United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2014 Decided March 6, 2015

No. 12-1431

CENTER FOR SUSTAINABLE ECONOMY,

PETITIONER

v.

SALLY JEWELL AND BUREAU OF OCEAN ENERGY 

MANAGEMENT,

RESPONDENTS

AMERICAN PETROLEUM INSTITUTE, ET AL.,

INTERVENORS

On Petition for Review of Final Decision 

of the United States Department of Interior

Michael A. Livermore argued the cause for petitioner. 

With him on the briefs was Steven Sugarman.

David C. Shilton, Attorney, U.S. Department of Justice, 

argued the cause for respondents. With him on the brief were 

Robert G. Dreher, Acting Assistant Attorney General, and 

John E. Arbab, Attorney.

Steven J. Rosenbaum, Bradley K. Ervin, Harry M. Ng, 

and Stacy R. Linden were on the brief for intervenors 

American Petroleum Institute, et al. in support of respondents. 
2

Before: GARLAND, Chief Judge, PILLARD, Circuit Judge, 

and SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.

Dissenting opinion filed by Circuit Judge SENTELLE.

PILLARD, Circuit Judge: The Outer Continental Shelf 

(OCS) of the United States is a vast underwater expanse

nearly equal in size to the Australian continent. Beginning a 

few miles from the U.S. coast, where states’ jurisdiction ends, 

the OCS extends roughly two hundred miles into the ocean to 

the seaward limit of the international-law jurisdiction of the 

United States.

1 Billions of barrels of oil and trillions of cubic 

feet of natural gas lie beneath the OCS.2 There is enough oil 

beneath the OCS to replace America’s oil imports for 30 years 

and enough natural gas to supply all of America’s households 

for more than 80 years.3 But drilling on the OCS can have 

 1 Federal law formally defines the OCS as the submerged lands, 

subsoil, and seabed lying between the seaward extent of a state’s

jurisdiction (between three and nine miles, depending on the state) 

and the seaward limits of the United States’ jurisdiction under 

international law (roughly 200 miles). See 43 U.S.C. § 1331(a); 

id. § 1301(a).

2 Marc Humphries, Cong. Research Serv., RL33493, Outer 

Continental Shelf: Debate Over Oil and Gas Leasing and Revenue 

Sharing 14 (2008).

3 See U.S. Energy Info. Admin., DOE/EIA-0383, Annual Energy 

Outlook 2012 with Projections to 2035 62 (June 2012) (predicting 

residential natural gas consumption will remain nearly 5 trillion 

cubic feet per year through 2035); id. at 131 (predicting the United 

States will continue to import 3-3.5 billion barrels of oil annually 

through 2035). The OCS is estimated to contain as much as 94.5 
3

potentially devastating effects on the environment. Concerns 

about the OCS’s ecological vulnerability and potential harm 

to coastal tourism led to moratoriums on OCS drilling in the 

Atlantic, the Pacific, parts of the Gulf of Mexico, and parts of 

Alaska for more than a quarter of a century, from 1982 until 

the moratoriums were partially lifted in 2009.

4

 In 2010, the 

disaster on the Deepwater Horizon oil rig on the OCS 

renewed debate about the safety of offshore drilling. BP was 

drilling in mile-deep water 52 miles from shore when the 

subsea well ruptured and caused an oil spill spreading over 

thousands of square miles, damaging local economies, 

sensitive coastlines, and valuable wildlife throughout the 

region.5 Multinational energy companies remain interested in 

offshore drilling on the OCS, and the Department of the 

Interior determined that additional leases for such drilling 

may be appropriate.

The Outer Continental Shelf Lands Act (OCSLA) created

a framework to facilitate the orderly and environmentally 

responsible exploration and extraction of oil and gas deposits 

on the OCS. It charges the Secretary of the Interior with 

preparing a program every five years containing a schedule of 

proposed leases for OCS resource exploration and 

development.6 In light of the potential benefits and costs of 

 

billion barrels of oil and 449 trillion cubic feet of natural gas. 

See Humphries, supra note 2, at 14.

4 See Humphries, supra note 2, at 2, 8-9.

5 Dep’t of Interior, Increased Safety Measures for Energy 

Development on the Outer Continental Shelf 1 (2010).

6 A leasing program consists of a schedule of proposed lease sales 

and related planning steps for those sales. See 43 U.S.C. § 1344(a). 

It serves as the template for the Government’s leasing of drilling 

rights on the OCS for the five-year period following its preparation. 

Drilling on the OCS requires a lease that is included in the 
4

OCS development, the Secretary’s program must balance 

competing economic, social, and environmental values in 

determining when and where to make leases available. Those 

obligations are set forth in Section 18 of OCSLA,

43 U.S.C. § 1344.

The Center for Sustainable Economy (CSE), an Oregonbased nonprofit organization working to “speed the transition 

to a sustainable economy,” Pet. Br. 23, challenges the 

Department of the Interior’s latest leasing program on the 

ground that the 2012-2017 leasing schedule fails to comply 

with the provisions of Section 18(a), which governs how

Interior is to balance competing economic, social, and 

environmental values, id. § 1344(a)(1), (3), quantify and 

assess environmental and ecological impact, 

id. § 1344(a)(2)(A), (H), and ensure an equitable distribution 

of benefits and costs between OCS regions and stakeholders, 

id. § 1344(a)(2)(B)-(G). CSE argues that Interior’s economic 

analysis violates OCSLA’s express terms by failing properly

to consider environmental and market effects that the agency 

is required to address at the planning stage, and arbitrarily and 

irrationally fails to quantify many of the Program’s costs and 

benefits. CSE also argues that, in preparing its Final 

Programmatic Environmental Impact Statement (“Final EIS”),

Interior violated the National Environmental Policy Act’s

(NEPA) procedural requirements by using a biased analytic 

methodology and providing inadequate opportunities for 

public comment at the Draft EIS stage.

Interior and Intervenor American Petroleum Institute 

(API) defend the Program as compliant with Section 18(a). 

They contend that, in opening up new areas of the OCS for 

 

approved leasing program, and the lease must contain provisions 

consistent with the approved program. See id. § 1344(d)(3).
5

leasing, the Program rationally and appropriately balances the

environmental, social, and economic values at stake. Interior 

and API also challenge CSE’s standing to petition this Court

for relief, and API further argues that CSE’s NEPA claims are 

unripe. Both argue that CSE failed to preserve at least some 

of its arguments by failing to raise them in its comments to 

the agency.

We deny CSE’s petition and conclude that: (1) CSE has 

associational standing to petition for review, (2) CSE’s NEPA 

claims are unripe, (3) two of CSE’s Program challenges are 

forfeited, and (4) CSE’s remaining challenges to Interior’s

adoption of the 2012-2017 leasing schedule fail on their 

merits.

I.

Congress enacted OCSLA in 1953 to authorize the 

Secretary of the Interior to administer exploration and 

development of the OCS’s mineral resources. Pub. L. No. 83-

212, 67 Stat. 462 (1953) (codified as amended at

43 U.S.C. § 1331 et seq.). The 1953 Act empowered the 

Secretary to grant leases, but it did not establish statutory 

standards or guidelines to govern the Secretary’s decisions. 

California v. Watt (“Watt I”), 668 F.2d 1290, 1295 (D.C. Cir. 

1981). A quarter of a century later, Congress amended 

OCSLA in response to growing concerns about the United 

States’ dependence on foreign energy sources and 

intensifying awareness of the need for environmental 

safeguards. The 1978 Amendment sought to promote 

“expedited exploration and development of the Outer 

Continental Shelf in order to achieve national economic and 

energy policy goals, assure national security, reduce 

dependence on foreign sources, and maintain a favorable 

balance of payments in world trade,” while also ensuring 
6

“protection of the human, marine, and coastal environments.” 

Pub. L. No. 95-372, 92 Stat. 629 (1978) codified at 

43 U.S.C. § 1802(1)-(2)).

7 The Amendment transformed 

OCSLA from “essentially a carte blanche delegation of 

authority to the Secretary of Interior,” Watt I, 668 F.2d at 

1295 (quoting H.R. Rep. No. 95-590, at 54 (1977) (Comm. 

Rep.)), into a statute with a “structure for every conceivable 

step to be taken” on the path to development of an OCS 

leasing site. Id. at 1297.

OCSLA now establishes both a procedural framework 

and a set of substantive requirements to govern how Interior

opens up areas of the OCS for resource development. 

See 43 U.S.C. §§ 1334, 1337; Ctr. for Biological Diversity v. 

U.S. Dep’t of Interior (“CBD”), 563 F.3d 466, 472 (D.C. Cir. 

2009). Procedurally, Interior must undertake a four-stage 

process before allowing development of an offshore well, 

with each stage more specific than the last and more attentive 

to the potential benefits and costs of a particular drilling 

project. See CBD, 563 F.3d at 473; Watt I, 668 F.2d at 1297. 

In the first stage—the most general—Interior prepares a fiveyear program of proposed lease sales across the whole OCS. 

43 U.S.C. § 1344. In the second stage, Interior issues leases

in accordance with the program. Id. § 1337(a). In the third 

stage, Interior reviews lessees’ exploration plans. Id. § 1340.

In the fourth stage, Interior and affected state and local 

governments review lessees’ development plans. Id. § 1351.

