Edc v. Boem ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENVIRONMENTAL DEFENSE CENTER, No. 19-55526
a California non-profit corporation;
SANTA BARBARA CHANNELKEEPER, D.C. Nos.
a California non-profit corporation; 2:16-cv-08418-
PEOPLE OF THE STATE OF PSG-FFM
CALIFORNIA, ex rel. Rob Bonta, 2:16-cv-08473-
Attorney General; CALIFORNIA PSG-FFM
COASTAL COMMISSION; CENTER FOR 2:16-cv-09352-
BIOLOGICAL DIVERSITY; WISHTOYO PSG-FFM
FOUNDATION,
Plaintiffs-Appellees,
v.
BUREAU OF OCEAN ENERGY
MANAGEMENT,
Defendant-Appellee,
AMERICAN PETROLEUM INSTITUTE,
Intervenor-Defendant-Appellant,
and
RICHARD YARDE, Regional
Supervisor, Office of Environment,
Bureau of Ocean Energy
Management; DAVID FISH, Bureau
of Safety and Environmental
Enforcement; AMANDA LEFTON,
Director, Bureau of Ocean Energy
2 EDC V. BOEM
Management; KEVIN M. SLIGH, SR.,
Director, Bureau of Safety and
Environmental Enforcement;
BUREAU OF SAFETY AND
ENVIRONMENTAL ENFORCEMENT;
JOAN BARMINSKI, Pacific Region
Director, Bureau of Ocean Energy
Management; MIKE MITCHELL,
Acting Pacific Region Director,
Bureau of Safety and Environmental
Enforcement; U.S. DEPARTMENT OF
THE INTERIOR; DEB HAALAND,
Secretary of the Interior,
Defendants,
EXXON MOBIL CORPORATION;
DCOR, LLC,
Intervenor-Defendants.
ENVIRONMENTAL DEFENSE CENTER, No. 19-55707
a California non-profit corporation;
SANTA BARBARA CHANNELKEEPER, D.C. Nos.
a California non-profit corporation; 2:16-cv-08418-
PEOPLE OF THE STATE OF PSG-FFM
CALIFORNIA, ex rel. Rob Bonta, 2:16-cv-08473-
Attorney General; CALIFORNIA PSG-FFM
COASTAL COMMISSION; CENTER FOR 2:16-cv-09352-
BIOLOGICAL DIVERSITY; WISHTOYO PSG-FFM
FOUNDATION,
Plaintiffs-Appellees,
v.
EDC V. BOEM 3
BUREAU OF OCEAN ENERGY
MANAGEMENT; RICHARD YARDE,
Regional Supervisor, Office of
Environment, Bureau of Ocean
Energy Management; DAVID FISH,
Bureau of Safety and Environmental
Enforcement; AMANDA LEFTON,
Director, Bureau of Ocean Energy
Management; KEVIN M. SLIGH, SR.,
Director, Bureau of Safety and
Environmental Enforcement;
BUREAU OF SAFETY AND
ENVIRONMENTAL ENFORCEMENT;
JOAN BARMINSKI, Pacific Region
Director, Bureau of Ocean Energy
Management; MIKE MITCHELL,
Acting Pacific Region Director,
Bureau of Safety and Environmental
Enforcement; U.S. DEPARTMENT OF
THE INTERIOR; DEB HAALAND,
Secretary of the Interior,
Defendants,
AMERICAN PETROLEUM INSTITUTE;
DCOR, LLC,
Intervenor-Defendants,
and
EXXON MOBIL CORPORATION,
Intervenor-Defendant-Appellant.
4 EDC V. BOEM
ENVIRONMENTAL DEFENSE CENTER, No. 19-55708
a California non-profit corporation;
SANTA BARBARA CHANNELKEEPER, D.C. Nos.
a California non-profit corporation; 2:16-cv-08418-
Plaintiffs-Appellants, PSG-FFM
2:16-cv-08473-
and PSG-FFM
2:16-cv-09352-
PEOPLE OF THE STATE OF PSG-FFM
CALIFORNIA, ex rel. Rob Bonta,
Attorney General; CALIFORNIA
COASTAL COMMISSION; CENTER FOR
BIOLOGICAL DIVERSITY; WISHTOYO
FOUNDATION,
Plaintiffs,
v.
BUREAU OF OCEAN ENERGY
MANAGEMENT; RICHARD YARDE,
Regional Supervisor, Office of
Environment, Bureau of Ocean
Energy Management; DAVID FISH,
Bureau of Safety and Environmental
Enforcement; AMANDA LEFTON,
Director, Bureau of Ocean Energy
Management; KEVIN M. SLIGH, SR.,
Director, Bureau of Safety and
Environmental Enforcement;
BUREAU OF SAFETY AND
ENVIRONMENTAL ENFORCEMENT;
JOAN BARMINSKI, Pacific Region
Director, Bureau of Ocean Energy
Management; MIKE MITCHELL,
EDC V. BOEM 5
Acting Pacific Region Director,
Bureau of Safety and Environmental
Enforcement; U.S. DEPARTMENT OF
THE INTERIOR; DEB HAALAND,
Secretary of the Interior,
Defendants-Appellees,
AMERICAN PETROLEUM INSTITUTE;
EXXON MOBIL CORPORATION;
DCOR, LLC,
Intervenor-Defendants-Appellees.
ENVIRONMENTAL DEFENSE CENTER, No. 19-55718
a California non-profit corporation;
SANTA BARBARA CHANNELKEEPER, D.C. Nos.
a California non-profit corporation; 2:16-cv-08418-
PEOPLE OF THE STATE OF PSG-FFM
CALIFORNIA, ex rel. Rob Bonta, 2:16-cv-08473-
Attorney General; CALIFORNIA PSG-FFM
COASTAL COMMISSION; CENTER FOR 2:16-cv-09352-
BIOLOGICAL DIVERSITY; WISHTOYO PSG-FFM
FOUNDATION,
Plaintiffs-Appellees,
v.
BUREAU OF OCEAN ENERGY
MANAGEMENT; RICHARD YARDE,
Regional Supervisor, Office of
Environment, Bureau of Ocean
Energy Management; DAVID FISH,
Bureau of Safety and Environmental
Enforcement; AMANDA LEFTON,
Director, Bureau of Ocean Energy
6 EDC V. BOEM
Management; KEVIN M. SLIGH, SR.,
Director, Bureau of Safety and
Environmental Enforcement;
BUREAU OF SAFETY AND
ENVIRONMENTAL ENFORCEMENT;
JOAN BARMINSKI, Pacific Region
Director, Bureau of Ocean Energy
Management; MIKE MITCHELL,
Acting Pacific Region Director,
Bureau of Safety and Environmental
Enforcement; U.S. DEPARTMENT OF
THE INTERIOR; DEB HAALAND,
Secretary of the Interior,
Defendants,
AMERICAN PETROLEUM INSTITUTE;
EXXON MOBIL CORPORATION,
Intervenor-Defendants,
and
DCOR, LLC,
Intervenor-Defendant-Appellant.
EDC V. BOEM 7
ENVIRONMENTAL DEFENSE CENTER, No. 19-55725
a California non-profit corporation;
SANTA BARBARA CHANNELKEEPER, D.C. Nos.
a California non-profit corporation; 2:16-cv-08418-
PEOPLE OF THE STATE OF PSG-FFM
CALIFORNIA, ex rel. Rob Bonta, 2:16-cv-08473-
Attorney General; CALIFORNIA PSG-FFM
COASTAL COMMISSION; CENTER FOR 2:16-cv-09352-
BIOLOGICAL DIVERSITY; WISHTOYO PSG-FFM
FOUNDATION,
Plaintiffs-Appellees,
v.
BUREAU OF OCEAN ENERGY
MANAGEMENT; RICHARD YARDE,
Regional Supervisor, Office of
Environment, Bureau of Ocean
Energy Management; DAVID FISH,
Bureau of Safety and Environmental
Enforcement; AMANDA LEFTON,
Director, Bureau of Ocean Energy
Management; KEVIN M. SLIGH, SR.,
Director, Bureau of Safety and
Environmental Enforcement;
BUREAU OF SAFETY AND
ENVIRONMENTAL ENFORCEMENT;
JOAN BARMINSKI, Pacific Region
Director, Bureau of Ocean Energy
Management; MIKE MITCHELL,
Acting Pacific Region Director,
Bureau of Safety and Environmental
Enforcement; U.S. DEPARTMENT OF
THE INTERIOR; DEB HAALAND,
8 EDC V. BOEM
Secretary of the Interior,
Defendants-Appellants,
and
AMERICAN PETROLEUM INSTITUTE;
EXXON MOBIL CORPORATION;
DCOR, LLC,
Intervenor-Defendants.
PEOPLE OF THE STATE OF No. 19-55727
CALIFORNIA, ex rel. Rob Bonta,
Attorney General; CALIFORNIA D.C. Nos.
COASTAL COMMISSION, 2:16-cv-08418-
Plaintiffs-Appellants, PSG-FFM
2:16-cv-08473-
and PSG-FFM
2:16-cv-09352-
ENVIRONMENTAL DEFENSE CENTER, PSG-FFM
a California non-profit corporation;
SANTA BARBARA CHANNELKEEPER,
a California non-profit corporation;
CENTER FOR BIOLOGICAL
DIVERSITY; WISHTOYO
FOUNDATION,
Plaintiffs,
v.
BUREAU OF OCEAN ENERGY
MANAGEMENT; RICHARD YARDE,
Regional Supervisor, Office of
Environment, Bureau of Ocean
Energy Management; DAVID FISH,
EDC V. BOEM 9
Bureau of Safety and Environmental
Enforcement; AMANDA LEFTON,
Director, Bureau of Ocean Energy
Management; KEVIN M. SLIGH, SR.,
Director, Bureau of Safety and
Environmental Enforcement;
BUREAU OF SAFETY AND
ENVIRONMENTAL ENFORCEMENT;
JOAN BARMINSKI, Pacific Region
Director, Bureau of Ocean Energy
Management; MIKE MITCHELL,
Acting Pacific Region Director,
Bureau of Safety and Environmental
Enforcement; U.S. DEPARTMENT OF
THE INTERIOR; DEB HAALAND,
Secretary of the Interior,
Defendants-Appellees,
AMERICAN PETROLEUM INSTITUTE;
EXXON MOBIL CORPORATION;
DCOR, LLC,
Intervenor-Defendants-Appellees.
10 EDC V. BOEM
CENTER FOR BIOLOGICAL No. 19-55728
DIVERSITY; WISHTOYO
FOUNDATION, D.C. Nos.
Plaintiffs-Appellants, 2:16-cv-08418-
PSG-FFM
and 2:16-cv-08473-
PSG-FFM
ENVIRONMENTAL DEFENSE CENTER, 2:16-cv-09352-
a California non-profit corporation; PSG-FFM
SANTA BARBARA CHANNELKEEPER,
a California non-profit corporation;
PEOPLE OF THE STATE OF OPINION
CALIFORNIA, ex rel. Rob Bonta,
Attorney General; CALIFORNIA
COASTAL COMMISSION,
Plaintiffs,
v.
BUREAU OF OCEAN ENERGY
MANAGEMENT; RICHARD YARDE,
Regional Supervisor, Office of
Environment, Bureau of Ocean
Energy Management; DAVID FISH,
Bureau of Safety and Environmental
Enforcement; AMANDA LEFTON,
Director, Bureau of Ocean Energy
Management; KEVIN M. SLIGH, SR.,
Director, Bureau of Safety and
Environmental Enforcement;
BUREAU OF SAFETY AND
ENVIRONMENTAL ENFORCEMENT;
JOAN BARMINSKI, Pacific Region
Director, Bureau of Ocean Energy
EDC V. BOEM 11
Management; MIKE MITCHELL,
Acting Pacific Region Director,
Bureau of Safety and Environmental
Enforcement; U.S. DEPARTMENT OF
THE INTERIOR; DEB HAALAND,
Secretary of the Interior,
Defendants-Appellees,
AMERICAN PETROLEUM INSTITUTE;
EXXON MOBIL CORPORATION;
DCOR, LLC,
Intervenor-Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, Chief District Judge, Presiding
Argued and Submitted October 18, 2021
San Francisco, California
Filed June 3, 2022
Before: J. Clifford Wallace, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould
12 EDC V. BOEM
SUMMARY *
Environmental Law
The panel reversed the district court’s grant of summary
judgment to federal defendants on plaintiffs’ National
Environmental Policy Act (“NEPA”) claims, and affirmed
the grant of summary judgment to plaintiffs on the
Endangered Species Act (“ESA”) and Coastal Zone
Management Act (“CZMA”) claims, in actions – brought by
environmental groups, the State of California, and the
California Coastal Commission – alleging federal agencies
violated environmental laws when they authorized
unconventional oil drilling methods on offshore platforms in
the Pacific Outer Continental Shelf off the coast of
California.
Environmental groups learned through Freedom of
Information Act requests that agencies within the U.S.
Department of the Interior had authorized permits for
offshore well stimulation treatments without first conducting
the normally-required environmental review. Pursuant to
settlements between the environmental groups and the
federal agencies – the Bureau of Ocean Energy Management
(BOEM) and the Bureau of Safety and Environmental
Enforcement (BSEE), the agencies issued an Environmental
Assessment (“EA”) evaluating the use of offshore well
simulation treatments and did not prepare a full
Environmental Impact Statement (“EIS”). The agencies
concluded that the use of these treatments would not pose a
significant environmental impact and issued a finding of No
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
EDC V. BOEM 13
Significant Impact (“FONSI”). Petroleum industry
defendants intervened.
