Defenders of Wildlife v. Bureau of Ocean Energy Management

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 22, 2012
• Docket: 11-12598
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 22, 2012 No. 11-12598 JOHN LEY ________________________ CLERK

Agency No. S-7444

DEFENDERS OF WILDLIFE, CENTER FOR BIOLOGICAL DIVERSITY, NATURAL RESOURCES DEFENSE COUNCIL,

Petitioners,

versus

BUREAU OF OCEAN ENERGY MANAGEMENT, UNITED STATES DEPARTMENT OF THE INTERIOR, SECRETARY, DEPARTMENT OF THE INTERIOR, DIRECTOR, BUREAU OF OCEAN ENERGY MANAGEMENT, REGULATION AND ENFORCEMENT,

Respondents,

SHELL GULF OF MEXICO, INC., AMERICAN PETROLEUM INSTITUTE, STATE OF LOUISIANA, LOUISIANA DEPARTMENT OF NATURAL RESOURCES, STATE OF ALABAMA, GOVERNOR and the STATE OF MISSISSIPPI,

Intervenors. ________________________

No. 11-12599 ________________________

GULF RESTORATION NETWORK, INC., FLORIDA WILDLIFE FEDERATION, SIERRA CLUB, INC.,

BUREAU OF OCEAN ENERGY MANAGEMENT, REGULATION AND ENFORCEMENT, SECRETARY OF THE DEPARTMENT OF INTERIOR,

SHELL GULF OF MEXICO INC., AMERICAN PETROLEUM INSTITUTE, STATE OF LOUISIANA, LOUISIANA DEPARTMENT OF NATURAL RESOURCES, STATE OF ALABAMA, GOVERNOR and the STATE OF MISSISSIPPI,

Intervenors.

________________________

Petitions for Review of a Decision of the Department of the Interior ________________________ (June 22, 2012)

2 Before DUBINA, Chief Judge, EDMONDSON, Circuit Judge, and RESTANI,* Judge.

DUBINA, Chief Judge:

This case concerns a challenge to an exploratory drilling plan under the

Outer Continental Shelf Lands Act (“OCSLA”). 43 U.S.C. § 1331 et seq. The

Bureau of Ocean Energy Management1 (“BOEM”) approved the Shell Exploration

Plan S-7444 (“Shell EP”) to conduct drilling in the Gulf of Mexico. The Shell EP

covers ten exploratory wells on offshore Alabama leases in the Central Gulf of

Mexico between 7,100 and 7,300 feet deep. This case is a consolidated appeal in

which Petitioners, Defenders of Wildlife, et al. and Gulf Restoration Network, et

al. (“Petitioners”), filed comments on the Shell EP, participated in the

administrative proceeding below, and filed this petition for review. See 43 U.S.C.

§ 1349(c)(2). The only issues on petition for review are whether the Shell EP

violates the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332 et

seq., and the Endangered Species Act (“ESA”), 16 U.S.C. § 1536 et seq. After

* Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by designation. 1 On October 1, 2011, the Bureau of Ocean Energy Management, Regulation, and Enforcement (“BOEMRE”), formerly the Minerals Management Service (“MMS”), was replaced by BOEM and the Bureau of Safety and Environmental Enforcement (“BSEE”) as part of a major reorganization.

3 reviewing the record, reading the parties’ briefs, and having the benefit of oral

argument, we deny the petition for review.

I. Background

(A) Agency Proceedings

OCSLA governs federal offshore oil and gas leasing, exploration, and

development, and gives the Secretary of the Interior authority over the

administration of offshore leasing. 43 U.S.C. § 1331 et seq., 43 U.S.C. § 1334(a).

The Secretary delegated the authority to “regulate oil, gas, and sulphur

exploration, development, and production operations on the Outer Continental

Shelf (OCS)” to the BOEM. 30 C.F.R. § 550.101. OCSLA uses a four-stage

process for oil and gas development, with review at each stage: (1) preparation of

a leasing program; (2) lease sales; (3) exploration by the lessees; and (4)

development and production. See Sec’y of the Interior v. California, 464 U.S.

312, 337–40, 104 S. Ct. 656, 669–71 (1984). During the first stage, the Secretary

prepares a five-year OCS oil and gas lease-sale schedule and completes an

environmental impact statement (“EIS”). 43 U.S.C. § 1344(a), (b)(3). In the

second stage, the Secretary conducts lease sales on tracts of the OCS. 43 U.S.C §

1337. The lessee then has the exclusive right to submit an exploration plan for

approval during the third stage. 43 U.S.C. § 1340(c). If the exploration is

4 successful, the lessee can submit development and production plans for the

Central and Western Gulf of Mexico. 43 U.S.C. § 1351. The stage at issue in this

proceeding is the third stage, exploratory drilling.

