Ctr. for Biological Diversity v. Bernhardt - 982 F.3d 723 (9th Cir. 2020)

Rule:

An agency acts arbitrarily and capriciously when it reaches a decision that is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Facts:

The site of the Liberty project- an offshore drilling and production facility along the coast of Alaska in the Beaufort Sea is governed by the Outer Continental Shelf Lands Act (OCSLA). Before Hillcorp Alaska, LLC could begin drilling, it had to obtain approval of the Liberty project from Bureau of Ocean Energy Management (BOEM). Three environmental statutes and their concomitant regulations governed BOEM's approval: the National Environmental Policy Act (NEPA), the Endangered Species Act (ESA); and the Marine Mammal Protection Act of 1973. Relying on a biological opinion prepared by the U.S. Fish and Wildlife Service and BOEM's environmental impact statement (EIS), BOEM's Regional Supervisor of Leasing and Plans signed a record of decision approving the Liberty project. A petition for review was brought by Center For Biological Diversity, Defenders Of Wildlife, Friends Of The Earth, Greenpeace USA, Pacific Environment, petitioner conservation groups, challenging the U.S. Department of Interior's Bureau of Ocean Energy Management (BOEM)'s approval of the Liberty project.

Issue:

Did the BOEM act arbitrarily and capriciously in approving the Liberty Project relying on a biological opinion prepared by FWS and BOEM’s?

Answer:

Yes.

Conclusion:

The court held that where conservation organizations disputed the legality of the actions of the Bureau of Ocean Energy Management (BOEM) and the U.S. Fish and Wildlife Service (FWS) in approving a project for offshore drilling and production facility along the coast of Alaska, BOEM acted arbitrarily and capriciously by failing to quantify the emissions resulting from foreign oil consumption in its EIS as required by NEPA, or, at least, explaining thoroughly why it could not do so and summarizing the research upon which it relied. The court further held that the FWS violated the ESA by relying upon uncertain, nonbinding mitigation measures in reaching its no-adverse-effect conclusion in its biological opinion and by failing to estimate the project's amount of nonlethal take of polar bears. Thus, as the FWS's biological opinion was flawed and unlawful, BOEM's reliance on the FWS's opinion was arbitrary and capricious.