FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ENVIRONMENTAL DEFENSE CENTER, 

a California non-profit corporation; 

SANTA BARBARA CHANNELKEEPER, 

a California non-profit corporation; 

PEOPLE OF THE STATE OF 

CALIFORNIA, ex rel. Rob Bonta, 

Attorney General; CALIFORNIA 

COASTAL COMMISSION; CENTER FOR 

BIOLOGICAL DIVERSITY; WISHTOYO 

FOUNDATION,

Plaintiffs-Appellees,

v.

BUREAU OF OCEAN ENERGY 

MANAGEMENT,

Defendant-Appellee,

AMERICAN PETROLEUM INSTITUTE,

Intervenor-Defendant-Appellant,

and

RICHARD YARDE, Regional 

Supervisor, Office of Environment, 

Bureau of Ocean Energy 

Management; DAVID FISH, Bureau 

of Safety and Environmental 

Enforcement; AMANDA LEFTON,

Director, Bureau of Ocean Energy 

No. 19-55526

D.C. Nos.

2:16-cv-08418-

PSG-FFM

2:16-cv-08473-

PSG-FFM

2:16-cv-09352-

PSG-FFM
2 EDC V. BOEM

Management; KEVIN M. SLIGH, SR., 

Director, Bureau of Safety and 

Environmental Enforcement; 

BUREAU OF SAFETY AND 

ENVIRONMENTAL ENFORCEMENT;

JOAN BARMINSKI, Pacific Region 

Director, Bureau of Ocean Energy 

Management; MIKE MITCHELL, 

Acting Pacific Region Director, 

Bureau of Safety and Environmental 

Enforcement; U.S. DEPARTMENT OF 

THE INTERIOR; DEB HAALAND, 

Secretary of the Interior,

Defendants,

EXXON MOBIL CORPORATION;

DCOR, LLC,

Intervenor-Defendants.

ENVIRONMENTAL DEFENSE CENTER, 

a California non-profit corporation; 

SANTA BARBARA CHANNELKEEPER, 

a California non-profit corporation; 

PEOPLE OF THE STATE OF 

CALIFORNIA, ex rel. Rob Bonta, 

Attorney General; CALIFORNIA 

COASTAL COMMISSION; CENTER FOR 

BIOLOGICAL DIVERSITY; WISHTOYO 

FOUNDATION,

Plaintiffs-Appellees,

v.

No. 19-55707

D.C. Nos.

2:16-cv-08418-

PSG-FFM

2:16-cv-08473-

PSG-FFM

2:16-cv-09352-

PSG-FFM
EDC

V. BOEM3

BUREAU OF OCEAN ENERGY 

MANAGEMENT;RICHARD YARDE, 

Regional Supervisor, Office of 

Environment, Bureau of Ocean 

Energy Management; DAVID FISH, 

Bureau of Safety and Environmental 

Enforcement; AMANDA 

LEFTON,

Director, Bureau of Ocean Energy 

Management; KEVIN M.SLIGH,SR., 

Director, Bureau of Safety and 

Environmental Enforcement; BUREAU OF SAFETY AND ENVIRONMENTAL ENFORCEMENT

;

JOAN BARMINSKI, Pacific Region 

Director, Bureau of Ocean Energy 

Management; MIKE MITCHELL, 

Acting Pacific Region Director, 

Bureau of Safety and Environmental 

Enforcement; U.S.DEPARTMENT OF 

THE 

INTERIOR;DEB HAALAND, 

Secretary of the Interior,

Defendants,

AMERICAN PETROLEUM INSTITUTE;

DCOR, LLC,

Intervenor-Defendants,

and

EXXON MOBIL CORPORATION,

Intervenor-Defendant-Appellant.
4 EDC V. BOEM

ENVIRONMENTAL DEFENSE CENTER, 

a California non-profit corporation; 

SANTA BARBARA CHANNELKEEPER, 

a California non-profit corporation;

Plaintiffs-Appellants,

and

PEOPLE OF THE STATE OF 

CALIFORNIA, ex rel. Rob Bonta, 

Attorney General; CALIFORNIA 

COASTAL COMMISSION; CENTER FOR 

BIOLOGICAL DIVERSITY; WISHTOYO 

FOUNDATION,

Plaintiffs,

v.

BUREAU OF OCEAN ENERGY 

MANAGEMENT; RICHARD YARDE, 

Regional Supervisor, Office of 

Environment, Bureau of Ocean 

Energy Management; DAVID FISH, 

Bureau of Safety and Environmental 

Enforcement; AMANDA LEFTON,

Director, Bureau of Ocean Energy 

Management; KEVIN M. SLIGH, SR., 

Director, Bureau of Safety and 

Environmental Enforcement; 

BUREAU OF SAFETY AND 

ENVIRONMENTAL ENFORCEMENT;

JOAN BARMINSKI, Pacific Region 

Director, Bureau of Ocean Energy 

Management; MIKE MITCHELL, 

No. 19-55708

D.C. Nos.

2:16-cv-08418-

PSG-FFM

2:16-cv-08473-

PSG-FFM

2:16-cv-09352-

PSG-FFM
EDC V. BOEM 5

Acting Pacific Region Director, 

Bureau of Safety and Environmental 

Enforcement; U.S. DEPARTMENT OF 

THE INTERIOR; DEB HAALAND, 

Secretary of the Interior,

Defendants-Appellees,

AMERICAN PETROLEUM INSTITUTE;

EXXON MOBIL CORPORATION;

DCOR, LLC,

Intervenor-Defendants-Appellees.

ENVIRONMENTAL DEFENSE CENTER, 

a California non-profit corporation; 

SANTA BARBARA CHANNELKEEPER, 

a California non-profit corporation; 

PEOPLE OF THE STATE OF 

CALIFORNIA, ex rel. Rob Bonta, 

Attorney General; CALIFORNIA 

COASTAL COMMISSION; CENTER FOR 

BIOLOGICAL DIVERSITY; WISHTOYO 

FOUNDATION,

Plaintiffs-Appellees,

v.

BUREAU OF OCEAN ENERGY 

MANAGEMENT; RICHARD YARDE, 

Regional Supervisor, Office of 

Environment, Bureau of Ocean 

Energy Management; DAVID FISH, 

Bureau of Safety and Environmental 

Enforcement; AMANDA LEFTON, 

Director, Bureau of Ocean Energy 

No. 19-55718

D.C. Nos.

2:16-cv-08418-

PSG-FFM

2:16-cv-08473-

PSG-FFM

2:16-cv-09352-

PSG-FFM
6 EDC V. BOEM

Management; KEVIN M. SLIGH, SR., 

Director, Bureau of Safety and 

Environmental Enforcement; 

BUREAU OF SAFETY AND 

ENVIRONMENTAL ENFORCEMENT;

JOAN BARMINSKI, Pacific Region 

Director, Bureau of Ocean Energy 

Management; MIKE MITCHELL, 

Acting Pacific Region Director, 

Bureau of Safety and Environmental 

Enforcement; U.S. DEPARTMENT OF 

THE INTERIOR; DEB HAALAND, 

Secretary of the Interior,

Defendants,

AMERICAN PETROLEUM INSTITUTE;

EXXON MOBIL CORPORATION,

Intervenor-Defendants,

and

DCOR, LLC,

Intervenor-Defendant-Appellant.
EDC V. BOEM 7

ENVIRONMENTAL DEFENSE CENTER, 

a California non-profit corporation; 

SANTA BARBARA CHANNELKEEPER, 

a California non-profit corporation; 

PEOPLE OF THE STATE OF 

CALIFORNIA, ex rel. Rob Bonta, 

Attorney General; CALIFORNIA 

COASTAL COMMISSION; CENTER FOR 

BIOLOGICAL DIVERSITY; WISHTOYO 

FOUNDATION,

Plaintiffs-Appellees,

v.

BUREAU OF OCEAN ENERGY 

MANAGEMENT; RICHARD YARDE, 

Regional Supervisor, Office of 

Environment, Bureau of Ocean 

Energy Management; DAVID FISH, 

Bureau of Safety and Environmental 

Enforcement; AMANDA LEFTON, 

Director, Bureau of Ocean Energy 

Management; KEVIN M. SLIGH, SR., 

Director, Bureau of Safety and 

Environmental Enforcement; 

BUREAU OF SAFETY AND 

ENVIRONMENTAL ENFORCEMENT;

JOAN BARMINSKI, Pacific Region 

Director, Bureau of Ocean Energy 

Management; MIKE MITCHELL, 

Acting Pacific Region Director, 

Bureau of Safety and Environmental 

Enforcement; U.S. DEPARTMENT OF 

THE INTERIOR; DEB HAALAND, 

No. 19-55725

D.C. Nos.

2:16-cv-08418-

PSG-FFM

2:16-cv-08473-

PSG-FFM

2:16-cv-09352-

PSG-FFM
8 EDC V. BOEM

Secretary of the Interior,

Defendants-Appellants,

and

AMERICAN PETROLEUM INSTITUTE;

EXXON MOBIL CORPORATION;

DCOR, LLC,

Intervenor-Defendants.

PEOPLE OF THE STATE OF 

CALIFORNIA, ex rel. Rob Bonta, 

Attorney General; CALIFORNIA 

COASTAL COMMISSION,

Plaintiffs-Appellants,

and

ENVIRONMENTAL DEFENSE CENTER, 

a California non-profit corporation; 

SANTA BARBARA CHANNELKEEPER, 

a California non-profit corporation; 

CENTER FOR BIOLOGICAL 

DIVERSITY; WISHTOYO 

FOUNDATION,

Plaintiffs,

v.

BUREAU OF OCEAN ENERGY 

MANAGEMENT; RICHARD YARDE, 

Regional Supervisor, Office of 

Environment, Bureau of Ocean 

Energy Management; DAVID FISH, 

No. 19-55727

D.C. Nos.

2:16-cv-08418-

PSG-FFM

2:16-cv-08473-

PSG-FFM

2:16-cv-09352-

PSG-FFM
EDC

V. BOEM9

Bureau of Safety and Environmental 

Enforcement; AMANDA LEFTON, 

Director, Bureau of Ocean Energy 

Management; KEVIN M.

SLIGH,SR., 

Director, Bureau of Safety and 

Environmental Enforcement; BUREAU OF SAFETY AND ENVIRONMENTAL ENFORCEMENT

;

JOAN BARMINSKI, Pacific Region 

Director, Bureau of Ocean Energy 

Management; MIKE MITCHELL, 

Acting Pacific Region Director, 

Bureau of Safety and Environmental 

Enforcement; U.S.DEPARTMENT OF 

THE 

INTERIOR;DEB HAALAND, 

Secretary of the Interior,

Defendants-Appellees,

AMERICAN PETROLEUM INSTITUTE;

EXXON MOBIL CORPORATION;

DCOR, LLC,

Intervenor-Defendants-Appellees.
10 EDC V. BOEM

CENTER FOR BIOLOGICAL 

DIVERSITY; WISHTOYO 

FOUNDATION,

Plaintiffs-Appellants,

and

ENVIRONMENTAL DEFENSE CENTER, 

a California non-profit corporation; 

SANTA BARBARA CHANNELKEEPER, 

a California non-profit corporation; 

PEOPLE OF THE STATE OF 

CALIFORNIA, ex rel. Rob Bonta, 

Attorney General; CALIFORNIA 

COASTAL COMMISSION,

Plaintiffs,

v.

BUREAU OF OCEAN ENERGY 

MANAGEMENT; RICHARD YARDE, 

Regional Supervisor, Office of 

Environment, Bureau of Ocean 

Energy Management; DAVID FISH, 

Bureau of Safety and Environmental 

Enforcement; AMANDA LEFTON, 

Director, Bureau of Ocean Energy 

Management; KEVIN M. SLIGH, SR., 

Director, Bureau of Safety and 

Environmental Enforcement; 

BUREAU OF SAFETY AND 

ENVIRONMENTAL ENFORCEMENT;

JOAN BARMINSKI, Pacific Region 

Director, Bureau of Ocean Energy 

No. 19-55728

D.C. Nos.

2:16-cv-08418-

PSG-FFM

2:16-cv-08473-

PSG-FFM

2:16-cv-09352-

PSG-FFM

OPINION
EDC V. BOEM 11

Management; MIKE MITCHELL, 

Acting Pacific Region Director, 

Bureau of Safety and Environmental 

Enforcement; U.S. DEPARTMENT OF 

THE INTERIOR; DEB HAALAND, 

Secretary of the Interior,

Defendants-Appellees,

AMERICAN PETROLEUM INSTITUTE;

EXXON MOBIL CORPORATION;

DCOR, LLC,

Intervenor-Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Philip S. Gutierrez, Chief District Judge, Presiding

Argued and Submitted October 18, 2021

San Francisco, California

Filed June 3, 2022

Before: J. Clifford Wallace, Ronald M. Gould, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Gould
12 EDC V. BOEM

SUMMARY*

Environmental Law

The panel reversed the district court’s grant of summary 

judgment to federal defendants on plaintiffs’ National 

Environmental Policy Act (“NEPA”) claims, and affirmed 

the grant of summary judgment to plaintiffs on the 

Endangered Species Act (“ESA”) and Coastal Zone 

Management Act (“CZMA”) claims, in actions – brought by 

environmental groups, the State of California, and the 

California Coastal Commission – alleging federal agencies 

violated environmental laws when they authorized 

unconventional oil drilling methods on offshore platforms in 

the Pacific Outer Continental Shelf off the coast of 

California.

Environmental groups learned through Freedom of 

Information Act requests that agencies within the U.S. 

Department of the Interior had authorized permits for 

offshore well stimulation treatments without first conducting 

the normally-required environmental review. Pursuant to 

settlements between the environmental groups and the 

federal agencies – the Bureau of Ocean Energy Management 

(BOEM) and the Bureau of Safety and Environmental 

Enforcement (BSEE), the agencies issued an Environmental 

Assessment (“EA”) evaluating the use of offshore well 

simulation treatments and did not prepare a full 

Environmental Impact Statement (“EIS”). The agencies 

concluded that the use of these treatments would not pose a 

significant environmental impact and issued a finding of No 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
EDC V. BOEM 13

Significant Impact (“FONSI”). Petroleum industry 

defendants intervened.