The panel first concluded that that it had jurisdiction to
review the challenges to the agencies’ EA and FONSI and
that plaintiffs’ claims were ripe for review now. After
reviewing the agencies’ EA and FONSI, the panel held that
the agencies failed to take the hard look required by NEPA
in issuing their EA and that they should have prepared an
EIS for their proposed action. The panel reversed the
summary judgment to defendants on the NEPA claims and
granted summary judgment to plaintiffs on those claims;
affirmed the district court’s summary judgment to plaintiffs
on the ESA and CZMA claims; and held that the district
court did not abuse its discretion in fashioning injunctive
relief.
Specifically, on the issues of jurisdiction, first, the panel
held that the programmatic EA and FONSI met both prongs
of the test set forth in Bennett v. Spear, 520 U.S. 154, 177–
78 (1997), for final agency action under the Administrative
Procedure Act: the EA and FONSI marked the
consummation of the agency’s decision-making process;
and the EA and FONSI determined rights and obligations
and were actions from which legal consequences would
flow. Second, concerning the ripeness of the NEPA and
CZMA claims, the panel held that the agencies’ action
satisfied the test for prudential ripeness under Ohio Forestry
Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
Delayed review would cause hardship to plaintiffs because
they were alleging only procedural violations in this case;
reviewing plaintiffs’ claims at this point would not
inappropriately interfere with further administrative action;
and there was no need for further factual development.
14 EDC V. BOEM
Concerning the merits of plaintiffs’ NEPA claims, first,
plaintiffs claimed that the agencies violated NEPA because
the agencies’ EA was inadequate. The panel held that the
EA’s findings relied on the incorrect assumption that well
stimulation treatment would be infrequent, and the panel
concluded that the agencies acted arbitrarily and
capriciously by offering an analysis that ran counter to the
evidence before the agency, and failed to take the requisite
hard look in arriving at their conclusion. The panel held
further that the agencies acted arbitrarily and capriciously by
assuming in the EA that compliance with a permit issued by
the Environmental Protection Agency under the Clean Water
Act would render the impacts of well stimulation treatments
insignificant. Second, plaintiffs also contended that the EA
violated NEPA because the agencies failed to consider a
reasonable range of alternatives and relied upon a too narrow
statement of purpose and need in the EA. The panel held
that in light of the discretion afforded the agencies, the EA’s
statement of “purpose and need” did not unduly constrain the
agencies’ consideration of alternatives regarding the use of
well stimulation treatments. The panel held further,
however, that the agencies did not meet their obligations
under NEPA to give consideration to all reasonable
alternatives.
Plaintiffs also challenged the agencies’ decision not to
prepare an EIS as a separate violation of NEPA. Here, the
environmental impacts of extensive offshore fracking were
largely unexplored. The important issues here warranted a
full NEPA analysis in an EIS: offshore well stimulation
treatments may adversely effect endangered or threatened
species; well stimulation treatments in the Pacific Outer
Continental Shelf would affect unique geographic areas; and
the effects of offshore well stimulation treatments are highly
uncertain and involve unknown risks. The panel held that the
EDC V. BOEM 15
agencies acted arbitrarily and capriciously by not preparing
an EIS, and by limiting their assessment to an EA that did
not fully evaluate the environmental impacts of fracking.
The panel vacated the inadequate EA, and remanded to the
district court with instructions to amend its injunction to
prohibit the agencies from approving permits for well
stimulation treatments until the agencies have issued an EIS
and have fully and fairly evaluated all reasonable
alternatives.
The environmental groups alleged that the federal
agencies violated the ESA’s consultation requirement, and
the district court granted summary judgment to plaintiffs on
this issue. The panel rejected the agencies’ sole argument
on appeal that the ESA claim was not ripe, and there was no
agency action requiring consultation. BOEM and BSEE
have advised the court that consultation with the U.S. Fish
and Wildlife Service are still ongoing, which make this claim
ripe for review. The panel used a two-step test to determine
whether an action qualified as a sufficient “agency action”
under the ESA. First, the panel held that the district court
correctly held that by issuing the EA and FONSI for the
proposed action of allowing well stimulation treatments
offshore California, the agencies “affirmatively authorized”
private companies to proceed with these treatments. Second,
the panel held that the agencies had discretion to influence
for the benefit of a protected species where throughout the
EA, the agencies presented and dismissed alternative options
that would have imposed restrictions affecting the oil
companies’ subsequent applications. The programmatic
analysis and approval of the use of offshore well stimulation
treatments without restriction in the EA and FONSI met the
definition of “agency action.” The panel affirmed the district
court’s summary judgment to the environmental groups on
the ESA claim.
16 EDC V. BOEM
The panel next turned to California’s CZMA claim,
alleging that the agencies violated the CZMA because they
did not conduct a consistency review to determine whether
the use of offshore well stimulation was consistent with
California’s coastal management plan. The panel agreed
with the district court that the agencies’ proposed action to
allow well stimulation treatments in the Pacific Outer
Continental Shelf qualified as a “Federal agency activity”
under § (c)(1) of the CZMA. Specifically, the panel held
that the proposed action met the CZMA regulations’ broadly
definition of “Federal agency activity.” The panel rejected
the agencies and Intervenors’ contention that the
programmatic EA was a “bare NEPA analysis” document
divorced from any agency action. The panel also held that
the proposed action fell outside the scope of § (c)(3) of the
CZMA, which would have precluded review under § (c)(1).
The panel concluded that the agencies violated the CZMA
by failing to conduct the requisite consistency review, and
summary judgment was properly granted to California on the
CZMA claims.
Intervenors Exxon Mobil Corporation and DCOR, LLC
challenged the injunctive relief the district court awarded to
remedy the ESA and CZMA violations, which enjoined the
agencies from approving any permits allowing well
stimulation treatments offshore California until the agencies
completed consultation with the Fish and Wildlife Service
and consistency review with California. The panel held that
it was reasonable for the district court to conclude that the
agencies’ violations of the ESA and CZMA would result in
irreparable harm if the agencies could approve well
stimulation treatment permits before the protective
environmental requirements of these statutes were followed.
The panel also held that the district court did not abuse its
discretion in its analysis of the other three factors for
EDC V. BOEM 17
injunctive relief. The panel affirmed the injunctive relief
previously fashioned by the district court and remanded with
instructions that the district court amend its injunctions to
enjoin the agencies from approving well stimulation
treatment permits until the agencies issue a complete EIS,
rather than the inadequate EA on which they had relied.
COUNSEL
George Torgun (argued), Deputy Attorney General; Jamee
Jordan Patterson, David A. Zonana, and David G. Alderson,
Supervising Deputy Attorneys General; Daniel A. Olivas
and Edward H. Ochoa, Senior Assistant Attorneys General;
Rob Bonta, Attorney General; Office of the Attorney
General, Oakland, California; for Plaintiffs-
Appellees/Cross-Appellants People of the State of
California and California Coastal Commission.
Margaret M. Hall (argued) and Linda J. Krop, Santa Barbara,
California, for Plaintiffs-Appellees/Cross-Appellants
Environmental Defense Center and Santa Barbara
Channelkeeper.
James A. Maysonett (argued), Michael T. Gray, and Joseph
H. Kim, Attorneys; Eric Grant, Deputy Assistant Attorney
General; Environment and Natural Resources Division,
United States Department of Justice, Washington, D.C., for
Defendants-Appellees/Appellants Bureau of Ocean Energy
Management, Richard Yarde, David Fish, Amanda Lefton,
Kevin M. Sligh Sr., Bureau of Safety and Environmental
Enforcement, Joan Barminski, Mike Mitchell, U.S.
Department of the Interior, and Deb Haaland.
18 EDC V. BOEM
Jonathan A. Hunter (argued), Jones Walker LLP, New
Orleans, Louisiana; M. Randall Oppenheimer and Dawn
Sestito, O’Melveny & Myers LLP, Los Angeles, California;
Stephen W. Wiegand, Liskow & Lewis, New Orleans,
Louisiana; for Intervenor-Defendant-Appellee Exxon Mobil
Corporation.
Steven J. Rosenbaum and Bradley K. Ervin, Covington &
Burling LLP, Washington, D.C., for Intervenor-Defendant-
Appellant/Cross-Appellee American Petroleum Institute.
L. Poe Leggette, Baker & Hostetler LLP, Houston, Texas,
for Intervenor-Defendant-Appellee/Appellant DCOR, LLC.
Kristen Monsell and Emily Jeffers, Center for Biological
Diversity, Oakland, California, for Plaintiffs-
Appellees/Cross-Appellants Center for Biological Diversity
and Wishtoyo Foundation.
Noah Garrison, Santa Monica, California, for Amici Curiae
Members of U.S. House of Representatives.
EDC V. BOEM 19
OPINION
GOULD, Circuit Judge:
State boundaries extend three miles from their coastlines.
Although the land and water beyond that is subject to federal
control, coastal states are entitled to participate in the federal
government’s decisions concerning this area, known as the
Outer Continental Shelf. This appeal concerns the federal
government’s authorization of unconventional oil drilling
methods on offshore platforms in the Pacific Outer
Continental Shelf. These unconventional oil drilling
methods are known within the oil and gas industry as “well
stimulation treatments” and encompass, among other
techniques, what is known colloquially as fracking. 1 Well
stimulation treatments prolong drilling operations by
enabling oil companies to extract oil otherwise unreachable
using conventional drilling methods. These stimulation
treatments pose unknown risks, or so Plaintiffs contend,
because their environmental impacts have not been fully
studied.
Many of the questions that arise from this appeal are a
result of its unique procedural posture. For offshore oil and
development activities, agencies are supposed to conduct
environmental review of proposed activities before
approving permits authorizing private companies to conduct
such activities. But here, environmental groups learned
through Freedom of Information Act (“FOIA”) requests that
agencies within the U.S. Department of the Interior had
1
The district court and the parties use “WST” to refer to well
stimulation treatments. We decline to use that abbreviation in this
opinion but do not alter quotes from the administrative record in which
that abbreviation is used.
20 EDC V. BOEM
authorized permits for offshore well stimulation treatments
without first conducting the normally-required
environmental review. The federal agencies, the Bureau of
Ocean Energy Management (“BOEM”) and the Bureau of
Safety and Environmental Enforcement (“BSEE”), agreed to
conduct an environmental review only after being sued by
and reaching settlement agreements with the environmental
groups involved in this litigation: the Environmental
Defense Center (“EDC”), the Santa Barbara Channelkeeper,
the Center for Biological Diversity (“CBD”), and the
Wishtoyo Foundation. Pursuant to the settlements, the
agencies issued an Environmental Assessment (“EA”)
evaluating the use of offshore well simulation treatments and
did not prepare a full Environmental Impact Statement
(“EIS”). The agencies ultimately concluded that the use of
these treatments would not pose a significant environmental
impact and issued a Finding of No Significant Impact
(“FONSI”).
The environmental groups considered the agencies’
environmental review to be inadequate and sued once again.
In this litigation, they assert claims under the National
Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et
seq., and under the Endangered Species Act (“ESA”),
16 U.S.C. § 1531 et seq., against BOEM, BSEE, and the
responsible federal agency officials. The State of California
and the California Coastal Commission (collectively,
“California”) also sued, alleging that the agencies violated
NEPA and the Coastal Zone Management Act (“CZMA”),
16 U.S.C. § 1451 et seq., by not reviewing the use of well
stimulation treatments for consistency with California’s
coastal management program. Exxon Mobil Corporation
(“Exxon”), the American Petroleum Institute (“API”), and
DCOR, LLC (“DCOR”) intervened, and the cases were
consolidated. So, the litigants before us include
EDC V. BOEM 21
environmental group Plaintiffs, state Plaintiffs, federal
agency Defendants, and intervening petroleum industry
Defendants. 2
The district court granted summary judgment to
Defendants on the NEPA claims, and to Plaintiffs on the
ESA and the CZMA claims. All parties timely appealed.
We have jurisdiction over this appeal under 28 U.S.C.
§ 1291, and we affirm in part and reverse in part. We address
in turn the following issues: (1) whether the programmatic
environmental review was final agency action under the
Administrative Procedure Act (“APA”); (2) whether the
claims are ripe for review now or when the agencies approve
specific permit applications; (3) whether the agencies’ EA
and FONSI violated NEPA; (4) whether the agencies
violated the ESA by not conducting required consultation
with other relevant federal agencies; and (5) whether the
agencies violated the CZMA by not conducting a
consistency review with California’s costal program. These
issues are addressed in Sections II through V, infra.
The essential, and recurring, question raised by this case
is whether an agency’s conclusion in a programmatic
environmental review that a proposed action would not have
a significant environmental impact constitutes agency
authorization of that proposed action, even if the agency will
have to approve subsequent, individual permits before that
action can occur. This question resurfaces throughout this
opinion in different forms, as we must decide whether the
agencies’ programmatic environmental review constitutes
“final agency action” under the APA, “agency action” under
2
The panel thanks all parties and amici curiae for their extensive
legal briefing, which has assisted the Court.
22 EDC V. BOEM
the ESA, and “Federal agency activity” under the CZMA.
We answer the various iterations of this question in the
affirmative.
We first conclude that we have jurisdiction to review the
challenges to the agencies’ EA and FONSI and that
Plaintiffs’ claims are ripe for review now. After reviewing
the agencies’ EA and FONSI, we hold that the agencies
failed to take the hard look required by NEPA in issuing their
EA and that they should have prepared an EIS for their
proposed action. We reverse the district court’s grant of
summary judgment to Defendants on the NEPA claims, and
we grant summary judgment to Plaintiffs on these claims.
We affirm the district court’s grant of summary judgment to
Plaintiffs on the ESA and the CZMA claims. And we hold
that the district court did not abuse its discretion in
fashioning injunctive relief.
I. BACKGROUND
A. Factual Background
Federal law provides that state boundaries extend three
nautical miles from their coastlines. 43 U.S.C. § 1312. The
submerged land and water beyond the state boundary,
known as the Outer Continental Shelf, id. §§ 1331(a),
1332(1), is subject to federal control. This appeal centers on
the use of well stimulation treatments in the Pacific Outer
Continental Shelf.
