In one of her last major legal actions before leaving office as California’s Attorney General, Kamala Harris, along with the California Coastal Commission (jointly the “Attorney General”), filed suit against various federal agencies in the United States District Court for the Central District of California, challenging the issuance of the Final Programmatic Environmental Assessment (“PEA”) and Finding of No Significant Impact (“FONSI”) for well stimulation treatments on the Southern California Outer Continental Shelf.  The December 19, 2016 Complaint names the Department of the Interior, the Bureau of Ocean Energy Management, and the Bureau of Safety and Environmental Enforcement (jointly the “Agencies”) as defendants.  The Attorney General’s lawsuit follows similar lawsuits filed by the Environmental Defense Center and Santa Barbara Channelkeeper on November 11, 2016, and a separate suit filed by the Center for Biological Diversity (“CBD”) on November 15, 2016.

The Proposed Action is the approval of well stimulation treatments at 22 production platforms on 43 leases on the Southern California Outer Continental Shelf, which sits off the coast of the southern half of the state.  The Complaint asserts that the Agencies violated the National Environmental Policy Act (“NEPA”) and the Coastal Zone Management Act (“CZMA”) because they issued the FONSI for the Proposed Action without adequate environmental review.  The Agencies “improperly concluded that allowing such activities would result in no significant impacts, in violation of the requirements of [NEPA],” despite the substantial record showing the potential for significant environmental effects.  Complaint, at 3.  Further, the Attorney General alleges that the Agencies violated the CZMA by failing to determine whether the Proposed Action is consistent to the “maximum extent practicable” with the enforceable policies in California’s coastal zone management program.

Similar to the previous lawsuits, the Attorney General’s Complaint asserts that the Agencies must prepare an Environmental Impact Statement (“EIS”) in order to comply with NEPA.  According to the Complaint, the Agencies have failed to take a “hard look” at the environmental impacts of the Proposed Action.  “[T]here are substantial questions, if not certainties, as to whether the proposed action may have significant environmental impacts,” and, therefore, preparation of an EIS is necessary.  Complaint, at 19-20.  The Complaint also asserts that issuance of a FONSI was an arbitrary and capricious action and an abuse of discretion, in violation of the Administrative Procedure Act (“APA”).

The Complaint emphasizes that the Proposed Action touches sensitive marine habitats, including the Santa Barbara Channel, the Santa Maria Basin, and offshore Long Beach.  The Complaint references the 1969 Santa Barbara oil spill and notes the impact of that spill on marine species including dolphins, elephant seals, and sea lions.  In addition, the Complaint quotes a letter sent by Governor Jerry Brown to President Obama on December 13, 2016, urging the President “to permanently withdraw federal waters off the coast of California from new offshore oil and gas leasing and guarantee that future oil and gas drilling in these waters is prohibited.”

The Attorney General seeks an injunction prohibiting the Agencies from issuing approvals for offshore well stimulation treatments until the Agencies comply with NEPA, the CZMA, and the APA by preparing an EIS for the Proposed Action and submitting a consistency determination to the California Coastal Commission for review.  This lawsuit may have more “teeth” than the pending suits filed by the Environmental Defense Center and CBD because of the CZMA allegations.  The NEPA and APA claims have been litigated and addressed (to an extent) by previous lawsuits and subsequent settlement agreements. CBD raised the CZMA allegation in a Complaint in 2015, but the Settlement Agreement in that case did not resolve the CZMA violations.  See CBD v. Bureau of Ocean Energy Management, et al., Case No. 2:15-CV-01189 (C.D. Cal., filed Feb. 19, 2015).