The panel first concluded that that it had jurisdiction to 

review the challenges to the agencies’ EA and FONSI and 

that plaintiffs’ claims were ripe for review now. After 

reviewing the agencies’ EA and FONSI, the panel held that 

the agencies failed to take the hard look required by NEPA 

in issuing their EA and that they should have prepared an 

EIS for their proposed action. The panel reversed the 

summary judgment to defendants on the NEPA claims and 

granted summary judgment to plaintiffs on those claims; 

affirmed the district court’s summary judgment to plaintiffs 

on the ESA and CZMA claims; and held that the district 

court did not abuse its discretion in fashioning injunctive 

relief.

Specifically, on the issues of jurisdiction, first, the panel 

held that the programmatic EA and FONSI met both prongs 

of the test set forth in Bennett v. Spear, 520 U.S. 154, 177–

78 (1997), for final agency action under the Administrative 

Procedure Act: the EA and FONSI marked the 

consummation of the agency’s decision-making process; 

and the EA and FONSI determined rights and obligations 

and were actions from which legal consequences would 

flow. Second, concerning the ripeness of the NEPA and 

CZMA claims, the panel held that the agencies’ action 

satisfied the test for prudential ripeness under Ohio Forestry 

Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998). 

Delayed review would cause hardship to plaintiffs because 

they were alleging only procedural violations in this case; 

reviewing plaintiffs’ claims at this point would not 

inappropriately interfere with further administrative action; 

and there was no need for further factual development.
14 EDC V. BOEM

Concerning the merits of plaintiffs’ NEPA claims, first, 

plaintiffs claimed that the agencies violated NEPA because 

the agencies’ EA was inadequate. The panel held that the 

EA’s findings relied on the incorrect assumption that well 

stimulation treatment would be infrequent, and the panel 

concluded that the agencies acted arbitrarily and 

capriciously by offering an analysis that ran counter to the 

evidence before the agency, and failed to take the requisite 

hard look in arriving at their conclusion. The panel held 

further that the agencies acted arbitrarily and capriciously by 

assuming in the EA that compliance with a permit issued by 

the Environmental Protection Agency under the Clean Water 

Act would render the impacts of well stimulation treatments 

insignificant. Second, plaintiffs also contended that the EA 

violated NEPA because the agencies failed to consider a 

reasonable range of alternatives and relied upon a too narrow 

statement of purpose and need in the EA. The panel held 

that in light of the discretion afforded the agencies, the EA’s 

statement of “purpose and need” did not unduly constrain the 

agencies’ consideration of alternatives regarding the use of 

well stimulation treatments. The panel held further, 

however, that the agencies did not meet their obligations 

under NEPA to give consideration to all reasonable 

alternatives. 

Plaintiffs also challenged the agencies’ decision not to 

prepare an EIS as a separate violation of NEPA. Here, the 

environmental impacts of extensive offshore fracking were 

largely unexplored. The important issues here warranted a 

full NEPA analysis in an EIS: offshore well stimulation 

treatments may adversely effect endangered or threatened 

species; well stimulation treatments in the Pacific Outer 

Continental Shelf would affect unique geographic areas; and 

the effects of offshore well stimulation treatments are highly 

uncertain and involve unknown risks. The panel held that the 
EDC V. BOEM 15

agencies acted arbitrarily and capriciously by not preparing 

an EIS, and by limiting their assessment to an EA that did 

not fully evaluate the environmental impacts of fracking. 

The panel vacated the inadequate EA, and remanded to the 

district court with instructions to amend its injunction to 

prohibit the agencies from approving permits for well 

stimulation treatments until the agencies have issued an EIS

and have fully and fairly evaluated all reasonable 

alternatives.

The environmental groups alleged that the federal 

agencies violated the ESA’s consultation requirement, and 

the district court granted summary judgment to plaintiffs on 

this issue. The panel rejected the agencies’ sole argument 

on appeal that the ESA claim was not ripe, and there was no 

agency action requiring consultation. BOEM and BSEE 

have advised the court that consultation with the U.S. Fish 

and Wildlife Service are still ongoing, which make this claim 

ripe for review. The panel used a two-step test to determine 

whether an action qualified as a sufficient “agency action” 

under the ESA. First, the panel held that the district court 

correctly held that by issuing the EA and FONSI for the 

proposed action of allowing well stimulation treatments 

offshore California, the agencies “affirmatively authorized” 

private companies to proceed with these treatments. Second, 

the panel held that the agencies had discretion to influence 

for the benefit of a protected species where throughout the 

EA, the agencies presented and dismissed alternative options 

that would have imposed restrictions affecting the oil 

companies’ subsequent applications. The programmatic 

analysis and approval of the use of offshore well stimulation 

treatments without restriction in the EA and FONSI met the 

definition of “agency action.” The panel affirmed the district 

court’s summary judgment to the environmental groups on 

the ESA claim.
16 EDC V. BOEM

The panel next turned to California’s CZMA claim, 

alleging that the agencies violated the CZMA because they 

did not conduct a consistency review to determine whether 

the use of offshore well stimulation was consistent with 

California’s coastal management plan. The panel agreed 

with the district court that the agencies’ proposed action to 

allow well stimulation treatments in the Pacific Outer 

Continental Shelf qualified as a “Federal agency activity” 

under § (c)(1) of the CZMA. Specifically, the panel held 

that the proposed action met the CZMA regulations’ broadly 

definition of “Federal agency activity.” The panel rejected 

the agencies and Intervenors’ contention that the 

programmatic EA was a “bare NEPA analysis” document 

divorced from any agency action. The panel also held that 

the proposed action fell outside the scope of § (c)(3) of the 

CZMA, which would have precluded review under § (c)(1). 

The panel concluded that the agencies violated the CZMA 

by failing to conduct the requisite consistency review, and 

summary judgment was properly granted to California on the 

CZMA claims.

Intervenors Exxon Mobil Corporation and DCOR, LLC 

challenged the injunctive relief the district court awarded to 

remedy the ESA and CZMA violations, which enjoined the 

agencies from approving any permits allowing well 

stimulation treatments offshore California until the agencies 

completed consultation with the Fish and Wildlife Service 

and consistency review with California. The panel held that 

it was reasonable for the district court to conclude that the 

agencies’ violations of the ESA and CZMA would result in 

irreparable harm if the agencies could approve well 

stimulation treatment permits before the protective 

environmental requirements of these statutes were followed. 

The panel also held that the district court did not abuse its 

discretion in its analysis of the other three factors for 
EDC V. BOEM 17

injunctive relief. The panel affirmed the injunctive relief 

previously fashioned by the district court and remanded with 

instructions that the district court amend its injunctions to 

enjoin the agencies from approving well stimulation 

treatment permits until the agencies issue a complete EIS, 

rather than the inadequate EA on which they had relied.

COUNSEL

George Torgun (argued), Deputy Attorney General; Jamee 

Jordan Patterson, David A. Zonana, and David G. Alderson, 

Supervising Deputy Attorneys General; Daniel A. Olivas

and Edward H. Ochoa, Senior Assistant Attorneys General; 

Rob Bonta, Attorney General; Office of the Attorney 

General, Oakland, California; for PlaintiffsAppellees/Cross-Appellants People of the State of

California and California Coastal Commission.

Margaret M. Hall (argued) and Linda J. Krop, Santa Barbara, 

California, for Plaintiffs-Appellees/Cross-Appellants

Environmental Defense Center and Santa Barbara 

Channelkeeper.

James A. Maysonett (argued), Michael T. Gray, and Joseph 

H. Kim, Attorneys; Eric Grant, Deputy Assistant Attorney 

General; Environment and Natural Resources Division, 

United States Department of Justice, Washington, D.C., for 

Defendants-Appellees/Appellants Bureau of Ocean Energy 

Management, Richard Yarde, David Fish, Amanda Lefton, 

Kevin M. Sligh Sr., Bureau of Safety and Environmental 

Enforcement, Joan Barminski, Mike Mitchell, U.S. 

Department of the Interior, and Deb Haaland.
18 EDC V. BOEM

Jonathan A. Hunter (argued), Jones Walker LLP, New 

Orleans, Louisiana; M. Randall Oppenheimer and Dawn 

Sestito, O’Melveny & Myers LLP, Los Angeles, California; 

Stephen W. Wiegand, Liskow & Lewis, New Orleans, 

Louisiana; for Intervenor-Defendant-Appellee Exxon Mobil 

Corporation.

Steven J. Rosenbaum and Bradley K. Ervin, Covington & 

Burling LLP, Washington, D.C., for Intervenor-DefendantAppellant/Cross-Appellee American Petroleum Institute.

L. Poe Leggette, Baker & Hostetler LLP, Houston, Texas, 

for Intervenor-Defendant-Appellee/Appellant DCOR, LLC.

Kristen Monsell and Emily Jeffers, Center for Biological 

Diversity, Oakland, California, for PlaintiffsAppellees/Cross-Appellants Center for Biological Diversity

and Wishtoyo Foundation.

Noah Garrison, Santa Monica, California, for Amici Curiae 

Members of U.S. House of Representatives.
EDC V. BOEM 19

OPINION

GOULD, Circuit Judge:

State boundaries extend three miles from their coastlines. 

Although the land and water beyond that is subject to federal 

control, coastal states are entitled to participate in the federal 

government’s decisions concerning this area, known as the 

Outer Continental Shelf. This appeal concerns the federal 

government’s authorization of unconventional oil drilling 

methods on offshore platforms in the Pacific Outer 

Continental Shelf. These unconventional oil drilling 

methods are known within the oil and gas industry as “well 

stimulation treatments” and encompass, among other 

techniques, what is known colloquially as fracking.1

 Well 

stimulation treatments prolong drilling operations by 

enabling oil companies to extract oil otherwise unreachable 

using conventional drilling methods. These stimulation 

treatments pose unknown risks, or so Plaintiffs contend, 

because their environmental impacts have not been fully 

studied.

Many of the questions that arise from this appeal are a 

result of its unique procedural posture. For offshore oil and 

development activities, agencies are supposed to conduct 

environmental review of proposed activities before

approving permits authorizing private companies to conduct 

such activities. But here, environmental groups learned 

through Freedom of Information Act (“FOIA”) requests that 

agencies within the U.S. Department of the Interior had 

1 The district court and the parties use “WST” to refer to well 

stimulation treatments. We decline to use that abbreviation in this 

opinion but do not alter quotes from the administrative record in which 

that abbreviation is used.
20 EDC V. BOEM

authorized permits for offshore well stimulation treatments 

without first conducting the normally-required 

environmental review. The federal agencies, the Bureau of 

Ocean Energy Management (“BOEM”) and the Bureau of 

Safety and Environmental Enforcement (“BSEE”), agreed to 

conduct an environmental review only after being sued by 

and reaching settlement agreements with the environmental 

groups involved in this litigation: the Environmental 

Defense Center (“EDC”), the Santa Barbara Channelkeeper, 

the Center for Biological Diversity (“CBD”), and the 

Wishtoyo Foundation. Pursuant to the settlements, the 

agencies issued an Environmental Assessment (“EA”) 

evaluating the use of offshore well simulation treatments and 

did not prepare a full Environmental Impact Statement 

(“EIS”). The agencies ultimately concluded that the use of 

these treatments would not pose a significant environmental 

impact and issued a Finding of No Significant Impact 

(“FONSI”).

The environmental groups considered the agencies’ 

environmental review to be inadequate and sued once again. 

In this litigation, they assert claims under the National 

Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et 

seq., and under the Endangered Species Act (“ESA”), 

16 U.S.C. § 1531 et seq., against BOEM, BSEE, and the 

responsible federal agency officials. The State of California 

and the California Coastal Commission (collectively, 

“California”) also sued, alleging that the agencies violated 

NEPA and the Coastal Zone Management Act (“CZMA”), 

16 U.S.C. § 1451 et seq., by not reviewing the use of well 

stimulation treatments for consistency with California’s 

coastal management program. Exxon Mobil Corporation 

(“Exxon”), the American Petroleum Institute (“API”), and 

DCOR, LLC (“DCOR”) intervened, and the cases were 

consolidated. So, the litigants before us include 
EDC V. BOEM 21

environmental group Plaintiffs, state Plaintiffs, federal 

agency Defendants, and intervening petroleum industry 

Defendants.2

The district court granted summary judgment to 

Defendants on the NEPA claims, and to Plaintiffs on the 

ESA and the CZMA claims. All parties timely appealed.

We have jurisdiction over this appeal under 28 U.S.C. 

§ 1291, and we affirm in part and reverse in part. We address 

in turn the following issues: (1) whether the programmatic 

environmental review was final agency action under the 

Administrative Procedure Act (“APA”); (2) whether the 

claims are ripe for review now or when the agencies approve 

specific permit applications; (3) whether the agencies’ EA 

and FONSI violated NEPA; (4) whether the agencies 

violated the ESA by not conducting required consultation 

with other relevant federal agencies; and (5) whether the

agencies violated the CZMA by not conducting a 

consistency review with California’s costal program. These 

issues are addressed in Sections II through V, infra.

The essential, and recurring, question raised by this case 

is whether an agency’s conclusion in a programmatic 

environmental review that a proposed action would not have 

a significant environmental impact constitutes agency 

authorization of that proposed action, even if the agency will 

have to approve subsequent, individual permits before that 

action can occur. This question resurfaces throughout this 

opinion in different forms, as we must decide whether the 

agencies’ programmatic environmental review constitutes 

“final agency action” under the APA, “agency action” under 

2 The panel thanks all parties and amici curiae for their extensive 

legal briefing, which has assisted the Court.
22 EDC V. BOEM

the ESA, and “Federal agency activity” under the CZMA. 

We answer the various iterations of this question in the 

affirmative.

We first conclude that we have jurisdiction to review the 

challenges to the agencies’ EA and FONSI and that 

Plaintiffs’ claims are ripe for review now. After reviewing 

the agencies’ EA and FONSI, we hold that the agencies 

failed to take the hard look required by NEPA in issuing their 

EA and that they should have prepared an EIS for their 

proposed action. We reverse the district court’s grant of 

summary judgment to Defendants on the NEPA claims, and 

we grant summary judgment to Plaintiffs on these claims. 

We affirm the district court’s grant of summary judgment to 

Plaintiffs on the ESA and the CZMA claims. And we hold 

that the district court did not abuse its discretion in 

fashioning injunctive relief.

I. BACKGROUND

A. Factual Background

Federal law provides that state boundaries extend three 

nautical miles from their coastlines. 43 U.S.C. § 1312. The 

submerged land and water beyond the state boundary, 

known as the Outer Continental Shelf, id. §§ 1331(a), 

1332(1), is subject to federal control. This appeal centers on 

the use of well stimulation treatments in the Pacific Outer 

Continental Shelf.