1. Offshore drilling
Declaring that the oil and natural gas reserves beneath
the Outer Continental Shelf are a “vital national resource,”
Congress enacted the Outer Continental Shelf Lands Act
(“OCSLA”) to govern the development of offshore oil and
EDC V. BOEM 23
gas resources in this region, while recognizing the crucial
need to balance resource development with the protection of
the human, marine, and coastal environments. Id. § 1332(3).
The OCSLA provides for the right of coastal states to
participate in decisions concerning the Outer Continental
Shelf “to the extent consistent with the national interest.” Id.
§ 1332(4)(C).
Congress created four phases for offshore oil and gas
production. First, the Department of the Interior creates a
leasing program to meet national energy needs for a five-
year period. See id. § 1344. Second, the Department of the
Interior holds lease sales. See id. § 1337. Third, the winning
bidders obtain leases and submit exploration plans to the
Department of the Interior, and these plans, if approved,
authorize exploratory drilling. See id. § 1340. Fourth, if
lessees discover commercially viable oil and gas deposits
through their exploratory drilling, they then file
development and production plans that would authorize
them to construct a platform, install equipment, lay pipeline,
and conduct other development activities. See id. § 1351.
Before commercial drilling, lessees must submit an
Application for Permit to Drill or an Application for Permit
to Modify. The Department of the Interior can then approve
the drilling operations, approve with modification, or deny
the application. See generally 30 C.F.R. §§ 250.410–465;
id. § 550.281. Lessees are required to revise an approved
development and production plan if they make certain
operational changes, like changing the type or volume of
production or increasing the amount of emissions or waste,
or if they propose to conduct activities that require approval
of a license or permit that is not described in their approved
plan. Id. § 550.283. Id. BOEM and BSEE, two agencies
within the Department of the Interior, manage the oil and gas
activities described in OSCLA.
24 EDC V. BOEM
There are 23 oil and gas platforms in the federal waters
on the Pacific Outer Continental Shelf off the coast of
California. Oil companies installed these platforms between
1967 and 1989 and continue to rely on development and
production plans approved in that time period for their
drilling activities.
2. Well stimulation treatments
Well stimulation treatments include oil extraction
techniques that allow oil production to continue from wells
with declining reservoirs. These practices prolong drilling
operations, and expand total production, by enabling oil
companies to extract oil otherwise unreachable using
conventional drilling methods. The well stimulation
treatments at issue in this case primarily consist of hydraulic
fracturing (commonly known as fracking), which involves
injecting a mixture of water, sand, and chemicals into a well
at an extremely high pressure to fracture the rock formation. 3
Well stimulation treatments pose a variety of risks. Not
all of the chemicals used in well stimulation treatments have
been studied, but the known chemicals include carcinogens,
mutagens, toxins, and endocrine disruptors. These
chemicals can harm aquatic animals and other wildlife in the
areas where well stimulation treatments are used. Well
stimulation treatments also emit pollutants, including
carcinogens and endocrine disruptors, into the air. And the
high pressures used in these treatments can increase the risk
3
This case also involves the use of acid fracturing and matrix
acidizing. Acid fracturing is similar to fracking but involves applying an
acid solution at a high pressure to etch channels into the rock. Matrix
acidizing involves injecting a mixture of acids to dissolve the rock, rather
than fracture it. All three types of treatments make it easier for oil and
gas to pass through the subterranean rock for extraction.
EDC V. BOEM 25
of oil spills, especially because well stimulation treatments
are often used on old wells. Enhanced well life and
increased production thus come with a potential
environmental price.
B. Procedural History
This appeal stems from prior litigation between the
parties concerning the use of well stimulation treatments off
the coast of California. In 2012, Plaintiff EDC began to
suspect the use of well stimulation treatments on platforms
in the Pacific Outer Continental Shelf. Through FOIA
requests, EDC discovered that the relevant federal agencies
had granted 51 permits authorizing oil companies to perform
well stimulation treatments off the coast of California
without any environmental review whatsoever.
1. Prior litigation, settlement, and environmental
review
After the federal agencies refused to conduct an
environmental review of these treatments, EDC and CBD
brought separate lawsuits alleging that the agencies had
violated NEPA. The lawsuits culminated in similar
settlement agreements, in which the agencies agreed to
conduct a programmatic EA pursuant to NEPA to study the
environmental impacts of well stimulation treatments in the
Pacific Outer Continental Shelf. The agencies also agreed
to a temporary moratorium on permit approvals authorizing
well stimulation treatments until they completed the stated
environmental review.
Pursuant to the settlement agreements, the agencies
issued a draft EA in February 2016 that examined the
programmatic effects of allowing well stimulation
treatments in the Pacific Outer Continental Shelf. There was
26 EDC V. BOEM
a thirty-day public comment period, during which the
agencies received thousands of comments from individuals,
scientists, federal and state agencies, and elected officials.
The agencies published a final programmatic EA and FONSI
in May 2016.
The “Proposed Action” that the programmatic EA
examined was “allow[ing] the use of selected well
stimulation treatments on the 43 current active leases and
23 operating platforms” in the Pacific Outer Continental
Shelf without restrictions. Under NEPA, agencies must
evaluate the environmental impacts of alternatives to the
proposed action, and it specifically mandates consideration
of a “no action” alternative. 42 U.S.C. § 4332; 40 C.F.R.
§ 1502.14. In the EA, the agencies considered four courses
of action as options: (1) the proposed action of allowing the
use of well stimulation treatments without restriction;
(2) allowing well stimulation treatments with a minimum
depth restriction; (3) allowing well stimulation treatments
with a prohibition on the open water discharge of fluids; and
(4) the required “no action” alternative of prohibiting well
stimulation treatments. The environmental impacts of the
first three alternatives were all based on a forecast of
authorizing up to five well stimulation treatments per year.
Based on the analysis in the programmatic EA, the
agencies determined that the proposed action of allowing
well stimulation treatments without restriction “would not
cause any significant impacts” and accordingly, the federal
agencies issued a FONSI, which concluded the NEPA
environmental review process. In doing so, the agencies did
not consult with the U.S. Fish and Wildlife Service or the
National Marine Fisheries Service pursuant to the ESA
before issuing their final EA and FONSI, nor did they review
the proposed action in the EA for consistency with
EDC V. BOEM 27
California’s coastal management program pursuant to the
CZMA.
2. Consolidated lawsuits and district court orders
The two groups of Plaintiffs (the environmental
organizations and California) filed separate suits in 2016
challenging the agencies’ programmatic EA and FONSI. All
Plaintiffs alleged that the agencies violated NEPA, among
other reasons, by failing to take a “hard look,” Kern v. U.S.
Bureau of Land Mmgt., 284 F.3d 1062, 1066 (9th Cir. 2002),
at the environmental impacts of allowing well stimulation
treatments in the Pacific Outer Continental Shelf. The
environmental groups also alleged that the agencies violated
NEPA by not preparing an EIS. California additionally
alleged that the agencies violated the CZMA by failing to
conduct a consistency review to determine if allowing well
stimulation treatments in federal waters offshore California
is consistent with California’s coastal zone management
program. The environmental groups also alleged that the
agencies violated the ESA by failing to consult with the U.S.
Fish and Wildlife Service and the National Marine Fisheries
Service to ensure the proposed action in the EA would not
jeopardize endangered species or their habitats. The district
court consolidated the lawsuits, and allowed Exxon, API,
and DCOR to intervene as Defendants.
The agencies and API filed motions to dismiss, arguing
that the district court lacked jurisdiction to hear the NEPA
and CZMA claims because the EA and FONSI did not
constitute reviewable “final agency action” under the APA,
5 U.S.C. § 551 et seq., and arguing that the ESA claims were
not ripe and were moot. The district court denied the
motions, holding that the EA and FONSI were final agency
action because they concluded the agencies’ programmatic
environmental review and lifted the moratorium on well
28 EDC V. BOEM
stimulation treatments in the Pacific Outer Continental
Shelf. As for the ESA claims, the district court held that they
were ripe because the agencies made an affirmative and
discretionary decision in the EA and FONSI about whether,
and under what conditions, to allow well stimulation
treatments in the region. The district court also held that the
ESA claims were not moot because the consultation process
under the ESA was not yet complete.
The parties made cross-motions for summary judgment,
which the district court granted in part and denied in part. It
granted summary judgment to Defendants on the NEPA
claims, concluding that the agencies reasonably decided to
conduct an EA rather than an EIS and took a sufficiently hard
look at the environmental impacts of allowing well
stimulation treatments. The district court granted summary
judgment to the environmental groups on the ESA
consultation claim, holding that the agencies violated the
ESA by not consulting with the expert wildlife agencies. But
the district court also held that the ESA claim based upon the
National Marine Fisheries Service consultation was moot
because that consultation was complete. As to California’s
CZMA claim, the district court granted summary judgment
to California because the agencies did not complete the
requisite consistency review under § 1456(c)(1) of the
CZMA. The court granted injunctive relief on the ESA and
CZMA claims, enjoining the agencies from approving any
permits for well stimulation treatments until they completed
ESA consultation and CZMA consistency review.
Subsequently, intervenor DCOR filed a motion for
reconsideration, arguing that the court erred in issuing
injunctive relief and requesting it to modify the judgment to
allow the agencies to approve DCOR’s two pending permit
applications for well stimulation treatments in the Pacific
Outer Continental Shelf. The district court denied the
EDC V. BOEM 29
motion, holding that the injunction it issued was the
appropriate remedy for the ESA and CZMA violations. This
appeal followed.
II. JURISDICTION
A. Final Agency Action
As a preliminary matter, we must determine whether we
have subject matter jurisdiction to hear Plaintiffs’ NEPA and
CZMA claims. Because neither NEPA nor the CZMA
expressly provide for judicial review, judicial review of
these claims is governed by the APA, which limits review to
“final agency action.” 5 U.S.C. § 704. We do not defer to
the agencies’ interpretation of whether their actions
constitute “final agency action” because Congress did not
charge BOEM and BSEE with implementing the APA. See
Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006,
1017 (9th Cir. 2012).
Agency action is final and reviewable under the APA
when two conditions are met. The action must “mark the
consummation of the agency’s decision-making process,”
and it must also determine “rights or obligations” or be one
“from which legal consequences will flow.” Bennett v.
Spear, 520 U.S. 154, 177–78 (1997) (internal quotation
marks and citations omitted). The agencies contend that the
programmatic EA and FONSI are not “final agency actions”
because they will still have to approve permits from private
entities wishing to use well stimulation treatments before the
treatments will actually be used in the region. The agencies
would have us wait until the agencies approve site-specific
permits before Plaintiffs could challenge the agencies’
actions under the APA. We disagree and hold that the
programmatic EA and FONSI meet both prongs of Bennett’s
test for final agency action.
30 EDC V. BOEM
1. The EA and FONSI mark the consummation of the
agency’s decision-making process
The EA and FONSI conclude the agencies’
programmatic review under NEPA of allowing well
stimulation treatments in the Pacific Outer Continental Shelf
and reflect the agencies’ understanding that CZMA review
is not required for this action. In the programmatic EA, the
agencies considered four alternatives ranging from not
authorizing well stimulation treatments to authorizing well
stimulation treatments without restriction, and, in the
FONSI, the agencies found that “the Proposed Action”—
authorizing well stimulation treatments without restriction—
“would not cause any significant impacts.” There is nothing
preliminary or tentative about these documents, even if the
agencies included a disclaimer in the EA that it is “not itself
a decision document.”
To be sure, the use of well stimulation treatments will
not occur in practice until an individual permit application
has been approved. But as the district court explained, the
agencies concede that no further programmatic
environmental review of these treatments will be conducted.
And it is “the effect of the action and not its label that must
be considered.” Or. Nat. Desert Ass’n v. U.S. Forest Serv.,
465 F.3d 977, 985 (9th Cir. 2006) (citations omitted). Here,
the effect of the FONSI is that it provides the agencies’ final
word on the environmental impacts of the proposed action
and concludes that the authorization of well stimulation
treatments will not have a significant impact. This
programmatic conclusion will not be revisited, so Plaintiffs
here “are able to show . . . a completeness of action by the
agency.” Kern, 284 F.3d at 1070. Absent the proposed
action approved in the EA, no permits could be sought.
EDC V. BOEM 31
We have repeatedly held that final NEPA documents are
final agency actions. Friedman Bros. Inv. Co. v. Lewis,
676 F.2d 1317, 1318 (9th Cir. 1982); Te-Moak Tribe of W.
Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 598
(9th Cir. 2010); Rattlesnake Coal. v. EPA, 509 F.3d 1095,
1104 (9th Cir. 2007); Hall v. Norton, 266 F.3d 969, 975, n.5
(9th Cir. 2001). We are bound by these decisions and see no
reason to depart from that principle here. The NEPA review
process concludes in one of two ways: (1) the agency
determines through an EA that a proposed action will not
have a significant impact on the environment and issues a
FONSI, or (2) the agency determines that the action will
have a significant impact and issues an EIS and record of
decision. See 40 C.F.R. §§ 1505.2 (record of decision),
1508.13 (FONSI). Final NEPA documents constitute “final
agency action” under the APA, whether they take the form
of an EIS and Record of Decision or an EA and FONSI,
because they culminate the agencies’ environmental review
process.
We reject the agencies’ claim that the EA and FONSI are
merely their “first, preliminary steps toward making a
decision about the use of well stimulation treatments in the
federal waters off the California coast,” particularly in the
context of this litigation, where 51 permits authorizing well
stimulation treatments were approved without
environmental review. There is no argument or evidence
that these 51 already-approved permits will be revisited,
especially after the agencies approved unrestricted use of
well stimulated treatments in the EA and FONSI. It would
make no sense to have a full environmental impact
evaluation on one permit or multiple individual permits
without considering the total environmental impact of the
full picture. Environmental law does not require a court to
32 EDC V. BOEM
miss the forest for the trees. The agencies’ programmatic
approval is not insulated from judicial review.
