Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 1 of 74 1 2 3 4 5 6 7 8 LAWRENCE VANDYKE Deputy Assistant Attorney General Environment and Natural Resources Division United States Department of Justice REBECCA JAFFE (NC Bar No. 40726) CORINNE SNOW (TX Bar No 24083883) 150 M Street NE, 3rd Floor Washington, D.C. 20002 Tel: (202) 305-0258 Fax: (202) 305-0506 rebecca.jaffe@usdoj.gov corinne.snow@usdoj.gov Counsel for Federal Defendants 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 13 STATE OF CALIFORNIA, et al., Plaintiffs, 14 v. 15 16 U.S. BUREAU OF LAND MANAGEMENT, et al., 17 18 19 20 Defendants. SIERRA CLUB, et al., Plaintiffs, 21 v. 22 23 24 25 DAVID BERNHARDT, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 4:18-cv-00521-HSG (related) Case No. 4:18-cv-00524-HSG (related) FEDERAL DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT Date: December 5, 2019 Time: 2:00 p.m. Judge: Haywood S. Gilliam, Jr. Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612 26 27 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgmenti California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 2 of 74 1 TABLE OF CONTENTS 2 TABLE OF AUTHORITIES ......................................................................................................... iii 3 EXHIBITS .................................................................................................................................... xii 4 LIST OF ABBREVIATIONS ...................................................................................................... xiii 5 NOTICE OF MOTION ................................................................................................................... 1 6 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 2 Introduction ......................................................................................................................... 2 7 Background ......................................................................................................................... 3 8 A. Oil and Gas Development on Federal Lands .................................................................. 3 B. The 2015 Rule ................................................................................................................. 5 10 C. The 2017 Rule ................................................................................................................. 5 11 D. Procedural History .......................................................................................................... 6 9 12 Standard of Review ......................................................................................................... 7 13 Plaintiffs Lack Standing.................................................................................................. 8 14 A. 15 Fracturing Generally, Not the 2017 Rule Specifically............................................................ 8 16 B. Plaintiffs Failed to Establish Standing Because They Allege Harms from Hydraulic Sierra Club Fails to Demonstrate Injury to ESA-Related Interests .............................. 10 Sierra Club Failed to Provide Evidence that Its Members’ Interests in ESA-Listed 17 Species Are Injured Presently by the 2017 Rule .............................................................. 11 18 Sierra Club Has Not Demonstrated Injury Because It Relies on a Hypothetical and 19 Attenuated Chain of Independent Actions ........................................................................ 13 20 Sierra Club Has Not Shown that Rescission of the 2015 Rule’s Tank Requirements 21 Caused Its Alleged ESA Injury ......................................................................................... 17 22 Sierra Club Has Not Shown that Rescission of the 2015 Rule Caused an ESA Injury 23 from Surface and Groundwater Pollution ......................................................................... 22 24 Sierra Club Has Not Shown Any ESA Injury from Rescission of the 2015 Rule’s 25 Water Source and Volume Disclosure Requirements ....................................................... 24 26 27 C. Harms .................................................................................................................................... 26 D. 28 California Lacks Standing Because It Asserts Parens Patriae Injuries, Not Direct California Lacks Standing to Bring IMLA Claims ....................................................... 29 The 2017 Rule Satisfied the APA’s Requirements ........................................................... 32 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG i Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 3 of 74 1 A. The 2017 Rule Is Legally Permissible .......................................................................... 32 2 B. BLM Had “Good Reasons” and a Detailed Justification for the 2017 Rule ................. 35 Developments in State and Tribal Regulations and Industry Guidance ................... 36 3 BLM’s Pre-Existing Regulations .............................................................................. 37 4 Cost-Benefit Analysis ............................................................................................... 38 5 6 7 C. BLM Considered a Range of Alternatives .................................................................... 41 NEPA Does Not Apply to the 2017 Rule, But BLM Satisfied NEPA Anyway ........... 42 A. BLM Analyzed Water Quality and Quantity Impacts .................................................. 44 8 B. BLM Weighed Storage Tanks Versus Pits ................................................................... 46 9 C. BLM Considered Environmental Justice Impacts ........................................................ 48 10 D. BLM Had No Obligation to Prepare an EIS ................................................................. 48 11 BLM Rationally Determined that Its 2017 Rule Does Not Affect ESA-Listed Species 12 or Critical Habitat ..................................................................................................................... 49 13 ESA Claims Are Limited to Record Review ................................................................ 52 14 15 16 Deliberative Documents Are Not Part of the Record ................................................... 53 Remedy ............................................................................................................................. 56 Conclusion .................................................................................................................... 57 17 18 19 20 21 22 23 24 25 26 27 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG ii Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 4 of 74 1 TABLE OF AUTHORITIES 2 Cases 3 Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520 (1998) .................................................................................................................. 32 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Alaska v. United States, 981 F.2d 1259 (9th Cir. 1992) .................................................................................................. 27 Alfred L. Snapp & Son, Inc. v. P.R. ex rel. Barez, 458 U.S. 592 (1982) .................................................................................................................. 27 Allied–Signal, Inc. v. NRC, 988 F.2d 146 (D.C. Cir. 1993) .................................................................................................. 59 Arrington v. Daniels, 516 F.3d 1106 (9th Cir. 2008) .................................................................................................. 44 Ass’n of Am. Med. Coll. v. United States, 217 F.3d 770 (9th Cir. 2000) ...................................................................................................... 8 Assiniboine & Sioux Tribes of Fort Peck Indian Reservation v. Bd. of Oil & Gas Conservation of State of Mont., 792 F.2d 782 (9th Cir. 1986) ........................................................................................ 32, 36, 37 Bateman v. U.S. Postal Serv., 231 F.3d 1220 (9th Cir. 2000) .................................................................................................. 54 Burbank Anti-Noise Grp. v. Goldschmidt, 623 F.2d 115 (9th Cir. 1980) .................................................................................................... 44 Butte Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936 (9th Cir. 2010) ...................................................................................................... 7 Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989 (9th Cir. 2012) .................................................................................................... 59 California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) .................................................................................................................. 33 California v. U.S. Dep’t of Labor, No. 2:13-CV-02069-KJM, 2014 WL 1665290 (E.D. Cal. Apr. 24, 2014) ............................... 57 Camp v. Pitts, 411 U.S. 138 (1973) .............................................................................................................. 8, 57 Carlsson v. U.S. Citizenship & Immig. Servs., No. 2:12-CV-07893-CAS, 2015 WL 1467174 (C.D. Cal. Mar. 23, 2015) .............................. 57 Cent. Sierra Envtl. Res. Ctr. v. U.S. Forest Serv., 916 F. Supp. 2d 1078 (E.D. Cal. 2013) .............................................................................. 15, 21 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG iii Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 5 of 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Chuska Energy Co. v. Mobil Expl. & Producing N. Am., Inc., 854 F.2d 727 (5th Cir. 1988) .................................................................................................... 32 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) ...................................................................................................... 44, 56, 57 City of L.A. v. Lyons, 461 U.S. 95 (1983) .................................................................................................................... 10 City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004) .................................................................................................................. 29 Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ................................................................................................ 13, 15, 18, 22 Clarke v. Sec. Indus. Ass’n, 479 U.S. 388 (1987) .................................................................................................................. 31 Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466 (D.C. Cir. 2009) .................................................................................................. 28 Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008) .................................................................................................................. 31 Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) ........................................................................................................ 38, 43 Didrickson v. U.S. Dep’t of Interior, 982 F.2d 1332 (9th Cir. 1992) .................................................................................................. 16 Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59 (1978) .................................................................................................................... 27 Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010 (9th Cir. 2012) .................................................................................................... 7 Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) .................................................................................................... 48 Envtl. Def. Fund, Inc. v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983) .................................................................................................. 35 Exp. Grp. v. Reef Indus., 54 F.3d 1466 (9th Cir. 1995) .................................................................................................... 54 F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009) .......................................................................................... 33, 37, 42, 43, 61 FERC v. Elec. Power Supply Ass’n., 136 S. Ct. 760 (2016) .......................................................................................................... 43, 44 Fla. Power & Light v. Lorion, 470 U.S. 729 (1985) .................................................................................................................... 8 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG iv Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 6 of 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fleck & Assocs., Inc. v. Phoenix, 471 F.3d 1100 (9th Cir. 2006) .................................................................................................. 10 Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) .............................................................................................................. 8, 10 Fund for Animals v. Kempthorne, 538 F.3d 124 (2d Cir. 2008) ..................................................................................................... 36 FW/PBS, Inc. v. City of Dall., 493 U.S. 215 (1990) .................................................................................................................. 29 Gardner v. Bureau of Land Mgmt., 638 F.3d 1217 (9th Cir. 2011) .................................................................................................. 35 Gov’t of Manitoba v. Bernhardt, 923 F.3d 173 (D.C. Cir. 2019) ............................................................................................ 28, 30 Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of Navy, 383 F.3d 1082 (9th Cir. 2004) ...................................................................................... 25, 26, 52 Hollywood Mobile Estates, Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259 (11th Cir. 2011) ................................................................................................ 32 Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333 (1977) .................................................................................................................. 10 Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d 1095 (9th Cir. 2016) .................................................................................................. 42 In re Hunter, 66 F.3d 1002 (9th Cir. 1995) ...................................................................................................... 8 In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 156 F.3d 1279 (D.C. Cir. 1998) ................................................................................................ 57 Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) .................................................................................................. 54 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) .................................................................................................................... 8 Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002) .................................................................................................. 44 Laguna Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517 (9th Cir. 1994) ...................................................................................................... 50 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ................................................................ 8, 9, 10, 11, 22, 23, 24, 29, 30, 51 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ............................................................................................................ 11, 12 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG v Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 7 of 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Maryland v. Louisiana, 451 U.S. 725 (1981) ............................................................................................................ 28, 29 Massachusetts v. EPA, 549 U.S. 497 (2007) ............................................................................................................ 27, 31 Massachusetts v. Mellon, 262 U.S. 447 (1923) .................................................................................................................. 27 McClanahan v. State Tax Comm’n of Ariz., 411 U.S., 164 (1973) ................................................................................................................. 32 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .......................................................................................................... 7, 19, 27 Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, (2007) ................................................................................................................. 53 Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337 (9th Cir. 1995) .................................................................................................... 59 Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) ............................................................................................ 50, 51 Nevada v. Burford, 918 F.2d 854 (9th Cir. 1990) .................................................................................................... 27 Ninilchik Traditional Council v. United States, 227 F.3d 1186 (9th Cir. 2000) .................................................................................................. 54 Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) ...................................................................................................................... 3 Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520 (9th Cir. 1997) .................................................................................................. 16 Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468 (9th Cir. 1994) ...................................................................................................... 8 Oceana, Inc. v. Ross, 920 F.3d 855 (D.C. Cir. 2019) ...................................................................................... 55, 56, 57 Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015) ........................................................................................ 33, 34, 41 Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Dep’t of Interior, 996 F. Supp. 2d 887 (E.D. Cal. 2014) ...................................................................................... 50 Park Cty. Res. Council, Inc. v. U.S. Dep’t of Agric., 817 F.2d 609 (10th Cir. 1987) .................................................................................................... 3 People ex rel. Lockyer v. U.S. Dep’t of Agric., No. CIV.A05-0211 MCE GGH, 2005 WL 1719892 (E.D. Cal. July 18, 2005) ........... 27, 28, 29 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG vi Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 8 of 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Portland Audubon Soc’y v. Endangered Species Comm., 984 F.2d 1534 (9th Cir. 1993) .................................................................................................. 57 Pub. Citizen v. NRC, 901 F.2d 147 (D.C. Cir. 1990) .................................................................................................. 35 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .................................................................................................................. 44 Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031 (8th Cir. 2002) .................................................................................................. 32 San Luis & Delta-Mendota Water Auth. v. Haugrud, 848 F.3d 1216 (9th Cir. 2017) .................................................................................................. 13 San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581 (9th Cir. 2014) ................................................................................................ 7, 54 San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26 (D.C. Cir. 1986) .................................................................................................... 56 San Xavier Dev. Auth. v. Charles, 237 F.3d 1149 (9th Cir. 2001) .................................................................................................. 32 Schimer v. U.S. Court of Appeals for the Ninth Circuit, 279 F.3d 817 (9th Cir. 2002) ........................................................................................ 10, 15, 29 SEC v. Chenery Corp., 318 U.S. 80 (1943) .................................................................................................................... 56 Sierra Club v. Morton, 405 U.S. 727 (1972) ............................................................................................................ 10, 12 Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011) .................................................................................................. 30 Sierra Forest Legacy v. Sherman, 951 F. Supp. 2d 1100 (E.D. Cal. 2013) .................................................................................... 59 Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221 (9th Cir. 1989) .................................................................................................... 8 Summers v. Earth Island Inst., 555 U.S. 488 (2009) .............................................................................................. 8, 9, 10, 11, 17 Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443 (9th Cir. 1996) ............................................................................................ 51, 52 Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114 (1993) .................................................................................................................. 32 Thompson v. Dep’t of Labor, 885 F.2d 551 (9th Cir. 1989) .................................................................................................... 56 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG vii Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 9 of 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Today’s IV, Inc. v. Fed. Transit Admin., No. 13-cv-378-JAK, 2014 WL 3827489 (C.D. Cal. May 29, 2014) .......................................... 