This is a about a specific Comment on the Bureau of Ocean Energy Management (BOEM) Notice: Environmental Impact Statements; Availability, etc.: Outer Continental Shelf, Alaska OCS Region, Chukchi Sea Planning Area, Oil and Gas Lease Sale 193 that was submitted by 32 environmental law professors from 23 law schools who have extensive knowledge and expertise concerning NEPA and its history, function, and interpretation by courts. National Environmental Policy Act of 1970 (“NEPA”, 42 U.S.C. § 4321 et seq.), is one of the United States's earliest and most important environmental statutes. The statute was enacted in the wake of the 1969 Santa Barbara offshore well blowout and oil spill, which was, at the time, the worst oil spill in the nation’s history. The story of the spill is remarkably similar to the more recent 2010 Deepwater Horizon disaster for which were made outstanding reports by The New York Times December 25 2010 and by Nature international weekly journal of science September 1 2010
Last Friday, December 19th, I put up a diary on this issue with links to facilitate citizen action about Arctic drilling in the continental shelf of northwest Alaska by giving comments ("Public Submissions") to BOEM (Bureau of Ocean Energy Management) about keeping Shell from extending a 2008 original lease to drill in Arctic seas for another 5 years.
Sunday, Dec. 21st I put up another diary that cut the issue differently.
Last Monday, Dec. 22nd was the deadline for submission of comments to BOEM and I put up a diary with exemplars of comments people had made.
This diary is an update in the form of a specific actual Public Submission that BOEM received and posted on December 22, last Monday. The Submissions on this current issue about Oil and Gas Lease Sale 193 are closed but the struggle is far from over.
Please read this to learn much more about the realities of what is happening. Join the struggle to keep the northernmost U.S. seas free from further insults that can ultimately help to crash the ecosystems upon which we depend for life within this biosphere, by which I mean the thin covering of this planet that contains and sustains life. Get in the fight to keep that from happening! Below the FlyingOrange Thingy, Read on:
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This is much more readable if you just click here and open the pdf file. But, to show you what will come to you if you do, take a look at this part of that file:
I. INTRODUCTION
The Bureau of Ocean Energy Management (“BOEM”) held an oil and gas lease sale for large tracts of the Outer Continental Shelf (“OCS”) in the Chukchi Sea, known as Lease Sale 193, in 2008. Since then, the agency has been in the process of revising the environmental impact statement (“EIS”) that had been prepared for the lease sale in order to ensure better compliance with the National Environmental Policy Act (“NEPA”). NEPA’s fundamental purpose is to inform decisionmakers and the public about the environmental consequences of agency action before the action is finalized, and it requires federal agencies to present a reasonable range of alternatives to allow for comparison and consideration of meaningful choices they could make in a final action. BOEM’s Draft Second Supplemental Environmental Impact Statement (“Draft Second SEIS”) for Lease Sale 193, however, has been prepared from a post-decisional perspective that is incompatible with the agency’s obligations under NEPA. By relying on the existing leases issued in 2008 as the driving factor for its range of alternatives and its production scenario, the Draft Second SEIS fails to inform any meaningful choice for the decisionmaker.
The stakes are high in the Chukchi Sea. The Chukchi is one of the most productive ocean ecosystems in the world. Its vast, shallow sea floor and seasonal ice cover provide nutrients and pristine habitat for walruses, ice seals, whales, polar bears, and millions of birds and fish. Indeed, the Chukchi Sea is home to roughly half of America’s polar bears and one-tenth of the world’s population. Most of the world’s Pacific walrus also use the Chukchi during the summer months. Additionally, the Chukchi supports several types of ice-dependent seals, including the ringed, ribbon, bearded, and spotted seals. The Chukchi is equally important for whales, including endangered bowhead, fin, and humpback whales, as well as gray and beluga whales. The Chukchi also hosts shorebirds, seabirds, and waterfowl, including threatened spectacled eiders, yellow-billed loons, and Kittlitz’s murrelets. The U.S. side of the Chukchi Sea alone includes 18 Important Bird Areas, which serve as nesting and feeding habitats for huge colonies of resident and migrating birds.
Oil and gas development presents a substantial threat of harm to the region’s abundant fish, wildlife, birds, ecosystems, and habitats, and the Alaska Native people who depend on these resources. Major oil spills, seismic impacts, air and water pollution, noise, and many other types of impacts could have devastating consequences if they are not adequately identified, avoided, and mitigated. Polar bears, walruses, and ice seals in particular are already being severely stressed by climate change and retreating sea ice, and impacts from oil and gas development could exacerbate these issues. In light of the extensive wildlife and sensitive habitat present in the Chukchi Sea, any oil and gas development should proceed with caution. The purpose of the EIS is to give the agency the ability to make well-considered choices that take into account these risks of harm.
