Case 1:21-cv-02317-RC Document 78 Filed 01/27/22 Page 1 of 68
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`FRIENDS OF THE EARTH, et al.,
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`Plaintiffs,
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`v.
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`DEBRA A. HAALAND, et al.,
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`Defendants,
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`STATE OF LOUISIANA,
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`Intervenor-Defendant,
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`AMERICAN PETROLEUM INSTITUTE,
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`Intervenor-Defendant.
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`Civil Action No.:
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`21-2317 (RC)
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`Re Document No.:
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`34, 42, 43, 45
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`MEMORANDUM OPINION
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`GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT;
`GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY
`JUDGMENT; GRANTING IN PART AND DENYING IN PART INTERVENOR-DEFENDANT
`LOUISIANA’S CROSS-MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING
`IN PART INTERVENOR-DEFENDANT AMERICAN PETROLEUM INSTITUTE’S CROSS-MOTION FOR
`SUMMARY JUDGMENT
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`I. INTRODUCTION
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`Lease Sale 257 is the eighth in a series of sales offering federal lands in the Outer
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`Continental Shelf to leasing for the production and development of oil and gas under the Bureau
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`of Ocean Energy Management (“BOEM”)’s 2017–2022 Program. Lease Sale 257 made 80.8
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`million acres in the Gulf of Mexico available for oil and gas leasing, the largest offshore oil and
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`gas lease sale in U.S. history. Organizational Plaintiffs Friends of the Earth, Healthy Gulf, Sierra
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`Club, and Center for Biological Diversity brought suit against the Secretary of the United States
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`Department of the Interior, the Assistant Secretary of the Interior for Land and Minerals
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`Management, the Department of the Interior, and the Bureau of Ocean Energy Management,
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`alleging that the federal defendants violated the National Environmental Policy Act (NEPA) and
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`the Administrative Procedure Act (APA). Compl. ¶¶ 1, 5–8, ECF No. 1.
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`Now pending before the Court are four cross-motions for summary judgment filed by
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`Plaintiffs, Federal Defendants, Intervenor-Defendant Louisiana, and Intervenor-Defendant
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`American Petroleum Institute (“API”). See Mem. Supp. Pls.’ Mot. Summ. J. (“Pls.’ Mot.”), ECF
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`No. 34-1; Defs.’ Mot. Summ. J. & Opp’n Pls.’ Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 45;
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`Mem. Supp. Louisiana’s Cross-Mot. Summ. J. & Opp’n Pls.’ Mot. Summ. J. (“La. Mot.”), ECF
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`No. 42-1; Mem. of Intervenor-Def. American Petroleum Institute in Supp. Cross-Mot. Summ. J.
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`& Opp’n Pls.’ Mot. Summ. J. (“API Mot.”), ECF No. 43-1. For the reasons that follow, the
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`Court will grant in part and deny in part all four motions.
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`II. BACKGROUND
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`The Gulf of Mexico “is a unique and important part of the American landscape and
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`economy.” Oceana v. Bureau of Ocean Energy Mgmt., 37 F. Supp. 3d 147, 151 (D.D.C. 2014).
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`It is one of the nation’s most biologically diverse ecosystems, sustaining thousands of marine
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`plant and animal species, including numerous endangered and threatened species. See Compl. ¶¶
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`54–56, ECF No. 1. It produces over one third of the country’s domestic seafood supply and
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`supports “a robust economy” of coastal tourism and commercial fishing. Id. ¶ 57. It also
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`contains significant oil and gas reserves in the Outer Continental Shelf, “a vast underwater
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`expanse nearly equal in size to the Australian continent” that “extends roughly two hundred
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`miles into the ocean to the seaward limit of the international-law jurisdiction of the United
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`States.” Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588, 592 (D.C. Cir. 2015) [hereinafter
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`“Sustainable Economy”]. Oil and gas production on the Outer Continental Shelf is accomplished
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`through leases that are awarded in a competitive bidding process subject to a complex statutory
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`and regulatory scheme. See, e.g., 43 U.S.C. § 1337. The challenged agency decision in this
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`case, Lease Sale 257, made 80.8 million acres of the Outer Continental Shelf in the Gulf of
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`Mexico available for lease. AR0029790.
