UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FRIENDS OF THE EARTH, et al., : 

 : 

Plaintiffs, : 

 : 

 v. : Civil Action No.: 21-2317 (RC) 

 : 

DEBRA A. HAALAND, et al., : Re Document No.: 34, 42, 43, 45 

 : 

Defendants, : 

 : 

STATE OF LOUISIANA, : 

Intervenor-Defendant, : 

 : 

AMERICAN PETROLEUM INSTITUTE, : 

Intervenor-Defendant. : 

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT;

GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY 

JUDGMENT; GRANTING IN PART AND DENYING IN PART INTERVENOR-DEFENDANT 

LOUISIANA’S CROSS-MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING 

IN PART INTERVENOR-DEFENDANT AMERICAN PETROLEUM INSTITUTE’S CROSS-MOTION FOR 

SUMMARY JUDGMENT 

I. INTRODUCTION

Lease Sale 257 is the eighth in a series of sales offering federal lands in the Outer 

Continental Shelf to leasing for the production and development of oil and gas under the Bureau 

of Ocean Energy Management (“BOEM”)’s 2017–2022 Program. Lease Sale 257 made 80.8 

million acres in the Gulf of Mexico available for oil and gas leasing, the largest offshore oil and 

gas lease sale in U.S. history. Organizational Plaintiffs Friends of the Earth, Healthy Gulf, Sierra 

Club, and Center for Biological Diversity brought suit against the Secretary of the United States 

Department of the Interior, the Assistant Secretary of the Interior for Land and Minerals 
2 

Management, the Department of the Interior, and the Bureau of Ocean Energy Management, 

alleging that the federal defendants violated the National Environmental Policy Act (NEPA) and 

the Administrative Procedure Act (APA). Compl. ¶¶ 1, 5–8, ECF No. 1. 

Now pending before the Court are four cross-motions for summary judgment filed by 

Plaintiffs, Federal Defendants, Intervenor-Defendant Louisiana, and Intervenor-Defendant 

American Petroleum Institute (“API”). See Mem. Supp. Pls.’ Mot. Summ. J. (“Pls.’ Mot.”), ECF 

No. 34-1; Defs.’ Mot. Summ. J. & Opp’n Pls.’ Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 45; 

Mem. Supp. Louisiana’s Cross-Mot. Summ. J. & Opp’n Pls.’ Mot. Summ. J. (“La. Mot.”), ECF 

No. 42-1; Mem. of Intervenor-Def. American Petroleum Institute in Supp. Cross-Mot. Summ. J. 

& Opp’n Pls.’ Mot. Summ. J. (“API Mot.”), ECF No. 43-1. For the reasons that follow, the 

Court will grant in part and deny in part all four motions. 

II. BACKGROUND

The Gulf of Mexico “is a unique and important part of the American landscape and 

economy.” Oceana v. Bureau of Ocean Energy Mgmt., 37 F. Supp. 3d 147, 151 (D.D.C. 2014). 

It is one of the nation’s most biologically diverse ecosystems, sustaining thousands of marine 

plant and animal species, including numerous endangered and threatened species. See Compl. ¶¶ 

54–56, ECF No. 1. It produces over one third of the country’s domestic seafood supply and 

supports “a robust economy” of coastal tourism and commercial fishing. Id. ¶ 57. It also 

contains significant oil and gas reserves in the Outer Continental Shelf, “a vast underwater 

expanse nearly equal in size to the Australian continent” that “extends roughly two hundred 

miles into the ocean to the seaward limit of the international-law jurisdiction of the United 

States.” Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588, 592 (D.C. Cir. 2015) [hereinafter 

“Sustainable Economy”]. Oil and gas production on the Outer Continental Shelf is accomplished 
3 

through leases that are awarded in a competitive bidding process subject to a complex statutory 

and regulatory scheme. See, e.g., 43 U.S.C. § 1337. The challenged agency decision in this 

case, Lease Sale 257, made 80.8 million acres of the Outer Continental Shelf in the Gulf of 

Mexico available for lease. AR0029790. 

A. Statutory and Regulatory Context 

1. Outer Continental Shelf Lands Act (“OCSLA”)

The Outer Continental Shelf Leasing Act (“OCSLA”) is the statutory framework under 

which the Department of the Interior may lease areas of the Outer Continental Shelf. 43 U.S.C. 

§ 1334; Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 F.3d 466, 472 (D.C. Cir. 

2009) [hereinafter “Biological Diversity”]. OCSLA sets forth a four-stage process for potential 

oil and gas production that is “pyramidic in structure, proceeding from broad-based planning to 

an increasingly narrower focus as actual development grows more imminent.” State of Cal. ex 

rel. Brown v. Watt, 668 F.2d 1290, 1297 (D.C. Cir. 1981). First, the Department of the Interior 

“creates a leasing program by preparing a five-year schedule of proposed lease sales,” and 

second, “solicits bids and issues leases for particular offshore leasing areas.” Biological 

Diversity, 563 F.3d at 473. “After a lease is approved, a lessee may conduct ancillary activities, 

which include geological and geophysical explorations and development, and surveys.” Oceana, 

37 F. Supp. 3d at 150 (citing 30 C.F.R. § 550.207). At the third stage, lessees must submit a 

more detailed exploration plan, which Interior may only approve if exploration “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.” 43 U.S.C. § 1340(g)(3). The final stage is the 

development and production stage, during which “Interior and those affected state and local 
4 

governments review an additional and more detailed plan from the lessee” that may be 

terminated if Interior determines that the plan would “probably cause serious harm or damage.” 

Biological Diversity, 563 F.3d at 473 (quoting 43 U.S.C. § 1351(h)(1)(D)(i)). 

2. National Environmental Policy Act (“NEPA”)

The National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4331 et seq., “is a 

procedural statute intended to ensure Federal agencies consider the environmental impacts of 

their actions in the decision-making process.” 40 C.F.R. § 1500.1 (2019).1

 It requires Federal 

agencies to “include in every recommendation or report on . . . major Federal actions 

significantly affecting the quality of the human environment, a detailed statement by the 

responsible official” that includes “(i) the environmental impact of the proposed action; (ii) any 

adverse environmental effects which cannot be avoided should the proposal be implemented, 

[and] (iii) alternatives to the proposed action.” 42 U.S.C. § 4332(2)(C). “This environmental 

impact statement [“EIS”], as it has come to be called, has two purposes. It forces the agency to 

take a ‘hard look’ at the environmental consequences of its actions . . . [and] [i]t also ensures that 

these environmental consequences, and the agency’s consideration of them, are disclosed to the 

public.” Sierra Club v. FERC, 867 F.3d 1357, 1367 (D.C. Cir. 2017) [hereinafter “Sierra Club 

(Southeast Market)”]. NEPA also requires agencies to prepare a supplemental EIS for 

outstanding federal actions if “[t]here are significant new circumstances or information relevant 

1

 The regulations for NEPA, found at 40 C.F.R. §§ 1500 et seq., were amended in 2020. 

See Update to the Regulations Implementing the Procedural Provisions of the National 

Environmental Policy Act, 85 Fed. Reg. 43,304-01 (July 16, 2020). However, because those 

modifications did not apply to NEPA processes begun before September 14, 2020, id. at 43372–

73, including this one, the Court will (as the parties have) refer to the regulations as codified at 

40 C.F.R. Parts 1500-08 (2019). See Pls.’ Mot. at 24, n.10; Defs.’ Mot. at 4, n.1. 
5 

to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. §§ 

1502.9(c)(1)(ii) (2019). 

3. Interaction of OCSLA and NEPA

The statutory schemes of NEPA and OSCLA are not inconsistent. Interior must consider 

the environmental impacts of a decisions to open up federal lands for oil and gas leases in 

accordance with NEPA prior to holding a lease sale. See Sec’y of the Interior v. California, 464 

U.S. 312, 338 (1984) (noting that the “[r]equirements of the National Environmental Protection 

Act and the Endangered Species Act must be met” before the lease sale stage). And although 

OCSLA’s primary purpose is development of the Outer Continental Shelf, “OCSLA does not 

mandate the approval of every proposed lease sale.” Gulf Restoration Network v. Bernhardt, 456 

F. Supp. 3d 81, 97 (D.D.C. 2020); see also State of Cal. ex rel. Brown, 712 F.2d at 588 (“[W]hile 

an area excluded from the [Five-Year] leasing program cannot be leased, explored, or developed, 

an area included in the program may be excluded at a latter stage.”). 

Nor does the multi-step framework of OCSLA purport to lessen the rigor of the “hard 

look” that NEPA requires. See 43 U.S.C. § 1346(a)(1) (requiring environmental studies “of any 

area or region included in any oil and gas lease sale” under OCSLA); (Vill. of False Pass v. 

Clark, 733 F.2d 605, 609 (9th Cir. 1984) (interpreting § 1346 to mean that “[a]t the lease sale 

stage, OCSLA implies this review must meet NEPA standards.”). Although the D.C. Circuit has 

stated that OCSLA itself “concerns the local environmental impact of leasing activities” and 

therefore “does not authorize—much less require—Interior to consider the environmental impact 

of post-exploration activities such as consuming fossil fuels on either the world at large,” 

Biological Diversity, 563 F.3d at 485, that opinion concerned only OCSLA itself and did not 

reach the NEPA challenges to the Five-Year Program on the merits. “In the context of NEPA, 
6 

which requires government agencies to comply with its strictures ‘to the fullest extent possible,’ 

42 U.S.C. § 4332(2)(C), courts have been especially reluctant to hold that another statute 

overrules it.” Nat. Res. Def. Council v. Lujan, 768 F. Supp. 870, 880 (D.D.C. 1991). To the 

contrary, “NEPA may, within the boundaries set by Congress, authorize the agency to make 

decisions based on environmental factors not expressly identified in the agency’s underlying 

statute.” Vill. of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 665 (D.C. Cir. 2011) 

(quotations omitted). In other words, NEPA sets a floor that agencies must comply with even if 

an agency’s underlying statute, such as OCSLA, could be construed to set a lower one. 

B. Factual and Procedural Background 

1. The Five-Year Lease Plan and the 2018 Supplemental Environmental Impact Statement 

Lease Sale 257 is part of the 2017–2022 Outer Continental Shelf Oil and Gas Leasing 

Program, the five-year plan which proposed ten region-wide lease sales. See 82 Fed. Reg. 6643-

02 (Jan. 19, 2017); Compl. ¶ 75. When developing that five-year program, BOEM issued both a 

programmatic EIS for the entire five-year program, AR0014242–15179 (“Program EIS”), and a 

Multisale EIS for sales 249, 250, 251, 252, 253, 254, 256, 257, 259, and 261, the ten sales 

planned to occur in the Gulf of Mexico, AR0008116–9973 (“Multisale EIS”). Those EISs were 

published in 2016 and 2017, respectively. Compl. ¶¶ 79, 82. 

For multi-step agency programs such as oil and gas leases authorized under OCSLA, 

“NEPA provides that the environmental analysis conducted at each stage may incorporate by 

reference previous, related analyses,” a method known as “tiering.” WildEarth Guardians v. 

Zinke, 368 F. Supp. 3d 41, 53 (D.D.C. 2019). The Multisale EIS stated that BOEM expected to 

utilize the tiering process to supplement its NEPA analysis “on a regular basis,” and that it 

expected to “issue a Supplemental EIS once a calendar year.” AR0008202. The Multisale EIS 
7 

even provided a graphic description of the tiering relationships of its expected supplemental 

EISs. Figure 1-6, AR0008203 (below). 

 BOEM released a Supplemental EIS for evaluating Lease Sales 250 and 251 in 2017 

that tiered from and updated the two prior EISs (“The 2018 Supplemental EIS”). AR0015471–

16365. But BOEM did not issue another EIS subsequent to the 2018 Supplemental EIS. See

Pls.’ Mot. at 9. At one point BOEM issued a notice of intent to prepare an additional 

supplemental EIS, but it rescinded that notice in early 2020. See 85 Fed. Reg. 2437-02 (Jan. 15, 

2020). Instead, BOEM published a Determination of NEPA Adequacy on September 11, 2020, 

that concluded the analysis in the Program EIS, Multisale EIS, and 2018 Supplemental EIS were 

sufficient to comply with NEPA for the purpose of moving ahead on Lease Sale 257. 

AR0029969–85. 

2. The Decision to Hold Lease Sale 257

Based on that Determination of NEPA Adequacy, BOEM issued its first Record of 

Decision for Lease Sale 257 in January 2021, during the final days of the Trump administration. 

See 86 Fed. Reg. 6365-01 (Jan. 21, 2021). But just a few days later, President Biden issued 
8 

Executive Order 14,008, which in relevant part “pause[d] new oil and natural gas leases on 

public lands or in offshore waters pending completion of a comprehensive review and 

reconsideration.” Exec. Ord. 14008, Tackling the Climate Crisis at Home and Abroad § 208, 86 

Fed. Reg. 7619, 7624-25 (Jan. 27, 2021). The Record of Decision to hold Lease Sale 257 was 

rescinded in accordance with that executive order. 86 Fed. Reg. 10,132-01 (Feb. 18, 2021). 

Louisiana, along with a coalition of states, brought suit challenging that recission in the 

Western District of Louisiana, and the district court there preliminarily enjoined Interior officials 

from “implementing the Pause of new oil and natural gas leases on public lands or in offshore 

waters,” including with respect to Lease Sale 257. Louisiana v. Biden, -- F. Supp. 3d --, No. 

2:21-cv-778, 2021 WL 2446010, at *22 (W.D. La. June 15, 2021). In accordance with that 

injunction, BOEM moved forward with Lease Sale 257, issuing another Determination of NEPA 

Adequacy in August 2021 stating that a supplemental EIS was not required for the sale. 

AR0029801–942. BOEM issued a new Record of Decision for Lease Sale 257 on August 31, 

2021, AR0029788–800, which was published in the Federal Register on September 7, 2021, 86 

Fed. Reg. 50,160-02 (Sept. 7, 2021). 

3. The Current Status of Lease Sale 257 and Procedural Background

Immediately after the Federal Defendants published the new Record of Decision to hold 

Lease Sale 257, Plaintiffs filed the present action alleging that the Federal Defendants violated 

NEPA and the APA. Compl. ¶¶ 1, 5–8. The State of Louisiana and API sought and were 

granted leave to intervene as defendants. See Order of Sept. 22, 2021, ECF No. 24 (granting 

Louisiana’s motion to intervene); Mem. Op. & Order Granting API’s Mot. Intervene, ECF No. 

60 (granting API’s motion to intervene). 
9 

The parties agreed to an expedited briefing schedule for summary judgment that would 

allow the purely legal issues in this case to be resolved after Lease Sale 257 took place, but 

before the leases were issued. See Joint Status Report of Sept. 20, 2021 (proposing briefing 

schedule); Order of Sept. 22, 2021 (setting merits briefing schedule); Minute Order of Dec. 8, 

2021 (granting a limited extension of the briefing schedule). The schedule was based on the 

Federal Defendants’ representations that the earliest any lease from the sale would become 

effective was February 1, 2022. See 2d Decl. Bernadette Thomas ¶ 9, ECF No. 58-1. 

The challenged lease sale was held on November 17, 2021, but the leases have not yet 

been awarded.2

 Id. ¶ 4. Now pending before the Court are four cross-motions for summary 

judgment filed by Plaintiffs, Federal Defendants, Louisiana, and API, see generally Pls.’ Mot.; 

Defs.’ Mot.; La. Mot.; API Mot., to which the parties have filed their respective oppositions and 

replies, see generally Pls.’ Combined Opp’n & Reply Supp. Mot. Summ. J. (“Pls.’ Opp’n”), ECF 

No. 51; Reply Supp. Louisiana’s Cross-Mot. Summ. J. & Opp’n Pls.’ Mot. Summ. J. (“La. 

Reply”), ECF No. 64, Defs.’ Reply Supp. Mot. Summ. J. (“Defs.’ Reply”), ECF No. 65; Reply 

Br. Intervenor-Def. American Petroleum Institute Supp. Cross-Mot. Summ. J. (“API Reply”), 

ECF No. 66. The Court has also considered the amicus briefs filed by Members of Congress and 

Chevron, USA. Amicus Curiae Br. Members Congress Supp. Pls.’ Mot. Summ. J. (“Congress 

Amicus Br.”), ECF No. 57; Chevron U.S.A., Inc.’s Amicus Br. Supp. Defs.’ & Intervenor-Def.s’ 

Mots. Summ. J. & Opp’n Pls.’ Mot. Summ. J. (“Chevron Amicus Br.”), ECF No. 71. 

2

 Chevron was the apparent high bidder on 34 tracts in that sale, leading it to move to 

intervene. See Chevron U.S.A. Inc.’s Mot. Intervene Supp. Defs. at 1, ECF No. 53. The Court 

denied Chevron’s intervention as a party but granted it leave to file an amicus brief. Mem. Op. 

& Order Denying Chevron U.S.A., Inc.’s Mot. Intervene, ECF No. 70. 
10 

III. LEGAL STANDARD

In a typical case, a court may grant summary judgment to a movant who “shows that 

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). But when assessing administrative action, at the summary 

judgment stage “the district judge sits as an appellate tribunal,” Am. Bioscience, Inc. v. 

Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001), limited to determining whether, as a matter of 

law, the evidence in the administrative record supports the agency’s decision, Citizens for 

Responsibility & Ethics in Wash. v. SEC, 916 F. Supp. 2d 141, 145 (D.D.C. 2013). “In the APA 

context, summary judgment is the mechanism for deciding whether, as a matter of law, an 

agency action is supported by the administrative record and is otherwise consistent with the APA 

standard of review.” Gulf Restoration Network, 456 F. Supp. 3d at 93. Accordingly, judicial 

review is limited to “deciding whether, as a matter of law, an agency action is supported by the 

administrative record and is otherwise consistent with the APA standard of review.” Id. 

Under the APA, a reviewing court may set aside agency action if it is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2). 

Agency action is “arbitrary and capricious if the agency has relied on factors which Congress has 

not intended it to consider, entirely failed to consider an important aspect of the problem, offered 

an explanation for its decision that runs counter to the evidence before the agency, or is so 

implausible that it could not be ascribed to a difference in view or the product of agency 

expertise.” Motor Vehicle Ass’n v. State Farm Mutual Auto. Ins., 463 U.S. 29, 43 (1983). 

“Although this inquiry into the facts is to be searching and careful, the ultimate standard of 

review is a narrow one. The court is not empowered to substitute its judgment for that of the 

agency.” Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 416 (1971). 
11 

“This standard applies when assessing an agency’s compliance with NEPA.” WildEarth 

Guardians, 368 F. Supp. 3d at 57–58. “An environmental impact statement is reviewed to 

ensure that the agency took a hard look at the environmental consequences of its decision to go 

forward with the project.” Nat’l Comm. for the New River v. FERC, 373 F.3d 1323, 1327 (D.C. 

Cir. 2004) (internal quotations and citation omitted). “When an agency is evaluating scientific 

data within its technical expertise, an extreme degree of deference to the agency is warranted.” 

Id. (internal quotation marks and citation omitted). Therefore, the Court’s task “is not to 

‘flyspeck’” the agency’s analysis “for ‘any deficiency no matter how minor.’” Sierra Club v. 

FERC, 827 F.3d 36, 46 (D.C. Cir. 2016) (quoting Theodore Roosevelt Conservation P’ship v. 

Salazar, 661 F.3d 66, 75 (D.C. Cir. 2011)). Rather, NEPA’s “rule of reason” dictates that an 

agency’s assessment is sufficient unless its “deficiencies are significant enough to undermine 

informed public comment and informed decisionmaking.” Sierra Club (Southeast Market), 867 

F.3d at 1368 (citing Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 767 (2017); Oceana, 37 F. 

Supp. 3d at 154. 

IV. ANALYSIS

A. Ripeness

As a threshold issue, Intervenor-Defendants API and Louisiana first argue that Plaintiffs’ 

claims are not ripe. See La. Mot. at 8–10; API Mot. at 16–18; see also Sustainable Econ. v. 

Jewell, 779 F.3d at 596 (“We must address standing and ripeness issues at the threshold.”).3

 The 

3

Although none of the parties have challenged Plaintiffs’ standing, the Plaintiff 

organizations have attached multiple declarations of their members that satisfy their burden of 

establishing Article III standing. See WildEarth Guardians, 368 F. Supp. 3d at 60 (“Plaintiffs, as 

the parties invoking this Court’s jurisdiction, bear the burden of establishing all three elements of 

standing.”). “[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they 

use the affected area and are persons ‘for whom the aesthetic and recreational values of the area 

will be lessened’ by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. 
12 

ripeness doctrine limits Article III courts to hearing cases that are “constitutionally and 

prudentially ripe,” meaning that they involve a “present injury” and “take into account prudential 

concerns” of whether judicial resolution is appropriate at that time. Wyo. Outdoor Council v. 

U.S. Forest Serv., 165 F.3d 43, 48 (D.C. Cir. 1999). In the NEPA context, “an agency’s NEPA 

obligations mature only once it reaches a ‘critical stage of a decision which will result in 

irreversible and irretrievable commitments of resources to an action that will affect the 

environment.’” Ctr. for Biological Diversity, 563 F.3d at 480 (quoting Wyo. Outdoor Council, 

165 F.3d at 49). 

The D.C. Circuit has addressed the issue of NEPA ripeness in the context of multi-stage 

leasing programs such as OCSLA on several occasions. For instance, in both Biological 

Diversity and Sustainable Economy, the Circuit rejected as unripe NEPA claims brought at the 

first stage of the OCSLA process: the five-year program. See Sustainable Econ., 779 F.3d at 599 

(“Here, as in [Biological Diversity], 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.”); Biological Diversity, 563 F.3d at 480. Both of those cases 

suggested that those claims would normally ripen at the second stage of OCSLA: the lease sale 

(TOC), Inc., 528 U.S. 167, 183 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735 

(1972)). The declarations include detailed descriptions of members’ planned and ongoing use of 

geographic areas in and around the Gulf of Mexico—including personal, recreational, aesthetic, 

and commercial use—that adequately establish an injury-in-fact. See Decls., ECF Nos. 34-2–34-

8. These declarations likewise satisfy the causation and redressability prongs of standing. “In 

NEPA procedural-injury cases, an ‘adequate causal chain’ contains two links: ‘one connecting 

the omitted EIS to some substantive government decision that may have been wrongly decided 

because of the lack of an adequate EIS,’ and ‘one connecting that substantive decision to the 

plaintiff’s particularized injury.’” WildEarth Guardians, 368 F. Supp. 3d at 63 (quoting Fla. 

Audubon Soc’y, 94 F.3d at 668). Here, the Federal Defendants’ alleged failure to comply with 

NEPA led directly to the Record of Decision and the holding of Lease Sale 257, “which will 

enable the oil and gas development causing Plaintiffs’ injuries.” Id. 
13 

stage, which is the one at issue in the present case. See Sustainable Econ., 779 F.3d at 600 

(“[Plaintiff] will have an opportunity to raise its NEPA claims . . . in response to specific lease 

sales.”); Biological Diversity, 563 F.3d at 481 (“Petitioners suffer little by having to wait until 

the leasing stage has commenced . . . .”). 

Unlike Biological Diversity and Sustainable Economy, this case has been brought at the 

lease sale stage, the second step of the OCSLA process. Courts in this district and others have 

routinely addressed NEPA claims on the merits at this stage. See, e.g., Gulf Restoration 

Network, 456 F. Supp. 3d at 90; Oceana, 37 F. Supp. 3d 147, 154 (D.D.C. 2014); Defs. of 

Wildlife v. Bureau of Ocean Energy Mgmt., Regul., Enf’t, 871 F. Supp. 2d 1312, 1333 (S.D. Ala. 

2012) (“NEPA and its [Supplemental EIS] requirement undoubtedly apply to the bid approval 

stage of an OCSLA drilling project.”). 

When this action was filed, the Record of Decision to hold Lease Sale 257 had been 

published and BOEM had issued a determination of NEPA adequacy for that decision, but the 

sale had not yet taken place. See Compl. ¶ 4. Since then, the sale has gone forward as planned, 

and high bidders identified, but no leases have yet become effective. See 2d Decl. of Bernadette 

Thomas ¶¶ 4, 9. The fact that the leases have not become effective does not impact the Court’s 

ripeness analysis. Although additional steps occur between the sale and the issuance of the 

leases, none of those steps involve further environmental analysis, and no party argues 

otherwise.4

 The Record of Decision is thus the final agency action that “mark[s] the 

4

 Louisiana’s opening ripeness argument at points appears to make this argument. See 

La. Mot. at 9 (“The D.C. Circuit and courts in this Circuit have consistently . . . reject[ed] NEPA 

challenges to OCSLA oil and gas actions as unripe whenever they occur before leases are 

issued.”); id. (“Merely holding a lease sale confers no right to perform any surface disturbing 

activity. And BOEM retains authority to reject bids and impose conditions upon leases issued.”). 

But Louisiana’s Reply brief effectively concedes any suggestion of this argument, citing at 

length the relevant portion of the District Court opinion in Fisheries which noted that 
14 

consummation of the agency’s decisionmaking process” for Lease Sale 257 and is an action

“from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) 

(cleaned up). 

Intervenor-Defendants rely heavily on the Circuit’s recent per curiam opinion in 

Fisheries Survival Fund v. Haaland, 858 F. App’x 371 (D.C. Cir. 2021), in which a NEPA 

challenge to an offshore wind farm was found to not be ripe even after the challenged lease was 

issued because BOEM had reserved the right to preclude all activity on the lease site pending 

further evaluation of development plans. There, the Circuit clarified that the relevant question is 

not whether any given stage has been reached, but whether the specific lease in question 

“reserves both the authority to preclude all activities pending submission of site-specific 

proposals and the authority to prevent proposed activities if the environmental consequences are 

unacceptable.” Id. at 372 (quoting Sierra Club v. Peterson, 717 F.2d 1409, 1415 (D.C. Cir. 

1983)). In particular, Defendant-Intervenors point to language in the district court opinion in 

Fisheries that described the relevant inquiry as whether the agency retains the authority to 

“preclude all surface disturbing activities.” Fisheries Survival Fund v. Jewell, No. 16-cv-2409, 

2018 WL 4705795, at *7 (D.D.C. Sept. 30, 2018), aff’d sub nom. Fisheries Survival Fund v. 

Haaland, 858 F. App’x 371) (quoting Wyo. Outdoor Council, 165 F.3d at 49); see also id. at *9, 

n.7 (“[T]he heart of [ripeness] is the question of whether the agency retains the authority to 

“identif[ying] lease issuance as the point when NEPA claims ripen” is “misleading” because 

those cases “described lease issuance as the critical stage for ripeness only as part of an explicit 

application of the Peterson rule.” See La. Reply at 5–6 (quoting Fisheries Survival Fund v. 

Jewell, No. 16-cv-2409, 2018 WL 4705795, at *9, n.7 (D.D.C. Sept. 30, 2018), aff’d sub nom. 

Fisheries Survival Fund v. Haaland, 858 F. App’x 371). Neither Louisiana nor any other party 

puts forth any reason as to why waiting for the issuance of the leases will result in a different or 

more factually developed administrative record, or points to any additional NEPA analysis that 

takes place between the lease sale and the issuance of the lease. 
15 

preclude all surface disturbing activity.”). Defendant-Intervenors take this language to mean that 

as long as BOEM can still theoretically prevent drilling, NEPA claims are unripe and thus 

unreviewable.5 See API Mot. at 18; La. Reply at 6. 

Defendant-Intervenors’ interpretation overextends the relevant precedent and fails to take 

into account the differences between this lease sale and the one in Fisheries. As the D.C. Circuit 

has explained in the context of the Endangered Species Act, which agencies must similarly apply 

at each phase of the OCSLA process, “the multi-stage nature of leasing programs under 

OCSLA” requires courts to “consider any environmental effects of a leasing program on a stageby-stage basis, and correspondingly evaluate [the statute’s] obligations with respect to each 

particular stage of the program.” Biological Diversity, 563 F.3d at 483; see also Oceana, 37 F. 

Supp. 3d at 162 (“NEPA regulations provide that agencies are allowed to ‘tier their 

environmental impact statements to eliminate repetitive discussions of the same issues and to 

focus on the actual issues ripe for decision at each level of environmental review.’” (quoting 40 

C.F.R. § 1502.20 (2013)) (emphasis added)). Determining which NEPA claims are ripe at which 

stages of the OSCLA process will necessarily overlap somewhat with the merits of the challenge, 

as Plaintiffs point out. See Pls.’ Opp’n at 38. But that is a feature of the multi-stage process, not 

a bug. See Biological Diversity, 563 F.3d at 473 (“This multi-tiered approach was designed to 

forestall premature litigation regarding adverse environmental effects that will flow, if at all, 

5

 Defendant-Intervenors’ argument also overlooks the procedural nature of a NEPA 

injury. Plaintiffs may hope that BOEM will change its mind, but their alleged injury is not that 

drilling may eventually occur, but that it may occur without the requisite “hard look” being 

taken. See Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 737 (1998) (“[A] person with 

standing who is injured by a failure to comply with the NEPA procedure may complain of that 

failure at the time the failure takes place, for the claim can never get riper.”). 
16 

only from the latter stages of [Outer Continental Shelf] exploration and production.” (internal 

quotations omitted)). 

Peterson, the case upon which Fisheries primarily relies, provides a useful example. As 

Plaintiffs point out, that case addressed on the merits whether the agency was obligated to 

prepare an EIS before a lease sale even though it anticipated conducting further analysis of the 

site-specific plans for exploration and development. Sierra Club v. Peterson, 717 F.2d 1409, 

1413 (D.C. Cir. 1983). In holding that the agency was obligated to prepare an EIS, the Circuit 

explained that “[i]n bifurcating its environmental analysis . . . the agency has taken a 

foreshortened view of the impacts which could result from the act of leasing.” Id. “[T]he 

appropriate time for preparing an EIS is prior to a decision, when the decisionmaker retains a 

maximum range of options.” Id. at 1414 (citations omitted). Therefore, the Court must 

determine whether the Bureau relinquished control of at least some activities with foreseeable 

environmental impacts during this specific lease sale.6

 Like in Peterson, the Court believes that 

the agency’s options and the information it can consider are meaningfully restricted following 

the lease sale. 

Plaintiffs point to the “ancillary activities” that lessees are allowed to begin conducting 

upon issuance of a lease, including “[g]eological and geophysical (G&G) explorations and 

6 API also cites North Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir. 1980) as support 

for its ripeness argument. API Mot. at 18. But that case bolsters, rather than contradicts, the 

basic framing of this question. Far from holding that the NEPA claims were unripe, North Slope

decided on the merits that the agency did not have to consider the still-uncertain costs and 

benefits of a “worst case” oil spill at the lease sale stage because of the future EIS and the fact 

that “[a]t this stage of review . . .we are chiefly (though not exclusively) concerned about those 

hazards associated with the limited preliminary activities permitted to the lessees during the lease 

sale phase.” N. Slope, 642 F.2d at605–06; see also id. at 606 (“At this stage, with prodigious 

proposing and reviewing to follow, we have no doubt that this EIS, useful and reasonably 

foresighted as it is, is valid under NEPA.”).
17 

development G&G activities,” as a distinction from Fisheries. 30 C.F.R. § 550.207(a); see Pls.’ 

Opp’n at 42–43. The record suggests that this activity, while perhaps minor in comparison to the 

total potential exploration and drilling that may occur at later stages, does itself impact the 

environment. See AR0008317 (“The G&G surveys can occur in both shallow and deepwater 

areas. Usually fishermen are precluded from a very small area for several days during active 

G&G surveying.”); AR0008798 (“Underwater noise sources from G&G activities include 

impulsive sound sources such as airguns, boomers, subbottom profilers, multibeam echosounders, and side-scan sonars, as well as continuous sources such as vessel and aircraft noise” 

which may impact marine mammals); AR0008800 (“Another impact-producing factor to marine 

mammals that is associated with G&G activities is the potential for . . . . various marine life [to] 

become entangled in some types of lines associated with G&G activities.”). 

As API points out, the lessee must submit a notice before commencing those activities, 

30 C.F.R. § 550.208, and the Regional Supervisor may require additional documentation and 

approval if the ancillary activity does not satisfy the regulatory performance standards, 30 C.F.R. 

§ 550.209, one of which is that the activity “[d]oes not cause undue or serious harm or damage to 

the human, marine, or coastal environment.” 30 C.F.R. § 550.202(e).7

 Still, this notice-andpotential-documentation procedure for ancillary activities is an inadequate substitute for the 

rigorous and comprehensive “hard look” NEPA imposes at the lease sale stage, not to mention 

the opportunities for public comment that an EIS provides. See Sierra Club (Southeast Market), 

7

 The EISs seem to treat the issuance of at least some ancillary permits as a certain impact 

of the lease sale itself. See AR0008199 (“[A]t the lease issuance stage, no activities beyond 

certain ancillary activities are actually authorized by the lease; therefore, there are few 

environmental impacts reasonably expected from the lease sale itself . . . .”); AR0015585 

(estimating between 19 and 214 ancillary permits “leading up to and following” a given lease 

sale).
18 

867 F.3d at 1367 (The EIS “forces the agency to take a ‘hard look’ at the environmental 

consequences of its actions” and “ensures that these environmental consequences, and the 

agency’s consideration of them, are disclosed to the public.”). 

And as Plaintiffs point out, the lease sale stage is the last point at which the Bureau is 

definitively required to conduct an EIS for leases in the Gulf of Mexico. Pls.’ Opp’n at 39–40. 

Interior’s Department Manual8 and regulations state that the preparation of a 5-Year Program 

and each Lease Sale “will normally require the preparation of an EIS,” but unlike leases in other 

areas, exempts development and production plans in the central and western Gulf of Mexico 

from that requirement. 516 DM § 15.4(A); see also 43 U.S.C. § 1351(e)(1) (“At least once the 

Secretary shall declare the approval of a development and production plan in any area or region 

(as defined by the Secretary) of the outer Continental Shelf, other than the Gulf of Mexico, to be 

a major Federal action.”); 30 C.F.R. § 550.269(a) (“At least once in each OCS planning area 

(other than the Western and Central [Gulf of Mexico] Planning Areas), the Director will declare 

that the approval of a proposed [Development and Production Plan] is a major Federal action, 

and [the Bureau] will prepare an EIS.”); Ctr. for Biological Diversity v. Zinke, 260 F. Supp. 3d 

11, 18 (D.D.C. 2017) (noting that “Interior invoked these categorical exclusions when it 

approved British Petroleum’s initial and revised exploration plan” for the well that eventually 

“blew out and caused the Deepwater Horizon oil rig to explode.”).

API takes issue with this characterization, replying that the Bureau “employs a detailed 

process for evaluating whether to apply a categorical exclusion.” API Reply at 12 (emphasis in 

original). It similarly points out that BOEM requires lessees to submit an environmental impact 

8 Managing the NEPA Process, Minerals Management Service, Departmental Manual,

516 DM § 15.4(A), U.S. Dep’t of Interior, https://www.doi.gov/sites/doi.gov/files/elips/

documents/516-dm-15.pdf (last updated May 2004). 
19 

assessment “to assist the Regional Supervisor in complying with [NEPA]”, 30 C.F.R. 

§ 550.227(a)(3), and in practice routinely requires additional information from lessees with 

proposed projects in order to meet its NEPA obligations at later stages. API Reply at 12–13. 

Even so, just as was the case with the notice requirement for ancillary activities, deciding 

whether to apply a categorical exemption for a particular lease is not a substitute for the 

requirement to take a “hard look” at the environmental consequences of the project. An agency 

cannot avoid its procedural obligations under NEPA by deferring its analysis to processes that do 

not meet the same standard. Allowing it to avoid review of an allegedly inadequate NEPA 

action it did take on the basis that it will undertake further discretionary review down the road 

would amount to an impermissible “just trust us” from the agency.

It is also ill-suited for considering the collective impacts of the leases together, something 

the agency is required to consider under NEPA. See 40 C.F.R. § 1508.7 (2019) (defining 

cumulative impacts for the purpose of NEPA);9 Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976) 

(“[W]hen several proposals . . . will have cumulative or synergistic environmental impact upon a 

region . . . their environmental consequences must be considered together. Only through 

comprehensive consideration of pending proposals can the agency evaluate different courses of 

action.”); Nat. Res. Def. Council, Inc. v. Hodel, 865 F.2d 288, 297 (D.C. Cir. 1988) (finding 

inadequate under NEPA an EIS that did not consider the cumulative impact of multiple leases); 

Native Vill. of Point Hope v. Jewell, 740 F.3d 489, 503 (9th Cir. 2014) (“Once BOEM made the 

determination that production is reasonably foreseeable, it was required to consider the full 

cumulative impact of that production.”). A site-specific environmental assessment may be 

9 This particular definition has since been replaced in NEPA’s implementing regulations, 

but as previously explained, was controlling at the time of the challenged action. 
20 

preferable for certain environmental impacts, such as the risk of oil spills, see N. Slope Borough 

v. Andrus, 642 F.2d 589, 605–06 (D.C. Cir. 1980), but “[i]t is only at the lease sale stage that the 

agency can adequately consider cumulative effects of the lease sale on the environment, 

including . . . the effects of the sale on climate change,” Point Hope, 740 F.3d at 504. The need 

for consideration of the cumulative impacts of multiple leases was notably absent from Fisheries, 

which involved a single proposed lease site where all future development would be approved or 

disapproved in the later analysis. Fisheries, 2018 WL 4705795, at *3. 

Indeed, this appears to be the way that BOEM itself understands its NEPA obligations. 

The Program EIS and Multisale EIS described the agency’s decision to prepare an EIS for the 

five-year program as “discretionary” because “the obligation to fully comply with NEPA does 

not mature until leases are issued.” AR0014248; AR0008199. In contrast, the 2018 

Supplemental EIS, which was prepared “to inform decisions for each of the two lease sales 

scheduled in 2018,” noted that “[t]he decision on whether and how to proceed with proposed 

Lease Sale 250 will be made following the completion of this [NEPA] analysis” with no such 

mention of discretionary preparation. AR0015479. Notably, the Federal Defendants do not 

challenge this action on ripeness grounds, and none of the parties argue that the lease sale was 

not a “major federal action” requiring the agency to take a hard look at its actions under NEPA. 

Fisheries is further distinguishable from the present situation because the lease and 

regulations at issue here are meaningfully more restrictive of BOEM’s discretion to prevent and 

preclude environmental impacts once the leases are issued. See Pls.’ Opp’n at 45. Both the 

district court and the Circuit in Fisheries examined the regulations and the terms of the lease 

closely. Fisheries, 858 F. App’x at 372; Fisheries, 2018 WL 4705795, at *7–8. The wind lease 

in Fisheries by its terms did not “authorize any activity within the leased area,” offering only the 
21 

exclusive right to submit a Construction and Operations Plan. Fisheries, 2018 WL 4705795, at 

*8. By contrast, the relevant form that will be used for Lease Sale 257 is Form BOEM-2005,10

which grants “the exclusive right and privilege to drill for, develop, and produce oil and gas 

resources” subject to applicable statutes and regulations. 

The regulations applicable to the wind lease in Fisheries and oil and gas leases here are 

similar, but not identical. For instance, both the relevant regulations allow the agency to cancel a 

lease after “notice and opportunity for a hearing,” if continued activity would cause “harm or 

damage” to the environment that “would not disappear or decrease to an acceptable extent within 

a reasonable period of time; and . . . [t]he advantages of cancellation outweigh the advantages of 

continuing the lease or grant in force.” Compare 30 C.F.R. § 585.437(b)(4) (cancellation of 

wind lease) with 30 C.F.R. § 550.181(a–c) (cancellation of oil and gas leases). The district court 

in Fisheries found that those conditions did not rise to the level of “any transfer of authority to 

prevent lease activities out of BOEM’s hands.” Fisheries, 2018 WL 4705795, at *8. In contrast, 

the oil and gas lease cancellations carry the additional requirements that “[a] suspension has been 

in effect for at least 5 years or” the lessee requests cancellation, 30 C.F.R. § 550.181(d), and the 

lessee is entitled to compensation, 30 C.F.R. § 550.184. See also 43 U.S.C. § 1334(a)(2)(A–C). 

These additional limitations, while not allowing for drilling, represent an irretrievable 

commitment of resources in the sense that once a lease is issued, BOEM cannot unilaterally undo 

that decision for at least five years and the government must pay a penalty if it does so.11 

10 Oil and Gas Lease of Submerged Lands Under the OCS Lands Act, U.S. Dep’t of 

Interior, https://www.boem.gov/sites/default/files/about-boem/Procurement-BusinessOpportunities/BOEM-OCS-Operation-Forms/BOEM-2005.pdf (last updated Feb. 2017). 

11 Furthermore, approval of the exploration and development plans also moves along a 

quicker timeline that necessarily limits the scope of inquiry at that stage. See 30 C.F.R. § 

550.23330 (requiring the Regional Director to take action on a submitted exploration plan within 

30 calendar days). And challenges to the third and fourth stages of OCSLA can only be brought 
22 

Taking into account the limits on the Bureau’s discretion once the leases have been 

issued, ancillary activity that may begin immediately, the lack of requirement for BOEM to 

prepare an additional EIS at later stages, the need for BOEM to review the cumulative impact of 

the sale, the requirement for compensation should BOEM decide to cancel a lease, and the sheer 

size of Lease Sale 257, it is all but certain that completion of this stage will be the point of no 

return for at least some environmental consequences. Cf. WildEarth Guardians, 368 F. Supp. 3d 

at 66 (“While it may be true that after the leasing stage [the agency] can impose conditions to 

limit and mitigate . . . emissions and other environmental impacts, . . . the leasing stage is the 

point of no return with respect to emissions.”). The agency has therefore reached the “critical 

stage of a decision which will result in irreversible and irretrievable commitments of resources to 

an action that will affect the environment.” Wyo. Outdoor Council, 165 F.3d at 49. Although 

BOEM was not required to do all that Plaintiffs request, that is not a question of ripeness but of 

the merits, to which the Court turns next.

B. NEPA Challenges

1. Exclusion of Foreign Consumption in the Calculation of Greenhouse Gas Emissions

Plaintiffs’ first challenge is to the Bureau’s calculation of total greenhouse gas emissions 

from Lease Sale 257, specifically, its exclusion of foreign greenhouse gas emissions from its 

quantitative calculation in the No Action Alternative. See Compl. ¶¶ 174–83. The Program 

EIS—prepared for the full five-year program—analyzed the upstream and downstream emissions 

for the program, AR0014378–83, relying in large part on a more targeted BOEM report entitled 

in a U.S. Court of Appeals. See 43 U.S.C. § 1349(c)(2) (“Any action of the Secretary to 

approve, require modification of, or disapprove any exploration plan or any development and 

production plan under this subchapter shall be subject to judicial review only in a United States 

court of appeals for a circuit in which an affected State is located.”). 
23 

OCS Oil and Natural Gas Emissions and Social Cost of Carbon (“Wolvovsky and Anderson 

Report”), AR0014186–241. In that report, BOEM quantified the difference between the 

greenhouse gas emissions that would occur under the five-year program and the emissions that 

would occur if no leasing took place during that period. AR0014207. “[T]he majority of 

[greenhouse gas] emissions” in all alternatives resulted from downstream emissions, and 

primarily consumption. AR0014233. Calculating emissions as a result of consumption in the 

No Action Alternative, however, required BOEM to calculate the consumption emissions that 

would be substituted, at least in part, from other sources, some of which may be more carbon 

intensive. AR0014207–09. 

BOEM also recognized that the decision not to produce oil and gas through the leasing 

program would decrease the supply of those fuels and raise the price, thereby impacting 

consumption through the basic functioning of supply and demand. AR0014214–15. In order to 

calculate the impact of those changes in consumption on downstream emissions, BOEM ran a 

market simulation model called MarketSim. AR0014208. After applying MarketSim to the 

downstream emissions analysis for the No Action Alternative, BOEM reached the conclusion 

that total greenhouse gas emissions “would be slightly higher if BOEM were to have no lease 

sales” during the five-year program. AR0014233 (emphasis added). When completing the 

Multisale EIS and the 2018 Supplemental EIS, BOEM relied on the Wolvovsky and Anderson 

Report and again reached the same conclusion: That total greenhouse gases emissions would 

actually be higher if no lease sales took place. AR0015651; AR0008545. 

Plaintiffs argue that this counterintuitive conclusion is the result of certain erroneous 

assumptions. See Pls.’ Mot. at 30–31; Pls.’ Opp’n at 4. Specifically, the model assumed that 

foreign production would substitute for domestic production and would be more carbon-
24 

intensive, and it excluded changes in foreign demand from its calculation. AR0014188 (“BOEM 

assumed that . . . foreign sources of oil will substitute for reduced [Outer Continental Shelf] 

supply, and the production and transport of that foreign oil would emit more [greenhouse 

gasses].”); AR0014220 (“The reduction in foreign consumption of oil and gas in a no action 

analysis is not taken into account.”). Plaintiffs argue that the record shows both that BOEM had 

the ability to calculate the emissions results of change in foreign consumption and that it was 

necessary to do so. Pls.’ Mot. at 11. Importantly, the MarketSim model did in fact calculate a 

substantial decrease in “foreign oil consumption of approximately 1, 4, and 6 billion barrels of 

oil for the low, mid, and high price scenarios respectively over the duration of the 2017–2022 

Program” in that same report. AR0014220. Nevertheless, BOEM excluded the reduction in

consumption of barrels of oil that it had itself identified from its emissions analysis. Id. 

a. The Liberty and Willow Decisions

Importantly, both the Ninth Circuit and the District Court for the District of Alaska have 

had occasion to evaluate the use of this exact same model, and exact same assumption, and both 

found it to be arbitrary and capricious. See Ctr. for Biological Diversity v. Bernhardt, 982 F.3d 

723 (9th Cir. 2020) [hereinafter “Liberty”]; Sovereign Iñupiat for a Living Arctic v. Bureau of 

Land Mgmt., No. 3:20-cv-00290, 2021 WL 3667986 (D. Alaska Aug. 18, 2021) [hereinafter 

“Willow”].12 In Liberty, the Bureau utilized the MarketSim model to calculate the downstream 

12 Although neither Liberty nor Willow are binding, the Court finds them highly 

persuasive in light of the fact that they analyzed the exact same market model methodology—

and in Liberty, the same Wolvovsky and Anderson Report—as is at issue here. See Resp’t’s 

Answering Br., Liberty, 18-cv-73400, 2019 WL 2713970, at *9, n.1 (“The full methodology for 

this lifecycle analysis is described in a BOEM report that is part of the administrative record. See 

OCS Oil and Natural Gas: Potential Lifecycle Greenhouse Gas Emissions and Social Cost of 

Carbon (Nov. 2016).”); Compl., Willow, 3:20-cv-00308, 2020 WL 7624155, ¶ 50 (D. Alaska

Dec. 21, 2020) (“BLM reached this implausible conclusion through a flawed application of a 

market simulation model (MarketSim) developed by BOEM.”). 
25 

indirect emissions from foreign oil consumption in its No Action alternative for the proposed 

drilling project known as the Liberty Project. Liberty, 982 F.3d at 736. Just as in the challenged 

EIS here, the MarketSim used in the Liberty EIS “assume[d] that foreign oil consumption will 

remain static, whether or not oil is produced at Liberty.” Id. And just as here, the Liberty EIS 

“estimate[d] that the no-action alternative will result in a reduction in oil consumption of one, 

four, or six billion barrels of oil, depending on the market price of oil” but did not include the 

effect on greenhouse gas emissions resulting from those reductions “because [BOEM] 

determined it did not have sufficiently reliable information on foreign emissions factors and 

consumption patterns.” Id. at 737. The Ninth Circuit found that determination to be arbitrary 

and capricious, holding that BOEM “‘should have either given a quantitative estimate of the 

downstream greenhouse gas emissions’ that will result from consuming oil abroad, or ‘explained 

more specifically why it could not have done so,’ and provided a more thorough discussion of 

how foreign oil consumption might change the carbon dioxide equivalents analysis.” Id. at 740 

(quoting Sierra Club (Southeast Market), 867 F.3d at 1374). 

Similarly, in Willow the agency “used the same emissions modeling approach” for the 

Willow development project and relied on the same justifications of “a negligible impact and a 

purported lack of information on foreign energy consumption and emissions patterns” to justify 

not calculating foreign greenhouse gas emissions. Willow, 2021 WL 3667986, at *10–11. 