The signatories to these comments are 32 environmental law professors from 23 law schools who have extensive knowledge and expertise concerning NEPA and its history, function, and interpretation by courts. In our view, NEPA is one of the nation’s most important environmental statutes, and the issues discussed in these comments are fundamental to the statute’s effectiveness. We hope these comments will be helpful to the agency as it carries out its NEPA responsibilities in connection with Lease Sale 193 and future OCS oil and gas leasing activities.1
II. BACKGROUND
A. HISTORY & FRAMEWORK OF NEPA
The National Environmental Policy Act of 1970 (“NEPA”),2 is one of our nation’s earliest and most important environmental statutes. The statute was enacted in the wake of the 1969 Santa Barbara offshore well blowout and oil spill, which was, at the time, the worst oil spill in the nation’s history. The story of the spill is remarkably similar to the more recent 2010 Deepwater Horizon disaster:3
Five miles off the shore of the small beach town of Summerland, California, at 10:45 a.m. on Tuesday, January 28, 1969, crews on Union Oil Company offshore Platform Alpha were pulling the drilling tube out of well A-21 in order to assess their progress. Mud began to ooze up from the depths through the well shaft, signaling that something had gone wrong below. Within minutes, tons of mud spewed out of the top of the well propelled by a blast of natural gas. Frantic platform workers quickly capped the well, but it was too late to stop the rushing rent of oil rising from 3,000 feet below the ocean floor. The unlined walls of the well shaft gave way and oil poured into the surrounding geological formation under the sea floor. As the pressure continued to build, the oil burst upward through the roof of the Venture Anticline, ripped five long gashes in the ocean floor, and rose 188 feet through the blue-green waters of the Santa Barbara channel. The flow continued at thousands of gallons per hour for more than a week, spreading a tar-black patch seaward over eight hundred square miles of ocean. ... Then on the evening of Tuesday, February 4, the wind shifted and blew hard onshore, driving the oil into Santa Barbara harbor and fouling thirty miles of beaches up and down the coast. ... For weeks on end “[a] dense acrid stench clung to the shoreline as a force of 1000 men ... pitchforked tons of straw onto the stained sand and murky tide to soak up the mess.” ... The cleanup efforts proved largely ineffective against the mass of oil, and thousands of sea birds
__(1st set of footnotes below)_________
1 The signatories and their affiliations are listed in Appendix A. These comments represent the views of the signatory law professors in their individual capacities, not as the representatives of any academic institution or department or any other entity.
2 42 U.S.C. § 4321 et seq.
3 For background on the 2010 Deepwater Horizon offshore well blowout and oil spill, see, e.g., D. Barstow et al., Deepwater Horizon’s Final Hours (New York Times, Dec. 25, 2010), available at http://www.nytimes.com/... (accessed Dec. 19, 2014); A. Mascarelli, Deepwater Horizon: After the Oil, 467 NATURE 22 (2010), available at http://www.nature.com/... (accessed Dec. 19, 2014).
__(1st set of footnotes end)___________
were killed along with seals and other marine mammals. ... By February 24, another well on Platform Alpha had blown out, and the oil-gushing fractures had spread over acres of ocean floor. ... The nation was confronted with an environmental disaster of unprecedented proportions that might have been avoided but for a failure of federal oversight. A federal regulator had approved Union Oil’s request to waive safety requirements that called for well shafts to be lined with hardened casing to prevent just the type of accident that occurred. ... Secretary of the Interior Walter J. Hickel immediately accepted some measure of responsibility, ... and the White House Council on Environmental Quality later acknowledged that “[t]he federal government had largely ignored the need to protect commercial, recreational, aesthetic, and ecological values of the area.”4
Following the Santa Barbara spill, California Congressman John V. Tunney declared that “‘ill-planned offshore oil drilling’ was a manifestation of ‘centuries of careless neglect of the environment [that] have brought mankind to a final crossroads,’ and that ‘the quality of our lives is eroded and our very existence threatened by our abuse of the natural world.’ ... President Richard Nixon personally viewed the damage and agreed that the Santa Barbara spill ‘frankly touched the conscience of the American people.’”5 One year after the spill, on January 1, 1970, President Nixon signed NEPA into law. Over the ensuing four and a half decades, NEPA has served as “‘our basic national charter for protection of the environment.’”6
NEPA’s fundamental purposes are to “encourage productive and enjoyable harmony between man and his environment;” “promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man;” and “enrich the understanding of the ecological systems and natural resources important to the Nation.”7 Congress recognized that “‘environmental factors’” had “‘frequently been ignored and omitted from consideration in the early stages of
4 California v. Norton, 311 F.3d 1165-66 (9th Cir. 2002) (internal citations omitted).
5 Id. at 1166-67 (internal citations omitted).
6 Ilioulaokalani Coalition v. Rumsfeld, 464 F.3d 1083, 1093 (9th Cir. 2006) (quoting 40 C.F.R. § 1500.1(a)).
7 42 U.S.C. § 4321.