A leaseholder must submit an exploration plan for approval by BOEM. See

43 U.S.C. § 1340(c)(1). BOEM is required to approve, approve with

modifications, or deny a plan within 30 days of submission. See id. BOEM may

allow exploration to proceed and issue a permit for drilling if the lessee’s plan

“will not be unduly harmful to aquatic life in the area, result in pollution, create

hazardous or unsafe conditions, unreasonably interfere with other uses of the area,

or disturb any site, structure, or object of historical or archeological significance.”

43 U.S.C. § 1340(g)(3). The exploration plan must also comply with all other

applicable laws, including NEPA and ESA. See 42 U.S.C. § 4332; 16 U.S.C. §

1536(a).

(1) Compliance with NEPA

NEPA requires all federal agencies to prepare an environmental assessment

(“EA”) and EIS on the environmental effects of proposed federal agency actions.

See 42 U.S.C. § 4332. All “major Federal actions [that] significantly affect[] the

quality of the human environment” require an EIS. 42 U.S.C. § 4332(C). A less

exhaustive EA can be used to determine whether the proposed action may

5 significantly affect the environment and whether an EIS is required. See 40 C.F.R.

§ 1508.9. An EIS is not required if the agency makes a finding of no significant

impact (“FONSI”) that identifies reasons why the proposed action will not have a

significant impact on the environment. 40 C.F.R. §§ 1501.4(e), 1508.13.

BOEM applies NEPA procedures using a tiered process encouraged by the

Council on Environmental Quality’s (“CEQ”) regulations implementing NEPA.

The CEQ regulations seek to avoid repetitive discussions and urge that:

Whenever a broad environmental impact statement has been prepared (such as a program or policy statement) and a subsequent statement or environmental assessment is then prepared on an action included within the entire program or policy (such as a site specific action) the subsequent statement or environmental assessment need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference and shall concentrate on the issues specific to the subsequent action.

40 C.F.R. § 1502.20. The Shell EA “tiers” from two prior EIS’s: the 2007

Multisale EIS covering eleven Gulf lease sales in the 2007-2012 Multisale and the

2009 supplemental EIS for seven remaining lease sales in the 2007-2012

Multisale. In 2007, MMS, BOEM’s predecessor, finalized an EIS covering the

Western and Central Gulf areas. The 2007 EIS analyzed expected impacts of oil

and gas exploration, including possible oil spills. It found large oil spills to be

low-probability events and determined that environmental impacts would not be

6 catastrophic to the region, animal populations, and ecosystems. The 2009

supplemental EIS found that relevant new information did not change the

conclusions from the 2007 multisale EIS.

In response to the April 2010 Deepwater Horizon disaster,2 BOEM

commenced the process to prepare a supplemental EIS for the remaining lease

sales in the Gulf under the 2007-2012 Multisale. See 75 Fed. Reg. 69,122-01

(Nov. 10, 2010). The final supplemental EIS was issued on January 20, 2012. 77

Fed. Reg. 2,991-02 (Jan. 20, 2012). BOEM concluded that “[n]o substantial new

information, with the exception of archaeological resources [related to historic

shipwrecks], was found that would alter the impact conclusions as presented in

the Multisale EIS and the 2009-2012 Supplemental EIS. . . .” BOEM, Gulf of

Mexico OCS Oil and Gas Lease: 2012, Final Supplemental Environmental Impact

Statement, Vol. I at x (Jan. 2012).

Prior to the Deepwater Horizon disaster, BOEM generally did not prepare

EA’s when approving exploration plans in the Western and Central Gulf of

Mexico under leases studied in previous EIS’s. After the spill, the Director of

BOEM instructed the agency to restrict its use of categorical exclusions for

2 The BP Macondo spill began with the April 20, 2010, explosion of the Deepwater Horizon drilling platform and is referred to as the Deepwater Horizon disaster.

