Endangered Species Law & Policy

On June 11, 2015, the U.S. Court of Appeals for the Ninth Circuit upheld the Bureau of Safety and Environmental Enforcement’s (Bureau) approval of oil spill response plans (OSRPs) relating to oil leases in the Beaufort and Chuckchi seas on Alaska’s Arctic coast.   Alaska Wilderness League v. Jewell, No. 13-35866 (9th Cir. June 11, 2015).  Among other things, environmental groups alleged that the Bureau violated the Endangered Species Act (ESA) by failing to consult regarding the impacts of the OSRPs on endangered species.  The Bureau argued it was not required to consult because approval of the OSRPs was a non-discretionary action, and the ESA only requires agencies to consult regarding discretionary actions.  Plaintiffs argued there was sufficient discretion to trigger the ESA’s consultation requirement.

To determine whether approval of the OSRPs was a discretionary action, the Ninth Circuit first analyzed the applicable statutory scheme and implementing regulations.  The court explained that, while the Outer Continental Shelf Lands Act governs the development and exploration of offshore oil and gas resources, the Clean Water Act (CWA) provides the framework for preventing and responding to potential oil spills.  Pursuant to the CWA, the Bureau promulgated regulations that require owners and operators of offshore oil facilities to submit OSRPs for responding, to the maximum extent practicable, to the discharge of oil or hazardous substances.  The regulations require the Bureau to promptly review submitted OSRPs and to obtain amendments to OSRPs that do not meet the requirements of the CWA; the regulations further state that the Bureau shall approve any plan that meets the [statutory] requirements.

Applying the principles set forth in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), the Ninth Circuit then analyzed whether the relevant provisions were ambiguous as to whether the Bureau was permitted to consider additional environmental factors, such as the presence of listed species, when approving the OSRPs.  The court found the relevant statutes ambiguous with respect to this issue.  Thus, pursuant to Chevron, the Court next considered whether the Bureau’s interpretation of its action as non-discretionary was reasonable.  The Ninth Circuit concluded that, because the statutory provisions regarding approval of OSRPs state that the Bureau shall approve any plan that meets the statutory criteria, the Bureau reasonably interpreted the statute to mean that its approval of the OSRPs was not a discretionary action.  Given that the ESA does not apply to non-discretionary actions, the court held the Bureau was not required to consult under the ESA, and affirmed the Bureau’s approval of the OSRPs.

The court also held that the Bureau did not violate the National Environmental Policy Act by determining that it was not necessary to prepare an Environmental Impact Statement before approving the OSRPs.