A small portion of the 35 miles of California coastline and 800 square-mile area affected by the 3 million gallons of crude oil spilled offshore near Santa Barbara in 1969
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planning.’”8 Accordingly, the “thrust of § 102(2)(C) is ... that environmental concerns be integrated into the very process of agency decision-making” and that the “detailed statement” required “is the outward sign that environmental values and consequences have been considered during the planning stage of agency actions.”9 The environmental impact statement (“EIS”) is a “decision-making tool intended to ‘insure that ... environmental amenities and values may be given appropriate consideration in decisionmaking.’”10 Its purpose is to “apprise decisionmakers of the disruptive environmental effects that may flow from their decisions at a time when they retain a maximum range of options.”11
In order for these goals to be achieved, it is essential for an environmental analysis prepared under NEPA to be completed before the agency makes its final decision and from an unhindered pre-decisional perspective.12 Indeed, “[p]roper timing is one of NEPA’s central themes.”13 The “‘rationale behind this rule is that inflexibility may occur if delay in preparing an [environmental impact statement] EIS is allowed: ‘After major investment of both time and money, it is likely that more environmental harm will be tolerated.’”14 NEPA’s implementing regulations thus “require federal agencies to ‘integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values ... .’”15 The “appropriate time for preparing an EIS is prior to a decision, when the decisionmaker retains a maximum range of options.”16
8 Andrus v. Sierra Club, 442 U.S. 347, 351 (1979) (quoting S. Rep. 91-296, at 20 (1969)).
9 Id. at 350. See Ilioulaokalani, 464 F.3d at 1093 (“Congress passed NEPA ‘to protect the environment by requiring that federal agencies carefully weigh environmental considerations and consider potential alternatives to the proposed action before the government launches any major federal action.’”) (quoting Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2005)).
10 Sierra Club v. Peterson, 717 F.2d 1409, 1414 (D.C. Cir. 1983) (quoting 42 U.S.C. § 4332(2)(B)).
11 Pit River Tribe v. U.S. Forest Service, 469 F.3d 768, 785 (9th Cir. 2006) (quoting Conner v. Burford, 848 F.2d 1441, 1446 (9th Cir. 1988), cert. denied sub nom. Sun Exploration and Production Co. v. Lujan, 489 U.S. 1012 (1989)).
12 See Ilioulaokalani, 464 F.3d at 1093 (“The regulations implementing NEPA have developed procedures to ‘insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.’”) (quoting 40 C.F.R. § 1500.1(b)).
13 Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000) (quoting Save the Yaak Committee v. Block, 840 F.2d 714, 718 (9th Cir. 1988)).
14 Pit River Tribe, 469 F.3d at 785-86 (quoting Save the Yaak, 840 F.2d at 718). Accord Confederated Tribes and Bands of Yakima Indian Nation v. Federal Energy Reg. Comm’n, 746 F.2d 466, 471-72 (9th Cir. 1984), cert. denied 471 U.S. 1116 (1985); Environmental Defense Fund v. Andrus, 596 F.2d 848, 853 (9th Cir. 1979).
15 Andrus, 442 U.S. at 351 (quoting 40 C.F.R. § 1501.2). See Pit River Tribe, 469 F.3d at 785 (“Federal regulations explicitly, and repeatedly, require that environmental review be timely.”); Metcalf, 214 F.3d at 1142; Save the Yaak, 840 F.2d at 718; California v. Block, 690 F.2d 753, 761 (9th Cir. 1982).
16 Peterson, 717 F.2d at 1414 (citing Environmental Defense, 596 F.2d at 852-53 and Port of Astoria v. Hodel, 595 F.2d 467, 478 (9th Cir.1979)). Accord Pit River Tribe, 469 F.3d at 785; Conner, 848 F.2d at 1446.
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The Ninth Circuit has “repeatedly held that dilatory or ex post facto environmental review cannot cure an initial failure to undertake environmental review.”17 In short, the “comprehensive ‘hard look’ mandated by Congress and required by the statute must be timely, and it must be taken objectively and in good faith, not as an exercise in form over substance, and not as a subterfuge designed to rationalize a decision already made.”18 Moreover, as the Eighth and Ninth Circuits have stressed, “‘[t]he unequivocal intent of NEPA is to require agencies to consider and give effect to the environmental goals set forth in the Act, not just to file detailed impact studies which will fill governmental archives.’”19
B. OIL & GAS LEASING ON THE OUTER CONTINENTAL SHELF
Under the Outer Continental Shelf Act (“OCSLA”),20 the U.S. Department of the Interior authorizes oil and natural gas development activities on the Outer Continental Shelf (“OCS”) through a four-stage process: (1) five-year planning at the national level encompassing the Alaska, Gulf of Mexico, and Pacific planning regions; (2) lease sales on an area-wide basis, such as the Chukchi Sea; (3) exploration by lessees; and (4) development and production of the nation’s oil and gas resources.21 For each of these stages, the U.S. Bureau of Ocean Energy Management (“BOEM”) conducts a separate review and analysis under NEPA.22
BOEM’s current five-year program for oil and gas leasing on the OCS encompasses the years 2012-2017. It was approved by Interior Secretary Kenneth Salazar in August 2012, shortly after BOEM issued the final programmatic EIS for the program in July 2012. In each of its five-year programs, BOEM sets out a schedule for area-wide oil and gas lease sales. The first two lease sales in the Chukchi Sea—Lease Sales 109 and 126—took place in 1988 and 1991, respectively. A third lease sale—Lease Sale 193—took place in 2008, although the operation of the leases has been suspended due to litigation, as discussed further below. An additional lease sale—Lease Sale 237—is scheduled to take place in 2016.
