Defenders of Wildlife v. Bureau of Ocean Energy Management

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 22, 2012
No. 11-12598
JOHN LEY
________________________
CLERK
Agency No. S-7444
DEFENDERS OF WILDLIFE,
CENTER FOR BIOLOGICAL DIVERSITY,
NATURAL RESOURCES DEFENSE COUNCIL,
Petitioners,
versus
BUREAU OF OCEAN ENERGY MANAGEMENT,
UNITED STATES DEPARTMENT OF THE INTERIOR,
SECRETARY, DEPARTMENT OF THE INTERIOR,
DIRECTOR, BUREAU OF OCEAN ENERGY MANAGEMENT,
REGULATION AND ENFORCEMENT,
Respondents,
SHELL GULF OF MEXICO, INC.,
AMERICAN PETROLEUM INSTITUTE,
STATE OF LOUISIANA,
LOUISIANA DEPARTMENT OF NATURAL RESOURCES,
STATE OF ALABAMA,
GOVERNOR and the STATE OF MISSISSIPPI,
Intervenors.
________________________
No. 11-12599
________________________
Agency No. S-7444
GULF RESTORATION NETWORK, INC.,
FLORIDA WILDLIFE FEDERATION,
SIERRA CLUB, INC.,
Petitioners,
versus
BUREAU OF OCEAN ENERGY MANAGEMENT,
REGULATION AND ENFORCEMENT,
SECRETARY OF THE DEPARTMENT OF INTERIOR,
Respondents,
SHELL GULF OF MEXICO INC.,
AMERICAN PETROLEUM INSTITUTE,
STATE OF LOUISIANA,
LOUISIANA DEPARTMENT OF NATURAL RESOURCES,
STATE OF ALABAMA,
GOVERNOR and the STATE OF MISSISSIPPI,
Intervenors.
________________________
Petitions for Review of a Decision
of the Department of the Interior
________________________
(June 22, 2012)
2
Before DUBINA, Chief Judge, EDMONDSON, Circuit Judge, and RESTANI,*
Judge.
DUBINA, Chief Judge:
This case concerns a challenge to an exploratory drilling plan under the
Outer Continental Shelf Lands Act (“OCSLA”). 43 U.S.C. § 1331 et seq. The
Bureau of Ocean Energy Management1 (“BOEM”) approved the Shell Exploration
Plan S-7444 (“Shell EP”) to conduct drilling in the Gulf of Mexico. The Shell EP
covers ten exploratory wells on offshore Alabama leases in the Central Gulf of
Mexico between 7,100 and 7,300 feet deep. This case is a consolidated appeal in
which Petitioners, Defenders of Wildlife, et al. and Gulf Restoration Network, et
al. (“Petitioners”), filed comments on the Shell EP, participated in the
administrative proceeding below, and filed this petition for review. See 43 U.S.C.
§ 1349(c)(2). The only issues on petition for review are whether the Shell EP
violates the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332 et
seq., and the Endangered Species Act (“ESA”), 16 U.S.C. § 1536 et seq. After
*
Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
1
On October 1, 2011, the Bureau of Ocean Energy Management, Regulation, and
Enforcement (“BOEMRE”), formerly the Minerals Management Service (“MMS”), was replaced
by BOEM and the Bureau of Safety and Environmental Enforcement (“BSEE”) as part of a major
reorganization.
3
reviewing the record, reading the parties’ briefs, and having the benefit of oral
argument, we deny the petition for review.
I. Background
(A) Agency Proceedings
OCSLA governs federal offshore oil and gas leasing, exploration, and
development, and gives the Secretary of the Interior authority over the
administration of offshore leasing. 43 U.S.C. § 1331 et seq., 43 U.S.C. § 1334(a).
