Friday, June 12, 2015

Ninth Circuit Upholds Interior Department’s Approval of Shell Oil Spill Response Plans for Alaska Offshore Oil Development

On June 12, the Ninth Circuit (Farris, Nelson (dissenting), Nguyen) issued a decision in Alaska Wilderness League v. Jewell.  In 2012, the Bureau of Safety and Environmental Enforcement within the Department of the Interior approved oil spill response plans for Shell’s efforts to develop offshore oil and gas resources in the Beaufort and Chukchi seas of Alaska.  Several environmental organizations sued to challenge the agency’s decision, the district court granted judgment for the agency, and the environmentalists appealed.

The Ninth Circuit affirmed.  First, the court held that, contrary to the environmentalists’ assertions, Shell’s plans did not assume that cleanup efforts would recover 95% of oil released in a spill.  The court went on to uphold as reasonable the agency’s interpretation of the Oil Pollution Act as requiring the agency, without discretion, to approve any spill response plan that satisfies the Act’s requirements.  Because the agency lacked discretion with respect to spill plan approvals, the decision to approve did not trigger the Endangered Species Act’s consultation requirements or NEPA’s environmental review requirements.

Judge Nelson dissented.  She would hold that the agency retains sufficient discretion in its approval of spill response plans under the Oil Pollution Act such that the agency was required to consult pursuant to the Endangered Species Act and to comply with NEPA.

—Todd Aagaard

| Permalink