C. PROCEDURAL HISTORY FOR LEASE SALE 193
1. 2007 EIS & Lease Sale 193
BOEM issued an EIS for Lease Sale 193, the lease sale at issue in these comments, in May
17 Pit River Tribe, 469 F.3d at 785.
18 Metcalf, 214 F.3d at 1142.
19 Id. (quoting Environmental Defense Fund v. U.S. Army Corps Eng’s, 470 F.2d 289, 298 (8th Cir. 1972)).
20 43 U.S.C. § 1331 et seq.
21 See, e.g., Sec’y Interior v. California, 464 U.S. 312, 337 (1984).
22 See 43 U.S.C. § 1346; BOEM, http://www.boem.gov/... (accessed Dec. 22, 2014). For convenience, these comments will refer to the agency as BOEM, notwithstanding its differing names during various stages of the Lease Sale 193 process.
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2007.23 The agency described the four alternatives considered in the EIS as follows:
Alternative I (proposed action)—An alternative offering for lease about 6,156 blocks or
about 34 million acres, i.e., essentially the entire Chukchi Sea program area with the
exception of a coastal buffer zone which had been withdrawn from oil and gas leasing
through the five-year leasing process;24
Alternative II (no action)—The “no
action” alternative, which was described
as equivalent to cancelling the lease sale;25
Alternative III—An alternative excluding
from leasing a larger protected corridor
area along the coast consisting of
approximately 1,765 blocks or 9.1 million
acres, and representing about a 36%
reduction of oil and gas potential available
for future production as compared with
Alternative I;26 and
Alternative IV (preferred alternative)—
An alternative excluding from leasing a
smaller protected corridor area along the
coast consisting of a subset of
approximately 795 blocks from the
corridor described in Alternative III and
representing about a 15% reduction of oil
and gas resources available for future
production as compared with Alternative
I. Alternative IV was the agency’s
“preferred alternative” and the alternative
ultimately implemented through Lease Sale
193.27
23 BOEM, Chukchi Sea Planning Area, Oil and Gas Lease Sale 193 and Seismic Surveying
Activities in the Chukchi Sea, Final Environmental Impact Statement (May 2007) (hereafter “2007
FEIS”). Documents relating to Lease Sale 193 are generally available on BOEM’s website at
http://www.boem.gov/... (accessed Dec. 19, 2014).
24 See 2007 FEIS, Vol. I, at I-2, II-3. See also BOEM, Chukchi Sea Planning Area, Oil and Gas
Lease Sale 193 in the Chukchi Sea, Alaska, Final Supplemental Environmental Impact Statement,
Vol.. I, Ch. II, at 19 (Aug. 2011) (hereafter “2011 SEIS”).
25 2007 FEIS, Vol. I, at II-3.
26 See id. See also 2011 SEIS, Vol. I, Ch. II, at 19.
27 2007 FEIS, Vol. I, at II-3. See also 2011 SEIS, Vol. I, Ch. II, at 20.
29.4 Million-Acre Area of Chukchi Sea Offered
for Lease in Sale 193 (February 2008)
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Shortly before the lease sale, a number of tribal entities and conservation organizations filed a lawsuit alleging violations of NEPA.28 BOEM nevertheless proceeded with the lease sale in February 2008,29 making available about 29.4 million acres for lease by the oil and gas industry.30 BOEM received high bids from the oil and gas industry totaling approximately $2.6 billion, and it issued 487 leases covering approximately 2.8 million acres or about 9.5% of the original area made available for leasing.31 A few of these leases were later relinquished by the lessees, leaving a total of 460 leases.32
2. 2010 Court Decision & 2011 Supplemental EIS
In 2010, the U.S. District Court for the District of Alaska found that BOEM had violated NEPA by failing to analyze the impacts of natural gas development and by failing to make certain determinations concerning missing information, as required under 40 C.F.R. § 1502.22.33 The court ordered the agency to satisfy its obligations under NEPA,34 and in response to the court’s remand order, BOEM issued a Supplemental EIS in August 2011. For purposes of the Supplemental EIS, BOEM did not analyze any new alternatives and purported to carry forward the previous alternatives. The agency described the effect of each of the alternatives as follows:
Alternative I (proposed action)— “By selecting Alternative I, the Secretary would elect to offer for lease all 34 million acres of the Chukchi Sea ... . Inasmuch as the sale has already been held and that sale only offered parcels identified in Alternative IV, full implementation of this Alternative is no longer feasible.”35 Accordingly, the proposed action was described as being “to affirm the issuance of leases pursuant to the Chukchi Sea OCS Oil and Gas Lease Sale 193.”36
Alternative II (no action)—“This ‘no action’ alternative is equivalent to not affirming Chukchi Sea Lease Sale 193. ... Its implementation would require the Secretary to cancel
