Ocean Advocates v. US Army

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OCEAN ADVOCATES, a non-profit 
organization; FUEL SAFE
WASHINGTON, a non-profit
organization; NORTH CASCADES
AUDUBON SOCIETY, a non-profit
organization; DAN CRAWFORD, an
individual; RE SOURCES, a non-
profit organization, No. 01-36133
Plaintiffs-Appellants,  D.C. No.
v. CV-00-01971-RSL
UNITED STATES ARMY CORPS OF
ENGINEERS; RALPH H. GRAVES,
Defendants-Appellees,
BP WEST COAST PRODUCTS, LLC,
f/k/a Atlantic Richfield Company,
Intervenor-Appellee.

2491
2492 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
OCEAN ADVOCATES, a non-profit 
organization; FUEL SAFE
WASHINGTON, a non-profit No. 01-36144
organization; NORTH CASCADES D.C. No.
AUDUBON SOCIETY, a non-profit CV-00-01971-RSL
organization; DAN CRAWFORD, an ORDER
individual; RE SOURCES, a non- AMENDING
profit organization,
Plaintiffs-Appellees,  OPINION AND
DENYING
v. PETITIONS FOR
UNITED STATES ARMY CORPS OF REHEARING/
ENGINEERS; RALPH H. GRAVES, REHEARING EN
Defendants-Appellants, BANC AND
AMENDED
BP WEST COAST PRODUCTS, LLC, OPINION
f/k/a Atlantic Richfield Company,
Intervenor-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
April 11, 2003—Seattle, Washington
Filed March 15, 2004
Amended March 4, 2005
Before: Dorothy W. Nelson, Sidney R. Thomas,
Circuit Judges, and Dean D. Pregerson, District Judge.*
Opinion by Judge D.W. Nelson
*The Honorable Dean D. Pregerson, United States District Judge for the
Central District of California, sitting by designation.
2496 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
COUNSEL
John B. Arum, Seattle, Washington, for the plaintiff-
appellant.
Claudia M. Newman, Seattle, Washington, for the plaintiff-
appellant.
Elaine Spencer, Seattle, Washington, for the defendant-
intervenor-appellee/cross-appellant.
Ronald M. Spritzer, U.S. Department of Justice, Environment
& Natural Resources Division, Washington, D.C., for the
defendant-appellee.
ORDER
The opinion filed on March 15, 2004, appearing at 361
F.3d 1108 (9th Cir. 2004) is amended as follows:
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2497
Page 3150, lines 1-2: delete “See Public Citizen v. Dep’t of
Transp., 316 F.3d ‘1002, 1014 (9th Cir. 2002).”
Page 3164, line 7: replace “dock” with “refinery”
Page 3167, lines 6-14: replace “With the dock extension,
though, the BP facility ‘can handle additional traffic
beyond what market forces might bring about alone. The
New platform facilitates an increase in tanker traffic and is
a “but for” cause of this increase in tanker traffic even if it
is not the sole source of the increase. Public Citizen, 316
F.3d at 1024 (holding that even where “it is impossible to
separate” the causes of increases in traffic, the influence of
the challenged activity on increased traffic is still an impor-
tant causal effect).” with “With the dock extension, though,
the BP facility can handle even greater increases in traffic,
should market forces dictate such increases. Because a
“reasonably close causal relationship” exists between the
Corps’ issuance of the permit, the environmental effect of
increased vessel traffic, and the attendant increased risk of
oil spills, the Corps had a duty to explore this relationship
further in an EIS. Public Citizen v. Dep’t of Transp., 124
S.Ct. 2204, 2215 (Jun. 7, 2004) (quoting Metro. Edison Co.
v. People Against Nuclear Energy, 460 U.S. 766, 774
(1983)).”
Page 3170, line 18: insert the following two new paragraphs
after the paragraph ending “impacts accurately.”: “In grant-
ing summary judgment for the Corps and BP on OA’s envi-
ronmental claims, the district court found that NEPA did
not require an EIS because the pier extension was intended
to alleviate existing tanker traffic, which would increase
due to market forces with or without the extension. To
reach this decision, the district court erroneously deter-
mined that the intent of the dock extension was to deal with
existing traffic and analogized to our decisions in Morongo
Band of Mission Indians v. FAA, 161 F.3d 569 (9th Cir.
1998), and Seattle Community Council Federation v. FAA,
2498 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
961 F.2d 829 (9th Cir. 1992), where the purpose of the pro-
posed project was to increase efficiency and safety. Ocean
Advocates, 167 F. Supp. 2d at 1212-13. Here, however, nei-
ther the Corps nor BP has proven that the purpose of the
pier extension is primarily to increase efficiency and safety.
Instead, the 1996 permit states that the “Need and Purpose”
of the project is to “expand a petroleum product loading/
unloading facility.” Neither the 2000 amended permitting
decision nor BP’s form application for a permit indicates
that the central purpose of the project is to increase safety
or efficiency. Morongo and Seattle Community Council
Federation are also distinguishable because neither case
dealt with any change in ground capacity. In both cases, the
increased flight volume was a function of new routes into
the same airport terminal, whereas in this case whatever
increase in tanker traffic may occur results from the expan-
sion of the pier itself.
“Finally, our cases applying a “growth-inducing” analy-
sis to highway construction projects do not require a differ-
ent result. In City-of-Carmel-By-The-Sea v. U.S.
Department of Transportation, 123 F.3d 1142 (9th Cir.
1997), we held that a proposal to build a new bridge, two
new interchanges, and to widen an intersecting road was
necessitated by existing development and did not require
further analysis in the EIS because whatever growth may
occur was already accounted for and analyzed by local offi-
cials planning documents. Id. at 1162-63. Here, by contrast,
even if we found that the pier expansion was necessitated
by existing development, the foreseeable growth in tanker
traffic has not been accounted for in any other planning
documents.”
Page 3171, line 8: insert “No such analysis is evident in the
EA, nor is there a “ ‘justification regarding why more
definitive information could not be provided.’ ” Blue
Mountains, 161 F.3d at 1213 (quoting Neighbors of Cuddy
Mountain, 137 F.3d at 1380).” after “in the area.”
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2499
Page 3172, line 33: insert “We decline to reach a decision on
injunctive relief. Instead, we remand to the district court to
consider this question in the first instance, including
whether OA has made the requisite showing for injunctive
relief, what harm BP may suffer under an injunction, and
the impact of such an injunction on the public.” After “rem-
edy OA’s harm.”
Page 3179, lines 8-14: replace “The district court also should
enter an injunction freezing tanker traffic to and from the
BP refinery at pre-2000 levels until the Corps prepares an
EIS and reassesses the permit under the Magnuson Amend-
ment. See Metcalf, 214 F.3d at 1146; Nat’l Parks, 241 F.3d
at 739. The district court first will have to determine pre-
2000 tanker traffic levels. Id.” with “We also REMAND
this case to the district court to consider OA’s request for
injunctive relief. On remand on this question, the district
court should conduct an evidentiary hearing to consider
whether the pier extension would increase vessel traffic
beyond the increase produced by market forces and what
harms BP may suffer under an injunction.”
With this amendment, the members of the panel that
decided this case voted unanimously to deny Appellee’s peti-
tion for rehearing. Judge Thomas voted to deny the petitions
for rehearing en banc. Judges D. Nelson and D. Pregerson
recommended denial of the petitions for rehearing en banc.
The full court has been advised of the petitions for rehear-
ing en banc and no active judge has requested a vote on
whether to rehear the matter en banc. (Fed. R. App. P. 35.)
The petitions for rehearing/rehearing en banc en banc filed
on May 24, 2004, and June 4, 2004, are hereby DENIED.
Subsequent petitions for panel rehearing or petitions for
rehearing en banc may be filed.
2500 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
OPINION
D.W. NELSON, Senior Circuit Judge:
Ocean Advocates (OA), an environmental group, appeals a
summary judgment ruling in favor of the U.S. Army Corps of
Engineers (the Corps) and BP West Coast Products (BP).1 OA
challenges the issuance and extension of a permit allowing BP
to build an addition to its existing oil refinery dock in Cherry
Point, Washington. OA argues that the district court erred in
granting summary judgment to the Corps and BP, insisting
that the permit violates the National Environmental Policy
Act (NEPA), 42 U.S.C. § 4332, and the Magnuson Amend-
ment to the Marine Mammal Protection Act (MMPA), 33
U.S.C. § 476. BP cross-appeals the district court’s denial of
its motion for summary judgment on grounds that OA lacks
standing and that laches bars this action.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm in part, reverse in part, and remand.
FACTUAL AND PROCEDURAL BACKGROUND
I. Cherry Point Marine Terminal
Cherry Point is an approximately ten-mile stretch of coast-
line located in the Strait of Georgia in northeast Puget Sound.