The Secretary delegated the authority to “regulate oil, gas, and sulphur
exploration, development, and production operations on the Outer Continental
Shelf (OCS)” to the BOEM. 30 C.F.R. § 550.101. OCSLA uses a four-stage
process for oil and gas development, with review at each stage: (1) preparation of
a leasing program; (2) lease sales; (3) exploration by the lessees; and (4)
development and production. See Sec’y of the Interior v. California, 464 U.S.
312, 337–40, 104 S. Ct. 656, 669–71 (1984). During the first stage, the Secretary
prepares a five-year OCS oil and gas lease-sale schedule and completes an
environmental impact statement (“EIS”). 43 U.S.C. § 1344(a), (b)(3). In the
second stage, the Secretary conducts lease sales on tracts of the OCS. 43 U.S.C §
1337. The lessee then has the exclusive right to submit an exploration plan for
approval during the third stage. 43 U.S.C. § 1340(c). If the exploration is
4
successful, the lessee can submit development and production plans for the
Central and Western Gulf of Mexico. 43 U.S.C. § 1351. The stage at issue in this
proceeding is the third stage, exploratory drilling.
A leaseholder must submit an exploration plan for approval by BOEM. See
43 U.S.C. § 1340(c)(1). BOEM is required to approve, approve with
modifications, or deny a plan within 30 days of submission. See id. BOEM may
allow exploration to proceed and issue a permit for drilling if the lessee’s plan
“will not be unduly harmful to aquatic life in the area, result in pollution, create
hazardous or unsafe conditions, unreasonably interfere with other uses of the area,
or disturb any site, structure, or object of historical or archeological significance.”
43 U.S.C. § 1340(g)(3). The exploration plan must also comply with all other
applicable laws, including NEPA and ESA. See 42 U.S.C. § 4332; 16 U.S.C. §
1536(a).
(1) Compliance with NEPA
NEPA requires all federal agencies to prepare an environmental assessment
(“EA”) and EIS on the environmental effects of proposed federal agency actions.
See 42 U.S.C. § 4332. All “major Federal actions [that] significantly affect[] the
quality of the human environment” require an EIS. 42 U.S.C. § 4332(C). A less
exhaustive EA can be used to determine whether the proposed action may
5
significantly affect the environment and whether an EIS is required. See 40 C.F.R.
§ 1508.9. An EIS is not required if the agency makes a finding of no significant
impact (“FONSI”) that identifies reasons why the proposed action will not have a
significant impact on the environment. 40 C.F.R. §§ 1501.4(e), 1508.13.
BOEM applies NEPA procedures using a tiered process encouraged by the
Council on Environmental Quality’s (“CEQ”) regulations implementing NEPA.
The CEQ regulations seek to avoid repetitive discussions and urge that:
Whenever a broad environmental impact statement has been prepared
(such as a program or policy statement) and a subsequent statement or
environmental assessment is then prepared on an action included
within the entire program or policy (such as a site specific action) the
subsequent statement or environmental assessment need only
summarize the issues discussed in the broader statement and
incorporate discussions from the broader statement by reference and
shall concentrate on the issues specific to the subsequent action.
40 C.F.R. § 1502.20. The Shell EA “tiers” from two prior EIS’s: the 2007
Multisale EIS covering eleven Gulf lease sales in the 2007-2012 Multisale and the
2009 supplemental EIS for seven remaining lease sales in the 2007-2012
Multisale. In 2007, MMS, BOEM’s predecessor, finalized an EIS covering the
Western and Central Gulf areas. The 2007 EIS analyzed expected impacts of oil
and gas exploration, including possible oil spills. It found large oil spills to be
low-probability events and determined that environmental impacts would not be
6
catastrophic to the region, animal populations, and ecosystems. The 2009
supplemental EIS found that relevant new information did not change the
conclusions from the 2007 multisale EIS.