Rigorous substantive requirements accompany each 

procedural stage. Congress calls on Interior to strike an 

appropriate balance at each stage between local and national 

environmental, economic, and social needs. In reviewing a 

 7 See H.R. Rep. No. 95-590, at 53-57, 89 (1977) (Comm. Rep.).
7

lessee’s exploration plans at the third stage, for example, 

Interior must ensure that, among other things, such plans “will 

not be unduly harmful to aquatic life in the area, result in 

pollution, create hazardous or unsafe conditions, unreasonably 

interfere with other uses of the area, or disturb any site, 

structure, or object of historical or archeological 

significance.” Id. § 1340(g)(3). Similarly, in analyzing a 

lessee’s development plans at the fourth stage, Interior must

ensure, among other things, that such development will not 

“probably cause serious harm or damage . . . to the marine, 

coastal or human environments.” Id. § 1351(h)(1)(D)(i).

CSE challenges the first stage of the 2012-2017 Leasing 

Program: Interior’s preparation of a five-year schedule of 

proposed leases and related planning steps under Section 18 

of OCSLA. See id. § 1344. A program is required to

“indicat[e], as precisely as possible, the size, timing, and 

location of leasing activity . . . for the five-year period 

following its approval,” id. § 1344(a), and is to be prepared in 

a manner consistent with four principles set out in numbered 

paragraphs in Section 18(a). Briefly stated, those four 

principles are that Interior must: (1) account for all relevant 

“economic, social, and environmental values,” 

id. § 1344(a)(1); (2) use “existing” and “predictive” 

information to account for the interests of all relevant regions 

and stakeholders, id. § 1344(a)(2); (3) strike a “proper 

balance” between resource potential and environmental 

impact, id. § 1344(a)(3), and (4) assure that the Federal 
8

Government receives “fair market value for the lands leased 

and the rights conveyed,” id. § 1344(a)(4).8

 8 43 U.S.C. § 1344(a) specifically provides that:

[ . . .]

(1) Management of the outer Continental Shelf shall be 

conducted in a manner which considers economic, 

social, and environmental values of the renewable and 

nonrenewable resources contained in the outer 

Continental Shelf, and the potential impact of oil and 

gas exploration on other resource values of the outer 

Continental Shelf and the marine, coastal, and human 

environments.

(2) Timing and location of exploration, development, and 

production of oil and gas among the oil- and gasbearing physiographic regions of the outer Continental 

Shelf shall be based on a consideration of—

(A) existing information concerning the 

geographical, geological, and ecological 

characteristics of such regions;

(B) an equitable sharing of developmental benefits 

and environmental risks among the various 

regions;

(C) the location of such regions with respect to, 

and the relative needs of, regional and 

national energy markets;

(D) the location of such regions with respect to 

other uses of the sea and seabed, including 

fisheries, navigation, existing or proposed 
9

This first stage, involving approval of a leasing program,

carries enormous “practical and legal significance.” Watt I, 

668 F.2d at 1299. The key national decisions as to the size, 

timing, and location of OCS leasing—as well as the basic 

 

sealanes, potential sites of deepwater ports, 

and other anticipated uses of the resources and 

space of the outer Continental Shelf;

(E) the interest of potential oil and gas producers 

in the development of oil and gas resources as 

indicated by exploration or nomination;

(F) laws, goals, and policies of affected States 

which have been specifically identified by the 

Governors of such States as relevant matters 

for the Secretary’s consideration;

(G) the relative environmental sensitivity and 

marine productivity of different areas of the 

outer Continental Shelf; and

(H) relevant environmental and predictive 

information for different areas of the outer 

Continental Shelf.

(3) The Secretary shall select the timing and location of 

leasing, to the maximum extent practicable, so as to 

obtain a proper balance between the potential for 

environmental damage, the potential for the discovery 

of oil and gas, and the potential for adverse impact on 

the coastal zone.

(4) Leasing activities shall be conducted to assure receipt 

of fair market value for the lands leased and the rights 

conveyed by the Federal Government.
10

economic analyses and justifications for such decisions—are 

made at this first stage. See 43 U.S.C. § 1344(d)(3). The 

Program also creates important reliance interests. Federal, 

state, and local governments, and the companies that 

participate in national and international energy markets, form 

long-term plans on the basis of the leasing program. The 

leasing schedule is therefore “extremely important to the 

expeditious but orderly exploitation of OCS resources.”

Watt I, 668 F.2d at 1299.

At issue here is the 2012-2017 Program, the eighth fiveyear program Interior has prepared pursuant to the 1978 

Amendment. That Program includes 15 potential lease sales 

in six OCS planning areas: the Western and Central Gulf of 

Mexico, the portion of the Eastern Gulf of Mexico not 

currently under congressional moratorium, and the Chukchi 

Sea, Beaufort Sea, and Cook Inlet planning areas off the coast 

of Alaska. Twelve of the sales are planned for the Gulf of 

Mexico, and one sale each is planned for the three Alaskan

areas.

On October 26, 2012, CSE timely petitioned for review

of Interior’s approval of the 2012-2017 Program. This Court

has exclusive jurisdiction. See 43 U.S.C. § 1349(c)(1). Our 

analysis of the most recent Program is informed and guided 

by our four prior decisions regarding earlier leasing-program

challenges. See CBD, 563 F.3d 466 (challenging the 2007-

2012 Program); Natural Res. Def. Council, Inc. v. Hodel

(“Hodel”), 865 F.2d 288 (D.C. Cir. 1988) (challenging the 

1987-1992 Program); California v. Watt (“Watt II”), 712 F.2d 

584 (D.C. Cir. 1983) (challenging the 1982-1987 Program); 

Watt I, 668 F.2d 1290 (challenging the 1980-1985 Program).
11

II.

We must address standing and ripeness issues at the 

threshold. See, e.g., CBD, 563 F.3d at 475. Interior and API 

argue that CSE lacks standing to petition this Court, and API 

contends that CSE’s NEPA claims are unripe. For the reasons 

that follow, we hold that CSE has associational standing (also 

referred to as representational standing) to institute this 

petition, but that its NEPA claims are unripe.

A.

CSE has associational standing. An association has 

standing to bring suit on behalf of its members when: (1) “its 

members would otherwise have standing to sue in their own 

right;” (2) “the interests it seeks to protect are germane to the 

organization’s purpose;” and (3) “neither the claim asserted 

nor the relief requested requires the participation of individual 

members in the lawsuit.” Hunt v. Wash. State Apple Adver. 

Comm’n, 432 U.S. 333, 343 (1977).

At the threshold, CSE submitted with its opening brief a 

declaration of its President averring that CSE is (and has been 

since its founding) a membership organization, and 

declarations of two members describing their concrete 

interests and confirming that CSE speaks for them in this 

litigation. See Talberth 3d Decl. ¶¶ 3-6; Wilson 2d Decl.; 

Shavelson 2d Decl. Once we determine that CSE is an 

organization eligible to assert standing on behalf of its 

members, we must inquire whether CSE meets all three of the

Hunt requirements for associational standing.

First, we consider the standing of the members who came 

forward. An individual has Article III standing to sue when 

she can show: (1) she has suffered an “injury in fact” that is 

concrete and particularized, and actual or imminent rather 
12

than conjectural or hypothetical; (2) the injury is fairly 

traceable to the challenged action; and (3) it is likely, as 

opposed to merely speculative, that the injury will be 

redressed by a favorable decision. Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560-61 (1992). 

Two of CSE’s members, Diane Wilson and Bob 

Shavelson have standing to sue in their own right. Wilson is a 

commercial shrimper in the Gulf of Mexico who also makes 

significant recreational use of Gulf waters and coastlines. 

Wilson 2d Decl. ¶¶ 3-8, 19. Shavelson, an employee at an 

environmental nonprofit organization in south-central Alaska, 

makes significant recreational use of Cook Inlet and other 

Alaskan waters. Shavelson 2d Decl. ¶¶ 3-5. Their 

declarations state that their economic and aesthetic interests 

would be harmed by additional leasing in the Gulf of Mexico

and the Beaufort and Chukchi Seas off the Alaskan coast.

Wilson 2d Decl. ¶¶ 15-17, 22-23; Shavelson 2d Decl. ¶¶ 4-5, 

7-11. Those harms are not conjectural or hypothetical: both 

individuals plan to continue using those specific marine and 

coastal ecosystems for commercial and recreational purposes 

during the years covered by the Program. Wilson 2d Decl. ¶¶ 

3-4, 8, 16, 22, 24; Shavelson 2d Decl. ¶¶ 5, 9, 11. Wilson and 

Shavelson each also meet the requirements of causation and 

redressability. A leasing program that used incomplete 

economic analyses that failed rationally to account for 

leasing’s impact on the environment would harm their 

concrete economic and aesthetic interests, and their alleged 

harm would be redressed were we to invalidate the Program.

See CBD, 563 F.3d at 479. We are satisfied that CSE has at 

least two members with standing to sue in their own right.

Second, the interests CSE seeks to protect are germane to 

its purpose. The germaneness requirement mandates 

“pertinence between litigation subject and organizational 
13

purpose.” Humane Soc. of the United States v. Hodel, 840 

F.2d 45, 58 (D.C. Cir. 1988); see also id. at 56-57. 

Germaneness is required for “the modest yet important” 

purpose of “preventing litigious organizations from forcing 

the federal courts to resolve numerous issues as to which the 

organizations themselves enjoy little expertise and about 

which few of their members demonstrably care.” Id. at 57. 