1. Offshore drilling

Declaring that the oil and natural gas reserves beneath 

the Outer Continental Shelf are a “vital national resource,” 

Congress enacted the Outer Continental Shelf Lands Act 

(“OCSLA”) to govern the development of offshore oil and 
EDC V. BOEM 23

gas resources in this region, while recognizing the crucial 

need to balance resource development with the protection of 

the human, marine, and coastal environments. Id. § 1332(3). 

The OCSLA provides for the right of coastal states to 

participate in decisions concerning the Outer Continental 

Shelf “to the extent consistent with the national interest.” Id. 

§ 1332(4)(C).

Congress created four phases for offshore oil and gas 

production. First, the Department of the Interior creates a 

leasing program to meet national energy needs for a fiveyear period. See id. § 1344. Second, the Department of the 

Interior holds lease sales. See id. § 1337. Third, the winning 

bidders obtain leases and submit exploration plans to the 

Department of the Interior, and these plans, if approved, 

authorize exploratory drilling. See id. § 1340. Fourth, if 

lessees discover commercially viable oil and gas deposits 

through their exploratory drilling, they then file 

development and production plans that would authorize 

them to construct a platform, install equipment, lay pipeline, 

and conduct other development activities. See id. § 1351. 

Before commercial drilling, lessees must submit an 

Application for Permit to Drill or an Application for Permit 

to Modify. The Department of the Interior can then approve 

the drilling operations, approve with modification, or deny 

the application. See generally 30 C.F.R. §§ 250.410–465; 

id. § 550.281. Lessees are required to revise an approved 

development and production plan if they make certain 

operational changes, like changing the type or volume of 

production or increasing the amount of emissions or waste, 

or if they propose to conduct activities that require approval 

of a license or permit that is not described in their approved 

plan. Id. § 550.283. Id. BOEM and BSEE, two agencies 

within the Department of the Interior, manage the oil and gas 

activities described in OSCLA.
24 EDC V. BOEM

There are 23 oil and gas platforms in the federal waters 

on the Pacific Outer Continental Shelf off the coast of 

California. Oil companies installed these platforms between 

1967 and 1989 and continue to rely on development and 

production plans approved in that time period for their 

drilling activities.

2. Well stimulation treatments

Well stimulation treatments include oil extraction 

techniques that allow oil production to continue from wells 

with declining reservoirs. These practices prolong drilling 

operations, and expand total production, by enabling oil 

companies to extract oil otherwise unreachable using 

conventional drilling methods. The well stimulation 

treatments at issue in this case primarily consist of hydraulic 

fracturing (commonly known as fracking), which involves 

injecting a mixture of water, sand, and chemicals into a well 

at an extremely high pressure to fracture the rock formation.3

Well stimulation treatments pose a variety of risks. Not 

all of the chemicals used in well stimulation treatments have 

been studied, but the known chemicals include carcinogens, 

mutagens, toxins, and endocrine disruptors. These 

chemicals can harm aquatic animals and other wildlife in the 

areas where well stimulation treatments are used. Well 

stimulation treatments also emit pollutants, including 

carcinogens and endocrine disruptors, into the air. And the 

high pressures used in these treatments can increase the risk 

3 This case also involves the use of acid fracturing and matrix 

acidizing. Acid fracturing is similar to fracking but involves applying an 

acid solution at a high pressure to etch channels into the rock. Matrix 

acidizing involves injecting a mixture of acids to dissolve the rock, rather 

than fracture it. All three types of treatments make it easier for oil and 

gas to pass through the subterranean rock for extraction.
EDC V. BOEM 25

of oil spills, especially because well stimulation treatments 

are often used on old wells. Enhanced well life and 

increased production thus come with a potential 

environmental price.

B. Procedural History

This appeal stems from prior litigation between the 

parties concerning the use of well stimulation treatments off 

the coast of California. In 2012, Plaintiff EDC began to 

suspect the use of well stimulation treatments on platforms 

in the Pacific Outer Continental Shelf. Through FOIA 

requests, EDC discovered that the relevant federal agencies 

had granted 51 permits authorizing oil companies to perform 

well stimulation treatments off the coast of California 

without any environmental review whatsoever.

1. Prior litigation, settlement, and environmental 

review

After the federal agencies refused to conduct an 

environmental review of these treatments, EDC and CBD 

brought separate lawsuits alleging that the agencies had 

violated NEPA. The lawsuits culminated in similar 

settlement agreements, in which the agencies agreed to 

conduct a programmatic EA pursuant to NEPA to study the 

environmental impacts of well stimulation treatments in the 

Pacific Outer Continental Shelf. The agencies also agreed 

to a temporary moratorium on permit approvals authorizing 

well stimulation treatments until they completed the stated 

environmental review.

Pursuant to the settlement agreements, the agencies 

issued a draft EA in February 2016 that examined the 

programmatic effects of allowing well stimulation 

treatments in the Pacific Outer Continental Shelf. There was 
26 EDC V. BOEM

a thirty-day public comment period, during which the 

agencies received thousands of comments from individuals, 

scientists, federal and state agencies, and elected officials. 

The agencies published a final programmatic EA and FONSI 

in May 2016.

The “Proposed Action” that the programmatic EA 

examined was “allow[ing] the use of selected well 

stimulation treatments on the 43 current active leases and 

23 operating platforms” in the Pacific Outer Continental 

Shelf without restrictions. Under NEPA, agencies must 

evaluate the environmental impacts of alternatives to the 

proposed action, and it specifically mandates consideration 

of a “no action” alternative. 42 U.S.C. § 4332; 40 C.F.R. 

§ 1502.14. In the EA, the agencies considered four courses 

of action as options: (1) the proposed action of allowing the 

use of well stimulation treatments without restriction; 

(2) allowing well stimulation treatments with a minimum 

depth restriction; (3) allowing well stimulation treatments 

with a prohibition on the open water discharge of fluids; and 

(4) the required “no action” alternative of prohibiting well 

stimulation treatments. The environmental impacts of the 

first three alternatives were all based on a forecast of 

authorizing up to five well stimulation treatments per year.

Based on the analysis in the programmatic EA, the 

agencies determined that the proposed action of allowing 

well stimulation treatments without restriction “would not 

cause any significant impacts” and accordingly, the federal 

agencies issued a FONSI, which concluded the NEPA 

environmental review process. In doing so, the agencies did 

not consult with the U.S. Fish and Wildlife Service or the 

National Marine Fisheries Service pursuant to the ESA 

before issuing their final EA and FONSI, nor did they review 

the proposed action in the EA for consistency with 
EDC V. BOEM 27

California’s coastal management program pursuant to the 

CZMA.

2. Consolidated lawsuits and district court orders

The two groups of Plaintiffs (the environmental 

organizations and California) filed separate suits in 2016 

challenging the agencies’ programmatic EA and FONSI. All 

Plaintiffs alleged that the agencies violated NEPA, among 

other reasons, by failing to take a “hard look,” Kern v. U.S. 

Bureau of Land Mmgt., 284 F.3d 1062, 1066 (9th Cir. 2002), 

at the environmental impacts of allowing well stimulation 

treatments in the Pacific Outer Continental Shelf. The 

environmental groups also alleged that the agencies violated 

NEPA by not preparing an EIS. California additionally 

alleged that the agencies violated the CZMA by failing to 

conduct a consistency review to determine if allowing well 

stimulation treatments in federal waters offshore California 

is consistent with California’s coastal zone management 

program. The environmental groups also alleged that the 

agencies violated the ESA by failing to consult with the U.S. 

Fish and Wildlife Service and the National Marine Fisheries 

Service to ensure the proposed action in the EA would not 

jeopardize endangered species or their habitats. The district 

court consolidated the lawsuits, and allowed Exxon, API, 

and DCOR to intervene as Defendants.

The agencies and API filed motions to dismiss, arguing 

that the district court lacked jurisdiction to hear the NEPA 

and CZMA claims because the EA and FONSI did not 

constitute reviewable “final agency action” under the APA, 

5 U.S.C. § 551 et seq., and arguing that the ESA claims were 

not ripe and were moot. The district court denied the 

motions, holding that the EA and FONSI were final agency 

action because they concluded the agencies’ programmatic 

environmental review and lifted the moratorium on well 
28 EDC V. BOEM

stimulation treatments in the Pacific Outer Continental 

Shelf. As for the ESA claims, the district court held that they 

were ripe because the agencies made an affirmative and 

discretionary decision in the EA and FONSI about whether, 

and under what conditions, to allow well stimulation 

treatments in the region. The district court also held that the 

ESA claims were not moot because the consultation process 

under the ESA was not yet complete.

The parties made cross-motions for summary judgment, 

which the district court granted in part and denied in part. It 

granted summary judgment to Defendants on the NEPA 

claims, concluding that the agencies reasonably decided to 

conduct an EA rather than an EIS and took a sufficiently hard 

look at the environmental impacts of allowing well 

stimulation treatments. The district court granted summary 

judgment to the environmental groups on the ESA 

consultation claim, holding that the agencies violated the 

ESA by not consulting with the expert wildlife agencies. But 

the district court also held that the ESA claim based upon the 

National Marine Fisheries Service consultation was moot 

because that consultation was complete. As to California’s 

CZMA claim, the district court granted summary judgment 

to California because the agencies did not complete the 

requisite consistency review under § 1456(c)(1) of the 

CZMA. The court granted injunctive relief on the ESA and 

CZMA claims, enjoining the agencies from approving any 

permits for well stimulation treatments until they completed 

ESA consultation and CZMA consistency review. 

Subsequently, intervenor DCOR filed a motion for 

reconsideration, arguing that the court erred in issuing 

injunctive relief and requesting it to modify the judgment to 

allow the agencies to approve DCOR’s two pending permit 

applications for well stimulation treatments in the Pacific 

Outer Continental Shelf. The district court denied the 
EDC V. BOEM 29

motion, holding that the injunction it issued was the 

appropriate remedy for the ESA and CZMA violations. This 

appeal followed.

II. JURISDICTION

A. Final Agency Action

As a preliminary matter, we must determine whether we 

have subject matter jurisdiction to hear Plaintiffs’ NEPA and 

CZMA claims. Because neither NEPA nor the CZMA 

expressly provide for judicial review, judicial review of 

these claims is governed by the APA, which limits review to 

“final agency action.” 5 U.S.C. § 704. We do not defer to 

the agencies’ interpretation of whether their actions 

constitute “final agency action” because Congress did not 

charge BOEM and BSEE with implementing the APA. See 

Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 

1017 (9th Cir. 2012).

Agency action is final and reviewable under the APA 

when two conditions are met. The action must “mark the 

consummation of the agency’s decision-making process,” 

and it must also determine “rights or obligations” or be one 

“from which legal consequences will flow.” Bennett v. 

Spear, 520 U.S. 154, 177–78 (1997) (internal quotation 

marks and citations omitted). The agencies contend that the 

programmatic EA and FONSI are not “final agency actions” 

because they will still have to approve permits from private 

entities wishing to use well stimulation treatments before the 

treatments will actually be used in the region. The agencies 

would have us wait until the agencies approve site-specific 

permits before Plaintiffs could challenge the agencies’ 

actions under the APA. We disagree and hold that the 

programmatic EA and FONSI meet both prongs of Bennett’s 

test for final agency action.
30 EDC V. BOEM

1. The EA and FONSI mark the consummation of the 

agency’s decision-making process

The EA and FONSI conclude the agencies’ 

programmatic review under NEPA of allowing well 

stimulation treatments in the Pacific Outer Continental Shelf 

and reflect the agencies’ understanding that CZMA review 

is not required for this action. In the programmatic EA, the 

agencies considered four alternatives ranging from not 

authorizing well stimulation treatments to authorizing well 

stimulation treatments without restriction, and, in the 

FONSI, the agencies found that “the Proposed Action”—

authorizing well stimulation treatments without restriction—

“would not cause any significant impacts.” There is nothing 

preliminary or tentative about these documents, even if the 

agencies included a disclaimer in the EA that it is “not itself 

a decision document.”

To be sure, the use of well stimulation treatments will 

not occur in practice until an individual permit application 

has been approved. But as the district court explained, the 

agencies concede that no further programmatic 

environmental review of these treatments will be conducted. 

And it is “the effect of the action and not its label that must 

be considered.” Or. Nat. Desert Ass’n v. U.S. Forest Serv., 

465 F.3d 977, 985 (9th Cir. 2006) (citations omitted). Here, 

the effect of the FONSI is that it provides the agencies’ final 

word on the environmental impacts of the proposed action 

and concludes that the authorization of well stimulation 

treatments will not have a significant impact. This 

programmatic conclusion will not be revisited, so Plaintiffs 

here “are able to show . . . a completeness of action by the 

agency.” Kern, 284 F.3d at 1070. Absent the proposed 

action approved in the EA, no permits could be sought.
EDC V. BOEM 31

We have repeatedly held that final NEPA documents are 

final agency actions. Friedman Bros. Inv. Co. v. Lewis, 

676 F.2d 1317, 1318 (9th Cir. 1982); Te-Moak Tribe of W. 

Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 598 

(9th Cir. 2010); Rattlesnake Coal. v. EPA, 509 F.3d 1095, 

1104 (9th Cir. 2007); Hall v. Norton, 266 F.3d 969, 975, n.5 

(9th Cir. 2001). We are bound by these decisions and see no 

reason to depart from that principle here. The NEPA review 

process concludes in one of two ways: (1) the agency 

determines through an EA that a proposed action will not 

have a significant impact on the environment and issues a 

FONSI, or (2) the agency determines that the action will 

have a significant impact and issues an EIS and record of 

decision. See 40 C.F.R. §§ 1505.2 (record of decision), 

1508.13 (FONSI). Final NEPA documents constitute “final 

agency action” under the APA, whether they take the form 

of an EIS and Record of Decision or an EA and FONSI, 

because they culminate the agencies’ environmental review 

process.

We reject the agencies’ claim that the EA and FONSI are 

merely their “first, preliminary steps toward making a 

decision about the use of well stimulation treatments in the 

federal waters off the California coast,” particularly in the 

context of this litigation, where 51 permits authorizing well 

stimulation treatments were approved without 

environmental review. There is no argument or evidence 

that these 51 already-approved permits will be revisited, 

especially after the agencies approved unrestricted use of 

well stimulated treatments in the EA and FONSI. It would 

make no sense to have a full environmental impact 

evaluation on one permit or multiple individual permits 

without considering the total environmental impact of the 

full picture. Environmental law does not require a court to 
32 EDC V. BOEM

miss the forest for the trees. The agencies’ programmatic 

approval is not insulated from judicial review.