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`A. Statutory and Regulatory Context
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`1. Outer Continental Shelf Lands Act (“OCSLA”)
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`The Outer Continental Shelf Leasing Act (“OCSLA”) is the statutory framework under
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`which the Department of the Interior may lease areas of the Outer Continental Shelf. 43 U.S.C.
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`§ 1334; Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 472 (D.C. Cir.
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`2009) [hereinafter “Biological Diversity”]. OCSLA sets forth a four-stage process for potential
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`oil and gas production that is “pyramidic in structure, proceeding from broad-based planning to
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`an increasingly narrower focus as actual development grows more imminent.” State of Cal. ex
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`rel. Brown v. Watt, 668 F.2d 1290, 1297 (D.C. Cir. 1981). First, the Department of the Interior
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`“creates a leasing program by preparing a five-year schedule of proposed lease sales,” and
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`second, “solicits bids and issues leases for particular offshore leasing areas.” Biological
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`Diversity, 563 F.3d at 473. “After a lease is approved, a lessee may conduct ancillary activities,
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`which include geological and geophysical explorations and development, and surveys.” Oceana,
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`37 F. Supp. 3d at 150 (citing 30 C.F.R. § 550.207). At the third stage, lessees must submit a
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`more detailed exploration plan, which Interior may only approve if exploration “will not be
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`unduly harmful to aquatic life in the area, result in pollution, create hazardous or unsafe
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`conditions, unreasonably interfere with other uses of the area, or disturb any site, structure, or
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`object of historical or archeological significance.” 43 U.S.C. § 1340(g)(3). The final stage is the
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`development and production stage, during which “Interior and those affected state and local
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`governments review an additional and more detailed plan from the lessee” that may be
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`terminated if Interior determines that the plan would “probably cause serious harm or damage.”
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`Biological Diversity, 563 F.3d at 473 (quoting 43 U.S.C. § 1351(h)(1)(D)(i)).
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`2. National Environmental Policy Act (“NEPA”)
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`The National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4331 et seq., “is a
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`procedural statute intended to ensure Federal agencies consider the environmental impacts of
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`their actions in the decision-making process.” 40 C.F.R. § 1500.1 (2019).1 It requires Federal
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`agencies to “include in every recommendation or report on . . . major Federal actions
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`significantly affecting the quality of the human environment, a detailed statement by the
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`responsible official” that includes “(i) the environmental impact of the proposed action; (ii) any
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`adverse environmental effects which cannot be avoided should the proposal be implemented,
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`[and] (iii) alternatives to the proposed action.” 42 U.S.C. § 4332(2)(C). “This environmental
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`impact statement [“EIS”], as it has come to be called, has two purposes. It forces the agency to
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`take a ‘hard look’ at the environmental consequences of its actions . . . [and] [i]t also ensures that
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`these environmental consequences, and the agency’s consideration of them, are disclosed to the
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`public.” Sierra Club v. FERC, 867 F.3d 1357, 1367 (D.C. Cir. 2017) [hereinafter “Sierra Club
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`(Southeast Market)”]. NEPA also requires agencies to prepare a supplemental EIS for
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`outstanding federal actions if “[t]here are significant new circumstances or information relevant
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`1 The regulations for NEPA, found at 40 C.F.R. §§ 1500 et seq., were amended in 2020.
`See Update to the Regulations Implementing the Procedural Provisions of the National
`Environmental Policy Act, 85 Fed. Reg. 43,304-01 (July 16, 2020). However, because those
`modifications did not apply to NEPA processes begun before September 14, 2020, id. at 43372–
`73, including this one, the Court will (as the parties have) refer to the regulations as codified at
`40 C.F.R. Parts 1500-08 (2019). See Pls.’ Mot. at 24, n.10; Defs.’ Mot. at 4, n.1.