CSE readily meets the germaneness requirement. CSE’s 

bylaws state that a purpose of the organization is “[t]o work 

through administrative and legal processes to promote public 

policies, plans, and programs that are grounded on 

ecologically sound and economically sustainable principles.”

CSE Bylaws Art. I, § 1. CSE advocates in favor of natural 

resource preservation by, among other things, urging decision 

makers to “incorporat[e] non-market goods and services in 

benefit-cost analyses performed for economic policy making 

and government decisions” and to adopt alternative metrics, 

such as the “Genuine Progress Indicator,” that better account 

for environmental externalities than do traditional measures of 

GNP. See Talberth 3d Decl. ¶ 6. 

CSE’s specific goal in this litigation—to ensure that new 

offshore leasing is authorized only if necessary, economically 

justified, and environmentally safe—is unquestionably 

pertinent to CSE’s core organizational mission of “speed[ing]

the transition to a sustainable economy” and “to a renewable 

energy platform.” Id. And achieving that goal would 

advance CSE members Wilson and Shavelson’s concrete 

interests in the preservation of marine and coastal wildlife and 

ecosystems. This is not a case in which an organization seeks 

to litigate an issue about which it has little expertise and does 

not much care. CSE’s specific expertise is in evaluating the 

environmental costs and benefits of pursuing various energy 

alternatives, with the objective of making sure that agencies’ 
14

decisions accurately and rationally assess those alternatives’ 

effects on natural resources. Id. ¶¶ 3, 6. 9

Third, neither the claim asserted nor the relief requested 

requires the participation of CSE’s members in the lawsuit.

Member participation is not required where a “suit raises a 

pure question of law” and neither the claims pursued nor the 

relief sought require the consideration of the individual 

circumstances of any aggrieved member of the organization.

See Int’l Union, United Auto., Aerospace & Agric. Implement 

Workers of Am. v. Brock, 477 U.S. 274, 287-88 (1986); see 

also Warth v. Seldin, 422 U.S. 490, 515 (1975). CSE’s 

petition turns entirely on whether Interior complied with its 

statutory obligations, and the relief it seeks is invalidation of 

agency action. Neither the claims nor the relief require the 

participation of CSE’s members.

Interior and API protest that CSE is not the kind of 

membership organization the Supreme Court identified in 

Hunt as capable of obtaining associational standing. They 

contend that CSE is a “think tank” with a “broadly defined 

mission” that “serves no discrete, stable group of persons with 

a definable set of common interests.” Resp. Br. 22-24 

(quoting Am. Legal Found. v. FCC, 808 F.2d 84, 90 (D.C. 

 9 Germaneness requires “pertinence between litigation subject and 

organizational purpose” not, as the dissent contends, germaneness 

of members’ injuries to organizational purpose. Humane Soc. of 

the United States v. Hodel, 840 F.2d at 58-59. The difference is a

significant one. The dissent correctly notes that “[a] book club 

could not assert associational standing to bring a tort action on 

behalf of one of its members bitten by a stranger’s dog.” 

Dissent at 4. But that is because the litigation subject (a dog bite) 

would not be pertinent to the organization’s purpose (reading and 

discussing books).
15

Cir. 1987)). As already noted, however, CSE has established 

that it is a traditional membership organization with a defined 

mission that serves a discrete, stable membership with a 

definable set of common interests. See Am. Legal Found., 

808 F.2d at 90; Brady Campaign to Prevent Gun Violence v.

Salazar, 612 F. Supp. 2d 1, 29 (D.D.C. 2009).

CSE’s bylaws, along with the declarations of CSE’s 

members and its President, adequately demonstrate that it is 

an organization eligible to assert associational standing. 

CSE’s mission is “to promote public policies, plans, and 

programs that are grounded on ecologically sound and 

economically sustainable principles” through “administrative 

and legal processes.” CSE Bylaws Art. I, § 1; see Talberth 3d 

Decl. ¶ 6; Wilson 2d Decl. ¶ 2; Shavelson 2d Decl. ¶ 2. CSE

is structured to serve the interests of its members: Formally, 

all of CSE’s current members are voting members entitled to 

elect its Board, no new voting members may join the 

organization unless approved by the present voting 

membership, and Board membership is limited to individuals 

who “have demonstrated a commitment to the mission and 

purposes of [CSE].” CSE Bylaws Art. IV, § 2; see id. Art. 

III, § 1; id. Art. IV, § 5; Talberth 4th Decl. ¶ 3; Talberth 3d 

Decl. ¶¶ 4-5. Functionally, CSE’s members and its President 

aver that they participate actively in CSE’s operations, and 

that CSE serves as a vehicle for the vindication of their 

interests. Talberth 3d Decl. ¶¶ 5-8; Wilson 2d Decl. ¶ 2; 

Shavelson 2d Decl. ¶ 2. In sum, CSE’s submissions suffice to 

establish that CSE is a traditional membership organization

with standing to challenge Interior’s OCS Leasing Program.

Our dissenting colleague contends that it is 

“inappropriate for the court to rely on [the petitioner’s] postargument submission” of its bylaws and other evidence 

regarding standing, Dissent at 2, maintaining that to do so is 
16

inconsistent with circuit rules. That is simply not the case. It 

is true that dissenting judges have repeatedly objected to such 

post-argument submissions, making many of the same 

arguments that our colleague makes today. See Americans for 

Safe Access v. Drug Enforcement Admin., 706 F.3d 438, 452-

56 (D.C. Cir. 2013) (Henderson, J., dissenting); Public 

Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 

1279, 1298-99 (D.C. Cir. 2007) (Sentelle, J., dissenting); Am. 

Library Ass’n v. FCC, 401 F.3d 489, 496-97 (D.C. Cir. 2005) 

(Sentelle, J., dissenting). At the same time, however, panel 

majorities have consistently rejected those arguments. See 

Americans for Safe Access, 706 F.3d at 444-45 (“The point 

here is simple: under the law of this circuit, the members of a 

panel retain discretion to seek supplemental submissions on 

standing to fulfill the obligation of the court to determine 

whether the requirements of Article III have been met. 

Circuit Rule 28(a)(7) does not preclude this, nor does the law 

of the circuit.”); Public Citizen, 489 F.3d at 1296 (“This Court 

‘retains the discretion to seek supplemental submissions from 

the parties if it decides that more information is necessary to 

determine whether petitioners, in fact, have standing.’” 

(quoting Am. Library Ass’n, 401 F.3d at 494)); see also, e.g., 

Am. Chemistry Council v. Dep’t of Transp., 468 F.3d 810, 815 

(D.C. Cir. 2006).

We believe it was appropriate to rely on the petitioner’s 

post-argument submission of its bylaws and other evidence 

regarding standing. As we said in Americans for Safe Access, 

“[i]f the parties reasonably, but mistakenly, believed that the 

initial filings before the court had sufficiently demonstrated 

standing, the court may—as it did here—request supplemental 

affidavits and briefing to determine whether the parties have 

met the requirements for standing.” 706 F.3d at 443 (citation 

omitted). That is also the situation in this case. Promptly in 

response to API’s motion to dismiss the petition for lack of 
17

standing, CSE submitted declarations of its President and two 

of its members. Those declarations describe CSE’s mission 

and bylaws, and set forth how CSE operates. CSE sought to 

use those declarations to establish that it is a traditional 

membership organization eligible to invoke associational 

standing under Hunt. See Talberth 3d Decl. ¶¶ 1-6; Wilson 2d 

Decl. ¶¶ 1-2; Shavelson 2d Decl. ¶¶ 1-2. At oral argument, 

the Court requested a copy of CSE’s bylaws to aid it in 

reaching a decision on the standing issue. Oral Arg. Rec. at 

3:25-6:25. CSE provided its bylaws to the Court shortly 

thereafter, and they, too, are a proper ground for our analysis 

here. This case thus presents a familiar mode of compliance 

with our rules: “Although Petitioner[] made a reasonable 

effort to satisfy the command of Circuit Rule 28(a)(7) in [its] 

opening [filing] by advancing evidence and arguments in 

support of standing, the court still had questions regarding 

whether the facts asserted by Petitioner[] were sufficient to 

satisfy the requirements of Article III standing. Therefore, the 

panel majority, adhering to well-established circuit law, 

requested supplemental [filings] after oral arguments. 

Nothing in the text of the rule bars the court from requesting 

such filings.” Americans for Safe Access, 706 F.3d at 444.

B.

CSE’s NEPA claims are unripe. Interior violated NEPA

in the Program’s Final EIS, CSE contends, by presenting a 

biased analysis of the so-called “no-action alternative” that 

undervalued OCS non-mineral resources in their natural and 

unaltered state. CSE sees a further NEPA violation insofar as 

Interior denied a meaningful opportunity for comment at the 

Draft EIS stage on Interior’s economic analyses, which CSE 

contends appeared for the first time when Interior 

simultaneously released the Final EIS and Final Economic 

Analysis Methodology, with “a wealth of new assumptions 
18

and conclusions,” after the opportunity for comment on the 

draft documents had closed. Pet. Br. 59.