The FONSI and programmatic EA satisfy the first prong
of the Bennett test because they are the final step in the
agencies’ programmatic review under NEPA and reflect the
agencies’ determination that review under the CZMA is not
warranted.
2. The EA and FONSI determine rights and obligations
and are actions from which legal consequences will
flow
The programmatic EA and ensuing FONSI also satisfy
the second prong of the Bennett test for final agency actions.
By finding that well stimulation treatments have no
significant environmental impact, the agencies have allowed
the permitting process for these treatments to proceed. This
return to the pre-settlement status quo and lifting of the
moratorium on well stimulation treatments in the Pacific
Outer Continental Shelf strongly affects the legal rights of
oil companies, as demonstrated by Intervenors’ involvement
in this suit and DCOR’s request for reconsideration of the
judgment to allow the agencies to act on its pending
applications. Also, the rights of Plaintiffs to further
environmental review, and the obligation of the agencies to
prepare a full EIS, are fully and finally determined by the
FONSI and are not subject to any further administrative
procedure. Legal consequences flow from the FONSI
insofar as oil companies do not need to abide by any depth,
discharge, or frequency limitations in their permit
applications because the agencies have not imposed any such
limitations on permit applications. In fact, the FONSI green
lights the unrestricted use of well stimulation treatments,
with no cautionary limitations.
EDC V. BOEM 33
The agencies urge us to look for a decision document
outlining a binding plan that is separate from final NEPA
documents for agency action to be “final,” but they concede
that their programmatic review of well stimulation
treatments offshore California is complete. In fact, the
agencies describe their “work left to do” as only reviewing
and approving individual, site-specific permits. The
conclusion of the programmatic environmental review of
offshore well stimulation treatments determines rights,
obligations, and legal consequences. The EA and FONSI
meet the Bennett test for “final agency action,” and we have
subject matter jurisdiction over Plaintiffs’ claims.
B. Ripeness
The agencies also contest the ripeness of the NEPA and
CZMA claims. 4 Their ripeness arguments echo their
arguments contesting final agency action under the APA.
Although they issued final NEPA documents, the agencies
contend that Plaintiffs’ claims are not ripe because the
agencies have not yet issued a formal plan for well
stimulation treatments or acted on site-specific permits. We
review de novo questions of ripeness. Laub v. U.S. Dept. of
Interior, 342 F.3d 1080, 1084 (9th Cir. 2003). We note at
the outset that the agencies raise concerns of prudential
ripeness, which are discretionary. Thomas v. Anchorage
Equal Rights Comm’n, 220 F.3d 1134, 1140 (9th Cir. 2000).
In any event, we conclude that the agencies’ action satisfies
the test for prudential ripeness as established in Ohio
4
Defendants challenge the ripeness of the ESA claim as well.
Because NEPA and ESA have different language pertinent to ripeness,
we address Defendants’ challenge to ripeness on the ESA claim in our
discussion of the ESA appeal infra Part IV.
34 EDC V. BOEM
Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733
(1998).
Evaluating ripeness in the agency context requires
considering “(1) whether delayed review would cause
hardship to the plaintiffs; (2) whether judicial intervention
would inappropriately interfere with further administrative
action; and (3) whether the courts would benefit from further
factual development of the issues presented.” Id. All three
considerations support the conclusion that these claims are
ripe for review.
First, delayed review would cause hardship to Plaintiffs
because they are alleging only procedural violations in this
case. Under NEPA, Plaintiffs challenge the agencies’
decision not to issue an EIS; under the ESA, the agencies’
failure to consult with wildlife experts; and under the
CZMA, the agencies’ failure to conduct a consistency
review. Delaying review of these procedural injuries would
cause hardship to Plaintiffs by denying them the
fundamental safeguards provided by the three environmental
statutes. The “asserted injury is that environmental
consequences might be overlooked.” Salmon River
Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th
Cir. 1994). Delaying review would extend and compound
the harms Plaintiffs allege. Programmatic environmental
review “generally obviates the need” for subsequent review
at the application level “unless new and significant
environmental impacts arise.” Id. at 1356. And any
additional protective measures Plaintiffs could obtain by
challenging the agency’s conclusions later, at the time the
agencies review specific applications, would only apply at
the site-specific, not the programmatic, level. If the
programmatic procedures offend the law, they should be
reviewed now.
EDC V. BOEM 35
Second, reviewing Plaintiffs’ claims at this point would
not “inappropriately interfere with further administrative
action.” Ohio Forestry, 523 U.S. at 733. We have
established that judicial review does not interfere with
further administrative action when the agency’s decision is
at “an administrative resting place.” Citizens for Better
Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 977 (9th Cir.
2003). Here, the agencies’ NEPA documents, and the
decisions contained therein—not to issue an EIS, not to
conduct a consistency review, and not to consult with the
wildlife services—demonstrate that the agencies’ decision
making is at an administrative resting place. The agencies
have concluded their programmatic review of well
stimulation treatments offshore California and maintain that
they have met their procedural obligations under the relevant
environmental statutes. No further administrative action
will be required until oil companies submit permits for site-
specific review. We hold that the final NEPA documents in
this case constitute an administrative resting place for
purposes of procedural injuries. See Kern, 284 F.3d at 1071.
Third, there is no need for “further factual development.”
Ohio Forestry, 523 U.S. at 733. For claims of procedural
injury, we have held that the need for factual development
ceases when the alleged procedural violation is complete.
Cottonwood Env’t Law Ctr. v. U.S. Forest Serv., 789 F.3d
1075, 1084 (9th Cir. 2015).
Our ripeness analysis for claims brought pursuant to
environmental statutes is affected by whether plaintiffs
allege a procedural or substantive violation. This stems from
Ohio Forestry, in which the Supreme Court distinguished
between the ripeness of substantive and procedural claims
brought under environmental statutes. 523 U.S. at 737.
There, the plaintiff’s substantive challenge under the
36 EDC V. BOEM
National Forest Management Act to the agency’s forest
plans was unripe because the plans had not yet been
implemented at the site-specific level. Id. at 739. Yet the
Court specifically distinguished its holding from cases
where procedural injuries are alleged, explaining that, by
comparison, a person injured by “a failure to comply with
the NEPA procedure may complain of that failure at the time
the failure takes place, for the claim can never get riper.” Id.
at 737.
We have endorsed this distinction. Cottonwood,
789 F.3d at 1084; Kern, 284 F.3d at 1071; Citizens for Better
Forestry, 341 F.3d at 977. In Kern, plaintiffs challenged an
EA and an EIS for two proposed actions in an area along the
Oregon coast. 284 F.3d at 1066. We concluded that both
challenges were ripe and justiciable, differentiating between
the substantive claim at issue in Ohio Forestry and the
procedural rights conferred by NEPA. Id. at 1071.
Similarly, in Citizens for Better Forestry, we concluded that
procedural claims challenging an agency’s EA, FONSI, and
failure to consult under the ESA were ripe, even though site-
specific proposals had not been issued. 341 F.3d at 970–71.
Site-specific action, we held, is “simply a factual
coincidence, rather than a basis for legal distinction.” Id.
at 977. This is because the imminence or occurrence of site-
specific action is irrelevant to the ripeness of procedural
injuries, which are ripe and ready for review the moment
they happen. Plaintiffs need not wait for the agencies to act
on site-specific permits authorizing well stimulation
treatments. Plaintiffs’ procedural challenges under NEPA
and the CZMA to the agencies’ proposed action allowing the
use of well stimulation treatments off the coast of California,
as adopted in the final EA and FONSI, are immediately ripe
for review.
EDC V. BOEM 37
III. NEPA
After determining that we have subject matter
jurisdiction over Plaintiffs’ claims and that they are ripe for
review, we assess first the merits of Plaintiffs’ NEPA claims.
The district court granted summary judgment to Defendants
on these claims, which we review de novo, “applying the
same standards that applied in the district court.” Pit River
Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006)
(citation omitted). Because judicial review of agency
decisions under NEPA is governed by the APA, we must
consider whether the agencies complied with NEPA’s
requirements under the APA’s deferential arbitrary and
capricious standard. Id. An agency’s action is arbitrary and
capricious “only if the agency relied on factors Congress did
not intend it to consider, entirely failed to consider an
important aspect of the problem, or offered an explanation
that runs counter to the evidence before the agency or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” Defs. of Wildlife
v. Zinke, 856 F.3d 1248, 1257 (9th Cir. 2017) (quoting
Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048,
1054 (9th Cir. 2013)); see also Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46–
48, 55–57 (1983) (holding that agency action was arbitrary
and capricious where the agency “did not even consider” a
reasonable alternative that was made known to it and also
“failed to articulate a basis” for its action).
NEPA is the statute that launched the environmental
movement in the 1970s. Richard J. Lazarus, The Making of
Environmental Law, 64–67 (2004). It is the “basic national
charter for protection of the environment” and,
coincidentally, was borne out of a catastrophic oil spill from
drilling offshore California. 40 C.F.R. § 1500.1(a); NEPA
38 EDC V. BOEM
is at its heart a procedural statute and requires federal
agencies to take a “hard look” at the environmental
consequences of their actions. Kern, 284 F.3d at 1066(quotation omitted). NEPA requires agencies to prepare an
EIS for all “major Federal actions significantly affecting the
quality of the human environment.” 42 U.S.C. § 4332(C).
In this review, the agency must evaluate the environmental
impact of its proposed action as well as “alternatives to the
proposed action.” Id. If an agency is unsure whether its
proposed action will have significant environmental
impacts, it may first prepare an EA. An EA is a “concise,
public document” providing “sufficient evidence and
analysis” for the agency to determine “whether to prepare an
environmental impact statement.” 40 C.F.R § 1508.9(a)(1).
Thus, an EA is intended to help an agency decide if an EIS
is warranted; an EA is not meant to replace or substitute for
an EIS. Anderson v. Evans, 314 F.3d 1006, 1023 (9th Cir.
2002).
When reviewing an EA, we examine it “with two
purposes in mind: to determine whether it has adequately
considered and elaborated the possible consequences of the
proposed agency action when concluding that it will have no
significant impact on the environment, and whether its
determination that no EIS is required is a reasonable
conclusion.” Ctr. for Biological Diversity v. Nat’l Highway
Traffic Safety Admin., 538 F.3d 1172, 1215 (9th Cir. 2008).
Plaintiffs allege that the agencies violated NEPA in two
ways. First, Plaintiffs allege that the agencies violated
NEPA because the agencies’ EA is inadequate and does not
constitute a “hard look” of the environmental impacts of
allowing well stimulation treatments offshore California.
Specifically, Plaintiffs contend that in issuing the EA, the
agencies relied on erroneous assumptions, used too narrow
EDC V. BOEM 39
of a statement of need and purpose, and did not consider a
reasonable range of alternatives. Second, the environmental
groups additionally contend that the agencies violated NEPA
by failing to prepare an EIS. The type of NEPA violation
impacts the relief that should be granted, i.e., whether to
vacate the existing EA for preparation of a new one or
whether to remand with orders to prepare a full EIS. We
consider each alleged NEPA violation in turn.
A.
Plaintiffs first allege that the agencies’ EA is inadequate
and violates NEPA because the agencies relied upon
erroneous assumptions instead of taking the requisite “hard
look” at the potential environmental effects of authorizing
well stimulation treatments offshore California. NEPA
requires agencies to take a “hard look” at the environmental
effects of a proposed action before implementing it. To take
the requisite hard look, an agency “may not rely on incorrect
assumptions or data” in arriving at its conclusion of no
significant impacts. Native Ecosystems Council v. U.S.
Forest Serv., 418 F.3d 953, 964 (9th Cir. 2005). But
Plaintiffs contend that the agencies reached their conclusion
of no significant impacts by relying on incorrect
assumptions. We agree.
1. The faulty assumption that well stimulation
treatments would not occur frequently in this region
The central assumption underlying the agencies’ entire
EA, and driving their conclusion of no significant impact, is
that the use of well stimulation treatments in the Pacific
Outer Continental Shelf would happen so infrequently that
any adverse environmental effects would be insignificant.
Based on the available data for past well stimulation
treatment usage and the expected future industry needs, the
40 EDC V. BOEM
agencies used what they considered to be a “reasonable
forecast of up to five WSTs per year” for all three “action
alternatives” evaluated in the EA. Plaintiffs challenge this
assumption, and for good reason.
Plaintiffs point to record evidence attacking the
historical data used by the agencies. The district court
acknowledged the historical data relied upon by the agency
“may not have been perfect” but found that it was not “so
unreliable” as to be arbitrary and capricious for the agencies
to have based their entire projections on it. We disagree.
Plaintiffs raise legitimate doubts about the agencies’
recordkeeping of well stimulation treatments and the
reasonableness of relying on flawed recordkeeping to
formulate an estimate for evaluating environmental impacts
under NEPA.
The agencies do not know the actual number of well
stimulation treatments that have occurred on the Pacific
Outer Continental Shelf because data collection has been
incomplete. At the time the EA and FONSI were published,
no “formal data collection system [had] been set up” to track
the use of offshore well stimulation treatments in federal
waters. Critically, the agencies’ contention in the EA that
only six well stimulation treatments have been approved on
the Pacific Outer Continental Shelf since 2000 is at odds
with the numbers that are known. The impetus to this
litigation was that the agencies had approved 51 permits
without conducting environmental review. A 2016 email
among BSEE officials regarding what numbers to use in the
EA confirms this. In the email, one official admitted that the
agency was “sued on 13” acidizing jobs but “a lot more
routine acid jobs have taken place” and they “do not have [a]
number between 1984–2011.” This email also reveals that
the agency had found more instances of fracking “that were
EDC V. BOEM 41
not in the lawsuit.” In another email, BSEE officials decided
to “leave EA Table 4-1 as is in the absence of definitive
information on additional WSTs” because “it appears that
there is not enough information . . . to identify WSTs.” A
BSEE spokesperson acknowledged that the agency “cannot
be sure just how often fracking has been allowed.” EDC’s
analysis of information gathered from the FOIA requests
determined that at least 15 instances of fracking alone
occurred offshore California in federal waters.
