Federal agencies cannot approve permits for offshore well stimulation treatments near California until they complete a more thorough environmental review, the Ninth Circuit said Friday in a setback for
According to the United States Court of Appeals for the Ninth Circuit, offshore well stimulation treatments can harm endangered or threatened species and affect “unique geographic areas” of the Pacific outer continental shelf. The effects of the treatments are also “highly uncertain and involve unknown risks”, the court said.
An environmental impact statement was warranted under the National Environmental Policy Act, according to the ruling, not a limited environmental assessment the agencies completed that did not fully investigate the effects of fracking on the environment. .
The decision was a victory for environmental groups who have learned through Freedom of Information Act requests that US Department of the Interior agencies approved permits for offshore fracking without preparing EIS. A judge previously ruled partly in favor of the government, saying the agencies’ review had been approved under NEPA.
The government assumed in its environmental assessment that well stimulation treatments would be so infrequent that the environmental damage would be “insignificant”. But evidence shows the agencies don’t know the actual number of treatments that have taken place in the past because data collection was incomplete, the appeals court said.
This “overreliance on the asserted low use of well stimulation treatments has skewed agencies’ consideration of the significance and severity of potential impacts,” the court said.
The federal government also found that compliance with a permit issued by the Environmental Protection Agency under the Clean Water Act would render the effects of the treatment insignificant.
But the EPA-issued permit that the agencies cited here did not specifically address the impact of the treatments at issue, nor was it intended to be used for them, according to the ruling.
The agencies did not consider a full range of alternatives, including California’s suggestions to ban treatments in certain areas or at certain times of the year, the court said. It also did not consider limiting the number of treatments each year, according to the ruling.
Exxon Mobile and DCOR challenged the lower court’s decision to block the agencies from approving permits until they have consulted with the US Fish and Wildlife Service and completed a consistency review with California. Instead of siding with the companies, the appeals court found the injunction to be too narrow.
Judge Ronald M. Gould wrote the opinion. He was joined by Justices J. Clifford Wallace and Carlos T. Bea.
Kristen Monsell, legal director of the oceans program at the Center for Biological Diversity, said Friday the court’s decision was an “incredible victory for California’s coast and marine life.”
“This decision will prevent more toxic chemicals from poisoning fish, sea otters and other marine life,” Monsell said. “And that brings us closer to ending offshore drilling once and for all.”
Environmental Defense Center represented itself and the Santa Barbara Channelkeeper. The Center for Biological Diversity represented itself and the Wishtoyo Foundation. The California attorney general’s office represented the state, which also joined as a plaintiff.
The Department of Justice represented the federal government.
The case is Envtl. Def. CT. vs. Bureau of Ocean Energy Mgmt., 9th Cir., No. 19-55526, 6/3/22.