8 Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017) .............................................................................................................. 31 United States v. Carlo Bianchi & Co., 373 U.S. 709 (1963) ............................................................................................................ 54, 55 United States v. Morgan (Morgan II), 313 U.S. 409 (1941) ............................................................................................................ 56, 57 United States v. Navajo Nation, 537 U.S. 488 (2003) .................................................................................................................. 32 Valley Outdoor, Inc. v. City of Riverside, 446 F.3d 948 (9th Cir. 2006) .................................................................................................... 29 Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992) .................................................................................................... 3 Village of False Pass v. Clark, 733 F.2d 605 (9th Cir. 1984) .................................................................................................... 54 Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519 (1978) .................................................................................................................. 58 Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853 (9th Cir. 2004) .................................................................................................... 44 WildEarth Guardians v. U.S. Dep’t of Justice, 752 F. App’x 421 (9th Cir. 2018) ............................................................................................. 14 Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) ............................................................................................................ 7, 17, 24 Wyoming v. Oklahoma, 502 U.S. 437 (1992) .................................................................................................................. 30 Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209 (10th Cir. 2011) .................................................................................... 45, 46, 50 Wyoming v. U.S. Dep’t of the Interior, 136 F. Supp. 3d 1317 (D. Wyo. 2015) ........................................................................................ 5 Wyoming v. U.S. Dep’t of the Interior, Nos. 2:15-CV-041-SWS & 2:15-CV-043-SWS, 2016 WL 3509415 (D. Wyo. June 21, 2016) 5 Wyoming v. Zinke, 871 F.3d 1133 (10th Cir. 2017) .................................................................................................. 5 Statutes 5 U.S.C. § 551 ............................................................................................................................... 62 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG viii Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 10 of 74 1 5 U.S.C. § 559 ............................................................................................................................... 54 2 5 U.S.C. § 706 ........................................................................................................................... 7, 55 3 5 U.S.C. § 706(2)(A)....................................................................................................................... 7 4 15 U.S.C. § 78 ............................................................................................................................... 35 5 16 U.S.C. §§ 668-668d ................................................................................................................. 13 6 16 U.S.C. § 1532(6) ................................................................................................................ 11, 51 7 8 9 10 11 16 U.S.C. § 1532(15) .................................................................................................................... 11 16 U.S.C. § 1533(a) ................................................................................................................ 11, 51 16 U.S.C. § 1536(a)(2) .................................................................................................................. 51 16 U.S.C. § 1538 ........................................................................................................................... 18 16 U.S.C. § 1540(g) ...................................................................................................................... 54 16 U.S.C. §§ 1531-1599 ............................................................................................................... 51 12 21 U.S.C. § 2112(b) ...................................................................................................................... 57 13 14 15 16 17 25 U.S.C. § 396 ............................................................................................................................. 62 25 U.S.C. § 396d ........................................................................................................................... 34 25 U.S.C. § 2101 ........................................................................................................................... 62 30 U.S.C. § 181 ......................................................................................................................... 3, 62 30 U.S.C. § 187 ............................................................................................................................. 35 18 30 U.S.C. § 189 ....................................................................................................................... 34, 36 19 30 U.S.C. § 871 ............................................................................................................................. 35 20 42 U.S.C. § 4321 ........................................................................................................................... 44 21 42 U.S.C. §§ 6922–6924 ............................................................................................................... 35 22 43 U.S.C. § 1701 ........................................................................................................................... 62 23 43 U.S.C. § 1712(e) ........................................................................................................................ 4 24 43 U.S.C. § 1732(a) ........................................................................................................................ 3 25 43 U.S.C. § 1732(b) ...................................................................................................................... 34 26 43 U.S.C. § 4321 ........................................................................................................................... 62 27 Cal. Fish & Game Code § 1016 .................................................................................................... 18 28 Rules Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG ix Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 11 of 74 1 Fed. R. App. P. 16 ......................................................................................................................... 58 2 Fed. R. Civ. P. 56(e) ................................................................................................................. 8, 29 3 Regulations 4 40 C.F.R. § 1501.1 ........................................................................................................................ 44 5 6 7 8 9 43 C.F.R. § 3101.1-2....................................................................................................................... 4 43 C.F.R. § 3162.5-2(d) ................................................................................................................ 39 50 C.F.R. § 17.11 .......................................................................................................................... 11 50 C.F.R. § 402.01(b) ................................................................................................................... 11 50 C.F.R. § 402.02 ........................................................................................................................ 51 50 C.F.R. § 402.03 ........................................................................................................................ 51 10 50 C.F.R. § 402.12(b) ................................................................................................................... 53 11 12 13 14 15 50 C.F.R. § 402.14(a).................................................................................................................... 51 50 C.F.R. § 402.14(b) ................................................................................................................... 52 50 C.F.R. § 402.15(a).................................................................................................................... 52 58 Fed. Reg. 47,354 (Sept. 8, 1993) ............................................................................................. 18 58 Fed. Reg. 47,364 (Sept. 8, 1993) ............................................................................................. 18 16 72 Fed. Reg. 37,345 (July 9, 2007) ............................................................................................... 13 17 80 Fed. Reg. 16,128 (Mar. 26, 2015) .................................................................................... 2, 5, 32 18 80 Fed. Reg. 16,130 (Mar. 26, 2015) ...................................................................................... 15, 42 19 80 Fed. Reg. 16,133 (Mar. 26, 2015) ...................................................................................... 32, 36 20 80 Fed. Reg. 16,141 (Mar. 26, 2015) ............................................................................................ 39 21 80 Fed. Reg. 16,162 (Mar. 26, 2015) ............................................................................................ 17 22 80 Fed. Reg. 16,168 (Mar. 26, 2015) ............................................................................................ 15 23 80 Fed. Reg. 16,190 (Mar. 26, 2015) ...................................................................................... 35, 36 24 80 Fed. Reg. 16,216 (Mar. 26, 2015) ............................................................................................ 50 25 80 Fed. Reg. 16,218 (Mar. 26, 2015) ............................................................................................ 59 26 80 Fed. Reg. 16,577 (Mar. 30, 2015) ............................................................................................ 59 27 80 Fed. Reg. 61,928 (Mar. 30, 2015) ............................................................................................ 48 28 82 Fed. Reg. 34,464 (July 25, 2017) ............................................................................................... 6 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG x Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 12 of 74 1 82 Fed. Reg. 61,924 (Dec. 29, 2017) ........................................................................ 2, 6, 37, 41, 61 2 82 Fed. Reg. 61,925 (Dec. 29, 2017) .................................................................................. 6, 37, 38 3 82 Fed. Reg. 61,926 (Dec. 29, 2017) .................................................... 3, 33, 37, 38, 39, 42, 52, 53 4 82 Fed. Reg. 61,927 (Dec. 29, 2017) ...................................................................................... 3, 4, 5 5 82 Fed. Reg. 61,928 (Dec. 29, 2017) .............................................................................................. 4 6 82 Fed. Reg. 61,931 (Dec. 29, 2017) ............................................................................................ 47 7 8 9 10 11 12 82 Fed. Reg. 61,935 (Dec. 29, 2017) ............................................................................................ 35 82 Fed. Reg. 61,941 (Dec. 29, 2017) ...................................................................................... 52, 53 Cal. Code Regs. tit. 14, § 740 ....................................................................................................... 18 Exec. Order No. 13,783, 82 Fed. Reg. 16,093, § 1(a) (Mar. 28, 2017) .......................................... 6 Other Authorities Cal. Gov. Code §§ 12600-12612 .................................................................................................. 28 13 Mineral Management Policy 612 FW 1, https://www.fws.gov/policy/612fw1.html#extractionsanddevelopment .................................. 16 14 N.D. Admin. Code § 43-02-03-19.3 ....................................................................................... 18, 20 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG xi Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 13 of 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 EXHIBITS A. Declaration of James Tichenor regarding exhibits (Aug. 1, 2019) 1. FracFocus spreadsheet indicating wells hydraulically fractured in California (June 19, 2019) 2. BLM, 2018 Annual Report for the December 22, 2017 Programmatic Biological Opinion on Oil and Gas (December 20, 2018) 3. BLM, Bakersfield Field Office Record of Decision and Approved Resource Management Plan (2014) 4. Excerpts of California DOGGR Annual Reports of the State Oil and Gas Supervisor (2009) 5. FWS, Programmatic Biological Opinion on Oil and Gas Activities on Bureau of Land Management lands in the San Joaquin Valley (2017) 6. Proclamation, Establishment of the Carrizo Plain National Monument (Jan. 17, 2001) 7. BIA, Mitigated Programmatic Environmental Assessment Oil and Gas Development on Trust Lands and Minerals Fort Berthold Indian Reservation (May 2017) 8. Map showing mineral ownership on Forth Berthold Indian Reservation 9. Programmatic Biological Assessment/Biological Evaluation for Oil and Gas Development for Fort Berthold Indian Reservation (2014) 10. Letter from FWS to BIA concurring with BIA’s determinations of the effect on species in the Programmatic Biological Assessment/Biological Evaluation for Oil and Gas Development for Fort Berthold Indian Reservation (June 4, 2014) 11. BLM, Standard Oil and Gas Lease Stipulation 16-3 12. BLM, Sample Appendix K Surface Conditions of Approval 13. FWS, Formal Section 7 Consultation for BLM’s Fluid Minerals Program in the [South] Platte River Basin, Colorado (Feb. 2, 2015). 14. BLM Letter to Operators re: South Platte Water Withdrawals (March 2, 2015) B. Declaration of James Tichenor regarding email (Aug. 1, 2019) 19 20 21 22 23 24 25 26 27 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG xii Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 14 of 74 1 LIST OF ABBREVIATIONS 2 3 2015 Rule 4 2017 Rule 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ACEC APD API BA BIA BLM DOGGR EIS ESA FLPMA FONSI FWS IMDA IMLA MLA NEPA NMFS RMP Sierra Club “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands,” 80 Fed. Reg. 16,128 (Mar. 26, 2015) “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands; Rescission of a 2015 Rule,” 82 Fed. Reg. 61,924 (Dec. 29, 2017) Areas of Critical Environmental Concern Application for Permit to Drill American Petroleum Institute Biological Assessment Bureau of Indian Affairs Bureau of Land Management California Division of Oil, Gas, and Geothermal Resources Environmental Impact Statement Endangered Species Act Federal Land Policy Management Act Finding of No Significant Impact Fish and Wildlife Service Indian Mineral Development Act Indian Mineral Leasing Act Mineral Leasing Act National Environmental Policy Act National Marine Fisheries Service Resource Management Plan Plaintiffs Sierra Club, Center for Biological Diversity, Diné Citizens Against Ruining Our Environment, Earthworks, Fort Berthold Protectors of Water and Earth Rights, Southern Utah Wilderness Alliance, The Wilderness Society, and Western Resource Advocates 20 21 22 23 24 25 26 27 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Bernhardt, 4:18-cv-00524-HSG xiii Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 15 of 74 1 2 3 4 5 6 7 8 9 10 NOTICE OF MOTION PLEASE TAKE NOTICE THAT on December 5, 2019, at 2:00 p.m. before the Honorable Haywood S. Gilliam, Jr., Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612, Federal Defendants, the Bureau of Land Management; the U.S. Department of the Interior; Joseph Balash, in his official capacity as Assistant Secretary for Land and Minerals Management, U.S. Department of the Interior; and David Bernhardt, in his official capacity as Secretary of the Interior, will move the Court to enter summary judgment on behalf of the Federal Defendants. This motion is supported by Federal Rule of Civil Procedure 56 and the attached Memorandum of Points and Authorities. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 1 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 16 of 74 1 2 MEMORANDUM OF POINTS AND AUTHORITIES 3 Introduction 4 The Bureau of Land Management (“BLM”) promulgated the regulation titled “Oil and 5 Gas; Hydraulic Fracturing on Federal and Indian Lands; Rescission of a 2015 Rule,” 82 Fed. 6 Reg. 61,924 (Dec. 29, 2017) (“2017 Rule”), to remove burdensome regulatory requirements. 7 The rule it rescinded—titled “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands,” 8 80 Fed. Reg. 16,128 (Mar. 26, 2015) (“2015 Rule”)—sought to regulate hydraulic fracturing 1 on 9 federal and Indian lands, but it never went into effect. Nonetheless, in promulgating the 2017 10 Rule, BLM considered the 2015 Rule’s anticipated benefits and environmental effects and 11 concluded that state regulations, tribal regulations, existing BLM regulations, and updated 12 industry guidance made the 2015 Rule unnecessary and duplicative. 13 California and several environmental groups, Sierra Club, Center for Biological Diversity, 14 Diné Citizens Against Ruining Our Environment, Earthworks, Fort Berthold Protectors of Water 15 and Earth Rights, Southern Utah Wilderness Alliance, The Wilderness Society, and Western 16 Resource Advocates (collectively, “Sierra Club”), have challenged the 2017 Rule, but the Court 17 should enter summary judgment for Federal Defendants because Plaintiffs lack standing. Even if 18 the Court could properly reach the merits, summary judgment for Federal Defendants would be 19 warranted because BLM complied with the Administrative Procedure Act (“APA”), National 20 Environmental Policy Act (“NEPA”), and Endangered Species Act (“ESA”) in promulgating the 21 2017 Rule. 22 23 24 25 26 27 28 1 Hydraulic fracturing is a well stimulation technique that involves injecting fluid, which consists of water and chemical additives, under high pressure to create or enlarge fractures in rocks. HFRR_000158. The fluid usually contains proppants, such as sand, to keep the fractures open. Id. The fractures then allow oil and gas to flow into the well. Id. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 2 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 17 of 74 1 2 3 4 5 6 7 Background A. Oil and Gas Development on Federal Lands BLM manages federal lands “under principles of multiple use and sustained yield.” 43 U.S.C. § 1732(a). “‘Multiple use management’ is a deceptively simple term that describes the enormously complicated task of striking a balance among the many competing uses to which land can be put, ‘including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish . . . .’” Norton v. S. Utah Wilderness All., 542 U.S. 55, 58 (2004) (quoting 43 8 U.S.C. § 1702(c)). Congress has expressly provided for development of oil and gas resources on 9 10 11 12 13 14 15 public lands. See 30 U.S.C. § 181. As the Tenth Circuit has explained, “[i]t is the stated public policy of the United States to make public lands . . . available for mineral leasing in an effort to reduce our energy dependence on foreign sources and to protect our national security.” Park Cty. Res. Council, Inc. v. U.S. Dep’t of Agric., 817 F.2d 609, 620 (10th Cir. 1987), overruled on other grounds by Vill. of Los Ranchos De Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992). Generally, oil and gas development on federal lands involves three stages. First, BLM 16 develops an area-wide resource management plan (“RMP”), which specifies public lands that are 17 appropriate for oil and gas leasing. 82 Fed. Reg. 61,926. The RMP identifies the terms and 18 conditions—including stipulations that must be incorporated into oil and gas leases—under 19 which BLM will allow oil and gas development while protecting other resource values. 82 Fed. 20 Reg. 61,927. The public has the opportunity to comment on and participate in BLM’s 21 development of RMPs. HFRR_034631. Through the RMP, BLM may also prohibit oil and gas 22 leasing in certain areas to protect sensitive resources or recreation areas. 82 Fed. Reg. 61,927; 23 24 25 26 HFRR_034631. BLM prepares an Environmental Impact Statement (“EIS”) under NEPA for each RMP, and the EIS analyzes, inter alia, oil and gas development related impacts that may be expected to occur over the life of an RMP (typically 20 years). 82 Fed. Reg. 61,926–27. If there are ESA-listed species in the RMP area, BLM must also ensure compliance with the ESA and 27 determine whether certain areas can be authorized for oil and gas activities, or whether additional 28 restrictions are needed to protect the listed species. Id. When BLM manages the mineral estate Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 3 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 18 of 74 1 for surface lands managed by other agencies, such as the Forest Service, the other agencies use 2 their own planning documents to determine whether those lands are suitable for oil and gas 3 development. HFRR_034631. 4 At the second stage, interested parties must obtain a lease and BLM conducts another 5 layer of NEPA review before selling any leases. 82 Fed. Reg. 61,927. BLM may only issue 6 7 8 leases within areas that are open to leasing under the RMP. 43 U.S.C. § 1712(e). Once again, BLM must ensure that leasing decisions comply with the ESA, including through consultation with the Fish and Wildlife Service (“FWS”) as necessary. Id. 9 At the third stage, operators must submit and obtain BLM approval of a site-specific 10 Application for Permit to Drill (“APD”). 82 Fed. Reg. 61,927. BLM’s approval of an APD is 11 12 13 14 15 also subject to NEPA review and public comment. Id. The APD must provide the operator’s drilling plan; surface use plan, including plans to protect groundwater and surface water; plans for casing, including size, grade, weight, and depth of casing strings; 2 proposed drilling fluids; and specifications for blowout prevention equipment. 