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`to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. §§
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`1502.9(c)(1)(ii) (2019).
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`3. Interaction of OCSLA and NEPA
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`The statutory schemes of NEPA and OSCLA are not inconsistent. Interior must consider
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`the environmental impacts of a decisions to open up federal lands for oil and gas leases in
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`accordance with NEPA prior to holding a lease sale. See Sec’y of the Interior v. California, 464
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`U.S. 312, 338 (1984) (noting that the “[r]equirements of the National Environmental Protection
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`Act and the Endangered Species Act must be met” before the lease sale stage). And although
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`OCSLA’s primary purpose is development of the Outer Continental Shelf, “OCSLA does not
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`mandate the approval of every proposed lease sale.” Gulf Restoration Network v. Bernhardt, 456
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`F. Supp. 3d 81, 97 (D.D.C. 2020); see also State of Cal. ex rel. Brown, 712 F.2d at 588 (“[W]hile
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`an area excluded from the [Five-Year] leasing program cannot be leased, explored, or developed,
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`an area included in the program may be excluded at a latter stage.”).
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`Nor does the multi-step framework of OCSLA purport to lessen the rigor of the “hard
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`look” that NEPA requires. See 43 U.S.C. § 1346(a)(1) (requiring environmental studies “of any
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`area or region included in any oil and gas lease sale” under OCSLA); (Vill. of False Pass v.
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`Clark, 733 F.2d 605, 609 (9th Cir. 1984) (interpreting § 1346 to mean that “[a]t the lease sale
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`stage, OCSLA implies this review must meet NEPA standards.”). Although the D.C. Circuit has
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`stated that OCSLA itself “concerns the local environmental impact of leasing activities” and
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`therefore “does not authorize—much less require—Interior to consider the environmental impact
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`of post-exploration activities such as consuming fossil fuels on either the world at large,”
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`Biological Diversity, 563 F.3d at 485, that opinion concerned only OCSLA itself and did not
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`reach the NEPA challenges to the Five-Year Program on the merits. “In the context of NEPA,
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`which requires government agencies to comply with its strictures ‘to the fullest extent possible,’
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`42 U.S.C. § 4332(2)(C), courts have been especially reluctant to hold that another statute
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`overrules it.” Nat. Res. Def. Council v. Lujan, 768 F. Supp. 870, 880 (D.D.C. 1991). To the
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`contrary, “NEPA may, within the boundaries set by Congress, authorize the agency to make
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`decisions based on environmental factors not expressly identified in the agency’s underlying
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`statute.” Vill. of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 665 (D.C. Cir. 2011)
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`(quotations omitted). In other words, NEPA sets a floor that agencies must comply with even if
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`an agency’s underlying statute, such as OCSLA, could be construed to set a lower one.
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`B. Factual and Procedural Background
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`1. The Five-Year Lease Plan and the 2018 Supplemental Environmental Impact Statement
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`Lease Sale 257 is part of the 2017–2022 Outer Continental Shelf Oil and Gas Leasing
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`Program, the five-year plan which proposed ten region-wide lease sales. See 82 Fed. Reg. 6643-
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`02 (Jan. 19, 2017); Compl. ¶ 75. When developing that five-year program, BOEM issued both a
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`programmatic EIS for the entire five-year program, AR0014242–15179 (“Program EIS”), and a
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`Multisale EIS for sales 249, 250, 251, 252, 253, 254, 256, 257, 259, and 261, the ten sales
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`planned to occur in the Gulf of Mexico, AR0008116–9973 (“Multisale EIS”). Those EISs were
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`published in 2016 and 2017, respectively. Compl. ¶¶ 79, 82.
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`For multi-step agency programs such as oil and gas leases authorized under OCSLA,
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`“NEPA provides that the environmental analysis conducted at each stage may incorporate by
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`reference previous, related analyses,” a method known as “tiering.” WildEarth Guardians v.
