obama administration announces national ocean policy...

Legal Reporter for the National Sea Grant College ProgramVolume 9:3, August 2010

Obama Administration Announces

National Ocean Policy

Consolidating the BP Oil Spill Litigation An Overview of the Lawsuits

Controversy Continues to Swirl Around Oil and Gas Drilling in the Arctic

THE SANDBAR is a quarterly publication report-ing on legal issues affecting the U.S. oceansand coasts. Its goal is to in crease awarenessand understanding of coastal problems andissues. To subscribe to THE SANDBAR, contact:

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2 • The SandBar • August 2010

Our Staff

F r o m t h e E d i t o r

As summer comes to an end, environmental law issues seem to beheating up. In July, in an historic moment for the protection of theU.S. oceans, coasts, and Great Lakes, the Obama administrationissued an executive order adopting the final recommendations ofthe Ocean Policy Task Force. The policy, along with the newly cre-ated National Ocean Council is aimed at protecting and restoringU.S. coastal areas, while ensuring continued use of and publicaccess to marine and coastal resources.

The Gulf oil spill continues to reverberate through the legal com-munity. On August 10, the U.S. Judicial Panel on MultidistrictLitigation agreed to consolidate the oil spill lawsuits in a federalcourt located in New Orleans. Research Associate LindseyEtheridge provides an overview of the types of oil spill cases thathave been consolidated. In this issue, we also take a look at contin-ued controversy surrounding oil drilling in the Arctic. Specifically,we discuss a federal district court decision halting the develop-ment of oil and gas wells on leases in the Arctic’s Chukchi Sea.

Thanks for reading The SandBar. As always, suggestions or com-ments are welcome.

Terra

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ISSN 1947-3966 NSGLC-10-02-03 August 2010ISSN 1947-3974

Editor:Terra Bowling, J.D.

Production & Design:Waurene Roberson

Research Associates:Joanna C. Abe

Lindsey Etheridge

Contributors:Stephanie Showalter Otts,

J.D., M.S.E.L.

August 2010 • The SandBar • 3

C O N T E N T S

Obama Administration AnnouncesNational Ocean PolicyStewardship of the Ocean, Coasts, and the Great Lakes ..... 4

Frightened Fisherman Wins Right to SueCourt finds captain was within zone of danger...................... 7

Consolidating the BP Oil Spill LitigationAn overview of the lawsuits ....................................................8

Controversy Continues to Swirl AroundOil and Gas Drilling in the ArcticCourt halts development of oil and gas wells on leases in theChukchi Sea .......................................................................... 11

Environmental Reviews for “RoundupReady” Crops InadequateDisputes continue over proper remedies . ........................... 13

On July 19, 2010 President Obama issued anexecutive order establishing a National Policyfor the Stewardship of the Ocean, Coasts, and

Great Lakes and creating a National Ocean Council(NOC) to coordinate implementation of the policy.1Obama administration officials hope that the new policywill help conserve and sustain the nation’s waters in theface of increasing competing demands, including recre-ational, scientific, energy, and security uses.2 The execu-tive order adopts recommendations issued by theInteragency Ocean Policy Task Force (Task Force).

The Interagency Ocean Policy Task ForcePresident Obama established the Task Force in June2009 to develop recommendations for enhancing nation-al stewardship of the nation’s ocean, coasts, and GreatLakes. The Council on Environmental Quality (CEQ)led the Task Force, which was composed of 24 senior-level policy officials from a variety of federal govern-ment positions. The Task Force issued two interimreports3 culminating in the Final Recom men dations of theInteragency Ocean Policy Task Force (Final Recom menda -tions) in July.

In its Final Recommendations, the Task Force notedthe environmental crisis spawned by the blowout of theDeepwater Horizon rig and the resulting oil spill,observing that it served as a reminder of “how vulnera-ble our marine environments are.”4 Keeping that obser-vation in mind, the Task Force set out to establish a newmodel for stewardship of the nation’s ocean, coasts, andGreat Lakes.

The new model includes a National Policy, as well asa stronger governing structure to ensure sustained andcoordinated attention to ocean, coastal, and Great Lakes

issues. In furtherance of this, the Task Force recom-mended that the existing Committee on Ocean Policy bereplaced by NOC and that a NOC steering committee beput in place to strengthen the link between science andmanagement. The Task Force also proposed that theNOC coordinate with state, tribal, and local authoritiesthrough a new committee comprised of their designatedrepresentatives. It also called for strengthened coordina-tion between the NOC and various White House enti-ties, including the National Security Council, the Councilof En viron mental Quality, the Office of Science andTechnology Policy, and the Office of Management andBudget.