Aside from questionable and inconclusive historical
records, Plaintiffs also raise legitimate questions about the
soundness of the agencies’ estimates of future usage of well
stimulation treatments in the Pacific Outer Continental Shelf
given the age of the reservoirs in this region and their
declining production, as noted by the EA. The agencies’
response in the EA that the reservoirs offshore California
“are already highly fractured,” which decreases the need for
well stimulation treatments, conflicts with statements made
by Intervenors that the wells in this region “lack any value
or utility” without the approval of well stimulation
treatments. It is also at odds with the agencies’ analysis of
the no action alternative in the EA, in which the agencies
warn that wells in the Pacific Outer Continental Shelf may
have to close if well stimulation treatments are not
authorized.
The gaps and errors underlying the agencies’ assumption
about well stimulation treatment use would not be as critical
if this assumption was not central to the agencies’ finding of
no significant impact. But the agencies repeatedly relied
upon the purported infrequent use of these treatments as a
basis for concluding no significant impacts would occur
from offshore treatments with respect to accidents, induced
seismicity, air quality, water quality, ecological resources,
42 EDC V. BOEM
and fisheries. In response to the repeated reliance on low
estimates of well stimulation treatments in the draft EA, the
California Coastal Commission commented that the
agencies should “examine several scenarios of future WST
activity” in the final EA and “identify thresholds at which
environmental effects become significant” to place the
impacts (or lack thereof) in context and provide a guide for
when additional analysis would be needed if the agencies’
estimates prove to be inaccurate. Nevertheless, the agencies
continued to rely on the infrequent use of well stimulation
treatments as the driving force behind their finding of no
significant impact in the final EA and FONSI. We agree
with Plaintiffs that the agencies’ excessive reliance on the
asserted low usage of well stimulation treatments distorted
the agencies’ consideration of the significance and severity
of potential impacts.
Because the EA’s finding relied on the incorrect
assumption that well stimulation treatments would be
infrequent, we conclude that the agencies acted arbitrarily
and capriciously by offering an analysis that ran “counter to
the evidence before the agency,” Zinke, 856 F.3d at 1257,
and that they failed to take the requisite hard look by
“rely[ing] on incorrect assumptions or data” in arriving at
their conclusion. Native Ecosystems Council, 418 F.3d
at 964.
2. The assumption that an EPA permit would render
impacts insignificant
The agencies also acted arbitrarily and capriciously by
assuming in the EA that compliance with a permit issued by
the EPA under the Clean Water Act, the National Pollution
Discharge Elimination System General Permit (“NPDES
permit”), would render the impacts of well stimulation
treatments insignificant.
EDC V. BOEM 43
We have previously held that agencies cannot “tier” their
environmental review under NEPA to assessments of similar
projects that do not “actually discuss the impacts of the
project at issue.” South Fork Band Council of Western
Shoshone v. U.S. Dep’t of Interior, 588 F.3d 718, 726 (9th
Cir. 2009). Nor have we allowed federal agencies to rely on
state permits to satisfy review under NEPA. Id.; see also
Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt.,
387 F.3d 989, 998 (9th Cir. 2004). The same concerns apply
here, and we see several issues with the agencies relying on
the NPDES permit to conclude that any impacts from
offshore well stimulation treatments to the marine
environment would be insignificant. The NPDES permit is
issued by a different federal agency, and it does not
specifically address “the impacts of the project at issue.”
South Fork Band Council, 588 F.3d at 726.
First, the NPDES permit was not created or intended to
be used for the offshore well stimulation treatments at issue
in this appeal. The EPA developed the NPDES permit in
2014 to broadly regulate discharges from a range of offshore
oil and gas activities. However, the NPDES permit does not
require monitoring for the most common well stimulation
treatment fluids. In their comments on the draft EA,
Plaintiffs highlighted the risks of relying upon the NPDES
permit, explaining that the “NPDES General Permit contains
no limitations on the discharge of specific WST chemicals.”
Second, the imperfect fit of what the NPDES permit
requires operators to monitor is compounded by an imperfect
fit on when the NPDES permit requires monitoring. The
whole effluent toxicity (“WET”) testing required by the
permit is inadequate to measure the impacts of well
stimulation treatments because WET testing is not
conducted in conjunction with the use of well stimulation
44 EDC V. BOEM
treatments. Instead, because the NPDES permit is a general
permit broadly encompassing discharges from all offshore
oil and gas activities, WET testing is required only on a
quarterly basis, which diminishes to annual testing after four
consecutive “passing” tests. The agencies acknowledged in
the EA that fluids from well stimulation treatments may not
actually be present in samples from WET testing because of
this timing problem. Internal emails among Department of
Interior officials reveal that the monitoring reports
associated with the NPDES permit do not contain enough
information to identify well stimulation treatments. In the
final EA, the agencies minimize the concern over the
inadequacy of testing under the NPDES permit by stating
that the permit also requires visual monitoring and oil and
grease sampling in addition to WET testing. But the
agencies do not explain how visual monitoring or oil and
grease sampling would account for the permit’s lack of
toxicity testing for the constituents specifically discharged
from well stimulation treatments. The missing data and
unknown impacts that Plaintiffs raise concern the toxicity of
the chemicals, not the potential for oil spills, and toxicity
cannot be accessed visually. Annual testing that is not
conducted in conjunction with the occurrence of well
stimulation treatments, and does not test the specific
constituents used in the well stimulation treatments, is
inadequate to assess the impacts of those treatments.
Third, the EPA—not BOEM or BSEE—oversees the
NPDES permit. The district court dismissed Plaintiffs’
concerns about the adequacy of testing under the NPDES
permit as a mere “wish that EPA would test more
frequently.” This reasoning only highlights the problem of
BOEM and BSEE relying on a general permit issued by the
EPA to evaluate the impacts from specific well stimulation
treatments. Though the NPDES permit, in theory, could be
EDC V. BOEM 45
modified to test the most common fluids used in offshore
well stimulation treatments, or be modified to require testing
in conjunction with the use of these treatments, the agencies
responsible for conducting the NEPA review do not control
the permit upon which they rely.
Like the assumption concerning the infrequent use of
well stimulation treatments, the agencies repeatedly relied
on the NPDES permit to conclude that the proposed action
would not significantly affect the environment. The
agencies relied on the NPDES permit and its testing to find
that impacts of the proposed action would be minimal on
marine and coastal fish, marine birds, sea turtles, and
fisheries. The agencies acted arbitrarily and capriciously by
relying, in significant part, on these two flawed assumptions
throughout the EA, see Native Ecosystems Council, 418 F.3d
at 964. As a result, the EA is inadequate, and the agencies
violated NEPA by failing to take the requisite hard look.
B.
Plaintiffs also contend that the EA violates NEPA
because the agencies failed to consider a reasonable range of
alternatives and relied upon too narrow a statement of
“purpose and need” in the EA. NEPA requires agencies to
consider alternatives to their proposed action, 42 U.S.C.
§ 4332(C)(iii), regardless whether an agency issues an EA or
EIS. As we held in Western Watersheds Project v. Abbey:
NEPA’s requirement that agencies “study,
develop, and describe appropriate
alternatives . . . applies whether an agency is
preparing an [EIS] or an [EA].” Although an
agency must still “give full and meaningful
consideration to all reasonable alternatives”
in an environmental assessment, the agency's
46 EDC V. BOEM
obligation to discuss alternatives is less than
in an EIS. “The existence of a viable but
unexamined alternative renders an [EA]
inadequate.”
719 F.3d 1035, 1050 (9th Cir. 2013) (alteration in original)
(citations omitted). In considering which alternatives to
analyze, agencies must provide a “detailed statement”
regarding why they were eliminated or not considered.
40 C.F.R. §§ 1502.14(a); 1508.9(b).
1. Purpose and need statement
Whether the range of alternatives considered is
reasonable is to some degree circumscribed by the scope of
the statement of “purpose and need,” so we begin our
analysis there. Westlands Water Dist. v. U.S. Dept. of
Interior, 376 F.3d 853, 865 (9th Cir. 2004). Agencies enjoy
a good deal of discretion in framing the “purpose and need”
of an EA or EIS, id. at 866, but the statement cannot
“unreasonably narrow[] the agency’s consideration of
alternatives so that the outcome is preordained.” Alaska
Survival v. Surface Transp. Bd., 705 F.3d 1073, 1084–85
(9th Cir. 2013).
Here, the EA explains the “purpose of the proposed
action (use of certain WSTs, such as hydraulic fracturing) is
to enhance the recovery of petroleum and gas from new and
existing wells on the [Pacific Outer Continental Shelf],
beyond that which could be recovered with conventional
methods.” And the need is “the efficient recovery of oil and
gas reserves” from the Pacific Outer Continental Shelf.
California contends that by defining the purpose of the EA
in terms of the proposed action, the agencies predetermined
the outcome. California stresses the EPA’s comments on the
draft EA, in which the EPA recommended that BOEM and
EDC V. BOEM 47
BSEE revise the EA’s “purpose and need” statement because
“[s]uch a narrow and prescriptive statement identifies a
solution, rather than the underlying need.”
While the “purpose and need” statement is narrow, it
does not necessarily fail under our deferential standard of
review. The district court found that the “purpose and need”
statement was “largely a product of the settlement
agreements.” The settlement agreements required the
agencies to evaluate the environmental effects of continuing
to approve well stimulation treatments, which explains why
they framed the “purpose and need” statement in this way.
The focus of the EA was naturally affected by the settlement
agreements. In light of the discretion we must afford the
agencies, we do not agree with Plaintiffs that the EA’s
statement of “purpose and need” unduly constrained the
agencies’ consideration of alternatives regarding the use of
well stimulation treatments.
2. Reasonable range of alternatives
That the statement of “purpose and need” did not violate
NEPA’s procedural commands does not necessarily mean
that the agencies considered a reasonable range of
alternatives, which is the question to which we next turn.
Agencies do not have to consider infinite, unfeasible, or
impractical alternatives, but they must consider reasonable
ones. Westlands Water, 376 F.3d at 868. The existence of a
“viable but unexamined alternative” renders the
environmental review conducted under NEPA inadequate.
Id. (citation omitted).
Here, the proposed action that the agencies examined in
the EA was allowing the use of well stimulation treatments
on the Pacific Outer Continental Shelf without restriction.
The agencies also examined three alternatives:
48 EDC V. BOEM
(1) authorizing well stimulation treatments at depths more
than 2,000 feet below the seafloor surface; (2) authorizing
well stimulation treatments but prohibiting the open water
discharge of waste fluids, and (3) prohibiting the use of well
stimulation treatments altogether (the “no action” alternative
that NEPA requires agencies to consider). In the EA, the
agencies acknowledged that the three “action alternatives”
they considered were similar because they all “include the
use of the same four types of WST” so the “nature and
magnitude” of any impacts will be similar. Plaintiffs argue
that the lack of any meaningful difference among the
alternatives did not allow the informed decision making that
NEPA requires.
California and other commenters had suggested specific
alternatives for the agencies to consider in the final EA, such
as prohibiting well stimulation treatments in specific
locations or at particular times of year, requiring the
disclosure of well stimulation treatment constituents and
additives, requiring notice to be given to state agencies and
the public before well stimulation treatments are conducted,
requiring testing of well stimulation fluids, or limiting the
number of well stimulation treatments in a given year.
Responding to these proposed alternatives in the Final EA,
as they were required to do, the agencies summarily
dismissed them. The agencies concluded in the appendix:
“There were no commenters who proposed that the
[programmatic EA] include a wider range of alternatives that
also suggested an additional alternative for review that
would lend itself to meaningful analysis.” The agencies
gave no explanation for why the alternatives proposed did
not lend themselves to meaningful analysis. In the body of
the EA, the agencies discussed in more detail a few
alternatives that they had considered but eliminated, but
these alternatives involved imposing stipulations on fluid
EDC V. BOEM 49
volume, constituents, and pressure. The eliminated
alternatives relate in substance to only one of the alternatives
that Plaintiffs and other commenters suggested the agencies
consider.
We conclude that the agencies did not meet their
obligation under NEPA to “give full and meaningful
consideration to all reasonable alternatives.” Western
Watersheds, 719 F.3d at 1050 (citation omitted). We first
address the proposal to limit the number of treatments per
year. The agencies contend that there was no need to
consider such an alternative because they “already had one
alternative that allowed zero treatments and another
alternative that allowed up to five,” so an alternative that
allowed “some number in between” would have been
unnecessary. The agencies principally rely on Montana
Wilderness Ass’n v. Connell, 725 F.3d 988, 1004 (9th Cir.
2013), a case in which we determined that an agency did not
need to consider a “middle ground” alternative between zero
and six airstrips for a proposed action.
The district court found this argument persuasive, but the
district court and the Defendants both mistakenly assumed
that the proposed action in the EA was limited to five well
stimulation treatments per year. In granting summary
judgment to Defendants on the NEPA claims, the district
court erroneously concluded that the EA “examined a
proposal for allowing up to five WST approvals per year” so
“there was no need for the agencies to consider imposing
different limits on the number of WSTs” allowed per year.
This relies upon a misreading of the EA.
