By Prof Upendra Baxi
The decision on January 27, 2022, by Justice Rudolph Contreras, United States District Judge, in Debra A. Haaland v. State of Louisiana, is of enormous political significance and has global environmental law particularly rife with climate change jurisprudential implications. Confronted with four cross-motions for summary judgment (filed by Plaintiffs, Federal Defendants, Intervenor-Defendant Louisiana, and Intervenor-Defendant American Petroleum Institute), the Court applied existing law concerning issue of injunctive redress for any environmental unfriendly agency decision1, but it also innovated the field.
The decision is politically important for the US because under the Bureau of Ocean Energy Management (“BOEM”) awarded in its 2017-2022 Program, “Lease Sale 257” made available 80.8 million acres in the Gulf of Mexico for oil and gas leasing. It was “the largest offshore oil and gas lease sale in U.S. history” and “the eighth in a series of sales offering federal lands in the Outer Continental Shelf” for the production and development of oil and gas. This determination made in the “final days of President Trump” was reversed by President Joe Biden a few days later, which in effect “pause [d] new oil and natural gas leases on public lands or in offshore waters pending completion of a comprehensive review and reconsideration”.
The Gulf of Mexico, the Court noted, “is a unique and important part of the American landscape and economy” and it “is one of the nation’s most biologically diverse ecosystems, sustaining thousands of marine plant and animal species, including numerous endangered and threatened species”. Further, it “produces over one third of the country’s domestic seafood supply and supports a robust economy” of coastal tourism and commercial fishing. It also “contains significant oil and gas reserves” in the Outer Continental Shelf, “a vast underwater expanse nearly equal in size to the Australian continent” that “extends roughly two hundred miles into the ocean to the seaward limit of the international-law jurisdiction of the United States”.
Oil and gas production on the Outer Continental Shelf is accomplished through “leases… awarded in a competitive bidding process subject to a complex statutory and regulatory scheme. BOEM released a Supplemental EIS for evaluating Lease Sales 250 and 251 in 2017 that “tiered from and updated the two prior EISs” but did not issue “another EIS subsequent to the 2018”. It was primarily contended that the federal defendants violated the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA).
Louisiana, along with a coalition of states, brought a suit challenging the decision in the Western District of Louisiana, and the district court preliminarily enjoined Interior officials from “implementing the pause of new oil and natural gas leases on public lands or in offshore waters”, including Lease Sale 257. The BOEM moved forward with issuing another Determination of NEPA Adequacy in August 2021 stating that a supplemental EIS was not required for the sale. Of course, the Biden administration complied with that decision, going against his electoral promise; now his further action, in the wake of the Glasgow Climate Change Conference of Parties will be closely watched.
The Court rightly followed Responsibility & Ethics in Wash. v. SEC2, that under the APA, a reviewing court may set aside agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law”. Agency action is “arbitrary and capricious” if it has relied on “factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency” (or is thus in Justice Rohinton Nariman’s formulation for the Supreme Court of India) “manifestly arbitrary”.3 The Court reiterated Nat’l Comm. for the New River v. FERC,4 holding that “environmental impact statement [EIS] is reviewed to ensure that the agency took a hard look at the environmental consequences of its decision to go forward with the project” (emphasis added). What would a “hard look” mean save examining “the environmental consequences of its actions’ and enforcing that “these are considered by the public”?
In this sense, the NEPA is a “statute intended to ensure Federal agencies consider the environmental impacts of their actions in the decision-making process”. It also “requires agencies to prepare a supplemental EIS to aid federal actions if “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action of its impacts”. Put summarily, the Court distils prior precedents as mandating that “NEPA sets a floor that agencies must comply with even if an agency’s underlying statute … could be construed to set a lower one”.
This observation is crucial as it explains the Gold Standard of the NEPA requirement, as it were, regardless of the procedural/substantive dichotomy. Put differently, the NEPA is both procedural and substantive. Judicial review should be responsible and judges should respect, as far as possible, the procedural wisdom of the law, resisting assertion of judicial will that would readily supplant executive policy determinations. At the same time, people have specific rights to public participation in decisions that have environmental impact, which it is ultimately the adjudicative responsibility to protect.
Emissions analysis of greenhouse gases is quite essential to agency deliberations and decisions and the Court does well to carefully examine the issue of such emissions excluded by the BOEM, which reached a “counter intuitive” conclusion that excluded “changes in foreign demand from its calculation”. It finds that even “under a deferential review”, the OEM “acted arbitrarily in excluding foreign consumption from its emissions analysis”. The BOEM arrived at the conclusion, despite the fact that it had adopted “the Market Sim model”5 and did in fact calculate a substantial decrease in “foreign oil consumption”. The Court did well to insist that the NEPA prohibits “uninformed—rather than unwise—agency action”, and, to decline the invitation by the plaintiffs to consider as “new information” they submitted because it was doubtful whether it would have “changed the agency evaluation”.
Does this decision have any wider implications? One may argue that it does because climate change considerations must always be taken into any making of the EIS. Also, the rationales reinforcing public participation and open deliberation for these should not be arbitrary and ultra vires the law and the Constitution further underscore a jus cogens (a binding peremptory norm) of international law. If so, it will be unreasonable, arbitrary and unconstitutional to exempt any development project from the rigours of EIS. And procedures that abbreviate public deliberation are per se unlawful and unreasonable.
On the other hand, it may be contended that such exemption may not be said to be unlawful as it remains encompassed by the doctrine of state sovereignty over natural resources and any soft law standards (for example, pertaining to the “ease of doing business” standards developed by the World Bank). Moreover, though somewhat intertwined, the histories of regulatory reach and realms vary a great deal across nations and make it premature to speak of the emergence of any new jus cogens.
There exists a third perspective—namely, the suffering people—from whose standpoint the system of EIS may be reinforced and replenished but never be renounced. Neither escalation of state sovereignty nor coercive neoliberal corporate dominance (as if peoples suffering and rights did not matter), leading to environmental damage and degradation, is the need of the hour. What we instead need is organised peaceful resistance against anthropogenic harm, accelerated by the Anthropocene Epoch now upon us, which is directed towards a global human right to green governance and just development.
The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer
1All texts in quote and page numbers derive from the judgment, unless otherwise attributed.
The Court held that the “Plaintiffs have not attempted to establish that the four factors for injunctive relief—irreparable injury, inadequacy of remedies at law to compensate for that injury, the imbalance of hardships, and the public interest—would be served by the specific action they requested”. The Court here (Section (C) (b) of the judgment) relied on this fourfold test for injunctive relief in Monsanto Co. vs Geertson Seed Farm, 561 US at 156-57. Space constrains prevent any further discussion of this aspect the decision and the analysis on the US doctrine of ‘ripeness’ for standing”. (pp. 11-22).
2916 F. Supp. 2d 141, 145 ( D.D.C. 2013).
3Shayara Bano v. Union Of India, (2017) 9 SCC 1(Para 101). But see, Eklavya Dwivedi, “The Doctrine of Manifest Arbitrariness—A Critique”, https://www.indialawjournal.org/the-doctrine-of-manifest-arbitrariness.php (1921).
4373 F.3d 1323, 1327 (D.C. Cir. 2004).
5See, for a detailed analysis of this model, pp.26-41 of the judgment.