7 exploration plans that proposed activity that would require approval of an

application for a permit to drill and involve the use of a subsea Blow Out

Preventer (“BOP”) or surface BOP.3 Categorical exclusions are “a category of

actions which do not individually or cumulatively have a significant effect on the

human environment . . . and for which, therefore, neither an environmental

assessment nor an environmental impact statement is required.” 40 C.F.R. §

1508.4. Accordingly, BOEM prepared a site-specific EA for the Shell EP.

(2) Compliance with ESA

The ESA requires federal agencies to ensure that their actions are “not likely

to jeopardize the continued existence of any endangered species or threatened

species.” 16 U.S.C. § 1536(a)(2). If a proposed federal action may affect an

endangered species, the agency proposing the action must consult with the

appropriate expert agency, either the Fish and Wildlife Service (“FWS”) or the

National Marine Fisheries Service (“NMFS”). See 50 C.F.R. § 402.14(a). The

agency proposing the action prepares a biological assessment to facilitate

consultation with the expert agency. 50 C.F.R. § 402.14(c)(5). If the agencies

determine that the proposed action is not likely to adversely affect the species, the

consultation process is terminated. Id. § 402.13(a). However, if either agency

3 Subsea BOPs and surface BOPs are generally used for drilling in deep waters over 500 feet.

8 determines that the proposed action is likely to adversely affect a species, formal

consultation begins. Id. § 402.14. An agency must reinitiate consultation if new

information arises that was previously unexamined. Id. § 402.16.

BOEM consulted with NMFS and FWS in 2007 regarding Gulf of Mexico

lease sales under the 2007-2012 Multisale program. NMFS issued an opinion

concluding that exploration, development, and production was not likely to

jeopardize threatened or endangered species. FWS issued a similar memorandum.

In September 2010, BOEM requested to reinitiate consultation with NMFS and

FWS to consider new information as a result of the Deepwater Horizon disaster,

and that consultation is ongoing.

(B) Procedural History

On March 31, 2011, BOEM deemed the Shell EP submitted. BOEM

conducted a review of whether the Shell EP significantly affected the quality of

the environment, considering impacts of Shell’s proposed effect on the

environment from routine operations and unexpected accidents. Appendix A of

the EA analyzes risks, characteristics, and impacts of possible major spills in light

of information from the Deepwater Horizon disaster. Appendix B presents a

detailed “Catastrophic Spill Event Analysis” on all relevant resources in the Gulf

of Mexico, based on the 2010 Deepwater Horizon spill and 1979 Ixtoc spill.

9 Based on this analysis and information in the record, BOEM found no indication

that the proposed action would significantly affect the quality of the human

environment within the meaning of NEPA. The plan was approved by BOEM and

the United States Department of the Interior on May 10, 2011, after a FONSI.

Thus, BOEM determined an EIS was unnecessary. Petition for review of the Shell

EP was filed on June 9, 2011. Petitioners Gulf Restoration Network, et al. seek

remand for further agency consideration and Petitioners Defenders of Wildlife, et

al. seek both vacatur and remand.

II. Standard of Review

We review a decision to approve an exploration plan “solely on the record

made before the Secretary . . . [and] findings of the Secretary, if supported by

substantial evidence on the record considered as a whole, shall be conclusive.” 43

U.S.C. § 1349(c)(6). We review an agency’s compliance with NEPA and ESA

under the deferential “arbitrary or capricious” standard. Administrative Procedure

Act, 5 U.S.C. § 706(2)(A); Miccosukee Tribe of Indians v. United States, 566 F.3d

1257, 1264 (11th Cir. 2009). “We are not authorized to substitute our judgment

for the agency’s as long as its conclusions are rational.” Miccosukee, 566 F.3d at

1264 (citing Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008)).

We have limited discretion to reverse an agency’s decision because when it “is

10 making predictions, within its area of special expertise, at the frontiers of science .

. . as opposed to simple findings of fact, a reviewing court must generally be at its

most deferential.” Miccosukee, 566 F.3d at 1264 (quoting Balt. Gas & Elec. Co. v.

Natural Res. Def. Council, 462 U.S. 87, 103, 103 S. Ct. 2246, 2255 (1983)).

III. Analysis

(A) NEPA Claim

BOEM conducted an EA for the Shell EP to determine whether the

proposed activity would significantly affect the environment and found that an EIS

was unnecessary. Petitioners argue that the EA is only a general summary of the

environmental impact of the Shell EP and fails to include site-specific information.

Thus, Petitioners insist, BOEM’s decision not to prepare an EIS and its subsequent

FONSI is a violation of NEPA. Yet, Petitioners simply cannot overcome our

extremely deferential “arbitrary or capricious” standard of review. See

Miccosukee, 566 F.3d at 1264.