In response to the April 2010 Deepwater Horizon disaster,2 BOEM
commenced the process to prepare a supplemental EIS for the remaining lease
sales in the Gulf under the 2007-2012 Multisale. See 75 Fed. Reg. 69,122-01
(Nov. 10, 2010). The final supplemental EIS was issued on January 20, 2012. 77
Fed. Reg. 2,991-02 (Jan. 20, 2012). BOEM concluded that “[n]o substantial new
information, with the exception of archaeological resources [related to historic
shipwrecks], was found that would alter the impact conclusions as presented in
the Multisale EIS and the 2009-2012 Supplemental EIS. . . .” BOEM, Gulf of
Mexico OCS Oil and Gas Lease: 2012, Final Supplemental Environmental Impact
Statement, Vol. I at x (Jan. 2012).
Prior to the Deepwater Horizon disaster, BOEM generally did not prepare
EA’s when approving exploration plans in the Western and Central Gulf of
Mexico under leases studied in previous EIS’s. After the spill, the Director of
BOEM instructed the agency to restrict its use of categorical exclusions for
2
The BP Macondo spill began with the April 20, 2010, explosion of the Deepwater Horizon
drilling platform and is referred to as the Deepwater Horizon disaster.
7
exploration plans that proposed activity that would require approval of an
application for a permit to drill and involve the use of a subsea Blow Out
Preventer (“BOP”) or surface BOP.3 Categorical exclusions are “a category of
actions which do not individually or cumulatively have a significant effect on the
human environment . . . and for which, therefore, neither an environmental
assessment nor an environmental impact statement is required.” 40 C.F.R. §
1508.4. Accordingly, BOEM prepared a site-specific EA for the Shell EP.
(2) Compliance with ESA
The ESA requires federal agencies to ensure that their actions are “not likely
to jeopardize the continued existence of any endangered species or threatened
species.” 16 U.S.C. § 1536(a)(2). If a proposed federal action may affect an
endangered species, the agency proposing the action must consult with the
appropriate expert agency, either the Fish and Wildlife Service (“FWS”) or the
National Marine Fisheries Service (“NMFS”). See 50 C.F.R. § 402.14(a). The
agency proposing the action prepares a biological assessment to facilitate
consultation with the expert agency. 50 C.F.R. § 402.14(c)(5). If the agencies
determine that the proposed action is not likely to adversely affect the species, the
consultation process is terminated. Id. § 402.13(a). However, if either agency
3
Subsea BOPs and surface BOPs are generally used for drilling in deep waters over 500 feet.
8
determines that the proposed action is likely to adversely affect a species, formal
consultation begins. Id. § 402.14. An agency must reinitiate consultation if new
information arises that was previously unexamined. Id. § 402.16.
BOEM consulted with NMFS and FWS in 2007 regarding Gulf of Mexico
lease sales under the 2007-2012 Multisale program. NMFS issued an opinion
concluding that exploration, development, and production was not likely to
jeopardize threatened or endangered species. FWS issued a similar memorandum.
In September 2010, BOEM requested to reinitiate consultation with NMFS and
FWS to consider new information as a result of the Deepwater Horizon disaster,
and that consultation is ongoing.
(B) Procedural History
On March 31, 2011, BOEM deemed the Shell EP submitted. BOEM
conducted a review of whether the Shell EP significantly affected the quality of
the environment, considering impacts of Shell’s proposed effect on the
environment from routine operations and unexpected accidents. Appendix A of
the EA analyzes risks, characteristics, and impacts of possible major spills in light
of information from the Deepwater Horizon disaster. Appendix B presents a
detailed “Catastrophic Spill Event Analysis” on all relevant resources in the Gulf
of Mexico, based on the 2010 Deepwater Horizon spill and 1979 Ixtoc spill.
9
Based on this analysis and information in the record, BOEM found no indication
that the proposed action would significantly affect the quality of the human
environment within the meaning of NEPA. The plan was approved by BOEM and
the United States Department of the Interior on May 10, 2011, after a FONSI.
Thus, BOEM determined an EIS was unnecessary. Petition for review of the Shell
EP was filed on June 9, 2011. Petitioners Gulf Restoration Network, et al. seek
remand for further agency consideration and Petitioners Defenders of Wildlife, et
al. seek both vacatur and remand.
