UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUM B IA

) CENTER FOR BIOLOGICAL ) DIVERSITY, ) ) P laintiff, ) ) v. ) No. 16-cv-738 (KBJ) ) RYAN ZINKE, in his of ficial capacity ) a s S ecretary, U.S. Department of th e ) In terior, et al., ) ) Defendants. ) )

M EM ORANDUM OPINION

On April 20, 2010, the Deepwater Horizon oil rig exploded in the Gulf of

Mexico, killing eleven workers, contaminating roughly 1,100 miles of shoreline, and

causing significant losses to the environment and the economy throughout the region.

(S ee Compl., ECF No. 1, ¶¶ 52– 56.) See generally In re Deepwater Horizon,

(5th Cir. 2014). P resident Obama immediately established an independent

commission to analyze the disaster and to recommend changes to the federal

government’s regulatory regime for offshore drilling. (See Compl. ¶ 58.) In addition,

the Council on Environmental Quality (“CEQ”), which is an entity within the Executive

Office of the P resident, initiated a review of the procedures that the Department of the

Interior uses for subjecting offshore oil and gas exploration and development projects to

the requirements of the National Environmental P olicy Act (“NEP A”), 42 U.S.C.

§ § 4321– 4370h. (S ee Compl. ¶ 59.) See also CEQ, Review of MMS NEP A P olicies,

P ractices, and P rocedures for OCS Oil and Gas Exploration and Development,

(May 28, 2010). Both the independent commission and the CEQ

recommended major revisions to Interior’s NEP A procedures, including changes to

certain regulatory provisions that permit the agency to bypass the project-specific

environmental review that is typically required for all major federal actions—provisions

that are known as “categorical exclusions.” (Compl. ¶¶ 68– 69 (describing the

independent commission’s report), 65 (describing the CEQ’s report); see also Letter

from Abigail Ross Hopper, Dir., Bureau of Ocean Energy Mgmt. & Brian Salerno, Dir.,

Bureau of Safety & Envtl. Enf’t, to Miyoko Sakashita, Oceans Dir., Ctr. for Biological

Diversity (June 23, 2016) (“Denial of P et. for Rulemaking”), Ex. 1 to Def.’s Mot. to

Dismiss, ECF. No. 11-2, at 5 (quoting from the CEQ’s report).) 1 Interior took these

calls for reform under advisement, and initiated a review of its own NEP A procedures

that commenced on October 8, 2010. See Dep’t of the Interior, Notice of Intent to

Conduct a Review of Categorical Exclusions for Outer Continental Shelf Decisions

(“Notice of Intent”),

, 62,418 (Oct. 8, 2010).

Interior’s internal NEP A review is still ongoing to date—now more than six

years later. (S ee Compl. ¶ 66.) Frustrated with the agency’s failure to announce

reforms and concerned about the alleged dire environmental consequences of Interior’s

existing NEP A procedures, P laintiff Center for Biological Diversity (“CBD”) filed this

lawsuit seeking to compel Interior to complete its NEP A review and announce whether,

in the agency’s view, revisions to its NEP A policies are necessary. (See

.) CBD

maintains that Interior’s failure to finish its review and reveal the results constitutes

“agency action . . . ‘unreasonably delayed’” within the meaning of the scope-of-review

1 Pag e-number citations t o the documents t he p arties h ave filed refer to t he p age n umbers t hat t he Co u rt ’s electronic filin g system automatically assigns.

2 provision of the Administrative P rocedure Act (“AP A”), 5 U.S.C. §§ 701– 706. (Compl.

¶ 77 (quoting

(1)).) And to bolster the claim that Interior has a legal

duty to take the actions CBD seeks to compel, CBD invokes a CEQ regulation that

states: “Agencies shall continue to review their policies and procedures and in

consultation with the [CEQ] to revise them as necessary to ensure full compliance with

the purposes and provisions of [NEP A].”

(a). (See Compl. ¶ 77.)

Before this Court at present is Interior’s ripe motion to dismiss CBD’s

complaint. (S ee Def.’s Mem. in Supp. of Mot. to Dismiss (“Mot.”), ECF No. 11-1; see

a lso P l.’s Resp. & Opp’n to Def.’s Mot. to Dismiss (“Opp’n”), ECF No. 13; Def.’s

Reply Mem. in Supp. of Mot. to Dismiss (“Reply”), ECF No. 14.) On March 31, 2017,

this Court issued an order that GRANTED Interior’s motion to dismiss, and

DISM ISSED CBD’s lawsuit. (S ee ECF No. 17.) This Memorandum Opinion explains

the reasons for that order. In short, the Court has concluded that, although the text of

(a) plainly establishes that an agency has an ongoing obligation to

review its own NEP A procedures and to make changes “as necessary,” that regulation

does not mandate that an agency co mp lete its ongoing review—i.e., make a final

decision regarding whether or not revisions are warranted—much less demand that an

agency publicly announce its decision to decline to revise its existing rules. What is

more, it is clear to this Court that the agency-review obligation that section 1507.3(a)

establishes does not qualify as the type of “discrete” agency action that a federal court

can supervise consistent with the circumscribed judicial role that the AP A

contemplates. See Norton v. S. Utah Wild erness All. (SUWA),

, 62– 64, 66–

3 67 (2004). Consequently, this Court agrees with Interior that CBD’s complaint must be

dismissed because it fails to state a claim upon which relief can be granted.

I. B ACKGROUND

A. Environmental Review Of M ajor Fe deral Actions Under NEPA

NEP A’s core provision is the requirement that, whenever any federal agency

proposes a “major Federal action[] significantly affecting the quality of the human

environment,” the agency must prepare a comprehensive document that essentially

details and evaluates “the environmental impact of the proposed action” and assesses

other alternatives.

(2)(C). This provision—often called the

“environmental impact statement” or “EIS” requirement—is “[a]t the heart of NEP A.”

Dep ’t o f Transp. v. Pub. Citizen,

(2004).

To implement the EIS mandate, NEP A requires agencies to consult with the CEQ

(a body that Congress created in the NEP A statute itself, see

) to

identify procedures that ensure that environmental values are considered in agency

decision making.