It has been described as “a shoreline of statewide signifi-
cance,” by the Whatcom County Hearing Examiner.
BP first constructed a refinery to process Alaskan North
Slope crude oil in Cherry Point, south of Point Whitehorn, in
1971. The 1969 permit authorizing this project allowed BP to
construct a dock to which tankers would deliver crude oil.
1
The Atlantic Richfield Company (ARCO) was the original party to this
suit, but BP West Coast Products LLC now owns ARCO. Therefore, we
use “BP” throughout.
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2501
The dock design included two platforms: one for unloading
crude oil and one for loading refined product. Just before con-
struction began, BP opted to build only the southern platform
and deferred building the northern platform until production
at the refinery reached capacity or the loading and unloading
of tankers began to interfere with refinery operations. Physi-
cal adjustments enabled the southern platform both to unload
crude oil and to load refined product so that the dock could
function as it would have with both platforms.
BP sought to have the 1969 permit reopened in 1977 so that
it could complete the original design of the pier by building
the northern platform. Because of the time lapse between
granting the original permit and the request to reopen, the
Corps required BP to submit a new permit application that
would be subject to public notice and comment. BP withdrew
the application.
II. The Permit at Issue
BP again applied for a permit to build the northern platform
in 1992. The additional platform would double the refinery’s
berthing capacity. The existing southern platform would cease
to serve the dual functions of unloading crude oil and loading
refined oil. Instead, the southern platform would only receive
crude oil, while the northern addition would only load refined
product.
The Corps provided public notice of the application on
June 3, 1992, and received substantive responses from the
U.S. Fish and Wildlife Service (FWS), the Lummi Indian
Nation, and the Nooksack Indian Tribe.
The FWS raised concerns about the cumulative impact of
the construction and operation of the pier when considered
together with similar industrial projects in the Strait of Geor-
gia. The FWS worried that the additional platform would
facilitate an increase in tanker traffic and product handling,
2502 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
thereby increasing the likelihood of a major oil spill. Three
years after the public notice, but before the permit was issued,
the FWS requested an environmental impact statement (EIS)
to assess increased traffic and the cumulative impact of the
additional platform.
In response, BP insisted that the dock expansion would
decrease the risk of oil spills because the new dock would
reduce the amount of time tankers spent anchored at sea while
waiting to dock. Therefore, BP argued, the additional dock
would diminish the potential for oil spills “during anchorage
and bunkering,” when ships are most vulnerable. BP also
noted that in the event of a spill, the new dock would contain
“state of the art” oil spill containment equipment.
Other public comments were similar. The Lummi Indian
Nation expressed concern that the new platform would,
among other things, increase tanker traffic and the risk of oil
spills and requested that the Corps require an EIS before issu-
ing the permit. The Nooksack Indian Tribe had similar mis-
givings. Its primary worry was that greater vessel traffic
would mean increased handling of fuel and other toxic sub-
stances, which, in turn, would create a larger risk of harm to
fish resources. Both the Lummi Nation and the Nooksack
Tribe entered mitigation agreements with BP and ultimately
withdrew their objections to the permit.
Meanwhile, the marbled murrelet2 was listed as a threat-
ened species under the Endangered Species Act, 16 U.S.C.
§§ 1531-44. See 50 C.F.R. § 17.11 (2002). The Corps accord-
ingly asked BP to consider how the dock addition would
affect this bird. BP concluded that although “[m]arbled mur-
relet[s] are susceptible to death or injury from oil spills” and
2
The marbled murrelet is a small seabird that nests in the old-growth
forests of the Pacific Northwest and depends on coastal marine feeding
areas. Sustainable Ecosystems Institute, SEI Endangered Species: Marbled
Murrelet, http://www.sei.org/murrelet.html (last visited July 17, 2003).
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2503
although “[o]il spills are chance events that could have an
impact on local populations of murrelets near Cherry Point,”
an oil spill containment boom made that already “remote”
threat “negligible.”
The Corps granted the permit on March 1, 1996, conclud-
ing that constructing the northern platform probably would
not result in adverse cumulative impacts to fish and wildlife
resources in the Cherry Point area. The Corps also agreed
with BP that the project would reduce the chance of oil spills
while ships anchored because the pier extension would
decrease tanker wait time. Moreover, the Corps found that the
additional pier likely would diminish the devastation associ-
ated with an oil spill during bunkering of tankers at dock
because oil spill containment booms would surround the new
platform. The Corps also made a Finding of No Significant
Impact (FONSI), determining that the pier addition “will not
significantly affect the quality of the human environment,”
and that an EIS therefore was not required.
OA contacted the Corps on October 9, 1997, asking it to
reopen the permit granted BP and requesting a more complete
evaluation of the cumulative impacts that the new platform
would have on vessel traffic safety. OA also asked the Corps
to consider whether the permit violated the Magnuson
Amendment, 33 U.S.C. § 476, which regulates permits for oil
transport terminals in Puget Sound. The Corps declined to
reopen or reconsider the permit.
In July 1999, the Washington State Department of Natural
Resources (WSDNR) issued a Screening Level Ecological
Risk Assessment (SLERA). This report concluded that addi-
tional ship traffic associated with the expanded pier would
elevate the probability of an oil spill. Although the reduction
in temporary anchoring while waiting to dock would decrease
the chance of an oil spill, the SLERA noted that the number
of vessels using the pier would increase eighteen to thirty-six
percent over five years, which would increase the likelihood
2504 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
of an oil spill. This increase in ship traffic would occur,
according to the SLERA, whether or not BP built the pier
extension.
OA contacted the Corps on September 29, 1999, and again
asked it to reconsider the permit. OA argued that the Corps’
previous denial of its request to reopen the permit relied on
inaccurate information, including that the refinery was operat-
ing “at capacity.” New data demonstrated that the refinery had
increased its output and that the project would promote addi-
tional tanker traffic and an increased potential for an oil spill.
For these reasons, OA suggested that the permit violated the
Magnuson Amendment and requested a “full” EIS.
The Corps asked BP to address OA’s concerns. BP contin-
ued to allege that the dock extension would benefit the envi-
ronment by reducing the risk of oil spills; any further
environmental analysis was unnecessary. As for the Magnu-
son Amendment claim, BP pointed to the statutory language,
which prohibits permits that “may result in any increase in the
volume of crude oil capable of being handled” at a facility. Id.(emphasis added). The new dock could not violate the
Magnuson Amendment, BP argued, because the northern pier
would load only refined oil. In addition, BP noted that the
northern platform would leave the refinery pipes untouched,
meaning that the refinery’s pumping or hydraulic capacity—
the facility’s ability to process crude oil—would remain unal-
tered. Finally, BP disputed OA’s claim that the dock exten-
sion would be the main cause of increased vessel traffic.
III. BP’s Request for a Permit Extension
BP requested a one-year extension to its 1996 permit in
March 2000 to allow it time to complete the dock construc-
tion. The original permit was set to expire on March 1, 2001,
and BP wished to begin construction in June 2000 and finish
by late 2001. The Corps decided that while it would wait to
grant BP the one-year extension pending FWS consultation on
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2505
whether the project would affect newly listed threatened spe-
cies, it would not issue a public notice or accept public com-
ments on the permit extension.
The WSDNR contacted the Corps about the permit exten-
sion. It expressed concern that its earlier report (the SLERA)
was very narrowly focused on the pier extension alone and
did not consider the cumulative effects of multiple projects on
the Cherry Point region. While the WSDNR did not specifi-
cally oppose the extension, it noted that circumstances had
changed since the Corps originally granted BP the permit,
including the listing of the Puget Sound Chinook salmon and
bull trout under the Endangered Species Act. The WSDNR
communicated its continued concern about the potential
cumulative impacts on the Cherry Point habitat for spawning
herring and juvenile Chinook.
The Corps granted BP the permit extension on June 29,
2000. The Corps adopted BP’s “reasonable” interpretation of
the Magnuson Amendment. Because the pier construction
would not increase the refinery’s capability to offload crude
oil tankers, the Corps determined that the pier extension com-
plied with the Magnuson Amendment. The Corps also
rejected OA’s claim that devoting the pier extension exclu-
sively to refined oil would free the existing portion of the
dock to unload more crude oil, effectively increasing the vol-
ume of crude oil capable of being handled at the BP facility.
The Corps agreed with BP that increased tanker traffic
depends not on the remodeling of the refinery but exclusively
on market forces. The Corps, relying on information primarily
from BP, found that the new platform would not result in
adverse cumulative impacts on natural resources in the Cherry
Point area. The Corps again concluded that an EIS was not
essential to determining the cumulative impacts, if any, of the
project.
