United States District Court, D. Alaska
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 35 is Plaintiffs Northern Alaska
Environmental Center, Alaska Wilderness League, Defenders of
Wildlife, the Sierra Club, and The Wilderness Society's
(“Plaintiffs”) motion for summary judgment.
Intervenor-Defendant ConocoPhillips Alaska, Inc.
(“CPAI”) filed an opposition and cross-motion for
summary judgment at Docket 46. Defendants United States
Department of the Interior, United States Bureau of Land
Management, Ryan Zinke, and Brian Steed (“Federal
Defendants”) filed an opposition and cross-motion for
summary judgment at Docket 47. Plaintiffs replied at Docket
48. Oral argument was held on September 21, 2018, at
Anchorage, Alaska.
BACKGROUND
This
case involves the 2017 lease sale for parcels in the National
Petroleum Reserve-Alaska (“NPR-A”).[1] The NPR-A is
comprised of approximately 23 million acres.[2]It is governed by
the Naval Petroleum Reserves Production Act of 1976
(“NPRPA”), [3]which requires the Secretary of the
Interior to “conduct an expeditious program of
competitive leasing of oil and gas in the Reserve . . .
.”[4]
In
November 2012, the Bureau of Land Management
(“BLM”) issued a Final Integrated Activity
Plan/Environmental Impact Statement (“IAP/EIS”),
which described five alternatives for oil and gas leasing in
the NPR-A.[5] In February 2013, the Secretary of the
Interior issued a Record of Decision (“ROD”),
which adopted one of the five alternatives and made
“approximately 11.8 million acres available for oil and
gas leasing.”[6]
On June
28, 2017, BLM issued a call for nominations and comments for
its 2017 lease sale.[7] BLM completed a Determination of NEPA
Adequacy (“DNA”) on September 26,
2017.[8] On December 6, 2017, BLM held the 2017
lease sale.[9] BLM offered 900 tracts comprising
approximately 10.3 million acres of the 11.8 million acres
identified in the 2013 ROD, of which seven tracts, comprising
approximately 80, 000 acres, received bids.[10] On February
22, 2018, BLM completed a revised DNA.[11] BLM issued
leases for the seven tracts on February 23,
2018.[12]
On
February 2, 2018, prior to the issuance of the leases from
the 2017 lease sale, Plaintiffs filed their Complaint in this
action.[13] Plaintiffs filed an Amended Complaint on
May 21, 2018.[14] Plaintiffs' Amended Complaint pleads
three causes of action: The First Cause of Action alleges
that BLM violated the National Environmental Protection Act
(“NEPA”), its implementing regulations, and the
Administrative Procedure Act
(“APA”)[15]when it held “the lease sale [and
issued the leases] without first preparing an EIS or
EA.”[16]The Second Cause of Action alleges that
BLM violated NEPA, its implementing regulations, and the
APA[17] when it held “the 2017 lease sale
without first conducting an adequate assessment of the
direct, indirect, and cumulative impacts . . .
.”[18] The Third Cause of Action alleges that
BLM violated its own regulations and the APA[19] when it
“issu[ed] a revised DNA after it had already conducted
the 2017 lease sale.”[20]
LEGAL
STANDARD
The
Court reviews “BLM's compliance with NEPA under the
[APA's] deferential ‘arbitrary and capricious'
standard[.]”[21] “[W]hen an agency complies in good
faith with the requirements of NEPA and issues an EIS
indicating that the agency has taken a hard look at the
pertinent environmental questions, its decision should be
afforded great deference.”[22]
“Once
an agency has taken a ‘hard look' at ‘every
significant aspect of the environmental impact' of a
proposed major federal action, . . . it is not required to
repeat its analysis simply because the agency makes
subsequent discretionary choices in implementing the
program.”[23] “So long as the impacts of the
steps that the agency takes were contemplated and analyzed by
the earlier NEPA analysis, the agency need not supplement the
original EIS or make a new assessment.”[24]
DISCUSSION
I. The
Court may consider Plaintiffs' Amended Complaint.
Federal
Defendants argue that Plaintiffs' claims should be
dismissed “because they filed their complaint before
the leases were issued[.]”[25] Plaintiffs respond that
the Court has jurisdiction because they filed an Amended
Complaint “after BLM issued the
leases.”[26] The Ninth Circuit held in Northstar
Financial Advisors, Inc. v. Schwab Investments that a
court may rely on an amended complaint that satisfies the
jurisdictional defects of the previous
complaint.[27] Because Plaintiffs filed their Amended
Complaint after BLM issued the leases, dismissal on this
basis is unwarranted.
II. BLM
was not required to conduct an EIS or EA for the 2017 lease
sale.
Plaintiffs
assert that BLM violated NEPA by issuing leases without
conducting an EIS or EA.[28] Federal Defendants respond that the
IAP/EIS is a sufficient environmental analysis that covers
the 2017 lease sale and that, in any event, the Revised DNA
constituted sufficient supplemental environmental
analysis.[29] Plaintiffs reply that the Court should
consider only the original DNA and view the 2017 lease sale
and lease issuances as major federal actions in and of
themselves that require a new and site specific EA or EIS.
Plaintiffs maintain that the supplementation of the existing
IAP/EIS at this stage is insufficient.[30]
The
Ninth Circuit's decision in Northern Alaska
Environmental Center v. Kempthorne controls
here.[31] Kempthorne upheld the
government's leasing program in the Northwest Planning
Area (“NWPA”) of the NPR-A. The Court set out the
factual background as follows: “BLM published the Final
EIS [(“FEIS”)] in December 2003 to open parts of
the NWPA to leasing. The FEIS adopted the Preferred
Alternative of the draft EIS, opening the BLM administered
lands in the NWPA to leasing subject to certain significant
limitations.”[32] “In assessing the environmental
impact of the leasing program for purposes of preparing the
FEIS, the BLM had no way of knowing what, if any, areas
subsequent exploration would find most suitable for drilling.