The Final Recommendations also included an imple-mentation strategy which identified nine NationalPriority Objectives (NPO) to pursue in furtherance ofthe National Policy. The NPOs were designed to bridgethe gap between policy and action by outlining the gen-eral goals entities should strive to achieve, while leavingthe details as to which actions should be taken to beworked out through the development of strategic actionplans. The NPOs are:

• Adopt ecosystem-based management as the founda-tion for comprehensive ocean, coasts, and GreatLakes management;

• Implement ecosystem-based coastal and marine spa-tial planning;

• Inform decisions through increased knowledge sothat ocean management and policy can betterrespond to changes and challenges and to improveunderstanding of ocean, coasts, and Great Lakesmanagement through educating the public aboutthem;


OBAMA ADMINISTRATIONANNOUNCES NATIONALOCEAN POLICY

Joanna C. Abe, 2011 J.D. Candidate, University of Mississippi School of Law

• Facilitate coordination and support of feder-al, state, tribal, local and regional manage-ment of the ocean, coasts, and the GreatLakes and, when appropriate, the internation-al community.

• Strengthen the resiliency of coastal communi-ties, as well as marine and Great Lakes envi-ronments and to enhance the ability of theseenvironments to adapt to climate changeimpacts and ocean acidification.

• Establish and implement a strategy whichwould integrate science-based ecosys-tem protection and restora tionstrategies and align themwith conservation and re -storation goals at theFederal, State, tribal,local and regionallevels.

• Enhance the waterquality in the ocean,along the coasts, andin the Great Lakesthrough promotionand implementation ofsustainable practices onland.

• Address environmental stew-ardship needs in the Arctic Ocean inlight of the changing conditions broughtabout by climate and other environmentalchanges.

• Strengthen Federal and non-Federal oceanobserving systems and other forms of datacollection by integrating them into a nationalsystem and by integrating the national systeminto international observation efforts.

Executive Order on Stewardship of theOcean, Our Coasts, and the Great LakesThe Executive Order of July 19, 2010 adopted therecommendations set forth by the Task Force inthe Final Recommendations. The ExecutiveOrder provides for the establishment of theNOC and directs executive agencies to implementthose recommendations under the guidance ofthe NOC. The Executive Order establishes thatNOC will be co-chaired by the CEQ Chair andthe Director of the Office of Science and

Technology Policy. A number of other federalagencies have also been named as members of theNOC, including the State, Defense, and InteriorDepartments, the National Science Foundation,and NASA.

The Executive Order adopts policies set forthin the Final Recommendations of the Task Force.The Executive Order set forth ten policies whichinclude protecting, maintaining, and restoringhealth and biological diversity to the ecosystemsof the ocean, coasts, and Great Lakes, as well as

improving the resiliency of these eco -systems, communities and econ -

omies. The Exe cu tive Order alsoseeks to strengthen the con-

servation and sustainableuses of the ocean, coasts,and Great Lakes as wellas the land which sur-rounds them. The Exe -cutive Order establishesas na tional policy the useof the best scientific

knowledge and data tomake decisions and respond

to the changing global envi-ronment. It also seeks to in -

crease scientific understanding ofthe ocean, coasts, and Great Lakes ecosys-

tems as part of the globally connected systems ofland, air, ice, and water. Finally, the ExecutiveOrder desires to foster and improve public under-standing of the value of the ocean, coasts, andGreat Lakes and to create awareness of thechanging environmental conditions.

All executive agencies and other executivedepartments, with guidance from the NOC, areresponsible for implementing the policies setforth in the Executive Order and in the FinalRecommendations. Agencies and departments arerequired to prepare and publish a yearly reportwhich describes the specific actions taken by theagency to implement the Executive Order.Agencies and departments are further required tocoordinate and contribute resources which wouldassist in establishing a common information man-agement system. Each agency or department isresponsible for updating information and keepingit accessible.


ConclusionPresident Obama’s executive order adopting the finalrecommendations of the Ocean Policy Task Force isan historic moment for the protection of the U.S.marine and coastal areas. Federal agencies now have amechanism, the NOC, to coordinate activities withrespect to the oceans, coasts, and Great Lakes.Although the recommendations focus on protecting,restoring, and conserving these environments, theExecutive Order recognizes the need to balance pro-tection with sustained use of marine and coastalresources and public access to these treasured areas. Todo this, the NOC is directed to encourage participationfrom every level of government, from federal agenciesto state, tribal, and local government participation. TheNOC must also educate and keep the public informedof the way that environmental changes impact ourocean, coasts, and Great Lakes and to inform them ofways to improve stewardship. It is anticipated that theNOC will hold its first meeting before the end of sum-mer in order to begin implementing the policies out-lined in the Executive Order.5

Endnotes1. Exec. Order No. 13547, 75 Fed. Reg. 43,023 (July

19, 2010). 2. Press Release, Executive Office of the President,

Obama Administration Officials Announce theFinal Recommendations of the Ocean Policy TaskForce, (July 19, 2010) available at http://www.white-house.gov/administration/eop/ceq/Press_Releases/July_19_2010.

3. The Task Force issued an Interim Report inSeptember 2009 and an Interim Framework forEffective Coastal and Marine Spatial Planning inDecember 2009.

4. Final Recommendations of the Interagency OceanPolicy Task Force, July 19, 2010, available athttp://www.whitehouse.gov/files/documents/OPTF_FinalRecs.pdf.

5. Amy Harder, Obama to Issue Policy for Managing Oceansand Coastline, GOVERNMENT EXECUTIVE.COM, July19, 2010, http://www.govexec.com/dailyfed/0710/ 071910cdpm2.htm.