II. Standard of Review
We review a decision to approve an exploration plan “solely on the record
made before the Secretary . . . [and] findings of the Secretary, if supported by
substantial evidence on the record considered as a whole, shall be conclusive.” 43
U.S.C. § 1349(c)(6). We review an agency’s compliance with NEPA and ESA
under the deferential “arbitrary or capricious” standard. Administrative Procedure
Act, 5 U.S.C. § 706(2)(A); Miccosukee Tribe of Indians v. United States, 566 F.3d
1257, 1264 (11th Cir. 2009). “We are not authorized to substitute our judgment
for the agency’s as long as its conclusions are rational.” Miccosukee, 566 F.3d at
1264 (citing Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008)).
We have limited discretion to reverse an agency’s decision because when it “is
10
making predictions, within its area of special expertise, at the frontiers of science .
. . as opposed to simple findings of fact, a reviewing court must generally be at its
most deferential.” Miccosukee, 566 F.3d at 1264 (quoting Balt. Gas & Elec. Co. v.
Natural Res. Def. Council, 462 U.S. 87, 103, 103 S. Ct. 2246, 2255 (1983)).
III. Analysis
(A) NEPA Claim
BOEM conducted an EA for the Shell EP to determine whether the
proposed activity would significantly affect the environment and found that an EIS
was unnecessary. Petitioners argue that the EA is only a general summary of the
environmental impact of the Shell EP and fails to include site-specific information.
Thus, Petitioners insist, BOEM’s decision not to prepare an EIS and its subsequent
FONSI is a violation of NEPA. Yet, Petitioners simply cannot overcome our
extremely deferential “arbitrary or capricious” standard of review. See
Miccosukee, 566 F.3d at 1264.
(1) Site-specific Analysis
Before concluding that an EIS is unnecessary, the agency must “accurately
identif[y] the relevant environmental concern” and take a “hard look” at the
problem. Hill v. Boy, 144 F.3d 1446, 1450 (11th Cir. 1998) (quoting Coal. on
Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66–67 (D.C. Cir. 1987)). If a FONSI
11
is made, the agency “must be able to make a convincing case for its finding.” Id.
Contrary to Petitioners’ claims, the EA contains a plethora of site-specific
information on the potential impacts from Shell’s proposed exploratory drilling.
For example, the EA describes site-specific atmospheric conditions, water quality
characteristics, likely impact on water quality, possible impact on deepwater coral
and marine mammals including specific species of sea turtles, and effects of
accidental events. Petitioners complain that the Shell EA is too similar to Shell EP
S-7445, an EA prepared for a separate but similar exploration plan in a different
area in the Gulf of Mexico. Shell EP S-7445 is 130 miles from shore with
proposed drilling at 2,721 feet. The difference in location and water depth
between the two EAs does not necessarily mean that there are significant
differences in resources present and environmental impact because both wells are
far from shore and in deep water. BOEM’s reliance on and comparison to Shell
EP S-7445 is consistent with its requirements under NEPA that it take a hard look
at the environmental impacts of the proposed exploration. NEPA does not
prohibit an agency from creating an EA that resembles another EA in a similar
environment. See 40 C.F.R. § 1508.9.
Next, Petitioners argue that BOEM failed to include a site-specific analysis
of potential catastrophic spills and underestimated the likelihood of a spill. To the
12
contrary, the EA extensively analyzes the risks and consequences of such an event.
Appendix B of the EA, “Catastrophic Spill Event Analysis,” evaluates the impact
of a low-probability catastrophic spill. After taking into account regulations put
into effect after the Deepwater Horizon disaster, BOEM determined that the risk
of another spill was low. While this analysis is derived from a generalized
scenario, it is based on the only two large spill disasters in the Gulf of
Mexico—the 1979 Ixtoc blowout in the Bay of Campeche, Mexico and the 2010
Deepwater Horizon disaster. An oil spill is an unexpected event, and its
parameters cannot be precisely known in advance. Thus, it is appropriate for
BOEM to summarize potential impacts resulting from a hypothetical oil spill.
