Native Village of Point Hope v. Jewell

The Ninth Circuit reversed a district court’s grant of summary judgment to the federal government in a case challenging the Bureau of Ocean Energy Management’s (BOEM’s) approval of an oil and gas lease sale in the Chukchi Sea off the northwest coast of Alaska. The Ninth Circuit “largely” agreed with the district court that BOEM had not abused its discretion in its handling of missing information in the environmental review under the National Environmental Policy Act.  The Ninth Circuit agreed, however, with the plaintiffs-appellants that BOEM had acted arbitrarily in choosing a one billion barrel estimate for the amount of economically recoverable oil from the lease sale, and that BOEM’s environmental review and ultimate decision were therefore based on inadequate information. Evidence in the record showed that BOEM employees, other agencies, and public commentators had expressed concerns about the rationale for the one billion barrel estimate and whether it significantly underestimated the likely amount of recoverable oil. The Ninth Circuit was not persuaded by the government’s argument that any errors in the estimate could be corrected for in site-specific environmental reviews later in the development process because “[i]t is only at the lease sale stage that the agency can adequately consider cumulative effects of the lease sale on the environment, including the overall risk of oil spills and the effects of the sale on climate change.”  The Ninth Circuit therefore held that since BOEM had decided oil production was reasonably foreseeable, it should have based its analysis on “the full range of likely production if oil production were to occur.”  Judge Rawlinson dissented in part, indicating that he would have deferred to the agency on the issue of the one billion gallon estimate.