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`Zinke, 368 F. Supp. 3d 41, 53 (D.D.C. 2019). The Multisale EIS stated that BOEM expected to
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`utilize the tiering process to supplement its NEPA analysis “on a regular basis,” and that it
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`expected to “issue a Supplemental EIS once a calendar year.” AR0008202. The Multisale EIS
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`even provided a graphic description of the tiering relationships of its expected supplemental
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`EISs. Figure 1-6, AR0008203 (below).
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` BOEM released a Supplemental EIS for evaluating Lease Sales 250 and 251 in 2017
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`that tiered from and updated the two prior EISs (“The 2018 Supplemental EIS”). AR0015471–
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`16365. But BOEM did not issue another EIS subsequent to the 2018 Supplemental EIS. See
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`Pls.’ Mot. at 9. At one point BOEM issued a notice of intent to prepare an additional
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`supplemental EIS, but it rescinded that notice in early 2020. See 85 Fed. Reg. 2437-02 (Jan. 15,
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`2020). Instead, BOEM published a Determination of NEPA Adequacy on September 11, 2020,
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`that concluded the analysis in the Program EIS, Multisale EIS, and 2018 Supplemental EIS were
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`sufficient to comply with NEPA for the purpose of moving ahead on Lease Sale 257.
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`AR0029969–85.
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`2. The Decision to Hold Lease Sale 257
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`Based on that Determination of NEPA Adequacy, BOEM issued its first Record of
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`Decision for Lease Sale 257 in January 2021, during the final days of the Trump administration.
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`See 86 Fed. Reg. 6365-01 (Jan. 21, 2021). But just a few days later, President Biden issued
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`Executive Order 14,008, which in relevant part “pause[d] new oil and natural gas leases on
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`public lands or in offshore waters pending completion of a comprehensive review and
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`reconsideration.” Exec. Ord. 14008, Tackling the Climate Crisis at Home and Abroad § 208, 86
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`Fed. Reg. 7619, 7624-25 (Jan. 27, 2021). The Record of Decision to hold Lease Sale 257 was
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`rescinded in accordance with that executive order. 86 Fed. Reg. 10,132-01 (Feb. 18, 2021).
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`Louisiana, along with a coalition of states, brought suit challenging that recission in the
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`Western District of Louisiana, and the district court there preliminarily enjoined Interior officials
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`from “implementing the Pause of new oil and natural gas leases on public lands or in offshore
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`waters,” including with respect to Lease Sale 257. Louisiana v. Biden, -- F. Supp. 3d --, No.
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`2:21-cv-778, 2021 WL 2446010, at *22 (W.D. La. June 15, 2021). In accordance with that
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`injunction, BOEM moved forward with Lease Sale 257, issuing another Determination of NEPA
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`Adequacy in August 2021 stating that a supplemental EIS was not required for the sale.
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`AR0029801–942. BOEM issued a new Record of Decision for Lease Sale 257 on August 31,
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`2021, AR0029788–800, which was published in the Federal Register on September 7, 2021, 86
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`Fed. Reg. 50,160-02 (Sept. 7, 2021).
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`3. The Current Status of Lease Sale 257 and Procedural Background
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`Immediately after the Federal Defendants published the new Record of Decision to hold
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`Lease Sale 257, Plaintiffs filed the present action alleging that the Federal Defendants violated
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`NEPA and the APA. Compl. ¶¶ 1, 5–8. The State of Louisiana and API sought and were
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`granted leave to intervene as defendants. See Order of Sept. 22, 2021, ECF No. 24 (granting
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`Louisiana’s motion to intervene); Mem. Op. & Order Granting API’s Mot. Intervene, ECF No.
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`60 (granting API’s motion to intervene).
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`The parties agreed to an expedited briefing schedule for summary judgment that would
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`allow the purely legal issues in this case to be resolved after Lease Sale 257 took place, but
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`before the leases were issued. See Joint Status Report of Sept. 20, 2021 (proposing briefing
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`schedule); Order of Sept. 22, 2021 (setting merits briefing schedule); Minute Order of Dec. 8,
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`2021 (granting a limited extension of the briefing schedule). The schedule was based on the
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`Federal Defendants’ representations that the earliest any lease from the sale would become
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`effective was February 1, 2022. See 2d Decl. Bernadette Thomas ¶ 9, ECF No. 58-1.