As we recognized in CBD, “[i]n the context of multiplestage leasing programs . . . [the] obligation to fully comply 

with NEPA do[es] not mature until leases are issued,” because 

only at that point has there been an “irreversible and 

irretrievable commitment of resources.” 563 F.3d at 480 

(internal quotation marks omitted). Here, as in CBD, we 

confront a challenge to a multiple-stage program under which 

no lease sale has yet occurred and no irreversible and 

irretrievable commitment of resources has been made. As we 

reasoned in CBD, allowing NEPA challenges to be brought at 

this early stage, “when no rights have yet been implicated, or 

actions taken, would essentially create an additional 

procedural requirement for all agencies adopting any 

segmented program,” that “would impose too onerous an 

obligation, and would require an agency to divert too many of 

its resources at too early a stage in the decision-making 

process.” Id. at 480-81. A petitioner “suffer[s] little by 

having to wait until the leasing stage has commenced in order 

to receive the information it requires. In the meantime . . . no 

drilling will have occurred, and consequently, no harm will 

yet have occurred to the animals or their environment.” Id. at 

481. In light of our holding in CBD, CSE’s NEPA claims 

must be dismissed as unripe.

CSE and Interior argue, each for a different reason, that 

CSE’s NEPA challenges are ripe. Interior contends that

because “challenges to [Interior’s] cost-benefit analysis would 

not be cognizable at later stages of the OCS process,” they 

should be considered ripe now. Resp. Br. 52. Interior is 

incorrect. CSE will have an opportunity to raise its NEPA 

claims, including its cost-benefit claims, in response to 

specific lease sales. That holding is at least implicit in CBD
19

and Wyoming Outdoor Council v. U.S. Forest Service, 165 

F.3d 43, 49-50 (D.C. Cir. 1999), a case on which CBD

substantially relies. See CBD, 563 F.3d at 480 (explaining that 

Petitioners would merely “hav[e] to wait” to bring their 

claims); Wyo. Outdoor Council, 165 F.3d at 50 (holding that a

NEPA challenge was “premature” but not “preclude[d]”; once 

leases issued, the petitioner “was free to challenge the Forest 

Service’s NEPA compliance”).

CSE contends that its NEPA claims are ripe because in 

Hodel, one of our prior decisions regarding an early OCS 

five-year leasing program, we addressed the merits of the 

petitioners’ NEPA challenges. See 865 F.2d at 294-300. In 

Hodel, however, the ripeness of the petitioners’ NEPA claims

(as distinct from their OCSLA claims) was not raised, and the 

court did not address it. In contrast, in CBD, our most recent

decision addressing an OCS leasing program, we examined 

the ripeness issue in detail before concluding that petitioners’ 

NEPA claims were unripe. See CBD, 563 F.3d at 480-82. 

We do not set jurisdictional precedents sub silentio. See Ariz.

Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1448 

(2011). Because Hodel did not consider the potential 

unripeness of the NEPA claims at issue in that case, we 

follow CBD to conclude that CSE’s NEPA claims are unripe.

III.

CSE raises six distinct challenges to Interior’s adoption 

of the 2012-2017 Program. All six are grounded in the same 

basic claims: that Interior either violated the dictates of 

Section 18(a) of OCSLA, or failed rationally to strike an 

appropriate balance between environmental costs and national 

energy needs as required under the Administrative Procedure 

Act, or both. Two of those challenges are forfeited because 
20

they were not properly raised before the agency; the other 

four fail on their merits.

A.

Review of a five-year leasing program for compliance 

with OCSLA charts the typical contours of administrative 

review generally. We liberally defer to the agency’s findings 

of fact, upholding facts supported by substantial evidence; we 

review the agency’s policy judgments to ensure that they are 

neither arbitrary nor irrational; and we sustain the agency’s 

interpretation of its authorizing statute so long as we find it to 

be legally permissible. See CBD, 563 F.3d at 484; Hodel, 865 

F.2d at 300; Watt II, 712 F.2d at 590-91; Watt I, 668 F.2d at 

1300-03. Chevron’s two-step standard of review guides our 

deference to Interior’s interpretation of OCSLA. See Hodel, 

865 F.2d at 300 (citing Chevron, U.S.A., Inc. v. Natural Res. 

Def. Council, Inc., 467 U.S. 837, 842-45 (1984)).

B.

Two of CSE’s arguments were not preserved. OCSLA’s 

provision for judicial review states that “[s]pecific objections 

to the action of the Secretary shall be considered by the court 

only if the issues upon which such objections are based have 

been submitted to the Secretary during the administrative 

proceedings related to the actions involved.”

43 U.S.C. § 1349(c)(5). That provision embodies the general 

rule of administrative procedure that, “[t]o preserve a legal or 

factual argument, we require its proponent to have given the 

agency a ‘fair opportunity’ to entertain it in the administrative 

forum before raising it in the judicial one.” Nuclear Energy 

Inst., Inc. v. EPA, 373 F.3d 1251, 1290 (D.C. Cir. 2004)

(citation omitted); see also United States v. L.A. Tucker Truck 

Lines, Inc., 344 U.S. 33, 36-37 (1952).
21

1.

CSE argues that Interior violated Section 18(a)(3) by 

failing to quantify potential coastal and onshore impact from 

additional OCS leasing. See 43 U.S.C. § 1344(a)(3); see also 

id. § 1344(a)(1). CSE objects that Interior’s quantitative costbenefit analysis assumes that coastal and onshore impact of 

OCS leasing can be mitigated to zero through “permit[]-

related mitigation” at later program stages. J.A. 04675 

(Bureau of Ocean Energy Mgmt., U.S. Dep’t of the Interior,

BOEM 2012-025, Forecasting Environmental and Social 

Externalities Associated with OCS Oil & Gas Development: 

The Revised Offshore Environmental Cost Model 95 (June 

2012)). Assigning zero cost, CSE contends, is irrational and 

violates our precedents interpreting Section 18(a). See Hodel, 

865 F.2d at 311 (valuing wetlands lost to OCS-related 

infrastructure); Watt I, 668 F.2d at 1317 (explaining that 

“consideration of environmental damage” may not be 

“postponed or foregone” to a later program stage). CSE 

contends that zeroing out at the initial, program stage 

important costs related to OCS leasing defers their 

consideration until a later program stage, in violation of 

Section 18(a)(3). Interior responds that it “specifically

considered coastal and onshore impacts, including 

infrastructure issues”—albeit more qualitatively—“when 

performing the balancing required by Section 18(a)(3).”

Resp. Br. 34.

We do not determine the adequacy of Interior’s 

consideration, however, because CSE forfeited that claim. 

CSE failed to put Interior fairly on notice of the objection that 

its particular cost-benefit methodology inadequately 

quantified the coastal and onshore impact of additional OCS 

leasing. A footnote in CSE’s reply brief points to CSE’s own 

comment as grounds to find the issue preserved, but only two 
22

passages in that forty-page comment even obliquely refer to 

potential damage to ecosystems generally, and the feasibility 

of quantifying such costs. One passage asserts that Interior 

failed to account for the “benefits . . . generated by a diverse 

array of ecosystem services provided by marine and terrestrial 

ecosystems affected by OCS leasing activities” and that “the 

reduction in these ecosystem service benefits should be 

counted as a Program cost.” J.A. 4314 (Ctr. for Sustainable 

Econ., Net Public Benefits Analysis of the Proposed Outer 

Continental Shelf Oil & Gas Leasing Program 16 (Feb. 

2012)). The second passage notes that “[s]uch losses can, and 

have been[,] quantified with peer-reviewed methods available 

to [Interior],” and provides one such estimate. Id. at 4314-15.

Those snippets did not fairly raise CSE’s objection. Read 

in the light most favorable to CSE, they suggest that Interior 

should have quantitatively accounted for the harms to marine 

and terrestrial ecosystems in its estimates of Program costs, 

and that such costs can be quantified. The question in 

determining whether an issue was preserved, however, is not 

simply whether it was raised in some fashion, but whether it 

was raised with sufficient precision, clarity, and emphasis to 

give the agency a fair opportunity to address it. See, e.g., RI

Consumers’ Council v. Fed. Power Comm’n, 504 F.2d 203, 

212 (D.C. Cir. 1974). With the benefit of hindsight and

guided by petitioner’s briefing to the sentences on the specific 

pages where the issue was mentioned, we see a connection 

between the comment and the current objection. Interior did 

not have anything close to the kind of explanation we do now, 

however, nor the same opportunity to parse the record and 

decipher the claims arguably latent in only a few sentences. 

Even looking only at CSE’s own forty-page comment, it is 

hardly apparent in context that CSE was making what it now 

puts forward as an objection to the methodology by which 

Interior considered new leasing’s anticipated coastal and 
23

onshore impacts. Interior received 280,189 comments on the 

2012-2017 Program, some of them dense and lengthy. We 

cannot conclude on this record that CSE fairly raised the 

objection it now presses to Interior’s method of assessing 

OCS drilling’s coastal and onshore effects.

CSE does not attempt to explain how its two cited 

passages fairly raised its objections. When the government 

argues an issue is forfeited because it was not fairly raised, 

petitioners must explain why the issue was raised in a fashion 

sufficient to preserve it. Whether an objection is fairly raised 

depends on, among other things, the size of the record, the 

technical complexity of the subject, and the clarity of the 

objection. See, e.g., Nat’l Ass’n of Mfrs. v. U.S. Dep’t of 

Interior, 134 F.3d 1095, 1111 (D.C. Cir. 1998). As we have 

previously explained, “[t]he fact that, buried in hundreds of 

pages of technical comments . . . some mention is made [of an 

argument related to a claim brought on judicial review] . . . is 

insufficient to preserve the issue for review on appeal.” Id. 

