NEW ORLEANS (CN) – The 5th Circuit ruled that environmental groups cannot challenge oil exploration leases for the Gulf of Mexico issued during the 2010 Deepwater Horizon oil spill disaster because they failed to make their objections known during the public comment period on the leases.
Of the 16 leases challenged by the Gulf Restoration Network Inc., The Sierra Club, and The Center for Biological Diversity, the court found that four are moot and the remaining 12 can no longer be challenged because the groups failed to participate in the administrative proceedings related to the leases.
Writing for the court, Judge James L. Dennis found the environmental groups “failed to offer any evidence or persuasive argument that the DOI’s actions or omissions, rather than their own inattention or unpreparedness, caused their failure to participate in any of the administrative proceedings.”
Following the April 20, 2010 explosion of the Deepwater Horizon rig that resulted in 4.9 million barrels of oil being dumped into the Gulf of Mexico over the course of three months, the Interior Department continued to process mineral lease applications for exploration and development of new oil wells.
Environmental groups challenged 16 of the department’s plan approvals from between March 29 and May 20, 2010 under the Outer Continental Shelf Lands Act. The groups argued that approvals of the plans violated both the Outer Continental Shelf Lands Act and the National Environmental Policy Act of 1969 (NEPA).
By law the Department of Interior is required to post public versions of the environmental plans submitted as part of the well lease application process.
The environmental groups said the department made these plans available through its website, but that in doing so it either placed the information in an obscure location on the website, making it difficult to find, or posted it late. Further, the groups said some plans were never made public at all.
Section § 1349(c) of the Outer Continental Shelf Lands Act requires that the Department of Interior’s actions can only be called into review by citizen suits if they are submitted to the department during the authorized administrative proceedings period.
Accordingly, the district court dismissed the environmentalists’ claims because they were not submitted during the public comment period. On appeal, the 5th Circuit also found the claims were not submitted during the comment period. Further, the 5th Circuit found that the environmental groups did not argue that any exception to rule § 1349(c) applies.
“Rather than attempting to show that the present case falls within an ‘established exception,’ the petitioners argue that the circumstances of this case call upon us to recognize a new exception: They contend that their failures to participate in the administrative proceedings were caused by the DOI’s untimely, ‘obscure’ and ‘difficult to find’ postings of the public versions of the plans on the internet; and that they therefore should be excused from the statutory requirement that they must have participated in the proceedings in order to challenge the DOI’s approvals of the plans and to subject them to judicial review,” Judge Dennis wrote.
The opinion continues: “Assuming, without deciding, that we have the authority to recognize such an exception or excuse, we will not do so in this case because the petitioners have not demonstrated that their failure to participate in the administrative proceedings was caused by the DOI’s actions or omissions.”
In response to the court’s request for the parties to submit documents supporting their case, the Department of the Interior and Minerals Management Agency, the agency responsible for approving lease applications, submitted documentation regarding office hours and policies for making lease applications public on the Department of Interior website and allowing for a public comment period before applications are approved.
The environmental groups submitted a letter sent from the Center of Biological Diversity to the Interior Department On May 18, 2010 challenging the lease applications generally.
The court found that “the petitioners have not expressly alleged or argued that they actually tried without success to access the plans at issue on the DOI website, or through visits or communications with personnel at the DOI’s Office of Public Information.”
Also, “computer searches by this court’s attorneys after this case was submitted indicate that a reasonably qualified attorney or other researcher should have been able to find public versions of plans on the DOI’s website containing information about particular plans pending before the DOI.”
In its own research into the issue of mineral leases, the 5th Circuit found that the Interior Department’s “performance in the proceedings prior to its approval of the plans was by no means flawless.”
The court found that the Department of Interior approved two on the same day that their public versions were posted on the internet, and in one instance the agency approved the plan before it had been posted.
However, it wrote that the documentation submitted by the environmental groups “does not persuade us that they would have participated in those proceedings had there been more time between the postings and the approval of the plans.”
Additionally, the court found that “the petitioners have failed to offer any evidence or persuasive argument that the DOI’s actions or omissions, rather than their own inattention or unpreparedness, caused their failure to participate in any of the administrative proceedings.”
Even if the 5th Circuit were able to find an exception to rule § 1349(c)(3)’s mandatory statutory requirement of participation in the administrative proceedings during the comment period, the court found “that the petitioners have not shown that they would be entitled to such an excuse from the rule in this case.”
Here the environmental groups “have made no showing that the DOI applied an illegal, clandestine, internal policy … Instead, the petitioners present legal argument only, viz., in effect, that the agency incorrectly applied its regulation,” Judge Dennis wrote.
The court interpreted the May 18, 2010 letter to the Department of Interior from the Center of Biological Diversity’s Oceans Program Director Miyoko Sakashita as a “thorough condemnation of the DOI’s policy and past practices, and not as an act of participating in any individual ongoing proceeding in which a lessee is seeking the DOI’s approval of” a lease application.
“The letter does not specify by name or number any particular proposed exploratory or development plan, but instead calls upon the DOI to ‘rescind’ all plans that have been approved and not yet implemented,” the court found.
“Accordingly, we do not think the Center’s letter can fairly be interpreted to amount to participation in the administrative proceedings related to an action by the DOI on a particular EP or DOCD [plan] under 43 U.S.C. § 1349(c)(3)” Judge Dennis wrote.