## Facts

- Shell obtained federal offshore leases in the Beaufort and Chukchi Seas and sought to conduct Arctic oil and gas operations.
- Federal law required Shell to secure approval of oil-spill response plans (OSRPs) for offshore facilities, addressing “worst case discharge” scenarios and response capability to the “maximum extent practicable.”
- The Bureau of Safety and Environmental Enforcement (BSEE), within the Department of the Interior, reviewed and approved Shell’s OSRPs for the Beaufort and Chukchi Seas.
- Environmental organizations sued under the Administrative Procedure Act, alleging BSEE unlawfully approved the OSRPs without (i) Endangered Species Act (ESA) § 7 consultation and (ii) National Environmental Policy Act (NEPA) review.
- The district court granted summary judgment to the federal defendants and Shell (as intervenors), and the environmental organizations appealed.

## Issues

1. Whether BSEE’s OSRP approvals were “discretionary Federal involvement or control” that triggered ESA § 7(a)(2) consultation duties.
2. Whether BSEE’s OSRP approvals were “major Federal action[s] significantly affecting the quality of the human environment” requiring NEPA analysis.

## Decision

- The Ninth Circuit affirmed summary judgment for the federal defendants and Shell.
- The court held ESA § 7 consultation was not required because OSRP approval under the Clean Water Act, as amended by the Oil Pollution Act, was non-discretionary once statutory and regulatory criteria were met.
- The court held NEPA review was not required because OSRP approval was not a “major Federal action,” given BSEE’s constrained, review-and-approve role and the fact that OSRPs are prepared and implemented by the operator.
- The court deferred to BSEE’s interpretation of its approval authority as non-discretionary in this context.

## Legal Principles

- ESA § 7(a)(2) consultation duties apply only to discretionary agency actions; when a statute directs an agency to grant approval upon satisfaction of specified criteria, consultation may not be required.
- Statutory “shall approve” language and detailed approval criteria can support treating an approval function as ministerial rather than a vehicle for imposing additional environmental conditions.
- Under Chevron, a court may defer to an agency’s reasonable interpretation of an ambiguous statutory scheme defining the scope of the agency’s discretion.
- NEPA is generally not triggered by agency actions that are tightly constrained by statute and do not themselves authorize or meaningfully shape the underlying activity’s environmental effects.

## Conclusion

The Ninth Circuit upheld BSEE’s approval of Shell’s Arctic OSRPs, concluding the approvals were non-discretionary under the governing spill-planning statute and therefore did not trigger ESA consultation, and further concluding the approvals were not “major Federal actions” requiring NEPA review.


Alaska Wilderness League v. Jewell, 788 F.3d 1212 (9th Cir. 2015)