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Center for Biological Diversity v. Bernhardt

ELR Citation: 50 ELR 20259
Nos. 18-73400, (9th Cir., 12/07/2020)

The Ninth Circuit vacated the Bureau of Ocean Energy Management’s (BOEM’s) approval of an offshore drilling and production facility in the Beaufort Sea. Environmental groups argued that BOEM violated NEPA by arbitrarily and capriciously estimating the environmental consequences of the alternatives included in its EIS, that FWS violated the ESA and the Marine Mammal Protection Act by producing a legally inadequate biological opinion (BiOp), and that BOEM violated the ESA by relying on FWS’ unlawful BiOp to approve the facility. The court found that BOEM acted arbitrarily and capriciously by failing to quantify the emissions resulting from foreign oil consumption in its EIS as required by NEPA, and that FWS violated the ESA by relying upon uncertain, nonbinding mitigation measures in reaching its no-adverse-effect conclusions in the BiOp and failing to estimate the facility’s amount of nonlethal take of polar bears. It further found that because FWS’ BiOp was flawed and unlawful, BOEM’s reliance on the opinion was arbitrary and capricious. It therefore vacated BOEM’s approval of the facility and remanded to the agency for further proceedings.