Photograph of KeyBiscayne, Florida courtesyof NOAA, photographerMr. William Folsom.

Photograph of WestQuoddy Head, Maine,courtesy of NOAA,photographer CaptainAlbert E. Theberge.

Photograph of Monterey,California wharf courtesyof NOAA, photographerCaptain Albert E.Theberge.


The U.S. Court of Appeals for the Ninth Circuitruled that a fishing boat captain who was fright-ened when a freighter nearly missed his vessel and

then struck another vessel, killing its captain, could bring aclaim for negligent infliction of emotional distress, despitethe fact that the captain did not witness the incident atissue.1 The Ninth Circuit found that when a negligentparty has severely injured or killed a third party, a plaintiffdoes not have to witness the incident to have a cause ofaction, but only must be within the zone of danger creat-ed by the defendant’s conduct.

BackgroundOn July 13, 2007, Brian Stacy, captain of the Marja, wastrolling for salmon with a covey of fishing vessels off ofPoint Reyes, California, “the foggiest point on the Pacificcoast.”2 Stacy’s radar picked up the 291-foot freighter EvaDanielsen, which was one mile away and headed on a colli-sion course with the Marja. Stacy sent a signal to thefreighter, which narrowly avoided the Marja, but cameclose enough for Stacy to hear its engine and feel its wake.Shortly after, the Eva Danielsen hit another fishing vessel,the Buona Madre. The Eva Danielsen reported the collisionand assisted in looking for survivors, but after performinga brief search continued on its way. Stacy heard radio traf-fic indicating the collision had been between the EvaDanielsen and the Marja and advised those on the radio thathe had not been struck. The search was then suspended.The captain of the Buona Madre, Paul Wade, was laterfound dead.

Stacy filed suit against the owners and operators of theEva Danielsen for the negligent infliction of emotional dis-tress. He claimed that the freighter was proceeding at anunsafe speed without a proper lookout, proper radar equip-ment, or proper signals in violation of the InternationalNavigation Rules Act. He claimed that the incident caused

him to seek psychiatric help and to miss work. Relying ona previous Ninth Circuit case, Chan v. Society Expeditions,Inc., 39 F.3d 1398 (9th Cir. 1994), the U.S. District Courtfor the Northern District of California dismissed the claim.The court ruled that “even if a claim may be brought undera zone of danger theory, the claim must be premised on theplaintiff ’s having experienced a ‘psychic injury’ by ‘witness-ing another being seriously injured or killed,’ while simul-taneously being threatened with physical injury to him orherself.”3 Because Stacy did not see the freighter hit Wade’sboat, the court dismissed the case.

Zone of DangerRelying on a Supreme Court opinion, Consolidated RailCorp. V. Gottshall, 512 U.S. 532 (1994), the Ninth Circuitpanel stated that the federal standard for a claim of negli-gent infliction of emotional distress requires a “tort to becommitted by a defendant subjecting a plaintiff to emo-tional harm within ‘the zone of danger’ created by theconduct of the defendant.”4 According to the court, the“zone of danger” doctrine allows recovery of damages inthese types of claims if the plaintiff was both located inthe dangerous area created by the defendant’s negligenceand frightened by the risk of harm. The court found thatthe issue the lower court should have considered waswhether Stacy himself was within the zone of danger, notwhether he witnessed another incident while he was phys-ically threatened. Because Stacy alleged that he was endan-gered by the vessel and suffered emotional distress as aresult of the negligent actions of the defendants, the courtreversed the district court’s dismissal.

One judge dissented from the opinion, reiterating thelower court’s finding that Chan requires a victim to witnessharm to another person to recover under a negligentinfliction of emotional distress claim. In a footnote, themajority dismissed this reasoning, stating that Chan dealtwith a psychic injury from witnessing another being seri-ously injured or killed, not a psychic injury from a directencounter. The case was remanded to the district court todetermine whether Stacy may recover damages for theincident.

Endnotes1. Stacy v. Danielsen, 2010 U.S. App. LEXIS 13222 (9th

Cir. June 29, 2010).2. Id. at *1.3. Wade v. Tschudi, Shipping Co. A.S., 2009 U.S. Dist.

LEXIS 2719 (N.D. Cal. 2009).4. Stacy, 2010 U.S. App. LEXIS 13222 at *4.

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In the wake of the Deepwater Horizon oil spill,over 300 lawsuits have been filed against the com-panies involved. In July, the United States Judicial

Panel on Multidistrict Litigation (Panel) met in Boise,Idaho, to discuss consolidating many of those cases.On August 10, the panel agreed to consolidate the lit-igation in a federal court located in New Orleans.

BackgroundThe Panel consists of seven judges from courts acrossthe country. The Panel’s duty is to determine whetherlawsuits filed in different federal districts have one ormore questions of fact in common. If it finds thatcases involve similar factual issues, the Panel transfersthe cases to one district for consolidated pretrial pro-ceedings. The Panel also selects the judge or judgeswho will preside over the proceedings.

