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Alaska Wilderness League v. Jewell

ELR Citation: 45 ELR 20112
Nos. 13-35866, (9th Cir., 06/11/2015)

The Ninth Circuit upheld the Bureau of Safety and Environmental Enforcement's (BSEE's) approval of oil spill response plans for an oil company's leases in the Beaufort and Chukchi Seas on Alaska's Arctic coast. Several environmental groups claimed that BSEE's approval was arbitrary and capricious under the APA. According to environmental groups, the company assumed that, in the event of a worst-case discharge, it would achieve a mechanical recovery of 90 to 95% of any oil spilled in the Arctic Ocean–an assumption that the groups characterize as unrealistic and unsupported. But the groups misread the record, which shows that the company never assumed such a recovery rate. And even assuming that it did, BSEE did not rely on any such assumption in approving the response plans. The groups also claimed that BSEE should have engaged in ESA consultation before approving the plans, but BSEE's approval of the plans was a nondiscretionary act that did not trigger a requirement for interagency consultation. BSEE reasonably interpreted the relevant CWA provisions to conclude that Congress limited the Bureau's discretion to only reviewing an oil spill response plan to determine if it met the six enumerated requirements of CWA §311(j)(5)(D), and the implementing regulations. Once the agency determined that the oil spill response plans satisfied statutory requirements, it lacked discretion to deny approval. The groups also claimed that the BSEE violated NEPA by failing to prepare an EIS before approving the plans. But again, BSEE reasonably concluded that it must approve any plan that met the statutory requirements of the CWA. Accordingly, the BSEE's approval of the plans was not subject to NEPA.