Significantly, although the agency in Willow provided “a lengthier explanation” of its decision 

not to do so, the court rejected that explanation because it did not “describe the research it relied 

upon to reach these conclusions” or “address the studies that were [also] in the agency record in 

Liberty.” Id. at *12. 
26 

b. BOEM’s Analysis is Entitled to Deferential Review

Before drilling down into the merits of BOEM’s analysis in the present case, the Court 

must briefly survey the applicable standard of review. Reviewing courts should “give an 

extreme degree of deference to the agency when it is evaluating scientific data within its 

technical expertise.” Communities for a Better Env’t v. E.P.A., 748 F.3d 333, 336 (D.C. Cir. 

2014); see also Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 

(1983) (stating that when an agency makes scientific predictions “within its area of special 

expertise,” “a reviewing court must generally be at its most deferential”). Defendants naturally 

argue that this standard applies here. See Defs.’ Mot. at 24; La. Mot. at 8; API Mot. at 19–20. 

But Plaintiffs push back on that argument, noting that estimation of market trends, while 

technical, is outside of BOEM’s area of expertise. Pls.’ Opp’n at 8. In fact, the Ninth Circuit 

held exactly that in Liberty, explaining that BOEM’s “area of expertise is the management of 

conventional (e.g., oil and gas) and renewable energy-related functions, including activities 

involving resource evaluation, planning, and leasing. The scope of its expertise does not include 

the economic analysis of greenhouse gas emissions.” Liberty, 982 F.3d at 740 (cleaned up). 

The Court acknowledges that even though economic market calculations fall outside the 

traditional core of BOEM’s expertise, it does have significant experience in those matters. Cf. 

Delta Air Lines, Inc. v. Exp.-Imp. Bank of United States, 85 F. Supp. 3d 436, 462 (D.D.C. 2015) 

(determining that an agency with “much experience with global financial markets generally and 

the aircraft financing market in particular” was entitled to substantial deference even though it 

had “not, until recently, subjected aircraft financing transactions to in-depth economic impact 

analysis”). The Court therefore gives BOEM’s use of the MarketSim model substantial 

deference. Nevertheless, substantial deference “does not mean that our review is toothless but 
27 

merely that we must be very cautious in entertaining an invitation to reverse.” AT&T Corp. v. 

FCC, 220 F.3d 607, 616 (D.C. Cir. 2000) (quoting Thomas v. NLRB, 213 F.3d 651, 657 (D.C. 

Cir. 2000)). Even under a deferential review, the Court believes that BOEM acted arbitrarily in 

excluding foreign consumption from its emissions analysis. 

c. The Application of the MarketSim Model to Exclude Foreign Emissions was Arbitrary and 

Capricious 

All Defendants first argue that BOEM was not required to consider the downstream 

effects of emissions from consumption at the lease sale stage at all because it is so speculative. 

See La. Mot. at 10–12; API Mot. at 24–25; Defs.’ Mot. at 19–20. There is some merit to this 

argument. Both Liberty and Willow were cases that evaluated the EIS for a proposed 

development and production plan rather than a lease sale. Liberty, 982 F.3d at 731; Willow, 2021 

WL 3667986, at *1–2. And it is true that agencies are not required to quantitatively assess 

potential consequences that are too remote or speculative at the lease stage. See Sierra Club v. 

U.S. Dep’t of Energy, 867 F.3d 189, 202 (D.C. Cir. 2017) [hereinafter “Sierra Club (FLEX)”] 

(the agency did not need to quantify the net effect on emissions from the potential competition of 

exported liquified natural gas with other energy sources); N. Slope Borough v. Andrus, 642 F.2d 

at 605–06 (agency’s discussion of a potential worst-case oil spill scenario in a lease sale EIS was 

sufficient where additional relevant information would become known at later stages, which 

themselves would require a new EIS); Tribal Vill. of Akutan v. Hodel, 869 F.2d 1185, 1192 (9th 

Cir. 1988) (the Ninth Circuit was “least troubled by what may seem to be incomplete or 

speculative data” on oil spill risks in a lease sale EIS because “an oil spill risk analysis can never 

be more than speculative” without more information on the location and amount of production); 

Gulf Restoration Network, 456 F. Supp. 3d at 98 (the “underlying assumption that the effects of 

holding the lease sales now, as opposed to sometime in the future, are virtually the same” was 
28 

reasonable for the purpose of considering a No Action Alternative); Wilderness Soc’y v. Salazar, 

603 F. Supp. 2d 52, 62 (D.D.C. 2009) (lease sale EIS contained sufficient analysis of sitespecific environmental impacts where the agency “did not know the exact location of exploratory 

wells and development at the time of the EIS” and “further site-specific analysis will be 

conducted prior to exploration in the planning area”). Many of those cases involved calculation 

of the risk from oil spills or to specific animals, which is more easily and accurately calculated at 

the exploration or development stage and on a site-specific basis. The same is not true of the 

reduction in foreign consumption discussed here, which depends on trends and production in 

other countries rather than any site-specific information.13 

The Federal Defendants’ discussion of Sierra Club (FLEX) is more analogous, but still 

distinguishable. In that case, the agency compared the foreign emissions from exported liquified 

natural gas “to emissions of coal or other sources of natural gas” but did not also consider “the 

potential for [liquified natural gas] to compete with renewables.” Sierra Club (FLEX), 867 F.3d 

at 202. It is unclear the extent to which the suggested factor in Sierra Club (FLEX) would have 

introduced uncertainty to an otherwise reliable analysis. See id. (noting that method employed to 

calculate downstream emissions was not challenged). Here, though, it is doubtful that 

consideration of the decrease in foreign consumption would have been any more speculative than 

the quantitative result the agency produced in the absence of that factor. Indeed, it is highly 

likely that the failure to consider it undermined the reliability of the ultimate quantitative, but 

13 Louisiana’s argument that “the hazard of climate change . . . is far more remote than 

the hazard of an oil spill” is unpersuasive for this same reason. See La. Mot. at 12. Also worth 

noting is that many of Defendant-Intervenor’s cited cases included a requirement for further sitespecific analysis, which may not be the case here because BOEM is not required to prepare 

another EIS at the exploration or production stages in the Gulf of Mexico. See supra Section 

IV.A.
29 

uncertain, result the agency reached.14 See AR0014381 (stating in the Program EIS that “[t]here 

is a significant degree of uncertainty in these numbers” in part because “the likely overseas

reduction in consumption under the No Action Alternative is not calculated in this analysis”). 

Moreover, in addition to concerns about feasibility, the Department of Energy reasonably 

concluded in Sierra Club (FLEX) that the resulting conclusion would “be too speculative to 

inform the public interest determination” that it was tasked with making. Sierra Club (FLEX), 

867 F.3d at 202 (quotations omitted). Here, there is little doubt that a more complete 

consideration of total greenhouse gas emissions would have significantly informed BOEM’s 

decision. All three EISs emphasized the importance of climate change to the agency’s decision 

and the relevance of lifecycle greenhouse gas emissions to U.S. efforts to combat it. See, e.g.,

AR0014284 (pointing out in the Program EIS that “the U.S. Intended Nationally Determined 

Contributions [] memorialized in the 2016 Paris Agreement do not assume ‘zero’ oil and gas 

production or consumption in the future, but rather declining emissions from oil.’”) (emphasis 

added); see also WildEarth Guardians, 368 F. Supp. 3d at 70 (“[The agency] did in fact have 

information allowing it to forecast [greenhouse gas] emissions . . . . [It] could have expressed the 

forecasts as ranges, and it could have explained the uncertainties underlying the forecasts, but it 

14 Louisiana’s characterization of this Court’s opinion in WildEarth Guardians as 

creating a bright-line rule that excuses agencies from considering climate change on the 

international level is unwarranted. See La. Mot. at 15. That case involved an agency that 

refused to quantify emissions resulting from particular lease parcels, and thus “could not 

conceptualize the extent to which the lease sales would contribute to the local, regional, and 

global climate change discussed qualitatively in the . . . tiered EISs.” Wildearth Guardians, 368 

F. Supp. at 77. Moreover, any such bright-line rule could not be squared with NEPA’s mandate 

that all federal agencies “recognize the worldwide and long-range character of environmental 

problems and, where consistent with the foreign policy of the United States, lend appropriate 

support to initiatives, resolutions, and programs designed to maximize international cooperation 

in anticipating and preventing a decline in the quality of mankind’s world environment.” 42 

U.S.C. § 4332(F). 
30 

was not entitled to simply throw up its hands and ascribe any effort at quantification to a crystal 

ball inquiry.” (quotations omitted)).

API’s assertion that the agency did not need to consider the impacts of emissions at this 

stage because it “lacks authority under OCSLA to withhold leasing” likewise fails. See API 

Mot. at 27. While true that “[a]n agency has no obligation to gather or consider environmental 

information if it has no statutory authority to act on that information,” Sierra Club (Southeast 

Market), 867 F.3d at 1372, the relevant question is not “[w]hat activities does [the agency]

regulate?”, but “[w]hat factors can [the agency] consider when regulating in its proper sphere?”, 

id. at 1373. BOEM had the ability to cancel Lease Sale 257 “on the ground that [it] would be too 

harmful to the environment,” making it “a legally relevant cause of the direct and indirect 

environmental effects . . . it approves.” Id. (quotations omitted).15 API overreads this Court’s 

opinion in Oceana, which addressed the reasonableness of BOEM’s conclusion “that the 

environmental impact of cancelling this particular lease would not significantly change because 

. . . . if this particular lease sale did not go forward, another lease sale in the same area eventually 

would” when deciding that BOEM had adequately considered a No Action Alternative. Oceana, 

15 The Department of the Interior recently confirmed this discretion about whether to hold 

each particular lease sale at oral argument in another OCSLA case, saying that “the fact that 

there is a schedule of ten leases [in the Five-Year Plan] does not mean that Interior is going to do 

each of those leases . . . after scheduling, here, ten lease sales over a five-year period, Interior 

can’t then add an eleventh sale to that five-year period, but . . . within the five-year plan, 

decisions about how many leases and what those leases look like are made at the second stage.” 

Oral Arg. at 24:15–25:26, Gulf Restoration Network v. Haaland, 20-cv-5179 (D.C. Cir. Jan. 10, 

2022), on appeal from Gulf Restoration Network v. Bernhardt, 456 F. Supp. 3d 81, 97 (D.D.C. 

2020), https://www.cadc.uscourts.gov/recordings/recordings2021.nsf/33994C9D49F6983485258

7C60066564E/$file/20-5179.mp3. In addition to being at odds with the agency’s own 

understanding of OCSLA, API’s position is also in serious tension with the fact that NEPA 

claims are considered not to be ripe at the Five-Year Program stage. See Sustainable Econ., 779 

F.3d at 599. Accepting API’s position would mean that all planned lease sales in a five-year 

program must take place even though the Five-Year Program was never subject to judicial 

review for NEPA compliance. Such a result would all but render NEPA toothless. 
31 

37 F. Supp. 3d at 172 (cleaned up). The fact that such an assumption might be reasonable does 

not mean that OCSLA “mandate[s] the approval of every proposed lease sale.” Gulf Restoration 

Network, 456 F. Supp. 3d at 97 (emphasis in original).16 

Perhaps most importantly, BOEM actually did quantify the effect of the proposed lease 

sales on foreign consumption. The relevant section of the Wolvovsky and Anderson Report 

states that “for the global oil market, MarketSim substitutions under the No Action Alternative 

show a reduction in foreign oil consumption of approximately 1, 4, and 6 billion barrels of oil for 

the low-, mid-, and high-price scenarios respectively over the duration of the 2017–2022 

Program.” AR0014220. But despite that recognition that the change in foreign consumption 

was both foreseeable and quantifiable in terms of barrels of oil, the very next sentence goes on to 

state that this effect was nevertheless excluded from the total quantitative emissions calculation. 

Id. In doing so, BOEM “entirely failed to consider an important aspect of the problem” that it 

had just identified the sentence before, a classically arbitrary action. See State Farm Mutual 

Auto. Ins., 463 U.S. at 43. Plaintiffs’ argument is therefore not that BOEM was required to 

consider “all emissions effects in one EIS,” see La. Reply at 7, but rather that it “should have 

used its ability to estimate foreign emissions . . . rather than zeroing out a key variable” in the 

quantitative analysis it chose to conduct, see Pls.’ Opp’n at 13.17 

In fact, “[t]he record belies BOEM’s contention that it could not have summarized or 

estimated foreign emissions with accurate or credible scientific evidence.” Liberty, 982 F.3d at 

16 Further, Plaintiffs have not challenged that particular assumption of the No Action 

Alternative in this case, making API’s reliance on the similarity between the language of the No 

Action Alternative in this case and Oceana inapposite. See API Mot. at 28–29. 

17 The MarketSim model did not calculate any change in foreign demand for natural gas 

or likewise include foreign emissions for natural gas in its analysis, AR0014220, but Plaintiffs 

have not challenged that particular exclusion. 
32 

738. The record in this case includes papers from the Stockholm Environment Institute that 

underscore the likely decrease in foreign consumption and provides a methodology for 

translating the reduction in barrels of oil into a reduction in greenhouse gas emissions, some of 

which were also present in the Liberty record. Id.; AR0026911–AR0026958 (Erickson & 

Lazarus 2016, How would phasing out U.S. Federal Leases for Fossil Fuel Extraction affect 

CO2 Emissions and 2°C goals?); AR0026965–66 (Erickson 2017, Final Obama Administration 

Analysis Shows Expanding Oil Supply Increases CO2); AR0026967–AR0026969 (Erickson 

2016, U.S. Again Overlooks Top CO2 Impact of Expanding Oil Supply . . . But that Might 

Change). One of those reports did exactly what BOEM claims was not possible, translating the 

agency’s own estimate of the reduction in barrels of oil at each price point into greenhouse gas 

emissions by “[u]sing standard energy contents (from the U.S. Department of Energy) and 

carbon contents (from the U.S. Environmental Protection Agency), and discounting the oil used 

in products and not combusted.” AR0026966.18 

The Wolvovsky and Anderson Report, as well as the later EISs that incorporated it, 

acknowledged that a decrease in foreign emissions was likely, but was not reflected in its 

analysis. AR0014220; AR0014381 (acknowledging “a significant degree of uncertainty” in the 

lifecycle greenhouse gas emission numbers, including that “the likely overseas reduction in 

consumption under the No Action Alternative is not calculated” in the Program EIS); 

18 The Federal Defendants criticize the usefulness of the Stockholm studies on several 

grounds. Defs.’ Mot. at 22–23. But “because a reviewing court . . . must judge the propriety of 

agency action solely by the grounds invoked by the agency, post hoc explanations that the 

agency did not articulate when it acted are insufficient.” NAACP v. Trump, 298 F. Supp. 3d 209, 

237 (D.D.C. 2018) (cleaned up). Plaintiffs are correct that these critiques are nowhere to be 

found in the agency record, and that in fact the Draft EIS for Lease Sale 258 largely adopts the 

Stockholm model. See Pls.’ Opp’n at 12 (quoting LS 258 DEIS 47–48)). As the Federal 

Defendants do not respond to that point in their Reply brief, the Court deems those particular 

arguments conceded. 
33 

AR0015651 (same in the 2018 Supplemental EIS). While “the effects of assumptions on 

estimates can be checked by disclosing those assumptions so that readers can take the resulting 

estimates with the appropriate amount of salt,” Sierra Club (Southeast Market), 867 F.3d at

1374, an agency’s obligation in the face of missing or incomplete information goes beyond just 

acknowledging it. The relevant regulation, 40 C.F.R. § 1502.22 (2019), requires that: 

If the information relevant to reasonably foreseeable significant adverse impacts 

cannot be obtained . . . the agency shall include within the environmental impact

statement: (1) A statement that such information is incomplete or unavailable; (2) 

a statement of the relevance of the incomplete or unavailable information to

evaluating reasonably foreseeable significant adverse impacts on the human

environment; (3) a summary of existing credible scientific evidence which is

relevant to evaluating the reasonably foreseeable significant adverse impacts on the 

human environment, and (4) the agency’s evaluation of such impacts based upon 

theoretical approaches or research methods generally accepted in the scientific 

community. 

40 C.F.R. § 1502.22(b) (2019). 

The entirety of the Wolvovsky and Anderson Report’s explanation for excluding the 

reduction in foreign consumption from its emissions analysis was that “Oil consumption in each 

country is different and BOEM does not have information related to which countries would 

consume less oil. This is important information since consumption patterns vary by country.” 

AR0014220. This nearly verbatim language, which “does not cite any materials in support of 

these statements nor describe the research it relied upon to reach these conclusions,” was found 

“insufficient to satisfy NEPA’s requirements” by the Ninth Circuit in Liberty. Liberty, 982 F.3d 

at 738. This Court agrees and believes that it is insufficient under the relevant D.C. Circuit 

precedent as well.19 

19 While not controlling or as factually similar as Liberty, the Tenth Circuit’s reasoning in 

WildEarth Guardians v. U.S. Bureau of Land Mgm’t, 870 F.3d 1222 (10th Cir. 2017), is likewise 

persuasive. That Court found the agency’s assumption of perfect substitution of coal production 

in the No Action Alternative to be “arbitrary and capricious because it lacks support in the 

administrative record and ignores basic supply and demand principles; and it ignored readily 
34 

In Sierra Club (Southeast Market),

20 the D.C. Circuit held that “NEPA analysis 

necessarily involves some ‘reasonable forecasting,’ and that agencies may sometimes need to 

make educated assumptions about an uncertain future” in the context of finding FERC’s decision 

not to quantify “the downstream greenhouse emissions that will result from burning the natural 

gas that the pipelines” at issue would transport was arbitrary and capricious. Sierra Club 

(Southeast Market), 867 F.3d at 1374. In reaching that conclusion, it pointed to the fact that 

FERC had “already estimated how much gas the pipelines will transport” and that the record 

“even cited a Department of Energy report that gives emissions estimates per unit of energy 

generated for various types of plant.” Id. This case is directly analogous: The Wolvovsky and 

Anderson report already estimated the reduction in foreign demand for barrels of oil, and the 

record includes the Stockholm papers, which provide a methodology and application of how to 

translate those numbers into emissions. See AR0014220 (Wolvovsky and Anderson Report); 

AR0026911–69 (Stockholm papers). Therefore, just as in Sierra Club (Southeast Market), 

BOEM “should have either given a quantitative estimate of the downstream greenhouse 

emissions that will result from” the reduced foreign consumption “or explained more specifically 

why it could not have done so.” Sierra Club (Southeast Market), 867 F.3d at 1374. 

available tools to measure the market impact of such a large contraction in the nation’s coal 

supply.” Id. at 1233–34. The Tenth Circuit rejected a similar argument to the ones Defendants 

make here, that the assumption was only a small piece of the agency’s overall analysis, pointing 

out that the agency’s “[p]rioriti[zation of] the carbon emissions and global warming analysis . . . 

suggest[ed] that this question was critical to the decision to open the leases for bidding. . . . The 

perfect substitution assumption was more than a ‘mere flyspeck’ in the [agency]’s NEPA 

analysis.” Id. at 1236. 

20 This is incidentally the same case that the Ninth Circuit relied on in Liberty. See 

Liberty, 982 F.3d at 739. 
35 

d. The Discussion in the Determination of NEPA Adequacy Addendum did not Remedy BOEM’s 

Error

In response to the Liberty decision, BOEM did provide a more detailed explanation for 

excluding the probable reduction in foreign consumption from its emissions analysis in an 

Addendum to its Determination of NEPA Adequacy for Lease Sale 257 in January 2021.21

AR0029962–68. The Addendum explicitly acknowledged that the impact on foreign 

consumption was a “relevant” consideration under 40 C.F.R. § 1502.22(b) and provided the fourpart explanation required by that regulation. AR0029966 (citing 40 C.F.R. § 1502.22(b) (2019)). 

It stated that there was “incomplete and unavailable information . . . regarding the degree to 

which different countries would be impacted by a small drop in oil prices resulting from OCS 

production, the differences in the energy substitution patterns for each of those countries, and the 

types and rates of GHG emissions resulting from those substitute sources,” that this data “would 

not be obtainable at any cost for any near-term analyses,” and that BOEM’s previous “modeling 

analysis represents the best available approach to a quantitative analysis and comparison of GHG 

emissions from the Proposed Action and the No Action Alternative.” AR0029966. It also 

asserted that BOEM’s qualitative analysis of changes to foreign greenhouse gas emissions made 

quantitative analysis unnecessary. AR0029966–67. The Addendum’s only cited source was the 

Wolvovsky and Anderson Report itself. AR0029968. 

21 The Addendum was released in January 2021 in support of the original Record of 

Decision for Lease Sale 257, which was rescinded soon after with the change in administration. 

The second Record of Decision for Lease Sale 257 published in September 2021 merely 

referenced that analysis and stated that “The potential impacts of [greenhouse gas] emissions

from foreign oil consumption are not inconsistent with conclusions from the” Program EIS, 

Multisale EIS, 2018 Supplemental EIS, or the updated Lease Sale 257 Determination of NEPA 

Adequacy. AR0029788. 
36 

Although the Addendum elaborated in more detail about what information it would like 

to have to conduct an ideal analysis, it never grappled with Plaintiffs’ core contention in both 

Liberty and the action here: That methods to estimate that information were already available. It 

did not discuss the Stockholm papers and only vaguely referred to “[a] survey of relevant studies 

and literature show[ing] that . . . reliable and uniform global data are not reasonably available at 

this time,” without a single reference. AR029965. The total lack of attention to that issue is 

disconcerting both in light of Liberty, which the Addendum purported to address, and the 

regulations’ mandate that when information relevant to “reasonably foreseeable significant 

adverse impacts cannot be obtained,” the agency provide “a summary of existing credible 

scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse 

impacts on the human environment, and . . . the agency’s evaluation of such impacts based upon 

theoretical approaches or research methods generally accepted in the scientific community.” 40 

C.F.R. § 1502.22(b)(3)–(4) (2019). 

Undercutting BOEM’s argument that it could not have calculated the emissions resulting 

from changes to foreign consumption is the fact that it did exactly that just a few weeks after 

releasing the September 2021 Record of Decision, in the Draft EIS for its next proposed lease 

sale (258), relying substantially on the Stockholm methodology. See Ex. A of Pls.’ Opp’n (“LS 

258 Draft EIS”), ECF No. 51-2; Ex. 1 of Defs.’ Reply, ECF No. 65-1 (same) at 47–48. That 

analysis “applied a single emissions factor to all combusted oil, due to a continuing lack of 

information about the end petroleum products consumed in foreign markets.” Defs.’ Mot. at 17, 

n.6. The Lease Sale 258 Draft EIS acknowledges that “[n]o new data or capabilities have been 

made available to BOEM since the Liberty decision” that would have precluded it from adopting 

this new methodology before. Id. at 42–43. And while the new EIS is still in draft form, it is 
37 

useful not because it demonstrates the best or only way to quantify the change in foreign 

emissions, but because it demonstrates that it was possible for BOEM to have done so in a 

scientifically reliable way with the information available to it when it evaluated Lease Sale 257. 

Defendants are correct that an agency’s implementation of a new methodology does not 

presuppose that the previous methodology was unreasonable. Defs.’ Reply at 9. But at the time 

the Record of Decision for Lease Sale 257 was published in September 2021, both the Liberty

and Willow decisions had held that it was.22 See Liberty, 982 F.3d at 740; Willow, 2021 WL 

3667986, at *1–2. The Addendum makes multiple references to timing, expressing its concern 

that “[a] quantitative approach . . . is not currently or reasonably feasible to make the lease sale 

decision in a timely manner.” AR0029965 (emphasis added). Delay of a scheduled project can 

be a permissible consideration in whether to adopt a new technology, but this case is unlike 

others in which an agency was reasonable in using an outdated—but still acceptable—

methodology. For instance, in Theodore Roosevelt Conservation Partnership v. Salazar, 616 

F.3d 497 (D.C. Cir. 2010), the D.C. Circuit held that an agency was not required to “employ the 

best, most cutting-edge methodologies” and permissibly relied on a methodology it admitted was 

outdated by the time of the decision rather than delay a scheduled project. Id. at 510–11. 

Crucially, the agency there “reasonably concluded that the estimates derived by the [old] method 

were adequate and did not need to be recalculated using a different method.” Id. at 511. 

Similarly, in Oceana this Court held that BOEM did not have to rerun its full Oil Risk Spill 

Analysis based on updated data about spill rates and likely spill sizes “because it reasonably 

22 Plaintiffs, along with other environmental organizations, had also pointed out this 

specific deficiency in public comments at each stage. See Ex. 3 of Hardy Decl. at 16–17, ECF 

No. 34-12 (drawing the agency’s attention to the Stockholm research in a comment to the 

Program EIS); AR0029621–24 (same, in a comment on the Supplemental EIS); Ex. 4 of Hardy 

Decl. at 4–7 (same, in a letter to the agency regarding Lease Sale 257). 
38 

concluded that a new [spill risk analysis] run would not be expected to substantially affect 

probabilities” and it did conduct a special catastrophic scenario run. Oceana, 37 F. Supp. 3d at 

170 (cleaned up). 

In contrast, excluding the reduction in foreign consumption emissions was not a 

reasonable methodology at the time of the preparation of the original Wolvovsky and Anderson 

Report, and BOEM provided no reasons even in the Addendum to think that it was. And by the 

time the second Record of Decision was released, BOEM had been informed of that problem by 

not one but two different courts.23 “It would be incongruous with . . . [NEPA]’s manifest 

concern with preventing uninformed action, for the blinders to adverse environmental effects, 

once unequivocally removed, to be restored prior to the completion of agency action simply 

because the relevant proposal has received initial approval.” Marsh v. Oregon Nat. Res. Council, 

490 U.S. 360, 371 (1989). Barreling full-steam ahead with blinders on was simply not a 

reasonable action for BOEM to have taken here. 

The closest the Addendum comes to a reasoned justification for not calculating impact of 

foreign consumption on emissions is its argument that the total proposed sales for the 2017–2022 

Program would increase global oil consumption “by 3.9 billion barrels,” which it claims is a drop 

in the proverbial ocean in comparison to the 2.8 trillion-barrel global demand that would exist 

even in the absence of lease sales, with Lease Sale 257 accounting for an even smaller portion of 

that. AR0029965–66. But the fact that the sale would have a relatively small marginal impact 

on global oil consumption, and thus greenhouse gases, on its own says nothing about the 

adequacy of the conclusions in the prior NEPA analysis. The problem is that considering foreign 

23 The Addendum accompanied the original Determination of NEPA Adequacy, which 

was of course rescinded in early 2021. The August 2021 Record of Decision for referenced the 

Liberty decision as well, but with even less analysis. AR0029794.
39 

consumption likely does change the bottom line of a key conclusion in the prior EISs: That 

greenhouse gas emissions if the Lease Sale Programs were held “would be similar to but slightly 

lower than the No Action Alternative” in two price scenarios. AR0014381. BOEM’s vague 

reference to its “qualitative analysis of foreign emissions”—which it does not attempt to pinpoint 

and appears to only refer to the disclosure of the assumption itself—does not fill this gap. See

AR0029966. “[D]eficiencies in the [Program] EIS may affect the ability of [the agency] to tier 

to that document when making individual leasing decisions.” W. Org. of Res. Councils v. Zinke, 

892 F.3d 1234, 1245 (D.C. Cir. 2018) (quotations omitted). In short, acknowledging that a key 

quantitative conclusion is unreliable and simultaneously declaring that it is “still valid for use”

and has “not change[d]” is arbitrary. See AR0029967. 

A reasoned explanation is especially crucial where, as here, the agency has varied so 

dramatically in its approach over the past year, in which the agency announced Lease Sale 257, 

rescinded it and all other pending sales, and then reinstated it based on the same analysis. As 

amici Members of Congress point out, the Federal Defendants’ position that the prior EISs were 

adequate to fulfill NEPA’s hard look requirement for Lease Sale 257 is in some tension with its 

own treatment of that issue over the past several months. Congress Amicus Br. at 8–11. For 

instance, in its public statement describing the decision to appeal the Louisiana v. Biden 

litigation, Interior stated that “the current programs fail to adequately incorporate consideration 

of climate impacts into leasing decisions or reflect the social costs of greenhouse gas emissions.” 

See Press Release, Dep’t of Interior (Aug. 16, 2021).24 That inconsistency lends itself to some 

skepticism of the agency’s conclusion that the analysis in the prior EIS was sound. Cf. 

24 Available at: https://www.doi.gov/pressreleases/interior-department-issues-statementoil-and-gas-leasing-program. 
40 

Physicians for Soc. Resp. v. Wheeler, 956 F.3d 634, 648 (D.C. Cir. 2020) (“Because the 

Directive contains no discussion of [the agency’s] prior conclusion at all, the Directive crossed 

the line from the tolerably terse to the intolerably mute.”) (cleaned up). 

Finally, even if the Determination of NEPA Adequacy and Addendum could 

substantively squeak past arbitrary and capricious review, Plaintiffs rightly point out such a 

justification would likely be procedurally inadequate as well. See Pls.’ Opp’n at 15. The twin 

aims of NEPA are to force the agency to take a ‘hard look’ at the environmental consequences of 

an action, to “ensure[] that these environmental consequences, and the agency’s consideration of 

them, are disclosed to the public.” Sierra Club (Southeast Market), 867 F.3d at 1367; see also 

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (“Publication of an 

EIS . . . gives the public the assurance that the agency has indeed considered environmental 

concerns in its decisionmaking process, and, perhaps more significantly, provides a springboard 

for public comment.” (citations and quotations omitted)). 

A Determination of NEPA Adequacy is of course an appropriate mechanism for an 

agency to determine whether its existing analysis is sufficient. 43 C.F.R. § 46.120(c). But it 

cannot substitute for an EIS itself unless there is an opportunity for public input. See Great 

Basin Res. Watch v. Bureau of Land Mgmt., 844 F.3d 1095, 1104 (9th Cir. 2016) (“[A] post-EIS 

analysis—conducted without any input from the public—cannot cure deficiencies in an EIS.”); 

cf. Friends of Animals v. U.S. Bureau of Land Mgmt., 232 F. Supp. 3d 53, 59, 63 (D.D.C. 2017) 

(holding that relying on a Determination of NEPA Adequacy that had been released in draft form 

for public comment did not violate the agency’s commitment to provide ongoing NEPA 

analysis). BOEM is not required to circulate a draft Determination of NEPA adequacy for public 
41 

comment, but it cannot rely on that document to cure the errors in the underlying EISs unless it 

does. 

2. Failure to Prepare a Supplemental EIS

NEPA itself does not directly state when an agency must prepare a supplemental EIS, but 

as the Supreme Court has held, they are “at times necessary to satisfy [NEPA]’s ‘action-forcing’ 

purpose. Marsh, 490 U.S. at 370–71. The relevant regulations make this abundantly clear by 

requiring agencies to “prepare supplements to either draft or final environmental impact 

statements if . . . [t]here are significant new circumstances or information relevant to 

environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 

1502.9(c)(1)(ii) (2019). “[T]he need for supplementation ‘turns on the value of the new 

information to the still pending decisionmaking process.’” Friends of Cap. Crescent Trail v. 

Fed. Transit Admin., 877 F.3d 1051, 1058 (D.C. Cir. 2017) (quoting Marsh, 490 U.S. at 374). 

An agency’s decision about whether to prepare a supplemental EIS is entitled to 

deference because it involves the agency’s technical expertise. Gulf Restoration Network, 456 F. 

Supp. 3d at 102. “That said, ‘courts should not automatically defer to the agency’s express 

reliance on an interest in finality without carefully reviewing the record and satisfying 

themselves that the agency has made a reasoned decision based on its evaluation of the 

significance—or lack of significance—of the new information.” Stand Up for Cal.! v. U.S. 

Dep’t of Interior, 410 F. Supp. 3d 39, 57 (D.D.C. 2019), aff’d, 994 F.3d 616 (D.C. Cir. 2021) 

(quoting Marsh, 490 U.S. at 378). “The overarching question is whether an EIS’s deficiencies 

are significant enough to undermine informed public comment and informed decisionmaking.” 

Mayo v. Reynolds, 875 F.3d 11, 20 (D.C. Cir. 2017) (quoting Sierra Club (Southeast Market), 

867 F.3d at 1368 (D.C. Cir. 2017)). Plaintiffs have compiled a list of new information that they 
42 

contend was significant enough that the Bureau was required to prepare a supplemental EIS.25 

Although Plaintiffs assemble a compelling litany of information, they have not shown that this 

new information is “sufficient to show that the remaining action will affect the quality of the 

human environment . . . to a significant extent not already considered.” Marsh, 490 U.S. at 374 

(internal quotations and alterations omitted); Stand Up for Cal.!, 994 F.3d at 628 (same).

a. New Science Regarding Climate Change Impacts of Leasing 

Plaintiffs provide several studies highlighting the need to keep global temperature from 

rising past 1.5 degrees Celsius, and the counterproductive role of oil and gas leasing to reaching 

that goal. Pls.’ Mot. at 14. Of those, the Determination of NEPA Adequacy explicitly 

mentioned consideration of two, the IPCC Study and the Merrill Study, in the main document, 

but listed several others and provided additional discussion, including of the 1.5-degree goal, in 

the attached Impact Producing Factors Analysis form. See AR0029812; AR0029849–52. 

Despite acknowledging and discussing these sources, BOEM determined that the new 

25 Plaintiffs also suggest in passing that BOEM’s statements in its prior EIS may have 

created a binding duty on the agency to prepare Supplemental EISs with greater regularity. Pls.’ 

Mot. at 16; Pls.’ Opp’n at 19, n.6; see also W. Org. of Res. Councils, 892 F.3d at 1245 

(contemplating that agency’s commitments to update and EIS “might have created a binding 

duty on the agency at one point”). Specifically, the Multisale EIS states: “BOEM plans to 

supplement this Multisale EIS on a regular basis to provide for more consistency and for 

planning purposes. Unless circumstances or information warrants an earlier Supplemental EIS, 

BOEM expects to issue a Supplemental EIS once a calendar year. An additional NEPA review 

(e.g., a Determination of NEPA Adequacy, an environmental assessment [EA] or, if determined 

necessary, a Supplemental EIS) will be conducted prior to the decision on an individual proposed 

GOM lease sale to address any relevant new information.” AR0008202. Without foreclosing 

the possibility that such a duty may exist, the Court agrees with the Federal Defendants that here 

the agency at most committed itself to conducting additional NEPA analysis, which could 

include alternate documentation such as Environmental Assessments or Determinations of NEPA 

Adequacy. See Friends of Animals, 232 F. Supp. 3d at 63 (issuing a Determination of NEPA 

adequacy satisfied an agency’s affirmative commitment to evaluate future actions through the 

“appropriate level of NEPA analysis” internal quotations omitted)). 
43 

information would not “alter the impact conclusions for Climate Change” found in the previous 

EISs. AR0029849. 

Plaintiffs fail to show that this new research would alter BOEM’s analysis of climate 

change “to a significant extent not already considered” in its previous EISs. Marsh, 490 U.S. at 

374.26 Those documents included an extensive discussion of climate change and were

unflinching in their recognition of the threat climate change presents to humanity. See, e.g.,

AR0014284, AR0014377–83, AR0014542 (Program EIS); AR0008543–46 (Multisale EIS); 

AR0014188, AR0014199–202 (Wolvovsky and Anderson Report); AR0015650–51 (2018 

Supplemental EIS). Indeed, the seriousness with which BOEM considered climate change as 

part of its analysis was precisely what made its reliance on its counterintuitive conclusion that 

the No Action Alternative would increase greenhouse gas emissions such a grave error. See 

supra Section IV.B.1. Plaintiffs do not take issue with the reliability or representativeness of the 

sources that BOEM did consider. The Court cannot say under its deferential standard of review 

that the new information provided by the Plaintiffs would alter its evaluation of this issue to any 

significant extent. Plaintiffs would no doubt have preferred that BOEM act with greater urgency, 

but “NEPA merely prohibits uninformed—rather than unwise—agency action.” Robertson, 490 

U.S. at 351. 

26 Plaintiffs mention within this argument that BOEM failed to take into account “new 

evidence demonstrat[ing] that existing operations in the Gulf of Mexico emit twice the amount of 

methane than previously thought,” and that “racial minorities and low-income communities bear 

a disproportionate burden from climate change.” Pls.’ Mot. at 16. Although they include some 

studies relevant to those topics, see Ex. 15 of Pls.’ Mot., ECF No. 34-24; Ex. 17 of Pls.’ Mot., 

ECF No. 34-26; Ex. 19 of Pls.’ Mot., ECF No. 34-28, they do not develop these arguments with 

any specificity. Since the Determination of NEPA Adequacy did consider both of these topics, 

however, Plaintiffs have not shown that BOEM’s lack of a more in-depth discussion violated 

NEPA’s rule of reason or was otherwise arbitrary and capricious. See AR0029856–57 

(discussing recent research on methane emissions from drilling operations); AR0029921–31 

(collecting and discussing extensive research on environmental justice concerns). 
44 

b. 2021 GAO Report on Safety of Oil and Gas Operations in the Gulf of Mexico 

Plaintiffs further argue that the finding in a 2021 Government Accountability Office 

Report that the Bureau of Safety and Environmental Enforcement (BSEE) “does not have a 

robust oversight process for ensuring the integrity of approximately 8,600 miles of active 

offshore oil and gas pipelines in the Gulf of Mexico” undermines BOEM’s prior determination 

that BSEE’s regular safety checks made the risk of pipeline spills and leaks relatively low. 

Compare Ex. 12 of Pls.’ Mot. at 2, ECF No. 34-21 (“GAO Report”) with AR0008604 (“New 

regulations focusing on improved safety, more regulatory checks, and inspections should 

decrease the already small likelihood of the occurrence of . . . spills”) and AR0008305–07 

(describing BSEE’s various regulatory safety requirements for pipelines). Plaintiffs also 

highlight the finding from that study that BSEE “has authorized industry to leave over 97 percent 

of pipeline mileage (almost 18,000 miles) on the Gulf of Mexico seafloor following the 

conclusion of their active use,” presenting further risks for leaks from those pipelines. GAO 

Report at 13. 

Another court in this district recently rejected a highly similar challenge to BOEM’s 

reliance on BSEE enforcement in light of a different GAO Report that criticized BSEE. Gulf 

Restoration Network, 456 F. Supp. 3d at 101. In doing so, it noted that “an agency may properly 

base its evaluation of environmental impacts on the assumption that other specialized agencies 

with jurisdiction will enforce permits and related mitigation measures according to the law.” Id.

(citation and quotation omitted). It also rejected the argument that the GAO report in that case 

suggested BSEE was “not performing its enforcement duties at all,” instead reading that report as 

“suggest[ing] that there is room for improvement of the BSEE’s existing policies.” Id.
45 

The same outcome is warranted in this case. The 2021 GAO Report, like the one in 

Bernhardt, offers constructive criticism and areas for improvement, as such reports generally do. 

And it was perfectly reasonable for BOEM to assume that its sister agency would follow its own 

regulations, which remain in effect. See 30 C.F.R. §§ 250.1000 et seq. Nor did BOEM treat its 

sister agency’s regulations as a fail-safe in the EISs, instead acknowledging that leaks and spills 

from pipelines are a real and ongoing risk and quantifying those risks. See AR0008401 

(analyzing the potential for pipeline failures as a result of hurricanes and other factors); 

AR0015605 (including the probability of spills with a separate category for pipelines). Plaintiffs 

do not challenge the methodology for arriving at those estimates. It was therefore not arbitrary 

or capricious for BOEM to decide that those estimates did not need to be updated at this time. 

That said, the 2021 GAO Report appears to be at least the second such report identifying 

similar shortcomings, the first being the one at issue in Gulf Restoration Network. See La. Mot. 

at 19 (“The alleged shortcomings identified in the 2021 GAO report are the same ones raised in 

the 2017 report.”); but see Pls.’ Opp’n at 30, n.8 (“The 2017 Report was about other serious 

enforcement shortcomings at BSEE, not specifically addressing pipeline enforcement.”). The 

Court does not foreclose the possibility that there may eventually be a tipping point at which 

another fellow agency’s poor track record could make continued reliance on its rigorous 

enforcement unreasonable, at least for the purposes of risk analysis. But any such threshold has 

not been passed here. 

c. Information About the Depth at which Drilling Would Occur 

Next, Plaintiffs argue that contrary to the reasoning in the 2018 Supplemental EIS, which 

indicated that most drilling and support structure activity would occur in the shallower water of 

the continental shelf, see AR0015587–88 (support structures); AR0015589, AR0015592 (drilling 
46 

and production), recent trends indicate that most permits are in fact being issued for deeper 

water, implicating safety risks not previously considered. See Pls.’ Mot. at 18. 

The EISs already discuss and tentatively forecast the varying different drilling depths in 

different production scenarios. AR0015589–90. The parties debate whether those forecasts 

remain accurate in light of the recent permit trends, compare Pls.’ Mot. at 18 with Defs.’ Mot. at 

33, but the Court need not resolve that issue. While drilling depth will almost certainly be a 

relevant consideration for the agency later on, Intervenor-Defendants persuasively argue that 

BOEM had no obligation to consider it right now. See La. Mot. at 18; API Mot. at 39. 

This Court considered a similar argument about whether BOEM’s consideration of the 

relative risks of drilling depths was adequate at the lease sale stage in Oceana. 37 F. Supp. 3d at 

167. It determined that because the risks of deepwater drilling are necessarily site-specific, 

BOEM had taken the requisite hard look required for the lease sale stage. Id. Such post-lease 

operational issues will receive ample review that must also comply with NEPA at the later 

exploration and production stages. Id. If BOEM fails to give the risks of deepwater drilling the 

requisite hard look at the later stages of OCSLA, Plaintiffs can raise another claim at that time. 

But BOEM’s decision not to supplement the existing EIS at this stage based on that particular 

information is more than defensible, and it has done all that was required. 

d. Information Regarding the Endangered Rice’s Whale (f/k/a “Gulf of Mexico Bryde’s Whale”)

The Court turns next to whether new information regarding the Rice’s Whale required a 

new EIS. At the time the EISs were completed, the whale was believed to be a sub-species of 

the Bryde’s Whale and is referred to in the EISs as the Gulf of Mexico Bryde’s Whale. This past 

year, however, the National Marine Fisheries Service reclassified the whale as a unique species 
47 

now known as Rice’s Whale. 86 Fed. Reg. 47,022-01 (Aug. 23, 2021).27 The taxonomy and 

name change later recognized by the Fisheries Service “does not change the listing status of the 

species under the [Endangered Species Act] and does not alter any protections afforded the 

species” under that Act. Id. at 47023. 

The Rice’s Whale was not classified as endangered at the time of the prior EISs. 

Nevertheless, it was extensively considered in a section of the Multisale EIS evaluating the 

impacts of a range of oil-and-gas-related activities on marine mammals in the Gulf of Mexico. 

AR0008778–824. That section anticipated that the Gulf of Mexico Bryde’s Whale could soon be 

classified as an endangered species. AR0008787; AR0008794; see also AR0015747–48 

(including the same discussion in the 2018 Supplemental EIS). It stated that “there are 

insufficient data to determine the population trends for this stock” but recognized that the 

population was likely to be very small. AR0009794. Various negative impacts that could affect 

the Gulf of Mexico Bryde’s Whale specifically were identified. See AR0008800 (noting that 

“nearby noise from seismic surveys occurring in the [Central Planning Area]” could affect the 

Bryde’s whale); AR0008807 (acknowledging that baleen whales, including the Bryde’s Whale, 

“use low frequency sounds that overlap broadly with the dominant frequencies of many 

industrial sounds, and there are indications that baleen whales are sensitive to low- and

moderate-frequency sounds”); AR0008809 (“Baleen whales are particularly vulnerable to direct 

impacts from oil [spills] causing fouling of baleen plates, which could impact feeding 

behavior.”); AR0008813 (“Impacts to the Gulf of Mexico Bryde’s whales’ habitat or to 

individual Bryde’s whales exposed to an oil spill or associated spill response activities would 

increase the risk of extinction of this distinct population segment, which would elevate the 

27The Court will use the two names interchangeably for the purpose of this opinion. 
48 

impact for this analysis to major.”); AR0008018 (“An example of a major impact would be if a 

discarded monofilament fishing net were to cause physical injury or mortality to a marine 

mammal species with a low population estimate (e.g., Bryde’s whale).”). 

Ultimately, although the Multisale EIS recognized that “energy exploration and 

development is one of many contributing factors adding to the [] Bryde’s whale’s risk of 

extinction,” it concluded that the proposed Multisale Program would only minimally contribute 

to that risk because the whale’s “current primary habitat” was in the Eastern region of the Gulf of 

Mexico, which was under Congressional moratorium. AR0008800. The 2018 Supplemental EIS 

referenced the Bryde’s Whale and tiered to the Multisale EIS’s analysis, but it did not identify 

any specific new information about the species. See AR0015742–55. 

The Fisheries Service classified the Gulf of Mexico Bryde’s Whale as endangered in 

2019. 84 Fed. Reg. 15,446 (Apr. 15, 2019). That classification cited a study estimating the 

population at about 44 individuals. 84 Fed. Reg. at 15,473; see also AR0037444 (citing the 

“approximately 44 individuals” figure). The listing also cited a scientific study finding that the 

Gulf of Mexico Bryde’s Whale spends most of its time during the night in shallower depths, 

thereby increasing the risk for vessel collisions, and concluded that “any increase in the number 

of vessels in the Bryde’s whales’ habitat, such as could occur following the expiration of the 

moratorium on lease sales, would increase the severity of this threat.” Id. at 15463; see also Ex. 

20 of Pls.’ Mot., ECF No. 34-29 (attaching that study). Although recognizing that the historic 

range of the whale was likely much larger, the Fisheries Service determined that its current 

distribution was limited to the northeastern part of the Gulf of Mexico and identified the whale’s 

Biologically Important Area as waters between 100 m and 400 m deep from approximately 
49 

Mobile Bay, Alabama to just south of Tampa, Florida.28 See 84 Fed. Reg. at 15,472–73. This 

area falls fully within the portion of the Gulf of Mexico that was subject to congressional 

moratorium and that was excluded from the entire 2017–2022 Program, including Lease Sale 

257. See AR0037490 (overlaying map of Bryde’s Whale area onto map of Congressional 

moratorium, below).

Following the listing of the Gulf of Mexico Bryde’s Whale as an endangered species, the 

Fisheries Service released a Biological Opinion examining the impact of the offshore oil and gas 

program, including to the Gulf of Mexico Bryde’s Whale. See AR0036866–7493. That report 

identified the four primary threats to the species as sound, vessel collisions, energy exploration, 

and oil spills. AR0037060. The Biological Opinion’s prognosis for the Gulf of Mexico Bryde’s 

Whale was grave indeed. It concluded that absent mitigation, “[b]ased on the combined effects 

of exposure to the stressors . . . we expect that all individual[s] . . . not killed by vessel strikes . . . 

are likely to experience chronic stress and behavioral disruption associated with noise from the 

28 This was slightly larger than a Biologically Important Area previously identified in 

2015 as “waters between 100 m and 300 m deep from approximately Pensacola, Fla. to just south 

of Tampa, Fla.” 84 Fed. Reg. 15472. 
50 

proposed action, significant masking, and hearing loss,” and that as a result “the proposed action 

is likely to jeopardize the continued existence of the Gulf of Mexico Bryde’s whale.” 

AR0037444–45. 

In light of those conclusions, the Biological Opinion proposed a Reasonable and Prudent 

Alternative “to avoid the likelihood of jeopardizing the continued existence of the Gulf of 

Mexico Bryde’s whale.” AR0037488. That Alternative imposes several restrictions to limit the 

potential for vessel strikes in the Bryde’s Whale’s Biologically Important Area, including a 

speed limit and a bar on transit at night or during low visibility conditions. AR0037488–89. The 

Fisheries Service concluded that with the implementation of the Alternative, the oil and gas 

program would not jeopardize the continued existence of the Bryde’s Whale, AR0037491, but 

would likely still result in the “incidental take . . . by death, injury, and harassment” of 

endangered species such as the Rice’s Whale, AR0037493. See also AR0034710–34 (updated 

Incidental Take Statement concluding the same).