§ 4332(2)(B). The CEQ has the “authority to issue regulations

interpreting [NEP A],” Pub . Citizen,

, and the CEQ’s regulations apply

to all federal agencies.

. 2

2 Th e CEQ’s regulations state t hat all federal agencies “shall comply wit h” t hose regulations,

, an d courts frequently treat those regulations as binding on o ther federal agencies. S ee Bro d sky v. U.S. Nuclear Regulatory Comm’n,

, 120 n .3 (2d Cir. 2013) (collecting cases). Bu t NEPA itself d oes n ot exp ressly require t hat o ther agencies comp ly with t he CEQ’s regulations; t h erefore, “the binding effect of CEQ regulations is far from clear.” TOMAC, Taxpayers of Mich. Ag a inst Casinos v. Norton,

(D.C. Cir. 2006). Nevertheless, n either p arty raises t his p o in t in the in stant case, and t herefore the Co urt will t reat CEQ’s regulations as h aving the fo rce o f law. S ee C ity o f Alexandria v. S later,

, 866 n .3 (D.C. Cir. 1999) (“Because t he A d min ist rat ion d oes not challenge t he Co uncil’s regulatory authority, we treat the Council’s regulations as b inding on t he agency.”); see also SUWA,

(exp laining t hat courts can enforce co mp liance with “agency regulations that have t he fo rce of law”).

4 Notably, the CEQ’s regulations offer agencies the option of preparing a less-

burdensome “environmental assessment” in lieu of an EIS under certain circumstances,

see

; see a lso

(2)(C);

(c), (e),

and the regulations also provide agencies with a way to avoid undertaking any

environmental analysis at all with respect to certain proposed actions under

consideration. To bypass the environmental review entirely, an agency must identify

“categorical exclusions” from the EIS requirement; these must be types of agency

actions “which do not individually or cumulatively have a significant effect on the

human environment.”

(describing categorical exclusions); see also

id . § 1507.3(b)(2)(ii) (instructing each agency to identify categorical exclusions). For

example, Interior has promulgated categorical exclusions for “[p]ersonnel actions and

investigations and personnel services contracts[,]” as well as for “[i]nternal

organizational changes and facility and bureau reductions and closings.”

(a), (b). The CEQ’s regulations make clear that if a proposed action falls

within one of an agency’s established categorical exclusions, “neither an environmental

assessment nor an environmental impact statement is required[,]” except in

“extraordinary circumstances[.]”

.

A CEQ regulation requires each agency to develop its own “implementing

procedures” to “supplement” the CEQ’s rules, id . § 1507.3(a), and also provides that

each agency’s procedures must identify categorical exclusions, see id.

§ 1507.3(b)(2)(ii). Interior’s NEP A procedures are codified across both the Code of

Federal Regulations and Interior’s Department Manual, see 43 C.F.R. part 46; Dep’t of

the Interior, Dep’t Manual, P art 516 (May 27, 2004); see also M ich. Gambling

5 Op p o sition v. Kempthorne,

(D.C. Cir. 2008), and both of these sources

contain lists of agency actions that are categorically excluded from NEP A’s EIS

requirement. S ee

; Dep’t Manual, P art 516, Ch. 15.4. 3 Significantly

for present purposes, the same CEQ regulation states that an agency must “continue to

review” its own policies and procedures, presumably including its designated

categorical exclusions, and “revise them as necessary[.]”

(a)

(“Agencies shall continue to review their policies and procedures and in consultation

with [CEQ] to revise them as necessary to ensure full compliance with the purposes and

provisions of [NEP A].”).

B. Inte rior’s NEPA Pro cedures Fo r Offs ho re Drilling Pro jects

Interior’s Department Manual contains several categorical exclusions that

specifically pertain to the authority that Interior has under the Outer Continental Shelf

Lands Act (“OCSLA”), 43 U.S.C. §§ 1331– 1356b, “to grant and manage leases for

recovery of oil, gas, and other minerals from submerged lands located on the Outer

Continental Shelf.” Mesa Operatin g Ltd. P’ship v. U.S. Dep’t of Interior,

(5th Cir. 1991). OSCLA’s mandate that Interior manage mineral leases in the

Outer Continental Shelf encompasses four distinct stages of regulatory responsibility:

“(1) formulation of a five year leasing plan by the Department of the Interior; (2) lease

sales; (3) exploration by the lessees; [and] (4) development and production.” Sec’y o f

th e In terior v. California,

(1984). “Each stage involves separate

regulatory review[,]”

and it is well established that NEP A’s requirements apply of

3 Th e categorical exclusions lis ted in Chapter 15 o f t he Depart ment M anual, which were mo st recently u p d ated in 2004, are particular t o t he M inerals M anagement Service, a former agency wit hin Interior t h at was reorganized after the 2010 Deepwater Ho rizon o il spill. S ee Dep’t o f t he Interior, Reo rg anization o f Title 30, Co de o f Federal Regulations,

, 61,052 (Oct. 4, 2010).

6 their own force to each stage of the OCSLA regulatory process, Vill. o f Fa lse Pa ss v.

Cla rk,

(9th Cir. 1984); see, e.g., Oceana v. Bureau of Ocean Energy

M g mt.,

, 154– 74 (D.D.C. 2014) (evaluating whether OCSLA lease

sales complied with NEP A).

As relevant here, Interior has determined that, with certain exceptions, no EIS

need be created before the agency undertakes two different types of OSCLA approvals:

(1) “[a]pproval of an offshore lease or unit exploration, development/production plan

. . . in the central or western Gulf of Mexico[,]” or (2) “[a]pproval of an Application for

P ermit to Drill . . . an offshore oil and gas exploration or development well[.]” Dep’t

Manual, P art 516, Ch. 15.4(C)(10), (12). These categorical exclusions are of particular

interest to CBD’s staff and its members, several of whom live near and enjoy the Gulf

of Mexico (see Compl. ¶¶ 15– 16), because Interior invoked these categorical exclusions

when it approved British P etroleum’s “initial and revised exploration plan, as well as its

permit to drill the Macondo well” in the Gulf of Mexico (id . ¶ 57), and as a result of

several failures in the machinery attached to the Macondo well, it “blew out and caused

the Deep water Horizon oil rig to explode” (id . ¶ 52). S ee In re Deepwater Horizon,

.