28 See Native Village of Point Hope v. Salazar, No. 1:08-cv-00004-RRB, Complaint, Doc. 1 (D. Alaska, Jan. 1, 2008).
29 2011 SEIS, Vol. I, Ch. I, at 1-2.
30 BOEM, Chukchi Sea Planning Area, Oil and Gas Lease Sale 193 in the Chukchi Sea, Alaska, BOEM-2014-0078, Draft Second Supplemental Environmental Impact Statement, Vol. 1, Ch. 2, at 13 (Oct. 2013) (hereafter “Draft Second SEIS”).
31 2011 SEIS, Vol. I, Ch. I, at 4-5.
32 Draft Second SEIS, Vol. I, Ch. II, at 13.
33 See Native Village of Point Hope v. Salazar, Civ. No. 1:08-CV-0004-RRB, Order Remanding to Agency, Doc. 136, at 20 (D. Ak., July 21, 2010).
34 See id. at 21.
35 2011 SEIS, Vol. I, Ch. II, at 19.
36 Id. Vol. I, Ch. I, at 4.
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all leases awarded as a result of the February 2008 Lease Sale.”37
Alternative III—“Should the Secretary select Alternative III, portions of the Chukchi Sale 193 could be affirmed, but leases issued on tracts within Corridor I would be cancelled.”38
Alternative IV (preferred alternative)—“This alternative was identified as the Agency’s Preferred Alternative in the Sale 193 FEIS, and was offered for lease as Sale 193 (February 2008). ... Selection of Alternative IV would affirm the issuance of the leases pursuant to Lease Sale 193 as held and be implemented by removing the suspension of operations imposed on the leases.”39
The Supplemental EIS explained that “Lease Sale 193 was held consistent with Alternative IV” but that “[p]otential impacts under each alternative are nonetheless considered for consistency of this analysis with the analysis in the Sale 193 FEIS.”40
3. 2014 Court Decision & 2014 Draft Second SEIS
Further litigation ensued, and the Ninth Circuit Court of Appeals eventually concluded that BOEM’s EIS violated NEPA because the agency’s reliance on an estimate that one billion barrels of oil would be economical to produce from the leasing area was arbitrary and inadequately explained.41 The court explained that the agency had, among other things, (1) failed to justify its decision to rely on the amount of oil produced through just the first platform developed, (2) failed to discuss the economic feasibility of oil production at varying projected oil prices, (3) improperly conflated the likelihood of oil production with the amount of production that could be expected if the oilfield were developed, (4) failed to adequately respond to staff concerns regarding the unsupported estimate and, as a result, (5) the one billion barrel estimate appeared to understate likely production by a factor of about twelve.42 BOEM argued that any error resulting from the use of the one billion barrel estimate could be corrected through site-specific EISs during the exploration and development stages of the process.43 The Ninth Circuit disagreed, explaining that:
An agency is required to analyze the environmental effects in an EIS as soon as it is “reasonably possible” to do so. ... An appropriate time to estimate the total oil production from the lease sale is the time of the lease sale itself. Under NEPA, BOEM is required to take into account the full environmental effects of its actions