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`The challenged lease sale was held on November 17, 2021, but the leases have not yet
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`been awarded.2 Id. ¶ 4. Now pending before the Court are four cross-motions for summary
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`judgment filed by Plaintiffs, Federal Defendants, Louisiana, and API, see generally Pls.’ Mot.;
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`Defs.’ Mot.; La. Mot.; API Mot., to which the parties have filed their respective oppositions and
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`replies, see generally Pls.’ Combined Opp’n & Reply Supp. Mot. Summ. J. (“Pls.’ Opp’n”), ECF
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`No. 51; Reply Supp. Louisiana’s Cross-Mot. Summ. J. & Opp’n Pls.’ Mot. Summ. J. (“La.
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`Reply”), ECF No. 64, Defs.’ Reply Supp. Mot. Summ. J. (“Defs.’ Reply”), ECF No. 65; Reply
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`Br. Intervenor-Def. American Petroleum Institute Supp. Cross-Mot. Summ. J. (“API Reply”),
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`ECF No. 66. The Court has also considered the amicus briefs filed by Members of Congress and
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`Chevron, USA. Amicus Curiae Br. Members Congress Supp. Pls.’ Mot. Summ. J. (“Congress
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`Amicus Br.”), ECF No. 57; Chevron U.S.A., Inc.’s Amicus Br. Supp. Defs.’ & Intervenor-Def.s’
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`Mots. Summ. J. & Opp’n Pls.’ Mot. Summ. J. (“Chevron Amicus Br.”), ECF No. 71.
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`2 Chevron was the apparent high bidder on 34 tracts in that sale, leading it to move to
`intervene. See Chevron U.S.A. Inc.’s Mot. Intervene Supp. Defs. at 1, ECF No. 53. The Court
`denied Chevron’s intervention as a party but granted it leave to file an amicus brief. Mem. Op.
`& Order Denying Chevron U.S.A., Inc.’s Mot. Intervene, ECF No. 70.
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`III. LEGAL STANDARD
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`In a typical case, a court may grant summary judgment to a movant who “shows that
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`there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
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`matter of law.” Fed. R. Civ. P. 56(a). But when assessing administrative action, at the summary
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`judgment stage “the district judge sits as an appellate tribunal,” Am. Bioscience, Inc. v.
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`Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001), limited to determining whether, as a matter of
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`law, the evidence in the administrative record supports the agency’s decision, Citizens for
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`Responsibility & Ethics in Wash. v. SEC, 916 F. Supp. 2d 141, 145 (D.D.C. 2013). “In the APA
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`context, summary judgment is the mechanism for deciding whether, as a matter of law, an
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`agency action is supported by the administrative record and is otherwise consistent with the APA
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`standard of review.” Gulf Restoration Network, 456 F. Supp. 3d at 93. Accordingly, judicial
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`review is limited to “deciding whether, as a matter of law, an agency action is supported by the
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`administrative record and is otherwise consistent with the APA standard of review.” Id.
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`Under the APA, a reviewing court may set aside agency action if it is “arbitrary,
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`capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2).
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`Agency action is “arbitrary and capricious if the agency has relied on factors which Congress has
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`not intended it to consider, entirely failed to consider an important aspect of the problem, offered
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`an explanation for its decision that runs counter to the evidence before the agency, or is so
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`implausible that it could not be ascribed to a difference in view or the product of agency
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`expertise.” Motor Vehicle Ass’n v. State Farm Mutual Auto. Ins., 463 U.S. 29, 43 (1983).
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`“Although this inquiry into the facts is to be searching and careful, the ultimate standard of
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`review is a narrow one. The court is not empowered to substitute its judgment for that of the
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`agency.” Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 416 (1971).
