On November 11, 2016, the Environmental Defense Center (“EDC”) and Santa Barbara Channelkeeper jointly filed suit against several federal agencies including the Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement (jointly “Agencies”) in the U.S. District Court for the Central District of California.  The lawsuit alleges violations of the National Environmental Policy Act (“NEPA”), the Endangered Species Act (“ESA”), and the Administrative Procedure Act (“APA”).  At the heart of their lawsuit, EDC and Santa Barbara Channelkeeper (jointly “EDC”) claim that the Agencies violated NEPA when they issued a Finding of No Significant Impact (“FONSI”) decision approving the Agencies’ Programmatic Environmental Assessment of the Use of Well Stimulation Treatments on the Southern California Outer Continental Shelf (the “PEA”).

The irony here, however, is that preparation of the PEA itself was the result of an earlier lawsuit filed by the Center for Biological Diversity (“CBD”) against the Agencies (Case No. 2:15-cv-01189, Feb. 2015).  A subsequent settlement agreement in that case resulted in a temporary moratorium on permits for hydraulic fracturing and acid well stimulation from offshore oil platforms in southern California until the Agencies undertook the NEPA analysis that is now being challenged in the November 11th complaint.  The FONSI for the PEA was significant because it also ended this moratorium from the earlier settlement agreement.  When the Agencies issued the FONSI of May this year, they stated:

We have considered the evaluation of the Proposed Action [hydraulic fracturing and acid well stimulation offshore] . . . It is our determination that the Proposed Action would not cause any significant impacts, . . . [and] the Proposed Action does not constitute a major federal action significantly affecting the quality of the human environment . . .

As a result of the FONSI, the Agencies not only lifted the moratorium, but also were not required to prepare a full environmental impact statement (“EIS”).

EDC’s current lawsuit seeks to compel the Agencies to prepare an EIS, asserting that the Agencies have failed to take a “hard look” as required under NEPA.  EDC states that the Agencies must conduct an EIS and assess every respect of each potential environmental impact, including air quality, water quality, induced seismicity, benthic resources, commercial and recreational fisheries, areas of special concern, recreation, and tourism.  Further, the lawsuit claims that the PEA is “legally deficient in numerous additional fundamental respects.  These deficiencies include a failure to properly define the action’s purpose and need, failure to consider a reasonable range of alternatives, failure to adequately acknowledge and address incomplete or unavailable information, and numerous deficiencies in the document’s analysis of direct, indirect, and cumulative environmental impacts.”  (Complaint for Declaratory and Injunctive Relief, at 5.)  Finally, EDC’s lawsuit claims that the FONSI is allegedly “unlawful” because the Agencies did not conduct consultation under section 7 of the ESA with respect to 25 species listed as threatened or endangered that the plaintiffs claim could be affected by the Proposed Action.

EDC’s latest lawsuit is hardly surprising because offshore (and onshore) oil and gas activities have been aggressively attacked by various environmental organizations, regardless of the adequacy of the legal grounds for such attacks.  The PEA conducted a comprehensive analysis of well stimulation practices (which includes hydraulic fracturing and acid well stimulation), and found that, if they are conducted in accordance with the Agencies’ permit requirements, such practices have minimal environmental impact.  The Agencies also concluded that, in conjunction with the minimal environmental impact,  that use of well stimulation practices may enable lessees to recover hydrocarbon resources that would “otherwise not be recovered from the reservoirs in the 43 active leases that have been and continue to be accessed by existing wells and any new wells in the foreseeable future.”

Updated December 20, 2016

On November 15, 2016, CBD and the Wishtoyo Foundation filed suit against the Agencies, alleging very similar causes of action to EDC’s Complaint.  CBD’s Complaint also asserted violations of NEPA, the ESA and the APA, and seeks to compel preparation of an EIS.