The FONSI and programmatic EA satisfy the first prong 

of the Bennett test because they are the final step in the 

agencies’ programmatic review under NEPA and reflect the 

agencies’ determination that review under the CZMA is not 

warranted.

2. The EA and FONSI determine rights and obligations 

and are actions from which legal consequences will 

flow

The programmatic EA and ensuing FONSI also satisfy 

the second prong of the Bennett test for final agency actions. 

By finding that well stimulation treatments have no 

significant environmental impact, the agencies have allowed 

the permitting process for these treatments to proceed. This 

return to the pre-settlement status quo and lifting of the 

moratorium on well stimulation treatments in the Pacific 

Outer Continental Shelf strongly affects the legal rights of 

oil companies, as demonstrated by Intervenors’ involvement 

in this suit and DCOR’s request for reconsideration of the 

judgment to allow the agencies to act on its pending 

applications. Also, the rights of Plaintiffs to further 

environmental review, and the obligation of the agencies to 

prepare a full EIS, are fully and finally determined by the 

FONSI and are not subject to any further administrative 

procedure. Legal consequences flow from the FONSI 

insofar as oil companies do not need to abide by any depth, 

discharge, or frequency limitations in their permit 

applications because the agencies have not imposed any such 

limitations on permit applications. In fact, the FONSI green 

lights the unrestricted use of well stimulation treatments, 

with no cautionary limitations.
EDC V. BOEM 33

The agencies urge us to look for a decision document 

outlining a binding plan that is separate from final NEPA 

documents for agency action to be “final,” but they concede 

that their programmatic review of well stimulation 

treatments offshore California is complete. In fact, the 

agencies describe their “work left to do” as only reviewing 

and approving individual, site-specific permits. The 

conclusion of the programmatic environmental review of 

offshore well stimulation treatments determines rights, 

obligations, and legal consequences. The EA and FONSI 

meet the Bennett test for “final agency action,” and we have 

subject matter jurisdiction over Plaintiffs’ claims.

B. Ripeness

The agencies also contest the ripeness of the NEPA and 

CZMA claims.4 Their ripeness arguments echo their 

arguments contesting final agency action under the APA. 

Although they issued final NEPA documents, the agencies 

contend that Plaintiffs’ claims are not ripe because the 

agencies have not yet issued a formal plan for well 

stimulation treatments or acted on site-specific permits. We 

review de novo questions of ripeness. Laub v. U.S. Dept. of 

Interior, 342 F.3d 1080, 1084 (9th Cir. 2003). We note at 

the outset that the agencies raise concerns of prudential 

ripeness, which are discretionary. Thomas v. Anchorage 

Equal Rights Comm’n, 220 F.3d 1134, 1140 (9th Cir. 2000). 

In any event, we conclude that the agencies’ action satisfies 

the test for prudential ripeness as established in Ohio 

4 Defendants challenge the ripeness of the ESA claim as well. 

Because NEPA and ESA have different language pertinent to ripeness, 

we address Defendants’ challenge to ripeness on the ESA claim in our 

discussion of the ESA appeal infra Part IV.
34 EDC V. BOEM

Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 

(1998).

Evaluating ripeness in the agency context requires 

considering “(1) whether delayed review would cause 

hardship to the plaintiffs; (2) whether judicial intervention 

would inappropriately interfere with further administrative 

action; and (3) whether the courts would benefit from further 

factual development of the issues presented.” Id. All three 

considerations support the conclusion that these claims are 

ripe for review.

First, delayed review would cause hardship to Plaintiffs 

because they are alleging only procedural violations in this 

case. Under NEPA, Plaintiffs challenge the agencies’ 

decision not to issue an EIS; under the ESA, the agencies’ 

failure to consult with wildlife experts; and under the 

CZMA, the agencies’ failure to conduct a consistency 

review. Delaying review of these procedural injuries would 

cause hardship to Plaintiffs by denying them the 

fundamental safeguards provided by the three environmental 

statutes. The “asserted injury is that environmental 

consequences might be overlooked.” Salmon River 

Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th 

Cir. 1994). Delaying review would extend and compound 

the harms Plaintiffs allege. Programmatic environmental 

review “generally obviates the need” for subsequent review 

at the application level “unless new and significant 

environmental impacts arise.” Id. at 1356. And any 

additional protective measures Plaintiffs could obtain by 

challenging the agency’s conclusions later, at the time the 

agencies review specific applications, would only apply at 

the site-specific, not the programmatic, level. If the 

programmatic procedures offend the law, they should be 

reviewed now.
EDC V. BOEM 35

Second, reviewing Plaintiffs’ claims at this point would 

not “inappropriately interfere with further administrative 

action.” Ohio Forestry, 523 U.S. at 733. We have 

established that judicial review does not interfere with 

further administrative action when the agency’s decision is 

at “an administrative resting place.” Citizens for Better 

Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 977 (9th Cir. 

2003). Here, the agencies’ NEPA documents, and the 

decisions contained therein—not to issue an EIS, not to 

conduct a consistency review, and not to consult with the 

wildlife services—demonstrate that the agencies’ decision 

making is at an administrative resting place. The agencies 

have concluded their programmatic review of well 

stimulation treatments offshore California and maintain that 

they have met their procedural obligations under the relevant 

environmental statutes. No further administrative action 

will be required until oil companies submit permits for sitespecific review. We hold that the final NEPA documents in 

this case constitute an administrative resting place for 

purposes of procedural injuries. See Kern, 284 F.3d at 1071.

Third, there is no need for “further factual development.” 

Ohio Forestry, 523 U.S. at 733. For claims of procedural 

injury, we have held that the need for factual development 

ceases when the alleged procedural violation is complete. 

Cottonwood Env’t Law Ctr. v. U.S. Forest Serv., 789 F.3d 

1075, 1084 (9th Cir. 2015).

Our ripeness analysis for claims brought pursuant to 

environmental statutes is affected by whether plaintiffs 

allege a procedural or substantive violation. This stems from 

Ohio Forestry, in which the Supreme Court distinguished 

between the ripeness of substantive and procedural claims 

brought under environmental statutes. 523 U.S. at 737. 

There, the plaintiff’s substantive challenge under the 
36 EDC V. BOEM

National Forest Management Act to the agency’s forest 

plans was unripe because the plans had not yet been 

implemented at the site-specific level. Id. at 739. Yet the 

Court specifically distinguished its holding from cases 

where procedural injuries are alleged, explaining that, by 

comparison, a person injured by “a failure to comply with 

the NEPA procedure may complain of that failure at the time 

the failure takes place, for the claim can never get riper.” Id. 

at 737.

We have endorsed this distinction. Cottonwood, 

789 F.3d at 1084; Kern, 284 F.3d at 1071; Citizens for Better 

Forestry, 341 F.3d at 977. In Kern, plaintiffs challenged an 

EA and an EIS for two proposed actions in an area along the 

Oregon coast. 284 F.3d at 1066. We concluded that both 

challenges were ripe and justiciable, differentiating between 

the substantive claim at issue in Ohio Forestry and the 

procedural rights conferred by NEPA. Id. at 1071. 

Similarly, in Citizens for Better Forestry, we concluded that 

procedural claims challenging an agency’s EA, FONSI, and 

failure to consult under the ESA were ripe, even though sitespecific proposals had not been issued. 341 F.3d at 970–71. 

Site-specific action, we held, is “simply a factual 

coincidence, rather than a basis for legal distinction.” Id.

at 977. This is because the imminence or occurrence of sitespecific action is irrelevant to the ripeness of procedural 

injuries, which are ripe and ready for review the moment 

they happen. Plaintiffs need not wait for the agencies to act 

on site-specific permits authorizing well stimulation 

treatments. Plaintiffs’ procedural challenges under NEPA 

and the CZMA to the agencies’ proposed action allowing the 

use of well stimulation treatments off the coast of California, 

as adopted in the final EA and FONSI, are immediately ripe 

for review.
EDC V. BOEM 37

III. NEPA

After determining that we have subject matter 

jurisdiction over Plaintiffs’ claims and that they are ripe for 

review, we assess first the merits of Plaintiffs’ NEPA claims. 

The district court granted summary judgment to Defendants 

on these claims, which we review de novo, “applying the 

same standards that applied in the district court.” Pit River 

Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006) 

(citation omitted). Because judicial review of agency 

decisions under NEPA is governed by the APA, we must 

consider whether the agencies complied with NEPA’s 

requirements under the APA’s deferential arbitrary and 

capricious standard. Id. An agency’s action is arbitrary and 

capricious “only if the agency relied on factors Congress did 

not intend it to consider, entirely failed to consider an 

important aspect of the problem, or offered an explanation 

that runs counter to the evidence before the agency or is so 

implausible that it could not be ascribed to a difference in 

view or the product of agency expertise.” Defs. of Wildlife 

v. Zinke, 856 F.3d 1248, 1257 (9th Cir. 2017) (quoting 

Conservation Cong. v. U.S. Forest Serv., 720 F.3d 1048, 

1054 (9th Cir. 2013)); see also Motor Vehicle Mfrs. Ass’n of 

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46–

48, 55–57 (1983) (holding that agency action was arbitrary 

and capricious where the agency “did not even consider” a 

reasonable alternative that was made known to it and also 

“failed to articulate a basis” for its action).

NEPA is the statute that launched the environmental 

movement in the 1970s. Richard J. Lazarus, The Making of 

Environmental Law, 64–67 (2004). It is the “basic national 

charter for protection of the environment” and, 

coincidentally, was borne out of a catastrophic oil spill from 

drilling offshore California. 40 C.F.R. § 1500.1(a); NEPA 
38 EDC V. BOEM

is at its heart a procedural statute and requires federal 

agencies to take a “hard look” at the environmental 

consequences of their actions. Kern, 284 F.3d at 1066 

(quotation omitted). NEPA requires agencies to prepare an 

EIS for all “major Federal actions significantly affecting the 

quality of the human environment.” 42 U.S.C. § 4332(C). 

In this review, the agency must evaluate the environmental 

impact of its proposed action as well as “alternatives to the 

proposed action.” Id. If an agency is unsure whether its 

proposed action will have significant environmental 

impacts, it may first prepare an EA. An EA is a “concise, 

public document” providing “sufficient evidence and 

analysis” for the agency to determine “whether to prepare an 

environmental impact statement.” 40 C.F.R § 1508.9(a)(1). 

Thus, an EA is intended to help an agency decide if an EIS 

is warranted; an EA is not meant to replace or substitute for 

an EIS. Anderson v. Evans, 314 F.3d 1006, 1023 (9th Cir. 

2002).

When reviewing an EA, we examine it “with two 

purposes in mind: to determine whether it has adequately 

considered and elaborated the possible consequences of the 

proposed agency action when concluding that it will have no 

significant impact on the environment, and whether its 

determination that no EIS is required is a reasonable 

conclusion.” Ctr. for Biological Diversity v. Nat’l Highway 

Traffic Safety Admin., 538 F.3d 1172, 1215 (9th Cir. 2008).

Plaintiffs allege that the agencies violated NEPA in two 

ways. First, Plaintiffs allege that the agencies violated 

NEPA because the agencies’ EA is inadequate and does not 

constitute a “hard look” of the environmental impacts of 

allowing well stimulation treatments offshore California. 

Specifically, Plaintiffs contend that in issuing the EA, the 

agencies relied on erroneous assumptions, used too narrow 
EDC V. BOEM 39

of a statement of need and purpose, and did not consider a 

reasonable range of alternatives. Second, the environmental 

groups additionally contend that the agencies violated NEPA 

by failing to prepare an EIS. The type of NEPA violation 

impacts the relief that should be granted, i.e., whether to 

vacate the existing EA for preparation of a new one or 

whether to remand with orders to prepare a full EIS. We 

consider each alleged NEPA violation in turn. 

A.

Plaintiffs first allege that the agencies’ EA is inadequate 

and violates NEPA because the agencies relied upon 

erroneous assumptions instead of taking the requisite “hard 

look” at the potential environmental effects of authorizing 

well stimulation treatments offshore California. NEPA 

requires agencies to take a “hard look” at the environmental 

effects of a proposed action before implementing it. To take 

the requisite hard look, an agency “may not rely on incorrect 

assumptions or data” in arriving at its conclusion of no 

significant impacts. Native Ecosystems Council v. U.S. 

Forest Serv., 418 F.3d 953, 964 (9th Cir. 2005). But 

Plaintiffs contend that the agencies reached their conclusion 

of no significant impacts by relying on incorrect 

assumptions. We agree.

1. The faulty assumption that well stimulation 

treatments would not occur frequently in this region

The central assumption underlying the agencies’ entire 

EA, and driving their conclusion of no significant impact, is 

that the use of well stimulation treatments in the Pacific 

Outer Continental Shelf would happen so infrequently that 

any adverse environmental effects would be insignificant. 

Based on the available data for past well stimulation 

treatment usage and the expected future industry needs, the 
40 EDC V. BOEM

agencies used what they considered to be a “reasonable 

forecast of up to five WSTs per year” for all three “action 

alternatives” evaluated in the EA. Plaintiffs challenge this 

assumption, and for good reason.

Plaintiffs point to record evidence attacking the 

historical data used by the agencies. The district court 

acknowledged the historical data relied upon by the agency 

“may not have been perfect” but found that it was not “so 

unreliable” as to be arbitrary and capricious for the agencies 

to have based their entire projections on it. We disagree. 

Plaintiffs raise legitimate doubts about the agencies’ 

recordkeeping of well stimulation treatments and the 

reasonableness of relying on flawed recordkeeping to 

formulate an estimate for evaluating environmental impacts 

under NEPA.

The agencies do not know the actual number of well 

stimulation treatments that have occurred on the Pacific 

Outer Continental Shelf because data collection has been 

incomplete. At the time the EA and FONSI were published, 

no “formal data collection system [had] been set up” to track 

the use of offshore well stimulation treatments in federal 

waters. Critically, the agencies’ contention in the EA that 

only six well stimulation treatments have been approved on 

the Pacific Outer Continental Shelf since 2000 is at odds 

with the numbers that are known. The impetus to this 

litigation was that the agencies had approved 51 permits 

without conducting environmental review. A 2016 email 

among BSEE officials regarding what numbers to use in the 

EA confirms this. In the email, one official admitted that the 

agency was “sued on 13” acidizing jobs but “a lot more 

routine acid jobs have taken place” and they “do not have [a] 

number between 1984–2011.” This email also reveals that 

the agency had found more instances of fracking “that were 
EDC V. BOEM 41

not in the lawsuit.” In another email, BSEE officials decided 

to “leave EA Table 4-1 as is in the absence of definitive 

information on additional WSTs” because “it appears that 

there is not enough information . . . to identify WSTs.” A 

BSEE spokesperson acknowledged that the agency “cannot 

be sure just how often fracking has been allowed.” EDC’s 

analysis of information gathered from the FOIA requests 

determined that at least 15 instances of fracking alone 

occurred offshore California in federal waters.