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`“This standard applies when assessing an agency’s compliance with NEPA.” WildEarth
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`Guardians, 368 F. Supp. 3d at 57–58. “An environmental impact statement is reviewed to
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`ensure that the agency took a hard look at the environmental consequences of its decision to go
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`forward with the project.” Nat’l Comm. for the New River v. FERC, 373 F.3d 1323, 1327 (D.C.
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`Cir. 2004) (internal quotations and citation omitted). “When an agency is evaluating scientific
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`data within its technical expertise, an extreme degree of deference to the agency is warranted.”
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`Id. (internal quotation marks and citation omitted). Therefore, the Court’s task “is not to
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`‘flyspeck’” the agency’s analysis “for ‘any deficiency no matter how minor.’” Sierra Club v.
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`FERC, 827 F.3d 36, 46 (D.C. Cir. 2016) (quoting Theodore Roosevelt Conservation P’ship v.
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`Salazar, 661 F.3d 66, 75 (D.C. Cir. 2011)). Rather, NEPA’s “rule of reason” dictates that an
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`agency’s assessment is sufficient unless its “deficiencies are significant enough to undermine
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`informed public comment and informed decisionmaking.” Sierra Club (Southeast Market), 867
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`F.3d at 1368 (citing Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767 (2017); Oceana, 37 F.
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`Supp. 3d at 154.
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`IV. ANALYSIS
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`A. Ripeness
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`As a threshold issue, Intervenor-Defendants API and Louisiana first argue that Plaintiffs’
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`claims are not ripe. See La. Mot. at 8–10; API Mot. at 16–18; see also Sustainable Econ. v.
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`Jewell, 779 F.3d at 596 (“We must address standing and ripeness issues at the threshold.”).3 The
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`3Although none of the parties have challenged Plaintiffs’ standing, the Plaintiff
`organizations have attached multiple declarations of their members that satisfy their burden of
`establishing Article III standing. See WildEarth Guardians, 368 F. Supp. 3d at 60 (“Plaintiffs, as
`the parties invoking this Court’s jurisdiction, bear the burden of establishing all three elements of
`standing.”). “[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they
`use the affected area and are persons ‘for whom the aesthetic and recreational values of the area
`will be lessened’ by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Envt’l Servs.
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`ripeness doctrine limits Article III courts to hearing cases that are “constitutionally and
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`prudentially ripe,” meaning that they involve a “present injury” and “take into account prudential
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`concerns” of whether judicial resolution is appropriate at that time. Wyo. Outdoor Council v.
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`U.S. Forest Serv., 165 F.3d 43, 48 (D.C. Cir. 1999). In the NEPA context, “an agency’s NEPA
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`obligations mature only once it reaches a ‘critical stage of a decision which will result in
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`irreversible and irretrievable commitments of resources to an action that will affect the
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`environment.’” Ctr. for Biological Diversity, 563 F.3d at 480 (quoting Wyo. Outdoor Council,
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`165 F.3d at 49).
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`The D.C. Circuit has addressed the issue of NEPA ripeness in the context of multi-stage
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`leasing programs such as OCSLA on several occasions. For instance, in both Biological
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`Diversity and Sustainable Economy, the Circuit rejected as unripe NEPA claims brought at the
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`first stage of the OCSLA process: the five-year program. See Sustainable Econ., 779 F.3d at 599
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`(“Here, as in [Biological Diversity], we confront a challenge to a multiple-stage program under
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`which no lease sale has yet occurred and no irreversible and irretrievable commitment of
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`resources has been made.”); Biological Diversity, 563 F.3d at 480. Both of those cases
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`suggested that those claims would normally ripen at the second stage of OCSLA: the lease sale
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`(TOC), Inc., 528 U.S. 167, 183 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735
`(1972)). The declarations include detailed descriptions of members’ planned and ongoing use of
`geographic areas in and around the Gulf of Mexico—including personal, recreational, aesthetic,
`and commercial use—that adequately establish an injury-in-fact. See Decls., ECF Nos. 34-2–34-
`8. These declarations likewise satisfy the causation and redressability prongs of standing. “In
`NEPA procedural-injury cases, an ‘adequate causal chain’ contains two links: ‘one connecting
`the omitted EIS to some substantive government decision that may have been wrongly decided
`because of the lack of an adequate EIS,’ and ‘one connecting that substantive decision to the
`plaintiff’s particularized injury.’” WildEarth Guardians, 368 F. Supp. 3d at 63 (quoting Fla.