Additionally, Petitioners claim that BOEM’s failure to evaluate its worst
case discharge spill of 405,000 barrels of oil per day was a violation of NEPA.
Yet BOEM is not required to base its NEPA analysis on a worst case scenario.
See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 354–355, 109 S.
Ct. 1835, 1848 (1989) (finding that NEPA does not require a “worst-case”
analysis). Similarly, NEPA does not require a “worst case discharge” analysis.
Thus, we conclude that BOEM’s reliance on analysis based on a lower spill rate,
which it determined to be more likely than the worst case discharge, was not
arbitrary or capricious or in violation of NEPA.
13
Petitioners’ final complaint with BOEM’s site-specific analysis is that the
EA fails to discuss some endangered species present in the Gulf, including the
piping plover, Gulf sturgeon, and various species of beach mice. The purpose of
an EA is to give enough information and analysis to conclude whether the project
will have a significant effect on the environment or not. Sierra Club v. U.S. Army
Corps of Eng’rs, 295 F.3d 1209, 1214–15 (11th Cir. 2002). This project concerns
operations under the Shell EP, not an expected oil spill from those operations.
Thus, the expected operations under the Shell EP will not have a significant effect
on the endangered species identified by Petitioners. Of course, a catastrophic spill
is possible, and BOEM considered potential impacts of such a spill, including the
impacts on the species identified by Petitioners. Yet, Petitioners suggest that
every EA requires a detailed analysis of each species that could possibly be
affected by a potential oil spill. NEPA clearly does not require such analysis. An
EA is intended to be a document that “[b]riefly provide[s] sufficient evidence and
analysis for determining whether to prepare an [EIS].” 40 C.F.R. § 1508.9(a)(1).
Although the EA does not describe every possible environmental effect of an oil
spill, BOEM took a hard look at environmental impacts, and its site-specific
analysis of expected drilling operations is consistent with NEPA.
(2) BOEM’s Methodology
14
Petitioner Gulf Restoration Network argues that BOEM should have used
the Mechanical Risk Index (“MRI”)—a methodology that evaluates risk factors
for deepwater wells, including water depth, well depth, number of casing strings,
and percent of population penetrating salt—to evaluate the risk of a spill under the
Shell EP. However, there is no evidence that suggests MRI is a standard
methodology in the industry to assess risks of a blow out. It is not the duty of this
court to determine the propriety of the methodology used by BOEM to analyze the
Shell EP, and we are not authorized to substitute our judgment “concerning the
wisdom or prudence of the proposed action.” N. Buckhead Civic Ass’n v. Skinner,
903 F.2d 1533, 1539 (11th Cir. 1990). We must be extremely deferential “when
an agency’s decision rests on the evaluation of complex scientific data within the
agency’s technical expertise.” Miami-Dade Cnty. v. U.S. EPA, 529 F.3d 1049,
1065 (11th Cir. 2008) (per curiam). We conclude from the record that BOEM’s
choice to not use MRI was not arbitrary or capricious, and we should defer to
BOEM’s experience and expertise on this matter.
(3) Environmental Impacts of the Deepwater Horizon Disaster
Petitioners argue that preparation of an EIS might provide additional
information on the Deepwater Horizon disaster, and that the agency cannot move
forward until additional information is gathered, but fail to realize that complete
15
information about the extent of damage from the spill may not be available for
years. NEPA does not require BOEM to wait until all aspects of a previous
disaster are determined before moving forward if the agency deems an EIS
unnecessary from a FONSI. Exploration plan approval decisions are based upon
existing available information. 43 U.S.C. § 1346(d) (“The Secretary shall consider
available relevant environmental information in making decisions (including those
relating to exploration plans . . . ), in developing appropriate regulations and lease
conditions, and in issuing operating orders.”). BOEM is required to take a “hard
look” at what is currently known about the environmental impact of a spill like the
Deepwater Horizon disaster. See Hill, 144 F.3d at 1450. The Shell EA details the
known environmental impacts from the Deepwater Horizon spill, including
impacts to fisheries and fish habitats of the oil, natural gas, and chemical
dispersants released as a result of the spill and its effects on water quality.