Thus, it did not do an analysis of any specific
parcels.”[33] However, “BLM did do an analysis
of the possible effects of drilling in the climatic
environment of the region. That analysis projected two
hypotheticals, representing each end of the available
spectrum of possibilities.”[34] “Because
[BLM's] analysis was based upon hypothetical future
projections of what might be undertaken in the exploration
and development phases, and was conducted on a resource by
resource basis, the EIS did not attempt to examine the impact
on specific parcels.”[35] In Kempthorne, at the
same time that BLM completed the EIS, it offered certain
parcels for lease. The Ninth Circuit's opinion indicates
that 120 parcels had been leased but “[n]o exploration
had begun.”[36] The plaintiffs in that case alleged
“that by not undertaking a parcel by parcel analysis of
the environmental consequences of projected exploration and
drilling [for the leased parcels], the BLM had failed to
satisfy the NEPA requirement of site specific
analysis.”[37]
The
Circuit Court found “no question” that
“approval of the leasing program represents an
irretrievable commitment of resources” requiring a NEPA
analysis.[38] “The issue, ” the Circuit
Court determined, was “whether [the approval of the
leasing program] was sufficiently site
specific.”[39] The Circuit Court observed that the
facts in one of its prior opinions, Conner v.
Burford, were as follows:
Two types of leases were involved. One, the so called
“no surface occupancy” or “NSO”
leases, forbid any use, or even occupancy of the surface of
the national forest land being leased, without BLM approval
of the specific, surface-disturbing activity the lessees
planned to undertake.
We held that such leases themselves involved no
“irretrievable commitment of resources” and no
EIS was required at the leasing stage.
The second and more numerous type of leases in
Conner were “non NSO” leases. They
authorized the lessees to undertake development subject to
government regulation of surface disturbing activities such
as roads and drilling. The government could not totally
preclude such activities, however, and for that reason we
held an EIS was required for non NSO leases.[40]
The
Kempthorne Court determined the NWPA leases before
it “are more like the ‘non NSO leases' in
Conner, ” because while BLM could
“condition permits for drilling on implementation of
environmentally protective measures” and potentially
deny them outright if “mitigation measures are not
available, ” BLM could not “forbid all oil and
gas development in Alaska's NWPA.”[41] Therefore,
the Ninth Circuit held that the NWPA leasing program
“constitute[d] an irretrievable commitment of
resources. An EIS is undeniably required, and, indeed one has
been prepared.”[42]
The
Kempthorne Court defined the remaining question as
whether “the EIS is insufficient because it does not
undertake a parcel by parcel analysis of surfaces that will
eventually be explored and developed.” The Ninth
Circuit found Conner to be “of no assistance
to plaintiffs, for we did not discuss the degree of site
specificity required in the EIS. The only question was
whether one had to be completed at all.”[43]
The
Ninth Circuit highlighted the “uncertainty” that
exists in the early stages of oil and gas development, and
determined that “when an agency complies in good faith
with the requirements of NEPA and issues an EIS indicating
that the agency has taken a hard look at the pertinent
environmental questions, its decision should be afforded
great deference.”[44] Therefore, the Circuit Court held
that although a parcel-specific EIS analysis had not yet been
undertaken for the leased areas, there was “no basis
for holding that the analysis in the EIS was arbitrary,
capricious, or done in bad faith.”[45]
The
Kempthorne Court recognized that a parcel-specific
EIS analysis would be required before any actual exploration
or development activity could occur on a leased
parcel.[46] It emphasized that “[a]ny later
plan for actual exploration by lessees will be subject to a
period of review before being accepted, rejected or modified
by the Secretary.”[47] And the Court recognized that
“Plaintiffs will have an opportunity to comment on any
later EIS. In addition, before any activity for exploration
or development occurs, permits from several agencies may be
required and additional permit conditions imposed for the
protection of land, water and wildlife
resources.”[48]
This
case is similar to Kempthorne. As in
Kempthorne, in this case BLM prepared a programmatic
IAP/EIS; Plaintiffs do not assert here that the IAP/EIS
failed to take a hard look at the environmental consequences
of oil leasing, exploration, and development in the
NPR-A.[49] And as in Kempthorne, BLM here
produced its IAP/EIS despite uncertainty as to the scope of
potential oil and gas exploration and extraction activity.
And as in Kempthorne, the federal government has
entered into “non-NSO leases” without preparing a
parcel-specific analysis for each lease.[50] In
Kempthorne, the Ninth Circuit upheld the issuance of
leases prior to a site specific analysis of each leased
parcel.[51] In that respect, Kempthorne is
controlling.
A
primary distinction between Kempthorne and this case
is that the leases in Kempthorne were issued
promptly after the completion of the FEIS. The 2017 lease
sale at issue in this case occurred several years after the
completion of the IAP/EIS. This raises the question of
whether the IAP/EIS adequately addresses the 2017 lease sale
in light of new circumstances. NEPA's implementing
regulations do require that “[a]gencies . . . [s]hall
prepare supplements to either draft or final environmental
impact statements if . . . [t]here are significant new
circumstances or information relevant to environmental
concerns and bearing on the proposed action or its
impacts.”[52] As with “the decision whether to
prepare an EIS in the first instance, ” an agency must
supplement an EIS “[i]f there remains ‘major
Federal actio[n]' to occur, and if the new information is
sufficient to show that the remaining action will
‘affec[t] the quality of the human environment' in
a significant manner or to a significant extent not already
...