IV. The District Court’s Decision
OA brought this action against the Corps on November 21,
2000. The district court allowed BP to intervene as a defen-
2506 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
dant, and the parties filed cross-motions for summary judg-
ment. The district court granted summary judgment for the
Corps and BP as to OA’s environmental claims. In doing so,
the court found that NEPA did not require an EIS because the
pier extension was intended to alleviate existing tanker traffic
and because tanker traffic would increase with or without the
dock extension. The court also adopted the Corps’ interpreta-
tion of the Magnuson Amendment. Finally, the district court
concluded that BP’s request for a permit extension did not
require a period of public notice and comment. See Ocean
Advocates v. United States Army Corps of Engineers, 167 F.
Supp. 2d 1200 (W.D. Wash. 2001). The district court also
denied BP’s summary judgment motion with respect to claims
that OA did not have standing and that laches barred this
action. Id.Following the court’s entry of judgment, the parties stipu-
lated to an injunction that prohibits the use of the dock exten-
sion for loading or unloading crude oil, unless BP applies for
a permit. The terms of the injunction provide that even if BP
receives a permit for using the dock extension to load or
unload crude oil, BP cannot use the new platform to load and
unload crude oil at the same time that it also uses the original
southern platform for that purpose. The injunction essentially
allows BP to use only one of the two Cherry Point platforms
for loading and unloading crude oil at any time.
STANDARD OF REVIEW
We review de novo the district court’s grant of summary
judgment. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002).
We “must determine, viewing the evidence in the light most
favorable to the nonmoving party, whether the district court
correctly applied the relevant substantive law and whether
there are any genuine issues of material fact.” Balint v. Car-
son City, 180 F.3d 1047, 1050 (9th Cir. 1999) (en banc).
The Administrative Procedure Act (APA) governs our
review of the Corps’ action, conclusions, and findings of fact.
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2507
Section 10(a), 5 U.S.C. § 702, sets out the standard for judi-
cial review of decisions involving NEPA, Lujan v. Nat’l Wild-
life Fed’n, 497 U.S. 871, 882-83 (1990), and the MMPA, 16
U.S.C. § 1374(d)(6) (allowing judicial review of MMPA per-
mit decisions under the APA). We must set aside the Corps’
actions, findings, or conclusions if they are “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A).
This review is “searching and careful,” but the arbitrary and
capricious standard is narrow, and we cannot substitute our
own judgment for that of the Corps. Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), over-
ruled on other grounds by Califano v. Sanders, 430 U.S. 99,
105 (1977). We ask “whether the [Corps’] decision was based
on a consideration of the relevant factors and whether there
has been a clear error of judgment.” Citizens to Preserve
Overton Park, 401 U.S. at 416. We also “must determine
whether the [Corps] articulated a rational connection between
the facts found and the choice made.” Ariz. Cattle Growers’
Ass’n v. United States Fish & Wildlife Serv., 273 F.3d 1229,
1236 (9th Cir. 2001). Our review “must not ‘rubber-stamp’
. . . administrative decisions that [we] deem inconsistent with
a statutory mandate or that frustrate the congressional policy
underlying a statute.” Id. (quoting NLRB v. Brown, 380 U.S.
278, 291-92 (1965)) (first alteration in original).
DISCUSSION
I. Standing
Before considering the substantive merits of the claims
raised on appeal, we must first address OA’s standing.3
3
OA sued along with three other environmental organizations, Fuel Safe
Washington, the North Cascades Audubon Society, and ReSources, as
well as a commercial fisherperson, Dan Crawford. Although all of these
plaintiffs-appellants can demonstrate standing, OA’s standing alone suf-
fices for purposes of this appeal. See Watt v. Energy Action Educ. Found.,
454 U.S. 151, 160 (1991).
2508 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
OA must establish that it meets both the constitutional and
prudential standing requirements. Article III standing requires
that OA
show (1) it has suffered an ‘injury in fact’ that is (a)
concrete and particularized and (b) actual or immi-
nent, not conjectural or hypothetical; (2) the injury is
fairly traceable to the challenged action of the defen-
dant; and (3) it is likely, as opposed to merely specu-
lative, that the injury will be redressed by a favorable
decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 180-81 (2000). OA must also demonstrate
that its interests fall within the “zone of interests” protected
by NEPA and the Magnuson Amendment to satisfy prudential
standing. Bennett v. Spear, 520 U.S. 154, 162 (1997).
OA is a nonprofit organization dedicated to protecting
oceans for the people and wildlife dependent upon them for
“life, livelihood, and enjoyment.” OA executives have com-
mitted themselves to preventing oil spills in the waters contig-
uous to Washington State for more than two decades. OA
members own property on Haro Strait on San Juan Island and
enjoy photographing marine life, fishing for salmon and shell-
fish, and watching marine life.
The director of OA, Fred Felleman, owns waterfront prop-
erty en route to the BP refinery. He works as a marine biolo-
gist studying orca whales in Puget Sound and earns most of
his income as a professional marine wildlife photographer.
Increased tanker traffic, the discharge of pollutants, and the
risk of oil spills will jeopardize his professional, economic,
and personal interests in Cherry Point.
A. Injury in Fact
[1] [A]n individual can establish ‘injury in fact’ by
showing a connection to the area of concern suffi-
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2509
cient to make credible the contention that the per-
son’s future life will be less enjoyable—that he or
she really has or will suffer in his or her degree of
aesthetic or recreational satisfaction—if the area in
question remains or becomes environmentally
degraded.
Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141,
1149 (9th Cir. 2000). Record evidence suggests that the dock
extension risks increased tanker traffic and a greater potential
for an oil spill corresponding increase in the risk of an oil
spill; we are persuaded that OA will suffer substantially less-
ened enjoyment of Cherry Point should an oil spill occur. An
oil spill would cause a markedly decreased opportunity for
OA members to study the ecological area, observe wildlife,
and use Cherry Point for recreation. Felleman’s interests as a
member of OA, a professional, and a property owner also
would be harmed. Because “[t]he ‘injury in fact’ requirement
in environmental cases is satisfied if an individual adequately
shows that she has an aesthetic or recreational interest in a
particular place, or animal, or plant species and that that inter-
est is impaired by a defendant’s conduct,” OA has shown
injury in fact. Id. at 1147.
Furthermore, the alleged injury is not conjectural or hypo-
thetical, as “an increased risk of harm can itself be injury in
fact for standing,” and nothing necessitates a showing of
existing environmental harm. Id. at 1151. “[T]o require actual
evidence of environmental harm, rather than an increased risk
based on a violation of [a] statute, misunderstands the nature
of environmental harm” and would unduly limit the enforce-
ment of statutory environmental protections. Id. (citing
Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.,
204 F.3d 149, 160 (4th Cir. 2000)).
B. Causation
[2] The injury also is fairly traceable to the BP pier. OA has
shown that “the alleged injury can be traced to [BP’s] chal-
2510 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
lenged conduct, rather than to that of some other actor not
before the court.” Ecological Rights Found., 230 F.3d at
1152. At the time litigation commenced, all parties agreed
that BP would build the new platform and that traffic to the
dock extension would increase over time. OA has alleged suf-
ficiently that the dock extension, when considered alone or in
tandem with other industrial projects in the Cherry Point
region, would contribute to the risk of an oil spill. “[T]he
causal connection put forward for standing purposes cannot
be too speculative, or rely on conjecture about the behavior of
other parties, but need not be so airtight at this stage of litiga-
tion as to demonstrate that the plaintiffs would succeed on the
merits.” Id. (reversing grant of summary judgment). While
other factors may also cause additional tanker traffic and
increase the attendant risk of an oil spill, the link between the
new platform and increased traffic is not tenuous or abstract.
C. Redressability
[3] The last prong required for constitutional standing,
redressability, also is present here, as the relief OA has
requested will remedy its harm. OA conceded at oral argu-
ment that it does not wish to have the additional platform,
which is now fully constructed, demolished. Instead, OA
seeks an EIS under NEPA and an injunction pursuant to the
Magnuson Amendment. An injunction restricting tanker traf-
fic obviously would alleviate OA’s concern about increased
traffic. The other remedy, which is procedural in nature,
would also redress OA’s injury.
A plaintiff, like [OA] who asserts inadequacy of a
government agency’s environmental studies under
NEPA need not show that further analysis by the
government would result in a different conclusion. It
suffices that, as NEPA contemplates, the [Corps’]
decision could be influenced by the environmental
considerations that NEPA requires an agency to
study.
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2511
Hall v. Norton, 266 F.3d 969, 977 (9th Cir. 2001) (emphasis
added) (citation omitted). If the Corps had conducted a “full”
EIS considering increased traffic and the cumulative impact
of the dock extension as OA requested, the Corps’ decision to
grant BP the permit and the permit extension could have been
influenced by those environmental studies. OA certainly
meets this undemanding burden.
