offshore drilling

Ninth Circuit Affirms EPA Decision to Issue Permits for Offshore Drilling in Alaska

Matthew L.M. Fletcher

Here is the opinion in Resisting Environmental Destruction on Indigenous Lands v. EPA.

From the court’s syllabus:

The panel denied a petition for review, and upheld a decision of the Environmental Protection Agency granting two air permits authorizing exploratory drilling operations in the Arctic Ocean by a drillship and its associated fleet of support vessels.The panel upheld the EPA’s statutory and regulatory interpretations. Specifically, the panel held that the Clean Air Act is ambiguous as to the applicability of the best available control emissions to support vessels not attached to an Outer Continental Shelf source, and concluded under Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984), deference that the EPA’s construction of the statute was permissible and reasonable. The panel also held that the EPA’s grant of a 500 meter ambient air exemption was not plainly erroneous or inconsistent with the EPA’s regulations.

Related opinion from last December here.

D.C. Circuit Halts Plans for Off-Shore Oil Drilling in Alaska

Matthew L.M. Fletcher

Here is the opinion in Center for Biological Diversity v. Dept. of Interior. Here is the brief for the Native Village of Point Hope — native-village-of-point-hope-reply-brief

An excerpt:

In August 2005, the United States Department of Interior (Interior) began the formal administrative process to expand leasing areas within the Outer Continental Shelf (OCS) for offshore oil and gas development between 2007 and 2012. This new five-year Leasing Program included an expansion of previous lease offerings in the Beaufort, Bering, and Chukchi Seas off the coast of Alaska. Petitioners filed independent petitions for review challenging the approval by the Secretary of the Interior (Secretary) of this Leasing Program on various grounds. Specifically, Petitioners argue that: (1) the Leasing Program violates both the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. §§ 1331-1356a, and the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370f, because Interior failed to take into consideration both the effects of climate change on OCS areas and the Leasing Program’s effects on climate change (the climate change claims); (2) the Leasing Program also violates both OCSLA and NEPA because Interior approved the Program without conducting sufficient biological baseline research for the three Alaskan seas, and further failed to provide a research plan detailing how it would obtain this baseline data before the next stage of the Program; (3) Interior violated the Endangered Species Act of 1973(ESA), 16 U.S.C. §§ 1531-1544, by failing to consult with either the U.S. Fish and Wildlife Service (Fish and Wildlife) or the National Marine Fisheries Service (NMFS) about potential harm to endangered species in the OCS planning areas before it adopted the Leasing Program; and (4) the Leasing Program violates OCSLA because it irrationally relied on an insufficient study by the National Oceanographic and Atmospheric Administration (the NOAA study) in assessing the environmental sensitivity of the OCS planning areas in the Leasing Program. We hold that Petitioners’ NEPA-based climate change claim, Petitioners’ NEPA baseline data claim, and Petitioners’ ESA claim are not yet ripe for review. We therefore dismiss the petition with respect to these claims.

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