37 Id. Vol. I, Ch. II, at 19.
38 Id.
39 Id. at 20.
40 Id. at 19.
41 See Native Village of Point Hope v. Jewell, App. No. 12-35287, at 5, 21-33 (9th Cir., Jan. 22, 2014).
42 See id.
43 See id. at 14.
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when deciding whether and in what manner to pursue the lease sale. ... A later project or site-specific environmental analysis is an inadequate substitute for an estimate of total production from the lease sale as a whole. It is only at the lease sale stage that the agency can adequately consider cumulative effects of the lease sale on the environment, including the overall risk of oil spills and the effects of the sale on climate change. It is also only at the lease sale stage that the agency can take into account the effects of oil production in deciding which parcels to offer for lease.44
Further, the Ninth Circuit emphasized that, in contrast to cases considering whether agencies had improperly failed to prepare a worst case analysis, BOEM had considered “only the best case scenario” which “‘skew[ed] the data toward fewer environmental impacts, and thus impede[d] a ‘full and fair discussion of the potential effects of the project.’”45 Finally, the Ninth Circuit treated BOEM’s reliance on the one billion barrel estimate as a major flaw in its analysis given that “[t]he one billion barrel estimate was the basis for the entire FEIS, including its analysis of the risk of a large oil spill.”46 On remand, the Alaska federal district court ordered BOEM to complete further analysis consistent with the Ninth Circuit’s decision.47
BOEM initiated the preparation of the Draft Second SEIS in response to the court mandate. Once again, the agency has not developed any new alternatives and purports to carry forward the previous four alternatives, which it describes as follows:
Alternative I (proposed action)— The proposed action is “to affirm Lease Sale 193 and all of the leases issued as a result of the sale,” including the “460 blocks (the Leased Area) in the Chukchi Sea Program Area.”48 “Lease Sale 193 has already been held, and no additional leases will be issued as a result of this Second SEIS process.”49 Since “[a]ll of the leases originally issued are contained in the area covered by Alternative I,” “selecting Alternative I based on this Second SEIS process would result in affirming Lease Sale 193 and all of the leases.”50
Alternative II (no action)—“Lease Sale 193 has already occurred. Selecting Alternative II
44 Id. at 31 (internal citations omitted).
45 Id. at 31-32 (emphasis in original) (quoting Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 965 (9th Cir. 2005)).
46 See id. at 26 (emphasis added). For in-depth background on Lease Sale 193 and related efforts through history to permit oil and gas activities in America’s Arctic, see LeVine, Van Tuyn, and Hughes, Oil and Gas in America’s Arctic Ocean: Past Problems Counsel Precaution, 37 SEATTLE UNIV. L. REV. 1271 (Summer 2014).
47 Native Village of Point Hope v. Salazar, Civ. No. 1:08-CV-0004-RRB, Order in Light of Remand, Doc. 284, at 1 (D. Ak., April 24, 2014).
48 Draft Second SEIS, Vol. 1, Ch. 1, at 4.
49 Id.
50 Id. Vol. 1, Ch. 2, at 13.
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based on this Second EIS process would result in not affirming the lease sale and
vacating the leases.”51
Alternative III—“Lease Sale 193 has already occurred. Five existing leases are contained
within Corridor I. Accordingly, selecting Alternative III based on this Second SEIS
process would result in affirming the lease sale, except the area in Corridor I” in which
the leases would be vacated.52
Alternative IV—“In February 2008, the Department offered for lease the area covered
by Alternative IV in Lease Sale 193. All leases are contained in the area covered by this
alternative. Accordingly, selecting Alternative IV as a result of this Second SEIS process
would result in affirming the lease sale and all of the leases.”53
The agency later reiterates more generally that “[n]o additional areas would be offered for
lease as a result of the Second SEIS process, irrespective of which alternative is selected.
Accordingly, the maximum number of leases that could remain following the Second SEIS
process is 460, which could result from the selection of either Alternative I or Alternative
IV.”54
BOEM’s repeated references to the 460
leases sold through Lease Sale 193 in 2008
(“Leased Area”) lay the groundwork for its
decision to focus its entire analysis on the
existing leases. In the Draft Second SEIS,
BOEM has “created an exploration,
development and production scenario (‘the
Scenario’) to provide a basis for the
environmental effects analysis in this
chapter,” and this Scenario “represents the
highest level of oil and gas activities that
could reasonably result from Lease Sale
193.”55 The Scenario “assumes that current
lessees will explore their leases, successfully
discover an anchor field as well as a satellite
field, develop necessary infrastructure, and
produce ... oil and ... natural gas from the
51 Id.
52 Id.
53 Id. at 14.
54 Id.
55 Id. Vol. 1, Ch. 4, at 149.
Leased Area (Orange) Comprising 9.5% of the
Chukchi Sea Program Area
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leases issued in Lease Sale 193.”56 BOEM’s discussion of the Scenario acknowledges that the “analysis for this Scenario is unusual because Lease Sale 193 has already occurred,” and the agency explains that it has “projected potential development based upon the post-sale analysis of tracts that received bids.”57 The entire environmental effects analysis in the 2014 Draft Second SEIS is “predicated” on this post-sale Scenario.58
BOEM makes no claim that its analysis in the Draft Second SEIS is meant to inform a meaningful choice among a range of alternatives. Instead, the agency explains the document is merely meant to “augment[] the 2007 FEIS and the 2011 SEIS by providing additional environmental analysis of potential exploration, development, and production activities from Lease Sale 193.”59