D. Prudential Standing
[4] OA easily meets the prudential standing requirement
because its injuries are within the zone of interests protected
by NEPA and the Magnuson Amendment. The zone of inter-
ests test is “not meant to be especially demanding.” Clarke v.
Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987). OA need only
show that its interests share a “plausible relationship” to the
policies underlying each statute. Id. at 403. Prudential stand-
ing is satisfied unless OA’s “interests are so marginally
related to or inconsistent with the purposes implicit in the stat-
ute that it cannot reasonably be assumed that Congress
intended to permit the suit.” Id. at 399.
OA’s interests clearly meet the lenient zone of interests
test. Congress drafted NEPA in order to protect the environ-
ment, by “fulfill[ing] the responsibilities of each generation as
trustee of the environment for succeeding generations” and
“attain[ing] the widest range of beneficial uses of the environ-
ment without degradation.” 42 U.S.C. § 4331(b). The Magnu-
son Amendment attempts to reduce the threat of “increased
domestic and international traffic of tankers carrying crude oil
in bulk which increases the possibility of vessel collisions and
oil spills.” 33 U.S.C. § 476(a)(2). It is without question that
OA seeks to avoid the harmful effects of increased tanker traf-
fic, and relatedly, the increased risk of oil spills, an objective
that matches the aim of the Magnuson Amendment as well as
the general goal of environmental protection lauded in NEPA.
2512 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
E. Organizational Standing
OA also must satisfy us that it has organizational standing.
OA can successfully allege organizational standing if its
members would have standing to sue on their own behalf, the
interests at issue are “germane” to OA’s mission, and neither
the substantive claim nor the remedy sought necessitates the
participation of any individual member of OA. Laidlaw, 528
U.S. at 181 (citing Hunt v. Wash. State Apple Adver. Comm’n,
432 U.S. 333, 324 (1977)).
[5] We hold that OA has organizational standing. The
above analysis demonstrates that Felleman would have stand-
ing as an individual to sue BP. OA’s main interest, namely
foreclosing the increased risk of an oil spill, certainly is ger-
mane to OA’s purpose of protecting and preserving oceans for
humans and animals who rely on them. We cannot see how
the participation of any individual member of OA would aid
the determination of liability, an appropriate remedy, or both,
let alone how such involvement would prove necessary.
F. Statutory Standing
[6] Finally, OA must persuade us that it meets the APA
statutory requirements for standing. Churchill County v. Bab-
bitt, 150 F.3d 1072, 1078 (9th Cir. 1998). OA “must establish
(1) that there has been a final agency action adversely affect-
ing the plaintiff, and (2) that, as a result, it suffers legal wrong
or that its injury falls within the ‘zone of interests’ of” NEPA
and the Magnuson Amendment. Id. We have already estab-
lished that OA’s claims fall within the purview of both NEPA
and the Magnuson Amendment. The only remaining question,
then, is whether a final agency action adversely affected OA.
We hold that the permit that the Corps issued qualifies as such
a final agency action.
II. Laches
We next turn to BP’s claim that laches bars this action, as
a reversal on this claim would make consideration of the other
issues unnecessary.
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2513
Laches is strongly disfavored in environmental cases.
Coalition for Canyon Pres. v. Bowers, 632 F.2d 774, 779 (9th
Cir. 1980). “The doctrine is to be invoked sparingly in envi-
ronmental cases because the plaintiff is not the only party to
suffer harm by alleged environmental damage.” Neighbors of
Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372,
1381 (9th Cir. 1998); see also Coalition for Canyon Pres.,
632 F.2d at 779 (“In considering laches claims, it is relevant
that the plaintiff will not be the only victim of possible envi-
ronmental damage.”). The use of laches “should be restricted
to avoid defeat of Congress’ environmental policy.” Coalition
for Canyon Pres., 632 F.2d at 779.
[7] Whether laches bars a claim depends on the particular
facts and circumstances of the case at bar, and the decision to
apply laches is within the discretion of the trial court. To
establish a laches bar as an affirmative defense to this litiga-
tion, BP must show that OA lacked diligence in pursuing its
claim and that OA’s lack of diligence resulted in prejudice. Id.In determining diligence, we consider several factors:
whether OA attempted to make its position known to the
Corps before filing suit; the Corps’ response to OA’s efforts;
and whether developments, such as construction or other visi-
ble changes, motivated OA to investigate whether any legal
basis existed for challenging the project. Id.The parties dispute the date from which we ought to mea-
sure OA’s diligence in filing this action. BP argues that OA
should have brought suit soon after the Corps granted the per-
mit in 1996, while OA points out that it filed suit within a rea-
sonable time following the Corps’ extension of BP’s permit
in 2000. Whether we “run the diligence clock” from the 1996
permit or the 2000 permit extension, OA exercised due dili-
gence.
BP first sought the permit in 1992 and the Corps granted
it in 1996. OA initiated contact with the Corps within one
2514 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
year of when the first permit was granted. It maintained con-
tinued and consistent dialogue with the Corps until the Corps
granted the permit extension in June 2000.
The permit extension granted in 2000 gave BP the final
authorization it needed to construct the dock extension. BP
admitted that it “definitely” could not have completed con-
struction by the original permit expiration date, making an
extension necessary to build the new platform lawfully. Also,
additions to the threatened species list in the time since the
permit was granted effectively suspended the force of the per-
mit. In February 2000, a month before BP applied for a permit
extension, the Corps understood that even though BP did not
intend to begin construction until June 2000, new additions to
the threatened species list effectively halted the project. In an
email between two Corps members, one wrote to the other:
[BP] really need[s] to agree not to start work until
[ESA consultation] is completed or else we are in a
suspension mode in my legal opinion. Do they [BP]
realize that they are not to start work? . . . We don’t
want them expending money or setting up contracts
without them [really] understanding that they need to
go through [ESA] consultation.
The additions to the threatened species list effectively sus-
pended the force of the permit until ESA consultation was
complete, and BP did not have final authorization to begin
construction. Moreover, the permit extension granted in 2000
addressed, for the first time, whether the dock extension proj-
ect would violate the Magnuson Amendment.
We have held in other cases that delays of eight to ten years
did not demonstrate lack of diligence when litigation com-
menced close in time to the final agency decision or authori-
zation. See Coalition for Canyon Pres., 632 F.3d at 780
(finding no laches bar where final authorization was not
granted until one year before plaintiffs sued, although ten
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2515
years passed overall); Pres. Coalition, Inc. v. Pierce, 667 F.2d
851, 854-55 (9th Cir. 1982) (finding no laches bar where
plaintiffs filed suit the same year they found out that the
action they feared would take place). Within six weeks of
when the Corps granted BP the June 2000 permit extension,
OA notified the Corps of its intent to sue and actually filed
suit approximately three months later.
Even were we not satisfied that the 2000 permit extension
provided BP with the final authorization it needed to construct
the new platform, the factors relevant to the diligence inquiry
demonstrate that OA has met its burden. First, OA made its
position known to the Corps before filing suit. OA requested
that the Corps reopen BP’s permit twice and strongly encour-
aged the Corps to consider a Magnuson Amendment viola-
tion, which it had not evaluated previously. The record
contains many examples of the continued correspondence
between OA and the Corps concerning the permit at issue.
Second, the Corps responded with letters that gave OA rea-
son to believe that continuing to pursue administrative reme-
dies with the Corps might resolve the problem without having
to litigate. For example, OA pointed out to the Corps that it
denied OA’s first request to reopen BP’s permit on the basis
of a mistaken belief that BP’s Cherry Point refinery was oper-
ating “at capacity.” After learning of this error, the Corps
notified OA that it was reevaluating its earlier denial of OA’s
request to reopen the permit. In the meantime, the Corps gath-
ered more information from both parties. The Corps also
knew that BP did not plan to begin construction on the dock
until June 2000 and wanted to make sure that OA was aware
of this information, suggesting that OA reasonably believed
that efforts beyond administrative remedies might not be neces-
sary.4 Furthermore, OA made its second request to reopen the
4
The same email discussed earlier contained the following statement:
“In our conversation on Friday, I forgot to ask if you informed Ocean
Advocates that [BP] was not going to start construction until June.”
2516 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
permit in September 1999, and the Corps responded as late in
time as May 22, 2000, that it was “considering [OA’s] request
to suspend the BP permit for the dock extension based on a
change in circumstances since permit issuance and based on
a possible violation of the Magnuson Amendment.” It would
prove particularly unfair to OA, and the public, to find that
laches bars this action when OA reasonably attempted to
resolve its Magnuson concerns administratively in the first
instance before spending the necessary time and expense to
litigate.
Finally, no visible developments existed that would have
motivated OA to investigate any additional legal bases for
challenging the permit or to prompt it to file suit. Although
Felleman knew about the permit in 1996, public notice of the
1992 permit application was not mailed to any of the
plaintiffs-appellants. BP did not begin construction on the
dock until June 2000, when the Corps granted the extension.
