Posted on June 8, 2022
The U.S. government cannot issue any drilling permits that authorize the use of hydraulic fracturing and acidization off the coast of California until it issues a full Environmental Impact Statement, a federal appeals court held Friday.
The 9th U.S. Circuit Court of Appeals said the Obama administration violated the National Environmental Policy Act (NEPA) in May 2016, when it found that no EIS was necessary because fracking, acidization and other advanced “well stimulation techniques” would have no significant impact on the environment.
Rather than take the “hard look” required by NEPA, two agencies of the U.S. Interior Department relied on “flawed assumptions,” brushed aside gaps in their knowledge as well as known risks in an apparent attempt to justify their earlier practice of allowing offshore fracking and acidization without any environmental review, Circuit Judge Ronald Gould wrote for the panel.
“NEPA review cannot be used as a subterfuge designed to rationalize a decision already made … But that appears to be what happened here,” Gould wrote, joined by Circuit Judges J. Clifford Wallace and Carlos Bea.
The decision affirms and expands a December 2018 ruling by a federal judge in Los Angeles in consolidated cases brought by the Environmental Defense Center, the Center for Biological Diversity, other environmental groups, the state of California, and the California Coastal Commission.
The judge found the Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement had violated the Endangered Species Act and another environmental law, but not NEPA. He ordered the agencies to stop issuing permits until they consulted with the U.S. Fish and Wildlife Service and the Coastal Commission – which they are still doing, the 9th Circuit said.
The agencies’ lawyer did not immediately respond to requests for comment on Friday. The decision is also a loss for Exxon Mobil, drilling services firm DCOR, and the American Petroleum Institute, which intervened as parties in support of the agencies, and had no immediate comment.
Attorneys for the challengers hailed multiple aspects of the decision.
California Attorney General Rob Bonta emphasized the dangers of offshore drilling generally, and called the agencies’ finding of no significant impact “fundamentally untrue.”
Kristin Monsell of the Center for Biological Diversity added that requiring the Interior Department to prepare an EIS – generally a multi-year process – means the public will have an opportunity to comment “and otherwise be involved in the agency’s decisionmaking process.”
In addition, the decision is important because the court rejected the government’s argument that its findings were “insulated from judicial review” — until a new permit is issued, EDC Senior Attorney Maggie Hall said.
The lead case is Environmental Defense Center et al v. Bureau of Ocean Energy Management et al., 9th U.S. Circuit Court of Appeals No. 19-55526.
For Environmental Defense Center and Santa Barbara Channelkeeper: Margaret Morgan Hall and Linda Krop of EDC
For Center for Biological Diversity and Wishtoyo Foundation: Emily Jeffers, Kristen Monsell, and A. Jean Su of CBD
For California and the California Coastal Commission: David Alderson and George Torgun, California Attorney General’s Office
For the federal appellants: James Maysonett of the U.S. Justice Department
For Exxon Mobil: Jonathan Hunter of Jones Walker and Mark Oppenheimer of O’Melveny & Myers
For DCOR Ltd: L. Poe Leggette, Baker & Hostetler
For American Petroleum Institute: Bradley Ervin and Steven Rosenbaum of Covington & Burling