`Audubon Soc’y, 94 F.3d at 668). Here, the Federal Defendants’ alleged failure to comply with
`NEPA led directly to the Record of Decision and the holding of Lease Sale 257, “which will
`enable the oil and gas development causing Plaintiffs’ injuries.” Id.
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`stage, which is the one at issue in the present case. See Sustainable Econ., 779 F.3d at 600
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`(“[Plaintiff] will have an opportunity to raise its NEPA claims . . . in response to specific lease
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`sales.”); Biological Diversity, 563 F.3d at 481 (“Petitioners suffer little by having to wait until
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`the leasing stage has commenced . . . .”).
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`Unlike Biological Diversity and Sustainable Economy, this case has been brought at the
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`lease sale stage, the second step of the OCSLA process. Courts in this district and others have
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`routinely addressed NEPA claims on the merits at this stage. See, e.g., Gulf Restoration
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`Network, 456 F. Supp. 3d at 90; Oceana, 37 F. Supp. 3d 147, 154 (D.D.C. 2014); Defs. of
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`Wildlife v. Bureau of Ocean Energy Mgmt., Regul., Enf’t, 871 F. Supp. 2d 1312, 1333 (S.D. Ala.
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`2012) (“NEPA and its [Supplemental EIS] requirement undoubtedly apply to the bid approval
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`stage of an OCSLA drilling project.”).
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`When this action was filed, the Record of Decision to hold Lease Sale 257 had been
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`published and BOEM had issued a determination of NEPA adequacy for that decision, but the
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`sale had not yet taken place. See Compl. ¶ 4. Since then, the sale has gone forward as planned,
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`and high bidders identified, but no leases have yet become effective. See 2d Decl. of Bernadette
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`Thomas ¶¶ 4, 9. The fact that the leases have not become effective does not impact the Court’s
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`ripeness analysis. Although additional steps occur between the sale and the issuance of the
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`leases, none of those steps involve further environmental analysis, and no party argues
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`otherwise.4 The Record of Decision is thus the final agency action that “mark[s] the
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`4 Louisiana’s opening ripeness argument at points appears to make this argument. See
`La. Mot. at 9 (“The D.C. Circuit and courts in this Circuit have consistently . . . reject[ed] NEPA
`challenges to OCSLA oil and gas actions as unripe whenever they occur before leases are
`issued.”); id. (“Merely holding a lease sale confers no right to perform any surface disturbing
`activity. And BOEM retains authority to reject bids and impose conditions upon leases issued.”).
`But Louisiana’s Reply brief effectively concedes any suggestion of this argument, citing at
`length the relevant portion of the District Court opinion in Fisheries which noted that
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`consummation of the agency’s decisionmaking process” for Lease Sale 257 and is an action
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`“from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997)
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`(cleaned up).
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`Intervenor-Defendants rely heavily on the Circuit’s recent per curiam opinion in
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`Fisheries Survival Fund v. Haaland, 858 F. App’x 371 (D.C. Cir. 2021), in which a NEPA
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`challenge to an offshore wind farm was found to not be ripe even after the challenged lease was
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`issued because BOEM had reserved the right to preclude all activity on the lease site pending
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`further evaluation of development plans. There, the Circuit clarified that the relevant question is
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`not whether any given stage has been reached, but whether the specific lease in question
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`“reserves both the authority to preclude all activities pending submission of site-specific
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`proposals and the authority to prevent proposed activities if the environmental consequences are
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`unacceptable.” Id. at 372 (quoting Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir.