OA’s continuous dialogue with the Corps before it filed
suit is unlike the facts in Apache Survival Coalition v. United
States, 21 F.3d 895 (9th Cir. 1994), one of the rare instances
in which we found that laches barred an environmental suit.
There, the plaintiff tribe ignored or provided no information
in response to targeted solicitations requesting input for an
EIS and asked to be removed from the mailing list for the
final EIS. Id. at 907. We held that the tribe asserted its rights
with “inexcusable tardiness” when it complained to the Forest
Service two years after the final EIS had issued and the
administrative record had been closed. Id. at 907, 912. No
analogous facts exist in this case.
[8] Because BP has failed to show a lack of diligence, we
have no need to examine undue prejudice.
III. NEPA
OA challenges the Corps’ failure to prepare an EIS prior to
granting BP’s permit application and permit extension appli-
cation.
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2517
[9] The relevant provision of NEPA provides that “all
agencies of the Federal Government shall . . . include in every
recommendation or report on . . . major Federal actions signif-
icantly affecting the quality of the human environment, a
detailed statement by the responsible official.” 42 U.S.C.
§ 4332(2)(C). This report, or EIS, considers the environmen-
tal impact of the proposed project.
Not every project necessitates an EIS. Where an EIS is not
categorically required, the agency must prepare an Environ-
mental Assessment to determine whether the environmental
impact is significant enough to warrant an EIS. 40 C.F.R.
§§ 1501.3, 1508.9; Metcalf v. Daley, 214 F.3d 1135, 1142
(9th Cir. 2000). If the action will significantly affect the envi-
ronment, an EIS must be prepared, while if the project will
have only an insignificant effect, the agency issues a FONSI.
40 C.F.R. §§ 1501.3, 1501.4.
[10] NEPA aims to establish procedural mechanisms that
compel agencies, such as the Corps, to take seriously the
potential environmental consequences of a proposed action.
We have termed this crucial evaluation a “hard look.” Kern
v. United States Bureau of Land Mgmt., 284 F.3d 1062, 1066
(9th Cir. 2002). The Corps cannot avoid preparing an EIS by
making conclusory assertions that an activity will have only
an insignificant impact on the environment. See Alaska Ctr.
for Env’t v. United States Forest Serv., 189 F.3d 851, 859 (9th
Cir. 1999). If an agency, such as the Corps, opts not to pre-
pare an EIS, it must put forth a “convincing statement of rea-
sons” that explain why the project will impact the
environment no more than insignificantly. Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1212 (9th
Cir. 1998). This account proves crucial to evaluating whether
the Corps took the requisite “hard look” at the potential
impact of the dock extension. Id.[11] “[A]n EIS must be prepared if ‘substantial questions
are raised as to whether a project . . . may cause significant
2518 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
degradation of some human environmental factor.’ ” Idaho
Sporting Cong. v. Thomas, 137 F.3d 1146, 1149 (9th Cir.
1998) (quoting Greenpeace Action v. Franklin, 14 F.3d 1324,
1332 (9th Cir. 1992)). “To trigger this requirement a ‘plaintiff
need not show that significant effects will in fact occur,’ [but]
raising ‘substantial questions whether a project may have a
significant effect’ is sufficient.” Id. at 1150 (quoting Green-
peace, 14 F.3d at 1332).
The Council on Environmental Quality has adopted regula-
tions governing the implementation of NEPA. In determining
whether a federal action requires an EIS because it signifi-
cantly affects the quality of the human environment, an
agency must consider what “significantly” means. The regula-
tions give it two components: context and intensity. 40 C.F.R.
§ 1508.27. Context refers to the setting in which the proposed
action takes place, in this case Cherry Point. See id.§ 1508.27(a). Intensity means “the severity of the impact.” Id.
§ 1508.27(b).
In considering the severity of the potential environmental
impact, a reviewing agency may consider up to ten factors
that help inform the “significance” of a project, such as the
unique characteristics of the geographic area, including prox-
imity to an ecologically sensitive area; whether the action
bears some relationship to other actions with individually
insignificant but cumulatively significant impacts; the level of
uncertainty of the risk and to what degree it involves unique
or unknown risks; and whether the action threatens violation
of an environmental law. Id. § 1508.27(b)(3), (5), (7), (10).
We have held that one of these factors may be sufficient to
require preparation of an EIS in appropriate circumstances.
See Nat’l Parks & Conservation Ass’n v. Babbit, 241 F.3d
722, 731 (9th Cir. 2001).
The Corps has failed to provide the requisite convincing
statement of reasons explaining why the dock extension
would have only a negligible impact on the environment and
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2519
therefore has left us unpersuaded that it took a “hard look” at
the environmental impact of the dock extension. Moreover,
the permit necessitated an EIS because OA raised a substan-
tial question as to whether the dock extension may cause sig-
nificant degradation of the environment. See Idaho Sporting
Cong., 137 F.3d at 1149.
A. Convincing Statement of Reasons
In granting the 1996 permit, the Corps made a finding of
no significant impact:
Performance of this work, in accordance with the
standard conditions of the permit, will not signifi-
cantly affect the quality of the human environment.
Further, [the Corps has] determined that the issuance
of this particular permit is a Federal action not hav-
ing a significant impact on the environment. [The
Corps has] thus concluded that the preparation of a
formal Environmental Impact Statement is not
required.
This finding fails to provide any reason, let alone a convinc-
ing one, why the Corps refrained from preparing an EIS. The
only portion of the 1996 permit that might be considered a
statement of reasons—if construed quite liberally—is the
Corps’ discussion of the FWS’ concern about the cumulative
impact of the pier extension. We conclude, however, that this
neither qualifies as a statement of reasons nor convinces us
that a comprehensive environmental impact report was unnec-
essary.
[12] The Corps recounted the concerns that the FWS raised,
namely increased tanker traffic that would raise the risk of an
oil spill, and BP’s response to those concerns in the text of the
1996 permit. The Corps then concluded:
The new pier also should reduce the chance of oil
spills during bunkering of tankers at dock, as the
2520 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
ships will be surrounded with containment booms
while moored at the dock. The project will also
reduce turnaround time for tankers at anchorage,
thus reducing the chance for oil spills while at
anchor. The Corps concludes that the proposed facil-
ity should result in a reduction in the chances for oil
spills.
We find this determination unsatisfactory, even if it could be
interpreted as a statement of reasons obviating the need for an
EIS. First, the Corps never explicitly adopted the claim that
the project could result in an increase in tanker traffic, leaving
us to guess whether it took a hard look at, or even considered,
this obvious potential impact. Second, the Corps notes in its
summation of BP’s arguments that the dock “will not lead to
an increase in the [BP] refinery capacity, as the refinery is
already working at maximum capacity.” This statement can-
not possibly qualify as a fully informed and well-reasoned
basis for failing to give more careful attention to the potential
for increased traffic. BP alleged that its refinery was operating
“at capacity,” but the Corps never explicitly adopted or relied
on this contention, and OA later disproved this claim when it
sought to reopen the permit. A patently inaccurate factual
contention can never support an agency’s determination that
a project will have “no significant impact” on the environ-
ment. Third, the Corp relied wholly on BP’s claims that the
project would reduce oil spills because of containment booms
and reduced anchoring time to conclude that the dock exten-
sion would decrease the potential for an oil spill. This claim
alone, without a reasoned evaluation of the potential for
increased traffic, which is at least in part due to the Corps’
erroneous conclusion that the refinery was operating at full
capacity, does not inspire any confidence that the Corps took
the hard look that we require.
[13] The permit extension granted in 2000 proves equally
deficient. Again, the Corps made a finding of no significant
impact:
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2521
[The Corps has] determined that performance of the
work, as revised and extended in accordance with
the conditions of the permit, will not significantly
affect the quality of the human environment. Further,
[the Corps has] determined that the revision and
extension of this particular permit is a Federal action
not having a significant impact on the environment
and thus [has] concluded that the preparation of a
formal Environmental Impact Statement is not
required.
Here, too, the Corps failed to provide any reason why an EIS
was unnecessary. As before, even a generous reading of the
rest of the permitting decision as a statement of reasons sup-
porting the Corps’ decision not to prepare an EIS, fails to con-
vince us that the Corps took the obligatory hard look.
In discussing OA’s concern that the project would have
adverse cumulative effects on the Cherry Point area, the
Corps reasoned:
In the original permit review for the [BP] project, the
Corps made a determination of no significant impact
and determined that an EIS was not necessary. [The
Corps has] again reviewed possible cumulative
impacts of this project and again determined that an
EIS is not necessary to review those cumulative
impacts.
