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Ninth Circuit Finds BLM Not Required to Prepare New EIS Prior to Approving New Oil and Gas Leases in Alaska

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By Christina Berglund

In Northern Alaska Environmental Center v. U.S. Dept. of the Interior the Ninth Circuit affirmed the U.S. District Court’s summary judgment in favor of the Bureau of Land Management (BLM) holding that BLM was not required to prepare a new environmental document under the National Environmental Policy Act (NEPA) (42 U.S.C., § 4321 et seq.) prior to its 2017 offer and sale of oil and gas leases in the National Petroleum Reserve-Alaska (Reserve). [Northern Alaska Environmental Center v. U.S. Dept. of the Interior, 965 F.3d 705 (9th 2020).]

Factual and Procedural History

The National Petroleum Reserve-Alaska comprises over 23 million acres of land, of which BLM manages 22.6 million acres, and is located along the north coast of Alaska. In 2012, BLM published a combined Integrated Activity Plan and Environmental Impact Statement (collectively: 2012 EIS) designed to determine the appropriate management of all BLM-managed lands in the Reserve.

BLM anticipated that the 2012 EIS would meet NEPA’s requirements for the initial oil and gas lease sale. As to subsequent lease sales, the 2012 EIS stated that BLM would prepare an administrative determination of NEPA adequacy (DNA) to see whether the 2012 analysis remained adequate.

In 2013, the BLM published a Record of Decision (ROD). BLM subsequently offered oil and gas leases on 1-2 million acres of the Reserve each year through 2016. In connection with each offering, BLM prepared a DNA concluding that the 2012 EIS remained adequate to meet the requirements of NEPA and no further NEPA documentation was required.

In 2017, BLM issued a call for nominations and comments on all unleased tracts for the 2017 lease sale. Plaintiffs submitted a joint comment letter contending, in part, that BLM was required to prepare a new, “site-specific” NEPA analysis in connection with the 2017 lease sale. BLM, however, issued a DNA evaluating the adequacy of the 2012 EIS with respect to the 2017 lease offering, which concluded the 2017 offering was part of the preferred alternative analyzed in 2012 and that no new information or circumstances substantially changed the prior analysis.

Plaintiffs disagreed and filed a complaint alleging BLM had conducted the 2017 lease sale without complying with NEPA. Specifically, the complaint alleged two causes of action: 1) that BLM failed to prepare a NEPA analysis; and 2) BLM failed to take a “hard look” at environmental impacts.

While BLM was soliciting bids for the available tracts, the United States Geological Survey (USGS) published an updated assessment that estimated the amount of technically recoverable oil in the Reserve to be 8.7 billion barrels. The complaint highlighted the updated USGS assessment. After plaintiffs filed the complaint, BLM issued a revised DNA explaining that agency found the updated USGS assessment unusable information because it did not provide an estimate of economically recoverable resources and because it included land outside of the Reserve.

On cross-motions for summary judgment, the District Court held that BLM was not required to prepare a new NEPA document for the 2017 lease sale. The court concluded that the 2012 EIS was the required NEPA document and a parcel-specific analysis was not required until BLM reviewed actual exploration and development proposals.

This appeal followed.

The Ninth Circuit’s Decision

The Ninth Circuit reviewed the District Court’s grant of summary judgment de novo and then moved on to the issues at hand.

Statute of Limitations

As a threshold matter, the court considered whether the 60-day statute of limitations set forth in the Naval Petroleum Reserves Production Act (NRPA) (42 U.S.C. § 6506(a)(n)(1) barred plaintiffs’ claims. To do so, the court concluded that its task was to resolve whether the analysis in the 2012 EIS covered BLM’s 2017 lease offering. The court held that the proper inquiry is whether the initial EIS defined its scope as including the subsequent action.

The court noted that the dispute in this matter is not whether an EIS must be prepared for a decision to approve an oil and gas lease—but rather, whether an EIS had already been prepared for this matter. The court rejected plaintiffs’ claim that a single NEPA document cannot be both a programmatic and site-specific finding that nothing in NEPA or relevant case law precludes an agency from using a single document to undertake both programmatic-level analysis and site-specific analysis.

Concluding that the 2012 EIS could be used as the analysis for the 2017 lease offering, the court next considered the level of site-specificity that NEPA requires. The court found that the detail NEPA requires in an EIS is dependent on the nature and scope of the proposed action and therefore a fact-specific analysis. Because the court had already concluded that the 2012 EIS covered future lease sales, the NRPA statute of limitations barred it from considering whether the 2012 EIS included the precise degree of site specificity. While the court agreed that some site-specific analysis was required for the 2017 lease sale, it was not persuaded that the 2012 EIS could not be interpreted to cover the 2017 action.

Subsequent Actions

Next the court considered what type of NEPA analysis is required for a future action. The court declined both parties’ contention that the relevant inquiry is whether the previous EIS adequately analyzed the impacts of the subsequent action. The court’s concern with this approach was that it may, in some situations, render the statute of limitations meaningless—particularly where a previously studied action remains to occur after expiration of the limitations period. Nor was the court satisfied with simply applying the statute of limitations to bar any inquiry into whether the initial EIS was adequate.

Instead, the Ninth Circuit looked to whether the initial EIS purported to be the EIS for a subsequent action, i.e., whether the 2012 EIS provided an accurate description of the proposed action as inclusive of future lease offerings. The court stated that “in deciding whether a previous EIS is the EIS for a subsequent action, we find it appropriate to rely on the EIS’ defined scope.”

Using that framework, the court concluded the 2017 action was within the scope of the action proposed in the 2012 EIS. The 2012 EIS provided that future lease sales might require only administrative determination of NEPA adequacy, which the court found implied that future leases were considered as part of the analyzed action. Similarly, because the EIS did not describe future lease sales as future actions further implied that future lease sales were components of the action analyzed in the 2012 EIS. Finally, that the 2012 EIS stated that it “will entirely fulfill the NEPA requirements for the first lease sale” suggested to the court that all lease sales were within the scope of the subject action.

Conclusion and Implications

The Ninth Circuit thus affirmed District Court’s grant of summary judgment in favor of BLM. Because it concluded that the 2012 EIS was the EIS for the 2017 lease sale, the court held that the NPRA statute of limitations prevented it from inquiring into whether the 2012 EIS took a sufficiently hard look at the impacts of the 2017 action—and therefore plaintiffs’ second claim was barred. Moreover, any contention that BLM failed to meet its obligation to analyze new circumstances or new information was waived because plaintiffs did not assert a cause of action that supplemental analysis was required based on the new USGS assessment.

This case provides an interesting foil to supplemental or subsequent environmental review requirements under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). As is seen in the court’s analysis, NEPA does not have the same substantive mandates required by CEQA in determining when supplemental or subsequent review is required. The Ninth Circuit’s opinion is available online at: