F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

N A T I V E V I L L

A G E O F P O I

N T H O P E ; I N U P I A T C O M M

U N I T Y O F T H E A R

C T I C S L O P E ; A L

A S K A W I L D E R

N E S S L E A G U E ; C E N T E R F O R B I O L O G I C A L D I V E R S I T Y ; N A T I O N

A L A U D U B O N S O C I E T Y ; N A T U R

A L R E S O U R

C E S D E F E N S E C O U

N C I L ; N O R

T H E R N A L A S K A E N V I R O N M E N T A L C E

N T E R ; O C E A N A ; P A C I F I C E N

V I R O N M E N T ; R E S I S T I N G E N V I R O N M E N T A L D E S T R U C T I O N O N I

N D I G E N O U S L A N D S , A P R

O J E C T O F T H E I N D I G E N O U S E N

V I R O N M E N T A L N E T W O R K (REDOI L ); S I E R

R A C L U B ; T H E W I L D E R

N E S S S O C I E T Y ; W O R

L D W I L D L I F E F U

N D ; D E F E

N D E R S O F W I L D L I F E , Plaintiffs-Appellants

,

v

.

S A L L Y J E W E L L , Secretary

of the I nterior; B U R

E A U O F O C E A

N E N E R G Y M A N A G E M E N T ; T O M

M Y B E A U D R E A U , Director of the B ureau of Ocean Energ

y Manag ement, Defendants-Appellees

, N o. 12-35287

D.C. No. 1:08-cv-00004- RRB

OPI NI ONN A T I V E V I L L A G E O F P O I

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S H E L L G U L F O F M E X I C O , I N C .; C O N O C O P H I L L I P S C O M P A N Y ; S T A T E
O F A L A S K A ; S T A T O I L U SA E& P, I N C ., Intervenor-DefendantsA ppellees

.

A ppeal from the United States District Court

for the District of Alaska Ralph R. B eistline, Chief District J udg e, Presiding

Arg ued and Submitted March 5, 2013—Seattle, W a shing ton

F iled J anuary

22, 2014

B efore: F erdinand F . F ernandez , W illiam A. F letcher, and J ohnnie B . Rawlinson, Circuit J u d g es.

Opinion by J udg e W . F letcher; Partial Concurrence and P artial Dissent by J udg e RawlinsonN A T I V E V I L L A G E O F P O I

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SUMMARY *

Environm ental Law

The panel reversed the district court’s summary judg ment entered in favor of federal defendants in an action challeng ing the g overnment’s environmental impact statements analy z in g the environmental e ffects of proposed leases f o r o i l and g a s development in the Chukchi Sea off t h e northwest coast o f Alaska.

The p a n el held that the F inal Environmental I mpact S t a t e m e n t a n d S u p p l e m en t a l En v ironmental I m p a ct Statement prepared by the federal defendants prope r ly took
account of incomplete o r unavailable information. The panel held, however, that the reliance in the F inal E nvironme ntal I mpact Statement o n a o ne billion barrel estima t e o f total economically recoverable oil was arbitrary and c a p ricious. The panel remanded for further proceeding s.

J udg e Rawlinson concurred in part a nd dissented in part. J udg e Rawlinson ag reed with most of the majority o p i n i on, but she did not ag ree that the f ederal B u reau of O cean E n erg y Manag eme n t, Reg ulation and Enforcement acted arbitrarily in selecting one bi l l i o n b arrels of oil as the benchmark for analy z ing the environmental affects of the proposed leases.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.N A T I V E V I L L A G E O F P O I

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COUNSEL

Erik Clifford Grafe (arg ued), E a rthjustice, Anchorag e , Alaska; E ric Paul J org e nsen, Earthjustice, J uneau, Alaska, for Plaintiffs-Appellants.

David C. Shilton ( a r gued), United States Department o f J ustice, W ashing ton, D.C., for Defendants-Appellees.

K y le W

. Parker (arg

ued), Crowell & Moring L L P
, Anchorag e, Alaska; J effrey W a y ne L eppo and Ry an P. Steen, Stoel Rives, L L P, Seattle, W ashing ton; Ken D i e mer a nd R ebecca K

ruse, O ffice of Alaska Attorney General, Anchorage, Alaska; and J ames L eik, Perkins Coie L L P, Anchorag e, Alaska, for I

ntervenor-Defendants-Appellees.

OP INION

W

. F L ETCHER, Circuit J udg e:

The B ureau of Ocean Energ y Manag e ment ( “B OEM”) 1 o f the Department of the I

nterior has soug ht to lease “ex cellent prospects” for oil and g as development in the Chukchi Sea off the northwest coast of Alaska. The parcels available for lease

are cumulatively known as L ease Sale 1 9 3

. P u r suant to the National Environmental Policy Act (“NE P A”), B OEM prepared a F inal E n vironmental I mpact Statement (“F EI S”) analy z ing the environmental e ffects of the proposed leases.

1 Earlier in carn atio n s o f th e ag en cy h av e b een th e Min erals Man ag em en t Serv ice an d th e B u reau o f Ocean En erg y Man ag em en t, Reg u latio n an d En f o rcem en t. Fo r sim

p licity

, w e ref

er to th e ag en cy , in clu d i n g its earlier in carn atio n s , as B OEM.N A T I V E V I L L A G E O F P O I

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B OEM ba s e d i ts environmental analy sis on the assumption that if o il development actually occurs, o ne billion barrels o f oil will be economically

recoverable.

P l a i ntiffs arg ued in the district court that B OEM abu s e d its discretion by failing to account for e ssential m i s sing information in the F E I S. Plaintiffs also a rg ued that B O EM’s estimate o f one billion barrels is arbitra ry and capricious. They c ontended that the potential economically re c o v e rable oil from the lease sale is far hig h er than one billion barrels,

an d t h a t B OEM had not g iven an adequate ex p lanation for using its lower estimate. The district court init i al l y r ejected the F EI S for fail i n g to account for the missing information. After r emand, B OEM prepared a Supplemental EI S (“SEI S”) addressing the missing information. B a sed on the F EI S and SEI S, the district court g rant e d summary judg ment to defendants.

W e larg ely ag ree with the district cour t that the ag ency did n ot abuse its discretion in its analy sis of the missing information. However, we ag ree with plaintif f s that the
ag ency ’s estimate o f one billion barrels was chosen arbitrarily

, and that this a r b i t r ary decision meant that the
ag ency based its de cision on inadequate information a bout the amount of oil to be produced pursuant to the lease sale.

I . B ackg round

The Chukchi Sea is a southern arm of t h e A rctic Ocean between Alaska a

nd Russia. The Sea contains a wide variety of animals, including bowhead whales, polar bears, p acific walrus, seals, fish, and birds. Some of these animals provide subsistence for native I nupiat communities along the Alaskan

c oast. Some of the animals are listed under the Endang e r e dN A T I V E V I L L A G E O F P O I

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Species Act (“ESA”) as endange r e d o r threatened. F ive

e x p loratory w ells w ere drilled in the Sea between 1989 a n d 1991. They had “positive shows” but did no t l e a d to commercial production.

The Outer Continental Shelf L ands Act (“OCSL A”) prescribes four steps the f e d e ral g overnment must take in order to pursue offshore oil and g as devel o p ment: “‘(1) formulation of a five y

e ar leasing

plan b y the Department of the I n terior; ( 2) le a s e sales; (3) e x ploration by the lessees; [ and] (4) development and production.’” Edwardsen v. U .S. Dep’t o f the Inter i o r , 2 6 8 F .3d 781, 784 (9th Cir. 2 001) (quoting Sec’y of the I

nterior v. California

, 464 U.S. 312, 337 (1984)). A t the “lease sale” sta ge , the Secretary of the I nterio r selects the p arcels that will be offered for lease, accepts bids from parties, and collects funds f rom parties with winning bids. The Department of the I n t e r i or must r eview and approve specific ex ploration and dev e l o pment plans before winning bidders c a n “proceed wit h f

u l l ex ploration, development, or production” of oil o r g as. S e c ’y of the Interior
, 464 U.S. at 3 39. However, successful bidders have the rig ht to undertake “ancillary activit i e s ” in the field such

as g eolog ical and g eo p h y s i cal survey s and studies that “model potential oil and h az ardous substanc e s pills.” 30 C.F .R. § 550.207.

A. NEPA

NEPA “protect[ s] the environment by r e q u iring that f e d e r a l a g e n c i e s c a r e f u l l y w e i g h e n v i r o n m e n t a l considerations and consider potential alternatives to the proposed action before t h e g overnment launches any major f e d e r a l action.” Barnes v. U.S. Dep’t o f Transp.
, 655 F .3d 1124, 1 131 ( 9th Cir. 2 0 1 1 ) (internal quotation marksN A T I V E V I L L A G E O F P O I

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o m i t t e d )

. “ ‘ N E P A i m

p o s es procedural requirements desig ne d
to force ag encies to take a “hard look” at environmental consequences’” of major federal action. Id. (quoting Earth Island Inst. v. U.S. Forest Serv.
, 351 F

. 3d 1291, 1300 (9th Cir

. 2003)). The statute requires federal ag encies to “consider every sig nificant aspect of the environmental impact of a propose d a c t i on” and to “inform the public that [ they ] h a [ ve] indeed consid e r ed environmental concerns in [ their] decisionmaking process.” Balt. Gas & Ele c

. Co. v

. N a t u ral Res. Def. Council, Inc.
, 462 U.S. 87, 97 (19 8 3 ) (internal quotation marks omitted).

NEPA requir es that federal ag encies prepare an EI S for
any “major F ederal actions sig nificantly affecting the quality of the human environme n t .” 42 U.S.C. § 4332(2)(C). An
ag ency must consider:

(i) t he environmental impact of the proposed action,

(ii) any adverse environmental effects wh i ch
cannot be a v o i ded should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term

us e s o f m a n ’ s e n v i r o n m en t a n d t he maintenance and e n hancement of long -term productivity , and

(v) any irreversible a nd irretri e vable commitment s o f resources which would beN A T I V E V I L L A G E O F P O I

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involved in the propo s e d a c tion should it be implemented.

Id. A n ag ency must take i n t o a ccount all “reasonably foreseeable sig nificant adverse effects ” o f t h e proposed action in its analy sis of e nvironmental effects. 4 0 C.F .R. § 1502.22;

see also id. § 1508.7. NEPA also req u i r e s a n a g ency to analy z e missing and incomplete information. As we e x plain in g reater detail below, an ag e ncy must either obtain information that is “essentia l t o a reasoned choice a mong alternatives” or ex plain why such information was too costly or difficult to obtain. Id. § 1502.22.

An ag e nc y is required to comply with NEPA at v arious stag es of the oil and g as development process. An ag ency is
not required at the lease sale stage t o a n aly z e potential environ mental effects on a site-specific level of detail. N. Alaska E nvtl. Ctr. v

. Kempthorne

, 457 F .3d 969, 975–76 (9th Cir. 2006). To some deg ree, lease sale analy ses may be based on information that is uncertain or missing at the time of the sale when that information can be obtained at a “later stag e[ ] of the ex ploration process.” Tribal Vill. of Akutan v. Hodel

, 869 F .2d 1185, 1192 (9th Cir. 1 9 8 8 )

. At the same time, the
ag ency cannot shirk its responsibility to “ c o n s i der[ ] all f o reseeable direct and indirect impacts” of the proposed action in its EI S. N. Alaska En vt l

. Ctr.
, 457 F .3d a t 975 (internal q

uotation marks o mitted). The ag enc y a l s o must “discuss[ ]

. . . adverse impa c t s ” without “improperly minimiz [ ing ] neg ative side effects.” Id.

B . L ease Sale 193

After completing a five-y ear leasing plan for the Chukchi Sea, B O EM decided to offer a larg e portion of the Sea for oilN A T I V E V I L L A G E O F P O I

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and g a s leasing

. The F E I S analy z e d four alternatives for the lease sale: ( 1) a 34-million acre proposed lease option covering 6,156 blocks of the Chukchi Sea; (2) a n o

- l ease

o p t ion; (3) a proposed lease option ex cluding 1,765 bl o c k s

ex tending a long a corridor about 6 0 miles from the Al a s k an coast; and (4) a propo s ed lease option ex cluding 795 b locks

ex tending along a corridor between 25 and 50 miles from the Alaskan coast.

The N ational Marine F isheries Service r ecommended that the Secretary of the I nterior select the third alternative, under which development would be farther from the coast, based on its c o n c l u sion that numerous endang ered and threatened species livi n g c l ose to shore would be a dversely affected b y oil development. The Secre t a r y o f the I nterior accepted B OEM’s recommendation and selected the fourth alternative, under which development would be closer to the coast.

The lease sale occurred on F ebruary 6, 2008. The federal
g overnment collected over $2.6 billion from the w i n n ing bidders. A t the time of the lease sale, t h e r e were no active leases in the Sea.

C. Procedural History

Plaintiffs filed suit, alleg ing seven deficie n ci e s in the F EI S:

1. [ The FE I S ] does not a dequately analy z e and present the impacts of L ease Sale 193 on the environment and human communities;

2. [I t] f ails to include e s sential missing information about the C hukchi Sea and theN A T I V E V I L L A G E O F P O I

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potential impacts of the lease sale, or ex plain why ex cluding this information is justified;

3

. [ I t] fails to adequately analy z e the impa ct

o f the lease sale in the contex t of a warm i n g climate;

4. [ I t] understates the potential impacts of oil and g as development pursuant to the leases b y analy z ing a limited development scenario;

5. [ I t] understates the risks of an oil spill;

6. [ I t] fails to fully analy z e the cumulative i m pacts to threatened eiders of the lease sal e

an d other oil and g as development in threatened eiders’ Arctic habitat; and

7. [ I t] provides a misleading analy sis of the effects of seismic survey

ing

. The parties cross-moved for summary judg ment.

The district court ag reed with defendants that much o f the F EI S complied with NEPA, including the F EI S’s assumption that there would be on e b illion b arrels of economically recoverable oil. However, t h e c o urt concluded that the F E I S ’ s a n a ly sis was flawed in three respects: it “ failed to

a n a l y ze t he environmental impact of natural g as developme n t , despite industry interest and specific lease incentives for such dev e l o p ment”; it “failed to determine whether missing information identified by the ag ency was relevant o r essential under 40 C.F

. R § 1502.22”; and it “fa i l e d t o determine whether the cost of obtaining the missing information w a sN A T I V E V I L L A G E O F P O I

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ex o rbitant, or the means of doing so unknown.” The district
court g ranted in part plaintiffs ’ m otion for summary judg ment, issued a limited injunction, and r e manded to B OEM for further proceeding s.

After remand from the district court, B OEM prepared an SEI S. The SEI S a

n aly z ed the consequences of natural g a s

ex p loration and production. I n the aftermath of the Deepwater Horiz o n oil spill in t h e Gulf Coast, it also analy z ed the environmental impacts of a very larg e oil s pill. F inally

, B OEM prepared an a ppendix analy

z ing “whether the information g aps that were identified in the S a l e 1 9 3 F E I S

were relevant and necessary to evaluate reasona b l y foreseeable sig nificant adverse effects.” B ased on the F EI S,

now supplemented by th e S E I S, the Secretary of I nterior
ag ain chose the fourth alternative for oil and g as leasing

.

B a sed on the F EI S and SEI S, the district court g ranted B OEM’s moti o n for summary judg ment. The court f ound that “B OEM has identified missing or in c o m p l e t e i n f o rmation and has adequately evaluated it in a manner that is clearly sufficient at this stag e of the d e v e l o pment process to satisfy the requirements of 4 0 C.F .R. § 1502.22.” T h e c o u rt g ave “considerable deference

. . . to B OEM’s ex pertise.” Plaintiffs timely appealed.

I I . Standard of Review

Our r eview of an EI S is g overned by the Administrative Procedure Act (“APA”). “Under the APA, we may set aside

an age n c y decision if it is ‘arbitrary

, capricious, an abuse o f discretion, or otherwise not in accordance with law.’” Native Ecosystems Council v

. U.S. Forest Serv.
, 428 F .3d 1233, 1238 (9th Cir. 2005) (quoting 5 U .S.C. § 7 06(2)(A)). “ReviewN A T I V E V I L L A G E O F P O I

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under the arbitrary and capricious standard is narrow, and we do not substitute our judg ment for that of the a g ency .” Lands Council v. M

cNair ( Lands Council II

), 537 F .3d 9 81, 987 (9th Cir. 2008) (en banc) ( a lterations and internal quotation marks omitted). However, an a g ency ’s decision can be set aside if:

the ag ency

relied on factors Cong

ress did not intend it to consider, ent i rely failed to consider an impor t a n t aspect of the p roblem,

or o ffered an ex

planation that r

uns counter to the evidence be f

o r e the ag ency or is so implausible that it co u l d not be a scribed to a difference in vi e w or the product of ag ency

ex p ertise.

Id. (internal quotation marks omitted). Such actions w ould be “clear e rror[ s] of judg ment that would render [ the ag ency ’s] action arbitrary and capricious.” I d. a t 993 (internal quotation marks omitted).

W e “may affirm a summary judg ment only if, viewing the evidence in the lig ht most favorable to t h e party ag ainst whom it is g ranted, we find no g enuine issue of material fact, and w e find that the p r e v a i l i n g party is clearly entitled to judg ment as a matter of l a w

. ” California v. W att , 683 F .2d 1253, 1258 (9th Cir. 1982), rev’d on other grounds sub nom. Sec’y of the Interior v. California , 464 U.S. 312 (1984).

I I I

. Discussion

On appeal, p l a intiffs a rg u e that B OEM abused its discretion in two respects. F irst, they arg ue that “esse ntial” information is missing from the F EI S and SEI S, in violation of 40 C.F .R. § 1502.22. Second, they arg ue that the F EI S a ndN A T I V E V I L L A G E O F P O I

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SEI S underestimate the a dverse environmental impact of the lease sale because they use an u nrealistically low estimate o f the economically re co verable oil. W e disag r ee with plaintiffs’ first arg u m ent, but ag ree with their second
arg ument.

A . Essential I nformation

An ag ency ’s oblig a tion with respect to incomplete o r unavailable information is spelled out in 40 C.F .R. § 1502.22. The ag ency “shall alway s make clear that

. . . in formation is lacking .” Id. I f the missing information is “relevant to reasonably foreseeable sig nificant a dverse im p a c t s” and is “essential to a reasoned choice among altern a t i v e s and the overall costs of o bta i n i ng it are not ex orbitant,” the ag ency

mu s t i n c l ude that information in the EI S. Id. § 1502.22(a). I f the missing information “cannot be obt a i n e d because the overall costs o f obtaining it are ex orbitant or the m eans to

o b t a i n it are not known,” the ag ency must include the following in the EI S: (1) a statement that such information is “incomplete or unavailable”; (2) a statement of the “relevance of the incomplete o r unavailable inf o r m a tion to evaluating reasonably foreseeable sig nificant adverse impacts on the human enviro n m e n t”; (3) a “summary of ex isting credible scientif i c e v idence

. . . relevant to evaluating the reasonably foreseeable adverse impacts”; and (4) the ag e ncy ’s “evalua t i o n of such impacts based upon theoretical approaches o r research methods g e nerally accepted in the scientific community

. ” Id. § 1502.22(b). Section 1502.22(b) clarifies that r easonably f oreseeable effects “include[ ] impacts which have catastrophic consequences, even if their probability

of occurrence is low.”N A T I V E V I L L A G E O F P O I

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M uch of the information missing from the EI S concer n s animal populations potentially affected by oil ex ploration a nd production under t h e leases. T he missing information

co n cerns such thing s as population levels of various species of a n i mals in the Chukchi Sea, including endang ered o r threate n e d animals; the locations of various animal populations during the y ear; the feeding and breeding habits of various animal populations; and the vulnerability o f various animal populations to drillin g and other ex ploration and production-related activities.

W ith respect to the potential environmental harm from a larg e o il spill, B OEM concluded that the missing information

was not essential to a reasoned c h oice among the alternatives. I t w rote in the SEI S, “ [ I ] n the unlikely event of a larg e oil spill, it is well-understood that environmental impacts could be severe. T he severity of potential impacts would be nearly identical under any action alternative; therefore, very specific ty pes of information r elevant to species, particular life history traits, or behavior do not help substantially in disting u ishing
among alternatives.” W ith respect to ot h e r a c tivities o r events with p o tential adverse impacts on the animal populations in the Chukc h i S e a, B OEM concluded that sufficient protections would be provided by the requirements of other environmental statutes, such as the Clean Air Act, the Marine Mammal Protection Act (“MMPA”), and the ESA, and by the requirement under NEPA to provide site-specific analy ses at later stag e s of development.

B a sed on these conclusions, B OEM stated in the SEI S that it did not consider any of t h e i ncomplete o r unavailable information at issue to be “essential to a reasoned choice
among alternatives” a t this stag e of the d e velopment process. 40 C.F .R. § 1502.22(a). B O EM therefore did not determineN A T I V E V I L L A G E O F P O I

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w hether the information was unobtainable “because t h e overall cost s of obtaining it a re ex orbitant or the means to obtain it are not know n.” Id. § 1502.22(b). Nor d id B OEM
g o throug h the steps required by § 1502.22(b) if it had f ound “essential” information to be unobtainable. I nstead, B OEM specifically

relied in the SEI S on what it characteriz e d as its “understanding that certai n i t ems o f presently missing o r incomplete information will be known (and utiliz ed to avoid

or minimiz e a dverse impacts) at a later stag e of O C S L ands Act environmental review.” B OEM promised in the SEI S th a t it “ would thoroug hly review specific development & production plans at Step 4 [ ‘development and p roduction’]

, if and w hen a project p roponent actually submits a plan. Thus, while certain informat i on may , in fact, be e ssential at

a later stag e of OCS L ands Act [ re v i e w]
, such information
may not be essential to a reasoned c h oice among alternatives at this lease sale stag e.”

I n Village of False Pass v. Clark , 733 F .2d 605 (9th Cir. 1984), we r eviewed a

n EI S of an oil and g as lease sale under OCSL A. The plaintiff had arg u ed that the commitment made by the g overnment when entering into leases under OCSL A is so s u b s tantial that a fully e x haustive environmental analy sis under NEPA had to b e performed at t h e lease sale stag e. W e disag r eed, writing :

NEPA may require an environmental impact
statement at each stage : leasing

, ex ploration,

a n d p r o d u c t i o n a n d d e v e l o p m e n t

. F urthermore, each stag e remains separate. The completion of one stag e does n ot entitle a lessee to beg in the nex t.N A T I V E V I L L A G E O F P O I

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Id. at 614. W e wrote to the same eff e c t i n Northern Alaska Environmental Center :

[ P] rojects [ for the development of oil and g a s natural resources] g enerally e ntail separ a te

s t a g e s o f l e a s i n g , e x p l o r a t i o n a n d development. At the e arliest stag e, the leasing

s t a g e we have b efore u s, there is no way of knowing what plans for d evelopment, if any , may eventually

materializ e

.

457 F .3d at 977.

A lease sale u nder OCSL A i s a nalog ous to a “prog rammatic” plan. The required level of a n aly sis in an EI S is d ifferent for prog rammatic and site-specific p lans. W e wrote in Friends of Y

osemite Valley v. Norton
, 348 F

. 3d 789 (9th Cir. 2003):

An ag en c y ’s planning and manag ement de ci s i o n s m a y o c c u r a t two d istinct administrative levels:

(1) the “ prog rammatic level” at which
t h e [ a g e n c y ] d e v e l o p s a l t e r n a t i v e manag e ment scenarios responsive to public concer

ns, analy

z es the costs, benefits and consequ e nces of e ach alternative in a

n [ EI S]
, a n d a dopts an amendable [ manag ement] plan to g ui d e manag e ment o f multiple use resources; and (2 ) the implementation stag e during which individual site speci f ic projects,N A T I V E V I L L A G E O F P O I

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consistent w ith the [ manag ement] plan, are proposed and assessed.

Ecology C tr., Inc. v. United States Forest Serv.
, 19 2 F .3d 922, 923, [ n.2] (9th Cir. 1999). An EI S for a pro gr a m m atic plan

. . . must provide ‘sufficient d etail to f o ster informed decision-making ,’ but ‘site-specific impacts need not be fully e va l u ated until a critical decision h as b e e n made to act on site development.’ N. Alaska Envtl. Ctr. v. Lujan
, 961 F .2d 886, 890–91 (9th Cir. 1992).

Id. at 800 (alterations in orig inal).

Reg ardless of whether a pro g rammatic or site-specific plan is at issue, NEPA requires that an EI S anal y z e environmental consequences of a proposed plan as soon as it is “reasonably possible” to do so. W e wrote in Kern v. U .S. Bureau of

Land Management
, 284 F .3d 1 062 (9th Cir. 2002), with respect to a prog

rammatic plan:

On c e an ag e ncy has an oblig ation to prepare an EI S, the scope o f its analy sis o f environmental consequences in that EI S must be appropriate to the action in question. NEPA is not d esig ned to postpone analy sis o f

an environmental conse quence to the last possible moment. Rather, it is desig ned to require such ana l y s i s as soon as it can

reasona bly be done. I f it is reasonably possible to a naly

z e the environmental
consequences in an E I S for [ a ResourceN A T I V E V I L L A G E O F P O I

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Manag ement P l a n ]
, the a g ency is required to perform that analy sis.

Id. at 1072 ( citation omitted); see also Pac. Rivers Council v

. U.S. F orest Serv.
, 689 F .3d 1012, 1025–27, 1029–30 (9th Cir. 2012), dismissed as moot , 133 S. Ct. 2843 (2013). T his is not t o s a y that an ag ency must provide the most ex tensiv e environmental analy sis possible a t the earliest possible moment, for an ag ency has some flex ibility in d eciding the level of a naly sis to be performe d a t a p a rticular stag e

. W e will d e fer to the ag e ncy ’s jud gm ent about the appropriate level of analy sis so long as the EI S provide s a s much environmental analy sis as is reasonably possi b l e under the circumstances, thereby “provid[ ing ] sufficient detail to foster informed decision-making ” a t the stag e in question. Friends of Y osemite Valley

, 348 F .3d at 800 (internal quotation marks omitted).

I n the case before us, w e conclude that B OEM has reasonably concluded that the missing information from the F EI S and SEI S is not “essential” to informed d ecisionmaking
at the lease sale stag e. W e ag ree with B OEM that compliance with st a tutes such as the MMPA and the ESA will provide protection for animals covered by those statutes. The MMPA
g enerally prohibits the “ take” of marine mammals. 1 6 U .S.C. § 13 7 1 ( a ). A “take” encompasses any act of “torment” o r “annoy ance” that “has the potential to injure

. . . or

. . . disturb

a marine mammal or marine mam m a l stock in the w ild b y causing disruption of natural behavioral patt e r n s, including

, but not limited to, mig ration, surfacing

, nursing

, b reeding

, feeding

, or sheltering .” I d

. § 1362(13), ( 18)(A)(i)–(ii). Unl a w ful “ takes” trig g e r civil and criminal penalties. Id. § 1375(a)(1), (b). Fu rther, under the ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2), B OEM must consult with theN A T I V E V I L L A G E O F P O I

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Nationa l M a rine F isheries Service and the U.S. F ish a nd W ildlife S e r

vice to “ insure that any action authoriz ed, funded,

or carried out by such ag ency

. . . is not likely to jeopardi z e th e c ontinued ex istence of any endang ered species o r t h r eatened species.” I f an a ction is likely to jeopardiz e a species, the a cting ag ency must d etermine wh e ther any “reasonable and prudent alternatives” e x ist that will avoid jeopardiz ing that species. 16 U.S.C. § 1536(b)(3) ( A ). W e recogniz e that B OEM has already consulted with these
ag encies at the leas e sale stag e. I t may well have to consult wi t h them ag ain at the development and production stag e when specific plan s have been proposed and site-specific activities are contemplated. ( W e note that it may also have to consult ag ain at the lease sale stag e , once it h as performed a proper analy sis of the estimated o v erall oil production.) B ecause these statutes p rovide addi t i o n al protections for animals in the Chukchi Sea, they support B OEM’s conclusion
t h a t missing information a bout these animals was not “essential” at this stag e

.

W e also ag ree wit h BO E M that further environmental analy sis will b e appropriate at a later s t a ge. I n B O EM’s words, “certain items of presently missing or incomplete information will be known (and utiliz ed to avoid or minimiz e adverse impacts) at a later s t a ge of OCS L ands A ct environmental review.” That is, “ w h e n a project proponent actually submits a p lan,” B OEM will be required under NE P A t o perform a plan- or site-specific environmental analy sis of that proposed pla n

. At that stag e, missing o r incomplete infor m a t i o n that has n o t b een “essential to a

reason e d choice among alternatives” at the lease sale stag e

m a y later become essential. I f there is “ essentia l ” information at the plan- or site-specific developmen t a nd production stag e, B O EM will b e required to p e r f orm theN A T I V E V I L L A G E O F P O I

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analy sis under § 1502.22(b) that it has not performed in the F EI S and SEI S now before us.

Of course, we recog niz e that our discussion and decision in the nex t Section reg a r di n g BOEM’s one billion barrel

e s t i m a te may have some effects upon the remainder of the F EI S. B u t we will n ot at this time speculate about the ex tent of those effects, if any

. T h e Defendants are in the best position to analy

z e those effects, if a

ny , and have the duty to analy z e them in the first instance.

B . One B illion B arrel Estimate

Plaintiffs contend that B OEM c h ose an arbitrary number for the total barrels of economically recov e r able oil from L e ase Sale 193. The F EI S estimated the amount o f recoverable oil by estimating pro d u c t i on from the “first offshore oil field” that w ould be developed within the area o f the leases. B OEM did not make any estimate of recoverable oil from additional fields that mig ht be developed. The F E I S specified that the “ recoverable oil resources from this field

are assumed to be 1 billion barre l s (B bbl).” The F EI S then used the one billion barrel estimate a s th e b a s i s f or its environmental analy sis.

W e must dete r mine whether B OEM has articulated a rational basis for its decision to use the one b illion barrel estimate. Mora-Meraz v. Thomas

, 6 0 1 F. 3d 933, 939 (9th Cir. 2 0 10). W e must r everse a decision as arbitrary a nd capricious if

the ag ency

relied on factors Cong

ress did not intend it to consider, entirely failed to consider an important aspect of t h e p roblem,N A T I V E V I L L A G E O F P O I

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or o ffered an ex planation that r uns counter to the evidence before the ag e ncy or i s so i m p l a usible that it could not be ascribed to a difference in view or the product of ag ency

ex p ertise.

Lands Council II

, 5 37 F .3d a t 987 (internal quotation marks omitte d ). F or the r easons that follow, we conclude that B OEM’s one b illion barrel estimate is arbitrary a nd capricious.

1. The Selection of One B illion B arrels

B O EM first announced it w a s developing an EI S in preparation for L ease Sale 193 in J u ly 2005

. According to internal B OEM e m ails, B OEM analy st J im Craig was assig ned to p rovide “resource estimates and a scenario” whic h other B OEM scientists w ould use to analy z e

e n v i ronmental effects. Craig emailed his supervisor, D e b o r a h Cranswick, stating that he b elieved that “[ t] he reasonably foreseeable scenario” should include “oil production f rom the first field only

, not the full e c o n o m i c potential.” Craig ’s

reason for focusing on the first field production was practical; he would hav e t o wa i t for about two months to have information that would a llow him t o develop a scenario for the entire area covered by the lease sale. Craig stated in his email, “You realiz e that we won’t have the 2005 resource assessment numbers until Sept, so we must base the scenario on the ‘first development’ not the total economic potential.” Craig also indicated that t h is e mphasis on the first oil field was a “departure from previous work.”

Craig asked Cranswick whether the scenario sho u l d employ a sing le estimate of o il production from that firstN A T I V E V I L L A G E O F P O I

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field, or whether it should e m ploy a rang e. Cranswick responded by email that she p referred a rang e. Craig th e n sug g ested, in a J u ly 29 email, a rang e from 500 million barrels to 1.5 b illion barrels. Craig emphasiz ed in his email that the scenario should assume “equal probability f o r any volume within the rang e” so that one billion barrels “does not become the de facto most-likely ” outcome. Craig ’s draft scenario also no ted, with respect to recoverable oil in the Chukchi Sea, that “[ o] ur current petroleum a ssessment indicates that recoverable oil resources c ould rang e from 3.6 to 11.8 billion barrels.”

There is a g ap in the email chain in our record, so we do
not know Cranswic k ’ s nex t response to Craig

. B ut we do know that in a subsequent email from Craig to Cranswick on Aug ust 2, Craig proposed a sing le one billion barrel estimate as an alternative to using

a rang e that was “too broad”:

Attached is a table wi t h E& D data. I f this represents t o o broad of a rang e, then I think

we should f

all back to a sing le v o l u m e (1.0 Bb b l ) f o r t h e E IS a n a l y s i s w i t h a corresp o n d ing set of sing le E& D numbers. I t’s hard to have it both way s ( ve r y n a rrow rang e ) when these figu res are entirely speculative.

There are two clear options:

1) 500-1500 MMbbl, as a un i fo r m distributio n (every point in rang e is equally likely ). This will r equire a low a nd hig h case analy sis.N A T I V E V I L L A G E O F P O I

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2) 1.0 B bbl as a sing le point estimate with

no confidence inte r v a l

. This will require a mostly likely case analy sis only

.

Altho u gh i t would be nice to propose a recoverable oil volume of 932 MMbbl +/- 134 MMbbl in a 90% confidence interval, we don’t have any

data to support it.

Pick (1) or

(2), but not (1) and

(2).

On Aug ust 3, Cranswick emailed Craig a data chart reflecting Craig ’s second option. I t contained only a sing le one billion barrel estimate.

On that same day

, Craig emailed to Cranswick a draft scenario rely ing on the one billion barre l estimate of oil production. This draft ex plained:

The scenario assumed for environmental analy sis involves the discovery

, d evelopment, and production o f the first oil field in the Chukchi sale area. U ltimately recoverable oil

resources from this fi e l d a r e assumed to be 1 billion barrels (B bbl). Smaller oil volumes a re not likely to be economic to pro duce a nd sing le pools c o ntaining larg er volumes a re in c reasing ly r are. I f oil prices drop below $30.00 per barrel (they are above $50.00 when this scenario was written), ex ploration in the Chukchi OCS is ex pected to be minimal and oil discoveries may

not be developed.N A T I V E V I L L A G E O F P O I

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The d r aft also point e d o u t that “the mean recoverable oil

resource [ in the Chukchi Sea] is 1 2 Bbbl with a 5% probability of 29 B bbl

. ” C ra i g also prepared a chart for Cranswick c omparing the numbers Craig had selected for the L ease Sale 193 EI S to an E I S prepared for the Chukchi Sea and Hope S e a Ba s i n for the 2002–2007 F ive Year Oil a nd Gas L easing Prog ram. T hat p revious E I S had estimated a rang e for economical oil production from 0.96 billion b arrels to 2.42 billion barrels.

On Aug u st 10, Cranswick circulated t h e L ease Sale 193 EI S scenario to other B OEM scien t ists w ho would be working on the EI S. The scenario contained the one billion barrel estimate. Cranswick ex plained in an email that

[ t] he scenario is based on a one mid-rang e economic r eso u r ce number ( note - this is not necessarily the most likely

. A lower volume is

more likely to oc c u r but less likely to be developed from an e c onomic standpoint; a hig her volume is less likely to occur but more likely to be developed).

Several B OEM employ ees ex pressed concern with the
ag ency ’s p roposed scenario. F o r ex ample, one NEPA analy st emp l o y ed by B OEM, Dee W illiams, w rote, “I don’t understand why [ th e a g ency ] doesn’t u se their sophisticated
assessment indices to impose a more definitive likely scenario. Clearly , it is impossible to predict ‘with certainty ’, but the narrative needs to inspire g reater public confidence b y

ex p laining the paramete r s of reasonable e x pectations.” W illiams further stated:N A T I V E V I L L A G E O F P O I

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I f it becomes economical to build o n e platform to produce an estimated 1 b i l l ion barrels, and there is between 12 and 2 9 billion barrels that are r ecov e r able, why is the scenario not compelled to imag ine more than

one p latform ( i.e. is a s ing le platform always the ini t i a l scenario, in which case may be we should just ex plain that)?

Cranswick responded that “the initial scenario is one platform because we can’t have o nly a partial p latform if that is a ll that the resource estimate support[ s] .” A t the s a m e t ime, Cranswick sug g ested that smaller o il developments would be associated with the first o il platform. “Once the first platform
g oes in, it is likely that additional satellite subsea completions would be developed before anot h e r h o st platform w ould be considered.”

On c e t h e draft EI S was c o mpleted, B OEM soug ht
comments from o ther a gencies and from the public. Numerous outside commentators ex pressed c o n c e r n a b o u t t h e

s cenario B OEM had developed. F or ex ample, t h e Environmental Protection Ag ency wrote that

the hy pothetical development scenario that is used in the document add[ s] additional lay ers of u n ce rtainty reg arding the probabilities o f

ex p loration, product ion a n d development

a ct i v ities and the risks a ssociated with thos e activities.

. . . EPA is concerned that, overall, the dep t h and diversity o f u ncertainties presented in the document resulted in the lack of a dequate suppo rt for many of the document’s conclusions.N A T I V E V I L L A G E O F P O I

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The Division of Mig r a tory B ird Manag ement at the U

. S. F ish and W ildlife Service ( “ F W S”) similarly challeng e d the o ne billion barrel estimate as inaccurate:

The basic assumptions used in the analy sis o f effects are flawed w it h reg ards to the siz e o f dev elopment scenarios. The [ Draft E I S (“DEI S”)] states that the current petroleum
assessment indicates a mean r ecoverable oil

resource of 12 bi l lion barrels; y et all

e n v ironmental analy ses reported in the D E I S

are based on a d e velopment of 1 billion barrels, thereby sig nificantly underestimating likely scenarios.

The Division recommended that B O EM not proceed with the lease sale until problems w ith the EI S were corrected. Public commentators similarly

pointed to flaws in employ ing a one billion barrel production estimate, inc l u ding that such an estimate was “based on a price of oil a t h a lf the current market value,” that the estimate “severely understates the true cumulative imp acts” of o il production, and that it was “nowhere

. . . justified with scientific analy sis.” Despite these criticisms, B OEM conti n u e d t o rely on its one b illion barrel estimate. The one billion barrel estimate was the basis for the

e n t i r e F EI S, including its analy sis of the risk of a larg e o il spill. F o r ex a mple, B OEM instructed the F WS to rely on that

es t imate in that a g ency ’s analy sis of whether the lease sale would jeo p a rd i z e listed threatened species such as the spectacled and Steller’s eiders. Had F W S made a j eo p a rdy finding

, B O EM eithe r wo u l d not h ave b een able to proceed with the L ease Sale under the E S A o r w o uld have had to obtain an ex emption from the “no jeopardy” rule. 16 U .S.C. § 1536(a)(2).N A T I V E V I L L A G E O F P O I

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2 . Arbitrary and Capricious

Plaintiffs contend that the o ne billion barrel estimate was ch o sen arbitrarily

, and that B OEM d id not p r ovide an adequate ex p lanation f

or its selection. W e ag ree for three

reasons.

F irst, B OEM has not just i fied its choice of the lowest possible amount of oil that was e conomical to produce as the basis for its a

naly sis. The draft EI S scenario s t a t e d that the
ag ency chose to f

ocus on a one billion barrel estimate in part because any volume lower than one b illion barrels would not b e e co n o mical to produce. At the same time, B OEM was well aware that if any oil was produced from L ease Sale 193, the economically recoverable oil was very likely to ex c eed

one b illion barrels. I n an A ug ust 18, 200 5
, e m ail commenting on the in-prog r e ss draft E I S, J im Craig wrote, “W e assume 1 billion bbl for the first f i e l d

, b u t there is another 11 B bbl that is economic at $70.” C r a i g attached a t a b l e to a December 2005 e mail, listing “Estimates for Speculative O il and G as Reserves,” specify ing a r ang e between 1.0 and 6.1 billion barr e l s f or the “Chukchi Shelf.” F inally

, in a May 2006 email Craig wrote, “ T h e ‘1-billion barrel, first field ’ assumption is subjective (‘for purposes o f analy sis’) and represents only a fraction of the full economic

resource po t e n tial in the Chukchi (which was recently published).”

The mean e s t i mate of economical o il production, at the
center of the distribution curve, is by definition a more likely

occurrence than is the lowest estimate of viable oil production. Previous EI Ses in the Chukchi Sea had used the

mean estimate of oil production as th e basis for their analy ses, and those E I Ses ha d a lso included low and hig hN A T I V E V I L L A G E O F P O I

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estimates. F or ex ample, B OEM previously leased portions o f the Chukchi Sea in now-ex pired L ease Sale 109. T he parcels leased in L ease S a l e 1 0 9 overlap substantially with the parcels leased in L ease Sale 1 93. Documents prepared in

a d v ance of L e ase Sale 109 stated that “[ t] he mean res o u r c e estimate

. . . is 2.68 billi o n b ar r e l s of oil with a 20 percent chance of a discove r y of commercially recoverable oil.” I n estimating the effects of o i l spills from L ease Sale 109, B OEM “assume[ d ] the full development of the resource estimate of 2.68 billion barrels.” I n contrast, while estimates in the record about the economically recoverabl e amount o f oil from L ease Sale 193 v ary , nowhere is the mean amount o f economical p roduction calculated to be less than 2.37 billion barrels. B ut the F EI S f

or L ease Sale 193 us e s one billion rather than 2.37 billion barrels as the basis for its analy sis o f environmental consequences.

B O EM ’ s primary ex planation for using its low-end estimate for oil production is that this scenario overestimates the likely amount of production. B OEM emphasiz es that because of the remo t eness of the area and the risk o f economic failure, any oil production activity is an unlikely result of the lease sale. M o re specifically

, B OEM estimates
t hat there is a less than 1 0 percent likelihood that o i l development in the reg ion will o c c ur. Defendants arg ue that since the mo s t l i k ely foreseeable outcome is no oil develop m e n t a t all, one billion barrels of oil production is actually a g enerous estimate.

This analy sis is flawed. The assumption that there is a 10 percent chance of comme r c ial o il development is itself without a rational b as i s i n t he record. J im Craig first developed the estimate “off the top of [ his] head” in an email

ex c h a ng e

. That calculation contradicts estimates used earlierN A T I V E V I L L A G E O F P O I

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in the E I S, as well as estimates used i n p ast EI Ses for the Chukchi Sea. F urther, B OEM conflates the likelihood of oil and g as productio n with the likelihood of environmental effects if such production occurs. B ased on its responsibility
to “ ‘ consider[ ] all foreseeable direct and indirect impacts’” o f the proposed action, N

. A l a s ka E

n vtl. Ctr.
, 457 F

. 3d at 975 (citation omitted), B O EM concluded that oil production was “reasonably foreseeable.” There is a substantial basis for this in the record b ecause, a s noted by B OEM, “the area has hig h oil resour c e potential and there is e x isting transportation infrastructure to move oil from northern Alaska t o d i stant markets.” Once B OEM made the dete r m i n ation that production is reasona

bly foreseeable, it was required to consider the f

u ll cumulative impact of that production. See 40 C.F .R. § 1508.7. Put di fferently

, B O EM mig ht w ell be rig ht that the most likely outcome is that there will be no oil development in the Chukchi Sea. B ut that f a c t s hould have made no difference to B OEM’s analy sis of the reasonably foreseeable environmental effects of oil development, if such development does occur.

Second, the F EI S did not take into account variation in oil prices in arriving at the estimate that one billion barrels o f oil

are economically recoverable. An assumption of stable prices ig nores the fact that the amount of economically recoverable oil varies substantially depending on oil prices. This may be
seen, for ex a mple, in a 2 0 0 6 report of the Minerals Manag ement Service (a prior inca r n a t i on of B OEM), which estimated economically recoverable o i l f rom the Chukchi Shelf at different prices. At $30 per barrel, the mean estimate

was 0 b arrels; at $46 per barrel, the mean esti m a te was 2.37 billion barrels; at $60 per barrel, the mean estimate was 8.38 billion barrels; a t $80 dollars per barrel, the mean estimate was 12 billion barrels.N A T I V E V I L L A G E O F P O I

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Third, B O EM has n ot p r ovided a n adequate ex planation f o r its d ecision to base its EI S only on the a mount of o i l

ex p ected to be produced from the f irst field in the leased area of the Chukchi Sea. I t is unclear f rom the record how B OEM initially estimated that the first field w ould produc e o ne billion barrels of oil. J i m Craig himself sug g ested that his calculations reg arding that first development we r e “ entirely speculative.” B ut even assuming that one billion barrels is an accurate estimate of the amount of oil to be prod u c e d from the f irst field, it is u n clear why B OEM assumed that only o ne oil field would be developed i n the lease area. The F E I S itself acknowledg es that “[ w] hen the f irst project overcomes the cost, log istical, and reg u latory hurdles, more projects a re . . . likely to follow.”

The F EI S ex plains that it is unlikely that “ all economically viable resources will be developed” in the Sea due to the d i f

f i c u lties in o perating in a frontier area of oil production. B ut the F EI S does not ex p l a i n why production would be ex pected to stop if the first oil field is de v eloped. The primary ex planation for that assumption sug g ested by the record is that data to a

n a ly ze “the full economic potential” o f the lease sale would not be available u ntil about two months after J im Craig initially p r o p osed an estimate based on the fi r st field. Previous evaluations of Chukchi Sea oil development h ad assumed that multiple oil f i e l ds would develop once commercial development was viable. I n a t e c h n o l o gy as s e s s m e n t o f C h u k c h i S e a p e t r o l e u m development performed in 1983 for B OEM
, t h e B ureau o f L and Manag ement had u sed a 1.5 billion barrel est i m a t e to

measure prospects in “the central Chukchi shelf

. ” T h at assessment assumed that two oil fields would b e developed:

o n e o f one billion barrels and one of 0.5 billion barrels. O n the record before us, it remains unclear w hy B OEM chose toN A T I V E V I L L A G E O F P O I

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analy z e the lowest amount o f oil that could be produced i n the Chukchi Sea from the smallest n u m b er of oil fields that could be developed.

Def e n d an ts contend that any error resulting from using the one billion barrel estimate can be corrected throug h sitespecific E I Ses later in the development process. W e disag ree. An a g ency is required to analy z e the e n vironmental effects in an EI S as soon as it is “reasonably possible” to do so. Kern
, 284 F .3d at 1072. An appropriate time to estimate the total oil production from the lease sale is the time of the lease sale itself. Under NEPA, B OEM is required to take into account
t h e f ull environmental effects of its actions when deciding whether an d i n what manner to pursue the lease sale. 42 U.S.C. § 4332(2)(C). A later p roject or site-specific environmental analy sis is an inadeq u ate substitute for an

e s t i mate o f total production from the lease sale as a who l e. I t is only at the lease sale stag e that the ag ency can adequately consider cu m u l ative effects o f the lease sale on the environment, including the o verall r isk of oil s p i l l s and the effects o f the sale o n climate chang e. I t is a lso only at the lease sale stag e that the ag ency can take into account the effects of oil production in deciding which parcels to offer for lease.

W e also disag r ee with defendants that our d e c isions in Akutan

, 8 69 F .2d a t 1191–92, False Pass
, 733 F. 2 d at 617, and W att , 683 F .2d at 1267–68, compel a contrary result. I n False Pass
, p l a i n tiffs challeng e d the ag ency f or failing to consider the worst case scenario for oil develo p m ent. 773 F .2d at 614. I n the ci r c umstances presented there, we held that there was a rational ex planation for not considering the worst case at the lease sale stag e

. Here, in contrast, the B OEM considered only the best case scenario forN A T I V E V I L L A G E O F P O I

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environmental harm, assuming oil development. A best case scenario “skew[ s] ” the data toward fewer environmental impacts

, an d t h us impedes a “full and fair discussion o f the potential effects of the project.” Native Ecosystems Council

v. U.S. Forest S

erv. , 418 F. 3 d 9 5 3
, 965 (9th Cir. 2 005) (citation and internal quotation marks omitted).

Unlike i n Akutan

, B OEM’s estimate did not merely inform an a ssessment of the likelihood of an oi l spill. 869 F .2d at 1192. A mong other thing s, its estimate informed

an assessment of seismic effects, habitat eff e c ts, oil production, and the cu m u l a t ive effects of the sale on g lobal warming

. B OEM’s estimate also i nformed F WS’s determination that L ease Sale 193 w ould not jeopardiz e listed species. The record sug g ests that F W S was close to finding

, ev en under the one billion barrel a ssumption, that the lease sale would jeopardiz e the spectacled and Steller’s eiders. Had B OEM n o t selected the least amount of oil necessary for production, F WS may well have concluded th a t the listed species were in jeopardy

. See 16 U.S.C. § 1536(a)(2).

F inally

, the deg ree of error in t h e e s t i m ation of total oil production is g reater here tha n in our earlier cases. I n W att , the a g ency was ready to publish its EI S when newly available fig ures sug g ested that o il reserves were “ roug hly twice those orig inally estimated.” 683 F .2d a t 1 2 6 7. W e held in W att that the a g ency ha d a c t e d reasonably when it decided n ot to supplement its EI S with last-minute analy sis of the risk of an oil spill based o n the n ew fig ures. I d. at 1267–68. I n the case before us, B OEM was fully aware f rom the v e r y b e ginning that i f one billion barrels could be economically produced,
many more barrels c o u ld also b e economically produced. I ndeed, at current oil pr i c e s, it would be economical toN A T I V E V I L L A G E O F P O I

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recover twelve ti m e s the one billion barrel estimate used b y B OEM. This is a far more dramatic difference than in W att

.

W e do not criticiz e B OEM’s decision to estimate the total
amount of economically re coverable oil from the lease sale. Given the uncertainties involved in the Chukchi Sea, B OEM had no c hoice but to make an estimate. B ut having decided that oil production was reasonably foreseeable

, N EPA required B OEM to base its analy sis on the full rang e of likely
p r o d u ction if oil production were to o ccur. I t did not d o s o here.

Conclusion

W e conclude that the F E I S and SEI S p roperly t o o k
account of incomplete o r unavailable information. However, we conclude that reliance in the F E I S on a one billion barrel estimate of total economically recoverable oil was a rb itrary and capricious.

W e REVERSE and REMAND to the district c o u r t for further proceeding s consistent with this opinion.

RAW L I NSON, Circuit J udg e, c o n curring in part a nd dissenting in part:

I ag ree w ith most of the majority opinion, including that the missing information from the final environmental impact
statement (F EI S) and the Supplemental I m p a ct Statement (SEI S) is not essential to informed d ecisionmaking at the lease sale stag e , and that further environmental analy sis will be more appropriate a t a later stag e. However, I do not ag r eeN A T I V E V I L L A G E O F P O I

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that the B ureau of Ocean Ener gy M a nag ement, Reg ulation and Enforcement (B OEM ) a cted arbitrarily in selecting o ne billion barrels of o il as the benchmark for analy z ing the environmental affects of the proposed leases.

I beg in with a reminder that our r e v i e w of the ag e ncy ’s analy sis of technic al data is ex tremely limited. See Lands Counci l v

. M

c N air
, 5 37 F .3d 981, 9 87 (9th Cir. 2008) (en banc), overruled on other groun d s as recognized b

y A m

. Trucking Ass’ns v. City of Los Angeles

, 559 F .3d 1 046, 1052 (9th Ci r

. 2009) (“Review under the arbitrary and capricious standard is narrow, and we do not substitute our judg ment for that of the ag ency

. . . .”) ( citation, alteration and i n t e r n al quotation marks omitted). W e should also keep in mind that the National Enviro n mental Policy Act (NEPA) “does not mandate particular r esults.” D ep’t of Transp. v. Pub. Citizen
, 541 U.S. 752, 756 (2004). Rather, the statute “imposes only procedural requirements on f ederal ag encies

. . .” Id

. Under NEPA, “[ w] e review an [ Environmental I mpact Sta t e m ent] under a rule of reason to determine whether it contains a

r e a s o n a b l y t h o r o u g h d i s c u s s i o n ” o f t h e p o t e n t i al environmental effects of a planned federal action. Edwardsen

v. Department of the I

n terior
, 2 68 F. 3 d 7 8 1
, 7 8 4 (9th Cir. 2001) (citation omitted).