Before coming to this conclusion, the Corps cited to a Biolog-
ical Evaluation (BE) that BP had prepared, which found that
the dock extension would not increase vessel traffic, and a let-
ter from BP stating that only market forces, and not the addi-
tional pier, would increase total vessel traffic. The permitting
decision includes absolutely no discussion about the tenability
or reasonableness of BP’s self-serving claims that the dock
extension would not increase vessel traffic. While the desig-
nation of Cherry Point as an aquatic reserve—an action that
2522 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
prohibited additional terminals in the area—necessarily
reduces the future cumulative impact from all projects in the
area, the Corps still failed to demonstrate in the 2000 permit
extension that it critically evaluated the potential increase in
tanker traffic from the dock extension alone. Common sense
suggests that BP may have hoped that its sizable investment
in the dock would facilitate its ability to handle a greater num-
ber of tankers a day, thereby increasing tanker traffic to the
facility. The Corps’ failure to look through BP’s claims that
it wanted only to increase its efficiency in handling existing
congestion and its consequent failure to consider increased
vessel traffic as a likely result of the project is unreasonable
and insufficiently explained. Given evidence of increasing
tanker traffic throughout the 1990s and BP’s admission that
demand for refined product may increase considerably, the
Corps at a minimum should have analyzed and evaluated
BP’s claims that vessel traffic would not increase.
B. Substantial Question as to a “Significant” Impact on
the Environment
OA has raised a substantial question as to the dock exten-
sion’s potential significant impact on the environment. As just
discussed, the Corps did not consider the potential for
increased tanker traffic when it granted the 1996 permit, other
than to mention—erroneously—in its recitation of BP’s con-
tentions that the dock extension would not result in increased
tanker traffic because the refinery was operating at maximum
capacity. The 2000 permit extension decision did not revisit
this omission, instead relying exclusively on BP’s expedient
assertion that the project would not increase tanker traffic.
[14] Without even considering the factors outlined by the
Council on Environmental Quality, OA has raised a substan-
tial question about the intensity of the impact that increased
tanker traffic would have on Puget Sound; in fact, the “sever-
ity of the impact” would be unquestionably severe. The Corps
ignored record evidence that the dock could not handle much
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2523
additional traffic. In its 1992 permit application, BP noted that
the use of the pier increased incrementally since the mid-
1980s and that the pier was operating at seventy-four percent
of its capacity, a figure it termed “a very high utilization rate
that is considered close to, if not maximum practical utiliza-
tion.” In addition, a report that BP commissioned from an out-
side consultant expected “marine traffic, especially tanker
traffic” to increase upon project completion. Because the new
platform would double the berthing capacity of the dock, this
factor also would contribute to an increase in the number of
vessels able to and actually accessing the refinery. When
added to the other traffic demands on the Cherry Point area,
the cumulation of tanker traffic may well have a significant
impact on the environment, and OA has raised a substantial
question about this effect.
Since BP applied for the permit in 1992, its traffic has
increased. Between 1995 and 1999, the refinery’s throughput
increased by 672,000 gallons per day on average. Tanker traf-
fic accessing the BP refinery cannot continue to increase ad
infinitum, especially if the dock was operating at or near
capacity in 1992. This record evidence raises a substantial
question as to whether the dock extension will result in
increased tanker traffic.
We agree with the Corps and BP that market forces also
would increase tanker traffic to the BP facility. The dock
extension, however, also increases the facility’s ability to han-
dle increased tanker traffic. Were the dock extension never
constructed, BP could handle some additional tanker traffic
caused by increasing market demands. With the dock exten-
sion, though, the BP facility can handle even greater increases
in traffic, should market forces dictate such increases.
Because a “reasonably close causal relationship” exists
between the Corps’ issuance of the permit, the environmental
effect of increased vessel traffic, and the attendant increased
risk of oil spills, the Corps had a duty to explore this relation-
ship further in an EIS. Public Citizen v. Dep’t of Transp., 124
2524 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
S.Ct. 2204, 2215 (Jun. 7, 2004) (quoting Metro. Edison Co.
v. People Against Nuclear Energy, 460 U.S. 766, 774 (1983)).
Increased tanker traffic elevates the risk of oil spills—an
undeniable and patently apparent risk of harm to Puget Sound.
An oil spill could destroy and disrupt ecosystems and kill or
injure critical numbers of threatened and endangered species
that live, and thrive, in the Cherry Point Region. The Corps
failed to appreciate that the permitted activity would lead to
increased tanker traffic, an error about the fundamental nature
and severity of the impact that the dock extension would
have. The obvious severity of the impact that increased tanker
traffic poses is enough to warrant reversal on OA’s NEPA
claim. Were we unconvinced, however, some of the Council
on Environmental Quality factors also demonstrate the signif-
icance of increased tanker traffic on this ecologically sensitive
area, particularly cumulative significant impacts and uncertain
environmental impacts.
i. Cumulatively Significant Impact
[15] The impact of an action is severe “if it is reasonable
to anticipate a cumulatively significant impact on the environ-
ment.” 40 C.F.R. § 1508.27(b)(7). Cumulative impact is
the impact on the environment which results from
the incremental impact of the action when added to
other past, present, and reasonably foreseeable
future actions regardless of what agency . . . or per-
son undertakes such other actions. Cumulative
impacts can result from individually minor but col-
lectively significant actions taking place over a
period of time.
Kern, 284 F.3d at 1075 (quoting Churchill County v. Norton,
276 F.3d 1060, 1072 (9th Cir. 2001)). Moreover, in consider-
ing cumulative impact, an agency must provide “some quanti-
fied or detailed information; . . . [g]eneral statements about
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2525
possible effects and some risk do not constitute a hard look
absent a justification regarding why more definitive informa-
tion could not be provided.” Neighbors of Cuddy Mountain,
137 F.3d at 1379-80 (internal quotation marks omitted). This
cumulative analysis “must be more than perfunctory; it must
provide ‘a useful analysis of the cumulative impacts of past,
present, and future projects.’ ” Kern, 284 F.3d at 1075 (quot-
ing Muckleshoot Indian Tribe v. United States Forest Serv.,
177 F.3d 800, 810 (9th Cir. 1999)). If the Corps’ determina-
tion of cumulative impact is fully informed and well consid-
ered, we should defer to that finding. On the other hand, we
“need not forgive a clear error in judgment.” Kern, 284 F.3d
at 1075 (internal quotation marks omitted).
The question of cumulative impact depends in part on the
Cherry Point refinery and two other existing piers in close
proximity: an aluminum plant and the Ferndale oil refinery.
With these three facilities, not accounting for the dock exten-
sion, an average of fifteen large commercial vessels travel in
the Strait of Georgia each day. Up to ten small boats also use
the Strait daily. At the peak of the fishing season, more than
100 fishing boats also share the same waterways each day.
Approximately 600 ships, including large commercial vessels
and barges, travel to the Ferndale refinery each year, thirty
travel to the aluminum plant, and 200 ships make trips to the
BP pier each year. Another terminal, proposed by Gateway
Pacific, was to be constructed south of the BP refinery and
was expected to increase vessel traffic in the Strait from an
average of two large commercial vessel movements per day
to three per day.
The Corps concluded that the dock extension would not
increase the number of crude oil tankers traveling in the Strait
of Georgia and that any increase of crude oil tanker traffic
would result from market forces, not the dock addition. The
Corps based this conclusion on an unsubstantiated letter from
BP, claiming that it had many options other than sea travel for
transporting crude and refined oil to and from its refinery.
2526 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
[16] This finding fails to convince us that the Corps took
a “hard look” at the cumulative effects of the project,
excludes the requisite quantified or detailed information nec-
essary to support this finding, and neglects to explain why the
Corps could not provide better or more specific information.
In addition, it was reasonably foreseeable when BP applied
for its permit that the dock extension, along with the existing
and proposed projects, could lead to cumulatively significant
environmental impacts.
As mentioned, the Corps did not appreciate the potential
effect of increased tanker traffic. The Corps and BP point out
that the SLERA found that increased vessel traffic would
occur through 2002 regardless of whether the dock extension
was built. Because long-term projections were unavailable,
the authors of the SLERA “assumed that the pier extension
will eventually support an increase in traffic.” Reliance on
this report is misplaced because the WSDNR, the author of
the SLERA, contacted the Corps to clarify that its report was
very narrow in scope, focusing only on the dock extension
and not assessing the cumulative effects of multiple projects.
Even if the SLERA considered the cumulative impact of other
projects in the area, its vague and uncertain analysis of
increased tanker traffic cannot qualify as quantified or
detailed information.