(1) Site-specific Analysis

Before concluding that an EIS is unnecessary, the agency must “accurately

identif[y] the relevant environmental concern” and take a “hard look” at the

problem. Hill v. Boy, 144 F.3d 1446, 1450 (11th Cir. 1998) (quoting Coal. on

Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66–67 (D.C. Cir. 1987)). If a FONSI

11 is made, the agency “must be able to make a convincing case for its finding.” Id.

Contrary to Petitioners’ claims, the EA contains a plethora of site-specific

information on the potential impacts from Shell’s proposed exploratory drilling.

For example, the EA describes site-specific atmospheric conditions, water quality

characteristics, likely impact on water quality, possible impact on deepwater coral

and marine mammals including specific species of sea turtles, and effects of

accidental events. Petitioners complain that the Shell EA is too similar to Shell EP

S-7445, an EA prepared for a separate but similar exploration plan in a different

area in the Gulf of Mexico. Shell EP S-7445 is 130 miles from shore with

proposed drilling at 2,721 feet. The difference in location and water depth

between the two EAs does not necessarily mean that there are significant

differences in resources present and environmental impact because both wells are

far from shore and in deep water. BOEM’s reliance on and comparison to Shell

EP S-7445 is consistent with its requirements under NEPA that it take a hard look

at the environmental impacts of the proposed exploration. NEPA does not

prohibit an agency from creating an EA that resembles another EA in a similar

environment. See 40 C.F.R. § 1508.9.

Next, Petitioners argue that BOEM failed to include a site-specific analysis

of potential catastrophic spills and underestimated the likelihood of a spill. To the

12 contrary, the EA extensively analyzes the risks and consequences of such an event.

Appendix B of the EA, “Catastrophic Spill Event Analysis,” evaluates the impact

of a low-probability catastrophic spill. After taking into account regulations put

into effect after the Deepwater Horizon disaster, BOEM determined that the risk

of another spill was low. While this analysis is derived from a generalized

scenario, it is based on the only two large spill disasters in the Gulf of

Mexico—the 1979 Ixtoc blowout in the Bay of Campeche, Mexico and the 2010

Deepwater Horizon disaster. An oil spill is an unexpected event, and its

parameters cannot be precisely known in advance. Thus, it is appropriate for

BOEM to summarize potential impacts resulting from a hypothetical oil spill.

Additionally, Petitioners claim that BOEM’s failure to evaluate its worst

case discharge spill of 405,000 barrels of oil per day was a violation of NEPA.

Yet BOEM is not required to base its NEPA analysis on a worst case scenario.

See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 354–355, 109 S.

Ct. 1835, 1848 (1989) (finding that NEPA does not require a “worst-case”

analysis). Similarly, NEPA does not require a “worst case discharge” analysis.

Thus, we conclude that BOEM’s reliance on analysis based on a lower spill rate,

which it determined to be more likely than the worst case discharge, was not

arbitrary or capricious or in violation of NEPA.

13 Petitioners’ final complaint with BOEM’s site-specific analysis is that the

EA fails to discuss some endangered species present in the Gulf, including the

piping plover, Gulf sturgeon, and various species of beach mice. The purpose of

an EA is to give enough information and analysis to conclude whether the project

will have a significant effect on the environment or not. Sierra Club v. U.S. Army

Corps of Eng’rs, 295 F.3d 1209, 1214–15 (11th Cir. 2002). This project concerns

operations under the Shell EP, not an expected oil spill from those operations.

Thus, the expected operations under the Shell EP will not have a significant effect

on the endangered species identified by Petitioners. Of course, a catastrophic spill

is possible, and BOEM considered potential impacts of such a spill, including the

impacts on the species identified by Petitioners. Yet, Petitioners suggest that

every EA requires a detailed analysis of each species that could possibly be

affected by a potential oil spill. NEPA clearly does not require such analysis. An

EA is intended to be a document that “[b]riefly provide[s] sufficient evidence and

analysis for determining whether to prepare an [EIS].” 40 C.F.R. § 1508.9(a)(1).

Although the EA does not describe every possible environmental effect of an oil

spill, BOEM took a hard look at environmental impacts, and its site-specific

analysis of expected drilling operations is consistent with NEPA.

(2) BOEM’s Methodology

14 Petitioner Gulf Restoration Network argues that BOEM should have used

the Mechanical Risk Index (“MRI”)—a methodology that evaluates risk factors

for deepwater wells, including water depth, well depth, number of casing strings,

and percent of population penetrating salt—to evaluate the risk of a spill under the

Shell EP. However, there is no evidence that suggests MRI is a standard

methodology in the industry to assess risks of a blow out. It is not the duty of this

court to determine the propriety of the methodology used by BOEM to analyze the

Shell EP, and we are not authorized to substitute our judgment “concerning the

wisdom or prudence of the proposed action.” N. Buckhead Civic Ass’n v. Skinner,

903 F.2d 1533, 1539 (11th Cir. 1990). We must be extremely deferential “when

an agency’s decision rests on the evaluation of complex scientific data within the

agency’s technical expertise.” Miami-Dade Cnty. v. U.S. EPA, 529 F.3d 1049,

1065 (11th Cir. 2008) (per curiam). We conclude from the record that BOEM’s

choice to not use MRI was not arbitrary or capricious, and we should defer to

BOEM’s experience and expertise on this matter.

(3) Environmental Impacts of the Deepwater Horizon Disaster

Petitioners argue that preparation of an EIS might provide additional

information on the Deepwater Horizon disaster, and that the agency cannot move

forward until additional information is gathered, but fail to realize that complete

15 information about the extent of damage from the spill may not be available for

years. NEPA does not require BOEM to wait until all aspects of a previous

disaster are determined before moving forward if the agency deems an EIS

unnecessary from a FONSI. Exploration plan approval decisions are based upon

existing available information. 43 U.S.C. § 1346(d) (“The Secretary shall consider

available relevant environmental information in making decisions (including those

relating to exploration plans . . . ), in developing appropriate regulations and lease

conditions, and in issuing operating orders.”). BOEM is required to take a “hard

look” at what is currently known about the environmental impact of a spill like the

Deepwater Horizon disaster. See Hill, 144 F.3d at 1450. The Shell EA details the

known environmental impacts from the Deepwater Horizon spill, including

impacts to fisheries and fish habitats of the oil, natural gas, and chemical

dispersants released as a result of the spill and its effects on water quality.

Appendix B provides additional information that is largely based on the spill. The

record demonstrates that BOEM took a hard look at what it knew about the

environmental consequences of the spill, and thoughtfully incorporated that

knowledge into the EA, consistent with NEPA requirements.

(4) BOEM’s Reliance on Prior EIS’s

16 Petitioners argue that BOEM cannot rely on tiering from the 2007 Multisale

EIS and 2009 Supplemental EIS because those studies are outdated after the

Deepwater Horizon disaster. Petitioners contend that because BOEM issued a

notice of intent to prepare a supplemental EIS for the 2007-2012 Multisale, which

covers the areas where the Deepwater Horizon disaster occurred and Shell

proposes to drill, BOEM cannot rely on the prior EIS’s in the current Shell EP.

BOEM recognizes that this supplemental EIS is needed “to consider new

circumstances and information arising . . . from the Deepwater Horizon blowout

and spill.” 75 Fed. Reg. 69,122-01 (Nov. 10, 2010). The purpose of the

supplemental EIS is to update baseline conditions and environmental impacts in

the Gulf.

The purpose of OCSLA is the “expedited exploration and development of

the Outer Continental Shelf in order to achieve national economic and energy

policy goals, assure national security, reduce dependence on foreign sources, and

maintain a favorable balance of payments in world trade.” 43 U.S.C. § 1802(1).

BOEM has a responsibility to balance the needs under OCSLA with the

requirements of NEPA. Absent unique site-specific characteristics, BOEM is

entitled to rely on broader prior analyses and tiering is specifically encouraged by

NEPA regulations. See 40 C.F.R. § 1502.20. Tiering allows BOEM to rely on

17 prior work to inform a decision on a current lease. BOEM validly relied on the

prior EIS’s, but also evaluated mitigation measures adopted after the Deepwater

Horizon disaster as factors to consider in determining the current risk of an oil

spill. The agency’s reliance on previous studies was not arbitrary or capricious

because (1) BOEM included all known information about the spill in the Shell EP

and (2) on January 20, 2012, BOEM reported that the conclusions from the most

recent supplemental EIS would not alter any conclusions presented in the 2007

and 2009 EIS’s. We conclude that BOEM’s reliance on the 2007 Multisale EIS

and 2009 Supplemental EIS was not arbitrary or capricious.

(B) ESA Claim

We next turn to Petitioners’ claim that BOEM’s request to reinitiate

consultation conceded the inadequacy of prior consultations and effectively barred

BOEM from approving the Shell EP until consultation was complete. If a federal

agency determines that a proposed action will likely affect a species protected

under the ESA, it must consult with either NMFS or FWS. See 16 U.S.C. §

1536(a)(2). Following the Deepwater Horizon disaster, BOEM reinitiated

consultation with both NMFS and FWS, and those consultations are still ongoing.