The majority o pinion takes issue with the a ge n c y ’s selecti o n o f one billion barrels of oil as the benchmark
amount for a sse s s i n g potential environmental effects of the oil leases. However, our review is at its most deferential when w e c onsider a predictive estimate such as B O EM’s estimate of the amount of oil recovery that should be included in the environmental effec ts analy sis. See Lands Council

, 537 F .3d a t 9 9 3 (“[ W ] e are to conduct a p a rticularly deferential review of a

n ag ency ’s predictive judg ments aboutN A T I V E V I L L A G E O F P O I

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a r e a s that are within the ag ency ’ s field of discretion a n d

ex p ertise

. . .) (citations and internal quotation marks omitted). Our task is only to ensure that the ag ency has not:

relied on factors which Cong ress has n ot intended it to c onsider, ent i r ely failed to consider an aspect of the problem, offered an

ex p lanation for its decision that runs counter t o the evidence before the ag ency , or a n

ex p lanation that is so implausible that it could
not be ascribed to a difference in view or th e product of ag ency

ex pertise.

Id

. (citations, alterati o n, a nd internal quotation marks omitted).

The maj o rity does n ot intimate that B OEM relied on factors Cong ress did n ot intend it to consider, o r that B OEM entirely failed to consider an aspect o f t he problem. The majority opinion also cannot be fairly read to d e scribe B OEM’s benchmark choice as so implausible that it could not be ascribed to a difference in v i ew o r t h e product of ag ency

ex p ertise. I n fact, the majority o pinion discusses the different view a nd ag ency ex pertise broug ht to b ear on this issue. See Majority Opinion
, p p. 21–26 (discussing the differing views from within a n d w i thout the ag e ncy ). So it appears that the basis for the majority ’s ruling is that B OEM’s benchmark estimate runs counter to the evidence b efore the ag ency

. B ut it doesn’t.

The potential siz e of commercially ex tractable oil deposits in the Chukchi Sea is a quintesse n tial ex ample of a p r edictive judg ment uniquely within B OEM’s area o f

ex p ertise. I ndeed, we have previously recogn i z ed thatN A T I V E V I L L A G E O F P O I

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“[ p] rior to ex ploration, it is d ifficult to make so much as an educated g uess as to the volume of oil likely to be produced

. . . W ithout this information, an oil spill risk analy sis can

never b e more than speculative, regardless of what methodology is used

. . . .” Tribal Village of Akutan v. Hodel

, 869 F .2d 1185, 1192 (9th Cir. 1989), as amended

.

I t is bey ond dispute tha t t h e C hukchi Sea contains oil deposits well in ex cess of one billion barrels. B ut that is not the point. The point is whether the selection of one bi l lion barrels as the benchmark was the product of ag ency ex pertise. See Lands Council

, 537 F .3d at 993. After con sidering the available evidence, B O EM concluded that substantial

o b stacles to oil development in the reg ion made it unlike l y that future production would “ever reach th e full economic potential” in the Chukchi Sea. F ive ex plorations had already tested some of the larg est prospective si t e s without discovering a “commercial-siz e” oil s o u rce. W ith these circumstances in mind, B OEM ultimately selected o ne billion barrels a s the benchmark estimate b ecause lower oil volumes

were not likely to be economically feasi b l e. Rather than rely ing on g eneral resource assessments as was done previously

, B OEM opted for the more “realistic” benchmark tied to the discovery

/development o f the initial commercially viable offshore o il fiel d

. B OEM ex plained that the unique, remote, and previously u n e x plored n ature of the Chukchi
reg ion required analy sis of the “ s tatistically most-likely development activity a ssociate d with a reasonable rang e o f

resources

. . . g iven the uncertainties of g eolog y , e ng ineering

, and economics t h a t ex ist now” and the “streamlined” environmental impact st a t e m ent (EI S) undertaken at the lea s i n g s tag e of the process. See Akutan

, 869 F

. 2d at 1192 ( “ W e are the least troubled by what may seem to b e incomplete or speculative data at the lease sale stag e. . . .”).N A T I V E V I L L A G E O F P O I

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The majority is of th e view that B OEM’s “analy sis is f l a wed.” Majority Opinion
, p

. 28. B ut we do not sit as a panel of super scientists to dissect the ag ency ’s analy sis. Rather, we only review the p r ocess for reas o n able thoroug hness. See E

d wardsen

, 268 F .3d at 784 (establishing
t h e r o l e of the reviewing c ourt to determine whether the
ag ency ’s environment a l impact statement “contains a reasonably thoroug h discussion”). Not only was B O EM’s discussion of the selected benchmark “reasonably thoroug h,” id

., its s e l e ct i o n of the benchmark was within the r ang e o f alternatives c ontained in the record. As the majority opinion acknowledg es, a previous EI S had estimated a rang e o f

e c o n o m ical oil production from 0.96 billion barrels to 2.42 b illion barrels. See Majority Opinion
, p. 24. One billi o n barrels is c ertainly within that r ang e. The same is true for the “rang e between 1.0 and 6.1 billion barrels” referenced at pag e 27 of the Majority Opinion and for the 10 percent estimate o f the chance o f commercial oil developm ent. See Majority Opinion , p. 28 (noting the EI S’s earlier reference to a 10–20 percent estimate and past estimates of 20 percent likely )

.

I readily acknowledg e that there was disag reement in the scienti f i c c ommunity concerning the selected benchmark. B ut disag reeme n t does not render the chosen estimate irrational. Rather, it ty

pifies the “difference in view” that we have established as a s afe h arbor ag ainst successful attack under N EPA. See Lands Council

, 537 F .3d at 993. There is

no suc h thing as a perfect estimate and B OEM was not required to a dopt a different b e n chmark in the f ace of its critics. See Environmental D efense Center, Inc. v. EPA
, 3 4 4 F .3d 832, 872 (9th Cir. 2003) ( “ We defer to an a ge n c y decision not to invest the resources necessary to conduct the perfect study

. . .”). B OEM ex p laine d i t s reasons for selecting its benchmark estima t e, and we are uniquelyN A T I V E V I L L A G E O F P O I

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unqualified to second-g

uess that selection. As the D.C. Circuit r eco g niz ed in City o f L.A. v. Dep’t of Transp
., 165 F .3d 972, 977 (D.C. Cir. 1999): “[ That som e o r many [ ex perts] would disapprove of [ B OEM’s] approach does not

answer the question p resented to us. I n reviewing [ B O EM’s E I S]
, we do not sit as a panel of r eferees on a p rof e s s i o n al [ scientific] journal, but as a panel of g eneralist judg es oblig ed
to defer t o a reasonable judg ment by an ag ency acting pursuant t o c ong ressionally deleg ated authority

. . . .”) (citations omitted).

B e cause of the deference due the ag enc y , a nd because B OEM’s chosen b enchmark w as reasonably selected a nd adequately ex p lai n ed

, our work here is done. We should afford B OEM’s EI S the deference due and affirm the district court’s order of dismissal.

I respectfully

dissent.