82 Fed. Reg. 61,927–28. Operators must 16 also provide geological information, including the estimated depths and thicknesses of geological 17 formations, the zones containing potentially usable water, and plans for protecting usable water. 18 82 Fed. Reg. 61,927. Operators must also describe their plans for containing and disposing of 19 drilling fluids and produced water from drilling. 82 Fed. Reg. 61,928. BLM evaluates the 20 sufficiency of operators’ plans, particularly the plans to protect usable water zones. Id. BLM 21 may condition APD approval on the lessee’s adoption of “reasonable measures,” delimited by 22 the lease and the lessee’s surface use rights, to mitigate the drilling’s environmental impacts. 43 23 C.F.R. § 3101.1-2. 24 25 When trust or restricted Indian lands are involved, the tribe or individual Indian owner leases their own oil and gas resources with the consent of the Department of the Interior’s 26 27 28 2 Casing strings are connected sections of cemented wellbore pipe. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 4 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 19 of 74 1 Bureau of Indian Affairs (“BIA”). 82 Fed. Reg. 61,927. In addition, the BLM regulates oil and 2 gas operations on trust and restricted Indian lands, applying the same operating regulations that 3 apply on federal lands. Id. 4 5 6 B. The 2015 Rule On March 26, 2015, BLM published the 2015 Rule to complement existing oil and gas regulations. 80 Fed. Reg. 16,128. The 2015 Rule never went into effect. As soon as BLM 7 announced and published the 2015 Rule, four states (Wyoming, Colorado, North Dakota, and 8 9 10 11 12 Utah), two industry groups (Independent Petroleum Association of America and Western Energy Alliance), and the Ute Indian Tribe filed suit in the District of Wyoming. The Wyoming District Court issued a preliminary injunction barring BLM from enforcing the 2015 Rule. Wyoming v. U.S. Dep’t of the Interior, 136 F. Supp. 3d 1317, 1354 (D. Wyo. 2015), vacated and remanded 13 sub nom. Wyoming v. Sierra Club, Nos. 15-8126 & 15-8134, 2016 WL 3853806 (10th Cir. July 14 13, 2016). The District of Wyoming concluded that BLM lacked legal authority to regulate 15 hydraulic fracturing and issued a final decision setting aside the 2015 Rule. Wyoming v. U.S. 16 Dep’t of the Interior, Nos. 2:15-CV-041-SWS & 2:15-CV-043-SWS, 2016 WL 3509415, at *12 17 (D. Wyo. June 21, 2016), judgment vacated and appeal dismissed sub nom. Wyoming v. Zinke, 18 871 F.3d 1133 (10th Cir. 2017). 19 Several environmental groups and BLM appealed the Wyoming Court’s decisions to the 20 Tenth Circuit, which held that the appeals were prudentially unripe because BLM had begun the 21 process to propose rescission of the 2015 Rule under the new Administration. Wyoming, 871 22 23 24 F.3d at 1137. The Tenth Circuit “dismiss[ed] these appeals and remand[ed] with directions to vacate the district court’s opinion and dismiss the action without prejudice.” Id. C. The 2017 Rule 25 26 27 28 On March 28, 2017, President Donald J. Trump issued an Executive Order titled “Promoting Energy Independence and Economic Growth,” stating that “[i]t is in the national interest to promote clean and safe development of our Nation’s vast energy resources, while at Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 5 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 20 of 74 1 the same time avoiding regulatory burdens that unnecessarily encumber energy production, 2 constrain economic growth, and prevent job creation.” Exec. Order No. 13,783, 82 Fed. Reg. 3 16,093, § 1(a) (Mar. 28, 2017). That Executive Order directed agencies to “immediately review 4 existing regulations that potentially burden the development or use of domestically produced 5 energy resources and appropriately suspend, revise, or rescind those that unduly burden the 6 7 8 9 development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.” Id. That Order directed the Secretary of the Interior to “review” the 2015 Rule, among other rules, and “if appropriate, . . . as soon as practicable, . . . publish for notice and comment proposed rules suspending, revising, or rescinding” the Rule. Id. 10 at 16,096. 11 12 13 14 15 To implement that Executive Order, Secretary of the Interior Ryan Zinke issued Secretary’s Order No. 3349 titled, “American Energy Independence,” which directed BLM to proceed expeditiously with proposing to rescind the 2015 Rule. On July 25, 2017, BLM published a proposed rule to rescind the 2015 Rule. 82 Fed. Reg. 16 34,464 (July 25, 2017). On December 29, 2017, BLM published a final rule rescinding the 2015 17 Rule because it imposed unjustified administrative and compliance costs and was duplicative of 18 other regulations. 82 Fed. Reg. 61,924–25. 19 20 21 22 23 24 25 D. Procedural History California and Sierra Club filed separate suits challenging the 2017 Rule. Complaint, California v. Bureau of Land Mgmt, No. 18-521 (N.D. Cal. Jan. 24, 2018), ECF No. 1; Complaint, Sierra Club et al. v. Bernhardt, No. 18-524 (N.D. Cal., Jan. 24, 2018), ECF No. 1. Federal Defendants moved to transfer these suits to Wyoming, and the Court denied that motion because, inter alia, “[t]he issue before this Court—the legality of BLM’s rescission of the HF Rule”—was distinct from the issue in the Wyoming litigation, namely the validity of the 2015 26 Rule. ECF No. 77 at 9. Federal Defendants lodged the administrative record, the Court 27 28 adjudicated certain record disputes, and the parties addressed other disputes via stipulations. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 6 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 21 of 74 1 Civ. 18-521, ECF Nos. 85, 87, 95, 97, 98, 108, 107, 110, 114, 115; Civ. 18-524, ECF Nos. 86, 2 87, 93, 95, 96, 106, 105, 108, 124, 125. Plaintiffs moved for summary judgment, and Federal 3 Defendants now submit their combined opposition to Plaintiffs’ motions for summary judgment 4 and cross-motion for summary judgment. Civ. 18-521, ECF No. 112; Civ. 18-524, ECF No. 5 110. 6 7 8 9 Standard of Review The Court reviews APA, NEPA, and ESA claims under the standard and scope of review set forth in the APA, 5 U.S.C. § 706. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). Under the APA, a court may set aside an agency action only if it is 10 11 12 13 14 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Review under this standard “is narrow, and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency’s decision can be set aside “only if the agency relied on factors 15 Congress did not intend it to consider, entirely failed to consider an important aspect of the 16 problem, or offered an explanation that runs counter to the evidence before the agency or is so 17 implausible that it could not be ascribed to a difference in view or the product of agency 18 expertise.” Earth Island Inst. v. U.S. Forest Serv., 697 F.3d 1010, 1013 (9th Cir. 2012) (quoting 19 Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008)). An agency need only articulate a 20 “rational connection between the facts found and the choice made.” Motor Vehicle, 463 U.S. at 21 43. Thus, the Court must “not substitute its [own] judgment for that of the agency” and should 22 uphold even an unclear decision where the agency’s path may be reasonably discerned. Butte 23 Envtl. Council v. U.S. Army Corps of Eng’rs, 620 F.3d 936, 945 (9th Cir. 2010). 24 25 26 27 28 Because review under the APA is limited to the agency’s administrative record, Florida Power & Light v. Lorion, 470 U.S. 729, 744 (1985); Camp v. Pitts, 411 U.S. 138, 142 (1973), the Court is not required to resolve disputed facts and “summary judgment is the appropriate method by which the merits of the case can be decided,” Today’s IV, Inc. v. Fed. Transit Admin., No. 13cv-378-JAK, 2014 WL 3827489, at *6 (C.D. Cal. May 29, 2014) (citing Nw. Motorcycle Ass’n v. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 7 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 22 of 74 1 U.S. Dep’t of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994)). 2 Plaintiffs Lack Standing 3 “A federal court is presumed to lack jurisdiction in a particular case unless the contrary 4 affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 5 F.2d 1221, 1225 (9th Cir. 1989) (citation omitted). The party seeking to sue in federal court 6 7 8 9 bears the burden of establishing that the court has subject matter jurisdiction to hear the action. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Ass’n of Am. Med. Coll. v. United States, 217 F.3d 770, 778–79 (9th Cir. 2000). Absent such proof, jurisdiction presumptively does not exist. See In re Hunter, 66 F.3d 1002, 1005 (9th Cir. 1995). At the summary judgment 10 11 12 13 14 15 phase, Plaintiffs “can no longer rest on such mere allegations, but must ‘set forth’ by affidavit or other evidence specific facts, Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (quotations omitted). A. Plaintiffs Failed to Establish Standing Because They Allege Harms from Hydraulic Fracturing Generally, Not the 2017 Rule Specifically 16 17 18 19 To seek injunctive relief, a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; 20 and it must be likely that a favorable judicial decision will prevent or redress the injury. 21 Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citing Friends of Earth, Inc. v. Laidlaw 22 Environmental Services (TOC), Inc., 528 U.S. 167, 180–81 (2000)). Where, as here, Plaintiffs 23 are not themselves the “object of the government action or inaction [they] challenge[], standing 24 is not precluded, but it is ordinarily substantially more difficult to establish.” Lujan, 504 U.S. at 25 562 (1992). Under these circumstances, it “becomes the burden of the plaintiff to adduce facts” 26 showing that the “unfettered choices made by independent actors” “have been or will be made in 27 such manner as to produce causation and permit redressability of injury.” Id. 28 None of the Plaintiffs meet this test. Plaintiffs’ alleged harms are not “fairly traceable” to Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 8 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 23 of 74 1 the 2017 Rule itself; they are instead general harms related to hydraulic fracturing that were not 2 addressed by the 2015 Rule and therefore cannot be traced to the repeal of that Rule. 3 The 2015 Rule never purported to ban or regulate all aspects of hydraulic fracturing on 4 BLM land. This matters because, in their standing declarations, Sierra Club’s members make a 5 number of generic statements about the environmental problems caused by oil and gas activities 6 7 8 9 generally and hydraulic fracturing in particular. See, e.g., Declaration of Ileene Anderson (“Anderson Decl.”) ¶27, Case No. 4:18-cv-00524-HSG, ECF No. 110-3 (“Conventional oil and gas extraction in southern California has already damaged or permanently destroyed wildlife habitat for species that I care deeply about . . . .”); Declaration of Lisa Deville (“Deville Decl.”) 10 ¶16, Case No. 4:18-cv-00524-HSG, ECF No. 110-3 (alleging harm by a pipeline not regulated 11 12 13 14 15 16 by either the 2015 or 2017 Rule); Declaration of Jolleta Bird Bear (“Bird Bear Decl.”), ¶ 15, Case No. 4:18-cv-00524-HSG, ECF No. 110-3. The 2015 Rule would not have prevented any of these alleged harms, and Plaintiffs’ proposed remedy of reinstating the 2015 Rule would provide them no redress. Similarly unavailing is Sierra Club’s assertion that its members have been injured in the 17 past due to actions by third parties who have allegedly failed to comply with other state and 18 federal regulations. See, e.g., Deville Decl. ¶17 (alleging illegal treatment of bald eagles by oil 19 company representative). These allegations cannot serve as evidence that the 2017 Rule was the 20 source of their injury, or that such injuries could be redressed by this Court if it enjoined the 21 2017 Rule. See Summers v. Earth Island Inst., 555 U.S. 488, 495 (2009). Past instances of non- 22 compliance by independent third parties cannot serve as the basis for standing as to the 2017 23 Rule. See Lujan, 504 U.S. at 571 (rejecting standing where it is “entirely conjectural whether the 24 nonagency activity that affect[ed]” plaintiffs would have been “altered or affected by the agency 25 activity”); Id. at 564 (“Past exposure to illegal conduct does not in itself show a present case or 26 27 28 controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983))). Because these harms are beyond the scope of the 2015 Rule, they cannot be fairly traced to the 2017 Rule. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 9 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 24 of 74 1 2 3 4 5 6 B. Sierra Club Fails to Demonstrate Injury to ESA-Related Interests Sierra Club failed to provide evidence that its members’ interests in ESA-listed species are presently injured by the 2017 Rule or will be injured in the future. Where, as here, Sierra Club is bringing suit on behalf of its members, its standing depends on a demonstration that its members “would otherwise have standing to sue in their own right.” Friends of the Earth, Inc., 528 U.S. at 181 (citing Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 7 (1977)); Fleck & Assocs., Inc. v. Phoenix, 471 F.3d 1100, 1106-07 (9th Cir. 2006). As a result, 8 9 10 11 12 Sierra Club relies on the facts in the standing declarations of its members to support its standing. See Standing Decls., Ex. C to Sierra Club Mot. for Summ. J., No. 4:18-cv-00524-HSG, ECF1103. As the Supreme Court has explained, “the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” 13 Sierra Club v. Morton, 405 U.S. 727, 735–36 (1972); see also Schimer v. U.S. Court of Appeals 14 for the Ninth Circuit, 279 F.3d 817, 822 (9th Cir. 2002). To establish standing in the realm of 15 alleged environmental injury, Plaintiffs must plead specific plans to return to the area which will 16 be impacted by the challenged agency decision before sufficient injury in fact can be found. 17 Lujan, 504 U.S. at 564; Summers, 555 U.S. at 498–99. This is particularly true when Plaintiffs 18 challenge a nationwide rule whose implementation will vary greatly across the country and 19 depend on a number of independent decisions. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 20 889 (1990) (insufficient for plaintiffs to aver use “in the vicinity” of federal action because “Rule 21 56(e) is assuredly not satisfied by averments which state only that one of respondent’s members 22 23 24 25 uses unspecified portions of an immense tract of territory, on some portions of which mining activity has occurred or probably will occur by virtue of the governmental action. It will not do to ‘presume’ the missing facts because without them the affidavits would not establish the injury that they generally allege.”); Summers, 555 U.S. at 495 (no standing where “[t]here may be a 26 chance, but is hardly a likelihood, that Bensman’s wanderings will bring him to a parcel about to 27 28 be affected by a project unlawfully subject to the regulations”). Sierra Club has not met its Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 10 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 25 of 74 1 burden here. 2 Sierra Club Failed to Provide Evidence that Its Members’ Interests in ESAListed Species Are Injured Presently by the 2017 Rule 3 4 The ESA’s provisions do not apply to all wildlife species: instead, the Act provides legal 5 protections for only for threatened and endangered plants and animals “listed” under the Act and 6 their habitats. 16 U.S.C. § 1532(6), (20). 3 To show standing for the ESA claims, it is therefore 7 insufficient to demonstrate that an action could affect wildlife. Instead, Sierra Club must adduce 8 evidence that its members have an interest in specific listed species, and that those interests are 9 impacted by the 2017 Rule. See Lujan, 504 U.S. at 563 (requiring “affidavits or other evidence 10 showing, through specific facts, not only that listed species were in fact being threatened” by the 11 12 challenged action, “but also that one or more of respondents’ members would thereby be ‘directly’ affected apart from their ‘special interest’ in th[e] subject.”). 13 14 Sierra Club does not, and cannot, meet this burden. While Sierra Club asserts that the 2017 Rule could impact wildlife around the country, it provided declarations indicating that it 15 has members interested in listed species in only two regions that could theoretically be impacted 16 17 18 by the implementation of 2017 Rule: the Bakersfield area of California, and the Fort Berthold Indian Reservation in North Dakota. Anderson Decl., ¶¶ 8-10, 12-15; Deville Decl., at 47. 4 As a 19 20 3 26 The ESA is co-administered by FWS, an agency of the Department of the Interior and/or the National Marine Fisheries Service (“NMFS”), an agency of the Department of Commerce. These agencies are collectively referred to as the “Services.” NMFS generally has jurisdiction over marine and anadromous species, while FWS generally has jurisdiction over terrestrial species. 16 U.S.C. § 1532(15); 50 C.F.R. §§ 17.11, 402.01(b). The ESA charges these agencies with making determinations regarding what animal and plant species should be listed under, and thus protected by, the ESA. 16 U.S.C. § 1533(a). The species that fall under the ESA’s protections are referred to in this brief as “listed” species. FWS and NMFS also make determinations regarding the critical habitat for listed species, and consult with other federal agencies regarding the effect that their actions are likely to have on listed species and their critical habitat. 27 4 21 22 23 24 25 28 Ileene Anderson asserts personal interest in BLM-managed land across central and southern California within the Bakerfield Field office management area, and notes that areas she visits Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 11 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 26 of 74 1 result, Sierra Club must prove that the specific listed species have been, or will be, injured by the 2 2017 Rule, in those two regions. See Lujan, 504 U.S.at 566 (“To say that the [ESA] protects 3 ecosystems is not to say that the Act creates (if it were possible) rights of action in persons who 4 have not been injured in fact, that is, persons who use portions of an ecosystem not perceptibly 5 affected by the unlawful action in question.”); Nat’l Wildlife Fed’n, 497 U.S. at 889 (insufficient 6 7 8 9 for plaintiffs to aver use “in the vicinity” of federal action); Morton, 405 U.S. at 735 (injury will be felt directly only by those who use areas that will be impacted by agency action). 5 Although the 2017 Rule is already in effect, neither of these declarations provides evidence of injuries to the specific species in the specific areas where Plaintiffs allege an interest. Instead, they express 10 concerns that these species may be injured in the future. See, e.g., Anderson Decl. ¶¶ 21-24; 11 12 Deville Decl. ¶¶ 16, 26. 6 Likewise, as discussed further in section VI.B.3, the studies cited by Sierra Club do not 13 14 establish a present injury. See 4:18-cv-00524-HSG, ECF No.110-2. First, a number of the cited 15 16 22 serve as habitat for listed species including the California Condor, Tipton’s Kangaroo Rat, San Joaquin kit fox, blunt-nosed leopard lizard, and the giant kangaroo rat. Lisa Deville asserts an interest in land within the Fort Berthold Indian Reservation in North Dakota, including an interest in listed species such as the Dakota Skipper, White Pallid Sturgeon, Northern Long Eared Bat, Black footed ferret, Whooping crane, and Piping Plover. Both individuals also note an interest in additional wildlife that are not listed under the ESA, and therefore not covered by the ESA’s protections. As a result, an interest in these species not listed under the ESA cannot serve as the basis for standing for their ESA claims. Joletta Bird Bear also lives on the Fort Berthold Indian Reservation and notes the presence of listed species on the reservation. Bird Bear Decl., ¶¶ 1, 13. However, she does not assert an interest in these listed species. 23 5 17 18 19 20 21 25 Sierra Club’s citations to the record, ECF 110 at 27, relate to species in Utah and Wyoming, rather than the areas where its members have averred an interest. They also relate to species other than those where its members have averred an interest. As a result, these citations cannot support standing. 26 6 24 27 28 Ms. Deville alleges past illegal conduct towards bald eagles. See Deville Decl. ¶ 17. Bald eagles are federally protected, but not under the ESA. Bald and Golden Eagle Protection Act, 16 U.S.C. §§ 668-668d, 72 Fed. Reg. 37,345. This alleged conduct therefore cannot serve as the basis for a harm to sue under the ESA. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 12 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 27 of 74 1 studies are more than a decade old and do not reflect current practices. Second, a number of the 2 more recent BLM or FWS documents included by Sierra Club actually reflect practices that the 3 agencies have put in place to protect listed species from impacts associated with oil and gas 4 activities. See, e.g., 4:18-cv-00524-HSG, ECF No.110-2 at 84 (“The following measures have 5 been developed by BLM and USFWS and applied to past oil and gas projects near condor 6 7 8 9 10 11 12 13 14 roosting and nesting areas.”). As a result, Sierra Club failed to demonstrate that it is currently suffering any injury caused by the 2017 Rule. Sierra Club Has Not Demonstrated Injury Because It Relies on a Hypothetical and Attenuated Chain of Independent Actions Plaintiffs cannot reply “on a highly attenuated chain of possibilities,” to establish standing for a future injury. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013). Here, the series of events that must occur before Sierra Club’s alleged future harm is realized is “both too uncertain and too remote to constitute a reasonably probable threat of injury.” San Luis & DeltaMendota Water Auth. v. Haugrud, 848 F.3d 1216, 1233 (9th Cir. 2017), as corrected (Mar. 23, 15 2017). The Ninth Circuit recently determined that plaintiffs in another ESA challenge lacked 16 17 18 19 20 standing because their alleged injury was not fairly traceable to the challenge policy. See WildEarth Guardians v. U.S. Dep’t of Justice, 752 F. App’x 421, 423 (9th Cir. 2018). As the WildEarth Guardians court explained, the link between plaintiffs’ injury—increased Mexican wolf killings—and the challenged policy “necessarily rests upon several layers of speculation,” 21 because it required the court to guess how both agencies and private parties would react to the 22 change in policy in the future. Id. Likewise, the link between Plaintiffs’ alleged injury to 23 species and the 2017 Rule is too attenuated to support Article III standing. 