Wednesday, November 12, 2014

Ninth Circuit Holds Shell Cannot Bring Preemptive APA Suit Against Environmental Groups

On November 12, the Ninth Circuit (Farris, Nelson, Nguyen) issued a decision in Shell Gulf of Mexico Inc. v. Center for Biological Diversity.  This case after the Interior Department’s Bureau of Safety and Enforcement approved Shell’s oil response plans in connection with Shell’s exploration and development of oil and gas resources in the Beaufort and Chukchi Seas on Alaska’s Arctic coast.  Instead of waiting for environmental groups to sue to challenge the Bureau’s approval, Shell—employing what the Ninth Circuit aptly calls a “novel litigation strategy”—filed suit against environmental organizations, seeking a declaratory judgment validating the Bureau’s approval.  The district court denied the environmental groups’ motion to dismiss.  The groups appealed, and the Ninth Circuit reversed.  The Ninth Circuit held that Shell’s lawsuit failed to present a justiciable case or controversy; Shell “may not file suit solely to determine who would prevail in a hypothetical suit between the environmental groups and the Bureau.”

—Todd Aagaard

https://lawprofessors.typepad.com/environmental_law/2014/11/ninth-circuit-holds-shell-cannot-bring-preemptive-apa-suit-against-environmental-groups.html

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