Aside from questionable and inconclusive historical 

records, Plaintiffs also raise legitimate questions about the 

soundness of the agencies’ estimates of future usage of well 

stimulation treatments in the Pacific Outer Continental Shelf 

given the age of the reservoirs in this region and their 

declining production, as noted by the EA. The agencies’ 

response in the EA that the reservoirs offshore California 

“are already highly fractured,” which decreases the need for 

well stimulation treatments, conflicts with statements made 

by Intervenors that the wells in this region “lack any value 

or utility” without the approval of well stimulation 

treatments. It is also at odds with the agencies’ analysis of 

the no action alternative in the EA, in which the agencies 

warn that wells in the Pacific Outer Continental Shelf may 

have to close if well stimulation treatments are not 

authorized.

The gaps and errors underlying the agencies’ assumption 

about well stimulation treatment use would not be as critical 

if this assumption was not central to the agencies’ finding of 

no significant impact. But the agencies repeatedly relied 

upon the purported infrequent use of these treatments as a 

basis for concluding no significant impacts would occur 

from offshore treatments with respect to accidents, induced 

seismicity, air quality, water quality, ecological resources, 
42 EDC V. BOEM

and fisheries. In response to the repeated reliance on low 

estimates of well stimulation treatments in the draft EA, the 

California Coastal Commission commented that the 

agencies should “examine several scenarios of future WST 

activity” in the final EA and “identify thresholds at which 

environmental effects become significant” to place the 

impacts (or lack thereof) in context and provide a guide for 

when additional analysis would be needed if the agencies’ 

estimates prove to be inaccurate. Nevertheless, the agencies 

continued to rely on the infrequent use of well stimulation 

treatments as the driving force behind their finding of no 

significant impact in the final EA and FONSI. We agree 

with Plaintiffs that the agencies’ excessive reliance on the 

asserted low usage of well stimulation treatments distorted 

the agencies’ consideration of the significance and severity

of potential impacts.

Because the EA’s finding relied on the incorrect 

assumption that well stimulation treatments would be 

infrequent, we conclude that the agencies acted arbitrarily 

and capriciously by offering an analysis that ran “counter to 

the evidence before the agency,” Zinke, 856 F.3d at 1257, 

and that they failed to take the requisite hard look by 

“rely[ing] on incorrect assumptions or data” in arriving at 

their conclusion. Native Ecosystems Council, 418 F.3d 

at 964.

2. The assumption that an EPA permit would render 

impacts insignificant

The agencies also acted arbitrarily and capriciously by 

assuming in the EA that compliance with a permit issued by 

the EPA under the Clean Water Act, the National Pollution 

Discharge Elimination System General Permit (“NPDES 

permit”), would render the impacts of well stimulation 

treatments insignificant.
EDC V. BOEM 43

We have previously held that agencies cannot “tier” their 

environmental review under NEPA to assessments of similar 

projects that do not “actually discuss the impacts of the 

project at issue.” South Fork Band Council of Western 

Shoshone v. U.S. Dep’t of Interior, 588 F.3d 718, 726 (9th 

Cir. 2009). Nor have we allowed federal agencies to rely on 

state permits to satisfy review under NEPA. Id.; see also 

Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 

387 F.3d 989, 998 (9th Cir. 2004). The same concerns apply 

here, and we see several issues with the agencies relying on 

the NPDES permit to conclude that any impacts from 

offshore well stimulation treatments to the marine 

environment would be insignificant. The NPDES permit is 

issued by a different federal agency, and it does not 

specifically address “the impacts of the project at issue.” 

South Fork Band Council, 588 F.3d at 726.

First, the NPDES permit was not created or intended to 

be used for the offshore well stimulation treatments at issue 

in this appeal. The EPA developed the NPDES permit in 

2014 to broadly regulate discharges from a range of offshore 

oil and gas activities. However, the NPDES permit does not 

require monitoring for the most common well stimulation 

treatment fluids. In their comments on the draft EA, 

Plaintiffs highlighted the risks of relying upon the NPDES 

permit, explaining that the “NPDES General Permit contains 

no limitations on the discharge of specific WST chemicals.”

Second, the imperfect fit of what the NPDES permit 

requires operators to monitor is compounded by an imperfect 

fit on when the NPDES permit requires monitoring. The 

whole effluent toxicity (“WET”) testing required by the 

permit is inadequate to measure the impacts of well 

stimulation treatments because WET testing is not 

conducted in conjunction with the use of well stimulation 
44 EDC V. BOEM

treatments. Instead, because the NPDES permit is a general 

permit broadly encompassing discharges from all offshore 

oil and gas activities, WET testing is required only on a 

quarterly basis, which diminishes to annual testing after four 

consecutive “passing” tests. The agencies acknowledged in 

the EA that fluids from well stimulation treatments may not 

actually be present in samples from WET testing because of 

this timing problem. Internal emails among Department of 

Interior officials reveal that the monitoring reports 

associated with the NPDES permit do not contain enough 

information to identify well stimulation treatments. In the 

final EA, the agencies minimize the concern over the 

inadequacy of testing under the NPDES permit by stating 

that the permit also requires visual monitoring and oil and 

grease sampling in addition to WET testing. But the 

agencies do not explain how visual monitoring or oil and 

grease sampling would account for the permit’s lack of 

toxicity testing for the constituents specifically discharged 

from well stimulation treatments. The missing data and 

unknown impacts that Plaintiffs raise concern the toxicity of 

the chemicals, not the potential for oil spills, and toxicity 

cannot be accessed visually. Annual testing that is not 

conducted in conjunction with the occurrence of well 

stimulation treatments, and does not test the specific 

constituents used in the well stimulation treatments, is 

inadequate to assess the impacts of those treatments.

Third, the EPA—not BOEM or BSEE—oversees the 

NPDES permit. The district court dismissed Plaintiffs’ 

concerns about the adequacy of testing under the NPDES 

permit as a mere “wish that EPA would test more 

frequently.” This reasoning only highlights the problem of 

BOEM and BSEE relying on a general permit issued by the 

EPA to evaluate the impacts from specific well stimulation 

treatments. Though the NPDES permit, in theory, could be 
EDC V. BOEM 45

modified to test the most common fluids used in offshore 

well stimulation treatments, or be modified to require testing 

in conjunction with the use of these treatments, the agencies 

responsible for conducting the NEPA review do not control 

the permit upon which they rely.

Like the assumption concerning the infrequent use of 

well stimulation treatments, the agencies repeatedly relied 

on the NPDES permit to conclude that the proposed action 

would not significantly affect the environment. The 

agencies relied on the NPDES permit and its testing to find 

that impacts of the proposed action would be minimal on 

marine and coastal fish, marine birds, sea turtles, and 

fisheries. The agencies acted arbitrarily and capriciously by 

relying, in significant part, on these two flawed assumptions 

throughout the EA, see Native Ecosystems Council, 418 F.3d 

at 964. As a result, the EA is inadequate, and the agencies 

violated NEPA by failing to take the requisite hard look.

B.

Plaintiffs also contend that the EA violates NEPA 

because the agencies failed to consider a reasonable range of 

alternatives and relied upon too narrow a statement of 

“purpose and need” in the EA. NEPA requires agencies to 

consider alternatives to their proposed action, 42 U.S.C. 

§ 4332(C)(iii), regardless whether an agency issues an EA or 

EIS. As we held in Western Watersheds Project v. Abbey:

NEPA’s requirement that agencies “study, 

develop, and describe appropriate 

alternatives . . . applies whether an agency is 

preparing an [EIS] or an [EA].” Although an 

agency must still “give full and meaningful 

consideration to all reasonable alternatives” 

in an environmental assessment, the agency's 
46 EDC V. BOEM

obligation to discuss alternatives is less than 

in an EIS. “The existence of a viable but 

unexamined alternative renders an [EA] 

inadequate.”

719 F.3d 1035, 1050 (9th Cir. 2013) (alteration in original) 

(citations omitted). In considering which alternatives to 

analyze, agencies must provide a “detailed statement” 

regarding why they were eliminated or not considered. 

40 C.F.R. §§ 1502.14(a); 1508.9(b).

1. Purpose and need statement

Whether the range of alternatives considered is 

reasonable is to some degree circumscribed by the scope of 

the statement of “purpose and need,” so we begin our 

analysis there. Westlands Water Dist. v. U.S. Dept. of 

Interior, 376 F.3d 853, 865 (9th Cir. 2004). Agencies enjoy 

a good deal of discretion in framing the “purpose and need” 

of an EA or EIS, id. at 866, but the statement cannot 

“unreasonably narrow[] the agency’s consideration of 

alternatives so that the outcome is preordained.” Alaska 

Survival v. Surface Transp. Bd., 705 F.3d 1073, 1084–85 

(9th Cir. 2013).

Here, the EA explains the “purpose of the proposed 

action (use of certain WSTs, such as hydraulic fracturing) is 

to enhance the recovery of petroleum and gas from new and 

existing wells on the [Pacific Outer Continental Shelf], 

beyond that which could be recovered with conventional 

methods.” And the need is “the efficient recovery of oil and 

gas reserves” from the Pacific Outer Continental Shelf. 

California contends that by defining the purpose of the EA 

in terms of the proposed action, the agencies predetermined 

the outcome. California stresses the EPA’s comments on the 

draft EA, in which the EPA recommended that BOEM and 
EDC V. BOEM 47

BSEE revise the EA’s “purpose and need” statement because 

“[s]uch a narrow and prescriptive statement identifies a 

solution, rather than the underlying need.”

While the “purpose and need” statement is narrow, it 

does not necessarily fail under our deferential standard of 

review. The district court found that the “purpose and need” 

statement was “largely a product of the settlement 

agreements.” The settlement agreements required the 

agencies to evaluate the environmental effects of continuing 

to approve well stimulation treatments, which explains why 

they framed the “purpose and need” statement in this way. 

The focus of the EA was naturally affected by the settlement 

agreements. In light of the discretion we must afford the 

agencies, we do not agree with Plaintiffs that the EA’s 

statement of “purpose and need” unduly constrained the 

agencies’ consideration of alternatives regarding the use of 

well stimulation treatments.

2. Reasonable range of alternatives

That the statement of “purpose and need” did not violate 

NEPA’s procedural commands does not necessarily mean 

that the agencies considered a reasonable range of 

alternatives, which is the question to which we next turn. 

Agencies do not have to consider infinite, unfeasible, or 

impractical alternatives, but they must consider reasonable 

ones. Westlands Water, 376 F.3d at 868. The existence of a 

“viable but unexamined alternative” renders the 

environmental review conducted under NEPA inadequate. 

Id. (citation omitted).

Here, the proposed action that the agencies examined in 

the EA was allowing the use of well stimulation treatments 

on the Pacific Outer Continental Shelf without restriction. 

The agencies also examined three alternatives: 
48 EDC V. BOEM

(1) authorizing well stimulation treatments at depths more 

than 2,000 feet below the seafloor surface; (2) authorizing 

well stimulation treatments but prohibiting the open water 

discharge of waste fluids, and (3) prohibiting the use of well 

stimulation treatments altogether (the “no action” alternative 

that NEPA requires agencies to consider). In the EA, the 

agencies acknowledged that the three “action alternatives” 

they considered were similar because they all “include the 

use of the same four types of WST” so the “nature and 

magnitude” of any impacts will be similar. Plaintiffs argue 

that the lack of any meaningful difference among the 

alternatives did not allow the informed decision making that 

NEPA requires.

California and other commenters had suggested specific 

alternatives for the agencies to consider in the final EA, such 

as prohibiting well stimulation treatments in specific 

locations or at particular times of year, requiring the 

disclosure of well stimulation treatment constituents and 

additives, requiring notice to be given to state agencies and 

the public before well stimulation treatments are conducted, 

requiring testing of well stimulation fluids, or limiting the 

number of well stimulation treatments in a given year. 

Responding to these proposed alternatives in the Final EA, 

as they were required to do, the agencies summarily 

dismissed them. The agencies concluded in the appendix: 

“There were no commenters who proposed that the 

[programmatic EA] include a wider range of alternatives that 

also suggested an additional alternative for review that 

would lend itself to meaningful analysis.” The agencies 

gave no explanation for why the alternatives proposed did 

not lend themselves to meaningful analysis. In the body of 

the EA, the agencies discussed in more detail a few 

alternatives that they had considered but eliminated, but 

these alternatives involved imposing stipulations on fluid 
EDC V. BOEM 49

volume, constituents, and pressure. The eliminated 

alternatives relate in substance to only one of the alternatives 

that Plaintiffs and other commenters suggested the agencies 

consider.

We conclude that the agencies did not meet their 

obligation under NEPA to “give full and meaningful 

consideration to all reasonable alternatives.” Western 

Watersheds, 719 F.3d at 1050 (citation omitted). We first 

address the proposal to limit the number of treatments per 

year. The agencies contend that there was no need to 

consider such an alternative because they “already had one 

alternative that allowed zero treatments and another 

alternative that allowed up to five,” so an alternative that 

allowed “some number in between” would have been 

unnecessary. The agencies principally rely on Montana 

Wilderness Ass’n v. Connell, 725 F.3d 988, 1004 (9th Cir. 

2013), a case in which we determined that an agency did not 

need to consider a “middle ground” alternative between zero 

and six airstrips for a proposed action.

The district court found this argument persuasive, but the 

district court and the Defendants both mistakenly assumed 

that the proposed action in the EA was limited to five well 

stimulation treatments per year. In granting summary 

judgment to Defendants on the NEPA claims, the district 

court erroneously concluded that the EA “examined a 

proposal for allowing up to five WST approvals per year” so 

“there was no need for the agencies to consider imposing 

different limits on the number of WSTs” allowed per year. 

This relies upon a misreading of the EA.