24 The 2017 Rule does not itself trigger any oil and gas activities in any particular regions. 25 Rather, as explained above, oil and gas activities move forward only through regional and site- 26 specific decisonmaking on both the part of the Agency and independent third-parties, and not 27 from anything the 2017 Rule does or does not do. Thus, at this stage, Sierra Club’s asserted 28 harms stem from a series of independent actions—(1) that BLM has or will create RMPs Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 13 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 28 of 74 1 allowing for hydraulic fracturing in the areas where listed species they are concerned about live, 2 (2) that BLM has or will put these areas of concern out for lease, (3) that industry members have 3 or will make the independent decisions to seek to lease the land and choose to engage in 4 hydraulic fracturing operations in those specific areas, (4) that BLM has or will grant a permit to 5 drill at a specific site and fail to include measures in the permit to protect listed species and (5) 6 7 8 9 that the operators would conduct hydraulic fracturing operations in a manner that harms listed species, but which would have not occurred under the 2015 Rule. HFRR_000145–47. Even then, before Sierra Club’s alleged harms could be realized, the particular oil and gas operators in the particular areas of concern to Plaintiffs would also have to ignore industry best practices, and 10 in some cases flout state regulations, for a listed species to be impacted by absence of the 11 12 13 14 15 specific provisions in the 2015 Rule that Plaintiffs have identified. Because no species’ critical habitat is coextensive with all BLM lands that could possibly be subject to hydraulic fracturing operations, it is these independent decisions by BLM and individual operators to lease land and provide permits that will determine if any specific areas 16 where any particular species listed under the ESA, or visited by Plaintiffs, will be subject to 17 hydraulic fracturing operations at all. It is also these subsequent BLM decisions—all of which 18 are subject to review under the ESA—that will determine the nature of any hydraulic fracturing 19 operations allowed at specific sites. But until that point, it is mere speculation to assume that any 20 listed species, let alone any listed species in which Sierra Club has a cognizable interest, will be 21 in any way affected by the 2017 Rule. See Schmier, 279 F.3d at 821 (injuries must be distinct 22 and palpable, as opposed to merely abstract, hypothetical, or speculative). 23 Ms. Anderson’s specific allegations provide an example of how “highly attenuated” the 24 “chain of possibilities,” is between the 2017 Rule and any injury to her. See Clapper, 568 U.S. 25 at 410. In California, hydraulic fracturing is very rare in areas under BLM’s jurisdiction. 26 27 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 14 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 29 of 74 1 According to the FracFocus database, 7 there have been a total of only 35 federal wells 2 hydraulically fractured in California since record keeping began. There were only two wells 3 hydraulically fractured in 2014, two wells in 2015, and no federal wells fractured in California 4 since 2015. See Ex. 1, FracFocus spreadsheet indicating wells hydraulically fractured in 5 California (June 19, 2019) (attached to Decl. of James Tichenor regarding exhibits, attached 6 hereto as Exhibit A). 8 See also Ex. 5, FWS, Programmatic Biological Opinion on Oil and Gas 7 8 9 Activities on Bureau of Land Management lands in the San Joaquin Valley (2017) (attached to Ex. A) at 8 (noting that “[i]n California, less than 10% of new wells on BLM mineral estate are hydraulically fractured.”). Second, BLM has only identified limited areas under its jurisdiction 10 in the Bakersfield region with potential for oil and gas activities, meaning that much of the area 11 12 13 14 is unlikely to ever be fractured in the future. See Ex. 3, BLM, Bakersfield Field Office Record of Decision and Approved Resource Management Plan (2014) Map 2.22 (attached to Ex. A). 9 Third, Ms. Anderson asserts an interest in a number of specific areas that BLM already manages 15 16 17 18 19 20 21 22 23 24 25 26 27 7 FracFocus is a public database managed by the Ground Water Protection Council, an organization of state water quality regulatory agencies, and by the Interstate Oil and Gas Compact Commission, a multi-state government agency charged with balancing oil and gas development with environmental protection. 80 Fed. Reg. 16,130. FracFocus publishes information about operators’ disclosures of chemicals used in hydraulic fracturing fluids. 80 Fed. Reg. 16,168. 8 North Dakota and California state law requirement that operators report to FracFocus. See Title 14, California Code of Regulations, Section 1788(b); North Dakota Administrative Code at 4302-03-27.1(1)(g); HFRR_034643–44. While Federal Defendants contend that review of ESA claims is limited to record review under the APA, see supra section VIII, Parties may cite extrarecord evidence for the purposes of establishing or disproving standing. See Cent. Sierra Envtl. Res. Ctr. v. U.S. Forest Serv., 916 F. Supp. 2d 1078, 1086 (E.D. Cal. 2013) (citing Nw. Envtl. Defense Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1527–28 (9th Cir. 1997); Didrickson v. U.S. Dep’t of Interior, 982 F.2d 1332, 1340 (9th Cir. 1992)). 9 In addition, the Trico gas field located in the Atwell Island area identified by Ms. Anderson has been depleted, and oil and gas activities are unlikely to occur there in the future. See Ex. 4, Excerpts of California DOGGR Annual Reports of the State Oil and Gas Supervisor (2009) at 105 (indicating no producing wells and no estimated oil reserves) (attached to Ex. A). 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 15 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 30 of 74 1 in ways that restrict oil and gas operations, making it even more speculative that hydraulic 2 fracturing activities governed by the 2017 Rule will someday occur there. 10 If the Court were to 3 predicate standing on this conjectural chain that at some point, a species of concern to Ms. 4 Anderson “will stumble across a project tract,” and that the same tract will be developed by the 5 oil and gas operator who will hydraulically fracture a well in a way that harms Ms. Anderson’s 6 7 interests, it “would be tantamount to eliminating the requirement of concrete, particularized injury in fact.” Summers, 555 U.S. at 496. 8 9 As discussed further below, similar problems exist with regard to the three ways that Sierra Club asserts that the repeal of the 2015 rule harms its interest in listed species. Moreover, 10 its arguments ignore the fact that additional site-specific protections are already in place in listed 11 12 13 14 species habitat, independent of the 2015 or 2017 Rules. These protections further demonstrate why Sierra Club has not, and cannot, trace its alleged ESA injury to the fact that 2015 Rule contained these requirements. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 As the FWS has recognized, BLM’s Bakersfield RMP delineates areas needed for the protection of, and to promote the recovery of, listed species. See Ex. 5 at 9–10. BLM has closed 149,000 acres of land to oil and gas operations in the Bakersfield RMP and placed special stipulations on another 1,0011,470 acres. See Ex. 3 at 2.14.1.1. Areas closed to oil and gas operations, and therefore unaffected by either the 2015 or 2017 Rules, include the Bitter Creek Areas of Critical Environmental Concern (“ACEC”), Blue Ridge ACEC, Erskine Creek ACEC, Piute Cypress ACEC, and Point Sal ACEC. Id. at 2.14.1.1. Areas with wilderness characteristics, segments of the Lower Kern River, North Fork of the Kaweah River, San Joaquin River, and Chimney Creek determined to be suitable as Wild and Scenic Rivers, and Deer Spring area of ecological importance have also been closed to oil and gas activities. See id. at 2.14.1.1; Map 2.22. Likewise, oil and gas activities have been limited to “valid existing rights” in the Carrizo Plain National Monument since 2001. See Ex. 6, Proclamation, Establishment of the Carrizo Plain National Monument (Jan. 17, 2001) (attached to Ex. A). In general, National Wildlife Refuges are managed by FWS, rather than BLM, and FWS only allows the extraction or development of minerals on National Wildlife Refuge lands if there is a valid existing right to engage in such activities. See FWS, Mineral Management Policy 612 FW 1 (December 27, 2016), available at https://www.fws.gov/policy/612fw1.html#extractionsanddevelopment. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 16 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 31 of 74 Sierra Club Has Not Shown that Rescission of the 2015 Rule’s Tank Requirements Caused Its Alleged ESA Injury 1 2 3 Sierra Club argues that the 2017 Rule poses risks to wildlife by allowing the use of open 4 pits, rather than closed tanks to store hydraulic fracturing wastewater, thus potentially exposing 5 species to the fluids. Sierra Club Mot. for Summ. J. (“Sierra Club Mot.”) at 28, Case No. 4:18- 6 cv-524-HSG, ECF No. 110. To understand why the Sierra Club cannot show that its alleged 7 injuries are caused by the 2017 Rule, it is necessary to understand the scope of the waste storage 8 provision in the 2015 Rule, and the breadth of the protections for listed species that exist 9 independent of either the 2015 or 2017 Rules. 10 11 12 13 14 First, the 2015 Rule included a provision that applied during the interim period (a maximum of 90 days) between “the completion of hydraulic fracturing and the implementation of a plan for the disposal of produced water approved under BLM regulations, which currently are in Onshore Order 7.” 80 Fed. Reg. 16,162. During this “interim period,” fluids were to be stored in “rigid enclosed, covered, or netted and screened above-ground tanks.” 80 Fed. Reg. at 15 16,220. In limited circumstances, operators could apply for approval to use a lined pit. Id. at 16 17 18 19 20 21 22 23 24 25 26 27 28 16,162. Second, the 2017 Rule does not mandate the use of pits, or prevent BLM, or any state regulator or individual operator from deciding to use closed tanks in order to ensure compliance with the ESA. See Clapper, 568 U.S. at 412 (“because § 1881a at most authorizes—but does not mandate or direct—the surveillance that respondents fear, respondents’ allegations are necessarily conjectural”). Indeed, both California and North Dakota have passed regulations addressing the storage of fluids. See N.D. ADMIN. CODE § 43-02-03-19.3 (except for limited circumstances, “no saltwater, drilling mud, crude oil, waste oil, or other waste shall be stored in earthen pits or open receptacles.”); CAL. FISH & GAME CODE § 1016; CAL. CODE REGS. tit. 14, § 740 (regulating any open depression or basin in the ground, whether manmade or natural, which contains oil or a combination of oil and water and poses a hazard to wildlife); see also Ex. 5 at 9 (noting that “all operators [on BLM land] in California are required to comply with [California’s] Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 17 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 32 of 74 1 DOGGR 11 regulations. Currently, DOGGR has very stringent regulations for hydraulic 2 fracturing, including but not limited to well construction, chemical disclosure, groundwater 3 monitoring both before and after the operations are conducted, and others.”). In addition to these 4 requirements, both BLM and the oil and gas operators have a strong incentive to ensure that their 5 operations do not result in such harm because the ESA contains criminal penalties for anyone 6 (including federal agencies) who “takes” a listed species. See 16 U.S.C. § 1538. Third, and relatedly, the areas that the Plaintiffs’ declarations address are already subject 7 8 to requirements wholly independent of the 2015 or 2017 Rules that provide protections for the 9 listed species that they are concerned about. After the 90-day interim period, BLM’s legally- 10 binding Onshore Order 7 requires that “[t]he pit shall be fenced or enclosed to prevent access by 11 livestock, wildlife, and unauthorized personnel. If necessary, the pit shall be equipped to deter 12 13 14 entry by birds,” 58 Fed. Reg. 47,354, 47,364 (Sept. 8, 1993), and that “[t]he pit shall be kept reasonably free from surface accumulation of liquid hydrocarbons that would retard evaporation,” id. at 47,365. 15 In addition, oil and gas operations on BLM land in both the Bakersfield region and Fort 16 Berthold are governed by additional requirements for listed species protection. The BLM 17 18 19 20 21 Bakersfield Field Office administers all oil and gas operations in accordance with the detailed instructions contained in a programmatic biological opinion issued by the FWS. This includes requirements for the handling of potentially hazardous liquids to protect listed species: “operator will prevent avian and terrestrial animal access to fluids pits that contain or have the potential of 22 containing salinity sufficient to cause harm, surfactants, or Resource Conservation and Recovery 23 Act-exempt hazardous substances.” Ex. 5 at 13. 12 BLM further requires that “Federally-listed 24 11 26 California’s Department of Division of Oil, Gas, and Geothermal Resources (“DOGGR”) regulates hydraulic fracturing operations in the State of California. These regulations also apply to operations on BLM land within the State. 27 12 25 28 FWS previously issued programmatic biological opinions to the BLM relating to oil and gas activities over the same geographic area in 1996 and 2001. Ex. 5 at 1. The most recent Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 18 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 33 of 74 1 species and other animals shall be protected from the hazards posed by sumps. All exposed oil 2 sumps shall be screened or eliminated.” Id. BLM places specific requirements on the type of 3 screening for any remaining sumps. Id. In addition, the operator must “take actions necessary to 4 prevent wildlife and livestock access, including avian wildlife, to all open-topped tanks that 5 contain or have the potential to contain salinity sufficient to cause harm to wildlife or livestock, 6 7 8 9 hydrocarbons, or Resource Conservation and Recovery Act of 1976-exempt hazardous substances. At a minimum, the operator will net, screen, or cover open-topped tanks to exclude wildlife and livestock and prevent mortality.” Id. “If the operator uses netting, the operator will cover and secure the open portion of the tank to prevent wildlife entry. The operator will net, 10 screen, or cover the tanks until the operator removes the tanks from the location or the tanks no 11 12 13 14 15 longer contain substances that could be harmful to wildlife or livestock.” Id. Given the breadth of these protections—that exist wholly outside of either the 2015 or 2017 Rule—Sierra Club cannot trace its alleged injuries to the rescission of a regulatory provision that would have required the use of tanks during a period of time limited to a maximum of 90 days. At Fort Berthold, regulation of oil and gas activities is shared between BLM and the 16 17 BIA. 13 See Ex. 7, BIA, Mitigated Programmatic Environmental Assessment Oil and Gas 18 Development on Trust Lands and Minerals Fort Berthold Indian Reservation (May 2017) 19 (attached to Ex. A). Very little of the mineral estate on the Reservation is governed by BLM. 20 21 23 biological opinion was issued in 2017. Id. Pursuant to the ESA, BLM requested formal consultation on the effects of BLM-approved oil and gas activities on the San Joaquin kit fox, blunt-nosed leopard lizard, giant kangaroo rat, Tipton kangaroo rat, Kern mallow, San Joaquin wooly-threads, California jewelflower, and Bakersfield cactus. Id. 24 13 22 25 26 27 The Reservation includes surface lands and subsurface minerals owned by various entities, including the Three Affiliated Tribes, individual tribal members (allottees), and persons who are not members of tribes (fee lands). Ex. 7 at 1.2. The U.S. also owns water and shore areas of Lake Sakakawea within the Reservation. Id. The BIA has trust responsibilities regarding minerals and lands owned by the Three Affiliated Tribes and tribal allottees, and the BLM is responsible for permitting exploration and development of trust minerals. Id. 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 19 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 34 of 74 1 See Ex. 8, Map showing mineral ownership on Fort Berthold Reservation (attached to Ex. A). 14 2 Both BIA and BLM impose requirements on operators, including the use of closed loop systems 3 where all drilling fluids and solid wastes are contained in tanks. See Ex. 9, Fort Berthold 4 Programmatic BA at 2.4.1, 2.10.2.2 (attached to Ex. A); Ex. 7 at 2.2.4.1, 2.5.3, 2.5.6. As a result 5 of the BIA-imposed requirements and the North Dakota state regulations, there are no open pits 6 7 8 storing wastewater on the Reservation. See id.; N.D. ADMIN. CODE § 43-02-03-19.3. Therefore, Sierra Club cannot trace any ESA injury to the repeal of the 2015 Rule’s 90-day interim tank requirements. 9 In support of its argument, Sierra Club cites a number of studies that are more than a 10 decade old indicating that uncovered waste storage pits can result in harms to wildlife. See ECF 11 12 13 14 15 No. 110-2 at 6-65. These studies are insufficient to demonstrate the 2017 Rule has caused either a present or future injury to Plaintiffs. 15 As discussed above, industry practices and agency requirements have evolved since those studies were completed, so that uncovered pits are no longer permissible when they pose risks to listed species. As the newer agency documents that 16 Plaintiffs include demonstrate, federal agencies now place additional requirements, including 17 fencing, netting, or use of tanks to protect listed species. See, e.g., BLM, Record of Decision and 18 Approved Resource Management Plan for the Bakersfield Field Office (2014), ECF No. 110-2 at 19 85 (“All liquids shall be in closed, covered containers. Any spills of hydrocarbon/hazardous 20 liquids shall not be left unattended until clean-up has been completed. No open drilling mud, 21 water, oil or other liquid storage or retention structures will be allowed. All such structures will 22 23 14 25 The map areas in yellow are governed by BLM. The Tribal and Allotted land (purple and green) are governed by BIA. The areas shown in white do not fall under the jurisdiction of either agency and are not governed by the 2017 Rule. 26 15 24 27 28 As further explained in Section VIII, the Court should not consider these studies when considering the merits of Plaintiffs’ ESA claims because review of ESA claims is limited to the administrative record. It may, however consider them for purposes of determining whether Plaintiffs have standing. See Cent. Sierra Envtl. Res. Ctr., 916 F. Supp. 2d at 1086. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 20 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 35 of 74 1 be required to have some sort of netting or other covering that precludes entry or other use by 2 condors or other listed avian species.”); BLM, Gunnison Sage-Grouse Rangewide Draft 3 Resource Management Plan Amendment and Draft Environmental Impact Statement (2016), 4 ECF No. 110-2 at 70 (“Cover (with fine mesh netting or other effective techniques) all drilling 5 and production pits and tanks regardless of size to reduce sage grouse mortality.”). 6 7 8 9 Sierra Club notably lacks any recent support for its claim that listed species may be affected in areas identified in the standing declarations, despite the fact that those areas are presently subject to the 2017 Rule. For the areas where Sierra Club expresses concern, it presents no evidence of any listed species being harmed by an open pit since the promulgation of 10 the 2017 Rule. Indeed, it cites to nothing in the Record, including in the materials filed through 11 12 13 14 15 public comment, to indicate that listed species face a present risk of harm from open pits during the 90-day period that would have been regulated by the 2015 Rule. By contrast, BLM records during the time that the 2017 Rule has been in effect show that no species have been harmed by oil and gas activities in the Bakersfield region. Ex. 2, BLM, 2018 Annual Report for the 16 December 22, 2017 Programmatic Biological Opinion on Oil and Gas (December 20, 2018) 17 (attached to Ex. A). See Clapper, 568 U.S. at 409 (“threatened injury must be certainly 18 impending to constitute injury in fact, and that [a]llegations of possible future injury are not 19 sufficient.” (quotations and citations omitted)). 20 Essentially, the Sierra Club’s theory rests on the following causal chain: (1) BLM has or 21 will authorize hydraulic fracturing in specific regions of California or North Dakota; (2) BLM 22 will not require the operators of these operations to use closed tanks to store waste fluid during 23 the 90-day interim period; (3) during that 90-day period, a listed species in which Sierra Club is 24 interested will wander onto the site; (4) the operator will fail to take measures necessary to 25 ensure that the listed species stays out of any waste pits; and (5) listed species will be harmed by 26 27 28 contact with the hydraulic fracturing waste fluid. This chain is too attenuated to be cognizable under Article III. See Clapper, 568 U.S. at 410; id. at 413 (expressing reluctance “to endorse standing theories that require guesswork as to how independent decisionmakers will exercise Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 21 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 36 of 74 1 their judgment.”); Lujan, 504 U.S. at 562 (Plaintiff has the burden to “adduce facts” showing that 2 the “unfettered choices made by independent actors” “have been or will be made in such manner 3 as to produce causation and permit redressability of injury.”). 4 5 Sierra Club Has Not Shown that Rescission of the 2015 Rule Caused an ESA Injury from Surface and Groundwater Pollution 6 Sierra Club also asserts that the 2015 Rule’s well construction standards, and the use of 7 tanks instead of pits, provided additional protections to listed species. Sierra Club Mot. at 29. 