Center for Biological Diversity v. Ken Salazar
695 F.3d 893, 42 Envtl. L. Rep. (Envtl. Law Inst.) 20178, 183 Oil & Gas Rep. 92 (2012)
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Rule of Law:
Under the Marine Mammal Protection Act, the 'small numbers' and 'negligible impact' requirements for authorizing incidental take are two separate and distinct standards. An agency's interpretation of 'small numbers' as a relative proportion of the population, rather than an absolute numerical limit, is permissible so long as the agency's analysis remains distinct from its 'negligible impact' finding.
Facts:
- The Chukchi Sea off Alaska is home to polar bears and Pacific walruses, which are protected under the Marine Mammal Protection Act (MMPA).
- Oil and gas exploration activities, such as seismic surveys and exploratory drilling, have the potential to harass or disturb these marine mammals, constituting a 'take' under the MMPA.
- In 2005, the Alaska Oil and Gas Association requested that the U.S. Fish and Wildlife Service ('Service') issue a five-year regulation to authorize the incidental, nonlethal take of polar bears and walruses during exploration activities.
- In May 2008, while the regulation was being developed, the Service listed the polar bear as a threatened species under the Endangered Species Act (ESA) due to projected sea ice reduction from climate change.
- The Service developed a rule that included mitigation measures, such as restrictions on activities near known polar bear denning areas and during the open-water season to avoid disturbing pack ice.
- In June 2008, the Service issued its final five-year rule authorizing the incidental take, concluding that the activities would affect only 'small numbers' of the animals and have a 'negligible impact' on the species.
Procedural Posture:
- Center for Biological Diversity and Pacific Environment ('Plaintiffs') sued the U.S. Fish and Wildlife Service ('Service') in federal district court.
- The Alaska Oil and Gas Association intervened as a co-defendant to support the Service's regulations.
- Plaintiffs alleged that the Service's regulations authorizing incidental take of marine mammals violated the Marine Mammal Protection Act (MMPA), the Endangered Species Act (ESA), and the National Environmental Policy Act (NEPA).
- The U.S. District Court granted summary judgment in favor of the Service and the Association.
- Plaintiffs appealed the district court's decision to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Is the U.S. Fish and Wildlife Service's regulation authorizing incidental take of marine mammals, which interprets the Marine Mammal Protection Act's 'small numbers' requirement as a relative concept (small relative to the population) rather than an absolute numerical limit, a permissible construction of the statute?
Opinions:
Majority - W. Fletcher
Yes, the Service's regulation is a permissible construction of the statute. While the MMPA requires 'small numbers' and 'negligible impact' to be two separate standards, the statute is ambiguous as to the precise meaning of 'small numbers.' The court, applying Chevron deference, found the Service's interpretation of 'small numbers' as a number small relative to the overall population to be reasonable. Legislative history shows Congress recognized the term's imprecision and did not intend to impose an absolute numerical limit. The court found that the Service's 2008 final rule sufficiently analyzed the two standards separately, even with some overlap, focusing on the portion of the population affected for 'small numbers' and on the effect on survival rates for 'negligible impact.' The court also upheld the Service's analyses under the Endangered Species Act, finding its Incidental Take Statement's reliance on the MMPA's findings to be an adequate surrogate for a numerical limit, and under NEPA, finding its Environmental Assessment's range of alternatives and analysis of oil spill risk to be sufficient.
Analysis:
This decision solidifies agency deference under the Chevron framework in the context of environmental statutes with ambiguous terms. It affirms that an agency can define 'small numbers' proportionally without providing a specific numerical cap, provided it maintains a clear analytical distinction between that requirement and the separate 'negligible impact' standard. This gives agencies significant flexibility in authorizing activities that affect protected species, potentially making it easier to permit industrial activities while still meeting statutory obligations. The case also provides guidance on the interplay between the MMPA and ESA, allowing MMPA findings to serve as a surrogate for ESA take limits in specific circumstances, which could streamline the regulatory process for activities affecting marine mammals that are also listed species.