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`1983)). In particular, Defendant-Intervenors point to language in the district court opinion in
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`Fisheries that described the relevant inquiry as whether the agency retains the authority to
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`“preclude all surface disturbing activities.” Fisheries Survival Fund v. Jewell, No. 16-cv-2409,
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`2018 WL 4705795, at *7 (D.D.C. Sept. 30, 2018), aff’d sub nom. Fisheries Survival Fund v.
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`Haaland, 858 F. App’x 371) (quoting Wyo. Outdoor Council, 165 F.3d at 49); see also id. at *9,
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`n.7 (“[T]he heart of [ripeness] is the question of whether the agency retains the authority to
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`“identif[ying] lease issuance as the point when NEPA claims ripen” is “misleading” because
`those cases “described lease issuance as the critical stage for ripeness only as part of an explicit
`application of the Peterson rule.” See La. Reply at 5–6 (quoting Fisheries Survival Fund v.
`Jewell, No. 16-cv-2409, 2018 WL 4705795, at *9, n.7 (D.D.C. Sept. 30, 2018), aff’d sub nom.
`Fisheries Survival Fund v. Haaland, 858 F. App’x 371). Neither Louisiana nor any other party
`puts forth any reason as to why waiting for the issuance of the leases will result in a different or
`more factually developed administrative record, or points to any additional NEPA analysis that
`takes place between the lease sale and the issuance of the lease.
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`Case 1:21-cv-02317-RC Document 78 Filed 01/27/22 Page 15 of 68
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`preclude all surface disturbing activity.”). Defendant-Intervenors take this language to mean that
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`as long as BOEM can still theoretically prevent drilling, NEPA claims are unripe and thus
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`unreviewable.5 See API Mot. at 18; La. Reply at 6.
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`Defendant-Intervenors’ interpretation overextends the relevant precedent and fails to take
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`into account the differences between this lease sale and the one in Fisheries. As the D.C. Circuit
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`has explained in the context of the Endangered Species Act, which agencies must similarly apply
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`at each phase of the OCSLA process, “the multi-stage nature of leasing programs under
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`OCSLA” requires courts to “consider any environmental effects of a leasing program on a stage-
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`by-stage basis, and correspondingly evaluate [the statute’s] obligations with respect to each
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`particular stage of the program.” Biological Diversity, 563 F.3d at 483; see also Oceana, 37 F.
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`Supp. 3d at 162 (“NEPA regulations provide that agencies are allowed to ‘tier their
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`environmental impact statements to eliminate repetitive discussions of the same issues and to
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`focus on the actual issues ripe for decision at each level of environmental review.’” (quoting 40
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`C.F.R. § 1502.20 (2013)) (emphasis added)). Determining which NEPA claims are ripe at which
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`stages of the OSCLA process will necessarily overlap somewhat with the merits of the challenge,
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`as Plaintiffs point out. See Pls.’ Opp’n at 38. But that is a feature of the multi-stage process, not
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`a bug. See Biological Diversity, 563 F.3d at 473 (“This multi-tiered approach was designed to
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`forestall premature litigation regarding adverse environmental effects that will flow, if at all,
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`5 Defendant-Intervenors’ argument also overlooks the procedural nature of a NEPA
`injury. Plaintiffs may hope that BOEM will change its mind, but their alleged injury is not that
`drilling may eventually occur, but that it may occur without the requisite “hard look” being
`taken. See Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 737 (1998) (“[A] person with
`standing who is injured by a failure to comply with the NEPA procedure may complain of that
`failure at the time the failure takes place, for the claim can never get riper.”).
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`only from the latter stages of [Outer Continental Shelf] exploration and production.” (internal
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`quotations omitted)).
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`Peterson, the case upon which Fisheries primarily relies, provides a useful example. As
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`Plaintiffs point out, that case addressed on the merits whether the agency was obligated to
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`prepare an EIS before a lease sale even though it anticipated conducting further analysis of the
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`site-specific plans for exploration and development. Sierra Club v. Peterson, 717 F.2d 1409,
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`1413 (D.C.