At the hearing on July 29, the Panel consideredthe transfer of a number of the cases filed against thecompanies involved in the Deepwater Horizon oilspill. The cases on the docket included 24 fromAlabama, 10 from Florida, 33 from Louisiana, 8 fromMississippi, and 2 from Texas.1 The lawsuits containmany similar allegations, such as negligence, strict lia-bility, and public nuisance, by various people, includ-ing fishermen, real estate owners, and seafood busi-ness owners. Consolidating these cases should allowfor a more efficient fact-finding process as well asconsistent pretrial rulings on the facts surroundingthe events of April 20, 2010.

This article provides a sampling of the oil spillcases that have been consolidated. Many of the 77

cases are proposed classactions. The lawsuits name allof the major companies in -volved as defendants, includ-ing British Petro leum (BP),Transocean (the owner/oper-ator of the Deepwater Hori -zon oil rig), Halli burtonEnergy Services (the provid erof cementing operations ofthe well), and Cameron Inter -national Cor poration (themanufacturer/ supplier of therig’s blow-out preventers). Inthis article, they will collec-tively be referred to as “thecompanies.”

Commercial Fishing ClaimsCommercial fishermen are one of the most obviousclasses of plaintiffs. In a case from Alabama,2 James F.Mason, Jr., a shrimper, is suing the companies onbehalf of himself and his company, K & J, Inc., whichoperates an 82-foot shrimp boat. He also seeks to rep-resent all commercial fishermen in Alabama whowork in the Gulf of Mexico. He asserts that the oilhas prevented normal fishing and shrimping opera-tions in the Gulf and that he and other shrimpers,fishermen, and oystermen will lose income as a result.

Mason accuses the companies of several negligentacts leading to the explosion of the oil rig, such as fail-ing to properly operate the Deepwater Horizon, fail-ing to properly train and supervise employees on therig, and failing to properly inspect equipment on therig. He also alleges that the companies were negligentin their response to the accident because they did notpromptly and adequately warn people of the spill andthe resulting danger. Particularly, he claims that thecompanies downplayed the nature, size, and extent ofthe leak and did not take the necessary measures tocontrol the oil slick.

Mason avers that the companies are liable to himand to the entire class of Alabama shrimpers, fisher-men, and oystermen for damages suffered as a resultof the companies’ negligent acts. He seeks compensa-tion, as well as punitive damages.

In another lawsuit, John T. Harris, a commercialfisherman in Florida, is suing the companies for neg-ligence, strict liability, and strict products liability.3 Heis in the business of catching and selling primarily

CONSOLIDATING THEBP OIL SPILL

LITIGATIONLindsey Etheridge, 2011 J.D. Candidate, University of Mississippi School of Law

Gulf red snapper, grouper, and tilefish and holds aGulf reef fish permit. He seeks to represent all com-mercial fishermen in the Gulf of Mexico who hold aGulf reef fish permit.

Harris claims that the companies were negligentin the operation of the Deepwater Horizon oil rig,which caused the discharge of thousands of gallonsof crude oil into the Gulf of Mexico. He also assertsthat the companies are strictly liable for all damagessuffered by commercial fishermen. When a person orcompany is strictly liable for damages, it does notmatter whether they acted negligently or committedany wrongdoing. Liability is based on the fact that thenature of the conduct causing the harm created aforeseeable risk of injury or damage to another per-son or property. In this case, the fishermen only haveto prove that they suffered damages and show thatthe oil spill caused those damages.

In addition, Harris claims that Cameron Inter -national, the company that manufactured the blow-out preventers on the Deepwater Horizon, should beheld strictly liable under strict products liability.When a product contains a defect, and that defectcauses injury or damage to a person or property, thecompany that manufactured the product may be heldstrictly liable. The function of blow-out preventers isto shut off an oil well when there is a leak. Harrisasserts that the blow-out preventers were defectiveand failed to operate properly, causing thousands ofgallons of oil to spill into the Gulf. Harris seeks com-pensation and punitive damages.

Property Owners’ ClaimsProperty owners are alleging damage to their proper-ty, as well as loss of income from decreased tourism.In an Alabama case,4 Peter Burke and three otherproperty owners are suing the companies on behalf ofthemselves, as owners of property on the Gulf Coast,and on behalf of all similarly-situated Gulf Coastproperty owners. Burke rents his properties to touristsvisiting the beach and has had difficulty findingrenters because of the uncertainty of the oil spill sit-uation and the expectation that oil may reach thecoast.

Burke and the other property owners allege thatthe companies negligently and recklessly causedand/or allowed thousands of gallons of crude oil tospill into the Gulf of Mexico, causing damage totheir properties and businesses. They also accuse thecompanies of trespass and nuisance. They claim that

the release of the oil, whether negligently, intention-ally, or recklessly, constitutes trespass onto theirproperty, and such trespass makes the property lessvaluable, less profitable, and unmarketable. Theyassert that the release of oil also constitutes a nui-sance because it disturbs their right to use and enjoytheir property.

Finally, the property owners claim that the com-panies should be held strictly liable for all damagessuffered by Gulf Coast property owners. They assertthat the companies’ activities of drilling and trans-porting oil is abnormally dangerous and ultrahaz-ardous, creating strict liability.

The property owners seek several forms of relief,including an injunction requiring the companies toclean up the oil spill, compensation, punitive damages,and loss of income damages, all with interest.

Tourists’ ClaimsIn one lawsuit, a citizen of Arkansas and a citizenof Missouri are suing the companies, claiming thatthey have been deprived of their planned vacationsto Gulf Shores, Alabama.5 George Jett and OnaleeFore each paid nonrefundable money to rent vaca-tion homes in Gulf Shores. They planned to enjoythe beach and engage in fishing activities. Theyclaim that the closure of fishing in the Gulf hasinterfered with their vacation plans and causedthem to lose money.

Jett and Fore seek to represent all tourists whohave lost money as a result of their vacation plansbeing ruined by the oil spill. They allege negligenceagainst the companies for causing and/or allowingthe rig explosion and oil spill. They claim the com-panies are liable to them and to other people whohave lost money paid on rental homes, fishing char-ters, and other recreational activities. They seekcompensation, including attorney’s fees and interestand punitive damages.

Divers’ ClaimsIn one case from Mississippi, Jessica Staley, a certifieddiver, is suing the companies for damages.6 She alsoseeks to represent all other Mississippi residents whoare certified divers and have been deprived of divingin the Gulf since the oil spill. She accuses the compa-nies of numerous negligent acts, including failing toproperly operate the Deepwater Horizon, failing toproperly inspect equipment on the rig, and failing toadequately train and supervise employees on the rig.

August 2010 • The SandBar • 9Background photograph of static kill effort courtesy of U.S. Coast Guard;photographer Petty Officer 1st Class Adam Eggers.

She seeks compensation, punitive damages, interest,and attorney’s fees.

Conclusion Other lawsuits that the Panel considered in the consol-idation hearing included claims by a boat transporta-tion company that supplies jobs to the people ofLouisiana,7 a tour guide and charter fishing company,8and at least one of the families of a worker who diedin the oil rig explosion.9

Twenty-three attorneys argued before the Panelon July 29. Those representing Gulf Coast residentsand businesses pushed for the lawsuits to be trans-ferred to a federal district court in New Orleans,nearest the disaster. The defendant companieswould have preferred that the cases be moved to theoil-centric Houston area. The panel ruled, “Uponcareful consideration, we have settled upon theEastern District of Louisiana as the most appropri-ate district for this litigation. Without discountingthe spill’s effects on other states, if there is a geo-graphic and psychological ‘center of gravity’ in thisdocket, then the Eastern District of Louisiana isclosest to it.”10

Endnotes1. In re: Oil Spill by the Oil Rig “Deepwater

Horizon” in the Gulf of Mexico, on April 20,2010, MDL No. 2179 (July 29, 2010) (hearingorder).

2. Mason v. Transocean, Ltd., 2010 U.S. Dist. Ct.Pleadings 298885 (S.D. Ala April 29, 2010).

3. Harris v. Transocean, Ltd., 2010 U.S. Dist. Ct.Pleadings 129 (N.D. Fla. May 4, 2010).

4. Burke v. BP Corp., 2010 U.S. Dist. Ct. Pleadings195 (S.D. Ala. May 13, 2010).

5. Jett v. BP, 2010 Dist. Ct. Pleadings 228 (S.D. Ala.June 14, 2010).

6. Staley v. Cameron Int’l Corp., 2010 U.S. Dist. Ct.Pleadings 181 (S.D. Miss. May 4, 2010).

7. Nova Affiliated, S.A. v. BP, 2010 U.S. Dist. Ct.Pleadings 1313 (E.D. La. April 30, 2010).

8. Fish Commander, LLC v. BP, 2010 U.S. Dist. Ct.Pleadings 1339 (E.D. La. May 4, 2010).

9. Roshto v. Transocean, 2010 U.S. Dist. Ct. Pleadings1156 (May 7, 2010).

10. In re: Oil Spill by the Oil Rig “Deepwater Horizon”in the Gulf of Mexico, on April 20, 2010, MDL No.2179 (Aug. 10, 2010) (transfer order).


Photograph of booms fastened on Mississippi beach courtesy of Melissa Schneider, Mississippi-Alabama Sea Grant Consortium.

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Afederal district judge has halted the develop-ment of oil and gas wells on leases in theArctic’s Chukchi Sea.1 The judge found that the

federal government failed to analyze the environmentalimpacts of drilling before offering approximately 29.4million acres of public lands for lease. The decision fol-lows the massive Gulf of Mexico oil spill and severaldecisions by President Obama to suspend plannedexploration drilling and leases in Alaska.

BackgroundThe Chukchi Sea is northwest of Prudhoe Bay in Alaska.As one would imagine, the Arctic ecosystem, with itsremote location and hostile weather conditions, is notideally situated for drilling infrastructure. Additionally,the area is environmentally sensitive, as it is habitat topolar bears, walrus, and endangered whales, as well ashome for native Alaskan subsistence hunters and fisher-men. However, in 2008, the Minerals ManagementService (since renamed the Bureau of Ocean EnergyManagement, Regulation, and Enforcement) managedthe sale of “Lease Area 193,” the first lease sale in theArctic since 1991.