Nowhere in the text of “Alternative 1: Proposed 

Action—Allow Use of WSTs” is there any limit on the 

number of well stimulation treatments imposed. The 

agencies argue that they use “a reasonable forecast of . . . up 
50 EDC V. BOEM

to five WST applications per year” to calculate potential 

impacts. In discussing the other “action alternatives” in the 

EA, the agencies note that these alternatives too are premised 

on—but not limited to—five well stimulation treatments per 

year “to analyze the potential impacts.”

The proposed action does not have a five treatments-peryear limit (nor do any of the actions, for that matter). Rather, 

the agencies used a five-per-year estimate to calculate 

environmental impacts. Commenters flagged that the EA 

does not actually limit the use of well stimulation treatments 

to five per year and that the agencies should revise their 

analysis in the final EA to account for the possibility that 

more well stimulation treatments will be used than they 

estimate. It was highly arbitrary for the agencies repeatedly 

to premise their finding of no significant impact on a limit of 

five well stimulation treatments per year, without in fact 

considering an alternative that imposed such a five-treatment 

limit.

The agencies have asserted in their briefing what they 

contend are persuasive reasons as to why the other 

alternatives proposed by commenters were not considered 

by the agencies. They contend that agencies can already 

access a website that gives them notice of well stimulation 

treatments. They also contend that they could not require the 

disclosure of fluid constituents because some of the 

chemicals are proprietary to the oil companies. These 

reasons fail because they are post-hoc rationalizations not 

contained in the Final EA. As such, we may not consider 

them, given the well-established principle that “an agency’s 

action must be upheld, if at all, on the basis articulated by 

the agency itself” rather than “appellate counsel’s post hoc 

rationalizations.” Or. Nat’l Desert Ass’n v. Bureau of Land 

Mgmt., 625 F.3d 1092, 1120 (9th Cir. 2010) (citations 
EDC V. BOEM 51

omitted); see also SEC v. Chenery Corp., 332 U.S. 194, 196 

(1947).

NEPA requires agencies to “give full and meaningful 

consideration” to all viable alternatives “in [the] 

environmental assessment”—not in appellate briefing after 

the fact. Western Watersheds, 719 F.3d at 1050 (citation 

omitted). We hold that the agencies violated NEPA by 

failing to consider a reasonable range of alternatives in the 

EA.

In summary, the agencies’ EA is inadequate both 

because the agencies failed to take the requisite “hard look” 

by relying on incorrect assumptions and also because the 

agencies did not consider a reasonable range of alternatives 

in the EA.

C.

The environmental groups also challenge the agencies’ 

decision not to prepare an EIS as a separate violation of 

NEPA. An EIS must be prepared if there are “substantial 

questions” regarding whether the agency’s proposed action 

may have significant impacts. Ocean Advocates v. U.S. 

Army Corps of Eng’rs, 402 F.3d 846, 864–65 (9th Cir. 

2005). In challenging an agency decision not to prepare an 

EIS, plaintiffs need not prove that significant environmental 

effects will occur; they need only raise a “substantial 

question” that they might. Id. This presents a “low 

standard” that is permissive for environmental challenge. 

Cal. Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 

1072, 1097 (9th Cir. 2011) (citation omitted). When 

challenged actions are novel, there is more need for an EIS. 

See Monsanto v. Geertson Seed Farms, 561 U.S. 139, 177 

(2010) (Stevens, J., dissenting) (noting that an EIS is 

especially important where the environmental threat is 
52 EDC V. BOEM

novel). If the agency does not prepare an EIS, it must submit 

a “convincing statement of reasons” to explain why the 

proposed action’s environmental impacts will not be 

significant. Ocean Advocates, 402 F.3d at 864 (citation 

omitted). Conclusory assertions about insignificant impacts 

will not suffice. Id. Here, the environmental impacts of 

extensive offshore fracking are largely unexplored, making 

it terra incognita for NEPA review. For this reason, among 

others, the important issues here warranted a full NEPA 

analysis in an EIS. We hold that the agencies acted 

arbitrarily and capriciously by not preparing an EIS, and by 

limiting their assessment to an EA that did not fully evaluate 

the environmental impacts of fracking.

The NEPA regulations in effect at the time the agencies 

issued the EA set forth criteria for the agencies to consider 

when determining whether an action will significantly affect 

the environment and consequently requires a full EIS. 

40 C.F.R. § 1508.27.5

 These regulations required an agency 

to consider “both context and intensity.” Id. Context refers 

to the setting and circumstances of the proposed action, 

including “society as a whole (human, national), the affected 

region, the affected interests, and the locality.” Id. 

§ 1508.27(a). Intensity “refers to the severity of impact” and 

requires analysis of ten specific factors. Id. § 1508.27(b). 

Meeting just one of these “significance factors” may be 

sufficient for us to require an agency to prepare an EIS, 

Ocean Advocates, 402 F.3d at 865, but here we find multiple 

factors met.

5 The NEPA regulations have been revised, 85 Fed. Reg. 43,304 

(July 16, 2020), but we look to the regulations in place at the time of the 

challenged decision. See, e.g., California v. Norton, 311 F.3d 1162, 

1167 n.2 (9th Cir. 2002).
EDC V. BOEM 53

1. Offshore well stimulation treatments may adversely 

affect endangered or threatened species

One significance factor is whether the action “may 

adversely affect an endangered or threatened species.” 

40 C.F.R. § 1508.27(b)(9). After the agencies issued the EA 

and FONSI and were sued because of the lack of 

consultation under the ESA, the agencies belatedly 

commenced consultations with the requisite wildlife 

agencies. In doing so, the agencies advised that they 

concluded that the western snowy plover, the California least 

tern, and the southern sea otter all were likely to be adversely 

affected by oil spills. This finding of adverse effects, 

especially after the EA was published, is prima facie

evidence that an EIS should have been prepared. And in 

responding to the agencies’ request for formal consultation, 

the Fish and Wildlife Service demanded additional 

information in order to address potential effects to other 

endangered species. This significance factor is readily met.

2. Well stimulation treatments in the Pacific Outer 

Continental Shelf would affect unique geographic 

areas

Another significance factor weighing in favor of an EIS 

is that the authorization of well stimulation treatments in this 

region affects unique geographic areas. 40 C.F.R. 

§ 1508.27(b)(3). The regulations require agencies to 

consider the existence of “[u]nique characteristics of the 

geographic area such as proximity to historic or cultural 

resources.” Id. The Santa Barbara Channel, where most of 

the offshore drilling on the Pacific Outer Continental Shelf 

takes place, is a unique area with proximity to “park lands 

. . . or ecologically critical areas.” Id. Many of its waters 

and islands have special designation, including the Channel 

Islands National Park and Marine Sanctuary. The amicus 
54 EDC V. BOEM

brief filed by Members of Congress refers to the area as the 

“Galapagos of North America” and notes that 25 endangered 

species are present in the channel on a seasonal or permanent 

basis.

In the Final EA, the agencies responded to concerns 

about the unique characteristics of the area by asserting that 

the platforms’ distance from the Channel Islands Marine 

Sanctuary would mitigate any effects to the area. But 

Plaintiffs contend that the entire Santa Barbara Channel 

region is a unique and globally important ecosystem: “Cool, 

subarctic waters converge with warmer, equatorial waters in 

the Channel, fostering a richness of marine and other 

wildlife, including blue, fin, humpback, minke, and killer 

whales, porpoises, dolphins, pinnipeds (seals and sea lions), 

the southern sea otter, and hundreds of species of birds, 

fishes, and invertebrates.” These species rely on the entire 

Channel, not just the Park and Sanctuary, for their survival 

and recovery. And the affected area also has “proximity to 

historic or cultural resources” including the submerged 

remains of the Chumash people. Congress expressly 

designated the Channel Islands National Park to protect 

important cultural resources, including “archaeological

evidence of substantial populations of Native Americans.” 

16 U.S.C. § 410ff(6). This significance factor satisfies the 

standard we apply to evaluate whether preparing an EIS is 

required.

3. The effects of offshore well stimulation treatments 

are highly uncertain and involve unknown risks

An EIS is also warranted when the possible effects of the 

proposed action are “highly uncertain or involve unique or 

unknown risks.” 40 C.F.R. § 1508.27(b)(5). The lack of 

data regarding the toxicity of well stimulation fluids, and the 

uncertainty this poses for evaluating the potential 
EDC V. BOEM 55

environmental effects of the proposed action, counsels us 

that an EIS should have been prepared. The agencies lack 

toxicity data for “31 of the 48 distinct chemicals” used in 

offshore well stimulation treatments. During the period for 

public comment on the agencies’ draft EA, scientists 

identified as a critical data gap the fact that “no studies have 

been conducted on the toxicity and impacts of well 

stimulation fluids discharged in federal waters.” They urged 

the agencies to conduct a full EIS due to the “many data gaps 

and uncertainties.” The regulatory body in California that 

supervises oil and gas development, the Division of Oil, Gas, 

and Geothermal Resources, also commented on the draft EA 

that “effects of discharging WST fluids on marine life are 

not fully understood due to the lack of toxicity data” and 

urged the agencies to conduct toxicity testing to address this 

gap.

An agency must prepare an EIS where uncertainty 

regarding the environmental effects of a proposed action 

may be resolved through further data collection. Nat’l Parks 

& Conserv. Ass’n v. Babbitt, 241 F.3d 722, 732 (9th Cir. 

2001), abrogated on other grounds by Monsanto, 561 U.S. 

139. In Babbitt, we held that the National Park Service 

needed to prepare an EIS before authorizing more cruise 

ships to enter Glacier Bay National Park because of the level 

of uncertainty posed by increased vessel traffic. 241 F.3d 

at 731–733. We concluded that the agency’s statement of

reasons for why the missing information could not be 

obtained was unconvincing, and we explained that an 

agency’s “lack of knowledge does not excuse the preparation 

of an EIS; rather it requires the [agency] to do the necessary 

work to obtain it.” Id. at 733.

In the final EA and FONSI, the agencies acknowledged 

the “unknown toxicity of WST fluid constituents” but 
56 EDC V. BOEM

concluded that the uncertainty is mitigated by several 

factors. First, the agencies assert that they know the toxicity 

values of many of the chemicals used in the treatments. 

Second, the chemicals will be diluted with seawater. Third, 

the agencies assert that they have no reason to believe that 

chemicals for which they have no toxicity data are likely to 

be more toxic than the chemicals for which they have 

toxicity data. Fourth, the agencies contend that historical 

discharges of water containing trace amounts of similar 

chemicals have been discharged into the ocean “for decades” 

and studies have not detected significant effects. The 

agencies also contend that it would be impossible to test the 

toxicity of every chemical used in well stimulation 

treatments against every potentially exposed species.

We are not persuaded that this reasoning is permissible 

as a basis to avoid preparing an EIS evaluating alternatives 

to introducing novel and toxic chemicals in the marine 

environments at risk here. That the well stimulation fluids 

will be diluted with seawater does not excuse the data gaps 

regarding the specific “effects of discharging WST fluids on 

marine life” nor the lack of data on the “chronic impacts of 

these chemicals” in seawater. The record reflects that some 

well stimulation treatment fluids have been tested on land, 

but this does not help us to assess the unknown effects of 

these fluids in a marine environment. That the agencies 

know the toxicity of some chemicals used in well stimulation 

treatments does not adequately respond to the concerns 

raised about the uncertainty of how these chemicals interact 

when mixed together, when interacting with subsurface 

minerals, or when coming into contact with surrounding 

formation rock. The regulations implementing NEPA 

require agencies to obtain missing information when it is 

“essential to a reasoned choice” and the costs of obtaining it 

are not “exorbitant.” 40 C.F.R. § 1502.22(a). The agencies 
EDC V. BOEM 57

have not provided convincing reasons for why these data 

gaps are not essential or could not be mitigated through 

further study. Nor did they consider, as discussed above, an 

alternative that allows offshore well stimulation treatments 

but requires testing to help fill in these data gaps. Guesswork 

by the agencies does not discharge their responsibilities 

under NEPA.

The importance of gathering more information about the 

toxicity of well stimulation treatment fluids is important here 

where the programmatic EA represents the first time the 

agencies have analyzed the environmental impacts of 

offshore well stimulation treatments. We can agree with the 

agencies that they need not test every chemical against every 

marine species. But Plaintiffs point to the lack of toxicity 

data not to suggest that the agencies must test every chemical 

but that the unknown risks posed by these chemicals warrant 

fuller review of the proposed action through an EIS. “No 

matter how thorough, an EA can never substitute for 

preparation of an EIS, if the proposed action could 

significantly affect the environment.” Anderson, 314 F.3d 

at 1023.

Defendants’ reliance on Salmon River Concerned

Citizens v. Robertson is unpersuasive. In Salmon River, we 

upheld the agency’s analysis of the effects of herbicide 

formulation when toxicity data was missing for some of the 

ingredients. 32 F.3d 1346, 1358–60 (9th Cir. 1994). An 

important point overlooked by Defendants, however, is that 

the agencies in that case had prepared an EIS and had taken 

steps to reduce uncertainty regarding the missing 

information. Id. at 1358 n.21. The lack of toxicity data in 

Salmon River and the preparation of an EIS in that case give 

more reason to believe that an EIS should have been 

prepared in this situation, where there is a lack of toxicity 
58 EDC V. BOEM

data and the effects of well stimulation fluids pose unknown 

risks. The record establishes that Plaintiffs have raised 

“substantial questions” relating to several significance 

factors about the effects of allowing well stimulation 

treatments offshore California.6

 We hold that the agencies 

violated NEPA by not providing an EIS on the effects of 

authorizing offshore well stimulation treatments.

D.

To summarize our discussion of the alleged NEPA 

violations, we are compelled to conclude that the agencies 

did not take the “hard look” mandated by NEPA. They 

relied on flawed assumptions in the EA that distorted and 

rendered irrational their finding of no significant impact. 

They did not give full and meaningful consideration to a 

reasonable range of alternatives. This failure to take the 

requisite “hard look” renders the EA inadequate under 

NEPA. The agencies also should have prepared a full EIS 

in light of the unknown risks posed by the well stimulation 

treatments and the significant data gaps that the agencies 

acknowledged. NEPA review cannot be used “as a 

subterfuge designed to rationalize a decision already made.” 

Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000). But 

that appears to be what happened here. The agencies, which 

had already ventured down the path of allowing well 

stimulation treatments without environmental review until 

they were sued by the environmental groups, did not give a 

meaningful assessment of reasonable alternatives, offered 

6 Having determined that several significance factors are present and 

an EIS is warranted, we need not reach Plaintiffs’ additional arguments 

that the impacts of offshore well stimulation treatments are highly 

controversial or that the agencies did not adequately analyze the 

cumulative impacts of allowing well stimulation treatments.
EDC V. BOEM 59

post-hoc rationalizations for their decision, and disregarded 

necessary caution when dealing with the unknown effects of 

well stimulation treatments and the data gaps associated with 

a program of regular fracking offshore California in order to 

increase production and extend well life.

We reverse the district court’s grant of summary 

judgment upholding the EA and hold that the agencies 

violated NEPA both because their EA was inadequate and 

also because they should have prepared an EIS. We vacate 

the inadequate EA, which is the presumptive remedy for 

agency action that violates the NEPA as reviewed through 

the APA. See All. for the Wild Rockies v. U.S. Forest Serv., 

907 F.3d 1105, 1121 (9th Cir. 2018). We remand to the 

district court with instructions to amend its injunction to 

prohibit the agencies from approving permits for well 

stimulation treatments until the agencies have issued an EIS 

and have fully and fairly evaluated all reasonable 

alternatives.

IV. ESA

The environmental groups also sued the agencies under 

the ESA, alleging that they violated the ESA’s consultation 

requirement. On this issue, the district court granted 

summary judgment to Plaintiffs, and Defendants appeal. We 

review this issue de novo. Grand Canyon Trust v. U.S. 

Bureau of Reclamation, 691 F.3d 1008, 1016 (9th Cir. 2012). 

The agencies’ sole argument in appealing the district court’s 

ESA ruling is that the ESA claim is not ripe. They argue that 

there was no “agency action” requiring consultation. The 

district court rejected this argument, as do we.

The fundamental purpose of the ESA is to conserve 

endangered and threatened species as well as their critical 

habitats. 16 U.S.C. § 1531(b). The ESA provides 
60 EDC V. BOEM

protections for listed species such as prohibiting 

unauthorized taking of the species, preserving necessary 

habitat for species’ survival, and, as pertinent here, requiring 

consultations with expert wildlife agencies about the risks to 

wildlife species from any proposed federal action. Section 

7(a)(2) of the ESA requires agencies to consult with expert 

wildlife agencies to ensure that any agency action “is not 

likely to jeopardize” any endangered or threatened species 

or result in the “adverse modification” of their habitats. Id. 

§ 1536(a)(2). The statute defines agency action as “any 

action authorized, funded, or carried out” by an agency. Id.; 

see also 50 C.F.R. § 402.02 (further defining agency action 

as “all activities or programs of any kind authorized, funded, 

or carried out, in whole or in part, by Federal agencies”). 

Depending on the species, the federal agency must consult 

with one of two expert wildlife agencies, the U.S. Fish and 

Wildlife Service or the National Marine Fisheries Service. 

The ESA’s implementing regulations require agencies to 

review proposed actions “at the earliest possible time.” 

50 C.F.R § 402.14(a).

The ESA provides for two types of consultation. 

Informal consultation is proper if the acting federal agency 

concludes that its action is not likely to adversely affect any 

species listed in the ESA. 50 C.F.R. § 402.13(a). If the 

wildlife expert agency concurs in writing, informal 

consultation is complete, and no further action is required 

under the ESA. Id. § 402.13(c). If, on the other hand, the 

acting agency concludes that its proposed action is likely to 

adversely affect any listed species, formal consultation is 

required. Id. § 402.14(a). In the case of formal consultation, 

the acting agency must first prepare a biological assessment, 

and then send a letter to the expert wildlife agency requesting 

formal consultation and providing information about the 

proposed action. Id. § 402.14(c). The expert wildlife agency 
EDC V. BOEM 61

will then prepare a biological opinion that determines 

whether the action is likely to cause “jeopardy” for a listed 

species or its critical habitat. 16 U.S.C. § 1536(b); 50 C.F.R. 

§§ 402.14(g), (h).

Here, the agencies did not engage in consultation before 

issuing the EA. In the final EA, they responded to comments 

expressing concern over the lack of ESA consultation, 

explaining that they believed consultation was unnecessary 

because the EA is a “decision support tool for future 

proposals” but does not approve any well stimulation 

treatments itself. After being sued over the lack of 

consultation, and a week before filing their motion to 

dismiss, the agencies initiated the ESA consultation process 

by sending biological assessments to the expert wildlife 

agencies. In the biological assessment sent to the National 

Marine Fisheries Service, BOEM and BSEE determined that 

no species would likely be adversely affected by the use of 

well stimulation treatments. The National Marine Fisheries 

Service concurred in the agencies’ no adverse effects 

determination, which concluded the ESA consultation 

process because no formal consultation was required. For 

species under the jurisdiction of the Fish and Wildlife 

Service, BOEM and BSEE determined that three species—

the western snowy plover, California least tern, and southern 

sea otter—were likely to be adversely affected by oil spills. 

The Fish and Wildlife Service requested more information 

before beginning formal consultation, which was required 

because of the agencies’ conclusion that three species were 

likely to be adversely affected.

The district court held that the ESA claim regarding the 

initial failure to consult with the National Marine Fisheries 

Services was cured, and consequently mooted, by 

completion of the consultation with that agency. But 
62 EDC V. BOEM

because the agencies had not completed consultation with 

the Fish and Wildlife Service, the district court held that this 

claim was not moot. BOEM and BSEE have advised us that 

consultation with the Fish and Wildlife Service is still 

ongoing, making this claim ripe for our review.

We use a two-step test to determine whether an action 

qualifies as a sufficient “agency action” under the ESA. 

First, relying on the text of the statute, which is always the 

appropriate starting place for analysis, Blue Lake Rancheria 

v. United States, 653 F.3d 1112, 1115 (9th Cir. 2011), we 

consider whether an agency “affirmatively authorized, 

funded, or carried out the underlying activity.” Karuk Tribe, 

681 F.3d at 1021. If this standard is met, we next determine 

whether the action was discretionary, in this context 

meaning that the agency had “some discretion to influence 

or change the activity for the benefit of a protected species.” 

Id.

The district court correctly held that by issuing the EA 

and FONSI for the proposed action of allowing well 

stimulation treatments offshore California, the agencies 

“affirmatively authorized” private companies to proceed 

with these treatments. In a case such as this where a mix of 

federal and private action is involved, Karuk Tribe instructs 

that there is agency action for ESA purposes if the agency 

made an “affirmative, discretionary decision about whether, 

or under what conditions, to allow private activity to 

proceed.” Id. at 1027. There, we held that the Forest Service 

violated the ESA by not consulting with wildlife agencies 

before approving four notices of intent to conduct mining 

activities within a national forest. Id. at 1022–27. The 

approval of the notices of intent “affirmatively decide[d] to 

allow the mining to proceed,” even though, like here, the 

private companies would still need to obtain subsequent 
EDC V. BOEM 63

federal permits before conducting the challenged activity. 

Id. at 1024. By issuing the EA and FONSI, and concluding 

that well stimulation treatments would have no significant 

impact, the agencies “affirmatively decide[d]” to allow the 

treatments to proceed. Id.

The second step of the Karuk Tribe test is also met 

because the agencies had “discretion to influence or change 

the activity for the benefit of a protected species.” Id. 

at 1021. This standard is met by agency action that itself 

does not directly authorize private activity but rather 

establishes criteria for future private activity and has an 

“ongoing and long-lasting effect.” Pacific Rivers Council v. 

Thomas, 30 F.3d 1050, 1053 (9th Cir. 1994); see also 

Washington Toxics Coal. v. EPA, 413 F.3d 1024, 1031–33 

(9th Cir. 2005), abrogated on other grounds as recognized 

in Cottonwood, 789 F.3d at 1089 (holding that the agency’s 

registration of pesticides triggered ESA consultation even 

though implementation of the pesticides might approve 

additional, later approvals). In Pacific Rivers, we rejected 

the Forest Service’s argument that the ESA did not apply to 

programmatic documents that themselves did not “mandate 

any action.” 30 F.3d at 1055. We disagreed, concluding that 

these programmatic documents constituted agency action 

because they “set forth criteria” that would influence future 

activities. Id.

The agencies argue that these cases do not apply here 

because the EA did not establish binding criteria for well 

stimulation treatment use. This argument is without merit. 

Throughout the EA, the agencies presented and dismissed 

alternative options that would have imposed restrictions 

affecting the oil companies’ subsequent applications. In 

other words, the agencies had “discretion to influence or 

change the activity for the benefit of a protected species.” 
64 EDC V. BOEM

Karuk Tribe, 681 F.3d at 1021. Choosing the alternative 

without any restrictions as their proposed action sets an 

unregulated and uncontrolled future direction for the use of 

well stimulation treatment. The agencies rejected 

Alternative 2, which set depth restrictions. They also 

rejected Alternative 3, which set discharge restrictions. The 

agencies implemented no restrictions whatsoever. The 

agencies should not enjoy insulation from ESA consultation 

for selecting the alternative without restriction. In substance, 

the agencies decided to let fracking proceed unregulated.

The programmatic analysis and approval of the use of 

offshore well stimulation treatments without restriction in 

the EA and FONSI meets our definition of “agency action.” 

The agencies make no other arguments about the merits of 

the ESA claims brought by the environmental groups. 

Concluding that the proposed action in the agencies’ EA and 

FONSI constitutes “agency action” under the ESA, we 

affirm the district court’s grant of summary judgment to the 

environmental groups on the ESA claims.

V. CZMA

We next turn to California’s CZMA claim. Congress 

enacted the CZMA to “preserve, protect, develop, and where 

possible, to restore or enhance, the resources of the Nation’s 

coastal zone for this and succeeding generations.” 16 U.S.C. 

§ 1452(1). When a “Federal agency activity” affects the 

coastal zone of a state, the CZMA requires the federal 

agency to review the proposed activity and determine 

whether it is consistent with the affected state’s coastal 

management program. Id. § 1456(c)(1)(A). California 

alleges that the agencies violated the CZMA because they 

did not conduct a consistency review to determine whether 

the use of offshore well stimulation treatments is consistent 

with California’s coastal management program. The 
EDC V. BOEM 65

agencies contend that the proposed action in the 

programmatic EA and FONSI is not a “Federal agency 

activity” and does not warrant CZMA consistency review 

because private companies would still have to obtain permit 

approval before performing well stimulation treatments.

Upon de novo review of this question of statutory 

interpretation, we agree with the district court that the 

agencies’ proposed action to allow well stimulation 

treatments in the Pacific Outer Continental Shelf qualifies as 

a “Federal agency activity” under § (c)(1) of the CZMA. We 

hold that the agencies violated the CZMA by failing to 

conduct the requisite consistency review with California’s 

coastal management program. Summary judgment was 

properly granted to California on the CZMA claims.

A.

Whenever a “Federal agency activity” may affect a 

state’s coastal zone, the CZMA requires review of the action 

to confirm that it is consistent with the affected state’s 

coastal management program. 16 U.S.C. § 1456. Not all 

consistency review under the CZMA is the same, however. 

If the federal agency takes the action itself, then § 1456(c)(1) 

of the CZMA requires the agency to “provide a consistency 

determination” to the designated state agency specifying 

whether the proposed action is consistent with the state’s 

coastal management program. But if the agency is not taking 

the action itself, and instead is approving a proposed plan or 

issuing a federal license or permit to an applicant, then 

§ 1456(c)(3) requires the applicant to conduct the 

consistency review and include a “consistency certification” 

in its application confirming that the proposed activity 

complies with the affected state’s coastal management 

program. Id. § 1456(c)(3). In other words, § (c)(1) review 

reaches activities where the federal agency is the “principal 
66 EDC V. BOEM

actor” while § (c)(3) review encompasses the “federally 

approved activities of third parties.” Sec’y of the Interior v. 

California, 464 U.S. 312, 332 (1984). If a proposed federal 

agency activity can be reviewed under § (c)(3), the CZMA 

specifically provides that it cannot be reviewed under 

§ (c)(1). 16 U.S.C. § 1456(c)(1)(A). Review under § (c)(1) 

and § (c)(3) is therefore mutually exclusive. California v. 

Norton, 311 F.3d 1162, 1170 (9th Cir. 2002).

Classification of a proposed activity under § (c)(1) or 

§ (c)(3) impacts more than who is required to conduct the 

consistency review. The speed of review also differs. 

Review of a “Federal agency activity” under § (c)(1) 

requires more than three months because the agency must 

complete the CZMA review process at least 90 days before 

giving final approval to the proposed activity. Id. 

§ 1456(c)(1)(C).7 By contrast, if a state does not respond to 

a private applicant’s consistency certification within three 

months, the state’s concurrence is “conclusively presumed” 

by statute. Id. § 1456(c)(3)(B)(ii). Review under § (c)(3) 

also allows the Secretary of Commerce to approve a 

proposed activity over a state’s objections that the activity is 

not consistent with its coastal management program. In this 

way, § (c)(3) review encourages oil and gas development by 

expediting the consistency review process and giving states 

less leverage to block proposed activities.

B.

We must first decide whether the proposed action in the 

programmatic EA and FONSI is a “Federal agency activity.” 

If it is a “Federal agency activity,” then we must then decide 

7 The agencies contend that this review could take years due to their 

resource limitations.
EDC V. BOEM 67

whether the action falls outside the scope of the permit and 

license review of § (c)(3). We answer both questions in the 

affirmative.

1. The proposed action is a “Federal agency activity”

The CZMA does not define “Federal agency activity,” 

but the implementing regulations do. The regulations 

broadly define “Federal agency activity” as encompassing 

“any functions performed by or on behalf of a Federal 

agency in the exercise of its statutory responsibilities.” 

15 C.F.R. § 930.31(a). The proposed action in the 

programmatic EA and FONSI—“Alternative 1: Proposed 

Action—Allow Use of WSTs”—readily meets this 

definition. Deciding whether, and under what 

circumstances, to allow certain drilling activities on the 

Pacific Outer Continental Shelf is a function performed by 

the agencies pursuant to their “statutory responsibilities” 

under the OCSLA to make oil and gas reserves in this region 

“available for expeditious and orderly development, subject 

to environmental safeguards, in a manner which is consistent 

with the maintenance of competition and other national 

needs.” 43 U.S.C. § 1332(3). And the agencies prepared the 

EA and FONSI as an “exercise of [their] statutory 

responsibilities” under NEPA, also satisfying the definition 

of “Federal agency activity” provided by the regulations. 

