A Recent Climate Change Attack

Abandoned farm house in a megadrought setting sorrounded by sand dunes. Courtesy of DOE.

NRS | Federal Lands | Mineral and Petroleum Resources | The Five-Year Program in the Courts

The only challenge to the Secretary’s five year program in this century occurred in 2009, when environmental groups turned their focus to the issue of climate change.  Their challenge on this issue, however, was attenuated.  For the five-year plan challenged in Center for Biological Diversity v. U.S. Dept. of Interior, 563 F.3d 466 (D.C. Cir. 2009), the Secretary had indeed estimated the total amount of greenhouse gas emissions that would result from leasing, exploration, and development in the Outer Continental Shelf(“OCS”), and examined the cumulative impact of these emissions both on the global environment, and on the compared planning areas, noting the severity of the potential impacts on the region affecting Alaska, which was the focus of petitioners’ claims.  See Id. at 486.  Petitioners’ claim that the Secretary was required not only to consider the impacts from production, as he had done, but also the impacts from consumption, was rejected by the Court on three related grounds. 

First, the Court reasoned that because Congress had mandated in the Outer Continental Shelf Lands Act Amendments of 1978(“OCSLAA”) that OCS oil and gas be developed expeditiously, it was not in the Secretary’s purview to examine “whether it should extract oil and gas from the OCS at all.” Id. at 485.  In its more particularized analysis, the Court held that the OCSLAA’s express direction to examine “the relative impacts of production and extraction of oil and gas on the localized areas in and around where the drilling and extraction occurred,” as set forth in 43 U.S.C. § 1344(a), provided no authority to examine the impacts of consumption. Id. at 484-85.  Finally, the Court pointed out that no examination of consumption could conceivably impact scheduling of the location and timing of leasing among the various areas, since consumption would be unaffected regardless of where the oil was produced.  Id. at 485.

A Statutory Interpretation Failing

The Court’s holding on one of petitioners’ claims, however, established that although the Watt precedents afforded the Secretary broad discretion in choosing methodologies for the comparative analysis of the regions, the choice of proxy analyses which limited the examination called for by the statute would not be countenanced.  Here the Secretary had ranked the “different areas of the outer Continental Shelf” according to their “relative environmental sensitivity,” see 43 U.S.C. § 1344(a)(2)(G), by referring to the sensitivity of their shorelines to oil spills, as established by an Environmental Sensitivity Index promulgated by the National Oceanic and Atmospheric Administration. Id. at 487.  The Secretary argued that given that the statute provided no method for measuring environmental sensitivity, citing State of Cal. By and Through Brown v. Watt, 668 F.2d 1290, 1311 (D.C. Cir. 1981) (“Watt I”), his method was, under the Watt I and State of Cal. By and Through Brown v. Watt, 712 F.2d 584, 591-94 (D. C. Cir. 1983) (“Watt II”) precedents, a policy judgment entitled to deference. 

The Court was not convinced.  Aware that prior precedents required it to find the methodology “irrational,” see Center, 563 F.3d at 488, the Court found that the command to evaluate the sensitivity of outer continental shelf areas could not be satisfied by examining only their comparative onshore effects, at least without an “explanation for how the environmental sensitivity of coastal shoreline areas can serve as a substitute for the environmental sensitivity of OCS areas, when the coastline and proposed leasing areas are so distant from each other.” Id.  Reverting to the perspective of Watt I, the Court cautioned:

….[T]hough Watt II and Watt I afforded Interior a great deal of leeway in determining how to comply with Section 18(a)(2)(G), they did not give Interior carte blanche to wholly disregard a statutory requirement out of convenience.1Id

And consistent with the approach spelled out in Watt I, the flaw in the Secretary’s consideration of the relative environmental sensitivity factor under Section 18(a)(2) carried over and invalidated his scheduling decision, because it could not then be concluded that the schedule would reflect  “a proper balance between the potential for environmental damage, potential for the discovery of oil and gas, and the potential for adverse impact on the coastal zone,” as required by Section 18(a)(3).  Id. Whether the Environment and Natural Resources Division will see more legal challenges to five-year programs will depend on how the Government resolves the pressing issue of opening leasing on OCS areas which have been off limits for the past two decades, either by being withdrawn by the President under Section 12 of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1341, or through moratoria instituted by Congress. For an example of how ENRD defended against a challenge to an OCS lease sale, see Lease Sale Litigation – Environment and Natural Resources Division (“ENRD”) Attorneys on the Firing Line.


1The Court’s holding is not inconsistent with Watt II’s validation of using oil spill impacts to gauge the relative environmental sensitivity of the regions, for in that instance the Secretary examined impacts on both coastal and marine habitats within the planning areas. See Watt II, 712 F. 2d at 595-07.

 

 

Updated May 12, 2015

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