Appendix B provides additional information that is largely based on the spill. The
record demonstrates that BOEM took a hard look at what it knew about the
environmental consequences of the spill, and thoughtfully incorporated that
knowledge into the EA, consistent with NEPA requirements.
(4) BOEM’s Reliance on Prior EIS’s
16
Petitioners argue that BOEM cannot rely on tiering from the 2007 Multisale
EIS and 2009 Supplemental EIS because those studies are outdated after the
Deepwater Horizon disaster. Petitioners contend that because BOEM issued a
notice of intent to prepare a supplemental EIS for the 2007-2012 Multisale, which
covers the areas where the Deepwater Horizon disaster occurred and Shell
proposes to drill, BOEM cannot rely on the prior EIS’s in the current Shell EP.
BOEM recognizes that this supplemental EIS is needed “to consider new
circumstances and information arising . . . from the Deepwater Horizon blowout
and spill.” 75 Fed. Reg. 69,122-01 (Nov. 10, 2010). The purpose of the
supplemental EIS is to update baseline conditions and environmental impacts in
the Gulf.
The purpose of OCSLA is the “expedited exploration and development of
the Outer Continental Shelf in order to achieve national economic and energy
policy goals, assure national security, reduce dependence on foreign sources, and
maintain a favorable balance of payments in world trade.” 43 U.S.C. § 1802(1).
BOEM has a responsibility to balance the needs under OCSLA with the
requirements of NEPA. Absent unique site-specific characteristics, BOEM is
entitled to rely on broader prior analyses and tiering is specifically encouraged by
NEPA regulations. See 40 C.F.R. § 1502.20. Tiering allows BOEM to rely on
17
prior work to inform a decision on a current lease. BOEM validly relied on the
prior EIS’s, but also evaluated mitigation measures adopted after the Deepwater
Horizon disaster as factors to consider in determining the current risk of an oil
spill. The agency’s reliance on previous studies was not arbitrary or capricious
because (1) BOEM included all known information about the spill in the Shell EP
and (2) on January 20, 2012, BOEM reported that the conclusions from the most
recent supplemental EIS would not alter any conclusions presented in the 2007
and 2009 EIS’s. We conclude that BOEM’s reliance on the 2007 Multisale EIS
and 2009 Supplemental EIS was not arbitrary or capricious.
(B) ESA Claim
We next turn to Petitioners’ claim that BOEM’s request to reinitiate
consultation conceded the inadequacy of prior consultations and effectively barred
BOEM from approving the Shell EP until consultation was complete. If a federal
agency determines that a proposed action will likely affect a species protected
under the ESA, it must consult with either NMFS or FWS. See 16 U.S.C. §
1536(a)(2). Following the Deepwater Horizon disaster, BOEM reinitiated
consultation with both NMFS and FWS, and those consultations are still ongoing.
Section 7(a)(2) of the ESA requires BOEM to insure that its action “is not
likely to jeopardize” any endangered or threatened species or destroy or adversely
18
modify such species’ habitat. 16 U.S.C. § 1536(a)(2). NMFS and FWS
regulations define “jeopardize the continued existence of” as “to engage in an
action that reasonably would be expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival and recovery of a listed species in
the wild by reducing the reproduction, numbers, or distribution of that species.”
50 C.F.R. § 402.02. Because BOEM acknowledged that the environmental effects
from the Deepwater Horizon disaster may have altered some species or habitats, it
reinitiated consultation with NMFS and FWS. However, BOEM’s reliance on
conclusions by NMFS and FWS from 2007 does not necessarily jeopardize the
continued existence of any species or adversely modify a critical habitat under the
Shell EP. Petitioners have no proof that endangered species are in jeopardy, but
instead argue that the prior consultations are inadequate because BOEM reinitiated
consultation.