8 This claim likewise relies on far too speculative of a causal chain to be constitutionally 9 cognizable, and again ignores the existing protections in place where oil and gas activities have 10 11 12 13 14 the potential to harm listed species. Specifically, Sierra Club asserts in its brief that “[m]any ESA-listed species that coexist with BLM-authorized hydraulic fracturing rely on clean surface and groundwater,” Sierra Club Mot. at 29, and that “FWS and BLM have both acknowledged that spills and accidents causing contamination of waters in the Upper Colorado River Basin can kill and otherwise harm the listed fish and their aquatic habitat,” id. First, Sierra Club has not 15 provided any evidence that it has members who have a constitutionally cognizable interest in any 16 17 18 19 20 21 listed species of Colorado River fish. The only standing declarations that it has provided that profess any interest in listed species are limited to regions of California and the Fort Berthold Indian Reservation in North Dakota; they do not mention any interest in any listed Colorado River fish. See supra section IV.B.1; Anderson Decl., ¶¶ 8-10, 12-15; Deville Decl, at 47. Second, even if it did have a cognizable interest in these fish, Sierra Club never explains 22 how the 2017 Rule is causally linked to its injury. In addition to the protections for species 23 described above in Section VI.B.3, BLM requires operators in the Bakersfield management area 24 to follow measures to ensure that species are not impacted by potential water pollution outlined 25 in the FWS biological opinion. For example, operators must “prevent all hazardous, poisonous, 26 flammable, and toxic substances from coming into contact with soil and water.” Ex. 5 at 13. 27 This includes installing and maintaining an “impervious secondary containment system for any 28 tank or barrel containing hazardous, poisonous, flammable, or toxic substances sufficient to Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 22 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 37 of 74 1 contain the contents of the tank or barrel and any drips, leaks, and anticipated precipitation” as 2 well as maintaining “all secondary containment systems to prevent wildlife and livestock 3 exposure to harmful substances” and installing “effective wildlife and livestock exclosure 4 systems such as fencing, netting, expanded metal mesh, lids, and grate covers.” Id. If a spill 5 does occur, any “released materials will be cleaned up immediately and disposed of properly.” 6 7 8 9 Id. at 12. In the case of a release of potentially hazardous materials, including produced fluids, within listed species habitat the operator must contact FWS and/or BLM “as soon as possible, but not later than 24 hours after the release occurs or is discovered.” Id. And within 48 hours of being notified of a release that may affect listed species, BLM will issue additional clean-up 10 provisions to the operator, and, within 60 days of completing clean-up activities, a compliance 11 12 13 14 15 report will be submitted by the monitoring biologist to the BLM. Id. At Fort Berthold, operators are required to follow BLM’s Onshore Oil and Gas Order No. 2 in both BLM and BIA jurisdictional areas to ensure safeguards for the prevention of blowouts and to maintain fluid control during drilling. See Ex. 10, Letter from FWS to BIA concurring 16 with BIA’s determinations of the effect on species in the Programmatic Biological 17 Assessment/Biological Evaluation for Oil and Gas Development for Fort Berthold Indian 18 Reservation (June 4, 2014) at 3 (attached to Ex. A). In addition, well pads must be at least 150 19 feet from wetlands and perennial and intermittent streams, and have a 24-inch perimeter berm to 20 prevent contaminants from leaving the well pad in the event of a spill in BIA-regulated areas. 21 Id.; see also Ex. 9 BIA, Programmatic Biological Assessment/Biological Evaluation for Oil and 22 Gas Development for Fort Berthold Indian Reservation (2014) at 2.10.2.4 (noting additional 23 protections for water). BLM also requires at least 500 to 1,000 foot set-backs from water 24 sources, see Ex. 11, BLM, Oil and Gas Lease Stipulation 16-3 and places additional 25 requirements in specific APDs to protect against spills (attached to Ex. A). See, e.g., Ex. 12, 26 27 28 BLM, Sample Appendix K Surface Conditions of Approval for Application for Permit to Drill (attached to Ex. A). As a result, before Plaintiffs could hypothetically suffer an injury from the rescission of Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 23 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 38 of 74 1 the 2015 Rule’s extra requirements, a long list of speculative events would have to occur: (1) 2 BLM would have to approve a permit for an operator in an area where a spill had the potential to 3 enter into surface or groundwater used by a listed species in which Plaintiffs have an interest, (2) 4 an accident would have to occur at the site, and that accident would have to be one that would 5 have been prevented if the 2015 Rule was in effect; (3) the accident must also occur in such a 6 7 8 9 way that it resulted in hazardous materials entering into the water in sufficient quantity that they resulted in harm to the listed species despite the requirements already in place. This chain is too attenuated to be cognizable under Article III. Cf. Ground Zero Ctr. for Non-Violent Action v. U.S. Dep’t of Navy, 383 F.3d 1082, 1092 (9th Cir. 2004) (“[W]e do not think that risks of missile 10 explosion, based on any discretionary acts of the Navy, required additional ESA section 7 11 12 consultations because the likelihood of jeopardy is too remote.”). Sierra Club Has Not Shown Any ESA Injury from Rescission of the 2015 Rule’s Water Source and Volume Disclosure Requirements 13 14 Finally, Sierra Club alleges that “water depletions associated with BLM-approved 15 hydraulic fracturing operations adversely impact listed species and their habitat”—and points to 16 17 18 19 20 Colorado River fish as examples of listed species that could be harmed. Sierra Club Mot. at 29. It claims that the never-implemented 2015 Rule would have prevented this harm by disclosing the source of water used in hydraulic fracturing operations. Id. As noted above, Sierra Club has not provided any evidence that it has members who have 21 a constitutionally cognizable interest in any listed species of Colorado River fish. Even if Sierra 22 Club had an interest in listed Colorado River fish, it cannot demonstrate how the 2015 Rule’s 23 disclosure requirement would prevent water depletions, or how the 2017 Rule causes any injury 24 to the fish. This is particularly true because BLM already has protections in place independent 25 of either the 2015 or 2017 Rule to prevent harm to the listed Colorado River fish from water 26 withdrawals. 27 28 Specifically, BLM engaged in consultation with FWS on its Fluid Minerals Program in the South Platte River Basin, which resulted in a programmatic biological opinion which Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 24 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 39 of 74 1 includes specific measures that BLM implements to ensure that water withdrawal do not harm 2 listed fish species. See Ex. 13, FWS, Formal Section 7 Consultation for BLM’s Fluid Minerals 3 Program in the [South] Platte River Basin, Colorado (Feb. 2, 2015) (attached to Ex. A). On a 4 project-by-project basis, BLM assesses whether or not the operator will use a water source that is 5 a tributary to the South Platte River. If the operator commits to using a source that the state 6 7 8 9 deems non-tributary, such as water from a designated groundwater basin that is not hydrologically connected to the South Platte, then river flows will not be affected. See Ex. 14, BLM Letter to Operators (March 2, 2015) at 2 (attached to Ex. A) (Before BLM approves an APD, energy companies must certify that “100% of the water that will be used in construction, 10 drilling and completion activities is designated non-tributary to the South Platte River by the 11 12 13 14 15 State of Colorado . . . disclose the source of the water supply, and provide a copy of the well permit or water right that shows that the water is designated non-tributary.”). In addition, the operator will likely be required to “prepare a biological assessment on the effect of water depletion resulting from construction, drilling and completion activities in the South Platte Basin 16 on federally listed species whose habitat is dependent on water in the South Platte in Nebraska.” 17 Id. BLM also requires operators to “replace any water used from oil and gas development that 18 may affect” listed species. Ex. 14, BLM, Endangered Species Act Section 7 Consultation on 19 Water Depletions Caused by Oil and Gas Activity in Platte River Basin in Colorado (Jan. 9, 20 2015). 21 Ms. Deville is the only declarant to raise concerns about how water withdrawals may 22 impact listed species. See Deville Dec. ¶ 26 (“But I know that there are many endangered 23 species that could be threatened by spills and other pollution or water depletion associated with 24 hydraulic fracturing here on Fort Berthold, including the Dakota skipper.”). First, BLM only 25 controls the mineral estate in a very limited portion of the Fort Berthold reservation. See Ex. 8. 26 27 28 Second, in a programmatic biological evaluation for Fort Berthold Indian Reservation Oil and Gas Development, FWS explained the limited impact of the possible water withdrawals by oil and gas activities: “While water management will always be a concern to the management of Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 25 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 40 of 74 1 Lake Sakakawea . . . if water is drawn from Lake Sakakawea directly or from water wells 2 hydrologically connected to the reservoir, the Proposed [oil and gas] Action would use 3 approximately 0.04 percent of the volume of the lake.” Ex. 9 at 5.4.1. Third, Sierra Club has not 4 demonstrated that water withdrawals would cause injury to species in which Ms. Deville is 5 interested. See Ex. 10 (noting that [t]he greatest potential stressor for the Dakota skipper from 6 7 8 9 the proposed action is destruction and degradation of habitat” rather than any issues subject to additional regulations under the 2015 Rule such as water pollution or depletion as well as noting water protections in place for the Pallid Sturgeon). As a result, Plaintiffs’ alleged injury is not fairly traceable to the 2017 Rule. 10 Nor would any purported injury be redressed even if the 2015 Rule was in effect. See 11 12 13 14 15 Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 75 n.20 (1978) (plaintiff must show a “substantial likelihood” that the alleged injury will be redressed by the relief it seeks). The only difference between the 2015 Rule and the 2017 Rule identified by Plaintiffs is that the 2015 Rule required disclosure of the source of water used. Sierra Club Mot. at 28–29. 16 As noted above, operators are already required to disclose the source of the water used in the 17 areas that Sierra Club professes to be interested in. Id. at 29. In addition, Sierra Club fails to 18 explain how the mere disclosure of source of the water would prevent any water withdrawal and 19 therefore have an impact on listed species. As a result, vacatur of the 2017 Rule would not 20 redress its alleged injury. 21 22 23 C. California Lacks Standing Because It Asserts Parens Patriae Injuries, Not Direct Harms It is settled law that a “State does not have standing as parens patriae to bring an action 24 against the Federal Government.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 25 U.S. 592, 610 n.16 (1982) (citing Massachusetts v. Mellon, 262 U.S. 447, 485–86 (1923)); 26 accord Nevada v. Burford, 918 F.2d 854, 858 (9th Cir. 1990) (relying on “the Supreme Court’s 27 clear statement in Snapp”); Alaska v. United States, 981 F.2d 1259 (9th Cir. 1992) (same); 28 People ex rel. Lockyer v. U.S. Dep’t of Agric., No. CIV.A05-0211 MCE GGH, 2005 WL Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 26 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 41 of 74 1 1719892, at *2 (E.D. Cal. July 18, 2005). As the D.C. Circuit has recently explained, this 2 longstanding principle remains true even after Massachusetts v. EPA, 549 U.S. 497 (2007), 3 because there the Supreme Court concluded that the state had standing based on an injury to the 4 state’s proprietary interest as a landowner. See Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 5 178–83 (D.C. Cir. 2019); Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 6 7 475–79 (D.C. Cir. 2009). Likewise, California does not have standing to sue the U.S. based on the generalized interests of its citizens. 8 9 In a very similar situation, the Eastern District of California held that California lacked standing to sue the U.S. Department of Agriculture for alleged failures to comply with NEPA 10 and the APA in creating the 2004 Sierra Nevada Forest Plan Amendment. People ex rel. 11 12 13 14 15 Lockyer, 2005 WL 1719892, at *1. The court first explained that the state had not asserted any particular injuries to California itself, outside of its general interests in the health and welfare of its citizens. Id. at *2–3. The Lockyer court dismissed the case, explaining that such generalized allegations are “insufficient to state a cognizable claim against the federal government. In 16 actions regarding citizens’ rights relating to the federal government, it is the United States, not an 17 individual state, that represents citizens as parens patriae.” Id. at *3. 16 Here, California has similarly failed to assert direct injuries to California outside of the 18 19 interests of its citizens. California’s Complaint states: The Attorney General is the chief law enforcement officer of the State and has the authority to file civil actions in order to protect public rights and interests, including actions to protect the natural resources of the State. Cal. Const., art. V, § 13; Cal. Gov. Code §§ 12600-12612. This challenge is brought in part pursuant 20 21 22 23 24 25 26 27 28 16 Even assuming that parens patriae standing is available to California, the State has not met its burden for invoking it because there exists here “a small group of citizens who are likely to challenge the [government action] directly.” Maryland v. Louisiana, 451 U.S. 725, 739 (1981) (holding that a state may rely on parens patriae standing and “act as the representative of its citizens in original actions where the injury alleged affects the general population of a State in a substantial way”). Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 27 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 42 of 74 1 2 to the Attorney General’s independent constitutional, statutory, and common law authority to represent the public interest. 3 Cal. Compl. ¶ 10. While California notes that the state contains millions of acres of BLM land 4 and subsurface mineral estate, id. ¶ 11, it does not “allege any injuries that such activities would 5 cause to the land, resources, and wildlife owned, used, and managed by the State.” Lockyer, 6 2005 WL 1719892, at *3. See also Cal. Compl. ¶ 12 (“California has a strong interest in 7 preventing the adverse environmental and public health impacts from the use of hydraulic 8 fracturing on federal and Indian lands within the State.”), ¶ 14 (“Plaintiff has an interest in the 9 protection of federal lands, which belong to the People.”), ¶ 15 (“Defendants’ action will 10 adversely impact Plaintiff by increasing the potential for harmful environmental and public 11 health impacts.”); Cal. Mot. for Summ. J. (“Cal. Mot.”) at 13 (“Thus, the Repeal will adversely 12 impact California by increasing the risks of harmful environmental and public health impacts 13 14 15 16 from conducting hydraulic fracturing on federal and Indian lands, including increased air pollution, impacts to surface and groundwater resources, and induced seismicity from the disposal of wastewater in disposal wells from hydraulic fracturing operations.”). Moreover, the State has failed to provide any evidence to indicate that it has suffered a 17 legally cognizable injury separate and apart from the generalized interest of its citizens. 18 19 20 21 22 Plaintiffs have the burden of establishing standing for each claim raised in the complaint. See Valley Outdoor, Inc. v. City of Riverside, 446 F.3d 948, 952 (9th Cir. 2006); Schmier, 279 F.3d 817, 821 (9th Cir. 2002). At the summary judgment phase, Plaintiffs “can no longer rest on such mere allegations, but must ‘set forth’ by affidavit or other evidence specific facts, Fed. Rule Civ. 23 Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true.” 24 Lujan, 504 U.S. at 561 (quotations omitted). “It is a long-settled principle that standing cannot 25 be inferred argumentatively from averments in the pleadings, but rather must affirmatively 26 appear in the record.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990), holding 27 modified by City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004) (citations 28 omitted); Wyoming v. Oklahoma, 502 U.S. 437, 448-49 (1992); see also, Gov’t of Manitoba, 923 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 28 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 43 of 74 1 F.3d at 178 (contrasting direct injury and parens patriae standing). Here, California filed no 2 declarations supporting its claim of direct injury, as it must at the summary judgment stage. See 3 Lujan 504 U.S. at 561 (1992). This lack of evidence distinguishes this case from the Ninth 4 Circuit’s finding that a state had established standing based on its proprietary interests in the 5 state’s natural resources. See Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1178–79 (9th 6 7 8 9 Cir. 2011). In that case, the court specifically noted that California had submitted an affidavit to support its unique propriety interest and explaining the future harm that the State would suffer from the proposed rule. Id. Here, California has not submitted any such affidavits, and instead cites to its own comment letter to BLM, Cal. Mot. at 13 (citing HFRR_005056–57), and to a 10 report by California’s DOGGR of oil and gas activities apparently under the State’s own 11 12 13 14 regulatory purview. See Cal. Mot. at 13. 17 These documents do not indicate how the 2017 Rule harms California’s unique propriety interest. California has thus failed to meet its burden of demonstrating any direct injury to its own interests. Because California does not have standing to sue the U.S. in parens patriae, and has not 15 16 established a direct injury, its suit must be dismissed. D. California Lacks Standing to Bring IMLA Claims 17 18 19 California lacks standing to make claims and arguments under the Indian Mineral Leasing Act (“IMLA”). 18 California brings an IMLA claim alleging that the IMLA “provides 20 21 22 23 24 25 26 27 17 Notably, the report opens by explaining that “[i]n September 2013, Governor Brown signed into law Senate Bill 4 SB 4), establishing the most comprehensive Well Stimulation Treatment (WST) regulatory program in the United States.” HFRR_023336 (emphasis added). Except in rare instances of federal preemption, state laws and regulations also apply on BLM lands within that state. 18 These two cases are separate, even though the parties are managing them jointly. Thus the law providing that “[o]nly one of the [plaintiffs] needs to have standing” to bring a claim does not allow California to bring IMLA claims in California v. Bureau of Land Management, regardless of whether Sierra Club can bring those claims in Sierra Club v. Bernhardt. Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007). 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 29 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 44 of 74 1 Defendants with a trust responsibility to ensure that ‘[a]ll operations under any oil, gas, or other 2 mineral lease issued pursuant to the terms of [the IMLA] or any other Act affecting restricted 3 Indian lands shall be subject to the rules and regulations promulgated by the Secretary of the 4 Interior.’” Cal. Compl. ¶ 55 (quoting 25 U.S.C. § 396d). California claims that Federal 5 Defendants violated the IMLA by acting in a manner that was arbitrary, capricious, an abuse of 6 7 8 9 discretion, not in accordance with law, and in excess of their statutory authority. Id. ¶ 58. Because California is outside the IMLA’s zone of interest, its claim under that statute must be dismissed. “[S]tanding is not dispensed in gross,” and “a plaintiff must demonstrate standing for 10 each claim he seeks to press and for each form of relief that is sought.” Town of Chester, N.Y. v. 11 12 13 14 15 Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)). The APA “grants standing to a person ‘aggrieved by agency action within the meaning of a relevant statute.’” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 394 (1987) (quoting 5 U.S.C. § 702). The “zone of interest” test is a guide for deciding whether a particular 16 plaintiff should be heard to complain of a particular agency decision. Id. at 399. “In cases where 17 the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of 18 review if the plaintiff’s interests are so marginally related to or inconsistent with the purposes 19 implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the 20 suit.” Id. at 399–400. 21 California is well outside the zone of interests that Congress intended the IMLA to 22 protect and, therefore, it lacks standing to bring those claims. The IMLA “imposes extensive 23 responsibilities on the government in tribal mineral leasing matters for the benefit of Indians.” 24 Assiniboine & Sioux Tribes of Fort Peck Indian Reservation v. Bd. of Oil & Gas Conservation of 25 State of Montana, 792 F.2d 782, 794 (9th Cir. 1986). “[T]he IMLA aimed to foster tribal self- 26 27 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 30 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 45 of 74 1 determination by ‘giv[ing] Indians a greater say in the use and disposition of the resources found 2 on Indian lands.’” United States v. Navajo Nation, 537 U.S. 488, 493–94 (2003) (quoting BHP 3 Minerals Int’l Inc., 139 I.B.L.A. 269, 311 (1997)). 4 5 6 7 8 9 Several Circuits have held that nontribal entities lack standing to bring IMLA claims. The Eighth Circuit has held that a nontribal lessee of Indian land lacked standing to sue the Secretary of the Interior under the IMLA because Congress intended the IMLA “to protect only Native American interests.” Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031, 1036–37 (8th Cir. 2002). The Eleventh Circuit agreed, concluding that the IMLA and its accompanying regulations “protect Indian landowners, not nontribal lessees.” Hollywood Mobile Estates, Ltd. 10 v. Seminole Tribe of Fla., 641 F.3d 1259, 1270 (11th Cir. 2011); see also Chuska Energy Co. v. 11 12 13 14 15 Mobil Expl. & Producing N. Am., Inc., 854 F.2d 727, 732 (5th Cir. 1988) (“That the Navajos or the Secretary of the Interior could have standing in federal court to challenge the assignment [under the IMLA] does not confer a similar right on non-tribal or non-governmental litigants whom it was not designed to protect.”); cf. San Xavier Dev. Auth. v. Charles, 237 F.3d 1149, 16 1153 (9th Cir. 2001) (“[A] non-Indian party to a contract does not have the right to employ 17 statutory remedies enacted to protect Indian tribes and their members.”). That reasoning applies 18 to California’s IMLA claim: it lacks standing to bring that claim because the IMLA was not 19 intended to protect states. 20 Furthermore, California has not shown that it has any relevant regulatory authority—any 21 environmental protection role—over tribal lands. There is a “‘deeply rooted’ policy in our 22 Nation’s history of ‘leaving Indians free from state jurisdiction and control.’” Okla. Tax 23 Comm’n v. Sac & Fox Nation, 508 U.S. 114, 123 (1993) (quoting McClanahan v. State Tax 24 Comm’n of Ariz., 411 U.S., 164, 168 (1973)). “Generally speaking, primary jurisdiction over 25 land that is Indian country rests with the Federal Government and the Indian tribe inhabiting it, 26 27 28 and not with the States.” Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520, 531 n.1 (1998). States lack authority to enforce civil laws and regulations on tribal lands. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 209 (1987); see also 80 Fed. Reg. 16,128, Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 31 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 46 of 74 1 16,133 (Mar. 26, 2015) (“[S]tates . . . do not have trust responsibilities for Indian lands under 2 Federal laws.”). Accordingly, California has no standing to bring IMLA claims. 19 3 The 2017 Rule Satisfied the APA’s Requirements 4 The APA standard of review is no more stringent when an agency changes its position 5 6 7 8 9 than in any other context. F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 514 (2009) (“We find no basis in the [APA] or in our opinions for a requirement that all agency change be subjected to more searching review.”). An agency must “display awareness” that it is changing position and “show that there are good reasons for the new policy.” Id. at 515. But an agency “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than 10 11 12 13 14 15 the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” Id. When an agency’s “new policy rests upon factual findings that contradict those which underlay its prior policy,” it must provide a “detailed justification” for its change in position. Id. BLM satisfied the requirements for changing its position. First, it clearly displayed 16 17 awareness that it was changing its position, acknowledging that it was rescinding the 2015 Rule. 18 See, e.g., 82 Fed. Reg. 61,926. Second, it clearly “believe[d] that the 2017 Rule was “better” 19 than the 2015 Rule “because it decided to adopt it.” Organized Vill. of Kake v. U.S. Dep’t of 20 Agric., 795 F.3d 956, 967 (9th Cir. 2015). Third, the 2017 Rule is “legally permissible.” Id. at 21 966. And finally, BLM provided “good reasons” and a detailed explanation for promulgating the 22 2015 Rule. Id. The third and fourth points warrant further discussion below. 23 A. The 2017 Rule Is Legally Permissible 24 Sierra Club argues that the 2017 Rule violates BLM’s legal obligations under the Federal 25 26 27 28 19 In any event, there is no oil and gas development on federally-managed tribal lands in California. HFRR_034621 (listing all oil and gas operations between 2010 and 2017 on tribal lands, all of which are outside of California). Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 32 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 47 of 74 1 Land Policy and Management Act (“FLPMA”), the Mineral Leasing Act (“MLA”), the Indian 2 Mineral Development Act (“IMDA”), and the IMLA. Sierra Club Mot. 19–22. On the contrary, 3 BLM had no statutory obligation to promulgate the 2015 Rule—and, consequently, no statutory 4 obligation to keep that Rule in place. 5 6 7 8 9 None of those statutes has any provision mandating that the agency “shall promulgate” hydraulic fracturing regulations. The MLA authorizes BLM to “prescribe necessary and proper rules and regulations,” as well as “to do any and all things necessary to carry out and accomplish the purposes” of the Act. 30 U.S.C. § 189. The MLA further requires that “[e]ach lease shall contain provisions for the purpose of ensuring the exercise of reasonable diligence, skill, and 10 care in the operation of said property” and “such other provisions as [the Secretary] may deem 11 12 13 14 15 16 necessary . . . for the safeguarding of the public welfare.” Id. § 187. The IMLA and IMDA similarly subject oil and gas “operations” on Indian lands “to the rules and regulations promulgated by the Secretary.” 25 U.S.C. § 396d; see also id. §§ 396, 2107. These three statutes do not require BLM to promulgate hydraulic fracturing regulations. Nor does FLPMA. FLPMA provides that “the Secretary shall . . . regulate, through 17 easements, permits, leases, licenses, published rules, or other instruments as the Secretary deems 18 appropriate, the use, occupancy, and development of the public lands.” 43 U.S.C. § 1732(b). It 19 further states that “[i]n managing the public lands the Secretary shall, by regulation or otherwise, 20 take any action necessary to prevent unnecessary or undue degradation of the lands.” 43 U.S.C. 21 § 1732(b). In fact, FLPMA gives the Secretary discretion—as evidenced by the “as the 22 Secretary deems appropriate” language—to manage public lands via various methods, including 23 permits, leases, or rules. Its “broad wording . . . does not mandate that the BLM adopt 24 restrictions” or regulations regarding hydraulic fracturing. Gardner v. Bureau of Land Mgmt. 25 638 F.3d 1217, 1222 (9th Cir. 2011). 26 27 28 When Congress requires an agency to promulgate regulations on a particular topic, it says so clearly. See, e.g., 30 U.S.C. § 871 (“Each coal mine shall be provided with suitable firefighting equipment. . . . The Secretary [of Labor] shall establish minimum requirements for Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 33 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 48 of 74 1 the type, quality, and quantity of such equipment.”); 15 U.S.C. § 78 (c)(3) (SEC shall by rule or 2 regulation establish minimum financial responsibility requirements for brokers and dealers); 3 Envtl. Def. Fund, Inc. v. Gorsuch, 713 F.2d 802, 804 (D.C. Cir. 1983) (Resource Conservation 4 and Recovery Act “required the [EPA] to promulgate regulations establishing standards for the 5 generation, transportation, treatment, storage, and disposal of hazardous waste within eighteen 6 7 8 9 (18) months of its enactment” (citing 42 U.S.C. §§ 6922–6924)); Pub. Citizen v. NRC, 901 F.2d 147, 148 (D.C. Cir. 1990) (“[T]he United States Nuclear Regulatory Commission must promulgate mandatory instructional requirements for the personnel training programs of civilian nuclear powerplant licensees”). The 2017 Rule simply does not violate any statute mandating 10 that BLM must promulgate a regulation governing hydraulic fracturing. 82 Fed. Reg. 61,935. 11 12 13 14 15 In the same vein, no statute requires that all federal and Indian lands be subject to the same set of regulations. BLM promulgated the 2015 Rule because, at the time, it believed “the agency need[ed] a baseline set of standards that would apply to Federal and Indian oil and gas leases in all states.” 80 Fed. Reg. 16,190. However, no statute requires BLM to regulate 16 hydraulic fracturing on federal and Indian lands, and no statute requires BLM to have a 17 consistent regulatory baseline for all federal and Indian lands nationwide. The 2017 Rule is 18 therefore legally permissible. 19 In addition, the MLA specifically contemplates that state laws will play a role in 20 regulation of federal lands. It mandates that lease provisions may not “be in conflict with the 21 laws of the State in which the leased property is situated,” 30 U.S.C. § 187, and that “[n]othing” 22 in the MLA “shall be construed or held to affect the rights of the States or other local authority to 23 exercise any rights which they may have,” 30 U.S.C. § 189. 24 25 26 27 28 Sierra Club argues that the 2017 Rule unlawfully delegates BLM’s duties under FLPMA, the MLA, and the IMLA, but the 2017 Rule does not constitute a delegation, much less an unlawful delegation. Sierra Club Mot. at 23; see also Cal. Mot. at 20. BLM did not, by any means, abdicate its obligation to oversee oil and gas development on federal and Indian lands. To the contrary, as explained above, BLM still develops RMPs and, where appropriate, issues Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 34 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 49 of 74 1 leases and approves APDs subject to all requirements that BLM deems appropriate. Moreover, 2 BLM still maintains and enforces oil and gas regulations, including 43 C.F.R. subpart 3162 and 3 Onshore Oil and Gas Orders 1, 2, and 7, which mandate requirements for well permitting; 4 construction, casing, and cementing; and disposal of produced water. The 2017 Rule does not 5 delegate those responsibilities to states or tribes. And while it is true that the MLA and other 6 7 8 9 statutes afford BLM discretion to take regulatory steps beyond those outlined above, they do not require it. A delegation occurs when an agency allows another entity to determine statutory compliance or abdicates its reviewing authority. Fund for Animals v. Kempthorne, 538 F.3d 124, 133 (2d Cir. 2008). The 2017 Rule does no such thing. Instead of delegating its authority, BLM 10 simply chose not to occupy a discretionary regulatory space. And while BLM previously took 11 12 13 14 15 the position that the 2015 Rule was “necessary” because BLM cannot delegate to states and tribes its statutory responsibilities, 80 Fed. Reg. 16,190, 16,133, BLM has more than adequately explained its change in position. Sierra Club relies heavily on Assiniboine & Sioux Tribes of Fort Peck Indian Reservation 16 v. Bd. of Oil & Gas Conservation of State of Montana, 792 F.2d 782, 795 (9th Cir. 1986), e.g., 17 Sierra Club Mot. at 23, which in fact illustrates that the 2017 Rule is not a delegation of 18 authority. Assinboine involved a cooperative agreement between BLM and the State of Montana 19 holding that the Montana Board of Oil and Gas Conservation could issue recommendations and 20 even make decisions regarding management of tribal lands. The Ninth Circuit explained that if 21 BLM was approving Montana State Board orders “without meaningful independent review, then 22 its procedures would constitute an unlawful delegation of authority.” Id. In stark contrast, here 23 BLM has not surrendered any of its authority to issue leases and approve APDs, and the 2017 24 Rule does not “rubber stamp[]” any drilling decisions on federal and Indian lands. Assiniboine, 25 792 F.2d at 789. 26 B. BLM Had “Good Reasons” and a Detailed Justification for the 2017 Rule 27 28 BLM had good reasons for promulgating the 2017 Rule: it wanted to reduce and Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 35 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 50 of 74 1 eliminate unnecessary regulatory requirements. 82 Fed. Reg. 61,926. BLM followed “this 2 Administration’s policy to reduce unnecessary regulatory burdens on energy development.” 82 3 Fed. Reg. 61,924. That reason is “entirely rational.” Fox Television Stations, Inc., 556 U.S. at 4 517. BLM also provided a detailed justification—describing developments in state and tribal 5 regulations and industry guidance, BLM’s pre-existing regulations, and its thorough cost-benefit 6 analysis—to support its good reasons. 7 Developments in State and Tribal Regulations and Industry Guidance 8 When the 2015 rule was issued, 20 of the 32 states with Federal oil and gas leases had 9 10 11 12 regulations addressing hydraulic fracturing. Since the promulgation of the 2015 rule, an additional 12 states updated or finalized regulations addressing hydraulic fracturing. 82 Fed. Reg. 61,925, HFRR_034640, HFRR_000151. Thus, by the time BLM promulgated the 2017 13 Rule, every state in which federal oil and gas leasing occurred had hydraulic fracturing 14 regulations. HFRR_000151. Moreover, some tribes had taken steps to regulate oil and gas 15 development, and DOI encourages tribes to exercise their sovereignty over their lands and 16 mineral resources. HFRR_000151, HFRR_034646–47. Some states that already had regulations before 2015 strengthened them. For example, 17 18 since 2015, North Dakota updated its regulations to require closed rigid tanks for fluids that flow 19 back after a well is hydraulically fractured and New Mexico required companies to disclose 20 chemicals to FracFocus. HFRR_034642. 21 22 23 24 25 In addition, BLM believed that the 2015 Rule’s requirement to disclose the chemicals in fracturing fluids was unnecessary because disclosure to state regulatory agencies and databases such as FracFocus was more prevalent in 2017 than it was in 2015. 82 Fed. Reg. 61,925–26. For example, before 2015, only 20 states required operators to use FracFocus, but, by 2017, that number had risen to 25. HFRR_000316, D0IAR0020255, HFRR_034651–52. 20 26 27 28 20 California suggests that BLM wanted to rescind the 2015 Rule before it finished reviewing Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 36 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 51 of 74 1 Aside from the changes in state and tribal regulations, the American Petroleum Institute 2 updated two guidance documents for operators after BLM published the 2015 Rule. 3 HFRR_000174–75. The updated guidance documents addressed many of the same topics—such 4 as cement monitoring, pressure testing well casing, and isolating producing zones—that the 2015 5 Rule addressed. Id. They also specified that operators should maintain information about site 6 7 8 9 design, additives used, additives stored on site, spills, and volume and sources of produced water. HFRR_034630. BLM noted that API guidance documents are highly influential, although BLM acknowledged that it lacked data about the percentage of operators that comply with those documents. Id. BLM reasonably anticipated that operators typically would follow 10 industry recommended practices. HFRR_034631. For example, industry guidance recommends 11 12 13 14 15 that operators monitor cementing operations and, thus, BLM concluded that operators would monitor cementing operations regardless of whether the 2015 Rule was in place. HFRR_034648; HFRR_092046 (noting that some companies have voluntarily exceeded regulatory requirements). In short, after BLM promulgated the 2015 Rule, both the regulatory 16 landscape and industry guidance changed, leading BLM to conclude that the 2015 Rule was 17 unnecessary. 18 19 BLM’s Pre-Existing Regulations BLM also concluded that its pre-existing regulations, including those located at 43 C.F.R. 20 subpart 3162 and Onshore Oil and Gas Orders 1, 2, and 7, adequately ensured that operators 21 conduct oil and gas operations in an environmentally sound manner. 82 Fed. Reg. 61,926. 22 While Plaintiffs complain that these pre-existing rules are outdated, the rules in fact address 23 24 25 26 27 state regulations, Cal. Mot. at 17 n.5, but, even if that suggestion were true, the APA allows an administration to have policy preferences before completing its analysis. Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) (“It is hardly improper for an agency head to come into office with policy preferences and ideas . . . and work with staff attorneys to substantiate the legal basis for a preferred policy.”). 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 37 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 52 of 74 1 many of the same issues that the 2015 Rule addressed. Onshore Order No. 2, for example, has 2 long mandated the same the definition of “usable water” as the 2015 Rule. It defines usable 3 water as those waters containing up to 10,000 ppm of total dissolved solids and requires 4 operators to using casing and cement to protect all usable water zones. HFRR_034614. Thus, 5 while it is true that the 2015 Rule revised 43 C.F.R. § 3162.5-2(d) by defining usable water to 6 7 8 9 include waters containing up to 10,000 ppm instead of 5,000 ppm, this was not a substantive change: “The requirement to protect and/or isolate usable water generally containing up to 10,000 ppm of TDS has been in effect since 1988, when Onshore Order 2 became effective.” 80 Fed. Reg. 16,141. BLM thus reasonably concluded that this portion of the 2015 Rule was 10 unnecessary. HFRR_034647. 11 12 13 14 15 Onshore Order 2 further requires that operators take remedial steps if the cement does not circulate back to the surface (an indication of well integrity) or if pressure tests indicate that the casing strings do not satisfy minimum standards. HFRR_034648. BLM concluded that operators would remedy inadequate cementing to protect their investments, follow industry 16 recommended practices, and comply with state regulations and Onshore Order 2. 17 HFRR_034649. For example, 10 of 11 states that BLM surveyed require operators to test well 18 casings to ensure they can handle pressures from hydraulic fracturing (and the eleventh state may 19 require testing). HFRR_034650. BLM may also require cement logs and reports as conditions 20 of approving drilling permits. HFRR_034648. BLM thus concluded that there would be no 21 impacts from removing the 2015 Rule’s cement evaluation log and mechanical integrity test 22 requirements. HFRR_034650. 23 24 25 Cost-Benefit Analysis BLM conducted a thorough cost-benefit analysis and concluded that any incremental benefits of the 2015 Rule had been eliminated by existing and improved state and federal 26 regulations and industry guidance, thus making the 2015 Rule’s burdens unnecessary. 27 28 HFRR_034612. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 38 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 53 of 74 1 The 2017 Rule reduced compliance costs by $9,690 per well or $14 to 34 million per year 2 on federal lands from 2018 to 2027. 21 HFRR_034607, HFRR_034664. On Indian lands, the 3 2017 Rule reduced compliance costs by $1.6 to $3.8 million per year. HFRR_034657. This 4 savings represents 0.1 to 0.2% of the cost of drilling a well, and up to 1.4% for wells with high 5 volumes of recovered fluid. HFRR_034607. The cost savings impacted 1,500 to 3,500 6 hydraulic fracturing operations per year. HFRR_034655. 7 8 9 The 2017 Rule also saved time for operators and BLM. For example, the 2015 Rule would have required an additional eight hours of industry time to submit and four hours of BLM time to process applications to conduct fracturing operations and an additional nine hours of 10 industry time to submit and 4.5 hours of BLM time to process notices after fracturing operations 11 12 13 14 15 were complete. HFRR_034646–47. BLM also concluded that rescinding the 2017 Rule would reduce regulatory burdens because operators would be subject to only one set of regulations (i.e., state or tribal regulations), not two sets (i.e., state or tribal regulations, plus federal). HFRR_003507. California contends that BLM contradicted its prior finding in 2015 that the 2015 Rule’s 16 17 compliance costs would be minimal. Cal. Mot. at 19. To the contrary, however, BLM 18 acknowledged that the cost savings would be “a small percentage of the cost of a well.” 82 Fed. 19 Reg. 61,924. BLM acknowledged that the cost savings were small, but it still chose to prioritize 20 those savings, as it is entitled to do. BLM “was entitled in [2017] to give more weight to 21 socioeconomic concerns than it had in [2015].” Organized Vill. of Kake , 795 F.3d at 968. 22 23 BLM concluded that the cost savings in the 2017 Rule exceeded the foregone benefits of the 2015 Rule, HFRR_034658, particularly because BLM never quantified the 2015 Rule’s 24 25 26 27 28 21 The figure of $9,690 in compliance cost savings differs from BLM’s estimate of $11,400 in compliance costs when it published the 2015 Rule because baseline conditions, including changes in oil and gas drilling activity, had changed since 2015. HFRR_034655–56. Furthermore, states had more regulations in 2017 than they did in 2015, which reduced the savings since operators would have to comply with the new state regulations. HFRR_034655. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 39 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 54 of 74 1 benefits when it was promulgating the 2015 Rule, HFRR_023925. BLM acknowledged that the 2 cost savings were unlikely to substantially alter operators’ investment or employment decisions 3 or affect the supply, distribution, or use of energy. HFRR_034662. 4 5 6 7 8 9 California contends that BLM did not consider the 2015 Rule’s benefits, Cal. Mot. at 21, but BLM acknowledged the benefits of the 2015 Rule that would be lost with the 2017 Rule, HFRR_034657. For example, BLM appropriately acknowledged that the 2015 Rule reduced risks associated with hydraulic fracturing operations, reduced risks to surface and groundwater resources, and increased public awareness of the nature of hydraulic fracturing operations, including the chemicals used. Id. BLM also recognized that rescinding the 2015 Rule would 10 leave the regulated community without a regulatory baseline across all federal lands given the 11 12 13 14 15 16 17 variability in state regulations. Nonetheless, BLM reasonably concluded that other federal and state regulations could offset some of the foregone benefits, HFRR_034658, and that the cost savings of the 2017 Rule exceeded the foregone benefits of the 2015 Rule, even though the 2015 Rule’s “costs [we]re a small percentage of the cost of a well.” 82 Fed. Reg. 61,924, HFRR_034658. As with any analysis, BLM acknowledged the uncertainties in its cost-benefit analysis. 