III. BOEM’S POST-DECISIONAL APPROACH IN THE DRAFT SECOND SEIS HAS LED TO AN UNREASONABLY NARROW RANGE OF ALTERNATIVES.
The centerpiece of NEPA is its requirement for federal agencies to prepare an EIS before making a commitment to a particular project or course of action,60 and the heart of an EIS is the agency’s evaluation of a reasonable range of alternatives and their associated environmental consequences.61 An agency must set forth a sufficient range of alternatives to “permit a ‘reasoned choice.’”62 In other words, the agency “must look at every reasonable alternative within the range dictated by the nature and scope of the proposal,” and the “existence of reasonable but unexamined alternatives renders an EIS inadequate.”63 The “touchstone” of the inquiry is whether the range of alternatives “fosters informed decision-making and informed public participation.”64 In California v. Block, for instance, the Ninth Circuit considered the adequacy of an EIS prepared by the U.S. Forest Service in connection with its designation and management of roadless and Wilderness areas.65 Upon review, the court noted that three of the EIS’s eleven alternatives (“all Wilderness,” “no Wilderness,”
56 Id.
57 Id. Vol. 1, Ch. 2, at 24.
58 Id. Vol. 1, Ch. 4, at 149.
59 Id. Vol. 1, Ch. 1, at 3.
60 See California, 311 F.3d at 1168 (explaining federal agencies are “required to prepare an EIS ... before committing resources to an action”); Sierra Club, 717 F.2d at 1414 (“NEPA requires an agency to evaluate the environmental effects of its action at the point of commitment.”).
61 See Ilioulaokalani, 464 F.3d at 1095 (explaining “the alternatives analysis section is the heart of the environmental impact statement”) (citing 40 C.F.R. § 1502.14). See generally 42 U.S.C. §§ 4332(2)(C), (E); 40 C.F.R. § 1502.1.
62 Block, 690 F.2d at 767 (internal citations omitted).
63 Ilioulaokalani, 464 F.3d at 1095. See Peterson, 717 F.2d at 1414 (“The purpose of an EIS is to insure that the agency considers all possible courses of action and assesses the environmental consequences of each proposed action.”).
64 Block, 690 F.2d at 767.
65 Id. at 765.
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and “no action”) had been included merely as “points of reference rather than as seriously considered alternatives.”66 The other eight action alternatives were generated through the use of varying formulas but nevertheless ended up being very similar. Under all of the alternatives, the Forest Service would designate no more than 33% of roadless acreage as Wilderness and no less than 37% as Nonwilderness. The court held that this range of alternatives was inadequate and required the Forest Service to incorporate (1) an alternative that looks to already developed areas for expanded resource extraction and use, and (2) an alternative that allocates more than one-third of the roadless acreage to Wilderness.67
In its recent Draft Second SEIS, BOEM has failed to provide sufficient range of alternatives to permit a reasoned choice. In responding to the Ninth Circuit’s mandate, BOEM has adopted a post-decisional perspective which takes the existing leases as a given. By doing so, BOEM has modified the alternatives to an extent that makes them virtually indistinguishable from each other. The action alternatives under consideration here have become essentially: Alternative I—affirm all 460 leases, Alternative III—affirm 455 of the 460 leases, and Alternative IV—affirm all 460 leases. Because the three action alternatives are nearly identical, this does not represent a reasonable range of alternatives on its face.68 Indeed, BOEM expressly acknowledges that, because of its focus on the area already leased in Lease Sale 193, Alternatives I and IV are “effectively the same” for purposes of the environmental effects analysis, and it analyzes the two alternatives “together as one.”69 There is thus far less difference between the action alternatives in the present situation than there was between the action alternatives rejected as inadequate in Block.
BOEM’s post-decisional approach also deprives both the agency and the public from having a meaningful opportunity to evaluate the possibility of precluding leasing in all or part of the Leased Area. BOEM briefly discusses stakeholder proposals for exclusionary zones that were made in public comments on the next round of leasing in the Chukchi Sea (Lease Sale 237),70 which is scheduled to take place in 2016.71 BOEM also acknowledges that “[v]arious stakeholders proposed fifteen exclusion areas” based on “biological, socioeconomic, or other environmental information.”72 Because 12 of these 15 areas are located “wholly outside of the Lease Sale 193 ‘Leased Area’ considered in this Draft Second SEIS,” however, they are “not considered further here.”73 BOEM thus relies on the existence of the 2008 leases as the primary basis for refusing to consider a new alternative which might have had an important bearing on the geographic scope of the leases offered for sale in the first place.
66 Id.
67 See id. at 767-68.
68 As in Block, the “no action” alternative was included as a “point of reference” but was never seriously considered as a viable alternative.
