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Natural Resources Defense Council v. Zinke

United States District Court, D. Alaska

December 6, 2018

NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs,
v.
RYAN ZINKE, et al., Defendants, and CONOCOPHILLIPS ALASKA, INC., Intervenor-Defendant.

          ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT

          SHARON L. GLEASON, UNITED STATES DISTRICT JUDGE

         Before the Court at Docket 25 is Plaintiffs Natural Resources Defense Council, Center for Biological Diversity, Greenpeace, Inc., and Friends of the Earth's (“Plaintiffs”) motion for summary judgment. Intervenor-Defendant ConocoPhillips Alaska, Inc. (“CPAI”) opposed and cross-moved for summary judgment at Docket 28. Defendants Ryan Zinke, Karen Mouritsen, and the Bureau of Land Management (“BLM”) (collectively, “Federal Defendants”) opposed and cross-moved for summary judgment at Docket 29. Plaintiffs replied at Docket 30. Oral argument was held on September 21, 2018, at Anchorage, Alaska.

         BACKGROUND

         This case addresses the 2016 and 2017 lease sales 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, 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] Plaintiffs did not seek judicial review of the IAP/EIS or ROD.[7]

         On March 31, 2016, BLM issued a call for nominations and comments for the 2016 lease sale.[8] On December 14, 2016, BLM held the 2016 lease sale.[9] BLM offered 145 tracts comprising more than 1.4 million acres, of which 67 tracts, comprising more than 613, 000 acres, received bids.[10] BLM ultimately issued 66 leases.[11] On August 7, 2017, BLM issued a call for nominations and comments for the 2017 lease sale.[12] On December 6, 2017, BLM held the 2017 lease sale.[13] BLM offered 900 tracts comprising approximately 10.3 million acres, of which seven tracts, comprising nearly 80, 000 acres, received bids.[14] BLM issued leases for the seven tracts on February 23, 2018.[15]

         On February 2, 2018, prior to the issuance of the leases from the 2017 lease sale, Plaintiffs filed their Complaint in this action. Plaintiffs plead two causes of action: The First Cause of Action alleges that BLM violated the National Environmental Protection Act (“NEPA”), its implementing regulations, and the APA[16] by “fail[ing] to take a hard look at the potential greenhouse gas emissions that would result from the 2016 and 2017 lease sales and the environmental effects of those emissions.”[17] The Second Cause of Action alleges that BLM violated NEPA, an implementing regulation, and the APA[18] by failing to “develop[] a range of lease sale configurations and comparing the environmental impacts of these various lease sale alternatives, despite the availability of information necessary to conduct the required analysis.”[19]

         LEGAL STANDARD

         The Court reviews “BLM's compliance with NEPA under the [APA's] deferential ‘arbitrary and capricious' standard[.]”[20] “[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.”[21]

         “Any action seeking judicial review of the adequacy of any program or site-specific environmental impact statement under section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. [§] 4332) concerning oil and gas leasing in the National Petroleum Reserve--Alaska shall be barred unless brought in the appropriate District Court within 60 days after notice of the availability of such statement is published in the Federal Register.”[22]

         DISCUSSION

         I. Mineral Leasing Act's Applicability

         CPAI asserts that “NRDC is barred from challenging the 2016 Lease Sale and associated leases because the Mineral Leasing Act's (“MLA”) 90-day statute of limitations for challenging leasing decisions has expired.”[23] Plaintiffs respond that the MLA's statute of limitations does not apply because “[t]he NPRPA withdraws all lands within the Reserve from application of the MLA.”[24] The text of the NPRPA suggests that Congress intended to withdraw the NPR-A from the application of the MLA:

Subject to valid existing rights, all lands within the exterior boundaries of such reserve are hereby reserved and withdrawn from all forms of entry and disposition under the public land laws, including the mining and mineral leasing laws, and all other Acts . . . . All other provisions of law heretofore enacted and actions heretofore taken reserving such lands as a Naval Petroleum Reserve shall remain in full force and effect to the extent not inconsistent with this Act.[25]