There is no precedent in our circuit to support Petitioners’ argument that
BOEM’s choice to reinitiate consultation with NMFS and FWS automatically
renders the former biological opinions invalid.4 The biological opinions of NMFS
4
Petitioners cite to dicta in Envtl. Prot. Info. Ctr. v. Simpson Timber Co., for the proposition
that “[r]einitiation of consultation requires either the FWS or the NMFS to issue a new Biological
Opinion before the agency action may continue.” 255 F.3d 1073, 1076 (9th Cir. 2001) (citing Mt.
Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1451 (9th Cir. 1992)). We decline to give this
statement any weight since ESA has no such requirement.
19
and FWS were reconfirmed in 2008 and 2009, and have not been withdrawn
despite reinitiation of consultations.5 We need not determine whether continuing
exploratory drilling would violate 16 U.S.C. § 1536(d)6 if no biological opinion
were in place, because BOEM “consider[ed] the existing consultation to remain in
effect until the reinitiated consultation is completed” and under the facts of this
case that decision is not arbitrary or capricious. [Admin. R. 27 at 2.] First, BOEM
engaged in extensive consideration of the impact of the Deepwater Horizon
disaster on the environment and BOEM’s ESA obligations. BOEM stated that the
5
Reinitiation of consultation is required, in part:
. . . (b) If new information reveals effects of the action that may affect listed species
or critical habitat in a manner or to an extent not previously considered;
(c) If the identified action is subsequently modified in a manner that causes an affect
to the listed species or critical habitat that was not considered in the biological
opinion . . . .
50 C.F.R. § 402.16(b), (c). NMFS and FWS agreed to further consultation based on these standards.
They expressed no opinion on the effect of the 2007 opinion.
6
Section 7(d) states in full:
After initiation of consultation required under subsection (a) (2) of this section, the
Federal agency and the permit or license applicant shall not make any irreversible or
irretrievable commitment of resources with respect to the agency action which has
the effect of foreclosing the formulation or implementation of any reasonable and
prudent alternative measures which would not violate subsection (a) (2) of this
section.
16 U.S.C. § 1536(d).
20
risks revealed by the Deepwater Horizon disaster are mitigated by “new notices of
lessees and safety regulations,” as well as “improvements in containment
technology.” [Admin. R. 35 at 3.] The Site-Specific Assessment of the Shell EP
addressed the possibility of events similar to the Deepwater Horizon disaster,
finding that although the effects of the spill on protected species were unknown, to
the extent effects could be predicted, the assessment foresaw greater risk to some
protected species, such as various species of sea turtles, and population level risks
to other species, such as manatees. BOEM concluded that despite the recent
Deepwater Horizon disaster, “impacts are still expected to be minimal to
nonexistent based on the low probability of a spill occurring,” estimating the risk
of an accidental spill at 0.07%. [Admin. R. 338 at 39.] Given the Bureau’s broad
consideration of the Deepwater Horizon disaster and new safety measures, the
Bureau did not act arbitrarily when it relied on the 2007 consultation in
conjunction with more recent studies. Second, BOEM analyzed its ESA
obligations and noted that under OCSLA it could promptly suspend activities if it
realized during the reinitiated consultation with NMFS or FWS that such action
was necessary to avoid jeopardy to threatened or endangered species. On these
facts, the ESA does not require BOEM to delay approval of the Shell EP until
results of reinitiated consultation are received.
21
V. Conclusion
For the reasons stated above, we conclude that BOEM’s decision to approve
the Shell EP was not arbitrary or capricious and instead reflects the agency’s
balance of environmental concerns with the expeditious and orderly exploration of
resources in the Gulf of Mexico.
PETITION FOR REVIEW DENIED.
22