C. Inte rio r’s Review Of Its NEPA Procedures After The Deepwater Horizon Oil Spill

The Deep water Ho rizon oil spill spurred a series of efforts to review and reform

the federal government’s regulatory regime for offshore drilling projects, as explained

above. (S ee Compl. ¶¶ 58– 59.) Both the CEQ and the commission that P resident

Obama convened issued reports, and both reports recommended, in particular, that

Interior revise its categorical exclusions related to offshore drilling. (Id. ¶¶ 65, 68– 69.)

7 Adding its voice to the chorus, P laintiff CBD specifically petitioned Interior in June of

2010, requesting that the agency initiate a rulemaking for the purpose of eliminating the

categorical exclusions that permit the agency to approve leases for outer continental

shelf drilling without an environmental review. (Compl. ¶ 61; see also Denial of P et.

for Rulemaking at 2– 3.)

On October 8, 2010, Interior published a notice of its “intent to conduct a broad

review of its categorical exclusions . . . for Outer Continental Shelf (OCS) decisions.”

Notice of Intent, 75 Fed. Reg. at 62,418. The notice invited public comments and set a

comment deadline one month later. Id. at 62,419. More than six years later, Interior’s

review is still ongoing. (Compl. ¶ 66; Denial of P et. for Rulemaking at 5.) Moreover,

Interior has continued to approve permits in the Gulf of Mexico at every stage of the

OCSLA review process—including drill permits—pursuant to its categorical exclusions

from the EIS requirement. (Compl. ¶ 72.)

D. Pro ce dural Histo ry

CBD filed this lawsuit on April 20, 2016, seeking to compel Interior to respond

to CBD’s petition for rulemaking and complete the agency’s ongoing review of its

categorical exclusions under NEP A. (See Compl.) CBD’s two-count complaint charges

Interior with unreasonably delaying its response to CBD’s rulemaking petition in

violation of the AP A (see id . ¶ 75), and with failing to complete a legally required

review of its categorical exclusions, in violation of “the AP A and/or NEP A” (id . ¶ 77

(citing

)). CBD’s complaint seeks an order declaring that both

failures constitute “agency action unlawfully withheld or unreasonably delayed” within

the meaning of

(1), and it asks this Court to compel Interior (1) to act on

8 CBD’s rulemaking petition within 30 days, (2) to complete the agency’s review of its

NEP A procedures within 90 days, and (3) to “issue the necessary revisions” of its

NEP A procedures within 120 days. (Id., P rayer for Relief ¶¶ 1– 4.)

Interior has moved to dismiss the case. In its motion, Interior first notes that it

denied CBD’s petition for rulemaking shortly before its motion was filed (Mot. at 15–

17 (citing Denial of P et. for Rulemaking)), and as a result, Interior argues (and CBD

concedes) that the complaint’s first claim is moot (id . at 18– 23). 4 Second, with respect

to CBD’s claim that Interior has unlawfully failed to complete its review of its NEP A

procedures, Interior argues that CBD fails to state a claim for relief because CBD has

not identified a mandatory duty to take discrete action so as to substantiate a claim for

agency action “unreasonably delayed” under

(1). (Mot. at 23– 26

(invoking Federal Rule of Civil P rocedure 12(b)(6)).) This Court held a hearing

regarding Interior’s motion on February 2, 2017, and it issued an Order dismissing

CBD’s action on March 31, 2017, which was based on the following analysis of the

standards, claims, and issues in this case.

II. LEGAL STANDARDS

A. APA Claims B rought Under

(1)

In its “scope of review” provision, the AP A authorizes courts to “compel agency

action unlawfully withheld or unreasonably delayed[.]”

(1). Unlike the

provision that instructs courts to “set aside” unlawful agency action, id . § 706(2), the

§ 706(1) provision “provides relief for a f a ilure to act[.]” SUWA,

4 CBD ackn owledges t hat In terior’s response t o it s rulemaking p etit ion mo oted it s claim regarding In t erior’s failu re to respond. (S ee Opp’n at 14.) See al so Nat ’l Parks C onservation Ass’n v. U.S. Dep’t o f In t erior, 794 F. Su pp. 2d 39, 44– 46 (D.D.C. 2011) (h olding that denial of p etition for ru lemaking, is s ued after lawsuit was filed, moot ed claim t hat agency h ad failed to respond t o t he petition).

9 (emphasis added). Notably, however, only certain types of agency failures can support

a claim under § 706(1). It is well established that “a claim under § 706(1) can proceed

only where a plaintiff asserts that an agency failed to take a discrete agency action that

it is req u ired to take.” Id. at 64 (emphasis in original). These two limitations play

different roles: “The limitation to discrete agency action precludes . . . broad

programmatic attack[s,]” id. (emphasis added), while “[t]he limitation to required

agency action rules out judicial direction of even discrete agency action that is not

demanded by law[,]” id. at 65 (emphasis in original).

The discreteness limitation precludes using “broad statutory mandates” to attack

agency policy, the better to “avoid judicial entanglement in abstract policy

disagreements which courts lack both expertise and information to resolve.” Id. at 64,

66. A statutory provision “contain[ing] only a general follow-the-law directive . . .

flunks S UWA’s discreteness test[,]” for example, because it does not prescribe a

specific action that a court can competently compel and supervise. El Pa so Na t. Gas

Co . v. Un ited States,

(D.C. Cir. 2014); see also Anglers Conservation

Netwo rk v. Pritzker,

(D.C. Cir. 2016) (explaining that Ҥ 706(1)

grants judicial review only if a federal agency has a ‘ministerial or non-discretionary’

duty amounting to ‘a specific, unequivocal command’” (quoting SUWA, 542 U.S. at 63–

64)).

The discreteness requirement promotes a core goal of the AP A because it permits

lawsuits targeting agency in action to the same degree that suits challenging reviewable

“agency action” under § 706(2) (or “final agency action” under

) are

permitted. See Cobell v. Norton,

(D.C. Cir. 2001) (“Where a

10 federal court has jurisdiction to hear challenges to an agency action[,] it also has

jurisdiction over claims of unreasonable delay.”). This parallel between reviewable

action and reviewable inaction rightly avoids a scenario in which “agencies could

effectively prevent judicial review of their policy determinations by simply refusing to

take final action.” Id.; cf. In re Am. Rivers & Id a ho Rivers Un ited,

(D.C. Cir. 2004) (explaining that “the primary purpose of the writ [of mandamus] in

circumstances” in which a plaintiff files a § 706(1) claim directly in the D.C. Circuit “is

to ensure than an agency does not thwart [the Circuit’s] jurisdiction by withholding a

reviewable decision”). However, it also means that if the challenged agency inaction

relates to discretionary agency policymaking that would not be reviewable in any event,

there is no valid basis for maintaining a claim for inaction under § 706(1).

The other § 706(1) requirement—that the law must mandate the agency action

that the plaintiff seeks to compel—reflects the fact that, prior to the AP A, courts

compelled executive action via writs of mandamus, which were available only for

“specific, unequivocal command[s]” as to which the agency had “no discretion

whatever.” SUWA,

(internal quotation marks and citations omitted).

Thus, “the only agency action that can be compelled under the AP A is action legally

req u ired.” Id . (emphasis in original). Moreover, the mandatoriness requirement means

that courts cannot compel agencies to take action beyond what is legally required of

them. For example, “when an agency is compelled by law to act within a certain time

period, but the manner of its action is left to the agency’s discretion, a court can compel

the agency to act, but has no power to specify what the action must be.”

. In

other words, a court presented with a valid § 706(1) claim can order what the law

11 requires, but no more. S ee, e.g., Peo ple f o r th e Eth ical Treatmen t o f An imals v. US DA,

(D.C. Cir. 2015) (holding that, even if the Animal Welfare Act

required an agency to promulgate standards with respect to birds, the Act did not

require that the agency apply its general enforcement standards to birds before the bird-

specific standards were complete); In re Long-Distance Tel. S erv. Fed. Excise Ta x

Ref u nd Litig.,

(D.C. Cir. 2014) (holding that, even if statute required

the Internal Revenue Service to create an excise-tax refund procedure, it did not require

the specific procedure that the plaintiffs sought to compel).

Notably, the “law” that generates a mandatory duty need not be a statute—it can

also be an “agency regulation[] that ha[s] the force of law[.]” SUWA,

;

a cco rd S AI v. Dep’t of Homeland Sec.,

(D.D.C. 2015).

And while the mandatoriness requirement is textually grounded in § 706(1)’s explicit

reference to “‘agency action un lawfully withheld[,]’” SUWA,

(emphasis

added by SUWA) (quoting

(1)), the requirement applies regardless of

whether a claim under § 706(1) seeks to compel agency action “unlawfully withheld” or

agency action “unreasonably delayed” because “a delay cannot be unreasonable with

respect to action that is not required.” Id. at 63 n.1; see a lso In re Am. Rivers,

.

In sum, a plaintiff who asks a court to “compel agency action . . . unreasonably

delayed” under § 706(1) must pinpoint an agency’s failure to take an action that is b o th

discrete a n d mandatory. S ee SUWA,

.

12 B. M o tions To Dismiss § 7 0 6(1) Claims Under Federal Rule Of Civ il Proce dure 12(b)(6)

Federal Rule of Civil P rocedure 12(b)(6) provides that a party may move to

dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can

be granted[.]” Fed. R. Civ. P . 12(b)(6). To survive a Rule 12(b)(6) motion, a

complaint must contain sufficient factual allegations that, if true, “state a claim to relief

that is plausible on its face.” Bell Atl. Co rp. v. Twombly,

(2007).

If a complaint that contains a claim brought under § 706(1) fails to identify a

discrete and mandatory agency duty, the court must grant the defendant’s Rule 12(b)(6)

motion and dismiss the claim. S ee, e.g., An g lers Co nservation Network v. Pritzker,

, 439– 41 (D.D.C. 2014), af f ’d,

(D.C. Cir. 2016); see also

S ierra Clu b v. Ja ckson,

, 853– 54 (D.C. Cir. 2011) (explaining that whether

a plaintiff has adequately pleaded a predicate agency duty is properly analyzed under

Rule 12(b)(6), not Rule 12(b)(1)). So it is here.

III. ANALYSIS

A. Se ction 1 507.3(a) Does Not M andate The Actions That CB D Seeks To Compe l

In its complaint, CBD seeks an order requiring Interior to take two actions by

dates certain: “complete its review of its NEP A procedures within ninety (90) days and

issue the necessary revisions within one hundred twenty (120) days.” (Compl., P rayer

for Relief ¶ 4.) 5 In response to questioning during the Court’s motion hearing, CBD’s

counsel went further, adding that Interior is also obligated to publish its final decision

5 Th e complaint also asks the Co urt t o “[o]rder Interior t o act on [CBD]’s p etition wit hin thirty (30) d ays” (Compl., Prayer for Relief ¶ 3), b ut as CBD acknowledges, t hat request for relief became mo ot wh en Interior denied CBD’s ru lemaking p etition d uring t he course o f this lawsuit (see Opp’n at 14).

13 in the Federal Register, regardless of whether it chooses to revise its current procedures

or leave them intact. (S ee Tr. of Oral Arg. (“[I]t’s our interpretation that that final

decision as to whether revisions are needed has to be in the Federal Register[.]”).)

CBD maintains that these actions are mandatory for the purpose of § 706(1) because

they are legally required under

(a). (See Opp’n at 15 (“Interior is

legally required to complete its pending review of its categorical exclusions for

offshore oil and gas drilling activities.”); id . at 16 (“That review must culminate in a

decision to revise its procedures or that its procedures are adequate and do not need

revision.”).) However, for the reasons explained below, this Court has concluded that

Interior is not legally bound to take any of these actions, and therefore, this lawsuit

fails to identify a mandatory duty that the Court can enforce under § 706(1).

1. Section 1507.3(a) Does Not Require Agencies To Complete Their Review Of Their NEP A P rocedures

The key CEQ regulation at issue in this case—40 C.F.R. § 1507.3(a)—imposes

an initial obligation on each federal agency to “adopt procedures” for implementing

NEP A. Before adopting its procedures, each agency must consult with other agencies

that have similar NEP A programs and with CEQ, and must publish its proposed

procedures in the Federal Register for public comment.

