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Alaska Eskimo Whaling Comm'n v. United States Environmental Protection Agency

United States Court of Appeals, Ninth Circuit

June 29, 2015

ALASKA ESKIMO WHALING COMMISSION, Petitioner,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY; LISA P. JACKSON, Administrator; DENNIS J. MCLERRAN, Region 10 Administrator, Respondents, SHELL OFFSHORE, INC.; SHELL GULF OF MEXICO, INC.; CONOCOPHILLIPS COMPANY, Respondents-Intervenors

Page 1089

May 13, 2015, Argued and Submitted, Anchorage, Alaska

On Petition for Review of a Permit of the Environmental Protection Agency.

SUMMARY[*]

Environmental Law

The panel granted in part and denied in part a petition for review brought by the Alaska Eskimo Whaling Commission, challenging the Beaufort Permit issued by the U.S. Environmental Protection Agency under the National Pollutant Discharge Elimination System provisions of the Clean Water Act, authorizing the discharge of oil and gas exploration facilities of 13 waste streams into marine waters of the Beaufort Sea in accordance with conditions set forth in the Permit.

The panel granted the petition on one issue on which the EPA admitted error in the record, and remanded to the EPA for a determination regarding whether the discharge of non-contact cooling water (alone or in combination with other authorized discharges) into the Beaufort Sea will cause unreasonable degradation of the marine environment because of the effect of such discharge on bowhead whales, including deflection from their migratory paths.

The panel denied the petition in all other respects because the EPA's issuance of the Permit was otherwise supported by the record evidence, did not reflect a failure to consider an important respect of the problem, and was not otherwise arbitrary or capricious.

Christopher G. Winter (argued) and Layla Hughes, Crag Law Center, Portland, Oregon, for Petitioner.

Daniel Pinkston (argued), United States Department of Justice, Denver, Colorado; Sam Hirsch, Acting Assistant Attorney General; Angeline Purdy, Environmental Defense Section, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Kimberly A. Owens, Assistant Regional Counsel, United States Environmental Protection Agency--Region 10, Seattle, Washington, for Respondents.

Kyle W. Parker (argued), Sarah Bordelon, Crowell & Moring LLP, Anchorage, Alaska; Cameron Leonard, Perkins Coie LLP, Anchorage, Alaska, for Respondents-Intervenors Shell Gulf of Mexico Inc. and Shell Offshore Inc.

Svend A. Brandt-Erichsen, Meline G. MacCurdy, Marten Law PLLC, Seattle, Washington, for Respondent-Intervenor ConocoPhillips Company.

Before: William C. Canby, Jr., Jay S. Bybee, and Paul J. Watford, Circuit Judges. Opinion by Judge Canby.

OPINION

Page 1090

CANBY, Senior Circuit Judge:

The Alaska Eskimo Whaling Commission (" AEWC" ), representing certain Alaska Native villages that engage in subsistence hunting of bowhead whales, petitions for review of the Beaufort Permit (" the Permit" ) issued by the Environmental Protection Agency under the National Pollutant Discharge Elimination System (" NPDES" ) provisions of the Clean Water Act. The Permit authorizes the discharge by oil and gas exploration facilities of 13 waste streams into marine waters of the Beaufort Sea in accordance with the effluent limitations, monitoring requirements, and other conditions set forth in the Permit. AEWC does not seek to have the Permit vacated, but asks us to remand it to the EPA for further proceedings leading to additional restrictions on discharges. We have jurisdiction to review the EPA's issuance of the Permit pursuant to 33 U.S.C. § 1369(b)(1)(F).

Page 1091

We deny in great part AEWC's petition, but we grant on one issue on which the EPA has admitted an error in the record: we remand to the EPA for a determination regarding whether the discharge of non-contact cooling water (alone or in combination with other authorized discharges) into the Beaufort Sea will cause unreasonable degradation of the marine environment, 40 C.F.R. § 125.121(e), because of the effect of such discharge on bowhead whales, including deflection from their migratory paths. We deny the petition in all other respects.

I. Background

Following the 2011 expiration of the 2006 Arctic NPDES general permit for offshore oil and gas exploration, the EPA replaced that permit with two separate general permits for exploration discharges: one for the Beaufort Sea and one for the Chuckchi Sea. Only the Beaufort Permit is the subject of this appeal. The Permit allows discharges only in connection with oil exploration; actual oil development and offshore production are not within the Permit.

In January 2012, the EPA issued for public review and comment a draft of the Beaufort Permit. During the three-month comment period, public meetings were held and testimony was taken in communities, including the Nuiqsut Community, on the North Slope and in Anchorage. AEWC and several other ...


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