In granting the permit in 1995, the Corps concluded that
neither construction nor operation of the proposed project
would produce oil pollution because the chance of accidental
oil spills already existed before the dock addition. Moreover,
the dock would include high-tech spill containment booms,
and the more efficient operation of the dock would lessen the
chance of oil spills by reducing the time vessels wait to dock
and allowing refueling at the dock. The Corps found that there
would be “a decrease in the chances of oil spills while tankers
are moored at docks,” but made no finding about the risk of
oil spills while tankers traveled to those docks. The Corps did
not provide any reason for ignoring the potential increase in
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2527
tanker traffic or declining to weigh the risk of oil spills while
traveling against the reduced risk of a spill while docked. The
Corps failed to consider how an increase in tanker traffic
might reduce, or even outweigh, the alleged benefits of the
new dock. This comparison would provide crucial informa-
tion for assessing cumulative impacts accurately.
In granting summary judgment for the Corps and BP on
OA’s environmental claims, the district court found that
NEPA did not require an EIS because the pier extension was
intended to alleviate existing tanker traffic, which would
increase due to market forces with or without the extension.
To reach this decision, the district court erroneously deter-
mined that the intent of the dock extension was to deal with
existing traffic and analogized to our decisions in Morongo
Band of Mission Indians v. FAA, 161 F.3d 569 (9th Cir.
1998), and Seattle Community Council Federation v. FAA,
961 F.2d 829 (9th Cir. 1992), where the purpose of the pro-
posed project was to increase efficiency and safety. Ocean
Advocates, 167 F. Supp. 2d at 1212-13. Here, however, nei-
ther the Corps nor BP has proven that the purpose of the pier
extension is primarily to increase efficiency and safety.
Instead, the 1996 permit states that the “Need and Purpose”
of the project is to “expand a petroleum product loading/
unloading facility.” Neither the 2000 amended permitting
decision nor BP’s form application for a permit indicates that
the central purpose of the project is to increase safety or effi-
ciency. Morongo and Seattle Community Council Federation
are also distinguishable because neither case dealt with any
change in ground capacity. In both cases, the increased flight
volume was a function of new routes into the same airport ter-
minal, whereas in this case whatever increase in tanker traffic
may occur results from the expansion of the pier itself.
Finally, our cases applying a “growth-inducing” analysis to
highway construction projects do not require a different
result. In City-of-Carmel-By-The-Sea v. U.S. Department of
Transportation, 123 F.3d 1142 (9th Cir. 1997), we held that
2528 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
a proposal to build a new bridge, two new interchanges, and
to widen an intersecting road was necessitated by existing
development and did not require further analysis in the EIS
because whatever growth may occur was already accounted
for and analyzed by local officials planning documents. Id. at
1162-63. Here, by contrast, even if we found that the pier
expansion was necessitated by existing development, the fore-
seeable growth in tanker traffic has not been accounted for in
any other planning documents.
[17] The Corps’ findings about cumulative impacts were
perfunctory and conclusory and do not provide a helpful anal-
ysis of past, present, and future projects. See Kern, 284 F.3d
at 1075. OA has raised a substantial question as to whether
the pier addition would result in cumulatively significant neg-
ative environmental impacts, and the Corps clearly erred in
not providing responsive quantified or detailed information.
ii. Uncertainty
Where the environmental effects of a proposed action are
highly uncertain or involve unique or unknown risks, an
agency must prepare an EIS. 40 C.F.R. § 1508.27(b)(5); Nat’l
Parks, 241 F.3d at 731-32. “Preparation of an EIS is man-
dated where uncertainty may be resolved by further collection
of data or where the collection of such data may prevent
‘speculation on potential . . . effects. The purpose of an EIS
is to obviate the need for speculation . . . .’ ” Nat’l Parks, 241
F.3d at 732 (quoting Sierra Club v. United States Forest
Serv., 843 F.2d 1190, 1195 (9th Cir. 1998)) (citation omitted)
(alteration in original).
The amount that tanker traffic might increase in relation to
the dock extension was largely unknown. Presumably, data
collection or projection analysis could have determined the
likely increase in tanker traffic, considering market forces, the
dock extension, and the cumulative impact of the existing and
pending facilities in the area. No such analysis is evident in
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2529
the EA, nor is there a “ ‘justification regarding why more
definitive information could not be provided.’ ” Blue Moun-
tains, 161 F.3d at 1213 (quoting Neighbors of Cuddy Moun-
tain, 137 F.3d at 1380). The Corps’ “lack of knowledge does
not excuse the preparation of an EIS; rather it requires [the
Corps] to do the necessary work to obtain it.” Nat’l Parks,
241 F.3d at 733. Concluding that a general risk, but not one
attendant to the pier, exists, does not qualify as a hard look
that would allow the Corps to skirt preparing an EIS.
Our recent decision in Public Citizen supports this holding.
316 F.3d at 1024-26. That case involved various Department
of Transportation (DOT) regulations that would allow Mexi-
can trucks to operate in the United States pursuant to NAFTA.
Id. at 1009. We held that while all the parties had reason to
believe that increased traffic would occur, the EA did not
explore the reasons for the additional traffic, for example,
whether the proposed agency action or a different cause
would prompt an increase in traffic. Id. at 1025. DOT argued
that any increases in traffic would depend on international
trade agreements, not on the regulations, just as BP and the
Corps maintain that increased tanker traffic depends only on
market forces and not the additional pier. Id. DOT also argued
that the proposed regulation likely would decrease air pollu-
tion, while BP and the Corps insist that the pier extension will
reduce the risk of oil spills. Id. We rejected both arguments.
[18] The Corps’ position was based entirely on BP’s unsup-
ported assertions, and the record reflects no convincing reason
for the Corps’ decision. The Corps should have realized that
uncertainty surrounded the potential for increased traffic
based on the undetermined additional berthing capacity at the
BP refinery, the magnitude of this change and its relationship
to the increased risk of oil spills, and unknown, long-term
projections for increased traffic and the risk of an oil spill. OA
has raised a substantial question about these uncertainties, and
the Corps acted arbitrarily and capriciously in failing to gather
this quantifiable data.
2530 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
C. Remedy
The fact that BP has completed construction of the dock
extension does not alter our conclusion, as we can fashion an
appropriate remedy. OA asks us to “order the corps to prepare
an EIS that takes a ‘hard look’ at the direct, indirect, and
cumulative impacts from any reasonably foreseeable increase
in vessel traffic resulting from the facility.” In addition, OA
seeks injunctive relief, suggesting that we “direct the district
court to issue an injunction freezing any vessel traffic to and
from the facility at pre-2000 levels pending completion of the
NEPA process.” While NEPA is a procedural statute designed
to avoid substantive environmental harms before they take
place, and while the new platform is now fully functioning,
OA challenges only the operation of the new platform and not
its construction. OA conceded at oral argument that it did not
seek destruction of the dock extension, but rather, sought a
serious inquiry by the Corps into the extent to which the plat-
form’s operation would increase vessel traffic.
[19] Although construction of the dock extension is now
complete, the Corps may impose conditions on the operation
of permitted terminals at any time “to satisfy legal require-
ments or to otherwise satisfy the public interest.” 33 C.F.R.
§ 325.4(a); see also id. § 325.6(b). If, for example, the Corps
determined on remand that the operation of the dock may
result in significant degradation of the environment, the Corps
could impose restrictions on the operation of the dock or
require other mitigating measures. Thus, requiring an EIS
would remedy OA’s harm. We decline to reach a decision on
injunctive relief. Instead, we remand to the district court to
consider this question in the first instance, including whether
OA has made the requisite showing for injunctive relief, what
harm BP may suffer under an injunction, and the impact of
such an injunction on the public.
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2531
IV. Magnuson Amendment
A. Statutory Text and Interpretation
[20] The Magnuson Amendment mandates that
[N]o officer, employee, or other official of the Fed-
eral Government shall, or shall have authority to,
issue, renew, grant, or otherwise approve any permit,
license, or other authority for constructing, renovat-
ing, modifying, or otherwise altering a terminal,
dock, or other facility in, on, or immediately adja-
cent to, or affecting the navigable waters of Puget
Sound, or any other navigable waters in the State of
Washington east of Port Angeles, which will or may
result in any increase in the volume of crude oil
capable of being handled at any such facility (mea-
sured as of October 18, 1977), other than oil to be
refined for consumption in the State of Washington.
33 U.S.C. § 476(b). No court has interpreted the Magnuson
Amendment yet, making this case one of first impression.
“When constructing statutory language, we look first to its
plain meaning.” Local Joint Exec. Bd. of Culinary/Bartender
Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1157
(9th Cir. 2001). The Supreme Court has “stated time and
again that courts must presume that a legislature says in a stat-
ute what it means and means in a statute what it says there.”
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54
(1992). We should look at the plain meaning of the entire stat-
ute, in context, rather than the meaning of isolated sentences.
See Beecham v. United States, 511 U.S. 368, 372 (1994); see
also Edelman v. Lynchburg College, 535 U.S. 106, 120-21
(2002) (“It is a fundamental canon of statutory construction
that the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.”