(a). And

once adopted, an agency’s NEPA procedures must be “filed with [CEQ] and made

readily available to the public.” Id.; see also M ich. Gambling Opposition,

(explaining that Interior “complied with these requirements when it established its

NEP A procedures, now codified in its manual”). What is at issue here is the

regulation’s closing sentence, which describes the extent of each agency’s continuing

obligations with respect to its NEP A procedures after those procedures are in place:

14 “Agencies shall continue to review their policies and procedures and in consultation

with [CEQ] to revise them as necessary to ensure full compliance with the purposes and

provisions of [NEP A].”

(a).

Nowhere does section 1507.3(a) require that an agency’s review of its NEP A

procedures must come to a finite conclusion that entails a decision regarding whether or

not revisions are necessary. To the contrary, the duty to “continue to review” NEP A

procedures is, by definition, continuous. Furthermore, the final sentence of

section 1507.3(a) stands in stark contrast with a previous sentence in the very same

provision, which pertains to CEQ’s duty to review each agency’s initial NEP A

procedures before they are adopted. In that sentence, section 1507.3(a) expressly

commands that CEQ “shall complete its review within 30 days.”

(emphasis added).

It is well-settled that, when a legal text “includes particular language in one section . . .

but omits it in another section[,]” courts may presume that the text’s author “act[ed]

intentionally and purposely in the disparate inclusion or exclusion.” Ru ssello v. United

S ta tes,

(1983) (internal quotation marks and citation omitted). Thus,

the absence of similar language about “completing” review in the final sentence of

section 1507.3(a)—the sentence at issue in this case—suggests that, in contrast with the

pre-adoption review, the contemplated ongoing review need not come to a finite

conclusion.

CBD presses two primary arguments for its contention that Interior has a duty to

complete the review of its NEP A procedures by making a final decision regarding

whether or not revisions are warranted, but neither succeeds. First, CBD argues that the

first part of the final sentence of section 1507.3(a) uses the word “shall”—i.e.,

15 “[a]gencies shall continue to review their policies and procedures” (emphasis added)—

and thus reflects a mandatory duty. (See Opp’n at 15– 16.) It is true enough that the

word “shall” typically conveys mandatoriness, see, e.g., Kingdomware Techs., Inc. v.

Un ited S tates,

, 1976– 77 (2016), but that uncontroversial proposition

says nothing about which actions, exactly, section 1507.3(a) mandates. The command

in the regulation is that agencies “shall continue to review” their NEP A procedures,

which does not plainly indicate that agencies must complete any such review (i.e., come

to a conclusion about the necessity of revisions), and in fact, suggests the opposite.

CBD’s second argument is that, by publicly commencing a review of its NEP A

procedures, Interior effectively imposed upon itself a mandate to complete its review.

Relying principally on the D.C. Circuit’s decision in Cutler v. Hayes,

(D.C. Cir. 1987), CBD asserts that even if section 1507.3(a) itself does not require

completion expressly, the agency’s own actions in undertaking the required review of

its NEP A procedures triggered a duty to complete the review within a reasonable time.

(S ee Opp’n at 16– 18; see also id. at 16 (“Once an agency elects to respond to a

directive in a certain manner, ‘the AP A impose[s] an obligation to proceed with

reasonable dispatch.’” (quoting Cu tler,

)).) But in paraphrasing Cutler,

CBD has glossed over a pivotal distinction between that case and this one: Cu tler

actually provides that “[o]nce [the agency] elected to respond to its leg islative directive

[in a certain manner], the AP A imposed an obligation to proceed with reasonable

dispatch.”

(emphasis added). As Cu tler and CBD’s other authorities

make clear, absent a preexisting legislative (or otherwise legally binding) duty to

complete a task, an agency does not spawn such a duty simply by commencing the task.

16 Cu tler involved a comprehensive review of the safety and efficacy of all over-

the-counter (“OTC”) drugs then on the market that the Food & Drug Administration had

undertaken in order to comply with certain amendments to the agency’s governing

statute.

at 883– 84. The D.C. Circuit held that a claim for “unreasonable delay” in

the agency’s completion of that review could proceed, but not because of any

freestanding duty for an agency to finish what it has started, as CBD would have it.

Rather, the court specifically rested its holding on the fact that the OTC drug review

was the agency’s chosen method of co mplying with a new statutory mandate:

[T]he 1962 amendments to the [statute] obligate FDA to review all nonexempt OTC drugs for their therapeutic efficacy as well as their safety. . . . Although FDA’s discretion extends to [the method of its review,] . . . the agency lacks authority to simply do nothing to effectuate the purpose of the Act.

Id . at 895. Indeed, the court expressly suggested that an “unreasonable delay” claim

might n o t have been available if “the OTC drug review [w]as a ‘voluntary’ program” as

opposed to a statutorily required one.

Thus, Cu tler does not support—and in fact

directly undercuts—CBD’s argument that an agency can convert a voluntary task into a

mandatory one simply by embarking on it. 6

CBD’s reliance on Piedmont En vironmental Co uncil v. FERC,

(4th

Cir. 2009) as its sole authority for the proposition that the review process contemplated

by section 1507.3(a) must culminate in a final decision as to whether revisions are

6 A ll o f t h e o ther cases that CBD cites in support o f this argument are similarly distinguishable o n t he g ro unds that they in volved an agency’s d elayed completion o f a t ask t hat t he agency was under an in d ependent duty t o p erform. S ee Biodiversity Legal Found. v. N orton,

(D.D.C. 2003) (“Fo r an APA ‘unreasonable delay’ claim t o survive, t he agency mu st have a statutory duty in the firs t p lace.” (in ternal q uotation marks and citation o mitted)); Pub. Citi zen Health Research Grp. v. FDA, 724 F. Su pp. 1013, 1018–19 (D.D.C. 1989) (addressing an agency’s d elay in issuing a fin al ru le in res ponse t o a p etition for ru lemaking, a t ask t hat t he A PA itself requires agencies t o “conclude . . . wit h in a reasonable time,”

(b)); see also Sierra Club v. Thomas,

, 792 n .66, 796– 97 (D.C. Cir. 1987) (same).