Because CSE’s comment did not provide Interior a fair 

opportunity to address CSE’s challenge, the argument is not 

preserved for our review.

2.

CSE also claims that Interior’s cost-benefit analysis is 

flawed because it was based on “the irrational assumption that 

all OCS leases will be developed.” Pet. Br. 32. According to 

CSE, most leases are never developed or are substantially 

delayed in development. A cost-benefit analysis that predicts 

that every OCS lease granted under the 2012-2017 Program

will be developed, and developed promptly, would thus fail to 

account accurately for Interior’s experience with the leasing 

program. Any such assumption would, in CSE’s view,

significantly distort Interior’s assessment of the benefits of 
24

additional OCS leasing, and warrant vacating it as arbitrary 

and capricious.

That claim, too, was not preserved, because CSE has not 

identified anything in the administrative record that could be 

construed as fairly raising it before the agency. CSE 

concedes its own failure to raise the point, but contends in its 

reply brief that another organization publicly commented on 

it. See J.A. 4398 (Oceana Comment on the Draft 

Programmatic EIS for 2012-2017 Leasing Program, at 6). 

The comment CSE cites, however, did not address the 

adequacy of Interior’s cost-benefit analysis of projected lease 

development. It merely made the general point that no new 

leasing needed to be undertaken on the OCS for the next 

several years because lessees wanting to drill could instead 

develop inactive leases. See id. That comment does not even 

indirectly make the claim CSE now advances, and therefore 

did not give Interior a fair opportunity to address it. See, e.g.,

Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C. Cir. 2013) 

(explaining that “[w]e require the argument petitioner 

advances to be raised before the agency, not merely the same 

general legal issue” (internal quotation marks and brackets 

omitted)).

C.

CSE’s first preserved challenge to the Leasing Program is 

that Interior’s cost-benefit methodology for evaluating new 

leasing on the OCS is irrational and violates Section 18. CSE 

particularly critiques Interior’s evaluation of the costs of 

forgoing drilling, i.e., choosing a “no-leasing option,” in 

Alaska. We begin our review by describing the relevant 

aspects of Interior’s methodology. 

The OCS is divided into four regions (Alaska, Pacific, 

Gulf of Mexico, and Atlantic) and, within those regions, 26 
25

planning areas. Those regions and planning areas divide the 

OCS into discrete, though basically arbitrary, geographic 

sections. Pursuant to Section 18(a)(3), Interior conducts a 

cost-benefit analysis of offering each program area for 

drilling. Interior’s cost-benefit analysis compared 

environmental and social costs of proposed OCS leasing in 

each program area with environmental and social costs of not 

authorizing additional leases on the OCS for the duration of 

the 2012-2017 Leasing Program. The agency sought to 

quantify “environmental costs (ecology and air quality) and 

social costs (recreation, property values, subsistence harvests, 

and commercial fishing[)], in addition to costs from activities 

associated with exploration, development, production and 

transportation that might occur with new OCS production and 

its most likely replacement.” J.A. 1872-73 (emphasis added). 

Interior makes clear that it used the replacement-cost 

methodology that CSE challenges in considering whether to

propose additional OCS leasing: For each program area it 

considered, Interior determined that “the environmental and 

social costs of relying on substitute sources of energy are 

equal to or greater than the costs from producing area 

resources.” J.A. 1873.

Interior’s inclusion of replacement energy costs in its netcost analysis rests on the somewhat counterintuitive notion 

that not drilling for fossil fuels on the OCS would harm the 

environment. Interior’s premise is that, if the natural gas and 

oil obtainable from the OCS were not extracted, American

energy users would turn to other sources to meet their energy 

needs. There are, in other words, opportunity costs of 

decisions not to drill. Interior’s projected substitute sources 

for OCS oil and gas include renewable and alternative energy

sources, and reduced consumption. Interior also reasonably 

assumed, however, that the principal substitutes for forgone 

oil and gas from OCS leasing would be increased oil, natural 
26

gas (and some coal) extracted from onshore sites, and oil (and 

some gas) transported from overseas. Meeting national 

energy demands from those sources carries its own 

environmental risks and harms, distinct from the familiar risks 

associated with extraction from the OCS, which Interior 

determined should be taken into account in evaluating OCS 

leasing.

The dominant costs Interior attributed to obtaining energy 

from likely substitute fuel sources were air pollution from

increased onshore extraction, and air pollution and potential 

near-shore oil spills from increased reliance on tankers to 

import substitute fuel, as well as other social and 

environmental disturbances. Interior reasonably assumed that 

the onshore natural gas extraction that would substitute for 

forgone OCS natural gas would occur nearer to domestic 

population centers, and so intensify such populations’ 

pollution exposure. Similarly, Interior reasonably assumed 

that importation of substitute oil would increase tanker air

emissions and near-shore oil spills along United States coastal 

and port areas. Interior concluded that, per unit of production, 

potential pollution from extracting oil and gas from the OCS 

many miles off shore would have less adverse impact on 

human health and property values than potential pollution on 

or near shore, close to densely populated and coastal areas.

Interior reasonably chose an analytical approach that 

captured what it concluded are two significant elements of 

environmental and social assessment. First, in accounting for 

national costs of obtaining substitute energy, Interior assessed 

such projected costs wherever in the United States they were 

likely physically to occur; it did not restrict its assessment to 

costs that would be felt within an OCS Region or area’s 

geographic boundaries. Interior understood that the costs of 

forgoing leasing in favor of substitute sources—air pollution, 
27

oil spills, and other disturbances—do not necessarily fall in 

any OCS Project Region, but are often experienced onshore, 

near shore, or in OCS areas not under consideration for 

leasing. If leasing on the OCS in Alaska were forgone, for 

example, environmental disturbances from any substitute 

source—such as fracking in Appalachia, drilling in 

Oklahoma, or importing Venezuelan oil or Trinidadian natural 

gas via tanker—would not be experienced in Alaska, but in 

Appalachia, Oklahoma, or along the coastal regions and ports 

trafficked by tankers from the source countries.

Second, Interior attributed to each OCS planning area a 

proportionate share of the aggregate nationwide 

environmental and social costs that it calculated would arise

from forgoing exploitation of the energy in that OCS area. If 

Interior estimated that a particular program area could 

produce 25 percent of the natural gas under the leasing 

program as a whole, it assigned to that area, as costs of 

forgoing leasing, 25 percent of the total national 

environmental and social cost associated with forgoing all 

OCS gas leasing and instead obtaining substitutes. Interior’s 

approach thereby sought to attribute to each OCS area a 

proportionate share of the national environmental costs of 

obtaining elsewhere the energy that the economy would 

demand if energy were not made available under an expanded 

OCS leasing program. The core idea of that economic 

attribution is that, if extracting natural gas from the Alaskan 

OCS would cause less net social and environmental harm

nationwide than would obtaining natural gas from substitute 

sources, Interior’s cost-benefit analysis should favor leasing 

on the Alaskan OCS over forgoing it.

CSE argues that Interior’s attribution methodology is 

irrational and violates Section 18, which CSE reads to require

that Interior only attribute costs to OCS areas if they 
28

physically arise within those areas. CSE points to the 

statutory requirement that Interior assess the relative 

“developmental benefits and environmental risks among the 

various [OCS] regions,” 43 U.S.C. § 1344(a)(2)(B), as well as 

each OCS area’s “relative environmental sensitivity,” 

id. § 1344(a)(2)(G). According to CSE, Congress would not

have worded the statute that way unless it meant to require 

Interior to attribute to a particular OCS area only those 

environmental benefits and costs of forgoing exploration and

development that physically occur there.

Implicit in CSE’s position is that environmental effects 

that do not occur in any OCS area should be treated as 

irrelevant to Interior’s environmental calculus under OCSLA. 

For example, the costs of increased air pollution due to 

increased onshore natural gas extraction in the center of the 

country to substitute for forgone OCS drilling might not 

accrue within any OCS area and thus, under CSE’s 

methodology, would not be counted at all. CSE’s further 

implication is that inter-area comparisons should favor 

drilling in OCS areas that would be more harmed by resort to 

substitute sources, even if drilling in a different OCS area 

would equally reduce demand for the same substitute sources 

and their attendant harms, and would itself be less directly 

damaging.

CSE contends that limiting attribution of costs to the 

areas in which they physically occur would accurately 

recognize that forgoing new OCS production in Alaska is 

more socially and environmentally beneficial than forgoing 

production in the Gulf of Mexico. Looking at the Alaskan 

OCS areas, the benefits of forgoing leasing in the pristine 

Alaskan wilderness are significant, while its costs are, in 

CSE’s analysis, “miniscule compared to [the costs of forgoing 

leasing in] non-Alaskan OCS areas.” Pet. Br. 27. Alaska is 
29

lightly populated, relatively rural, far from major oil shipping 

lanes, and not rich in non-OCS fossil fuels, so any policy 

switch to substitute sources of oil and gas would be unlikely 

to involve environmentally harmful energy extraction or 

transportation in the Alaskan OCS areas. Social and 

environmental costs physically felt on the Alaskan OCS

would be quite low—rarely, if ever, outweighing the areaspecific benefits of forgoing drilling there. In contrast, the 

Gulf’s OCS Region contains major shipping routes and ports 

that would receive added traffic from increased reliance on 

imported fuel, so significant risks and accompanying costs of 

oil spills from importing substitute oil would be physically 

experienced in the Gulf. Air pollution from onshore drilling 

in Texas also could affect the Gulf’s OCS Region. Thus, if 

attributed only where they occur, such substitute-source costs 

would tend to offset the area-specific benefits of forgoing 

leasing in the Gulf. CSE’s approach accordingly favors 

drilling in those areas that also happen to be where costs of 

substitute energy sources would be concentrated. The relative 

benefits of forgoing drilling in Alaska thus appear much 

greater under CSE’s methodology than under Interior’s. 