2532 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
(quoting Davis v. Mich. Dep’t. of Treasury, 489 U.S. 803, 809
(1989))).
i. “Any Such Facility”
[21] First, we must discern what “any such facility” means.
“Any such facility” refers back to the phrase “terminal, dock,
or other facility,” which appears earlier in the statute. “Any
such facility” here includes the entire terminal or facility—
BP’s self-termed Cherry Point Marine Terminal—not just the
proposed northern dock extension by itself. When analyzing
capacity, courts should therefore not look to the capacity of
the refinery, but rather to the capacity of the terminal. Such
an understanding is supported by the legislative history of the
amendment; just before passage of the amendment, Senator
Magnuson remarked: “In fact, the amendment only applies to
construction or alteration of dock facilities in the Puget Sound
region, not to refineries as such.” 123 Cong. Rec. at 32,910.
ii. “Volume of Crude Oil Capable of Being Handled”:
Capabilities of the New Platform
[22] Regardless of BP’s stipulation to prohibit the use of
the dock extension for loading or unloading crude oil, the
Corps may nevertheless have violated the Magnuson Amend-
ment by issuing the permit if the permit otherwise allows for
an increase in the volume of crude oil capable of being han-
dled at the terminal. First we consider the question of whether
the new platform can handle crude oil, both as a legal and a
factual matter.
BP has maintained that the new platform cannot handle
crude oil: “The pier addition is neither designed nor permitted
for offloading crude oil, and as such has no crude handling
capability.” The district court made a number of relevant find-
ings in this regard. The district court determined that the per-
mit allowed for the construction of a “petroleum product
loading/unloading facility,” which, by definition, excludes the
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2533
use of the facility for crude oil: “ ‘[P]etroleum product’ does
not apply to crude oil because the very definition of crude oil
is that it is oil to be refined. Petroleum product must necessar-
ily exclude crude oil, which is not a ‘product’ at all.”
We find that the district court’s ruling in this respect was
erroneous. It appears as though the district court was citing to
the following portion of the permit:
Project Description: Construct a pier addition; install
dolphins and buoys in accordance with the plans and
drawings attached hereto which are incorporated in
and made a part of this permit (petroleum product
loading/unloading facility).
For one thing, it is not clear whether the parenthetical phrase
at the end of the “Project Description” was intended to be, or
actually is, a substantive, legal limitation on the use of the
new platform. Additionally, the fact that the relevant language
of the permit states “loading/unloading facility” provides
some evidence that the permit envisioned the use of the new
platform for offloading crude. While it certainly is possible
that tankers could offload refined product at the refinery, the
evidence suggests that crude oil is traditionally offloaded
from, while refined product is traditionally loaded onto, tank-
ers.
Moreover, in the Corps’ Permit Evaluation and Decision
Document, the “Need and Purpose” of the project is set forth
as follows: “To expand a petroleum product loading/
unloading facility.” This indicates the Corps’ understanding
that the old platform (which undisputedly allows for crude
offloading) was part of a “petroleum product loading/
unloading facility”; apparently no further linguistic qualifica-
tion was necessary to establish the fact that the old platform
could be (and was) used for crude oil. This use of the termi-
nology indicates that the Corps was not drawing a clear line
between a platform that can handle crude oil offloading and
2534 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
a “petroleum product loading/unloading facility.” A more rea-
sonable interpretation is that the Corps understood the entire
dock and its platforms to qualify, generally, as a petroleum
product loading/unloading facility. Therefore, it is not at all
clear that the terms of the permit limit BP’s use of the new
platform.
If the new platform in fact is physically incapable of han-
dling crude oil, the relevant question is: What would be
required to enable it to handle crude oil? In this respect, the
history of the dock is significant. BP was granted a permit in
1969 to build essentially what it now has—a two-platform
dock with one platform devoted to unloading crude and
another devoted to shipping refined product. When the con-
struction took place two years later, BP decided to build only
one of the two platforms and to defer construction of the sec-
ond platform. In its environmental report, BP indicates that
hardware modifications were necessary to convert the single
platform into a dual-use platform: “Crude and product pipe-
lines were redesigned to allow for dual utilization of the
southern platform.” If BP is now free to make modifications
(to the extent they are required) to the new platform to allow
it to handle crude, then the Corps’ permit, in effect, may have
increased the ability of the facility to handle crude oil.5
Based on the above discussion, we remand this case to the
district court to answer the following questions:
1. Is it physically possible for the new platform to
handle crude oil today?
2. Is it physically possible to modify the new plat-
form such that it could handle crude oil, without
requiring additional permitting?
5
The Corps argues that “there is no danger that the new dock will sud-
denly be modified to accommodate crude oil because Corps permits must
be strictly complied with.” However, as outlined above, we do not find
that the permit limits use in the way that the Corps contends.
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2535
If the answer to either of these questions is “yes,” then the
permit violates the Magnuson Amendment. As to the first
question, clearly, if it is physically possible for the new plat-
form to handle crude oil today, the terminal’s capacity to han-
dle crude oil has been increased. As to the second question,
if the modifications that may be necessary to allow the new
platform to handle crude oil do not require additional permit-
ting, then the permit that allowed the new platform’s con-
struction effectively permitted an increase in the terminal’s
ability to handle crude oil. The Magnuson Amendment’s use
of “will or may” mandates this result, see 33 U.S.C. § 476(b)
(emphasis added); this puts a very heavy burden on BP and
the Corps, as they must prove that the new platform cannot
possibly be used to handle crude oil without the issuance of
an additional permit.
iii. “Volume of Crude Oil Capable of Being Handled”:
Berthing Limitations
A related issue is the way in which the modifications to the
terminal may have altered the terminal’s berthing capacities,
which must be taken into account when determining whether
the permit increased the volume of crude oil capable of being
handled at the terminal. The Corps and BP conceded at oral
argument that, in enacting the Magnuson Amendment, Con-
gress could not have meant to restrict “the volume of crude
oil capable of being handled” to the sheer theoretical hydrau-
lic or pumping capacity of BP’s terminal facility. The Corps
admitted that a determination of the terminal’s capacity as of
October 18, 1977, which the Magnuson Amendment uses as
a benchmark, would properly include berthing capacity as a
limiting factor. BP also pointed out that although the terminal
had the theoretical hydraulic or pumping capacity to unload
more than one million barrels of crude oil per day, the facility
could move only one boat in to dock and one boat out of the
facility each hour, substantially limiting its actual unloading
capability. In determining whether the permit violated the
Magnuson Amendment, then, the district court should also
2536 OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS
consider how the modifications to the terminal affected berth-
ing capacity.
If the alterations to the terminal authorized by the permit
increased the potential berthing capacity for purposes of
unloading crude oil, then the permit violated the Magnuson
Amendment. In other words, if the permit increased berthing
capacity such that more ships carrying crude oil can arrive
and leave the terminal in a given day, then, ceteris paribus,
the permit increased the volume of crude oil capable of being
handled at the facility. Therefore, we remand to the district
court to answer the following question:
1. Did the modifications authorized by the permit
increase the potential berthing capacity of the
terminal for tankers carrying crude oil?
If the answer to this question is “yes,” then the permit violates
the Magnuson Amendment. We recognize that the answer to
this question may well be bound up with the answers to the
previous questions that we have directed to the district court.
[23] We decline to speculate as to whether BP’s stipulated
restriction on its use of the terminal may be an adequate rem-
edy, should a violation of the Magnuson Amendment be
found by the district court on remand. If a violation is found,
the district court should determine whether the stipulation is
an adequate remedy, and, if not, what further remedial mea-
sures are necessary.
CONCLUSION
[24] For the foregoing reasons, we AFFIRM the district
court’s denial of BP’s motion for summary judgment on the
grounds that OA lacked standing and that laches bars this
action. We REVERSE the district court’s denial of OA’s sum-
mary judgment motion on NEPA and Magnuson Amendment
grounds. We REMAND this case to the district court with
OCEAN ADVOCATES v. U.S. ARMY CORPS OF ENG’RS 2537
instructions to remand to the Corps so that it can (1) prepare
a full EIS considering the impact of reasonably foreseeable
increases in tanker traffic, and (2) reevaluate the dock exten-
sion’s potential violation of the Magnuson Amendment. The
district court should direct the Corps to revoke the permit or
place conditions on the operation of the dock extension if nec-
essary to ensure compliance with the law. 33 C.F.R.
§ 325.4(a); see also 33 C.F.R. § 325.6(b). We also REMAND
this case to the district court to consider OA’s request for
injunctive relief. On remand on this question, the district court
should conduct an evidentiary hearing to consider whether the
pier extension would increase vessel traffic beyond the
increase produced by market forces and what harms BP may
suffer under an injunction.
The opinion of the district court is
REVERSED in part, AFFIRMED in part, and
REMANDED.