17 warranted (see Opp’n at 16) is misplaced. Pied mo nt involved a claim that an agency

“violated [section 1507.3(a)] when it revised its own NEP A-implementing regulations

without first consulting with the CEQ.” 558 F.3d at 317– 18. Because the agency had

failed to conduct the required consultation, the court vacated the offending

amendments. See

at 318– 19. Far from “recognizing that the review process

required by the last sentence [of section 1507.3(a)] results in [a] decision to amend or

not to amend procedures[,]” as CBD suggests (Opp’n at 16), Pied mo n t simply

speculated about what the agency might do after consulting with the CEQ. See

. The Piedmont court had no occasion to discuss the question of whether an

agency reviewing its NEP A procedures in the first instance must come to a finite

decision regarding whether to issue revisions at all, and consequently said nothing on

that subject. S ee id .

The bottom line is this: CBD has identified no authority suggesting that agencies

have either a general, freestanding obligation to finish any and all tasks that they

undertake, or a specific obligation to complete a review of their NEP A procedures and

decide if revisions are warranted, and this Court is not aware of any. In fact, insofar as

CBD’s complaint acknowledges that Interior is currently undertaking an ongoing review

of its NEP A procedures (see Compl. ¶ 66), the complaint not only fails to show that

Interior has breached a required duty to complete its review by making a final decision

about the necessity of revisions, but also effectively concedes that Interior is fulfilling

the duty that the regulation actually imposes—to “continue to review.” See

(a). Consequently, CBD’s complaint, to the extent that it seeks a court order

compelling Interior to complete its review within 90 days, does not state a claim upon

18 which relief can be granted. S ee SUWA, 542 U.S. at 63– 64 (noting that courts cannot

order actions pursuant to § 706(1) that are not otherwise compelled by law).

2. Section 1507.3(a) Does Not Require Agencies To P ublicize Their Decision Regarding Whether Or Not To Revise Their NEP A P rocedures

Furthermore, as this Court reads

(a), even when an agency

completes a review of its NEP A procedures, that agency is under no obligation to

a n n o unce its decision regarding whether to revise them. CBD appears to assume that

section 1507.3(a) mandates publication of the results of the required review. (See Tr. of

Oral Arg. (“[I]t’s our interpretation that that final decision as to whether revisions are

needed has to be in the Federal Register[.]”).) But the text of the regulation does not

mention any such duty to publish; by its terms, the regulation only requires that, when

an agency initially develops its NEP A procedures, the agency must “publish[] them in

the Federal Register for comment.”

(a).

Indeed, the regulation is entirely devoid of any requirements that mandate

outward-facing steps by an agency in connection with its review of its NEP A

procedures, in contrast with other provisions of law that bear the hallmarks of an

enforceable publication requirement. Compare id . (“Agencies shall continue to review

their policies and procedures and in consultation with [CEQ] to revise them as

necessary to ensure full compliance with the purposes and provisions of [NEP A].”),

with

(b)(3)(C) (“Not later than six months after the date of submission

of the applicable study . . . , the Administrator shall . . . either determine to promulgate

regulations . . . or determine that such regulations are unwarranted. The Administrator

shall publish his determination . . . in the Federal Register[.]”), and

(a)(3)(B) (“Within 12 months after receiving a petition [to list or de-list an

19 endangered or threatened species that] present[s] substantial information indicating that

the petitioned action may be warranted, the Secretary shall make one of the following

[three] findings” and must “publish such finding in the Federal Register.”). Given the

absence of language that plainly obliges the agency to make and announce its decision

with respect to the continuous NEP A review, language that exists in other contexts,

CBD is hard-pressed to find any publication duty in section 1507.3(a).

To be sure, if an agency reviews its NEP A procedures pursuant to section

1507.3(a) and decides to revise them, the AP A’s general notice-and-comment

requirements might apply of their own force to obligate the agency to engage the public

in the revision process. S ee

(setting forth rulemaking procedures). But

any such requirement derives from the AP A, not section 1507.3(a). And what is at

issue here is whether the CEQ regulation itself requires the agency to publish its

revision decision, independent of this other obligation. P ut another way, the question

that CBD’s argument poses is whether, when an agency reviews its NEP A procedures

and concludes that revisions are not necessary, section 1507.3(a) requires the agency to

announce that decision, such that its failure to do so gives rise to a claim under

(1).

CBD has not pointed to anything in the text of

(a), the cases

interpreting it, or the record that even remotely suggests that an agency is legally

required to report out any findings and conclusions arising from the agency’s

continuous review of its NEP A policies. 7 And in this Court’s view, it is not even clear

7 In t erior’s letter denying CBD’s pet ition for rulemaking, which assures CBD t hat In terior will co mp lete its review of it s NEPA p rocedures and p ublish any revisions in t he Federal Register (see Den ial o f Pet. for Ru lemaking at 4, 6– 7), d oes not “have t he fo rce of law[,]” and t hus cannot generate a man d atory legal d uty subject t o ju dicial enforcement. See SUWA,

.

20 how the publication requirement that CBD posits would work in the context of an

ongoing review. P resumably, an agency that is faithfully fulfilling its duty to review its

NEP A procedures on a continuous basis pursuant to section 1507.3(a) would make

periodic submissions to the Federal Register announcing that no revisions are necessary

at that time. But the circumstances under which such an announcement would be

legally required—e.g., at what point during the review cycle, exactly, must the agency

foreswear revisions?—are not defined (which, of course, supports the contention that no

such publication mandate actually exists).

This all means that CBD’s request for an order that requires Interior to “complete

its review of its NEP A procedures” (Compl., P rayer for Relief ¶ 4)—i.e., to decide

either “to revise its [mineral lease approval] procedures or that its procedures are

adequate and do not need revision” (Opp’n at 16)—and notify the public of Interior’s

decision in this regard (see Tr. of Oral Arg.) seeks more than what section 1507.3(a)

requires. As a result, this Court cannot order Interior to disclose the results of its

ongoing review under

(1). See SUWA, 542 U.S. at 63– 65.

