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9th Circ. Approves Shell's Oil Spill Response Plans

By Peter Clarke, JD on June 16, 2015 | Last updated on March 21, 2019

Shell is more excited than ever to begin searching for oil off the coast of Alaska. Last Thursday, the Ninth Circuit removed a major hurdle for Shell's exploration plans by approving the company's Arctic spill response plans.

When the Bureau of Safety and Environmental Enforcement (BSEE) approved Shell's response plans, a number of environmental organizations sued the Secretary of the Interior and the Department of the Interior under the Administrative Procedures Act. The district court found for Shell, determining that the BSEE's approval wasn't arbitrary or capricious. The Ninth Circuit agreed.

Several major environmental groups were involved in the legal action, including Sierra Club, the Natural Resources Defense, and the National Audubon Society. Since these groups tend to disapprove of offshore oil drilling on principle, it's not surprising they would bring this legal action concerning potential oil spills. The Ninth Circuit seemed neither surprised nor impressed with their legal challenges.

In summary, the environmental groups argued:

  1. Shell assumed an unrealistically high rate of oil spill recovery, so the BSEE's approval of the recovery rate was arbitrary and capricious.
  2. BSEE should have engaged in Endangered Species Act (ESA) consultation before approving the response plan.
  3. BSEE violated The National Environmental Policy Act (NEPA) by failing to prepare an Environmental Impact Statement before approving the response plan.

The Court Rules in Shell's Favor

According to the Ninth Circuit, the BSEE reasonably determined that the response plan satisfied statutory requirements, even if it didn't satisfy the environmental groups. For example, the court found that a NEPA review essentially took place because Shell's exploration plan addressed environmental effects of the proposed response plans. For these and other arguments, the court gave deference to BSEE's interpretation of its regulations and applicable statutes.

Following the Ninth Circuit's decision, many environmental groups have expressed concern and disappointment. EarthJustice, an organization involved in the lawsuit, has urged President Obama to step in on this issue and stop any further developments in offshore drilling projects.

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