Center for Biological Diversity v. Bernhardt

The Ninth Circuit Court of Appeals vacated the Bureau of Ocean Energy Management’s (BOEM) approval of an offshore drilling and production facility off the coast of Alaska in the Beaufort Sea, finding that BOEM failed to comply with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA). Although the Ninth Circuit disagreed with the petitioner’s argument that BOEM’s NEPA analyses used different methodologies to calculate the lifecycle greenhouse gas emissions from the project and the no-action alternative, the court agreed that BOEM’s alternatives analysis was arbitrary and capricious because it failed to consider greenhouse gas emissions from foreign oil consumption in the analysis of the no-action alternative. The court said BOEM must either quantitatively evaluate such emissions or “thoroughly explain why such an estimate is impossible” and provide “a more thorough discussion of how foreign oil consumption might change” the analysis of greenhouse gas emissions. The Ninth Circuit held that BOEM violated the ESA by relying on nonbinding mitigation measures to conclude the project would not adversely modify polar bear critical habitat and by failing to estimate the project’s nonlethal take of polar bears.

Five environmental groups led by Center for Biological Diversity filed a petition in the Ninth Circuit Court of Appeals seeking review of Bureau of Ocean Energy Management’s (BOEM’s) decision to approve an offshore oil and gas development and production plan submitted by Hilcorp Alaska, LLC, for the Liberty Project located in the Beaufort Sea offshore of Alaska and also of the U.S. Fish and Wildlife Service’s (FWS’s) biological opinion for the construction and operation of the project. The groups said that BOEM’s approval of the plan violated the National Environmental Policy Act, the Outer Continental Shelf Lands Act, and the Administrative Procedure Act, and that FWS violated the Endangered Species Act.