69 Draft Second SEIS, Vol. 1, Ch. 4, at 159.
70 See id. Vol. 1, Ch. 2, at 14-15.
71 See http://www.boem.gov/....
72 Draft Second EIS, Vol. 1, Ch. 2, at 14.
73 Id.
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The other three potential exclusion areas are deemed to fall within the Leased Area—Hanna Shoal, an expanded coastal buffer, and a northern portion of the program area. BOEM admits that the “importance of Hanna Shoal to a diversity of marine mammals ha[d] been elucidated by several recent and ongoing scientific studies” and that “oil and gas activities conducted in this area” could have “adverse impacts on important biological resources such as walrus,”74 including the fact that “population level effects to walrus could occur.”75 BOEM nevertheless declines to analyze any alternative incorporating one or more of these exclusion areas. In rejecting a possible new alternative, BOEM relies in part on the following considerations: (1) “no lessees have proposed exploring the areas at issue,” (2) the lessees have shown a “demonstrated focus on other portions of the Leased Area,” (3) under the terms of the leases granted under Lease Sale 193, the leases have “limited remaining duration,” and (4) the stipulations included in the leases “provide[] BOEM with the discretion to require lessees to conduct additional research and to implement additional operational restrictions in order to protect biological resources.”76 BOEM’s reasoning thus relies on the existence of the 460 oil and gas leases—which are supposedly the very subject matter of the agency’s analysis and prospective decision-making—as part of its justification for refusing to consider an exclusion area that might preclude the issuance of some or all of those very same leases. This type of circular, post-decisional reasoning does not comport with NEPA requirements.
The Ninth Circuit’s reasoning in Pit River is instructive. In Pit River, a “tardy EIS” relating to geothermal energy development failed to address the key issue of “whether the land in question should be leased at all.”77 Because the belated EIS was “premised on the notion
74 Id.
75 Id. Vol. 1, Ch. 4, at 290.
76 Id. Vol. 1, Ch. 2, at 14. BOEM also relied on the protections afforded by procedures under the Endangered Species Act (“ESA”) and other statutes as a justification for declining to include any new alternative. See id. at 14-15. While a biological assessment (“BA”) prepared under the ESA and activities under other statutes can contribute to a NEPA analysis, the Ninth Circuit has emphasized that the NEPA statute “does not indicate that a BA may substitute entirely” for a NEPA analysis. Save the Yaak, 840 F.2d at 718. For instance, while ESA analysis focuses solely on endangered species, NEPA requires analysis of “all facets of the environment.” Id. Reliance on procedures under the ESA and other narrowly focused statutes is insufficient because “there may be gaps,” such as a failure to consider impacts on “other wildlife” and “plant life or recreation,” id., and in the case of the Chukchi Sea longstanding traditional subsistence activities.
77 Pit River Tribe, 469 F.3d at 786.
Pacific Walruses in the Chukchi Sea
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that the leases were valid and granted development rights” to the lessees, no matter how “lengthy and exhaustive” the analysis of environmental impacts was, the agencies had failed to take the requisite “hard look” at whether the area “should be developed for energy at all” and thus the court concluded that the issuance of the leases “violated NEPA.”78 Similarly, the Ninth Circuit’s recent decision in Native Village of Point Hope v. Jewell, which prompted the present review, emphasized that “[i]t is only at the lease sale stage that the agency can take into account the effects of oil production in deciding which parcels to offer for lease.”79
BOEM’s range of action alternatives in the Draft Second SEIS for Lease Sale 193, however, is entirely premised on the existence of the 460 leases and leaves no room for the agency to consider “which parcels to offer for lease.” As a result, the Draft Second SEIS fails to offer the decisionmaker a meaningful choice from among a reasonable range of alternatives.
BOEM cannot rely on its previous NEPA analyses to overcome this problem. The agency’s task in the present review is to address a fatally flawed assumption that, according to the Ninth Circuit, had erroneously served as the “basis for the entire FEIS.”80 Instead of genuinely addressing this flaw from a pre-decisional perspective, BOEM is instead conducting a post-decisional analysis wholly shaped and driven by the existing leases. Indeed, BOEM’s entire environmental effects analysis is founded upon a Scenario derived from the leases that were issued in 2008. The agency has admitted that this “post-sale” approach is “unusual,”81 but it is more than that. By assuming the existence of the leases, BOEM has rendered the NEPA process a purely academic paper exercise—a result wholly contrary to the intentions of Congress in enacting the statute.82
IV. CONCLUSION
For the foregoing reasons, the Draft Second SEIS prepared by BOEM for Lease Sale 193 is flawed because of its reliance on the existing leases and its post-decisional analytical posture. The document should be revised to comport with the agency’s clear and long-standing duties under NEPA. We appreciate having this opportunity to comment, and we hope these comments will inform BOEM’s future approach to NEPA review with respect to Lease Sale 193 and other OCS leasing programs.
78 Id. at 787.
79 Native Village of Point Hope, App. No. 12-35287, at 31 (internal citations omitted).
80 Id. at 26.
81 Id. at 24.
82 See Metcalf, 214 F.3d at 1142 (“‘The unequivocal intent of NEPA is to require agencies to consider and give effect to the environmental goals set forth in the Act, not just to file detailed impact studies which will fill governmental archives’”) (quoting Environmental Defense, 470 F.2d at 298).