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Kunaknana v. United States Army Corps of Engineers

United States District Court, D. Alaska

May 26, 2015

SAM KUNAKNANA, et al., Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, and CONOCOPHILLIPS ALASKA, INC., et al., Intervenor-Defendants.

SECOND ORDER RE MOTIONS FOR SUMMARY JUDGMENT

SHARON L. GLEASON, District Judge.

Plaintiffs Sam Kunaknana, et al., filed this lawsuit challenging Defendant U.S. Army Corps of Engineers'[1] decision to issue a permit to ConocoPhillips Alaska, Inc. to fill certain wetlands in order to develop a drill site known as CD-5, which is located in the National Petroleum Reserve - Alaska ("NPR-A") and adjacent to the Colville River Delta.[2] Plaintiffs assert that the Corps' issuance of the permit violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4327, and Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344.[3] ConocoPhillips, the Arctic Slope Regional Corporation ("ASRC"), the State of Alaska, the North Slope Borough, and Kuukpik Corporation, the Alaska Native Claims Settlement Act village corporation for the Inupiat Eskimo Village of Nuiqsut, [4] have all joined this action as Intervenor-Defendants in support of the Corps.[5]

In 2001 ConocoPhillips announced the discovery of oil to the west of the Alpine oil field in the Colville River Delta and NPR-A. In 2004, as part of the NEPA review process, the Alpine Satellite Development Plan Final EIS ("2004 FEIS") was issued for the entire project. The 2004 FEIS was prepared by the Bureau of Land Management ("BLM") with four cooperating entities: the Corps, the U.S. Environmental Protection Agency ("EPA"), U.S. Coast Guard, and the State of Alaska. The 2004 FEIS is approximately 2, 547 pages long and analyzes six alternative development plans for all five of the satellite oil production pads at ConocoPhillips' Alpine field.[6] This case involves only one of those production pads - the CD-5 drill site.

In September 2005, ConocoPhillips submitted an application to the Corps for a Section 404 permit under the Clean Water Act to develop CD-5. In February 2008, ConocoPhillips asked the Corps to suspend the processing of that application while ConocoPhillips worked with Kuukpik to resolve project-related issues. In December 2008, ConocoPhillips submitted a modified permit application to the Corps. In February 2010, the Corps issued a Record of Decision ("2010 ROD") denying ConocoPhillips' modified application because the Corps determined that ConocoPhillips had failed to demonstrate that its proposal was the Least Environmentally Damaging Practicable Alternative, or "LEDPA, " as required by the Clean Water Act.[7] ConocoPhillips administratively appealed that determination. In December 2010, a Corps review officer remanded the permit application to the Corps District Engineer.[8] ConocoPhillips and other interested parties then provided the Corps with additional information about ConocoPhillips' proposal and certain alternatives.[9]

In December 2011, the Corps issued the Record of Decision ("2011 ROD") that is the focus of this appeal, which granted ConocoPhillips' modified permit application. The 2011 ROD concluded that a supplemental environmental impact statement ("SEIS") was not needed to evaluate ConocoPhillips' revised permit application because "there have not been substantial changes in the proposed action that are relevant to environmental concerns; and... there are not significant new circumstances or information relevant to environmental concerns and bearing on the proposal or impacts."[10]

Plaintiffs initiated this action on February 27, 2013.[11] On October 11, 2013, Plaintiffs filed a Motion for Summary Judgment.[12] The Corps and Intervenor-Defendants each filed a response in opposition to Plaintiffs' motion, which also served as cross-motions for summary judgment.[13]

The Court issued an Order re Motions for Summary Judgment on May 27, 2014, and held that

the Corps' determination that a Supplemental Environmental Impact Statement was unnecessary was arbitrary and capricious because the Corps failed to provide a reasoned explanation for that determination that addressed the changes to the CD-5 project since the 2004 Environmental Impact Statement and the new information the Corps relied upon in making its Least Environmentally Damaging Practicable Alternative determination for purposes of Section 404 of the Clean Water Act.[14]

The Court remanded the matter to the Corps to "set forth a reasoned explanation as to whether or not the 2004 [FEIS] warrants supplementation to address the changes in the CD-5 project... and the new information relied upon by the Corps in its permitting decision." The Court added that it did "not intend to foreclose the possibility that on remand the Corps might decide that preparation of an SEIS is warranted."[15]

By agreement of the parties, the Court also ordered that the Corps address on remand whether post-2004 climate change information warrants the preparation of an SEIS.