In addition, the findings of the Biological Opinion regarding the risks to the Bryde’s 

Whale from energy development assumed that the Congressional moratorium would expire in 

2022. See AR0037060 (“[I]f new leases are offered after the . . . moratorium expires, Bryde’s 

whales could be exposed to increased threats associated with energy exploration and 

development.”); AR0037441 (clarifying for its table of estimated impacts that it did “not account 

for removal of the . . . moratorium area”). The moratorium has since been effectively extended 

through 2032. AR0034751. 

With that background in place, the Court turns to the question it must decide: Whether 

the information on the Rice’s Whale in the endangered species classification and the related 

Biological Opinion by the Fisheries Service is “sufficient to show that the remaining action will 
51 

affect the quality of the human environment in a significant manner or to a significant extent not 

already considered.” Marsh, 490 U.S. at 374 (internal quotations omitted). The Court concludes 

that it is not. 

The Determination of NEPA Adequacy for Lease Sale 257 discussed the endangered 

classification of Rice’s Whale and the related Fisheries Service opinions. AR0029815–17. 

BOEM noted that it had adopted the Fisheries Service’s Reasonable and Prudent Alternative that 

would avoid placing the survival of the Rice’s Whale in jeopardy. AR0029816. It determined 

that many of the harms discussed in the Biological Opinion would not result from this particular 

Lease Sale, because none of the alternatives would have offered tracts in the Rice’s Whale’s 

Biologically Important Area, which is fully encompassed by the congressional moratorium. 

AR0029816; see also AR0037490 (map). The Determination of NEPA Adequacy also reasoned 

that collisions were unlikely to result from this particular sale because “vessels expected to

service leases issued as a result of this proposed lease sale are likely to use ports closer to the” 

Western and Central planning areas rather than transiting across the Eastern area and clarified 

that “BOEM and BSEE will also verify the service-vessel routes on post-lease Approvals to 

determine if any additional post-lease mitigations are required.” AR0029816. Finally, the 

Determination of NEPA Adequacy noted that “in the unlikely event that post-lease activities are 

proposed that could impact the Bryde’s whale, both BSEE and BOEM have the discretion to 

require additional mitigations at that time.” Id. 

Plaintiffs take issue with BOEM’s reliance on the Reasonable Prudent Alternative as 

obviating the need for a supplemental EIS. Mitigation measures can sometimes suffice to allow 

an agency to forego an EIS if they are sufficiently specific and effective. See Cabinet Mountains 

Wilderness/Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d 678, 682 (D.C. Cir. 1982) (“If
52 

. . . the proposal is modified prior to implementation by adding specific mitigation measures 

which completely compensate for any possible adverse environmental impacts stemming from 

the original proposal, the statutory threshold of significant environmental effects is not crossed 

and an EIS is not required.”); Nat’l Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 734 

(9th Cir. 2001) (“In evaluating the sufficiency of mitigation measures, we consider . . . whether 

the mitigation measures will render such impacts so minor as to not warrant an EIS.”). The same 

reasoning applies to supplementation of an EIS, which “is not necessary when the mitigation 

measure is within the scope of the EIS’s discussion of mitigation measures or is a minor 

variation from it.” Nat’l Parks Conservation Ass’n v. Jewell, 965 F. Supp. 2d 67, 78 (D.D.C. 

2013). Reliance on the Alternative is a minor variation from the Multisale EIS’s anticipation that 

the Bryde’s Whale may become classified as endangered and recognition that “the species will

receive additional protections and Federal agencies will be required to consult under Section 7 

for Federal actions that may affect the species” if that became the case. AR0008787. 

Plaintiffs’ related argument that a no-jeopardy determination for an endangered species 

does not equate to the lack of a significant impact under NEPA because “there can be a 

significant impact on a species even if its existence is not jeopardized” is sound, but unavailing. 

See Pls.’ Opp’n at 33 (quoting Makua v. Rumsfeld, 163 F. Supp. 2d 1202, 1218 (D. Haw. 2001)). 

BOEM did not simplistically equate those two standards to absolve itself of the issue. Rather, it 

considered the mitigation measures in the Reasonable Prudent Alternative that it had already 

committed to along with the low likelihood of impact based on the location of the tracts in Lease 

Sale 257 specifically, and it concluded that “the decision to hold this proposed lease sale is not 

expected to reduce appreciably the likelihood of both survival and recovery of the Bryde’s 

whales” beyond the analysis already existing in the Multisale EIS. AR0029816. 
53 

Although the Determination of NEPA Adequacy focused solely on the potential for 

vessel collisions, Plaintiffs correctly note that the concerns identified in the Biological Opinion 

were much broader. By way of reminder, the Biological Opinion identified four primary threats 

to the Rice’s Whale: sound, vessel collisions, energy exploration, and oil spills. AR0037060. 

The concerns about energy exploration were grounded in the potential for oil and gas activity to 

occur within the area of the congressional moratorium. See id. (“[I]f new leases are offered after 

the . . . moratorium expires, Bryde’s whales could be exposed to increased threats associated 

with energy exploration and development.”). And the concerns about the incremental possibility 

for vessel collisions was sufficiently mitigated by BOEM’s adoption of the Reasonable Prudent 

Alternative. BOEM therefore reasonably determined that the concerns in that opinion about 

vessel collisions and energy exploration did not significantly change the landscape for the 

purpose of approving Lease Sale 257, and the concerns about noise and oil spills had already 

been considered in the Multisale EIS. See AR0008800 (noting that “nearby noise from seismic 

surveys occurring in the [Central Planning Area]” could affect the Bryde’s whale); AR0008807 

(acknowledging that baleen whales, including the Bryde’s Whale, “use low frequency sounds 

that overlap broadly with the dominant frequencies of many industrial sounds, and there are 

indications that baleen whales are sensitive to low- and moderate-frequency sounds”); 

AR0008809 (“Baleen whales are particularly vulnerable to direct impacts from oil [spills] 

causing fouling of baleen plates, which could impact feeding behavior.”); AR0008813 (“Impacts 

to the Gulf of Mexico Bryde’s whales’ habitat or to individual Bryde’s whales exposed to an oil 

spill or associated spill response activities would increase the risk of extinction of this distinct 

population segment, which would elevate the impact for this analysis to major.”). 
54 

Perhaps a more thorough and holistic discussion of these impacts would have been ideal. 

But the lack thereof is not “significant enough to undermine informed public comment and 

informed decisionmaking.” Mayo, 875 F.3d at 20 (quoting Sierra Club (Southeast Market), 867 

F.3d at 1368). 

e. New Information on Fracking 

Next, the Plaintiffs point to accumulating evidence on the environmental hazards of 

hydraulic fracturing, or “fracking.” See Pls.’ Mot. at 23. Hydraulic fracturing involves injecting 

a “pressurized, high-density, gelatin-like fluid” “into a wellbore at high pressure to break open 

the rock to create/improve the flow path for hydrocarbon to flow into the well.” AR0008291. 

BOEM did not mention either the study offered by Plaintiffs specifically, see Ex. 22 of Pls.’ 

Mot., ECF No. 34-31 (“Toxic Waters Report”), or hydraulic fracturing generally, in its 

Determination of NEPA Adequacy. 

The Federal Defendants unsuccessfully attempt to recast Plaintiffs’ concern about 

fracking as a concern about discharges. The sections of the Determination of NEPA Adequacy 

that Federal Defendants claim considered those issues in fact address “Discharges and Waste” or 

“Chemical and Drilling-Fluid Spills” more generally, with no mention of fracking. See

AR0029831; AR0029836. Toxic discharge features prominently in the Toxic Waters Report, but 

it is far from the only concern about fracking that it raises. See, e.g., Toxic Waters Report at 6 

(describing direct and indirect negative health and environmental justice impacts); id. at 7 

(pointing out the high fatality rates for gas and fracking workers); id. at 9–10 (describing 

negative impacts on the fishing and tourism industries). It therefore appears that BOEM did not 

give fracking, or its wider implications distinct from all drilling discharge, specific attention in 

the Determination of NEPA Adequacy. 
55 

The Court nevertheless determines that Plaintiffs have not met their burden of showing 

that this “new information provides a seriously different picture of the environmental landscape.” 

City of Olmsted Falls, Ohio v. F.A.A., 292 F.3d 261, 274 (D.C. Cir. 2002) (quotation omitted) 

(emphasis in original). The Multisale EIS does contain a reasonably thorough discussion of 

hydraulic fracturing in the Gulf of Mexico, which explains the procedure, likely additives, and its 

connection to the EPA permitting process. AR0008290–93. Plaintiffs do not point to anything 

in the Toxic Waters Report that makes that discussion unreasonable or unreliable. And the more 

general impacts of fracking referenced in the report are not necessarily new information at all. 

“‘[T]he party challenging an agency’s action as arbitrary and capricious bears the burden of 

proof.’” City of Olmstead Falls, Ohio, 292 F.3d at 271 (quoting Lomak Petroleum, Inc. v. 

FERC, 206 F.3d 1193, 1198 (D.C. Cir. 2000) (alteration in original). Plaintiffs have not met that 

burden here. 

f. Impacts on Offshore Wind Development 

Finally, Plaintiffs believe that mounting evidence requires BOEM to consider the 

potential for its Lease Sale to conflict with the agency’s simultaneous attempt to develop 

offshore wind sites. For this argument, they do not even cite specific new information that 

would have warranted a Supplemental EIS, merely invoking BOEM’s duty to “consider the 

location of the [lease] area ‘with respect to other uses of the sea and seabed.’” Pls.’ Mot. at 42–

43 (quoting 43 U.S.C. § 1344(a)(2)(D)). But BOEM has done exactly that, considering the 

potentially conflicting use of lease areas in the prior EISs—including to wind development. See

AR0008452–54 (Multisale EIS); AR0015616–22 (2018 Supplemental EIS); AR0014358 (listing 

wind and renewable energy as a potential space-use conflict in Program EIS). Plaintiffs may

prefer that BOEM prioritize offshore wind development, but “[i]t is . . . for the agency to decide 
56 

the exact trade-off among conflicting goals that best promotes the Congressional goal in 

question.” Cont’l Air Lines, Inc. v. Dep’t of Transp., 843 F.2d 1444, 1451 (D.C. Cir. 1988) 

(quotations omitted). Nothing in the record suggests that BOEM failed to consider the issue or

was arbitrary and capricious in doing so. 

C. Remedies

Having determined that BOEM and the Department of the Interior acted arbitrarily and 

capriciously in excluding foreign consumption from their greenhouse gas emissions calculation, 

the Court must address the appropriate remedy. Plaintiffs request vacatur of Lease Sale 257, 

pointing out that vacatur of an unlawful agency action is the standard remedy under the APA and 

NEPA. Pls.’ Mot. at 43. Defendant-Intervenors API and Louisiana request that that the decision 

be remanded to the agency without vacatur if any violation is found. La. Mot. at 22; API Mot. at 

41. The Federal Defendants did not take a position on the appropriate remedy in their original 

motion other than to request further briefing on remedies if necessary. Defs.’ Mot. at 38. In 

response to this Court’s request for further briefing on the question of whether the lease sale 

would necessarily need to be reinitiated and the impact of remand with or without vacatur on the 

agency’s options, see Min. Order of Jan. 19, 2022, the Federal Defendants addressed the varying 

impacts of remand with or without vacatur, but did not take a position on which relief they were 

requesting from the Court, see generally Defs.’ Resp. Court’s Jan. 19, 2022 Min. Order (“Defs.’ 

Supp. Br.”), ECF No. 74.29 Plaintiffs and both Intervenor-Defendants likewise submitted 

29 The lack of a clear position from the Federal Defendants is particularly troubling given 

that they bear the burden of showing that the Court should part from the standard remedy of 

vacatur. See Nat’l Parks Conservation Ass’n v. Semonite, 422 F. Supp. 3d 92, 99 (D.D.C. 2019) 

(“Because vacatur is the default remedy, plaintiffs are correct that defendants bear the burden to 

prove that vacatur is unnecessary.”). The Court will not treat the issue as conceded in light of the 

fact that Intervenor-Defendants have zealously assumed the mantle of arguing it but declines the 

Federal Defendants’ request to delay this case any further by ordering additional briefing. 
57 

additional briefing on that same issue. See Supp. Br. Intervenor-Def. Am. Petroleum Institute 

(“API Supp. Br.”), ECF No. 73; Supp. Br. (“La. Supp. Br.”), ECF No. 75; Supp. Remedy Br. 

(“Pls.’ Supp. Br.”), ECF No. 76. 

“The ordinary practice . . . is to vacate unlawful agency action, and district courts in this 

circuit routinely vacate agency actions taken in violation of NEPA.” Standing Rock Sioux Tribe 

v. U.S. Army Corps of Engineers, 985 F.3d 1032, 1050 (D.C. Cir. 2021) (citations and quotations 

omitted). Vacatur is the standard remedy for good reason. NEPA is an action-forcing statute, 

which serves “not to generate paperwork or litigation, but to provide for informed decision 

making and foster excellent action.” 40 C.F.R. § 1500.1(a). The goal of informed and excellent 

decision making can only take place if agencies “take the required hard look before taking [the 

proposed] action.” Oglala Sioux Tribe v. U.S. Nuclear Regul. Comm’n, 896 F.3d 520, 532 (D.C. 

Cir. 2018) (emphasis in original). Advance consideration of environmental consequences 

“allows the decisionmaker to take environmental factors into account when he is making 

decisions, at a time when he has an open mind and is more like[ly] to be receptive to such 

considerations.” See Kleppe v. Sierra Club, 427 U.S. 390, 417–18 (1976) (Marshall, J., 

concurring in part). In contrast, “experience suggests that [remand without vacatur] sometimes 

invites agency indifference.” In re Core Commc’ns, Inc., 531 F.3d 849, 862 (D.C. Cir. 2008) 

(Griffith, J., concurring); see also Kristina Daugirdas, Evaluating Remand Without Vacatur: A 

New Judicial Remedy for Defective Agency Rulemakings, 80 N.Y.U. L. Rev. 278, 302–04 (2005) 

(collecting cases and reviewing studies to conclude that agencies often delay remedying arbitrary 

and capricious decisions that have been remanded without vacatur). The default rule of vacatur

thus serves to avoid creating perverse incentives for the agency to press forward with a faulty 

decision and fill in its analysis later. “When it comes to NEPA, it is better to ask for permission 
58 

than forgiveness: if you can build first and consider environmental consequences later, NEPA’s 

action-forcing purpose loses its bite.” Standing Rock Sioux Tribe v. U.S. Army Corps of 

Engineers, 471 F. Supp. 3d 71, 85 (D.D.C. 2020), rev’d in part on other grounds, Standing Rock 

Sioux Tribe, 985 F.3d 1032. 

Courts do have discretion “to leave agency action in place while the decision is remanded 

for further explanation.” Standing Rock Sioux Tribe, 985 F.3d at 1051. “The decision whether 

to vacate depends on the seriousness of the order’s deficiencies (and thus the extent of doubt 

whether the agency chose correctly) and the disruptive consequences of an interim change that 

may itself be changed.” Allied-Signal Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146, 150–

51 (D.C. Cir. 1993) (quotations omitted). “Put otherwise, this Court must determine whether 

there is ‘at least a serious possibility that the [agency] will be able to substantiate its decision on 

remand,’ and whether vacatur will lead to impermissibly disruptive consequences in the interim.” 

WildEarth Guardians, 368 F. Supp. 3d at 84 (quoting Standing Rock Sioux Tribe, 282 F. Supp. 

