue
a
finding
of
No
New
Significant
Impact (“FONNSI”).
C.
Judicial Review of Agency Action
Judicial review of administrative actions under NEPA is
governed by the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 701-706.15 Under the APA, the Court must determine whether the
agency
action
was
“arbitrary
and
capricious,
an
abuse
discretion, or otherwise not in accordance with law.”16
of
“The
standard is narrow and the reviewing court may not substitute its
judgment for that of the agency.17
However, agency action is
arbitrary and capricious if it fails to “articulate a rational
connection between the facts found and the conclusion made.”18
The Court should reverse an agency decision under the
arbitrary and capricious standard only if the agency has “relied on
factors which Congress has not intended it to consider, entirely
failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be
15
Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 39394 (1989); Earth Island Inst. v. United States Forest Serv., 351
F.3d 1291, 1300 (9th Cir. 2003).
16
5 U.S.C. 706(2)(A).
17
Envtl. Def. Ctr. v. EPA, 344 F.3d 832, 858 n.36 (9th Cir.
2003).
18
Id.
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ascribed
to
a
difference
in
view
or
the
product
of
agency
expertise.”19
The decision not to supplement an EIS is “a classic
example of a factual dispute the resolution of which implicates
substantial agency expertise.”20 "An agency need not supplement an
EIS every time new information comes to light after the EIS is
finalized. To require otherwise would render agency decisionmaking
intractable, always awaiting updated information only to find the
new information outdated by the time a decision is made."21
NEPA
requires that the agency take a “hard look” at the new information
to determine whether supplementation of the EIS is necessary.22
However,
where
“a
court
reviews
an
agency
action
involving
primarily issues of fact, and where analysis of the relevant
documents requires a high level of technical expertise, [the court]
19
Pac. Coast Fed'n of Fishermen's Ass'ns, Inc. v. Nat'l
Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001)
(quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)).
20
Headwaters, Inc. v. BLM, 914 F.2d 1174, 1177 (9th Cir.
1990) (citing Marsh v. Oregon Natural Res. Council, 490 U.S. 360
(1989)).
21
Id. at 1176-77.
22
Id.
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must defer to the informed discretion of the responsible federal
agencies.”23
IV.
DISCUSSION
Plaintiffs argue that Defendants’ decision not to prepare
an SEIS was arbitrary and capricious because the Lease Sale 202 EA
noted new information and circumstances not addressed in the 2003
EIS, including higher oil prices, more leases than expected sold in
the far/deepwater zones during Lease Sales 186 and 195, and the
cumulative impact of climate change and increased industry interest
in the Beaufort Sea on subsistence and polar bears, but that MMS
failed to act thereon by preparing a SEIS.
Plaintiffs contend that if Lease Sale 202 is permitted to
occur, Plaintiffs’ subsistence activities will suffer irreparable
harm from the effect of seismic testing on whales, seals, caribou,
and waterfowl. Additionally, Plaintiffs assert that the cumulative
impacts from seismic testing, exploratory activities, current
offshore and onshore oil and gas development, and climate change
combine to cause serious harm. According to Plaintiffs, the public
interest in ensuring that federal agencies comply with federal
environmental laws and avoid harm to sensitive marine ecosystems
and habit overrides any possible economic harm that could result
23
City of Sausalito v. O’Neill, 386 F.3d 1186, 1206 (2004)
(citing, inter al., Marsh, 490 U.S. at 377-78).
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from temporarily enjoining Lease Sale 202 for long enough to
resolve the case on the merits.
Defendants assert that MMS was not required to prepare an
SEIS because the 2003 EIS was based on generous development
scenarios and the Lease Sale 202 EA did not present a seriously
different picture of environmental impact from what was previously
envisioned in the 2003 EIS, i.e., the impacts identified by
Plaintiffs were not new.24
Further, Defendants argue that any
potential injury anticipated by Plaintiffs is speculative and would
arise only, if at all, at the future exploration and development
stages
which
are
subject
to
additional
regulatory
control.25
Finally, Defendants assert that the public interest would be harmed
by enjoining the lease sale because expedited development of
domestic oil and gas is an imperative national interest.
After considering all of the above the Court finds that
the Motion for Preliminary Injunction must be denied.
The burden
of proof is on Plaintiffs to demonstrate that they are entitled to
a preliminary injunction.26
The Court cannot conclude, after
reviewing the Lease Sale 202 EA in conjunction with the 2003 EIS,
that the MMS’s “Finding of No New Significant Impacts” (“FONNSI”)
24
Docket 19 at 35.
25
Docket 19 at 24.
26
Mattel, Inc. v. Greiner and Hausser GMBH, 354 F.3d 857,
869 (9th Cir. 2003).
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was arbitrary and capricious nor can the Court conclude that MMS
failed to take a “hard look” at the concerns raised by Plaintiffs
prior to issuance of the FONNSI.
Therefore, it is unlikely that
Plaintiffs could prevail on the merits, especially in light of
NEPA’s purpose to ensure that environmental considerations are
taken
into
account,
but
not
necessarily
elevated
over
other
appropriate considerations.27
Most of the concerns expressed by the Plaintiffs as to
new or changed circumstances after the 2003 EIS was prepared were
considered in the various scenarios included in the 2003 EIS.
These were not new or unanticipated developments.
Plaintiffs’
concern about polar bears and associated mitigation was adequately
addressed in the EA.28
Plaintiffs’
concerns
Moreover, with regard to the polar bears,
were
aimed
more
at
the
exploration
and
development stage than the lease sale stage.
Further, given the safeguards provided by the Outer
Continental Shelf Leasing Act (“OCLSA”),29 and the fact that notice
must be provided pursuant to OCSLA regulations30 and Incidental
27
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council,
Inc., 462 U.S. 87, 97 (1983)(internal citations omitted).
28
Proposed OCS Lease Sale 202 EA, pp. 4-6, 24-25, 55-64.
29
43 U.S.C. § 1340.
30
30 C.F.R. § 250.208.
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Harassment Authorizations obtained pursuant to the Marine Mammal
Protection Act31 and supporting regulations32 before seismic testing
is conducted, it is unlikely that significant harm would result
from the scheduled lease sale.
MMS
Plaintiffs.
appears
sensitive
Deference
must
be
to
the
given
to
concerns
the
raised
experience
by
and
expertise of this agency especially in light of Supreme Court
authority disfavoring injunctive relief at this early stage of the
process.33
On whole, in spite of Plaintiffs’ well-stated argument,
the Court finds that a balance of hardships weighs in favor of
Defendants who have invested significant time and expense in
preparing for the scheduled sales.
Moreover, the public interest
in energy development favors proceeding with the scheduled sales.
To conclude otherwise would require the Court to engage in multiple
levels of speculation regarding climate change, animal migration,
and economics.
///
///
///
31
16 U.S.C. § 1361, et seq.
32
50 C.F.R. 216.107(b).
33
Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 544-
46 (1987).
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V. CONCLUSION
For
the
foregoing
reason,
Plaintiffs’
Motion
for
Preliminary Injunction is DENIED. This matter shall proceed in due
course.
ENTERED this 12th day of April, 2007.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
ORDER DENYING MOTION FOR
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