3. Section 1507.3(a) Only Requires An Agency To Make Revisions If The Agency Deems Them Necessary, And That Is Insufficient To Establish A Mandatory Duty For The P urpose Of § 706(1)

The primary textual basis for the position that CDB has taken regarding the

mandatoriness requirement is the regulatory language that appears to demand

implementation of changes to an agency’s NEPA procedures “as necessary[.]”

(a) (“Agencies sh all continue to review their policies . . . and . . . to

revise them as necessary[.]” (emphasis added)). CBD reads this language to establish a

legal duty to revise that can be enforced under

(1) where, as here, no

such changes are forthcoming. (S ee Opp’n at 15– 18.) This contention has superficial

21 appeal, but it ultimately fails because it is well established that the formulation that an

agency “shall” take certain action “as necessary” lacks the degree of mandatoriness

needed to give rise to a claim under

(1).

In S ierra Clu b v. Ja ckson , for example, the D.C. Circuit affirmed the dismissal

of a claim brought under the Clean Air Act’s citizen-suit provision, which, like

§ 706(1), requires that the plaintiff identify an agency’s failure to perform a

“nondiscretionary duty[.]”

(citing

(a)(2)). At issue in

S ierra Club was a statutory requirement that the Environmental P rotection Agency

“‘shall . . . take such measures, including issuance of an order, or seeking injunctive

relief, as necessary to prevent the construction or modification of a major emitting

facility . . . proposed to be constructed’ in an attainment area.”

(second alteration in

original) (quoting

). 8 The Sierra Club court concluded that the “shall

[take action] as necessary” formulation left too much discretion to the agency to allow

for judicial enforcement, because “[t]here is no guidance to [the EP A] or to a reviewing

court as to what action is ‘necessary.’” S ierra Clu b,

; see a lso id .

(“Granted, the statute further says, ‘as necessary to prevent the construction or

modification of a major emitting facility . . . proposed to be constructed’ in an

8 Th e p rovision discussed in Sierra C lub p ertains t o t he Clean Air A ct’s “Prevention of Significant Det erioration of A ir Qu ality” p rogram fo r regions t hat have attained b enchmark air qualit y standards, an d reads in full:

Th e A dministrator shall, and a St ate may, t ake s uch measures, in cluding issuance of an o rd er, o r s eeking in ju n ctive relief, as n ecessary t o p revent t he co nstruction or mo d ificat ion o f a major emit ting facility which d oes not conform t o t he requirements of t h is p art, o r wh ich is p ro posed t o b e co nstructed in an y area d esignated pursuant to s ection 7407(d) o f t his t itle as attainment or unclassifiable and which is not subject to an imp lemen t at io n p lan wh ich meet s t h e req u iremen t s o f t h is p art .

.

22 attainment area, but that nonetheless leaves it to the Administrator’s discretion to

determine what action is ‘necessary.’” (alteration in original)).

Just like the “shall [take action] as necessary” formulation in the statute at issue

in S ierra Club, section 1507.3(a)’s requirement that agencies “shall continue . . . to

revise [their NEP A procedures] as necessary” confers upon agencies so much discretion

regarding whether and how to act that it lacks the mandatoriness that is required to

support a cause of action under § 706(1). See id. at 856– 57. But see Appalachian

Vo ices v. M cCarthy,

(D.D.C. 2013). 9

B. Se ction 1 5 07.3(a) Does Not Prescribe A Dis crete Duty

As explained above, § 706(1) only authorizes courts to compel “circumscribed,

discrete agency actions[.]” SUWA,

; see a lso

(1) (directing

courts to “compel a g ency a ction unlawfully withheld or unreasonably delayed”

(emphasis added));

§ 551(13) (defining “agency action”). But it is clear to this

Court that the regulatory language that CBD seeks to enforce in this lawsuit—which,

again, provides that “[a]gencies shall continue to review their policies and procedures

and in consultation with the [CEQ] to revise them as necessary to ensure full

compliance with the purposes and provisions of [NEP A,]”

(a)—

prescribes only an agency’s general mode of operations, not any discrete agency action,

and thus cannot be the basis for a valid § 706(1) claim.

9 W it hout citing o r d istinguishing Si erra Club, t he court in Appalachian Voi ces h eld t hat a statute req u iring t hat “‘[e]ach regulation promulgat ed under t his A ct shall b e reviewed and, where necessary, rev ised n ot less frequently t han every t hree years’” imp oses an enforceable, n on-discretionary d uty t o d et ermine whether revisions are n ecessary.

(alteration in original) (emphasis o mit t ed) (q uoting

(b)).

23 First of all, the duties to “continue to review” agency procedures and to

“continue . . . to revise them as necessary” are clearly ongoing and have no fixed end

point, as explained above.

They are also inherently “broad” and “programmatic”—

exactly the sort of duties that SUWA cautioned courts against enforcing.

;

see a lso

(“The principal purpose of the AP A limitations we have discussed . . .

is to protect agencies from undue judicial interference with their lawful discretion, and

to avoid judicial entanglement in abstract policy disagreements which courts lack both

expertise and information to resolve.”). In fact, when properly understood, the final

sentence of section 1507.3(a) actually reflects nothing more than a subset of the

omnipresent duty to ensure that agency procedures accord with all applicable statutes,

which every agency has under all circumstances, and as such, it is far too general and

amorphous to be the kind of agency action that can be enforced by a claim brought

under § 706(1) of the AP A. See El Pa so Na t. Gas Co.,

(holding that a

provision that “contains only a general follow-the-law directive . . . flunks SUWA’s

discreteness test”).

Notably, the fact that an agency can fully comply with section 1507.3(a)

without undertaking any judicially reviewable final action underscores the

inappropriateness of the § 706(1) claim that CBD presses here. That is, by its terms,

section 1507.3(a) plainly permits an agency to examine its NEP A procedures

periodically, conclude that revisions are unnecessary, and take no further action. (S ee

su p ra § III.A.3.) And that means that neither the agency’s ongoing deliberations about

whether or not to revise agency procedures nor its decision to leave current procedures

24 intact for the time being qualifies as a discrete agency action that would give rise to a

legal challenge under § 706(1) or § 706(2) of the AP A.

