## Facts

- The U.S. Fish and Wildlife Service (FWS) issued 2006 regulations authorizing non-lethal, incidental “take” (primarily harassment/disturbance) of polar bears and Pacific walruses from Beaufort Sea oil and gas activities for five years.
- Operators could obtain annual Letters of Authorization (LOAs) subject to mitigation, monitoring, reporting, and spatial/temporal limits.
- The rulemaking record acknowledged Arctic climate change, including sea ice loss affecting polar bear habitat and uncertain, adverse effects on polar bears and walruses.
- FWS prepared an Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI), declining to prepare an Environmental Impact Statement (EIS).
- Environmental organizations sued under NEPA and the Marine Mammal Protection Act (MMPA), arguing FWS inadequately evaluated climate-change context and could not lawfully find “small numbers” and “negligible impact.”
- The district court granted summary judgment to FWS, and plaintiffs appealed.

## Issues

1. Whether FWS’s NEPA FONSI (and decision not to prepare an EIS) was arbitrary and capricious for allegedly failing to adequately analyze climate-change and cumulative effects.
2. Whether “highly uncertain” risks associated with climate-change impacts required an EIS under NEPA significance regulations.
3. Whether FWS’s MMPA findings that incidental take would involve “small numbers” and have a “negligible impact” were arbitrary, capricious, or contrary to law.

## Decision

- The Ninth Circuit affirmed summary judgment for FWS and upheld the Beaufort Sea incidental-take regulations.
- The court held the EA and FONSI were adequate under NEPA and the APA; an EIS was not required.
- The court held FWS reasonably addressed climate change by acknowledging broader impacts while evaluating the incremental effects of the authorized regional activities.
- The court held the “highly uncertain” factor did not compel an EIS because the incremental effects of the regulated activities were bounded, mitigated, and informed by historical experience.
- The court upheld FWS’s MMPA determinations that anticipated take involved “small numbers” and would have only a “negligible impact,” deferring to the agency’s technical judgments supported by the record.

## Legal Principles

- Under APA review, a court upholds agency action if the agency considered relevant factors and explained a rational connection between the record and its conclusions; courts do not reweigh technical evidence.
- NEPA permits an EA/FONSI in lieu of an EIS when the agency reasonably finds the action will not significantly affect the environment; NEPA does not require analysis of every conceivable effect.
- In assessing significance under NEPA, an agency may distinguish broad, external environmental stressors from the incremental effects of the specific federal action, so long as the record shows reasoned consideration.
- “Highly uncertain” effects do not automatically require an EIS; the question is whether the action’s incremental effects present significant impacts or unique/unknown risks on the record.
- Under the MMPA, incidental-take regulations require findings that the take will be limited to “small numbers” and have a “negligible impact,” and courts give deference to reasonable agency methodologies grounded in data and mitigation measures.

## Conclusion

The Ninth Circuit held that FWS reasonably supported its NEPA FONSI and its MMPA “small numbers” and “negligible impact” findings for Beaufort Sea oil and gas incidental-take regulations, and it affirmed judgment for the agency under deferential APA review.


Ctr. for Biological Diversity v. Kempthorne, 588 F.3d 701 (9th Cir. 2009)