Nowhere in the text of “Alternative 1: Proposed
Action—Allow Use of WSTs” is there any limit on the
number of well stimulation treatments imposed. The
agencies argue that they use “a reasonable forecast of . . . up
50 EDC V. BOEM
to five WST applications per year” to calculate potential
impacts. In discussing the other “action alternatives” in the
EA, the agencies note that these alternatives too are premised
on—but not limited to—five well stimulation treatments per
year “to analyze the potential impacts.”
The proposed action does not have a five treatments-per-
year limit (nor do any of the actions, for that matter). Rather,
the agencies used a five-per-year estimate to calculate
environmental impacts. Commenters flagged that the EA
does not actually limit the use of well stimulation treatments
to five per year and that the agencies should revise their
analysis in the final EA to account for the possibility that
more well stimulation treatments will be used than they
estimate. It was highly arbitrary for the agencies repeatedly
to premise their finding of no significant impact on a limit of
five well stimulation treatments per year, without in fact
considering an alternative that imposed such a five-treatment
limit.
The agencies have asserted in their briefing what they
contend are persuasive reasons as to why the other
alternatives proposed by commenters were not considered
by the agencies. They contend that agencies can already
access a website that gives them notice of well stimulation
treatments. They also contend that they could not require the
disclosure of fluid constituents because some of the
chemicals are proprietary to the oil companies. These
reasons fail because they are post-hoc rationalizations not
contained in the Final EA. As such, we may not consider
them, given the well-established principle that “an agency’s
action must be upheld, if at all, on the basis articulated by
the agency itself” rather than “appellate counsel’s post hoc
rationalizations.” Or. Nat’l Desert Ass’n v. Bureau of Land
Mgmt., 625 F.3d 1092, 1120 (9th Cir. 2010) (citations
EDC V. BOEM 51
omitted); see also SEC v. Chenery Corp., 332 U.S. 194, 196
(1947).
NEPA requires agencies to “give full and meaningful
consideration” to all viable alternatives “in [the]
environmental assessment”—not in appellate briefing after
the fact. Western Watersheds, 719 F.3d at 1050 (citation
omitted). We hold that the agencies violated NEPA by
failing to consider a reasonable range of alternatives in the
EA.
In summary, the agencies’ EA is inadequate both
because the agencies failed to take the requisite “hard look”
by relying on incorrect assumptions and also because the
agencies did not consider a reasonable range of alternatives
in the EA.
C.
The environmental groups also challenge the agencies’
decision not to prepare an EIS as a separate violation of
NEPA. An EIS must be prepared if there are “substantial
questions” regarding whether the agency’s proposed action
may have significant impacts. Ocean Advocates v. U.S.
Army Corps of Eng’rs, 402 F.3d 846, 864–65 (9th Cir.
2005). In challenging an agency decision not to prepare an
EIS, plaintiffs need not prove that significant environmental
effects will occur; they need only raise a “substantial
question” that they might. Id. This presents a “low
standard” that is permissive for environmental challenge.
Cal. Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d
1072, 1097 (9th Cir. 2011) (citation omitted). When
challenged actions are novel, there is more need for an EIS.
See Monsanto v. Geertson Seed Farms, 561 U.S. 139, 177
(2010) (Stevens, J., dissenting) (noting that an EIS is
especially important where the environmental threat is
52 EDC V. BOEM
novel). If the agency does not prepare an EIS, it must submit
a “convincing statement of reasons” to explain why the
proposed action’s environmental impacts will not be
significant. Ocean Advocates, 402 F.3d at 864 (citation
omitted). Conclusory assertions about insignificant impacts
will not suffice. Id. Here, the environmental impacts of
extensive offshore fracking are largely unexplored, making
it terra incognita for NEPA review. For this reason, among
others, the important issues here warranted a full NEPA
analysis in an EIS. We hold that the agencies acted
arbitrarily and capriciously by not preparing an EIS, and by
limiting their assessment to an EA that did not fully evaluate
the environmental impacts of fracking.
The NEPA regulations in effect at the time the agencies
issued the EA set forth criteria for the agencies to consider
when determining whether an action will significantly affect
the environment and consequently requires a full EIS.
40 C.F.R. § 1508.27. 5 These regulations required an agency
to consider “both context and intensity.” Id. Context refers
to the setting and circumstances of the proposed action,
including “society as a whole (human, national), the affected
region, the affected interests, and the locality.” Id.§ 1508.27(a). Intensity “refers to the severity of impact” and
requires analysis of ten specific factors. Id. § 1508.27(b).
Meeting just one of these “significance factors” may be
sufficient for us to require an agency to prepare an EIS,
Ocean Advocates, 402 F.3d at 865, but here we find multiple
factors met.
5
The NEPA regulations have been revised, 85 Fed. Reg. 43,304(July 16, 2020), but we look to the regulations in place at the time of the
challenged decision. See, e.g., California v. Norton, 311 F.3d 1162,
1167 n.2 (9th Cir. 2002).
EDC V. BOEM 53
1. Offshore well stimulation treatments may adversely
affect endangered or threatened species
One significance factor is whether the action “may
adversely affect an endangered or threatened species.”
40 C.F.R. § 1508.27(b)(9). After the agencies issued the EA
and FONSI and were sued because of the lack of
consultation under the ESA, the agencies belatedly
commenced consultations with the requisite wildlife
agencies. In doing so, the agencies advised that they
concluded that the western snowy plover, the California least
tern, and the southern sea otter all were likely to be adversely
affected by oil spills. This finding of adverse effects,
especially after the EA was published, is prima facie
evidence that an EIS should have been prepared. And in
responding to the agencies’ request for formal consultation,
the Fish and Wildlife Service demanded additional
information in order to address potential effects to other
endangered species. This significance factor is readily met.
2. Well stimulation treatments in the Pacific Outer
Continental Shelf would affect unique geographic
areas
Another significance factor weighing in favor of an EIS
is that the authorization of well stimulation treatments in this
region affects unique geographic areas. 40 C.F.R.
§ 1508.27(b)(3). The regulations require agencies to
consider the existence of “[u]nique characteristics of the
geographic area such as proximity to historic or cultural
resources.” Id. The Santa Barbara Channel, where most of
the offshore drilling on the Pacific Outer Continental Shelf
takes place, is a unique area with proximity to “park lands
. . . or ecologically critical areas.” Id. Many of its waters
and islands have special designation, including the Channel
Islands National Park and Marine Sanctuary. The amicus
54 EDC V. BOEM
brief filed by Members of Congress refers to the area as the
“Galapagos of North America” and notes that 25 endangered
species are present in the channel on a seasonal or permanent
basis.
In the Final EA, the agencies responded to concerns
about the unique characteristics of the area by asserting that
the platforms’ distance from the Channel Islands Marine
Sanctuary would mitigate any effects to the area. But
Plaintiffs contend that the entire Santa Barbara Channel
region is a unique and globally important ecosystem: “Cool,
subarctic waters converge with warmer, equatorial waters in
the Channel, fostering a richness of marine and other
wildlife, including blue, fin, humpback, minke, and killer
whales, porpoises, dolphins, pinnipeds (seals and sea lions),
the southern sea otter, and hundreds of species of birds,
fishes, and invertebrates.” These species rely on the entire
Channel, not just the Park and Sanctuary, for their survival
and recovery. And the affected area also has “proximity to
historic or cultural resources” including the submerged
remains of the Chumash people. Congress expressly
designated the Channel Islands National Park to protect
important cultural resources, including “archaeological
evidence of substantial populations of Native Americans.”
16 U.S.C. § 410ff(6). This significance factor satisfies the
standard we apply to evaluate whether preparing an EIS is
required.
3. The effects of offshore well stimulation treatments
are highly uncertain and involve unknown risks
An EIS is also warranted when the possible effects of the
proposed action are “highly uncertain or involve unique or
unknown risks.” 40 C.F.R. § 1508.27(b)(5). The lack of
data regarding the toxicity of well stimulation fluids, and the
uncertainty this poses for evaluating the potential
EDC V. BOEM 55
environmental effects of the proposed action, counsels us
that an EIS should have been prepared. The agencies lack
toxicity data for “31 of the 48 distinct chemicals” used in
offshore well stimulation treatments. During the period for
public comment on the agencies’ draft EA, scientists
identified as a critical data gap the fact that “no studies have
been conducted on the toxicity and impacts of well
stimulation fluids discharged in federal waters.” They urged
the agencies to conduct a full EIS due to the “many data gaps
and uncertainties.” The regulatory body in California that
supervises oil and gas development, the Division of Oil, Gas,
and Geothermal Resources, also commented on the draft EA
that “effects of discharging WST fluids on marine life are
not fully understood due to the lack of toxicity data” and
urged the agencies to conduct toxicity testing to address this
gap.
An agency must prepare an EIS where uncertainty
regarding the environmental effects of a proposed action
may be resolved through further data collection. Nat’l Parks
& Conserv. Ass’n v. Babbitt, 241 F.3d 722, 732 (9th Cir.
2001), abrogated on other grounds by Monsanto, 561 U.S.
139. In Babbitt, we held that the National Park Service
needed to prepare an EIS before authorizing more cruise
ships to enter Glacier Bay National Park because of the level
of uncertainty posed by increased vessel traffic. 241 F.3d
at 731–733. We concluded that the agency’s statement of
reasons for why the missing information could not be
obtained was unconvincing, and we explained that an
agency’s “lack of knowledge does not excuse the preparation
of an EIS; rather it requires the [agency] to do the necessary
work to obtain it.” Id. at 733.
In the final EA and FONSI, the agencies acknowledged
the “unknown toxicity of WST fluid constituents” but
56 EDC V. BOEM
concluded that the uncertainty is mitigated by several
factors. First, the agencies assert that they know the toxicity
values of many of the chemicals used in the treatments.
Second, the chemicals will be diluted with seawater. Third,
the agencies assert that they have no reason to believe that
chemicals for which they have no toxicity data are likely to
be more toxic than the chemicals for which they have
toxicity data. Fourth, the agencies contend that historical
discharges of water containing trace amounts of similar
chemicals have been discharged into the ocean “for decades”
and studies have not detected significant effects. The
agencies also contend that it would be impossible to test the
toxicity of every chemical used in well stimulation
treatments against every potentially exposed species.
We are not persuaded that this reasoning is permissible
as a basis to avoid preparing an EIS evaluating alternatives
to introducing novel and toxic chemicals in the marine
environments at risk here. That the well stimulation fluids
will be diluted with seawater does not excuse the data gaps
regarding the specific “effects of discharging WST fluids on
marine life” nor the lack of data on the “chronic impacts of
these chemicals” in seawater. The record reflects that some
well stimulation treatment fluids have been tested on land,
but this does not help us to assess the unknown effects of
these fluids in a marine environment. That the agencies
know the toxicity of some chemicals used in well stimulation
treatments does not adequately respond to the concerns
raised about the uncertainty of how these chemicals interact
when mixed together, when interacting with subsurface
minerals, or when coming into contact with surrounding
formation rock. The regulations implementing NEPA
require agencies to obtain missing information when it is
“essential to a reasoned choice” and the costs of obtaining it
are not “exorbitant.” 40 C.F.R. § 1502.22(a). The agencies
EDC V. BOEM 57
have not provided convincing reasons for why these data
gaps are not essential or could not be mitigated through
further study. Nor did they consider, as discussed above, an
alternative that allows offshore well stimulation treatments
but requires testing to help fill in these data gaps. Guesswork
by the agencies does not discharge their responsibilities
under NEPA.
The importance of gathering more information about the
toxicity of well stimulation treatment fluids is important here
where the programmatic EA represents the first time the
agencies have analyzed the environmental impacts of
offshore well stimulation treatments. We can agree with the
agencies that they need not test every chemical against every
marine species. But Plaintiffs point to the lack of toxicity
data not to suggest that the agencies must test every chemical
but that the unknown risks posed by these chemicals warrant
fuller review of the proposed action through an EIS. “No
matter how thorough, an EA can never substitute for
preparation of an EIS, if the proposed action could
significantly affect the environment.” Anderson, 314 F.3d
at 1023.
Defendants’ reliance on Salmon River Concerned
Citizens v. Robertson is unpersuasive. In Salmon River, we
upheld the agency’s analysis of the effects of herbicide
formulation when toxicity data was missing for some of the
ingredients. 32 F.3d 1346, 1358–60 (9th Cir. 1994). An
important point overlooked by Defendants, however, is that
the agencies in that case had prepared an EIS and had taken
steps to reduce uncertainty regarding the missing
information. Id. at 1358 n.21. The lack of toxicity data in
Salmon River and the preparation of an EIS in that case give
more reason to believe that an EIS should have been
prepared in this situation, where there is a lack of toxicity
58 EDC V. BOEM
data and the effects of well stimulation fluids pose unknown
risks. The record establishes that Plaintiffs have raised
“substantial questions” relating to several significance
factors about the effects of allowing well stimulation
treatments offshore California. 6 We hold that the agencies
violated NEPA by not providing an EIS on the effects of
authorizing offshore well stimulation treatments.
D.
To summarize our discussion of the alleged NEPA
violations, we are compelled to conclude that the agencies
did not take the “hard look” mandated by NEPA. They
relied on flawed assumptions in the EA that distorted and
rendered irrational their finding of no significant impact.
They did not give full and meaningful consideration to a
reasonable range of alternatives. This failure to take the
requisite “hard look” renders the EA inadequate under
NEPA. The agencies also should have prepared a full EIS
in light of the unknown risks posed by the well stimulation
treatments and the significant data gaps that the agencies
acknowledged. NEPA review cannot be used “as a
subterfuge designed to rationalize a decision already made.”
Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000). But
that appears to be what happened here. The agencies, which
had already ventured down the path of allowing well
stimulation treatments without environmental review until
they were sued by the environmental groups, did not give a
meaningful assessment of reasonable alternatives, offered
6
Having determined that several significance factors are present and
an EIS is warranted, we need not reach Plaintiffs’ additional arguments
that the impacts of offshore well stimulation treatments are highly
controversial or that the agencies did not adequately analyze the
cumulative impacts of allowing well stimulation treatments.
EDC V. BOEM 59
post-hoc rationalizations for their decision, and disregarded
necessary caution when dealing with the unknown effects of
well stimulation treatments and the data gaps associated with
a program of regular fracking offshore California in order to
increase production and extend well life.
We reverse the district court’s grant of summary
judgment upholding the EA and hold that the agencies
violated NEPA both because their EA was inadequate and
also because they should have prepared an EIS. We vacate
the inadequate EA, which is the presumptive remedy for
agency action that violates the NEPA as reviewed through
the APA. See All. for the Wild Rockies v. U.S. Forest Serv.,
907 F.3d 1105, 1121 (9th Cir. 2018). We remand to the
district court with instructions to amend its injunction to
prohibit the agencies from approving permits for well
stimulation treatments until the agencies have issued an EIS
and have fully and fairly evaluated all reasonable
alternatives.
IV. ESA
The environmental groups also sued the agencies under
the ESA, alleging that they violated the ESA’s consultation
requirement. On this issue, the district court granted
summary judgment to Plaintiffs, and Defendants appeal. We
review this issue de novo. Grand Canyon Trust v. U.S.
Bureau of Reclamation, 691 F.3d 1008, 1016 (9th Cir. 2012).
The agencies’ sole argument in appealing the district court’s
ESA ruling is that the ESA claim is not ripe. They argue that
there was no “agency action” requiring consultation. The
district court rejected this argument, as do we.
The fundamental purpose of the ESA is to conserve
endangered and threatened species as well as their critical
habitats. 16 U.S.C. § 1531(b). The ESA provides
60 EDC V. BOEM
protections for listed species such as prohibiting
unauthorized taking of the species, preserving necessary
habitat for species’ survival, and, as pertinent here, requiring
consultations with expert wildlife agencies about the risks to
wildlife species from any proposed federal action. Section
7(a)(2) of the ESA requires agencies to consult with expert
wildlife agencies to ensure that any agency action “is not
likely to jeopardize” any endangered or threatened species
or result in the “adverse modification” of their habitats. Id.§ 1536(a)(2). The statute defines agency action as “any
action authorized, funded, or carried out” by an agency. Id.;
see also 50 C.F.R. § 402.02 (further defining agency action
as “all activities or programs of any kind authorized, funded,
or carried out, in whole or in part, by Federal agencies”).
Depending on the species, the federal agency must consult
with one of two expert wildlife agencies, the U.S. Fish and
Wildlife Service or the National Marine Fisheries Service.
The ESA’s implementing regulations require agencies to
review proposed actions “at the earliest possible time.”
50 C.F.R § 402.14(a).
The ESA provides for two types of consultation.
Informal consultation is proper if the acting federal agency
concludes that its action is not likely to adversely affect any
species listed in the ESA. 50 C.F.R. § 402.13(a). If the
wildlife expert agency concurs in writing, informal
consultation is complete, and no further action is required
under the ESA. Id. § 402.13(c). If, on the other hand, the
acting agency concludes that its proposed action is likely to
adversely affect any listed species, formal consultation is
required. Id. § 402.14(a). In the case of formal consultation,
the acting agency must first prepare a biological assessment,
and then send a letter to the expert wildlife agency requesting
formal consultation and providing information about the
proposed action. Id. § 402.14(c). The expert wildlife agency
EDC V. BOEM 61
will then prepare a biological opinion that determines
whether the action is likely to cause “jeopardy” for a listed
species or its critical habitat. 16 U.S.C. § 1536(b); 50 C.F.R.
§§ 402.14(g), (h).
Here, the agencies did not engage in consultation before
issuing the EA. In the final EA, they responded to comments
expressing concern over the lack of ESA consultation,
explaining that they believed consultation was unnecessary
because the EA is a “decision support tool for future
proposals” but does not approve any well stimulation
treatments itself. After being sued over the lack of
consultation, and a week before filing their motion to
dismiss, the agencies initiated the ESA consultation process
by sending biological assessments to the expert wildlife
agencies. In the biological assessment sent to the National
Marine Fisheries Service, BOEM and BSEE determined that
no species would likely be adversely affected by the use of
well stimulation treatments. The National Marine Fisheries
Service concurred in the agencies’ no adverse effects
determination, which concluded the ESA consultation
process because no formal consultation was required. For
species under the jurisdiction of the Fish and Wildlife
Service, BOEM and BSEE determined that three species—
the western snowy plover, California least tern, and southern
sea otter—were likely to be adversely affected by oil spills.
The Fish and Wildlife Service requested more information
before beginning formal consultation, which was required
because of the agencies’ conclusion that three species were
likely to be adversely affected.
The district court held that the ESA claim regarding the
initial failure to consult with the National Marine Fisheries
Services was cured, and consequently mooted, by
completion of the consultation with that agency. But
62 EDC V. BOEM
because the agencies had not completed consultation with
the Fish and Wildlife Service, the district court held that this
claim was not moot. BOEM and BSEE have advised us that
consultation with the Fish and Wildlife Service is still
ongoing, making this claim ripe for our review.
We use a two-step test to determine whether an action
qualifies as a sufficient “agency action” under the ESA.
First, relying on the text of the statute, which is always the
appropriate starting place for analysis, Blue Lake Rancheria
v. United States, 653 F.3d 1112, 1115 (9th Cir. 2011), we
consider whether an agency “affirmatively authorized,
funded, or carried out the underlying activity.” Karuk Tribe,
681 F.3d at 1021. If this standard is met, we next determine
whether the action was discretionary, in this context
meaning that the agency had “some discretion to influence
or change the activity for the benefit of a protected species.”
Id.
The district court correctly held that by issuing the EA
and FONSI for the proposed action of allowing well
stimulation treatments offshore California, the agencies
“affirmatively authorized” private companies to proceed
with these treatments. In a case such as this where a mix of
federal and private action is involved, Karuk Tribe instructs
that there is agency action for ESA purposes if the agency
made an “affirmative, discretionary decision about whether,
or under what conditions, to allow private activity to
proceed.” Id. at 1027. There, we held that the Forest Service
violated the ESA by not consulting with wildlife agencies
before approving four notices of intent to conduct mining
activities within a national forest. Id. at 1022–27. The
approval of the notices of intent “affirmatively decide[d] to
allow the mining to proceed,” even though, like here, the
private companies would still need to obtain subsequent
EDC V. BOEM 63
federal permits before conducting the challenged activity.
Id. at 1024. By issuing the EA and FONSI, and concluding
that well stimulation treatments would have no significant
impact, the agencies “affirmatively decide[d]” to allow the
treatments to proceed. Id.
The second step of the Karuk Tribe test is also met
because the agencies had “discretion to influence or change
the activity for the benefit of a protected species.” Id.
at 1021. This standard is met by agency action that itself
does not directly authorize private activity but rather
establishes criteria for future private activity and has an
“ongoing and long-lasting effect.” Pacific Rivers Council v.
Thomas, 30 F.3d 1050, 1053 (9th Cir. 1994); see also
Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1031–33
(9th Cir. 2005), abrogated on other grounds as recognized
in Cottonwood, 789 F.3d at 1089 (holding that the agency’s
registration of pesticides triggered ESA consultation even
though implementation of the pesticides might approve
additional, later approvals). In Pacific Rivers, we rejected
the Forest Service’s argument that the ESA did not apply to
programmatic documents that themselves did not “mandate
any action.” 30 F.3d at 1055. We disagreed, concluding that
these programmatic documents constituted agency action
because they “set forth criteria” that would influence future
activities. Id.The agencies argue that these cases do not apply here
because the EA did not establish binding criteria for well
stimulation treatment use. This argument is without merit.
Throughout the EA, the agencies presented and dismissed
alternative options that would have imposed restrictions
affecting the oil companies’ subsequent applications. In
other words, the agencies had “discretion to influence or
change the activity for the benefit of a protected species.”
64 EDC V. BOEM
Karuk Tribe, 681 F.3d at 1021. Choosing the alternative
without any restrictions as their proposed action sets an
unregulated and uncontrolled future direction for the use of
well stimulation treatment. The agencies rejected
Alternative 2, which set depth restrictions. They also
rejected Alternative 3, which set discharge restrictions. The
agencies implemented no restrictions whatsoever. The
agencies should not enjoy insulation from ESA consultation
for selecting the alternative without restriction. In substance,
the agencies decided to let fracking proceed unregulated.
The programmatic analysis and approval of the use of
offshore well stimulation treatments without restriction in
the EA and FONSI meets our definition of “agency action.”
The agencies make no other arguments about the merits of
the ESA claims brought by the environmental groups.
Concluding that the proposed action in the agencies’ EA and
FONSI constitutes “agency action” under the ESA, we
affirm the district court’s grant of summary judgment to the
environmental groups on the ESA claims.
V. CZMA
We next turn to California’s CZMA claim. Congress
enacted the CZMA to “preserve, protect, develop, and where
possible, to restore or enhance, the resources of the Nation’s
coastal zone for this and succeeding generations.” 16 U.S.C.
§ 1452(1). When a “Federal agency activity” affects the
coastal zone of a state, the CZMA requires the federal
agency to review the proposed activity and determine
whether it is consistent with the affected state’s coastal
management program. Id. § 1456(c)(1)(A). California
alleges that the agencies violated the CZMA because they
did not conduct a consistency review to determine whether
the use of offshore well stimulation treatments is consistent
with California’s coastal management program. The
EDC V. BOEM 65
agencies contend that the proposed action in the
programmatic EA and FONSI is not a “Federal agency
activity” and does not warrant CZMA consistency review
because private companies would still have to obtain permit
approval before performing well stimulation treatments.
Upon de novo review of this question of statutory
interpretation, we agree with the district court that the
agencies’ proposed action to allow well stimulation
treatments in the Pacific Outer Continental Shelf qualifies as
a “Federal agency activity” under § (c)(1) of the CZMA. We
hold that the agencies violated the CZMA by failing to
conduct the requisite consistency review with California’s
coastal management program. Summary judgment was
properly granted to California on the CZMA claims.
A.
Whenever a “Federal agency activity” may affect a
state’s coastal zone, the CZMA requires review of the action
to confirm that it is consistent with the affected state’s
coastal management program. 16 U.S.C. § 1456. Not all
consistency review under the CZMA is the same, however.
If the federal agency takes the action itself, then § 1456(c)(1)
of the CZMA requires the agency to “provide a consistency
determination” to the designated state agency specifying
whether the proposed action is consistent with the state’s
coastal management program. But if the agency is not taking
the action itself, and instead is approving a proposed plan or
issuing a federal license or permit to an applicant, then
§ 1456(c)(3) requires the applicant to conduct the
consistency review and include a “consistency certification”
in its application confirming that the proposed activity
complies with the affected state’s coastal management
program. Id. § 1456(c)(3). In other words, § (c)(1) review
reaches activities where the federal agency is the “principal
66 EDC V. BOEM
actor” while § (c)(3) review encompasses the “federally
approved activities of third parties.” Sec’y of the Interior v.
California, 464 U.S. 312, 332 (1984). If a proposed federal
agency activity can be reviewed under § (c)(3), the CZMA
specifically provides that it cannot be reviewed under
§ (c)(1). 16 U.S.C. § 1456(c)(1)(A). Review under § (c)(1)
and § (c)(3) is therefore mutually exclusive. California v.
Norton, 311 F.3d 1162, 1170 (9th Cir. 2002).
Classification of a proposed activity under § (c)(1) or
§ (c)(3) impacts more than who is required to conduct the
consistency review. The speed of review also differs.
Review of a “Federal agency activity” under § (c)(1)
requires more than three months because the agency must
complete the CZMA review process at least 90 days before
giving final approval to the proposed activity. Id.
§ 1456(c)(1)(C). 7 By contrast, if a state does not respond to
a private applicant’s consistency certification within three
months, the state’s concurrence is “conclusively presumed”
by statute. Id. § 1456(c)(3)(B)(ii). Review under § (c)(3)
also allows the Secretary of Commerce to approve a
proposed activity over a state’s objections that the activity is
not consistent with its coastal management program. In this
way, § (c)(3) review encourages oil and gas development by
expediting the consistency review process and giving states
less leverage to block proposed activities.
B.
We must first decide whether the proposed action in the
programmatic EA and FONSI is a “Federal agency activity.”
If it is a “Federal agency activity,” then we must then decide
7
The agencies contend that this review could take years due to their
resource limitations.
EDC V. BOEM 67
whether the action falls outside the scope of the permit and
license review of § (c)(3). We answer both questions in the
affirmative.
1. The proposed action is a “Federal agency activity”
The CZMA does not define “Federal agency activity,”
but the implementing regulations do. The regulations
broadly define “Federal agency activity” as encompassing
“any functions performed by or on behalf of a Federal
agency in the exercise of its statutory responsibilities.”
15 C.F.R. § 930.31(a). The proposed action in the
programmatic EA and FONSI—“Alternative 1: Proposed
Action—Allow Use of WSTs”—readily meets this
definition. Deciding whether, and under what
circumstances, to allow certain drilling activities on the
Pacific Outer Continental Shelf is a function performed by
the agencies pursuant to their “statutory responsibilities”
under the OCSLA to make oil and gas reserves in this region
“available for expeditious and orderly development, subject
to environmental safeguards, in a manner which is consistent
with the maintenance of competition and other national
needs.” 43 U.S.C. § 1332(3). And the agencies prepared the
EA and FONSI as an “exercise of [their] statutory
responsibilities” under NEPA, also satisfying the definition
of “Federal agency activity” provided by the regulations.
