In a decision released on June 11, 2015, the U.S. Court of Appeals for the Ninth Circuit, by a 2 to 1 decision, affirmed the lower court’s grant of summary judgments in favor of the Department of the Interior, the Bureau of Safety and Environmental Enforcement (the Bureau) and two Shell Oil entities, Shell Gulf of Mexico, Inc. and Shell Offshore, Inc. with respect to the Bureau’s approval of Shell’s oil spill response plans. These companies were awarded leases to explore for oil in the Beaufort and Chukchi Seas off Alaska’s Arctic coast, and the court noted Shell’s plans have been “waylaid by a variety of legal, logistical, and environmental problems, including multiple lawsuits, the wreck of one of its drilling rigs, and the temporary suspension of drilling activities in the Arctic after the Deepwater Horizon spill.” At least eight separate challenges to the Shell leases have been heard by the Ninth Circuit to date. Several environmental organizations challenged the decision of the government to approve two of Shell’s oil spill response plans, arguing that the approval was arbitrary and capricious in violation of the Administrative Procedure Act.
The majority opinion concluded that the statutory requirements of the Clean Water Act’s (CAA) provisions regarding of the review of offshore oil spill response plans limited the Bureau’s discretion in deciding whether to approve such plans; so long as the applicant’s plan satisfied the CAA, the Bureau’s approval was mandatory and did not trigger a requirement for interagency consultation under the Endangered Species Act before approving the oil spill response plans. In addition, the Bureau’s review of the adequacy of Shell’s oil spill response plans was subject to Chevron deference, to which the court acceded. Citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Regarding the complaint that NEPA review of these plans was also short circuited, the court held that since the Bureau’s discretion was limited, ESA consultation and NEPA review were not required. A strong dissent was filed.
The case is Alaska Wilderness League, et. al. v. Jewell.