         A House report is more explicit: “It is the specific intent of this provision that all lands be explicitly excluded from the provisions of the Mineral Leasing Act of 1920.”[26] The Department of the Interior's solicitor issued an opinion reinforcing this interpretation.[27] CPAI argues that “Congress amended the MLA to expressly specify which MLA provisions are not applicable to the Petroleum Reserve, and [the MLA's 90-day limitation statute] is not included in the list of inapplicable provisions.”[28] Plaintiffs respond: “This assertion is . . . misleading, to say the least. The referenced amendment to the MLA occurred in 1935, more than 40 years before Congress passed the NPRPA. This MLA amendment is therefore not any indication of the extent to which Congress intended the NPRPA to limit the MLA's application to leasing in the Reserve.”[29] CPAI also relies on an interpretation of BLM regulations. “Specifically, 43 C.F.R. § 3000.5 repeats the [MLA's] limitations period . . . . The preamble to the final rule implementing 43 C.F.R. § 3000.5 explains that this provision was expressly promulgated under the authority of the MLA and the 1980 amendments to the NPRPA.”[30] Plaintiffs respond by citing to the Interior solicitor's opinion and maintain that “there is no indication BLM intended [43 C.F.R. § 3000.5] to apply in the Reserve. Instead, BLM has promulgated separate regulations governing leasing in the Reserve, see 43 C.F.R. §§ 3130-36, 3152, 3160, including a separate regulation setting the limitations period for challenging an EIS concerning oil and gas leasing, 43 C.F.R. § 3130.2.”[31] Based on the foregoing, the Court finds that the MLA's statute of limitations does not apply to Plaintiffs' claims.

         II. NPRPA's Time Limitation for Seeking Judicial Review of an IAP/EIS

         Federal Defendants claim that Plaintiffs' assertions “(1) that BLM failed to adequately analyze climate change; and (2) that BLM failed to consider a reasonable range of alternatives at the lease sale stage” both “address the adequacy of the IAP/EIS” and, because these claims were not brought in 2013, they “are time-barred[.]”[32] Plaintiffs maintain that they “do not challenge the Plan EIS. Plaintiffs challenge BLM's separate decisions to do no additional NEPA analysis when it made leasing decisions in 2016 and 2017.”[33]

         Plaintiffs' assertion that they are not challenging the adequacy of the IAP/EIS is belied by their Complaint and briefing. As to BLM's alleged failure to sufficiently consider greenhouse gas emissions, the IAP/EIS discusses the impacts of greenhouse gases and fine atmospheric particles on the NPR-A's climate.[34] Plaintiffs' Complaint asserts that “BLM did not conduct any analysis of the potential impacts of the greenhouse gas emissions resulting from the production and use of oil and gas that could result from the lease sales. The Plan EIS did not analyze these impacts for the plan as a whole or for any future lease sales . . . .”[35] Plaintiffs' summary judgment briefing also highlights the alleged inadequacy of the IAP/EIS's treatment of the climate impacts of oil and gas leasing.[36]

         As to consideration of alternatives, Plaintiffs maintain in their Complaint that “[t]he Plan EIS did not analyze or compare alternative lease sale configurations, size, or timing in the open areas.”[37] Plaintiffs repeat these assertions in their briefing.[38] As CPAI maintains, “the same issues presented by NRDC in this litigation were raised by NRDC in 2012 and responded to by BLM, and the 2012 IAP EIS was finalized without the analyses and additional alternatives demanded then and now by NRDC.”[39] Because Plaintiffs challenge the adequacy of the IAP/EIS, their claims fall within the NPRPA's 60-day time frame for instituting a NEPA challenge to an EIS.[40] Plaintiffs were required to bring these claims by February 26, 2013;[41] they did not do so.[42] Based on the foregoing, the Court finds Plaintiffs' challenge to the IAP/EIS to be time-barred.

         III. Challenges to the Lease Sales

         To the extent that Plaintiffs challenge the lease sales themselves, rather than the IAP/EIS, they waived any argument that BLM should have supplemented the IAP/EIS by failing to raise that argument in their Complaint. The Court incorporates by reference its summary judgment order in Northern Alaska ...


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