15 C.F.R. § 930.31(a).
The CZMA regulations further provide that “Federal
agency activity” covers a “range of activities where a
Federal agency makes a proposal for action initiating an
activity or a series of activities when coastal effects are
reasonably foreseeable,” such as a “plan that is used to direct
future agency actions.” 15 C.F.R. § 930.31(a) (emphasis
added). It would strain the English language for us to say
that the “Proposed Action” in the programmatic EA is not a
68 EDC V. BOEM
“proposal for action.” Id. And we are further convinced that
the proposed action here is a plan that BSEE and BOEM will
use to “direct future agency actions.” Id. The proposed
action in the EA and FONSI is for the agencies to “approve
the use of fracturing and non-fracturing WSTs” at all oil
platforms on the Pacific Outer Continental Shelf if the
treatments are “deemed compliant with performance
standards identified in BSEE regulations.” This proposed
action is a “plan that is used to direct future agency actions,”
and meets the regulatory definition of a “Federal agency
activity.” 15 C.F.R. § 930.31(a).
We reject the agencies and Intervenors’ contention that
the programmatic EA is a “bare NEPA analysis” document
divorced from any agency action. The district court
correctly determined that the EA and its proposed action
“reflects a plan for allowing WSTs” on the Pacific Outer
Continental Shelf and “is not merely an abstract analytical
document unmoored from any proposed action.” By
concluding that the proposed action of allowing well
stimulation treatments would not lead to significant
environmental impacts, the agencies return to the pre-
moratorium status quo of approving well stimulation
treatments offshore California that existed prior to Plaintiffs’
FOIA requests and the ensuing litigation. As described
supra in our discussion of the ESA claims, the agencies’
proposed action of allowing well stimulation treatments
without restrictions on a programmatic level constitutes a
plan that will shape and direct future agency activity in
consideration of site-specific permits.
2. The proposed action falls outside the scope of § (c)(3)
of the CZMA
After determining that the proposed action is a “Federal
agency activity” under the CZMA, we must next decide
EDC V. BOEM 69
whether it falls outside the scope of § (c)(3) of the CZMA,
which covers applications for federal permits and licenses
authorizing activities in the coastal zone. 16 U.S.C.
§ 1456(c)(3)(A). This is because an action cannot be
reviewed under § (c)(1) if it can be reviewed under § (c)(3)
of the CZMA. Id. § 1456(c)(1)(A). Our decision in Norton
is instructive.
Norton involved the Department of the Interior’s
decision to grant suspensions of oil leases off the coast of
California to extend the lives of the leases and avoid their
premature expiration. 311 F.3d at 1165. Like in this case,
California sued, seeking an injunction that would require the
agencies to conduct CZMA consistency review under
§ (c)(1) and to issue an EIS under NEPA. Id. at 1169. In
explaining why § (c)(1) review applied to the lease
suspensions in Norton, we provided a history of the CZMA,
which we briefly repeat here.
In 1990, Congress specifically amended the CZMA to
overturn the Supreme Court’s decision in Secretary of the
Interior v. California, 464 U.S. 312 (1984). In Secretary of
the Interior, the Court held that the original sales of leases to
oil companies were not subject to consistency review
because the activities specifically affecting the coastal zone
would be reviewed later, under § (c)(3), when the oil
companies submitted plans to the federal agencies for
approval. Id. at 667–68. Amending the CZMA in 1990 to
overturn Secretary of the Interior, Congress specifically
provided that the sale of leases could be reviewable under
§ (c)(1) of the CZMA even if site-specific activities
conducted under those leases would be subsequently
reviewed under § (c)(3). See H.R. Conf. Rep. No. 01-508
at 970 (1990); H.R. Conf. Rep. No. 01-508 at 970 (1990);
70 EDC V. BOEM
see also Norton, 311 F.3d at 1173 (discussing this legislative
history).
In Norton, we interpreted Congress’s 1990 amendments
to the CZMA as allowing duplicative review for actions of
different scope and at different stages in oil production. We
held that “section (c)(3) review will be available to
California at the appropriate time for specific individual new
and revised plans as they arise, and section (c)(1) review is
available now for the broader effects implicated” by the
agency action. 311 F.3d at 1174. We emphasized that the
lease suspensions at issue in Norton “[had] never been
reviewed by California,” and the agency decision
“represent[ed] a significant decision to extend the life of oil
exploration and production off of California’s coast, with all
of the far reaching effects and perils that go along with
offshore oil production.” Id. at 1173. We reject the attempts
by the agencies and Intervenors to cabin Norton’s
application to lease suspensions and find it on all fours with
the facts of this case.
Like the agency action at issue in Norton, the proposed
action of allowing well stimulation treatments without
restriction in the Pacific Outer Continental Shelf “has never
been reviewed by California” and is a “significant decision
to extend the life of oil exploration and production” by
allowing companies to access oil they could otherwise not
obtain through conventional drilling methods. Id. As in
Norton, we are not concerned about duplicative review
because there is none: the agencies’ programmatic decision
differs in scope and in stage from the agencies’ later
decisions about specific permit applications.
And even though the agencies and Intervenors urge us to
hold that the authorization of well stimulation treatments
should be subject to the expedited consistency review of
EDC V. BOEM 71
§ (c)(3) and not § (c)(1), they concede that permits for well
stimulation treatment would not necessarily require review
under § (c)(3). Further, the CZMA does not apply to
development and production undertaken pursuant to an oil
and gas lease that was issued prior to September 18, 1978, in
an area in which oil or gas had been discovered prior to that
date. See 43 U.S.C. § 1351(a)(1). In fact, Intervenor DCOR
maintains that it is not required to file a Supplemental
Development and Production Plan for its proposed use of
well stimulation treatments because of this exemption. This
means that well stimulation treatments very well could
continue to evade environmental review, just as they did
before this litigation. These facts underscore to us the need
for programmatic-level consistency review to take place
under § (c)(1) of the CZMA for the programmatic-level
proposed action by the agencies to authorize offshore well
stimulation treatments. Even if site-specific permits could,
or would, be reviewed later pursuant to § (c)(3) of the
CZMA, this does not change our interpretation of the statute
or our decision in Norton. We hold that the agencies’
proposed action falls outside the scope of § (c)(3) review and
is “Federal agency activity” requiring the agencies to
conduct a consistency review pursuant to § (c)(1) of the
CZMA. Section (c)(1) review must be available now for the
“broader effects implicated” by the agencies’ proposed
action. Norton, 311 F.3d at 1174.
It is important to keep in mind that in this sphere of the
law, both the federal government and California have an
important role to play to keep the coastline safe and
prosperous. Indeed, management of the coastal zone is a
paradigmatic example of complementary joint regulation by
state and federal governments to advance important interests
through our dual federalism system. See, e.g., Nat’l Fed’n
of Indep. Bus. v. Sebelius, 567 U.S. 519, 630 (2012)
72 EDC V. BOEM
(Ginsburg, J., concurring in part and dissenting in part)
(“[T]he interests of federalism are better served when States
retain a meaningful role in the implementation of a program
of such importance.”); see also 16 U.S.C. § 1451(i)
(discussing cooperation among federal, state, and local
governments as the key to protection of the coastal zone).
VI. RELIEF
Intervenors Exxon and DCOR challenge the injunctive
relief the district court awarded to remedy the ESA and
CZMA violations, which enjoined the agencies from
approving any permits allowing well stimulation treatments
offshore California until the agencies completed
consultation with the Fish and Wildlife Service and
consistency review with California.
We review a district court’s decision to issue injunctive
relief for an abuse of discretion. California v. Azar, 911 F.3d
558, 568 (9th Cir. 2018). We first must determine, upon de
novo review, whether the district court “identified the correct
legal rule to apply.” Id. (citation omitted). If the district
court applied the correct legal standard, we will reverse only
if the district court’s application was “(1) illogical,
(2) implausible, or (3) without support in inferences that may
be drawn from the facts in the record.” Id. (citation omitted).
The district court applied the correct four-factor test for
injunctive relief. Before issuing a permanent injunction, a
district court must find that a plaintiff demonstrated:
(1) that it has suffered an irreparable injury;
(2) that remedies available at law, such as
monetary damages, are inadequate to
compensate for that injury; (3) that,
considering the balance of hardships between
EDC V. BOEM 73
the plaintiff and defendant, a remedy in
equity is warranted; and (4) that the public
interest would not be disserved by a
permanent injunction.
Monsanto, 561 U.S. at 156–57 (citation omitted). The
district court identified this standard and found that Plaintiffs
established all four factors in both the ESA and CZMA
contexts. We cannot conclude that the district court’s
application of this test was illogical, implausible, or without
support from the record. Azar, 911 F.3d at 568. The
injunction is narrowly tailored to remedy the agencies’ ESA
and CZMA violation—prohibiting the agencies from
approving permits allowing offshore well stimulation
treatments until the consultation with the Fish and Wildlife
Service and the consistency review with California have
been completed.
Intervenors’ primary contention is that the district court
presumed irreparable harm to Plaintiffs from the procedural
violations of the ESA and CZMA. We agree with Exxon
and DCOR that Monsanto makes clear that courts may not
make such a presumption, but we do not agree that the
district court did so here. As the district court points out in
its order, the irreparable harm in this case extends beyond
the mere procedural violation of the ESA and encompasses
the issuance of permits that could lead to harm to endangered
species or be inconsistent with California’s coastal zone
management program. The district court recognized that a
risk of irreparable harm is present here because the agencies
“have made no clear commitment” to withhold the issuance
of well stimulation permits pending the completion of
consultation. We agree that the failure to consult with the
wildlife agencies and conduct a consistency review with
74 EDC V. BOEM
California “can no longer be cured” once drilling permits are
issued.
The district court’s conclusion on irreparable harm is
also supported by facts in the record and inferences that
follow. The programmatic EA identifies harmful effects of
well stimulation treatments on listed species, and the
agencies’ Biological Assessment determined that three
species were likely to be adversely affected. The
environmental groups submitted declarations with their
summary judgment briefs detailing how their members face
imminent harm from the harm that well stimulation
treatments pose to wildlife.
This potential harm to endangered species supports a
finding of irreparable harm because “[o]nce a member of an
endangered species has been injured, the task of preserving
that species becomes all the more difficult.” Nat’l Wildlife
Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803, 818
(9th Cir. 2018) (citation omitted). Environmental injury, by
its nature, “is often permanent or at least of long duration,
i.e., irreparable.” Amoco Prod. Co. v. Vill. of Gambell,
480 U.S. 531, 545 (1987). That the agencies might conduct
ESA review on individual permits in the future does not
affect our analysis. Site-specific review cannot cure a failure
to consult at the programmatic level, and incremental-step
consultation is inadequate to comply with the ESA. See
Conner v. Burford, 848 F.3d 1441, 1455 (9th Cir. 1988).
Were it otherwise, “a listed species could be gradually
destroyed, so long as each step on the path to destruction is
sufficiently modest.” Nat’l Wildlife Fed’n, 524 F.3d at 930.
It was reasonable for the district court to conclude that
the agencies’ violations of the ESA and CZMA would result
in irreparable harm if the agencies could approve well
stimulation treatment permits before the protective
EDC V. BOEM 75
environmental requirements of these statutes were followed.
And the district court did not abuse its discretion in its
analysis of the other three factors. The Supreme Court has
recognized that injury to the environment “can seldom be
adequately remedied by money damages and is often
permanent.” Amoco, 480 U.S. at 545. Nor did the district
court abuse its discretion in finding that the balance of
hardships and the public interest favors injunctive relief. It
determined that “any interest in proceeding forward” with
well stimulation treatments is outweighed by the public
interest in ensuring that the proposed action is reviewed for
consistency with California’s coastal management plan and
undergoes consultation with expert wildlife agencies. The
ESA, as one of the most far-reaching environmental statutes,
“did not seek to strike a balance between competing
interests” but rather “singled out the prevention of species
. . . as an overriding federal policy objective.” Lazarus,
supra, at 73. The district court did not abuse its discretion
by fashioning relief that advances this overriding federal
policy objective. And upon DCOR’s motion for
reconsideration, and after receiving full briefing on the
Monsanto factors, the district court determined that DCOR’s
“projection of tens of millions” of dollars in injuries were
speculative and temporary. Because the oil “will still remain
in the ground,” the district court reasonably concluded that
DCOR’s lost profits will likely be delayed, not lost. And the
district court doubted whether any claimed losses would
even be attributed to the injunction it granted because DCOR
did not submit the supplemental development and
production plan the agencies requested in January 2017.
The district court’s findings on injunctive relief do not
amount to an abuse of discretion. The district court applied
the correct test and gave additional consideration to the
Monsanto factors when considering the merits of DCOR’s
76 EDC V. BOEM
motion for reconsideration. 8 We affirm the injunctive relief
previously fashioned by the district court and remand with
instructions that the district court amend its injunction to
enjoin the agencies from approving well stimulation
treatment permits until the agencies issue a complete EIS,
rather than the inadequate EA on which they had relied.
CONCLUSION
The district court had subject matter jurisdiction and
properly held that Plaintiffs’ claims were ripe. We reverse
the grant of summary judgment to Defendants on the NEPA
claims, and we affirm the grant of summary judgment to
Plaintiffs on the ESA and CZMA claims. We remand for
further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
8
DCOR also challenges the district court’s denial of its motion for
reconsideration. In that motion, DCOR sought to have the district court
amend the injunction to allow the agencies to consider DCOR’s two
pending permits to conduct well stimulation treatments in the Pacific
Outer Continental Shelf. We review for an abuse of discretion a district
court’s decision to deny a motion to alter or amend a judgment.
McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003). The district
court did not abuse its discretion in determining that DCOR did not meet
the standards articulated in Rule 59(e) or 60(b) for this exceptional type
of relief.