Environmental Assessment (EA)

Subscribe to Environmental Assessment (EA)

The Ninth Circuit vacated U.S. Department of the Interior approvals for a proposed offshore oil drilling and production facility in Alaska after finding its EIS improperly failed to consider impacts associated with foreign oil consumption and the U.S. Fish and Wildlife Service’s Biological Opinion relied on overly vague mitigation measures and improperly failed to quantify the project’s nonlethal take of polar bears. Center for Biological Diversity v. Bernhardt, 982 F.3d 723 (9th Cir. 2020).

Conservation groups challenged the Bureau of Ocean Energy Management’s (BOEM) approval of the “Liberty Project,” which proposes to produce crude oil from Foggy Island Bay off the northern coast of Alaska, for failure to comply with procedural requirements of NEPA, the ESA, and the Marine Mammal Protection Act (MMPA).  Project proponents estimated that the Project would produce approximately 120 million barrels of crude oil over a period of fifteen to twenty years.  To do so, the Project would require construction of various new facilities including an offshore gravel island, wells, a pipeline to transport the oil, a gravel mine, and additional ice roads and crossings. The Project site is characterized by its ecological diversity and for providing habitat and food sources for threatened and endangered marine mammals, including polar bears.

EIS That Failed to Address Greenhouse Gas Emissions Resulting from Foreign Oil Consumption Violated NEPA

The Ninth Circuit was persuaded by one of two arguments raised by the conservation groups concerning BOEM’s compliance with NEPA.  The court held that BOEM had failed to analyze “indirect effects” of the Project as required by NEPA by arbitrarily failing to include emissions estimates resulting from foreign oil consumption in its analysis of the Project’s no-action alternative. Counterintuitively, the EIS had concluded that maintaining the status quo under the no-action alternative would result in greater air emissions of priority pollutants as compared with the Project because, BOEM said, the production gap would be filled with substitutes produced from countries with “comparatively weaker environmental protection standards.” However, the EIR did not quantify the purported change in foreign oil consumption. BOEM argued that it could not have summarized or estimated foreign emissions associated with changes in foreign consumption with accurate or credible scientific evidence.

The court rejected BOEM’s failure to either quantify downstream greenhouse gas emissions or to “thoroughly explain why such an estimate is impossible.” The court specifically faulted the EIR for failing to “summarize existing research addressing foreign oil emissions” and for ignoring “basic economics principles,” including changes to equilibrium price and demand effects of the Project. Moreover, the court declined to accord deference to BOEM’s economic analysis of greenhouse gas emissions, stating that “BOEM’s area of expertise is the management of ‘conventional (e.g. oil and gas) and renewable energy-related’ functions, including ‘activities involving resource evaluation, planning, and leasing.’” Based on these findings, the court found that the BOEM’s failure to address global emissions constituted an impermissible failure to evaluate reasonably foreseeable environmental impacts required to be analyzed under NEPA.
Continue Reading EIS and Biological Opinion Invalidated for Offshore Alaska Oil Project

Courts reviewing an agency’s environmental assessment under NEPA may not speculate about potential significant environmental effects that are not supported by the record — they must defer to the agency’s reasonable conclusions when they are supported by evidence in the record, especially on issues within the agency’s area of expertise. Bair v. California Department of Transportation, 982 F.3d 569 (9th Cir. 2020).

This decision is the latest in long-running litigation challenging Caltrans’s plans to improve a one-mile section of U.S. 101 through Richardson Grove State Park. In its current condition, the highway section is closed to industry-standard trucks (known as “STAA” trucks because they are authorized by the Surface Transportation Assistance Act of 1982); only shorter “California Legal” trucks are permitted. To safely accommodate STAA trucks, the project would slightly widen the roadway and straighten some curves.

Caltrans issued an Environmental Assessment and Finding of No Significant Impact. (Caltrans assumed the role of federal lead agency for the project pursuant to the NEPA assignment program.) The plaintiffs filed a lawsuit in federal district court, alleging, among other claims, that the EA failed to adequately analyze the project’s effects on old-growth redwood trees and park visitors, and that Caltrans should have prepared an environmental impact statement because the project would have significant environmental effects. The district court ruled that the EA was inadequate and ordered Caltrans to prepare an EIS for the project.

The Ninth Circuit reversed, holding that the district court did not give appropriate deference to Caltrans’s conclusions and improperly relied upon inferences and speculation about environmental effects that were unsupported by the record.
Continue Reading Ninth Circuit Upholds Environmental Assessment for Highway Project in State Park

The Ninth Circuit has rejected a claim, under the National Environmental Policy Act, that the Navy did not adequately consider the environmental consequences of a potential terrorist threat to the redevelopment of a military complex near downtown San Diego.  The opinion upheld the Navy’s Environmental Assessment for the complex, which concluded that the project would not create the potential for a significant impact from a terrorist attack. San Diego Navy Broadway Complex Coalition v. United States Department of Defense, No. 12-57234 (9th Cir. March 30, 2016).

Background

The Navy first approved the redevelopment of the complex in 1991.  The project included both military functions and private commercial uses to generate revenue.  However, adverse real estate conditions in San Diego delayed the project until the mid-2000s.  In 2006, the Navy prepared an EA for the project to supplement its prior NEPA analysis from the early 1990s, and it executed a lease with a private development partner.  But a citizens group filed a NEPA lawsuit, and the district court ruled that the Navy had failed to provide adequate public notice for the EA.

In response, the Navy prepared a new EA and reapproved the project in 2009.  The new EA included a discussion of a potential terrorist attack, due to the Ninth Circuit’s ruling in San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir. 2006), which had held that a categorical dismissal of the potential impacts from a terrorist attack at an installation built to store spent nuclear fuel rods was unreasonable under NEPA.  The Navy’s new EA concluded that a terrorist attack at the complex in San Diego was too speculative and remote to require NEPA analysis, since there was no known specific threat targeting the complex or its location.  The EA also explained that anti-terrorism building specifications would be followed to reduce the risks posed by a potential terrorist attack.  The EA thus concluded that the project would not place military or civilian personnel in jeopardy and would not result in a significant impact under NEPA.
Continue Reading Ninth Circuit Rules Navy Satisfied NEPA in Considering Potential Terrorist Threat to San Diego Facility

In two recent cases involving challenges to U.S. Forest Service projects under the National Environmental Policy Act, the Ninth Circuit emphasized that courts must accord substantial deference to the environmental analysis conducted by federal agencies.  Earth Island Institute v. U.S. Forest Service (9th Cir. Sept. 20, 2012), and Native Ecosystems Council v. Weldon (9th Cir. …