The Corps filed a Supplemental Information Report ("SIR") on September 12, 2014, [16] and supplemental briefing from all the parties then ensued.[17] No party requested oral argument, and oral argument was not necessary to the Court's decision.

For the reasons discussed herein, the Court will deny Plaintiffs' renewed motion for summary judgment and grant the Corps' and ConocoPhillips' cross-motions for summary judgment.

DISCUSSION

I. Jurisdiction

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.

II. Standard of Review of Agency Action

The Administrative Procedure Act ("APA") provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."[18] The APA directs courts to "hold unlawful and set aside" an agency decision that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."[19]

The United States Supreme Court has held that "[t]he scope of review under the arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency."[20] And the Ninth Circuit has "emphasized that deference to the agency's decisions is especially warranted when reviewing the agency's technical analysis and judgments, based on an evaluation of complex scientific data within the agency's technical expertise."[21] "Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made."[22]

Claim One: Violation of NEPA

A. Standard of Review of Decision to Supplement an EIS

An agency's decision whether to supplement an EIS is reviewed under the arbitrary and capricious standard described above.[23] As discussed in the Court's previous Order re Motions for Summary Judgment, [24] an agency is not required to prepare an SEIS every time there are changes to a project or new information comes to light.[25] But an agency must prepare a supplement to an EIS in two circumstances:

(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or
(ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.[26]

A dispute as to whether an SEIS is required "must be resolved in favor of the expert agency so long as the agency's decision is based on a reasoned evaluation of the relevant factors."[27] "NEPA requires an agency to take a hard look' at potential environmental consequences before taking action, and if the proposed action might significantly affect the quality of the environment, a supplemental EIS is required."[28] But an agency "must have some flexibility to modify alternatives."[29]

(i) Substantial Changes Relevant to Environmental Concerns

The first circumstance in which an SEIS is required is when the agency makes changes from those previously evaluated in an EIS that are both substantial and relevant to environmental concerns. In North Idaho Cmty. Action Network v. U.S. Dep't of Transportation, the Ninth Circuit considered whether changes to a highway construction project required supplementation. The court held that an "SEIS is required only if changes... may result in significant environmental impacts in a manner not previously evaluated and considered.'"[30] The Ninth Circuit then examined the relative size of the changes, the reasons for them, and the mitigation measures imposed. The court also considered the extent to which the agency had analyzed and discussed the project changes in an environmental assessment ("EA") and reevaluation. Based on that review, the Ninth Circuit concluded that the agency's determination "that the changes... would not significantly impact the environment in a way not previously considered, and that a SEIS therefore was not required, was not arbitrary or capricious."[31]

Great Old Broads for Wilderness v. Kimbell is also instructive. There, the Ninth Circuit considered whether a supplemental EIS was necessary in connection with the U.S. Forest Service's plan to repair a road in a national forest.[32] The selected plan combined elements from several alternatives that had been discussed in the original EIS, but the selected plan as a whole had not been separately analyzed in that EIS. The plaintiff argued that preparation of a supplemental EIS was required in these circumstances. The Ninth Circuit disagreed. Relying on the Council on Environmental Quality's ("CEQ") guidance, the court held that supplementation was not required when "(1) the new alternative is a minor variation of one of the alternatives discussed in the draft EIS, and (2) the new alternative is qualitatively within the spectrum of alternatives that were discussed in the draft EIS."[33] The Circuit Court reasoned that "the Forest Service and the public could assess the cumulative effect of [the elements in the chosen alternative]" because each of those elements had been analyzed, albeit separately, in the EIS. The court also noted that the selected plan incorporated several mitigation modifications. And the court found that the plaintiff "point[ed] to no specific changes that it deem[ed] not adequately analyzed in the final EIS."[34]

(ii) Significant New Circumstances or Information

The second situation in which an SEIS is required is when there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. This situation was addressed in the U.S. Supreme Court's decision in Marsh v. Oregon Nat. Res. Council . The plaintiff maintained that the Army Corps of Engineers had violated NEPA by failing to prepare an SEIS after it obtained new information in relation to a dam construction project. The Court held that when a court is reviewing an agency's decision not to supplement under the arbitrary and capricious standard, "[t]his inquiry must be searching and careful, but the ultimate standard of review is a narrow one."[35] The Court added that "courts should... carefully review[ ] the record and satisfy[] themselves that the agency has made a reasoned decision based on its evaluation of the significance - or lack of significance - of the new information."[36] Applying ...


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