Court Order: Fisheries Survival Fund v. Jewell

 

An agency’s NEPA obligations mature “only once it reaches a ‘critical stage of a decision which will result in irreversible and irretrievable commitments of resources to an action that will affect the environment.’” CBD, 563 F.3d at 480 (quoting Wyoming Outdoor Council v. United States Forest Service, 165 F.3d 43, 49 (D.C. Cir. 1999) (“Wyo. Outdoor Council II”)). Cases involving multiple-stage leasing programs—arising in the oil and gas context—indicate that an agency reaches this critical stage when it “no longer retain[s] the authority to preclude all surface disturbing activities subsequent to issuing an oil and gas lease,” such that “an EIS assessing the full environmental consequences of leasing must be prepared before commitment to any actions that might affect the quality of the human environment.” Wyo. Outdoor Council II, 165 F.3d at 49 (alteration in original) (quoting Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 1983)); see also Conner v. Burford, 848 F.2d 1441, 1451 (9th Cir. 1988) (“[U]nless surfacedisturbing activities may be absolutely precluded, the government must complete an EIS before it makes an irretrievable commitment of resources . . . .”). In other words, lease issuance triggers NEPA obligations unless the issuing agency “retain[s] the authority to preclude all surface disturbing activities.” Wyo. Outdoor Council II, 165 F.3d at 49.

 

Though the parties agree that the above legal standard is appropriate, they disagree on how it should be applied. Plaintiffs contend that to avoid making an irreversible commitment of resources, the agency making a lease sale must unilaterally retain “the absolute right to prevent all surface-disturbing activity.” ECF No. 48 at 22 (quoting Conner, 848 F.2d at 1449) (emphasis in original). They argue that BOEM does not retain the absolute right because its ability to cancel a lease is limited by lease criteria and Statoil’s regulatory compliance. ECF No. 48 at 11– 12. Defendants respond that the lease language establishes BOEM’s absolute authority to preclude activity in the leased area, that Plaintiffs misunderstand the applicable legal standard in contending otherwise, and that “because BOEM retains the authority to deny a [Construction and Operations Plan], the issuance of the lease to Statoil was not an irreversible and irretrievable commitment of resources.” ECF No. 53 at 14, 15. In the court’s view, the applicable regulations and the terms of the lease preclude Statoil from engaging in any construction activities, and vest complete authority in BOEM to preclude such activity in the leased area before the Construction and Operations Plan is approved. Therefore, issuing the lease does not constitute an irreversible and irretrievable commitment of resources. See Wyo. Outdoor Council II, 165 F.3d at 49. Accordingly, Plaintiffs’ NEPA claims must be dismissed as unripe at this stage. 

 

On its own, the lease at issue does no more than grant Statoil the exclusive right to submit a Site Assessment Plan and Construction and Operations Plan to BOEM for approval. NYAR0046754. No activity is permitted absent the submission and approval of these plans, NYAR0046754, and the lease provides that (1) “[the] lease does not, by itself, authorize any activity within the leased area,” (2) “the Lessor will decide whether to approve a SAP or COP in accordance with the applicable regulations in 30 CFR Part 585,” and (3) “the Lessor retains the right to disapprove a SAP or COP based on the Lessor’s determination that the proposed activities would have unacceptable environmental consequences . . . .” NYAR-0046754. Moreover, BOEM regulations provide that a lease can be cancelled if, after “notice and opportunity for a hearing,” BOEM determines that “continued activity under the lease or grant”: 

 

(i) Would cause serious harm or damage to natural resources; life (including human and wildlife); property; the marine, coastal, or human environment; or sites, structures, or objects of historical or archaeological significance; and

(ii) That the threat of harm or damage would not disappear or decrease to an acceptable extent within a reasonable period of time; and

(iii) The advantages of cancellation outweigh the advantages of continuing the lease or grant in force. 

 

30 C.F.R. § 585.437(b)(4)(i)–(iii).

 

The thrust of Plaintiffs’ first argument is that BOEM’s authority to preclude activity in the wind farm area cannot be absolute if it is subject to conditions, and that the criteria set forth above are conditions. Thus, Plaintiffs argue, the lease represents a commitment of resources, and therefore their NEPA claims are ripe. See Conner, 848 F.2d at 1449–50 (noting that leases permitting surface-disturbing activities subject to conditions do not retain authority to absolutely preclude activities and, therefore, constitute a commitment of resources); Peterson, 717 F.2d at 1412, 1414–15 (same).

 

Though it is true that the criteria may be “conditions” in the sense that BOEM must make certain findings—after notice and an opportunity for a hearing—before disapproving a Construction and Operations Plan and/or cancelling a lease, it does not necessarily follow that “BOEM’s own regulations preclude BOEM from changing its mind unilaterally.” ECF No. 48 at 20. That is because none of the “conditions” at issue involve or presuppose any transfer of authority to prevent lease activities out of BOEM’s hands, which was not the case with the leases in Peterson and Conner.