A unit of Shell had planned to drill three explorato-ry wells this summer, but those plans were halted fol-lowing the Gulf oil spill when the Obama administrationsuspended consideration of any applications forexploratory drilling in the Arctic until 2011 and extend-ed a moratorium on permits to drill new deepwater wellsfor six months. The administration also suspended aplanned 2011 lease sale in Bristol Bay and four lease salesin the Chukchi and Beufort seas.

NEPAFollowing the 2008 lease sale, the Native Village of PointHope, the city of Point Hope, and the Inupiat

Community of the Arctic Slope, along with several envi-ronmental groups filed suit claiming that the lease sale,as well as the Final Environmental Impact Statement(FEIS) for the sale, violated the National EnvironmentalPolicy Act (NEPA), the Endangered Species Act (ESA),and the Administrative Procedures Act (APA). The courtfocused on NEPA claims.

NEPA requires the preparation of an Environ -mental Impact Statement (EIS) for any major federalaction “significantly affecting the quality of the humanenvironment.”2 NEPA’s objectives are to require the fed-eral agency to “consider every significant aspect of theenvironmental impact of a proposed action,” and toensure that the agency “inform[s] the public that it hasindeed considered environmental concerns in its deci-sionmaking process.” NEPA aims to “promote effortswhich will prevent or eliminate damage to the environ-ment and biosphere and stimulate the health and welfareof man . . . ”3 The groups sought an injunction claimingthat the final EIS did not adequately analyze the impactsof the lease sale on the environment and human com-munities; was missing essential information on theChukchi Sea; failed to adequately analyze the impacts ofthe lease sale in the context of climate change; under-states the risks of an oil spill; fails to fully analyze cumu-lative impacts on threatened species; and provides a mis-leading analysis of the effects of seismic surveying.

The court noted that NEPA review occurs as a four-stage process, with “more detailed environmental impactstatements at the program’s later, more site-specificstage.” The stages include: 1) a five-year lease plan; 2)lease sales; 3) exploration; and 4) development and pro-duction. The reviews as part of the 2008 lease sale con-stituted the second stage of review. The defendantsargued that the plaintiffs were improperly asking for alevel of review that was not warranted until later phases.

Controversy Controversy Continues to SwirlContinues to SwirlAround Oil and GasAround Oil and Gas

Drilling in the ArcticDrilling in the ArcticTerra Bowling, J.D.


In fact, a previous Ninth Circuit ruling found that NEPAdoes not require MMS to prepare an EIS that evaluatespotential environmental effects on a site-specific level ofdetail at the initial oil and gas leasing stage. However, theplaintiffs argued that the MMS’s NEPA obligation at thelease sale stage is to analyze the effects of development,“should it occur” and that once leases are issued, thedefendants may conduct preliminary industrial activitieswithout further approval.

RulingThe court first addressed plaintiffs’ claims that MMSfailed to take a hard look at the effects of seismic sur-veying and failed to fully analyze cumulative effects tothreatened eiders. The court found that the defendantstook a requisite hard look at these areas and acknowl-edged that necessary mitigation measures can be imple-mented in stages 3 and 4.

Next, the court examined plaintiffs’ claims that theEIS omits analysis of natural gas development despiteindustry interest and specific lease incentives for suchdevelopment, and the fact that it analyzes only the devel-opment of the first field of one billion barrels of oil,despite acknowledging that this is the minimum level ofdevelopment that could occur on the leases. The courtfound that the analysis of the first billion gallons of oilsatisfies the hard look requirement in NEPA. However,the court agreed that the agency did not take the requi-site hard look at the impactof natural gas exploration,“despite industry interest andspecific lease incentives forsuch development.”

The court also agreedwith the plaintiffs’ claim thatthe EIS suffers from missinginformation and data gaps.The court noted that the EIS“reflects dozens if not hun-dreds of entries indicating alack of information aboutspecies/habitat, as well as alack of information abouteffects of various activitieson many species.” The courtagreed that the MMS failedto determine whether miss-ing information in the EISwas relevant or essential under

40 C.F.R. 1502.22 and failed to determine whether thecost of obtaining the missing information was exorbi-tant. They ruled that the failure to comply with 1502.22was an abuse of discretion.

ConclusionThe court concluded that “although much of theAgency’s extensive investigation was appropriate, theAgency has failed to comply with NEPA in certain cir-cumstances.”4 The court ruled that all activity underLease Sale 193 was enjoined pending review byDefendants of these issues. The court remanded the caseto the Agency to satisfy its obligations under NEPA.However, on August 2nd, following a motion filed byShell, the federal judge clarified his ruling. He stated thatthe injunction does not prevent seismic studies that hadalready been approved or were pending approval by thefederal government.

Endnotes1. Native Vill. of Point Hope v. Salazar, 2010 U.S. Dist.