Interior’s approach, however, was neither expressly 

proscribed by the statute nor unreasonable. As a statutory 

matter, under Chevron, (1) unless its view is contrary to 

Congress’s clear intent (2) we defer to an agency’s reasonable 

construction of its governing statute. 467 U.S. at 842-43. No 

clear congressional intent forecloses Interior’s construction of 

OCSLA. Section 18(a) requires consideration of the 

particular ecological characteristics and environmental 

sensitivities of the various program areas, but does not specify 
30

precisely how they must be considered. 43 U.S.C. §

1344(a)(2)(B), (G).10

Interior’s decision to tabulate costs nationally and 

allocate them proportionally was reasonable. Its national 

focus comports with Section 18(a)’s directive that the 

Secretary develop a leasing program “which [s]he determines 

will best meet national energy needs.” 43 U.S.C. § 1344(a).

It is also consistent with the statute’s broader statement of 

congressional purpose to treat “the [OCS] [a]s a vital national

resource reserve held by the Federal Government for the 

public, which should be made 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.” Id. § 1332(3). Those 

provisions, with their national focus, can reasonably be 

interpreted to support Interior’s understanding of Section 

18(a). Nothing in Section 18(a) requires CSE’s methodology 

over Interior’s.

As a policy matter, Interior made a reasonable and 

considered judgment to allocate national social and 

environmental costs of substitute energy to OCS program 

areas in proportion to their energy-producing potential. If 

Interior had instead chosen to recognize only those costs of 

forgone production (e.g., those associated with increased

imports) to the extent that they were physically experienced 

within the program area of the leasing under consideration, its 

analysis would have differed significantly. It could not have 

 10 We do not decide whether Section 18(a) would have permitted 

Interior, had it so chosen, to limit its substitute-energy cost 

considerations to OCS-harming costs, or whether, as CSE urges,

the agency might permissibly have attributed costs only to the 

particular OCS area in which they physically would occur.
31

accounted for costs of an OCS area’s no-lease option that 

would be felt outside that area, or outside the OCS. It would 

also have impeded Interior’s ability to make cost-benefit 

comparisons between potential leasing in different program 

areas. It would have favored new leasing in the Gulf over 

new leasing in Alaska, for example, without regard for how 

little oil the Gulf of Mexico’s OCS might contain, or how 

great might be the untapped energy potential of the Alaskan 

OCS.

Interior instead reasonably determined that the relative 

costs of leasing in various OCS program areas should take 

into account each area’s potential to minimize total national 

environmental impact. Its methodology recognizes that the

national social and environmental costs of substitute energy 

demanded by a no-lease option are largely unaffected by the 

location of the no-lease option; they are a function of the 

amount of energy extraction forgone, and can be avoided by 

drilling anywhere for a commensurate amount of energy. 

Interior recognizes that, if a methodology only takes account 

of the costs of substitute energy when those costs happen to 

fall within the OCS program area under consideration, the 

methodology will arbitrarily favor drilling there to avoid those 

costs—even though, separately considered, the costs of 

drilling itself might be lower elsewhere.

In sum, CSE’s proposed methodology would effectively 

prioritize the cleanliness of remote Alaskan wilderness areas, 

whereas Interior’s methodology also accounts for the 

harmfulness of onshore and near-shore pollution associated 

with substitute energy sources. Interior counts those costs 

wherever they occur within the United States, and attributes 

them to OCS areas in proportion to the area’s potential energy 

reserves. Doing so means that Interior counts as more costly 

pollution affecting densely populated areas that impinges 
32

more immediately on human health and welfare than pollution 

occurring far from most human life. Interior’s judgments may 

be debatable. Some, like CSE, may reasonably conclude they 

are not the best judgments. But they are legally permissible.

We hold that Interior’s decision to take a national 

perspective, and to attribute nationwide environmental and 

social costs to particular OCS areas in proportion to the 

amount of production expected from each area if leasing and 

production were allowed there, was both reasonable and 

consistent with Section 18(a) of OCSLA.

D.

CSE maintains that the economic analysis underlying the 

Program irrationally fails to track the proportion of OCS 

energy consumed by the American public. According to 

CSE, that failure means that Interior is not complying with the 

statutory mandate to develop OCS resources to meet “national 

energy needs.” 43 U.S.C. § 1344(a); See also 

id. § 1344(a)(2)(C) (requiring Interior to consider “the relative 

needs of [] regional and national energy markets”); 

id. § 1332(3) (“the [OCS] is a vital national resource” to be 

developed to meet “national needs”); id. § 1802(2)(A) (a

policy underlying OCSLA is “to meet the Nation’s energy 

needs”). In CSE’s view, any OCS energy sold in foreign 

markets cannot have been produced to meet America’s 

“national needs.” We reject that claim. Interior did not need 

to earmark where OCS fuel is finally consumed in order 

rationally to consider national energy needs. Interior’s 

analyses of energy markets were reasonable on the facts 

before it.

OSCLA does not mandate that Interior track what 

proportion of OCS-derived fuels are consumed in the United 

States. CSE equates the statutory mandate that Interior 
33

consider the nation’s “energy needs” with only one potential 

element of those needs: meeting current demand for domestic 

consumption of finished energy products. The Act’s mandate 

is not so confined. National energy needs may be addressed 

by Interior’s consideration of total energy production 

capacity, without regard to where the energy would ordinarily 

be consumed. Any capacity that is developed domestically 

helps to ensure that the United States has available domestic 

sources of fuel for domestic consumption as needed, for 

example, in the event of international conflict, natural 

disaster, unexpected foreign fuel shortages, or price volatility 

in international markets. See 43 U.S.C. § 1802(1) (listing 

“assur[ing] national security, reduc[ing] dependence on 

foreign sources, and maintain[ing] a favorable balance of 

payments in world trade” among OCSLA’s express 

purposes); see also J.A. 1849, 1853 (Bureau of Ocean Energy 

Mgmt., U.S. Dep’t of the Interior, Proposed Final Outer 

Continental Shelf Oil & Gas Leasing Program: 2012-2017

(June 2012)). OSCLA thus cannot be read, as CSE suggests, 

to require Interior to monitor the ultimate consumption point 

of OCS energy.

There is nothing irrational about Interior’s choice in 

developing the 2012-2017 Program not to earmark the point 

of consumption of OCS-derived energy. In considering the

impact of additional OCS leasing on domestic demand, 

Interior reasonably assessed additional leasing’s impact on

domestic and international fuel markets. Because oil and 

natural gas are fungible and traded on integrated global 

markets, it does not matter precisely where any particular 

barrel of oil or cubic foot of natural gas is consumed. A 

barrel of OCS fuel consumed abroad has a direct impact on

America’s domestic energy supply. If a barrel of Alaskan 

OCS-derived oil is consumed in northern Canada, freeing a

barrel of southern Canadian oil for import into the United 
34

States, the net effect on the United States’ domestic fuel 

supply is the same as if the Alaskan oil were consumed in the 

United States. For that reason, Interior does not need to label 

and follow OCS oil from platform to port to consumer in 

order to find that it helps to meet the United States’ national 

energy needs; it is enough for Interior to take into account 

OCS fuel’s impact on national and international energy 

markets. See 43 U.S.C. § 1344(a)(2)(C) (requiring Interior to 

consider “the relative needs of [] regional and national energy 

markets” in determining the location and timing of new OCS 

leasing).

In the 2012-2017 Program, for example, Interior took

careful account of future global and domestic oil and natural 

gas demand. Drawing on United States Energy Information 

Administration (“EIA”) forecasts, Interior projected out to 

2035 the demand for OCS fuel in national and international 

energy markets. J.A. 1848-62. Interior concluded that the 

United States would remain a net oil importer through 2035,

J.A. 1851, 1853, but may become a net exporter of natural gas 

as early as 2016, J.A. 1851-52, 1855. Interior also expects that 

global energy demand will increase over the next several 

decades, leading to upward price pressure as “economies such 

as those of China and India” increase their crude oil 

consumption. J.A. 1854. Higher global prices would hinder 

American consumers’ ability to meet their energy needs. OCS 

oil could help to mitigate those adverse price effects. Interior 

thus has rationally considered available projections of 

national energy needs.

CSE adds a wrinkle to its protest based on the fact that 

Interior only assessed the markets for unprocessed fuels, not 

markets for gasoline, diesel, and kerosene (“finished 

petroleum products”) that are refined from unprocessed OCS 

fuel. CSE contends that demand in markets for unprocessed 
35

fuels could reflect domestic refinery demand—i.e., demand 

for crude oil to be refined in the United States for 

consumption abroad—rather than demand for American

consumption. CSE claims that the market for unprocessed oil 

is a poor proxy for assessing the impact of additional OCS 

leasing on the nation’s “energy needs” because much of the 

energy derived from the OCS and temporarily “needed” in 

refineries here ends up exported as finished petroleum 

products consumed overseas. 