3d 91, 97 (D.D.C. 2017)). Still, the availability of that discretion does not shift the burden for 

showing whether it is warranted, which remains on the Defendants. See Nat’l Parks 

Conservation Ass’n v. Semonite, 422 F. Supp. 3d 92, 99 (D.D.C. 2019) (“Because vacatur is the 

default remedy, plaintiffs are correct that defendants bear the burden to prove that vacatur is 

unnecessary.”). The Court therefore considers whether the Defendants and IntervenorDefendants have met their burden under the Allied Signal factors.

a. Seriousness of the Deficiency in the Agency’s Decision

Beginning with the seriousness of the deficiency in BOEM’s decision, the Court believes 

that BOEM’s error was indeed a serious failing. By excluding foreign consumption from its 

emissions analysis, BOEM reached a conclusion that was in direct tension with—if not 
59 

completely contradictory to—its own finding in the very same report that the No Action 

Alternative would result in a significant decrease in foreign consumption. AR0014233. The 

conclusion that that total greenhouse gases emissions would actually be higher if no lease sales 

took place was without a doubt highly relevant to the ultimate decision in light of the otherwise 

careful consideration BOEM gave to the effects of climate change. See AR0015651; 

AR0008545. Although this is not a situation in which “an agency bypasse[d] a fundamental 

procedural step” altogether, the significance of BOEM’s error to the decision at issue here—to 

proceed with Lease Sale 257—leaves the Court “harbor[ing] substantial doubt that the agency 

chose correctly.” Standing Rock Sioux Tribe, 985 F.3d at 1052. With an informed hard look at 

the full emissions impacts of Lease Sale 257, BOEM “may well approve another alternative 

included in the EIS or deny the lease altogether.” Liberty, 982 F.3d at 740. 

The Court is also skeptical about whether BOEM would be able to adequately justify its 

Record of Decision for Lease Sale 257 if that decision was remanded without vacatur. Louisiana 

misunderstands the relevant question when it asserts that “BOEM almost certainly can remedy 

any deficiency on remand.” La. Mot. at 21; see also La. Reply at 18 (“BOEM has a greater 

chance of remedying the purported violations here because it has already conducted extensive 

environmental analysis and produced three separate EISs”). Successful compliance with 

NEPA—which the Court is sure BOEM will eventually achieve—is distinct from BOEM’s 

ability to retroactively justify the decision it did make. BOEM “entirely failed to consider an 

important aspect of the problem” that it had itself identified, State Farm Mutual Auto. Ins., 463 

U.S. at 43, and, even upon acknowledging the error, determined that it could continue to rely on 

the implausible conclusion that the lease sale would decrease greenhouse gas emissions. After 

having been alerted to that exact flaw by the Liberty case, BOEM failed to grapple with the 
60 

shortcomings in its methodology or address the argument that it was presently able to perform 

the necessary calculation. See AR029965; cf. Standing Rock Sioux Tribe, 985 F.3d at 1051 

(noting that “the district court concluded that the [agency] was unlikely to resolve the 

controversies on remand because the court had previously remanded without vacatur for just that 

purpose and the [agency] had nonetheless failed to resolve them). The Court is doubtful, 

especially given the multiple opportunities at which BOEM could have remedied this error and 

did not, that it can remedy that misstep on remand. 

b. Disruptive Consequences of Vacatur 

Defendant-Intervenors and amicus Chevron focus their arguments primarily on the 

second prong of Allied Signal, the disruptive consequences of vacatur. See La. Mot. at 22 (“To 

vacate the sale would be to disrupt a massive undertaking and unsettle the lessee’s ability to bid 

on leases and prepare for exploration planning.”); API Mot. at 44 (“Federal Defendants have 

spent years preparing for this sale[,] . . . the leases will generate valuable payments to the United 

States[,] . . . The State of Louisiana relies heavily on the revenues that it receives from offshore 

leasing in federal waters[,] . . . leases issued pursuant to Lease Sale 257 will be valuable 

contractual and property interests that will also promote employment (including for many API 

members), labor income, tax revenues, and other economic impacts . . . .”); Chevron Amicus Br. 

at 2 (“Chevron has already paid the United States over $9 million in initial bonus bid payments 

on the 34 tracts and will pay nearly $38 million more if the Department of Interior approves

Chevron’s bids.”). The economic consequences of vacatur, particularly for non-parties, is an 

important consideration when deciding whether vacatur is warranted. See, e.g., Black Oak 

Energy, LLC v. FERC, 725 F.3d 230, 244 (D.C. Cir. 2013) (“[V]acatur in this case would 
61 

certainly be disruptive because it would prompt yet another refund, which would require yet 

another charge on uninvolved market participants.”). 

But a closer examination of the specific consequences of vacatur is warranted in light of 

the unusual timing in this case. Although Lease Sale 257 took place in November 2021, none of 

the leases from that sale have yet been awarded or become effective, according to the 

government’s most recent submission. See 3d Decl. Bernadette Thomas ¶¶ 4, 7–9, Ex. 1 of 

Defs.’ Supp. Br., ECF No. 74-1. “[A] quintessential disruptive consequence arises when an 

agency cannot easily unravel a past transaction in order to impose a new outcome.” Am. Great 

Lakes Ports Ass’n v. Schultz, 962 F.3d 510, 519 (D.C. Cir. 2020). Here, though, BOEM would 

not need to unravel anything. It would simply not award or execute the leases that it has not to 

this point awarded or executed. To the extent bonus bid payments have been made, relatively 

little time has passed and the number of payments is relatively few in number. This is therefore 

not the kind of “invitation to chaos” that would require the parties to “attempt[] to recoup and 

redistribute funds that changed hands years ago in numerous separate transactions.” Am. Great 

Lakes Ports Ass’n, 962 F.3d at 519. 

Overall, API, Louisiana, and Chevron’s other broad assertions of large-scale economic 

disruptions remain largely speculative. For instance, Louisiana points out that it allocates its 

budget in reliance on the revenue from bonus bids and royalties from operations in the Gulf of 

Mexico, including the budget for its coastal restoration efforts. La. Supp. Br. at 3–4. But it is 

wrong that those transactions are “settled.” See id. at 4 (quoting Am. Great Lakes Ports Ass’n, 

962 F.3d at 519). Louisiana is not entitled to any portion of the bonus bids until the leases are 

actually executed. In the meantime, drilling, exploration, and royalty payments continue 

throughout much of the Gulf. See Congress Amicus Br. at 24–25 (pointing out that 75% of 
62 

active offshore leases in the Gulf of Mexico are currently non-producing and royalties do not 

generally commence for several years after a lease is issued). Any delay or inconvenience that 

would result “is the nature of doing business, especially in an area fraught with bureaucracy and 

litigation.” WildEarth Guardians, 368 F. Supp. 3d at 84, n.35 (quoting Standing Rock Sioux 

Tribe, 282 F. Supp. 3d at 104). 

One potentially disruptive consequence of vacatur is that because the 2017–2022 FiveYear Program is drawing to a close, there may not be another Gulf of Mexico Lease Sale under 

that Program if Lease Sale 257 does not go forward because no sales may take place under the 

current program after it expires in June 2022. See Defs.’ Supp. Br. at 4–5; see also API Mot. at 

45. The Federal Defendants represent that if the decision were remanded without vacatur, the 

sale date of November 2021 would remain effective and could be affirmed later on. Defs.’ Supp. 

Br. at 4. In contrast, if the decision were vacated and BOEM did decide to proceed with Lease 

Sale 257 after taking the requisite hard look under NEPA, it would need to complete that process 

before the Five-Year Program expires. Id. That may be a demanding timeline, but in light of the

substantial progress that BOEM has made toward adequately calculating the impact of foreign 

consumption on greenhouse gas emissions, as demonstrated by its subsequent Draft EIS for 

Lease Sale 258, it may not be impossible. And, as the Federal Defendants note, the agency could 

still decide to include all or part of the area included in Lease Sale 257 in its next Five-Year 

Program. Id. at 5. 

The most persuasive argument the parties raise is that if Lease Sale 257 is vacated, 

participants—including amicus Chevron and other API members—will have disclosed their 

confidential valuation of unleased acreage, making their competitors “fully aware of which tracts 

[they have] targeted for potential development as well as the valuation that [they have] placed on 
63 

leasing those parcels . . . .” Chevron Amicus Br. at 1–2; API Mot. at 41; API Supp. Br. at 2. In 

the supplemental briefing, the parties were in agreement that vacatur would necessitate a new 

confidential bidding process, if the sale were to take place at all. See Defs.’ Supp. Br. at 4 (“If 

Lease Sale 257 were vacated, Interior could not use the same bidding process even if it were to 

re-offer the sale at a later date . . . .”); Pls.’ Supp. Br. at 1 (“Because vacatur would invalidate 

Interior’s Decision, it would need to initiate a new closed bidding process if it later decided to 

proceed with a lease sale.”). But those bids would have become public even if BOEM decided 

not to accept them, as it undisputedly had authority to do. See 30 C.F.R. § 556.516(a–b) 

(“BOEM opens the sealed bids at the place, date, and hour specified . . . for the sole purpose of 

publicly announcing and recording the bids. BOEM does not accept or reject any bids at that 

time. BOEM reserves the right to reject any and all bids received, regardless of the amount 

offered.”).30 And as Plaintiffs point out, the bidders assumed the risk of this information 

becoming public by participating in Lease Sale 257 despite full knowledge of this pending 

lawsuit. Pls.’ Opp’n at 52. 

Plus, affirmance of Lease Sale 257 exactly as it occurred or the No Action Alternative are 

not the only two options available to the agency. BOEM could also consider any of the other 

alternatives identified in the Record of Decision that offer some, but not all, of the tracts that 

were made available in the November sale, which would also require a new closed bidding 

process. Moreover, should the lease sale be held in the future, companies’ valuation of particular 

tracts may have changed for any number of reasons unrelated to the prior sale. 

30 Plaintiffs also point out that most of the tracts for Lease Sale 257 in fact only received 

a single bid, suggesting that the competition may not be as fierce as Intervenor-Defendants 

indicate. Pls.’ Supp. Br. at 4. 
64 

The Court does not lightly discount the asserted harms that would flow from vacatur. But 

remand without vacatur is not required when there are any disruptive consequences, but rather 

when those consequences are unacceptable in light of the seriousness of the error. See Env’t Def. 

Fund v. FERC, 2 F.4th 953, 976 (D.C. Cir. 2021) (finding vacatur appropriate in light of a 

serious administrative error even though the pipeline at issue was already operational); Comcast 

Corp. v. FCC, 579 F.3d 1, 9 (D.C. Cir. 2009) (pointing out that “the second Allied–Signal factor 

is weighty only insofar as the agency may be able to rehabilitate its rationale”). On balance, the 

disruptive consequences of vacatur do not outweigh the seriousness of the NEPA error in this 

case and the need for the agency to get it right. 

Finally, the Federal Defendants and Intervenor-Defendants suggest that vacatur is not 

necessary because the agency has the regulatory discretion to suspend leases and lease 

operations. Defs.’ Supp. Br. at 3; API Supp. Br. at 4. The Court is not so sure. The sole source 

of this authority that the Federal Defendants cite states that “BOEM may order a suspension . . . 

[w]hen necessary to comply with judicial decrees prohibiting some or all activities under [a]

lease.” 30 C.F.R. § 585.417(a)(1). But if the Record of Decision were remanded without 

vacatur and without an injunction, such a decree would not prohibit activities on any leases, and 

suspension would not be necessary to comply with it. The plain text of 30 C.F.R. 

§ 585.417(a)(1) therefore suggests that it would be inapplicable to this situation. Likewise, API 

cites 30 C.F.R. § 250.172(d), which allows BOEM to suspend operations or production “[w]hen 

necessary to carry out the requirements of NEPA.” API Supp. Br. at 4 (quoting 30 C.F.R. § 
65 

250.172(d)). That provision applies to operations and production on leases, but it says nothing 

about suspension of the bidding process or executing the leases.31 

If the leases become effective, however, the reliance interests asserted by IntervenorDefendants would become much more concrete than they are at this time and procedural hurdles 

would make it more difficult for BOEM to eventually cancel the leases. See 30 C.F.R. § 550.181 

(requiring notice and an opportunity for a hearing before cancelling a lease); id. § 550.184 

(requiring compensation to be paid for cancelled leases). In short, remand without vacatur would 

“result[] in the same prejudice to Plaintiffs that the expedited schedule was intended to avoid.” Pls.’ 

Supp. Br. at 5.

c. Relationship Between Vacatur and Injunctive Relief 

In the original briefing, Defendant-Intervenors and amicus Chevron strenuously argued

that Plaintiffs have not met the standard for injunctive relief. The Supreme Court and the D.C. 

Circuit alike have made clear in recent decisions that an injunction is not simply “a necessary 

consequence of vacatur” in a NEPA case, and that it cannot issue without the requisite 

application of the four-factor test for injunctions. Standing Rock Sioux Tribe, 985 F.3d at 1054; 

see also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 158 (2010) (“It is not enough for 

a court considering a request for injunctive relief to ask whether there is a good reason why an 

injunction should not issue; rather, a court must determine that an injunction should issue under 

the traditional four-factor test set out above.”) (emphasis in original). Defendant-Intervenors are 

indeed correct that Plaintiffs have not attempted to establish that the four factors for injunctive 

relief—irreparable injury, inadequacy of remedies at law to compensate for that injury, the 

31 API’s point that bids not accepted by a certain date are “deemed rejected” in fact 

suggests that if the Record of Decision is remanded without vacatur, the bids would have to be 

either accepted or rejected. See API Supp. Br. at 1. 
66 

balance of hardships, and the public interest—would be served by the specific action they 

request. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. at 156-57 (citation omitted). But 

although the Complaint does request as relief that the Court “vacate or enjoin” the leases and 

“[e]nter any other appropriate injunctive relief to ensure that Defendants comply with NEPA and 

the APA,” Compl. ¶¶ 5–6, Plaintiffs make abundantly clear in their opposition brief that they “do 

not request any freestanding relief beyond vacatur,” Pls.’ Opp’n at 54. 

A closer look at Monsanto and Standing Rock elucidates any confusion here. In 

Monsanto, the Supreme Court addressed a decision that vacated the agency’s decision to 

completely deregulate Round-up Ready Alfalfa and also enjoined the agency from even partially

deregulating before an EIS had been prepared. Monsanto Co., 561 U.S. at 160. In Standing 

Rock, the D.C. Circuit upheld the district court’s decision to vacate an easement for a pipeline 

but overturned its injunction ordering the pipeline to be shut down. Standing Rock Sioux Tribe, 

985 F.3d at 1054. The Circuit cautioned that “[i]f a district court could, in every case, effectively 

enjoin agency action simply by recharacterizing its injunction as a necessary consequence of 

vacatur, that would circumvent the Supreme Court’s instruction in Monsanto that a court must 

determine that an injunction should issue under the traditional four-factor test.” Id. (quotations 

omitted). In both those situations, the injunction extended to some agency action beyond that 

which was vacated itself. Cf. WildEarth Guardians v. United States Bureau of Land Mgmt., 870 

F.3d at 1240 (declining to vacate leases because “the question remains what will happen to the 

leases which have already been issued and whether mining the lease tracts should be enjoined—a 

question that the parties have not touched on in their arguments before us”).
67 

In contrast, there is nothing to be enjoined here.32 The leases have not become effective 

and no activity on them is taking place. Instead, vacatur and remand of the Record of Decision 

to hold Lease Sale 257 will do exactly what is implied: vacate Lease Sale 257 and allow the 

agency an opportunity to remedy its NEPA error as it so chooses in the first instance. The Court 

does not specify how BOEM must do so, on what timeline, or what ultimate conclusion it must 

reach, leaving those issues to the sound discretion of the agency. 

* * * 

The Court holds that there is insufficient reason to depart from the standard remedy of 

vacatur in this case and no reason to consider an injunction at this time. Accordingly, it will 

vacate the Record of Decision for Lease Sale 257, and the action taken based on that Record of 

Decision, including Lease Sale 257, and remand to the agency for further proceedings. 

V. CONCLUSION

 For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART

Plaintiffs’ Motion for Summary Judgment (ECF No. 34), GRANTS IN PART AND DENIES 

IN PART Defendants’ Motion for Summary Judgment (ECF No. 45). GRANTS IN PART 

AND DENIES IN PART Intervenor-Defendant Louisiana’s Motion for Summary Judgment 

(ECF No. 42), and GRANTS IN PART AND DENIES IN PART Defendant-Intervenor 

American Petroleum Institute’s Motion for Summary Judgment (ECF No. 43). The Court 

VACATES and REMANDS the Record of Decision for Lease Sale 257 to the Department of 

the Interior. An Order consistent with this Opinion is separately and contemporaneously issued. 

32 API’s last-minute request that the Court require BOEM to either accept or reject bids 

by February 15th or extend the deadline, see API Supp. Br. at 5, is, by contrast, a perfect example 

of injunctive relief that does not flow from the necessary consequences of vacatur, and the Court 

declines to grant it. 
68 

Dated: January 27, 2022 RUDOLPH CONTRERAS

United States District Judge