LEXIS 74086 (D. Alaska July 21, 2010).2. 42 U.S.C. § 4332(C). 3. 42 U.S.C. § 4321. 4. Native Vill. of Point Hope, 2010 U.S. Dist. LEXIS

74086 at * 23.5. Judge OKs Limited Exploration for Oil in Chukchi Sea,

ANCHORAGE DAILY NEWS, Aug. 4, 2010.

Photograph of ice and open water in the Beaufort Sea north of Alaska courtesy of NOAA.


In June, the U.S. Supreme Court issued its ruling inMonsanto Co. v. Geertson Seed Farms,1 the first case thecourt has heard involving genetically modified

organisms. Geertson Seed Farms, a conventional alfalfafarm, and environmental groups had sued the U.S.Department of Agriculture (USDA) over its decision toderegulate the use of “Roundup Ready” alfalfa withoutpreparation of an environmental impact statement. Inthe late 1990s, Monsanto, the manufacture of Roundup,genetically engineered (GE) a number of important agri-cultural crops, including alfalfa, canola, corn, soybeans,and sugar beets, to be resistant to the herbicide. TheseGE crops can withstand doses of Roundup, but notother brands of herbicides, that would otherwise killthem. Monsanto’s GE crops have proven to be quitepopular with farmers. Ninety percent of the soybeansand seventy percent of the corn and cotton grown in theUnited States are Roundup Ready.2

BackgroundThe current legal battle over Roundup Ready alfalfastarted in 2004. That year, Forage Genetics, the compa-ny licensed by Monsanto to develop and grow the GEalfalfa seed, filed a petition with the Animal and PlantHealth Inspection Service (APHIS) within the USDA fora determination that Roundup Ready alfalfa does notpose a plant pest risk. At the time, Roundup Ready alfal-fa was regulated by APHIS as a “regulated article.”Pursuant to the Plant Protection Act of 2000, permitsare required for the importation, interstate transporta-tion, and environmental release of “regulated articles,”genetically engineered organisms considered to be plantpests. Anyone may petition APHIS for a determinationthat a particular regulated article should not be regulatedbecause it does not pose a plant pest risk, i.e. it does not

“directly or indirectly injure or cause disease or damagein or to any plants or parts thereof.”3

Prior to its decision on Forage Genetics’ petition,APHIS had authorized almost 300 field trials ofRoundup Ready Alfalfa over an eight-year period.4 Thecat was already out of the bag, so to speak. To complywith the National Environmental Policy Act (NEPA),APHIS conducted an analysis of the potential environ-mental impact of the requested deregulation. TheEnvironmental Assessment (EA), which accompaniedAPHIS’ decision to deregulate Roundup Ready alfalfa,was a mere 18 pages.5 A more-detailed EnvironmentalImpact Statement (EIS) was not prepared becauseAHPIS determined in the EA that the deregulation ofRoundup Ready alfalfa would not have a significanteffect on the environment.

Commercial planting of Roundup Ready alfalfabegan in July 2005. The Geertson Seed Farms lawsuit wasfiled shortly thereafter. Sales and planting of RoundupReady alfalfa seed continued, however, because the plain-tiffs did not seek an order restraining the defendants’actions while the court decided the merits of the case,known as preliminary injunctive relief. By the time thedistrict court issued its ruling in early 2007 more than3,000 farmers in 48 states planted an estimated 220,000acres of Roundup Ready alfalfa.6

NEPA ViolationThe district court determined that APHIS violatedNEPA by not preparing an EIS. The court identified twoprimary problems with the EA prepared by APHIS.First, the court found that the agency failed to adequate-ly consider the extent to which the herbicide-resistantgene could be transferred to organic and conventionalalfalfa. Some genetic drift is unavoidable between GE

Environmental Reviews for “Roundup Ready”

Crops InadequateStephanie Showalter Otts, J.D., M.S.E.L.


and non-GE crops. Farmers cannot control the way thewind blows or the path that bees and other pollinatorschoose. In addition, the court found that APHIS failedto adequately consider the extent to which deregulationwould contribute to the development of Roundup-resistant weeds. Evidence is mounting that RoundupReady agriculture is creating “superweeds” – weedsresistant to glyphosate, the active ingredient inRoundup and some other commercial herbicides.7

Given the known risk of genetic drift and weed resis-

tance, the court found that it was improper for APHISto conclude that there would be no significant environ-mental impact. An EIS would have to be prepared.

This ruling placed the district court judge in a diffi-cult position. The NEPA violation warranted vacatingAPHIS’ deregulation decision. Roundup Ready alfalfawould once again be a “regulated article,” the plantingof which would require a permit. Thousands of farm-

ers, however, had planted alfalfa without permits basedon APHIS’ administrative finding that it was no longerregulated. Should those farmers be required to pullout the existing crop, thereby bearing a significantfinancial burden for reasonable reliance on an APHISadministrative decision? In crafting the remedy for theNEPA violation, the district court judge attempted tofind some middle ground. Farmers that had alreadyplanted their fields or purchased seeds could continuetheir operations if they complied with certain guidelines

suggested by APHIS, such as mandatory iso-lation distances between GE and non-GEfields. All future plantings of RoundupReady alfalfa were banned until APHIS pre-pares a full EIS on the deregulation decision.