CSE’s point is well taken in general, but Interior’s 

reliance on data regarding unprocessed fuels was in this case 

reasonable. Interior’s decision not to account separately for

data on finished petroleum product markets did not

significantly affect its assessment of the nation’s “energy 

needs” and “energy markets,” 43 U.S.C. §§ 1344(a)(2)(C), 

1802(2)(A). The weight of the evidence is that American

crude oil demand will primarily reflect domestic demand for 

finished petroleum products over the next half century.

See U.S. Energy Info. Admin., DOE/EIA-0383, Annual 

Energy Outlook 2012 with Projections to 2035 131 (June 

2012) (“Appendix A”) (projecting that the United States will

consume ninety-eight percent of its “liquid fuels and other 

petroleum” through 2035) cross-cited at J.A. 1849. Interior is 

permitted, under Chevron, to use markets for crude oil and 

natural gas as proxies for the nation’s “energy markets” and 

“energy needs,” as long as doing so is reasonable. In light of 

the difficulty of predicting the behavior of energy markets 

over decades-long time horizons, we have long afforded 

Interior substantial latitude to attempt to predict long-term 

energy market demand. See Watt I, 668 F.2d at 1309. Given 

the latitude that Watt I affords, and the fact that the EIA 

estimates that the overwhelming majority of refined 

petroleum products will be consumed domestically over that 

time span, Interior’s 2012-2017 Leasing Program reasonably 
36

uses markets for crude oil and natural gas (domestic and 

international) as proxies for the nation’s energy needs.

11

Contrary to CSE’s contentions, Interior reasonably 

concluded that what matters in determining whether OCSderived fuel meets national needs is not whether the 

additional OCS fuel is consumed domestically, but whether it

helps to satisfy domestic needs for fuel security and net 

supply, both in the aggregate and over time. Interior’s 

consideration of the impact of OCS production on national 

energy needs was adequate without specific tracking of the 

final consumption point of finished OCS fuels.

E.

CSE argues that, in allowing new OCS leasing between 

2012 and 2017, Interior irrationally assumed that all of the 

 11 OCSLA does not make assessment of the impact of OCS leasing 

on markets for finished petroleum products mandatory under 

Chevron step one, but it also does not permit Interior to ignore 

those markets entirely. In CBD, we concluded that OCSLA was 

sufficiently ambiguous to permit Interior to forgo consideration of 

climate-related effects of burning OCS-derived fossil fuels, and to 

allow Interior to limit its consideration of the environmental impact 

of OCS leasing. 563 F.3d at 485. The statutory ambiguity in the 

words “energy markets,” 43 U.S.C. § 1344(a)(2)(C), and “energy 

needs,” id. § 1802(2)(A), is narrower. Interior is not required to 

map out the supply and demand in every downstream petroleum 

product market. Such markets and needs may be understood to 

encompass every type of energy and every type of energy market 

affected by OCS leasing, including markets for consumer fuels. 

The terms “energy markets” and “energy needs,” however, do 

mandate that Interior reasonably assess the impact of additional 

OCS leasing on the nation’s supply of energy when necessary, not 

just the effect on the national supply of unrefined fossil fuels.
37

energy produced by the new leases would be consumed 

domestically, thereby implying in its projections that any 

forgone OCS leasing would require a commensurate increase 

in either onshore domestic production or importation for 

domestic consumption. CSE contends that Interior failed to 

consider that the United States may soon become a net

exporter of fossil fuels. It therefore irrationally failed, in 

CSE’s view, to consider that forgone OCS production could 

merely lead to reduced fuel exports, with no need to increase 

imports or onshore excavation to meet domestic demand.

That claim, like the previous one, misapprehends 

Interior’s analysis. CSE’s contention that Interior irrationally 

assumed that all OCS-derived fuel would be consumed 

domestically is factually incorrect. In summarizing the results 

of its economic model in its Program and Economic Analysis 

Methodology, Interior recounted its predictions that forgoing 

additional leasing on the OCS would cause an increase in the 

use of substitute fuels such as renewables, coal, imported oil 

and natural gas, and a reduction in overall domestic energy 

consumption from greater efforts to conserve in the face of 

higher prices. J.A. 1859-60, 1976. Interior considered not 

only the potential need for substitute sources of fuel for the 

domestic market likely to result from deferral of additional 

OCS production, but also decreases in oil imports and natural 

gas exports. J.A. 4873 cited at J.A. 1859. As explained 

above, Interior sought to predict domestic and global energy 

demand over the life of the leasing program, see supra Part 

III.D, concluding that the United States would remain a net 

importer of oil through 2035, while shifting during the same 

period to net exportation of natural gas. J.A. 1851; 

See generally J.A. 1848-62. Interior predicted that net oil 

imports would increase to make up for the shortfall in 

domestic oil supply, J.A. 1857-59, and it specifically took 

account of reductions in natural gas exports, as well as 
38

sharply lower domestic natural gas demand due to substitution 

effects, in the event of no new OCS leasing, see J.A. 4873 

cited at J.A. 1859.

Because Interior carefully considered the impact that 

forgoing new OCS leasing would have on the nation’s energy 

needs, and did not ignore the possibility that the United States 

could become a net exporter of some fuels over the next half 

century, CSE’s challenge to Interior’s domestic-needs 

analysis lacks merit.

F.

CSE argues that Section 18 of OCSLA required Interior 

explicitly to quantify the “informational value,” also known 

as the “option value,” of delaying OCS leasing. Section 18

requires Interior to schedule the leasing of OCS mineral 

resources at the time that best meets national energy needs. 

See 43 U.S.C. § 1344(a). Interior could authorize new leasing 

this year, next year, or in fifty years. Every day that Interior 

waits has a cost insofar as valuable fuel that could be used 

today instead lies dormant. See Watt I, 668 F.2d at 1320. But 

waiting also has benefits, including what is referred to as

informational value. More is learned with the passage of 

time: Technology improves. Drilling becomes cheaper, safer, 

and less environmentally damaging. Better tanker technology 

renders oil tanker spills less likely and less damaging. The

true costs of tapping OCS energy resources are better 

understood as more becomes known about the damaging 

effects of fossil fuel pollutants. Development of energy 

efficiencies and renewable energy sources reduces the need to 

rely on fossil fuels. As safer techniques and more effective 

technologies continue to be developed, the costs associated 

with drilling decline. There is therefore a tangible present 

economic benefit to delaying the decision to drill for fossil 
39

fuels to preserve the opportunity to see what new technologies 

develop and what new information comes to light. 

Economists have crafted techniques for quantifying, in at least 

some situations, such informational value or option value of 

delaying decisions.

12

CSE builds its informational-value claim out of two 

principles articulated in Section 18 and our prior opinions.

First, Section 18 requires Interior to evaluate the advantages 

and disadvantages of delaying and forgoing leasing in 

determining when leases should issue. See 43 U.S.C. §

1344(a)(3), (a)(2)(H). Second, Interior must quantify costs 

when possible, especially where those costs are “not 

inherently insusceptible of quantitative analysis.” Watt I, 668 

F.2d at 1319. CSE contends that, because the informational 

value of delay is a relevant cost and it is susceptible of

quantification, Interior acted irrationally in failing to quantify

it.

We are not persuaded that the informational value of 

delay is yet so readily quantifiable that Interior acted 

unreasonably in choosing not to quantify it in this planning 

cycle. Rather than assign a specific dollar value in the 2012-

 12 The informational value of delay is also the option value of delay 

because an effectively irreversible decision that can be made at the 

time of an actor’s choosing is, in economic terms, a kind of option. 

Financial options—the right to buy or sell a security at a specified 

price within a set time—are the most familiar options, but any 

decision in which one of the available choices is “delay the 

decision” behaves like an option. Such options are sometimes 

called “real options” to distinguish them from financial options.

See, e.g., Robert E. Scott & George G. Triantis, Embedded Options 

and the Case Against Compensation in Contract Law, 104 Colum. 

L. Rev. 1428, 1460 (2004). 
40

2017 Program to delaying leasing on the OCS, Interior 

qualitatively considered the informational value of delay. In 

its evaluation of alternatives in the Programmatic EIS, for 

example, Interior considered whether to “[d]elay sales until 

further evaluation of oil spill response, drilling safety reform, 

and baseline environmental conditions [were] collected and 

analyzed,” “[d]efer deepwater leasing in the [Gulf of Mexico]

planning areas,” and “[d]evelop alternative/renewable energy 

sources as a complete or partial substitute for oil and gas 

leasing on the OCS.” J.A. 2147-48. The Proposed Final 

Program also described the process Interior is developing to 

“continue to use incoming scientific information and 

stakeholder feedback to proactively determine, in advance of 

any potential sale, which specific areas offer the greatest 

resource potential while minimizing potential conflicts with 

environmental and subsistence considerations.” J.A. 1755. In 

part on the basis of its qualitative assessment of the 

informational value of delay, Interior chose to postpone

leasing in the Chukchi and Beaufort Sea program areas until 

late in the Program to allow gathering of additional 

information. J.A. 1842.