18 See Idaho Wool Growers Ass’n v. Vilsack, 816 F.3d 1095, 1109 (9th Cir. 2016) (upholding 19 agency’s analysis where agency “clearly explained the assumptions on which it built the model 20 and the uncertainties inherent in it, thereby identifying the model’s limitations”). For example, it 21 noted that the number of hydraulic fracturing operations could vary in the future, which could 22 impact the accuracy of the cost-benefit analysis. HFRR_034654. In addition, BLM noted 23 uncertainties related to the cost savings from removing the 2015 Rule’s requirement that 24 operators must run a cement evaluation log. Id. Specifically, it recognized that some operators 25 might run a cement evaluation log as a matter of practice, thus obviating any cost savings from 26 27 28 the 2017 Rule’s removal of that requirement, and other operators may structure their operations to avoid delays while running the log, which would also reduce any cost savings. Id. The cost analysis also had uncertainties because BLM was estimating the frequency with which operators Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 40 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 55 of 74 1 would voluntarily use tanks, instead of storage pits. Id. Finally, the 2015 Rule had a variance 2 provision, but the 2015 Rule never went into effect, which means that BLM had to estimate—in 3 calculating cost savings from the 2017 Rule—the frequency with which BLM would have 4 applied the 2015 Rule’s variance provision. Id. 5 6 7 8 9 BLM promulgated the 2015 Rule “with the intention of improving public awareness and strengthening oversight of hydraulic fracturing operations.” 80 Fed. Reg. 16,130. In 2017, it decided to prioritize minimizing regulatory burdens instead. 82 Fed. Reg. 61,926. “[T]he agency must show that there are good reasons for the new policy. But it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old 10 one.” Fox Television Stations, Inc., 556 U.S. at 515–16. BLM had good reasons for the 2017 11 12 13 14 Rule; Plaintiffs may dislike those reasons, but their displeasure does not invalidate the 2017 Rule and their claims in these cases must be denied. C. BLM Considered a Range of Alternatives 15 California faults BLM for not considering a range of alternatives, but this argument fails 16 for several reasons. Cal. Mot. at 20. Most fundamentally, while California contends that BLM 17 must consider alternatives that “narrowly address” the agency’s concerns before rescinding a 18 regulation, id., the APA has no such requirement. BLM “was required to consider the evidence 19 and give reasons for [its] chosen course of action. [It] did so. It is not for [courts] to ask whether 20 [its] decision was ‘the best one possible’ or even whether it was ‘better than the alternatives.’” 21 Dep’t of Commerce, 139 S. Ct. at 2571 (quoting FERC v. Electric Power Supply Assn., 136 S. 22 23 24 25 Ct. 760, 782 (2016) (slip op., at 30)). In any event, BLM did consider a range of alternatives. BLM explained that the purpose of the proposed action was to reduce and eliminate unnecessary regulatory requirements. HFRR_000150. BLM examined four alternatives in depth: not rescinding the 2015 Rule (no 26 action); rescinding the 2015 Rule (proposed action); rescinding the 2015 Rule and amending the 27 28 previous regulations to remove the requirement for operators to obtain approval of non-routine Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 41 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 56 of 74 1 hydraulic fracturing operations (preferred alternative); and rescinding the 2015 Rule except for 2 the chemical disclosure requirements. HFRR_000144. BLM selected the preferred alternative. 3 HFRR_000189. 4 5 6 7 8 9 BLM also considered—but decided not to conduct a detailed analysis of—(1) an alternative that would keep the 2015 Rule’s requirement for operators to notify BLM before conducting hydraulic fracturing operations and provide detailed information about their plans and (2) an alternative requiring operators to provide notice before fracturing without specifying any particular information that they must provide. HFRR_000153. BLM decided not to consider these alternatives in depth because the detailed information would be burdensome for 10 operators to provide and requiring notification without detailed information would not provide 11 12 13 14 15 any benefits. HFRR_000154. BLM also concluded that other alternatives that would retain or strengthen other provisions of the 2015 Rule did not meet its purpose and need of reducing regulatory burdens and therefore did not warrant detailed consideration. Id. California may dislike BLM’s chosen alternative, but that does not invalidate BLM’s 16 decision. See Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008) (“The court is not 17 empowered to substitute its judgment for that of the agency.” (quoting Citizens to Preserve 18 Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971))). 19 NEPA Does Not Apply to the 2017 Rule, But BLM Satisfied NEPA Anyway 20 NEPA does not apply to the 2017 Rule, but BLM satisfied NEPA anyway when it 21 promulgated the 2017 Rule. NEPA serves the dual purpose of informing agency decisionmakers 22 of the environmental effects of proposed major federal actions and ensuring that relevant 23 information is made available to the public. 42 U.S.C. § 4321; 40 C.F.R. § 1501.1; Robertson v. 24 Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). The statute imposes procedural 25 26 27 28 rather than substantive requirements. Robertson, 490 U.S. at 351 (NEPA “prohibits uninformed—rather than unwise—agency action.”). Thus, NEPA does not require an agency to follow the most environmentally sound course of action, but rather to take a “hard look” at the environmental consequences of proposed actions. Id. at 350. “A court must avoid passing Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 42 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 57 of 74 1 judgment on the substance of an agency’s decision”; instead, its “focus must be on ensuring that 2 agencies took a ‘hard look’ at the environmental consequences of their decisions.” Westlands 3 Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 865 (9th Cir. 2004) (quoting Robertson, 490 4 U.S. at 350). 5 6 7 8 9 As an initial matter, BLM had no obligation to conduct a NEPA analysis because the 2017 Rule rescinded a rule that had never gone into effect, which means that it did not change the status quo. “NEPA procedures do not apply to federal actions that maintain the environmental status quo.” Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1114 (9th Cir. 2002), abrogated on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th 10 Cir. 2011); see also Burbank Anti-Noise Grp. v. Goldschmidt, 623 F.2d 115, 116 (9th Cir. 1980). 11 12 13 14 15 Even if BLM was required to perform a NEPA review, it satisfied NEPA’s requirements. BLM prepared an Environmental Assessment to examine the environmental impacts that may occur from promulgating the 2017 Rule. HFRR_000140. The 2017 Rule did not authorize any particular operations on federal or Indian lands, and BLM’s NEPA analysis, therefore, did not 16 analyze site-specific impacts of particular operations. HFRR_000145. In the nationwide 17 rulemaking context, “[t]here is nothing in the statute or CEQ Regulations that requires an agency 18 to include a site-specific analysis for every particular area affected by the proposed action.” 19 Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1255 (10th Cir. 2011). 20 BLM estimated that the 2017 Rule would impact 2,800 hydraulic fracturing operations 21 that presently occur annually on federal and Indian lands, but, in the future, there would be up to 22 3,500 operations per year on federal and Indian lands. HFRR_000165. BLM determined that 23 the 2017 Rule would have no impact on the number of future hydraulic fracturing operations. Id. 24 It therefore concluded that the environmental impacts of promulgating the 2017 Rule were not 25 significant, and it issued a Finding of No Significant Impact. HRFF_000194. 26 27 28 Plaintiffs argue that BLM failed to take a “hard look” at the 2017 Rule’s impacts, but they are wrong. E.g., Sierra Club Mot. at 31, Cal. Mot. at 25. To the contrary, BLM did take a hard look at the 2017 Rule’s impacts, notably examining several issues, including impacts on Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 43 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 58 of 74 1 water quality and quantity, storage tanks versus pits, and environmental justice. 2 A. BLM Analyzed Water Quality and Quantity Impacts 3 4 5 6 BLM adequately assessed the 2017 Rule’s impacts on water quality and quantity, including by reviewing reports from the Environmental Protection Agency and the National Academy of Sciences regarding water contamination from hydraulic fracturing. HFRR_000159– 60. 7 BLM noted several possible contamination mechanisms. Environmental impacts are 8 9 10 11 12 likely when spills occur and chemicals reach groundwater; when operators inject fracturing fluids into wells with inadequate casing or mechanical integrity, thus allowing chemicals to move into groundwater; when operators inject fracturing fluids directly into groundwater; when operators discharge inadequately treated fracturing wastewater into surface waters; and when 13 operators store fracturing fluids in unlined pits that allow chemicals to leach into groundwater. 14 HFRR_000159, HFRR_000161, HFRR_000172. But BLM determined that such incidents are 15 rare. HFRR_000159. 16 BLM also recognized and disclosed that releases could occur from tanks, haul trucks, and 17 pipelines, HFRR_000172; that spills can occur as a result of human error (improper equipment 18 handling or installation) or equipment failure (broken pipes or torn pit liners), id; and that spills 19 could result from a blowout, i.e., a pressure control failure that can spill tens of thousands of 20 gallons of fluid, HFRR_000173. BLM noted that, when such large spills occur—on the order of 21 several thousand gallons—containment and recovery measures typically capture less than half 22 23 24 25 the fluid. Id. But BLM concluded that blowouts are also rare, with a rate of approximately one for every 1,000 drilling operations. HFRR_078908–34. Another contamination possibility is that, by creating fractures in shale formations, operators can allow gas to migrate through the fractures into shallow aquifers. HFRR_000160. 26 That scenario is also rare because of the distance between shale formations and shallow aquifers 27 28 and because of the high pressures in shale formations. Id. Contamination via leaky well casings Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 44 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 59 of 74 1 2 is also a possible, but BLM only identified one such incident since 2011. Id. Another possible contamination scenario, a frack hit, is when operators drill one well into 3 another well, causing unexpected pressure increases and possible spills. HFRR_000161. Frack 4 hits have been reported in New Mexico and Oklahoma and typically occur when wells are less 5 than 1,100 feet apart, but they have occurred at wells up to 8,422 feet apart. Id. BLM examined 6 7 8 9 some frack hits in depth, including a 2012 hit in New Mexico that caused a spill of 9,000 gallons of oil; a 2012 hit in New Mexico that caused 60 barrels of fracturing fluids to spill into a pasture; and a 2013 hit in Colorado that spilled 200 barrels of produced water, although none of the fluid reached the Colorado River. HFRR_000162. BLM has not received any reports of frack hits 10 since promulgating the 2015 Rule, even though that rule never went into effect. HFRR_000173. 11 12 13 14 15 16 17 Contamination incidents are rare because operators use multiple safeguards to avoid releasing hazardous wastes. HFRR_000172. They design wells with multiple barriers, i.e., casing, cement, and subsurface rock formations, to prevent fluid movement between oil/gas zones and drinking water resources. HFRR_076399. BLM concluded that there are risks to drinking water from fracturing operations, but contamination events are rare. HFRR_000173. As part of its examination of water contamination pathways, BLM reviewed incident 18 reports from federal and Indian wells since December 2014 and concluded that resource damage 19 is unlikely to increase from rescinding the 2015 Rule because of the rarity of adverse 20 environmental impacts from hydraulic fracturing operations. 82 Fed. Reg. 61,931. BLM is 21 aware of only one report of a well that suffered a failure that the 2015 Rule could have mitigated, 22 but not prevented. HFRR_000173. 23 Sierra Club challenges BLM’s conclusion that accidents are rare. Sierra Club Mot. at 13. 24 But Sierra Club misinterprets BLM’s “Major Undesirable Events” data table, which tracks 25 incidents involving oil spills, gas discharges, salt-water spills, well blowouts, fatalities, and other 26 27 28 uncontrolled events. HFRR_078908–34. Most of the events on that list are incidents at production facilities or pipelines or drilling incidents—not hydraulic fracturing operations—and thus the 2015 Rule would not have prevented them. In addition, the numbers on this list are Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 45 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 60 of 74 1 inflated because each incident can have multiple entries, such as a 2013 incident in Carlsbad, 2 New Mexico, which appears four times because the incident has entries for oil discharged, oil 3 recovered, water discharged, and water recovered. HFRR_078919. Sierra Club’s faulty 4 interpretation of this data illustrates why courts must treat BLM’s conclusion regarding the rarity 5 of accidents with “great deference”—because the Court is “reviewing the agency’s technical 6 7 8 9 analysis and judgments,” based on an evaluation of complex scientific, engineering, and industry data “within the agency’s technical expertise.” Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 869 (9th Cir. 2003). In addition to examining the possibility of contamination, BLM also examined potential 10 impacts on water quantity. BLM noted the potential for severe impacts from water withdrawals, 11 12 13 14 15 especially in areas with limited groundwater. HFRR_000159. Water use from hydraulic fracturing can stress surface and groundwater supplies since fracturing uses a range between 80,000 gallons of water per well in California and 5.3 million gallons per well in Arkansas. HFRR_000162. Five percent of fracturing operations between 2008 and 2014 reused fracturing 16 wastewater, but reuse is increasing, as evidenced by the fact that operators in the Marcellus Shale 17 in Pennsylvania reused 90 percent of fracturing wastewater. Id. In most areas, fracturing 18 operations did not stress water supplies, while only in a few cases, water wells went dry after 19 operators completed nearby fracturing operations. HFRR_000163. California criticizes BLM 20 because the 2015 Rule required operators to disclose the source of the water they were using for 21 fracturing operations, and the 2017 Rule removed that requirement. Cal. Mot. at 16. But BLM 22 acknowledged this difference, which is all that NEPA requires, and, regardless of whether the 23 2015 Rule is in place, BLM can obtain that information during the APD process. 24 HFRR_000163, 80 Fed. Reg. 61,928. 25 B. BLM Weighed Storage Tanks Versus Pits 26 Contrary to Sierra Club’s argument, BLM particularly analyzed the impact of removing 27 28 the 2015 Rule’s requirement that operators store fluids (either those used in fracturing operations Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 46 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 61 of 74 1 or water that flows back up a well) in rigid tanks, as opposed to above-ground pits. Sierra Club 2 Mot. at 32. BLM also carefully considered its prior analysis from 2015 regarding the tank 3 requirement. HFRR_034669–71. 4 5 6 7 8 9 BLM concluded that the 2017 Rule would reduce the frequency (by zero to 100%, depending on the state) with which operators stored fluids in tanks and, as a result, there was an incremental potential for adverse impacts. HFRR_034650–51. In Montana, for example, BLM has observed operators using earthen pits that lacked leak detection systems. HFRR_034669. BLM concluded that removing the tank requirement could cause adverse impacts by increasing the risk of spills and contamination and make it more difficult to detect and remediate leaks. 10 HFRR_034651, HFRR_000190. Conversely, removing that requirement would reduce 11 12 13 14 15 transportation-related impacts and make it easier for operators to reuse recovered fluids. HFRR_034651. Overall, BLM estimated that, even without the 2015 Rule, 90 to 94 percent of hydraulic fracturing operations on federal and Indian lands used tanks. HFRR_000170. BLM noted that 16 five of the nine states that have the most hydraulic fracturing on federal and Indian lands require 17 operators to use tanks. HFRR_034651. Field personnel observed that rigid storage tanks are 18 prevalent in certain areas. Id. In other words, because of existing state regulations and voluntary 19 compliance, the 2015 Rule would not have had any impact on tank usage in California, New 20 Mexico, North Dakota, Texas, Alaska, South Dakota, and Utah, and would have impacted other 21 states ranging from a low of 7.7 percent of operations in Wyoming to a high of 100 percent of 22 operations in Nevada. HFRR_034650–51. BLM expected that operators would use tanks 23 voluntarily when tanks would cost the same or less than pits, and the comparative costs of the 24 two methods depend largely on the volume of recovered fluids. HFRR_034672, 25 HFRR_034674–75. 26 27 28 BLM acknowledged that using tanks would reduce the amount of air emissions, including volatile organic compounds that pits can emit into the atmosphere. HFRR_000170. But it explained that this reduction from the 2015 Rule would have been minor because the 2015 Rule Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 47 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 62 of 74 1 2 did not require tanks to have vapor recovery systems. Id. Removing the tank requirement would save operators an average of $74,000, and BLM 3 prioritized those cost savings after considering the impacts of removing the requirement. 4 HFRR_034651. That is all NEPA requires. NEPA “does not mandate particular substantive 5 results, but instead imposes only procedural requirements,” requiring a “reasonably thorough” 6 7 8 discussion of environmental consequences. Laguna Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 523 (9th Cir. 1994). BLM satisfied this standard. C. BLM Considered Environmental Justice Impacts 9 10 11 12 Sierra Club wrongly asserts that BLM failed to consider the 2017 Rule’s impacts on tribal lands. Sierra Club Mot. at 34. BLM acknowledged that oil and gas activity on Indian lands was growing. HFRR_000165. But it concluded that, because operators are already complying with 13 many of the 2015 Rule’s requirements as part of industry practice or other regulatory 14 requirements, the 2017 Rule would not have a disproportionately high impact on minority and 15 low-income populations. HFRR_000180. This analysis was sufficient. For a “‘broad’ 16 nationwide rule, the [agency] is permitted . . . to evaluate the common environmental impacts 17 and effects of the rule ‘generically.’” U.S. Dep’t of Agric., 661 F.3d at 1256 (citing 40 C.F.R. § 18 1502.4(c)(2)). 19 20 21 22 D. BLM Had No Obligation to Prepare an EIS Sierra Club erroneously contends that BLM violated NEPA by failing to prepare an EIS. Sierra Club Mot. at 36. “When an agency takes major federal action, the agency must prepare an EIS ‘where there are substantial questions about whether a project may cause significant 23 degradation of the human environment.’” Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Dep’t 24 25 26 27 28 of Interior, 996 F. Supp. 2d 887, 896 (E.D. Cal. 2014) (quoting Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005)). BLM appropriately concluded that the 2017 Rule did not require an EIS. BLM did not prepare an EIS when it promulgated the 2015 Rule, 80 Fed. Reg. 16,216; the 2017 Rule does not authorize any on-the-ground actions; and the Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 48 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 63 of 74 1 2017 Rule did not alter the status quo since the 2015 Rule never went into effect. BLM did 2 consider that there may be some adverse effects from the 2017 Rule, but “it does not follow that 3 the presence of some negative effects necessarily rises to the level of demonstrating a significant 4 effect on the environment” that requires an EIS. Native Ecosystems Council, 428 F.3d at 1240. 5 6 7 8 9 10 BLM Rationally Determined that Its 2017 Rule Does Not Affect ESA-Listed Species or Critical Habitat Even if the ESA challenge could proceed, it would fail on the merits. Sierra Club alleges that, under Section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), BLM should have consulted with the Services before issuing the 2018 Rule. Sierra Club Mot. at 17. The ESA, 16 U.S.C. §§ 1531-1599, “seeks to protect species of animals against threats to 11 12 13 14 15 their continuing existence caused by man.” Lujan, 504 U.S. at 558 (1992). The ESA does not protect all fish wildlife species: instead, it provides legal protections for only for species listed under the Act and their habitats. 16 U.S.C. § 1532(6), (20); id. § 1533(a). Once a species is listed, Section 7(a)(2) of the ESA requires each federal agency (“action agency”) to ensure, in 16 consultation with FWS and/or NMFS that any action authorized, funded, or carried out by the 17 agency “is not likely to jeopardize the continued existence” of an endangered or threatened 18 species, or “result in the destruction or adverse modification of [critical] habitat of such species.” 19 16 U.S.C. § 1536(a)(2). Section 7(a)(2)’s provisions are triggered by discretionary and 20 affirmative agency action that “may affect” ESA-listed species. 50 C.F.R. §§ 402.03, 402.14(a); 21 Karuk Tribe (en banc). 22 To trigger the ESA’s consultation obligation, there must be an affirmative, discretionary 23 agency action which is the cause of an effect to listed species or critical habitat. 50 C.F.R. § 24 402.14(a). See also 50 C.F.R. § 402.02 (“effects of the action” includes direct effects and 25 “indirect effects . . . that are caused by the proposed action . . .” (emphasis added)). If the agency 26 27 28 determines that a particular action will have no effect on an endangered or threatened species, the consultation requirements are not triggered. Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1447–48 (9th Cir. 1996). Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 49 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 64 of 74 1 Under Section 7(a)(2), the action agency—here, BLM—must make an initial 2 determination of whether its proposed action may affect listed species or critical habitat. 50 3 C.F.R. § 402.14(a). If the action will have “no effect” on listed species, the consultation is not 4 required. Sw Ctr. for Biological Diversity, 100 F.3d at 1447–48 ((“no effect” finding “obviates 5 the need for formal consultation under the ESA”); Ground Zero Ctr. for Non-Violent Action, 383 6 7 8 9 F.3d at 1092 (the action agency need not consult if “the likelihood of jeopardy is too remote”). If the action agency determines its action may affect a listed species, it may satisfy its Section 7 obligations through either formal or informal consultation. 50 C.F.R. § 402.14(b). Informal consultation ends either in a finding that formal consultation is necessary, or 10 concurrence by the consulting agency that “the action is not likely to adversely affect listed 11 12 13 14 15 species or critical habitat,” in which case “no further action is necessary.” Id. § 402.13(a). Formal consultation is initiated by a written request that includes “[a] description of the action to be considered.” Id. § 402.14(c)(1). It generally concludes in a biological opinion issued by the consulting agency, see id. § 402.14(l), which assesses “whether . . . the action is likely to 16 jeopardize the continued existence of a listed species or result in the destruction or adverse 17 modification of critical habitat,” id. § 402.14(h)(3). Following issuance of a biological opinion, 18 the action agency determines whether and in what manner to proceed with the action. 50 C.F.R. 19 § 402.15(a). 20 BLM determined that the 2017 Rule would not affect ESA-listed species or critical 21 habitat because “[n]either the rescinding nor the implementation of the 2015 final rule would, by 22 themselves, authorize or prohibit hydraulic fracturing operations as a whole, or any particular 23 operation on Federal or Indian lands . . . . [T]hese actions are also not expected to impact the 24 number of hydraulic fracturing operations. As such, the actions would not, by themselves, have 25 an effect on any listed species or its habitat . . . .” 82 Fed. Reg. 61,941. This is consistent with 26 27 28 BLM’s longstanding position: it did not consult with FWS on the 2015 Rule, or on the initial 1988 regulation of hydraulic fracturing. DOIAR0100131. BLM was not, as Plaintiffs suggest, deferring its ESA compliance until later. Sierra Club Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 50 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 65 of 74 1 Mot. at 31. Indeed, in this case, the compliance measures were already in place through 2 measures independent of the 2017 Rule, which only maintained the on-the-ground status quo that 3 had existed since the 1980s because the 2015 Rule never went into effect. See 82 Fed. Reg. at 4 61,926. While the preamble to the 2017 Rule does explain to commenters that BLM continues to 5 consider the cumulative and site-specific effects as it makes regional and site-specific 6 7 8 9 determinations, 82 Fed. Reg. at 61,941, those additional protections do not change the fact that BLM already had an “extensive process in place to ensure that operators conduct oil and gas operations in a safe and environmentally sound manner that protects resources” independent of the 2015 or 2017 Rules. 82 Fed. Reg. at 61,926. 10 In addition, under FWS regulations, biological assessments (“BA”) are not required in 11 12 13 14 15 every action. Instead, they are only required for major construction activities. 50 C.F.R. § 402.12(b). That condition is not met here as BLM found in the EA that the 2017 Rule would not have such an impact. See HFRR_000194. Moreover, a BA’s purpose is to evaluate the “potential effects of an action” on listed species and habitat. Here, BLM analyzed the effects of 16 the rule on species and concluded that they would have no effect. Thus, there is no missing 17 analysis. Plaintiffs simply disagree with the determination made, but bare disagreement is not 18 sufficient to overturn agency action under the APA. 19 The statement by Mr. Tichenor that it “[l]ooks like we’ll need to do a biological 20 assessment for this rule,” Sierra Club Mot. at 28 (citing HFRR_2202), does not change this 21 result. While it is understandably confusing from the cited email thread, Mr. Tichenor was 22 requesting information about states listed in the 2017 Rule in order to cross-reference it for 23 another BLM rule he was working on at the same time. His statement that a BA would be 24 needed was in reference to the other rule. See Ex. B, Tichenor Decl. regarding email. Even if 25 Mr. Tichenor’s statement had been about the 2017 Rule, the preliminary assessment of one BLM 26 27 28 employee does not represent the final view of the agency regarding whether consultation or a BA would be required for the 2017 Rule. See Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 658–59, (2007). Here, BLM performed the appropriate inquiry and rationally Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 51 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 66 of 74 1 concluded that the 2017 Rule did not affect ESA listed species or critical habitat. Nothing more 2 is required. Because the ESA consultation obligation does not apply, Plaintiffs’ ESA challenge 3 fails on the merits. 4 ESA Claims Are Limited to Record Review 5 In support of its ESA claims, Sierra Club cites to a number of documents from outside of 6 7 8 9 the Administrative Record. See Sierra Club Mot. at 28–30; Ex C to Sierra Club Mot., ECF No. 110-3. The Court should not consider these materials because ESA claims are properly limited to record review. Congress requires agency action to be reviewed pursuant to the standard and scope of 10 11 12 13 14 review established in the APA, unless another statute expressly provides a different standard and scope of review. 5 U.S.C. § 559; see also United States v. Carlo Bianchi & Co., 373 U.S. 709 (1963); Ninilchik Traditional Council v. United States, 227 F.3d 1186, 1193–94 (9th Cir. 2000). The ESA does not provide a separate standard and scope of review, 16 U.S.C. § 1540(g), and so 15 the Court’s review follows the APA standard and is limited to the administrative record. See 16 Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 (9th Cir. 2012) (en banc) (a failure 17 to consult claim under the ESA “is a record review case”); Village of False Pass v. Clark, 733 18 F.2d 605, 609 (9th Cir. 1984); San Luis & Delta-Mendota Water Auth., 747 F.3d at 601–02. 19 The Ninth Circuit, sitting en banc, has made clear that an ESA citizen-suit claim alleging 20 failure to comply with the consultation provisions in ESA Section 7(a)(2) “is a record review 21 case” governed by the review standards in the APA. Karuk Tribe of Cal., 681 F.3d at 1017. The 22 standard and scope of review was “necessary” to the Karuk en banc court’s decision and 23 therefore not dicta. Cf. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1224 (9th Cir. 2000) 24 (failing of parties to cite or discuss the correct legal standard “did not relieve the district court of 25 26 27 28 the duty to apply the correct legal standard . . . ,” and the district court erred by applying the wrong standard); see, e.g., Export Grp. v. Reef Indus., 54 F.3d 1466, 1472 (9th Cir. 1995) (adopting Black’s Law Dictionary definition of “dictum” as “an observation or remark . . . not necessarily involved in the case or essential to its determination”). Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 52 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 67 of 74 1 Although Sierra Club acknowledges that the APA’s “arbitrary, capricious . . . or 2 otherwise not in accordance with law” standard of review applies to its citizen suit claim, it 3 nonetheless contends that the APA’s scope of review—requiring judicial review based on a 4 record—does not. That is incorrect. The two concepts are inextricably intertwined: the 5 “arbitrary and capricious” standard of review “[has] consistently been associated with a review 6 7 8 9 limited to the administrative record.” Carlo Bianchi & Co., 373 U.S. at 715. In fact, the very text of the APA requires courts to review the administrative record “in making the . . . determinations” that agency action meets the APA’s deferential standard of review. 5 U.S.C. § 706. For this reason, the Ninth Circuit has repeatedly confirmed that discovery and de novo 10 review are incompatible with the deferential APA standard and that ESA citizen-suit claims, in 11 12 13 14 15 particular, are reviewed on the basis of the administrative record. Likewise, the D.C. Circuit has recently re-affirmed that APA’s record-review standard should apply even when the statute at issue requires the agency to consider the “best scientific information available.” Oceana, Inc. v. Ross, 920 F.3d 855, 864 (D.C. Cir. 2019); see also id. (noting that the court applied this standard 16 to the Fisheries Act at issue there “just as we did in an unrelated matter involving the 17 Endangered Species Act, a statute that similarly mandates use of the best . . . data available.” 18 (internal quotations omitted)). The administrative record provides all of the information that the Court needs, and all the 19 20 information that the Court is legally permitted to consider, to resolve Plaintiffs’ ESA claim. 21 Deliberative Documents Are Not Part of the Record 22 Plaintiffs cite a number of deliberative documents that are not part of the Administrative 23 Record and should therefore not be considered when evaluating Plaintiffs’ claims. 22 As a 24 25 26 27 28 22 The Parties disagree about whether deliberative documents are properly considered part of the record. See No. 4:18-cv-000524-HSG, ECF No. 87. Federal Defendants agreed to serve the Parties with the privilege log and deliberative materials to facilitate efficient resolution of record disputes and reserved the right to argue that those documents are not properly part of the administrative record, while Plaintiffs reserved the right to argue that deliberative materials are Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 53 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 68 of 74 1 general matter, “judicial review of agency action is limited to review of the record on which the 2 administrative decision was based.” Thompson v. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 3 1989). The administrative record includes “all documents and materials directly or indirectly 4 considered by agency decision-makers.” Id. (emphasis omitted). However, deliberative 5 documents reveal the mental processes of agency decision-makers and are therefore not part of 6 7 8 9 the record. It is long settled that agency action should be judged on the basis of the agency’s stated reasons for its decision, SEC v. Chenery Corp., 318 U.S. 80, 88 (1943), and it is “not the function of the court to probe the mental processes” of the agency. United States v. Morgan (Morgan II), 313 U.S. 409, 422 (1941) (“Just as a judge cannot be subjected to such a scrutiny . . 10 . so the integrity of the administrative process must be equally respected.”). Accordingly, 11 12 13 14 15 “[s]uch inquiry into the mental processes of administrative decisionmakers is usually to be avoided.” Citizens to Preserve Overton Park, Inc., 401 U.S. at 420. The D.C. Circuit, the only court of appeals to have squarely addressed the question, has concluded that deliberative materials are outside the scope of APA review and thus are not part 16 of the administrative record. See San Luis Obispo Mothers for Peace v. NRC, 789 F.2d 26, 44– 17 45 (D.C. Cir. 1986). The court analogized an agency’s deliberations to the deliberative processes 18 of a court and stated that, “[w]ithout the assurance of secrecy, the court could not fully perform 19 its functions.” Id. The D.C. Circuit has subsequently reiterated that “the actual subjective 20 motivation of agency decisionmakers is immaterial as a matter of law” to APA review. In re 21 Subpoena Duces Tecum Served on Office of Comptroller of Currency, 156 F.3d 1279, 1279–80 22 (D.C. Cir. 1998) (denial of reh’g en banc) (citing, inter alia, Overton Park, 401 U.S. at 420; 23 Camp, 411 U.S. 138; Morgan II, 313 U.S. at 409); see also Oceana, Inc. 920 F.3d at 855, 865 24 (D.C. Cir. 2019) (“predecisional and deliberative documents are not part of the administrative 25 26 27 28 part of the administrative record. Id. The Parties stipulated that Federal Defendants retain the right to challenge any citation to deliberative materials on grounds that they do not form part of the record, and the non-federal Parties retain the right to oppose any such challenge. Id. at 3. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 54 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 69 of 74 1 record”). 2 Some district courts within this Circuit have likewise held that internal, deliberative and 3 predecisional materials are outside the scope of administrative review. See, e.g., Carlsson v. U.S. 4 Citizenship & Immig. Servs., No. 2:12-CV-07893-CAS, 2015 WL 1467174, at *7 n.5 (C.D. Cal. 5 Mar. 23, 2015); California v. U.S. Dep’t of Labor, No. 2:13-CV-02069-KJM, 2014 WL 6 7 8 9 1665290, at *13 (E.D. Cal. Apr. 24, 2014). The Ninth Circuit has not squarely addressed the issue, but it has suggested that deliberative materials are not properly part of the record for APA review. 23 Portland Audubon Society v. Endangered Species Committee, 984 F.2d 1534 (9th Cir. 1993), involved a request for discovery regarding alleged ex parte contacts with the agency 10 charged with granting exemptions from ESA requirements. The Court distinguished the purely 11 12 13 14 15 16 internal deliberations at issue in the D.C. Circuit’s Mothers for Peace case from “allegedly improper ex parte contacts between decisionmakers and outside parties.” 984 F.2d at 1549. In so doing, the Court approvingly cited Mothers for Peace in suggesting that the administrative record includes “neither the internal deliberative processes of the agency nor the mental processes of individual agency members.” Id. The principle that predecisional, deliberative materials are outside the scope of the 17 18 administrative record is also reflected in the scope of review of agency action in the courts of 19 appeals. When an agency decision is subject to direct review, the “record to be filed in the court 20 of appeals . . . shall consist of the order sought to be reviewed or enforced, the findings or report 21 upon which it is based, and the pleadings, evidence, and proceedings before the agency, board, 22 commission, or officer concerned.” 21 U.S.C. § 2112(b). Rule 16 of the Federal Rules of 23 Appellate Procedure defines the administrative record in the same terms. The advisory 24 25 26 27 28 23 A majority of a Ninth Circuit panel denied the mandamus petition in In re United States, holding that the government failed to meet the standards for mandamus in the absence of Ninth Circuit precedent holding that deliberative materials were not part of the administrative record. Order, Case No. 17-71121 (9th Cir. Jan. 26, 2018). The panel did not reach the substance of the scope of the record issue. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 55 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 70 of 74 1 committee that adopted Rule 16 in 1967 explained in the accompanying note that “[t]he record in 2 agency cases is thus the same as that in appeals from the district court—the original papers, 3 transcripts, and exhibits in the proceeding below.” Fed. R. App. P. 16, Notes of Advisory 4 Committee on Rules (1967). No one would suggest that the record “in appeals from the district 5 court” includes deliberative materials prepared within the court, such as bench memos and 6 7 8 9 recommendations provided to the presiding judge by his staff, or preliminary drafts of opinions and orders. The trial record comprises the materials submitted to the court by the parties, the transcripts of the court’s proceedings, and the orders issued by the court, not the internal deliberative work product generated within the court’s chambers. As the committee note 10 indicates, the administrative record in agency review cases is subject to the same limitations. 11 12 13 14 15 In addition, nothing in the APA compels an agency to include deliberative materials in the record. It is a fundamental principle of administrative law that a court may “not stray beyond the judicial province . . . to impose upon the agency its own notion of which procedures are ‘best’ . . . .” Vermont Yankee Nuclear Power Corp. v. Nat. Res. Defense Council, 435 U.S. 519, 16 549 (1978). Thus, a court has no authority to compel an agency to place deliberative materials in 17 the administrative record, and should disregard the Plaintiffs’ citations to such materials. 18 Remedy 19 The Court should grant Federal Defendants’ cross-motion for summary judgment and 20 deny Plaintiffs’ motions. Nonetheless, if the Court rules for Plaintiffs, Federal Defendants 21 request the opportunity to provide separate briefing on remedy. Even if the Court were to find 22 that the 2017 Rule is unlawful, vacatur should not automatically follow because the Court “is not 23 required to set aside every unlawful agency action.” Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 24 1343 (9th Cir. 1995); see also Sierra Forest Legacy v. Sherman, 951 F. Supp. 2d 1100, 1105 25 26 27 28 (E.D. Cal. 2013) (“It is well established in this Circuit that a Court is not mechanically obligated to vacate an agency decision that it finds invalid.”). Whether agency action should be vacated depends on a two-factor test: (1) “how serious the agency’s errors are” and (2) “‘the disruptive consequences of an interim change that may itself be changed.’” Cal. Cmtys. Against Toxics v. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 56 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 71 of 74 1 EPA, 688 F.3d 989, 992 (9th Cir. 2012) (quoting Allied–Signal, Inc. v. NRC, 988 F.2d 146, 150– 2 51 (D.C. Cir. 1993)). If the Court rules in Plaintiffs’ favor, Federal Defendants respectfully 3 request an opportunity to brief these two factors. 24 4 5 6 7 8 9 Even if the Court rules in Plaintiffs’ favor and denies remedy briefing, the Court should restrict the scope of its ruling to the 2017 Rule, i.e., the agency action that is before this Court. See Order, ECF No. 77 at 9 (noting that “[t]he issue before this Court” is “the legality of BLM’s rescission of the [2015] Rule,” and “[t]he question in the Wyoming Action, whether BLM had statutory authority to enact the [2015] Rule, has not been presented to this Court.”). Sierra Club’s proposed order suggests that the Court order the 2015 Rule reinstated, but that outcome 10 would be inconsistent with the Court’s reasoning in its order denying transfer. ECF No. 110-4. 11 Conclusion 12 The Court should enter summary judgment in Federal Defendants’ favor because 13 14 15 Plaintiffs lack standing. Even if the Court reaches the merits, it should uphold the 2017 Rule because BLM complied with the APA, NEPA, and the ESA. 16 Respectfully submitted this August 2, 2019. 17 LAWRENCE VANDYKE Deputy Assistant Attorney General 18 19 _/s/ Corinne Snow ___ Environment and Natural Resources Division United States Department of Justice CORINNE SNOW (TX Bar No. 24083883) REBECCA JAFFE (NC Bar No. 40726) 601 D St. NW, 3rd Floor Washington, D.C. 20004 Tel: (202) 305-0258 Fax: (202) 305-0506 20 21 22 23 24 25 26 27 28 24 For example, the 2015 Rule had a cascading implementation schedule depending on when operators had submitted APDs and begun drilling operations. 80 Fed. Reg. 16,218, 16,577. All of those deadlines have long passed, and disruption would ensue if there were no corresponding implementation schedule now. Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 57 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 72 of 74 1 2 rebecca.jaffe@usdoj.gov corinne.v.snow@usdoj.gov Counsel for Federal Defendants 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 58 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 73 of 74 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 STATE OF CALIFORNIA, et al., Plaintiffs, 6 7 v. 8 U.S. BUREAU OF LAND MANAGEMENT, et al., 9 Defendants. 10 SIERRA CLUB, et al., 11 12 Plaintiffs, v. 13 14 15 16 DAVID BERNHARDT, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 4:18-cv-00521-HSG (related) Case No. 4:18-cv-00524-HSG (related) [PROPOSED] ORDER GRANTING FEDERAL DEFENDANTS’ CROSSMOTION FOR SUMMARY JUDGMENT 17 18 The Court has read and considered the briefing in support of and in opposition to 19 Plaintiffs’ Motions for Summary Judgment, movant Intervenor-Defendants’ Cross-Motions for 20 Summary Judgment, and Federal Defendants’ Cross-Motion for Summary Judgment and has 21 heard and considered the arguments of counsel at the December 5, 2019 hearing. 22 23 24 25 NOW THEREFORE, good cause appearing, Federal Defendants’ Cross-Motion for Summary Judgment is hereby GRANTED. The Bureau of Land Management within the United States Department of the Interior had good reasons and sufficient support for promulgating the rule titled “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands; Rescission of a 2015 26 Rule,” 82 Fed. Reg. 61,924 (Dec. 29, 2017), thus satisfying the standard under FCC v. Fox 27 28 Television Stations, Inc., 556 U.S. 502, 514 (2009). In promulgating this Rule, the Bureau of Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 59 Case 4:18-cv-00524-HSG Document 126 Filed 08/02/19 Page 74 of 74 1 Land Management complied with the National Environmental Policy Act, the Administrative 2 Procedure Act, the Endangered Species Act, the Indian Mineral Leasing Act, the Mineral 3 Leasing Act, the Indian Mineral Development Act, and the Federal Land Policy Management 4 Act. 5 6 7 8 9 The Court enters judgment for Federal Defendants on Plaintiffs’ claims under the Administrative Procedure Act, 5 U.S.C. § 551 et seq.; the Mineral Leasing Act, 30 U.S.C. § 181 et seq.; the Federal Land Policy and Management Act, 43 U.S.C. § 1701 et seq.; the Indian Mineral Leasing Act, 25 U.S.C. § 396 et seq., the Indian Mineral Development Act, 25 U.S.C. § 2101 et seq., and the National Environmental Policy Act, 43 U.S.C. § 4321 et seq. 10 IT IS SO ORDERED. 11 12 13 14 Dated: __________________________ __________________________ HAYWOOD S. GILLIAM, JR. UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fed. Defs.’ Combined Opp’n to Pls.’ Mots. for Summ. J. & Cross-Motion for Summary Judgment California v. BLM, 4:18-cv-00521-HSG; Sierra Club v. Zinke, 4:18-cv-00524-HSG 60