15 C.F.R. § 930.31(a).

The CZMA regulations further provide that “Federal 

agency activity” covers a “range of activities where a 

Federal agency makes a proposal for action initiating an 

activity or a series of activities when coastal effects are 

reasonably foreseeable,” such as a “plan that is used to direct 

future agency actions.” 15 C.F.R. § 930.31(a) (emphasis 

added). It would strain the English language for us to say 

that the “Proposed Action” in the programmatic EA is not a 
68 EDC V. BOEM

“proposal for action.” Id. And we are further convinced that 

the proposed action here is a plan that BSEE and BOEM will 

use to “direct future agency actions.” Id. The proposed 

action in the EA and FONSI is for the agencies to “approve 

the use of fracturing and non-fracturing WSTs” at all oil 

platforms on the Pacific Outer Continental Shelf if the 

treatments are “deemed compliant with performance 

standards identified in BSEE regulations.” This proposed 

action is a “plan that is used to direct future agency actions,” 

and meets the regulatory definition of a “Federal agency 

activity.” 15 C.F.R. § 930.31(a).

We reject the agencies and Intervenors’ contention that 

the programmatic EA is a “bare NEPA analysis” document 

divorced from any agency action. The district court 

correctly determined that the EA and its proposed action 

“reflects a plan for allowing WSTs” on the Pacific Outer 

Continental Shelf and “is not merely an abstract analytical 

document unmoored from any proposed action.” By 

concluding that the proposed action of allowing well 

stimulation treatments would not lead to significant 

environmental impacts, the agencies return to the premoratorium status quo of approving well stimulation 

treatments offshore California that existed prior to Plaintiffs’ 

FOIA requests and the ensuing litigation. As described 

supra in our discussion of the ESA claims, the agencies’ 

proposed action of allowing well stimulation treatments 

without restrictions on a programmatic level constitutes a 

plan that will shape and direct future agency activity in 

consideration of site-specific permits.

2. The proposed action falls outside the scope of § (c)(3) 

of the CZMA

After determining that the proposed action is a “Federal 

agency activity” under the CZMA, we must next decide 
EDC V. BOEM 69

whether it falls outside the scope of § (c)(3) of the CZMA, 

which covers applications for federal permits and licenses 

authorizing activities in the coastal zone. 16 U.S.C. 

§ 1456(c)(3)(A). This is because an action cannot be 

reviewed under § (c)(1) if it can be reviewed under § (c)(3) 

of the CZMA. Id. § 1456(c)(1)(A). Our decision in Norton

is instructive.

Norton involved the Department of the Interior’s 

decision to grant suspensions of oil leases off the coast of 

California to extend the lives of the leases and avoid their 

premature expiration. 311 F.3d at 1165. Like in this case,

California sued, seeking an injunction that would require the 

agencies to conduct CZMA consistency review under 

§ (c)(1) and to issue an EIS under NEPA. Id. at 1169. In 

explaining why § (c)(1) review applied to the lease 

suspensions in Norton, we provided a history of the CZMA, 

which we briefly repeat here.

In 1990, Congress specifically amended the CZMA to 

overturn the Supreme Court’s decision in Secretary of the 

Interior v. California, 464 U.S. 312 (1984). In Secretary of 

the Interior, the Court held that the original sales of leases to 

oil companies were not subject to consistency review 

because the activities specifically affecting the coastal zone 

would be reviewed later, under § (c)(3), when the oil 

companies submitted plans to the federal agencies for 

approval. Id. at 667–68. Amending the CZMA in 1990 to 

overturn Secretary of the Interior, Congress specifically 

provided that the sale of leases could be reviewable under 

§ (c)(1) of the CZMA even if site-specific activities 

conducted under those leases would be subsequently 

reviewed under § (c)(3). See H.R. Conf. Rep. No. 01-508 

at 970 (1990); H.R. Conf. Rep. No. 01-508 at 970 (1990); 
70 EDC V. BOEM

see also Norton, 311 F.3d at 1173 (discussing this legislative 

history).

In Norton, we interpreted Congress’s 1990 amendments 

to the CZMA as allowing duplicative review for actions of 

different scope and at different stages in oil production. We 

held that “section (c)(3) review will be available to 

California at the appropriate time for specific individual new 

and revised plans as they arise, and section (c)(1) review is 

available now for the broader effects implicated” by the 

agency action. 311 F.3d at 1174. We emphasized that the 

lease suspensions at issue in Norton “[had] never been 

reviewed by California,” and the agency decision 

“represent[ed] a significant decision to extend the life of oil 

exploration and production off of California’s coast, with all 

of the far reaching effects and perils that go along with 

offshore oil production.” Id. at 1173. We reject the attempts 

by the agencies and Intervenors to cabin Norton’s 

application to lease suspensions and find it on all fours with 

the facts of this case.

Like the agency action at issue in Norton, the proposed 

action of allowing well stimulation treatments without 

restriction in the Pacific Outer Continental Shelf “has never 

been reviewed by California” and is a “significant decision 

to extend the life of oil exploration and production” by 

allowing companies to access oil they could otherwise not 

obtain through conventional drilling methods. Id. As in 

Norton, we are not concerned about duplicative review 

because there is none: the agencies’ programmatic decision 

differs in scope and in stage from the agencies’ later 

decisions about specific permit applications.

And even though the agencies and Intervenors urge us to 

hold that the authorization of well stimulation treatments 

should be subject to the expedited consistency review of 
EDC V. BOEM 71

§ (c)(3) and not § (c)(1), they concede that permits for well 

stimulation treatment would not necessarily require review 

under § (c)(3). Further, the CZMA does not apply to 

development and production undertaken pursuant to an oil 

and gas lease that was issued prior to September 18, 1978, in 

an area in which oil or gas had been discovered prior to that 

date. See 43 U.S.C. § 1351(a)(1). In fact, Intervenor DCOR 

maintains that it is not required to file a Supplemental 

Development and Production Plan for its proposed use of 

well stimulation treatments because of this exemption. This 

means that well stimulation treatments very well could 

continue to evade environmental review, just as they did 

before this litigation. These facts underscore to us the need 

for programmatic-level consistency review to take place 

under § (c)(1) of the CZMA for the programmatic-level 

proposed action by the agencies to authorize offshore well 

stimulation treatments. Even if site-specific permits could, 

or would, be reviewed later pursuant to § (c)(3) of the 

CZMA, this does not change our interpretation of the statute 

or our decision in Norton. We hold that the agencies’ 

proposed action falls outside the scope of § (c)(3) review and 

is “Federal agency activity” requiring the agencies to 

conduct a consistency review pursuant to § (c)(1) of the 

CZMA. Section (c)(1) review must be available now for the 

“broader effects implicated” by the agencies’ proposed 

action. Norton, 311 F.3d at 1174.

It is important to keep in mind that in this sphere of the 

law, both the federal government and California have an 

important role to play to keep the coastline safe and 

prosperous. Indeed, management of the coastal zone is a 

paradigmatic example of complementary joint regulation by 

state and federal governments to advance important interests 

through our dual federalism system. See, e.g., Nat’l Fed’n 

of Indep. Bus. v. Sebelius, 567 U.S. 519, 630 (2012) 
72 EDC V. BOEM

(Ginsburg, J., concurring in part and dissenting in part) 

(“[T]he interests of federalism are better served when States 

retain a meaningful role in the implementation of a program 

of such importance.”); see also 16 U.S.C. § 1451(i) 

(discussing cooperation among federal, state, and local 

governments as the key to protection of the coastal zone).

VI. RELIEF

Intervenors Exxon and DCOR challenge the injunctive 

relief the district court awarded to remedy the ESA and 

CZMA violations, which enjoined the agencies from 

approving any permits allowing well stimulation treatments 

offshore California until the agencies completed 

consultation with the Fish and Wildlife Service and 

consistency review with California.

We review a district court’s decision to issue injunctive 

relief for an abuse of discretion. California v. Azar, 911 F.3d 

558, 568 (9th Cir. 2018). We first must determine, upon de 

novo review, whether the district court “identified the correct 

legal rule to apply.” Id. (citation omitted). If the district 

court applied the correct legal standard, we will reverse only 

if the district court’s application was “(1) illogical, 

(2) implausible, or (3) without support in inferences that may 

be drawn from the facts in the record.” Id. (citation omitted).

The district court applied the correct four-factor test for 

injunctive relief. Before issuing a permanent injunction, a 

district court must find that a plaintiff demonstrated:

(1) that it has suffered an irreparable injury; 

(2) that remedies available at law, such as 

monetary damages, are inadequate to 

compensate for that injury; (3) that, 

considering the balance of hardships between 
EDC V. BOEM 73

the plaintiff and defendant, a remedy in 

equity is warranted; and (4) that the public 

interest would not be disserved by a 

permanent injunction.

Monsanto, 561 U.S. at 156–57 (citation omitted). The 

district court identified this standard and found that Plaintiffs 

established all four factors in both the ESA and CZMA 

contexts. We cannot conclude that the district court’s 

application of this test was illogical, implausible, or without 

support from the record. Azar, 911 F.3d at 568. The 

injunction is narrowly tailored to remedy the agencies’ ESA 

and CZMA violation—prohibiting the agencies from 

approving permits allowing offshore well stimulation 

treatments until the consultation with the Fish and Wildlife 

Service and the consistency review with California have 

been completed.

Intervenors’ primary contention is that the district court 

presumed irreparable harm to Plaintiffs from the procedural 

violations of the ESA and CZMA. We agree with Exxon 

and DCOR that Monsanto makes clear that courts may not 

make such a presumption, but we do not agree that the 

district court did so here. As the district court points out in 

its order, the irreparable harm in this case extends beyond 

the mere procedural violation of the ESA and encompasses 

the issuance of permits that could lead to harm to endangered 

species or be inconsistent with California’s coastal zone 

management program. The district court recognized that a 

risk of irreparable harm is present here because the agencies 

“have made no clear commitment” to withhold the issuance 

of well stimulation permits pending the completion of 

consultation. We agree that the failure to consult with the 

wildlife agencies and conduct a consistency review with 
74 EDC V. BOEM

California “can no longer be cured” once drilling permits are 

issued.

The district court’s conclusion on irreparable harm is 

also supported by facts in the record and inferences that 

follow. The programmatic EA identifies harmful effects of 

well stimulation treatments on listed species, and the 

agencies’ Biological Assessment determined that three 

species were likely to be adversely affected. The 

environmental groups submitted declarations with their 

summary judgment briefs detailing how their members face 

imminent harm from the harm that well stimulation 

treatments pose to wildlife.

This potential harm to endangered species supports a 

finding of irreparable harm because “[o]nce a member of an 

endangered species has been injured, the task of preserving 

that species becomes all the more difficult.” Nat’l Wildlife 

Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803, 818 

(9th Cir. 2018) (citation omitted). Environmental injury, by 

its nature, “is often permanent or at least of long duration, 

i.e., irreparable.” Amoco Prod. Co. v. Vill. of Gambell, 

480 U.S. 531, 545 (1987). That the agencies might conduct 

ESA review on individual permits in the future does not 

affect our analysis. Site-specific review cannot cure a failure 

to consult at the programmatic level, and incremental-step 

consultation is inadequate to comply with the ESA. See 

Conner v. Burford, 848 F.3d 1441, 1455 (9th Cir. 1988). 

Were it otherwise, “a listed species could be gradually 

destroyed, so long as each step on the path to destruction is 

sufficiently modest.” Nat’l Wildlife Fed’n, 524 F.3d at 930.

It was reasonable for the district court to conclude that 

the agencies’ violations of the ESA and CZMA would result 

in irreparable harm if the agencies could approve well 

stimulation treatment permits before the protective 
EDC V. BOEM 75

environmental requirements of these statutes were followed. 

And the district court did not abuse its discretion in its 

analysis of the other three factors. The Supreme Court has 

recognized that injury to the environment “can seldom be 

adequately remedied by money damages and is often 

permanent.” Amoco, 480 U.S. at 545. Nor did the district 

court abuse its discretion in finding that the balance of 

hardships and the public interest favors injunctive relief. It 

determined that “any interest in proceeding forward” with 

well stimulation treatments is outweighed by the public 

interest in ensuring that the proposed action is reviewed for 

consistency with California’s coastal management plan and 

undergoes consultation with expert wildlife agencies. The 

ESA, as one of the most far-reaching environmental statutes, 

“did not seek to strike a balance between competing 

interests” but rather “singled out the prevention of species 

. . . as an overriding federal policy objective.” Lazarus, 

supra, at 73. The district court did not abuse its discretion 

by fashioning relief that advances this overriding federal 

policy objective. And upon DCOR’s motion for 

reconsideration, and after receiving full briefing on the 

Monsanto factors, the district court determined that DCOR’s 

“projection of tens of millions” of dollars in injuries were 

speculative and temporary. Because the oil “will still remain 

in the ground,” the district court reasonably concluded that 

DCOR’s lost profits will likely be delayed, not lost. And the 

district court doubted whether any claimed losses would 

even be attributed to the injunction it granted because DCOR 

did not submit the supplemental development and 

production plan the agencies requested in January 2017.

The district court’s findings on injunctive relief do not 

amount to an abuse of discretion. The district court applied 

the correct test and gave additional consideration to the 

Monsanto factors when considering the merits of DCOR’s 
76 EDC V. BOEM

motion for reconsideration.8 We affirm the injunctive relief 

previously fashioned by the district court and remand with 

instructions that the district court amend its injunction to 

enjoin the agencies from approving well stimulation 

treatment permits until the agencies issue a complete EIS, 

rather than the inadequate EA on which they had relied.

CONCLUSION

The district court had subject matter jurisdiction and 

properly held that Plaintiffs’ claims were ripe. We reverse 

the grant of summary judgment to Defendants on the NEPA 

claims, and we affirm the grant of summary judgment to 

Plaintiffs on the ESA and CZMA claims. We remand for 

further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND 

REMANDED.

8 DCOR also challenges the district court’s denial of its motion for 

reconsideration. In that motion, DCOR sought to have the district court 

amend the injunction to allow the agencies to consider DCOR’s two 

pending permits to conduct well stimulation treatments in the Pacific 

Outer Continental Shelf. We review for an abuse of discretion a district 

court’s decision to deny a motion to alter or amend a judgment. 

McQuillion v. Duncan, 342 F.3d 1012, 1014 (9th Cir. 2003). The district 

court did not abuse its discretion in determining that DCOR did not meet 

the standards articulated in Rule 59(e) or 60(b) for this exceptional type 

of relief.