CSE does not dispute that Interior qualitatively 

considered the informational value of delay; it argues that 

Interior’s failure to assess the informational value of delay 

quantitatively was irrational. We are persuaded, however, 

that the methodology for valuing the informational 

advantages of delaying offshore oil development is not 

sufficiently well established to render irrational Interior’s 

decision not to use it in the 2012-2017 Program. Our

decisions afford greater leeway to Interior to evaluate 

qualitatively costs that are difficult to quantify. See, e.g., 

Watt I, 668 F.2d at 1317-18. “Where existing methodology or 

research in a new area of regulation is deficient, the agency 

necessarily enjoys broad discretion to attempt to formulate a 
41

solution to the best of its ability on the basis of available 

information.” Watt II, 712 F.2d at 600 (quoting Watt I, 668 

F.2d at 1301 n.18). To that end, in making timing decisions,

Interior is generally “free to choose any methodology so long 

as it is not irrational.” CBD, 563 F.3d at 488 (internal 

quotation marks omitted).

CSE neither identifies in the record, nor itself puts 

forward, a methodology for pricing the informational value of 

delay in the context of offshore oil and gas leasing that is 

sufficiently established to render arbitrary or irrational

Interior’s decision to opt instead for a qualitative analysis.

When reviewing the rationality of Interior’s methodological 

selections, we have looked to, among other factors, whether 

the methodology has been “performed extensively in the 

past.” Watt II, 712 F.2d at 600. CSE acknowledges that there 

is no established practice of quantifying informational values 

stemming from environmental impacts in the petroleum 

industry, and that Interior has never before sought to 

undertake such an analysis. See Pet. R. Br. 23.

The difficulties in undertaking such a quantitative 

analysis are great. Pricing the value of delay would require 

Interior to make complex estimates of the pace and nature of 

likely future trends in the development of various 

technological and scientific fields affecting drilling, 

transportation, oceanography, and alternative energy. Interior 

would also be required to attempt to quantify the value of 

future, as-yet-unknown benefits and harms of OCS 

development, and the probability of countervailing 

developments that could enhance those benefits or mitigate 

those harms. Many difficult choices would need to be made 

and justified, and a “substantial amount of data” would need 

to be gathered. Michael A. Livermore, Patience Is an 

Economic Virtue: Real Options, Natural Resources, and 
42

Offshore Oil, 84 U. Colo. L. Rev. 581, 639 (2013). Even if

Interior had an adequate methodology in hand, it might 

rationally have viewed such an unprecedented analysis as

unduly time-consuming and error-prone. As we have 

explained in prior opinions, “the final decision as to how 

much analysis is necessary in view of the available data must 

be the agency’s, subject to judicial review only for obviously 

incorrect results or methodology.” Watt II, 712 F.2d at 600 

(quoting Watt I, 668 F.2d at 1317 n. 224); see also Hodel, 865 

F.2d at 309. So, too, here. Interior acted reasonably in 

employing qualitative, rather than quantitative, measures of 

the informational value of delay.

Our holding is a narrow one. In preparing a five-year 

program, the agency is not permitted to substitute qualitative 

assessments for well-established quantitative methods

whenever it deems such substitutions convenient. See Hodel, 

865 F.2d at 308-09. But Interior permissibly concluded that 

Section 18 does not require it to employ methods of costbenefit analysis at the “frontiers of scientific knowledge.”

See Watt II, 712 F.2d at 600 (quoting Watt I, 668 F.2d at 

1301). Had the path been well worn, it might have been 

irrational for Interior not to follow it. Under the 

circumstances it faced, Interior might permissibly have blazed

a new trail. It was not, however, required to do so. We 

therefore reject CSE’s argument that Interior acted irrationally 

in failing to quantify the informational value of delay. We are 

satisfied that Interior’s qualitative analysis of the benefits of 

delaying leasing was adequate, and that methods for 

quantifying the time value of delaying leasing on the OCS are 

not yet so well established that Interior was required to use 

them in developing the 2012-2017 Leasing Program.
43

* * *

For the foregoing reasons, we deny the petition for 

review.
SENTELLE, Senior Circuit Judge, dissenting: I respectfully

cannot join my colleagues’ opinion and judgment denying the

petition for review. I dissent, not because I disagree with my

colleagues’ reasoning, nor because I would sustain the petition. 

Rather, I would dismiss the petition for lack of standing. 

Therefore, I would not reach the merits of the case, and I express

no disagreement with my colleagues’ decision on the same.

As the majority rightly notes, we must address standing “at

the threshold.” Maj. Op. at 11 (citing Center for Biological

Diversity v. Dep’t of Interior, 563 F.3d 466, 475 (D.C. Cir.

2009)). “The party invoking federal jurisdiction,” in this case

petitioner, “bears the burden of establishing [standing].” Lujan

v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Petitioner,

Center for Sustainable Economy (CSE), has not borne that

burden. CSE asserts that it has associational standing. To

establish associational standing to bring an action on behalf of

its members, an association must bear its burden with respect to

three elements, showing that:

(1) its members would otherwise have standing to sue in

their own right;

(2) the interests it seeks to protect are germane to the

organization’s purpose; and

(3) neither the claim asserted nor the relief requested

requires the participation of individual members in the

lawsuit.

Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343

(1977). In its original filings, CSE failed to show even that it

was a membership organization of the sort recognized in

precedent as capable of asserting associational standing under

Hunt. It was only after oral argument that CSE, at this court’s
2

prompting, came forward to file its bylaws and other evidence

purporting to show its standing to bring this action. Intervenor

American Petroleum Institute objects that it would be

inappropriate for the court to rely on that post-argument

submission. I agree.

In 2002, this “court was compelled to remind all petitioners

of first principles, namely, they must assure us that they meet

Article III’s case or controversy requirement if their standing is

not ‘self evident’ from the record.” Americans for Safe Access

v. Drug Enforcement Admin., 706 F.3d 438, 452 (D.C. Cir.

2013) (Henderson, J., dissenting) (quoting Sierra Club v. EPA,

292 F.3d 895, 900 (D.C. Cir. 2002)). Lest there be any question

as to our own jurisdiction to create such a quasi-legislative rule

in an opinion as the one announced in Sierra Club, we thereafter

codified the mandate in D.C. Circuit Rule 28(a)(7):

In cases involving direct review in this court of

administrative actions, the brief of the appellant or

petitioner must set forth the basis for the claim of standing. 

This section, entitled “Standing,” must follow the summary

of argument and immediately precede the argument. When

the appellant’s or petitioner’s standing is not apparent from

the administrative record, the brief must include arguments

and evidence establishing the claim of standing. See Sierra

Club v. EPA, 292 F.3d 895, 900-01 (D.C. Cir. 2002). If the

evidence is lengthy, and not contained in the administrative

record, it may be presented in a separate addendum to the

brief. If it is bound with the brief, the addendum must be

separated from the body of the brief (and from any other

addendum) by a distinctly colored separation page. Any

addendum exceeding 40 pages must be bound separately

from the brief.
3

As Judge Henderson notes in her Americans for Safe Access

dissent, “our precedent and our rules seem to have been honored

more in the breach than in compliance,” 706 F.3d at 453, as we

have repeatedly been forgiving of the obligation imposed on but

unmet by litigants. See, e.g., Americans for Safe Access, supra;

Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489

F.3d 1279, 1297 (D.C. Cir. 2007); see also id. at 1297-99

(Sentelle, J., dissenting). 

I am particularly troubled by our departure from the rule in

the present case, because I am not convinced that petitioner has

established standing, even in the late-filed support.

As noted above, associational standing requires the

association to show that 

(1) its members would otherwise have standing to sue in

their own right;

(2) the interests it seeks to protect are germane to the

organization’s purpose; and

(3) neither the claim asserted nor the relief requested

requires the participation of individual members in the

lawsuit.

Maj. Op. at 11 (quoting Hunt, 432 U.S. at 343). It would appear

to me that the current claim of associational standing founders

on the relationship between the first and second elements. 

Petitioner asserts that two named members of the association

have established “that their economic and aesthetic interests

would be harmed by additional leasing in the Gulf of Mexico

and the Beaufort and Chukchi Seas off the Alaskan coast.” 

Petitioner claims germaneness on the basis of CSE’s purpose, as

stated in its bylaws, e.g., “‘[t]o work through administrative and
4

legal processes to promote public policies, plans, and programs

that are grounded on ecologically sound and economically

sustainable principles.’” Maj. Op. at 13 (quoting CSE Bylaws

Art. I, § 1). The majority may be correct that the members have

standing based on their aesthetic and economic interest, but

those are not the same interests claimed by petitioner in the

germaneness assertion. The purpose claimed by petitioner does

not represent the sort of interests which we normally hold

protected in standing analysis. Political and philosophical

interests are normally protected, if at all, by the political

branches, not the courts. See, e.g., Gettman v. Drug

Enforcement Admin., 290 F.3d 430, 433 (D.C. Cir. 2002) (“Mere

interest as an advocacy group is not enough [to establish

standing].”). It would seem to me self-evident that for the first

two elements to serve the function of establishing substitute

standing, an Article III jurisdictional requirement, they must

encompass the protection of the same interest. A book club

could not assert associational standing to bring a tort action on

behalf of one of its members bitten by a stranger’s dog. I

question whether even the late-filed material establishes the

standing element of jurisdiction.

Because I am unconvinced that standing was ever

established, I respectfully dissent.