Section 7(a)(2) of the ESA requires BOEM to insure that its action “is not

likely to jeopardize” any endangered or threatened species or destroy or adversely

18 modify such species’ habitat. 16 U.S.C. § 1536(a)(2). NMFS and FWS

regulations define “jeopardize the continued existence of” as “to engage in an

action that reasonably would be expected, directly or indirectly, to reduce

appreciably the likelihood of both the survival and recovery of a listed species in

the wild by reducing the reproduction, numbers, or distribution of that species.”

50 C.F.R. § 402.02. Because BOEM acknowledged that the environmental effects

from the Deepwater Horizon disaster may have altered some species or habitats, it

reinitiated consultation with NMFS and FWS. However, BOEM’s reliance on

conclusions by NMFS and FWS from 2007 does not necessarily jeopardize the

continued existence of any species or adversely modify a critical habitat under the

Shell EP. Petitioners have no proof that endangered species are in jeopardy, but

instead argue that the prior consultations are inadequate because BOEM reinitiated

consultation.

There is no precedent in our circuit to support Petitioners’ argument that

BOEM’s choice to reinitiate consultation with NMFS and FWS automatically

renders the former biological opinions invalid.4 The biological opinions of NMFS

4 Petitioners cite to dicta in Envtl. Prot. Info. Ctr. v. Simpson Timber Co., for the proposition that “[r]einitiation of consultation requires either the FWS or the NMFS to issue a new Biological Opinion before the agency action may continue.” 255 F.3d 1073, 1076 (9th Cir. 2001) (citing Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1451 (9th Cir. 1992)). We decline to give this statement any weight since ESA has no such requirement.

19 and FWS were reconfirmed in 2008 and 2009, and have not been withdrawn

despite reinitiation of consultations.5 We need not determine whether continuing

exploratory drilling would violate 16 U.S.C. § 1536(d)6 if no biological opinion

were in place, because BOEM “consider[ed] the existing consultation to remain in

effect until the reinitiated consultation is completed” and under the facts of this

case that decision is not arbitrary or capricious. [Admin. R. 27 at 2.] First, BOEM

engaged in extensive consideration of the impact of the Deepwater Horizon

disaster on the environment and BOEM’s ESA obligations. BOEM stated that the

5 Reinitiation of consultation is required, in part:

. . . (b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;

(c) If the identified action is subsequently modified in a manner that causes an affect to the listed species or critical habitat that was not considered in the biological opinion . . . .

50 C.F.R. § 402.16(b), (c). NMFS and FWS agreed to further consultation based on these standards. They expressed no opinion on the effect of the 2007 opinion.

6 Section 7(d) states in full:

After initiation of consultation required under subsection (a) (2) of this section, the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a) (2) of this section.

16 U.S.C. § 1536(d).

20 risks revealed by the Deepwater Horizon disaster are mitigated by “new notices of

lessees and safety regulations,” as well as “improvements in containment

technology.” [Admin. R. 35 at 3.] The Site-Specific Assessment of the Shell EP

addressed the possibility of events similar to the Deepwater Horizon disaster,

finding that although the effects of the spill on protected species were unknown, to

the extent effects could be predicted, the assessment foresaw greater risk to some

protected species, such as various species of sea turtles, and population level risks

to other species, such as manatees. BOEM concluded that despite the recent

Deepwater Horizon disaster, “impacts are still expected to be minimal to

nonexistent based on the low probability of a spill occurring,” estimating the risk

of an accidental spill at 0.07%. [Admin. R. 338 at 39.] Given the Bureau’s broad

consideration of the Deepwater Horizon disaster and new safety measures, the

Bureau did not act arbitrarily when it relied on the 2007 consultation in

conjunction with more recent studies. Second, BOEM analyzed its ESA

obligations and noted that under OCSLA it could promptly suspend activities if it

realized during the reinitiated consultation with NMFS or FWS that such action

was necessary to avoid jeopardy to threatened or endangered species. On these

facts, the ESA does not require BOEM to delay approval of the Shell EP until

results of reinitiated consultation are received.

21 V. Conclusion

For the reasons stated above, we conclude that BOEM’s decision to approve

the Shell EP was not arbitrary or capricious and instead reflects the agency’s

balance of environmental concerns with the expeditious and orderly exploration of

resources in the Gulf of Mexico.

PETITION FOR REVIEW DENIED.