The import of this point comes into focus when one contrasts the delay in this

case with the delays at issue in the cases CBD cites in support of its discreteness

argument. (S ee Opp’n at 20 (citing Solenex LLC v. Jewell,

(D.D.C.

2015); Ocea n a,

; Hama n di v. Ch ertoff,

(D.D.C.

2008)).) In Solenex, the court reviewed the Bureau of Land Management’s delay in

deciding whether to reinstate a suspended natural gas exploration lease issued under the

Mineral Leasing Act.

. The upshot of the delay was that it

amounted to an effective denial of a final adjudication of the lessee’s lease rights

which, if the adjudication had occurred, would certainly have constituted reviewable

final action. So, too, were the circumstances in Oceana, which involved an agency’s

failure to complete a biological opinion under Section 7 of the Endangered Species Act,

see 37 F. Supp. 3d at 182– 87, and in Hama ndi, which involved U.S. Customs and

Immigration Services’ delay in ruling on an application for naturalization, 550 F. Supp.

2d at 49– 51. By contrast, CBD has not asserted that Interior’s protracted review of its

own NEP A procedures has forestalled another discrete, reviewable agency

determination that the agency would otherwise be required to make.

The absence of any well-defined requirements in section § 1507.3(a) for a

specific course of action, such as a mandate that each agency complete its review before

a set deadline and publish the results, also supports the Court’s conclusion that this

regulation fails to prescribe a discrete duty. See, e.g., SUWA, 542 at 63 (describing a

“failure to . . . take some decision by a statutory deadline” as an archetypal discrete

25 failure to act); Xie v. Kerry,

(D.C. Cir. 2015) (holding that a

provision set forth a discrete, enforceable duty where it “establish[ed] a specific

principle of temporal priority” and various “cut-off dates”). The absence of a

publication requirement in particular suggests that section 1507.3(a) does not demand

“agency action” in the relevant sense, because “agency action” for the purpose of an

enforcement claim brought under § 706(1) must be “equivalent” to one of the examples

enumerated in the AP A’s definition of “agency action,”

(13); see SUWA,

(explaining the equivalence rule), and the only enumerated species of

agency action in the statute that even vaguely resembles an agency’s decision whether

to revise its NEP A procedures pursuant to

(a) is “an agency

sta tement of general or particular applicability and future effect[,]”

(4)

(emphasis added) (defining a “rule”); see a lso id . § 553(b), (d) (clarifying that a rule

must be published in the Federal Register).

In this Court’s view, the lack of discreteness is also inherent in what CBD is

asking for on a conceptual level: boiled to bare essence, it appears that what CBD’s

complaint is really seeking in this case is judicial oversight of Interior’s internal

deliberations regarding whether and when to change its current NEP A procedures. (See

Compl. ¶ 17 (describing environmental risks that are resulting from “Interior’s failure

to . . . complete its review of NEP A procedures to ensure comprehensive environmental

review of each stage of offshore oil and gas activities”); Opp’n at 17– 18 (observing

that, without judicial review, “Interior would never have to decide whether to revise its

categorical exclusions for offshore oil and gas drilling, even after both CEQ and the

Deepwater Horizon Commission recommended that Interior substantially revise its

26 NEP A procedures to ensure adequate protections for the public and the environment,

and Interior decided that such review was necessary” (emphasis in original)).)

But courts do not, and cannot, police agency deliberations as a general matter;

indeed, it is only when the agency actually takes some final action that review under the

AP A is appropriate. See U.S. Army Corps of Eng’rs v. Hawkes Co.,

(2016) (explaining that, to be reviewable “final agency action” under

, an action “‘must mark the consummation of the agency’s decisionmaking

process’” and “‘must be one by which rights or obligations have been determined, or

from which legal consequences will flow’” (quoting Bennett v. Spear,

,

177– 78 (1997))). This well-established rule “protect[s] the integrity of the

administrative process” by “prevent[ing] premature judicial intervention,” Pub. Citizen

Hea lth Research Grp. v. Co mm’r, FDA,

(D.C. Cir. 1984), and courts

only step out of that limited role when non-final agency action has been “made

reviewable by statute[,]”

, or when an agency fails to perform a discrete,

ministerial task that the law unambiguously requires and thus can be enforced without

undue judicial interference,

(1); see a lso Pu b. Citizen Health Research

Grp ., 740 F.2d at 30– 32 (describing review under § 706(1) as an exception to the “final

agency action” requirement). In other words, meddling in an agency’s tentative,

internal deliberations absent a clear-cut legal mandate to do so risks upsetting the

balance between the judicial and administrative functions that Congress struck in the

AP A, see SUWA, 542 U.S. at 66– 67, and in this Court’s considered judgment, that is

precisely what CBD is asking the Court to do here.

27 IV. CONCLUSION

Rather than await final agency action in the form of either a revision to Interior’s

NEP A procedures or the application of the current procedures to a project undergoing

NEP A review, CBD has challenged Interior’s delay in reviewing and revising its NEP A

procedures, attempting to use

(a) as a foothold. But the duties

prescribed by that regulation—that each agency “continue to review” its NEP A

procedures and “continue . . . to revise them as necessary”—reflect ongoing, internal

agency deliberations, not the sort of discrete agency action that can support judicial

enforcement under

(1). Furthermore, the particular agency actions that

CBD seeks to compel pursuant to this Court’s authority under the AP A—completion of

Interior’s NEP A review; announcement of the agency’s decision regarding whether or

not its NEP A procedures will be revised; and the publication of any proposed

revisions—are not mandated by the CEQ regulation to which CBD points.

It is clear beyond cavil that a court may only “compel agency action unlawfully

withheld or unreasonable delayed” under

(1) when “an agency failed to

take a d iscrete agency action that it is required to take,” SUWA,

(emphasis in original), and for the reasons explained fully above, CBD’s complaint fails

both the mandatoriness and discreteness requirements. This means that CBD has not

stated a claim upon which relief can be granted, and therefore, in accordance with this

Court’s Order of March 31, 2017, Interior’s motion to dismiss has been GRANTED,

and CBD’s complaint has been DISM ISSED.

DATE: May 4, 2017 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

28