AppealAPHIS, Monsanto, and Future Genetics ap -pealed the district court’s order. After theNinth Circuit affirmed the district court’sdecision, the defendants appealed to the U.S.Supreme Court. The question on appeal wasa narrow one: had the district court judgeexceeded his authority by prohibiting allfuture plantings of Roundup Ready alfalfapending completion of an EIS? The SupremeCourt agreed with the defendants that thedistrict court’s remedy was too broad. Uponreview of a deregulation petition, APHISmay either deny the petition or “approve thepetition in whole or in part.”8 The district court’sinjunction, however, stated that “beforegranting Monsanto’s deregulation petition,even in part, the federal defendants shall pre-pare an [EIS].”9 The Supreme Court ruledthat the district court’s injunction wasimproper because it prohibited the agencyfrom pursuing “any deregulation – no matterhow limited the geographic area…, how greatthe isolation distances…, how stringent theregulations governing harvesting…, how

robust the enforcement mechanisms…, and conse-quently – no matter how small the risk that the planti-ng authorized under such conditions would adverselyaffect the environment… .”10

ConclusionThe case now returns to the district court for the judgeto issue a new remedial order consistent with the

Photograph of alfalfa courtesy of the USDA.

Supreme Court’s opinion. While ini-tial media coverage of the caseframed it as a win for Monsanto,11 it isa pretty minor victory. The defen-dants did not challenge the existenceof a NEPA violation on appeal. TheSupreme Court’s ruling thereforedoes not change the status quo.Roundup Ready alfalfa cannot beplanted until APHIS issues a newderegulation decision, presumablyafter the agency prepares a full EIS.

Alfalfa isn’t the only RoundupReady crop embroiled in legal con-troversy. In September 2009, aCalifornia district court ruled thatAPHIS’ decision to deregulateRoundup Ready sugar beets violatedNEPA.12 Of key concern to theplaintiffs in this case were the envi-ronmental and economic impacts of cross-pollination ofsugar beets, Swiss chard, and table beets grown in onevalley in Oregon. Interestingly, the court focused on con-sumer choice, as opposed to consumer harm, findingthat “the potential elimination of farmer’s choice togrow non-genetically engineered crops, or a consumer’schoice to eat nongenetically engineered food, and anaction that potentially eliminates or reduces the availabil-ity of a particular plant has a significant effect on thehuman environment.”13 Because APHIS failed to ade-quately consider the effects of gene transmission on con-ventional farmers and consumers, its finding of no sig-nificant environmental impact was unconvincing to thecourt. In August 2010, the court issued an order pro-hibiting all future plantings of Roundup Ready sugarbeets until APHIS remedies its NEPA violations.14

As the battle over GE crops rages, the facts remainmurky. Most of the controversy centers on impacts toorganic agriculture. While genetic drift does occur, it isunclear whether, and to what extent, harm to the environ-ment occurs. In fact, proponents of GE crops suggest thatthere can be an environmental benefit through less pesti-cide applications and less tillage. Economic impacts, how-ever, can be severe if the fields of organic farmers are con-taminated with the glyphosate-resistant gene and theiraccess to organic markets thereby foreclosed. More infor-mation is clearly needed. Ideally these information needswould be met, at least in part, by APHIS’ forthcomingenvironmental reviews.

Endnotes1. Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743

(2010).2. William Neuman and Andrew Pollack, Farmers Cope

with Roundup-Resistant Weeds, THE NEW YORK TIMES,May 3, 2010.

3. See, 7 C.F.R. §§ 340.1, 304.6.4. Monsanto, 130 S. Ct. at 2750.5. Matt Jenkins, Brave New Hay, HIGH COUNTRY NEWS,

June 11, 2007.6. Monsanto, 130 S. Ct. at 2751.7. Researchers have identified 10 Roundup-resistant

weeds infecting 22 states. Neuman and Pollack, supranote 1.

8. 7 C.F.R. § 340.6(d)(3)(i) (emphasis added).9. Monsanto, 130 S. Ct. at 2757 (emphasis in original).10. Id. at 2759.11. See, i.e., Andrew Pollock, Justices Back Monsanto on

Biotech Seed Planting, NEW YORK TIMES, June 21, 2010;Brent Kendall, High Court Sides with Monsanto in AlfalfaCase, WALL STREET JOURNAL, June 22, 2010.

12. Center for Food Safety v. Vilsack, Orders regardingCross-motions for Summary Judgment, Case no. C 08-00484 JSW (Sept. 9, 2009).

13. Id. at *13.14. Center for Food Safety v. Vilsack, Order regarding

Remedies, Case no. C 08-00484 JSW (Aug. 13, 2010).


Photograph of crop duster courtesy of the USDA.

Sea Grant Law CenterKinard Hall, Wing E, Room 258P.O. Box 1848University, MS 38677-1848

The University of Mississippi

THE SANDBAR

The ABA Environment, Energy,and Resources Law Summit

New Orleans, LouisianaSeptember 29-October 2, 2010

With 24 CLE sessions and presenta-tions by top government lawyerswithin the Obama administration,NGO representatives, policy leaders,academics, and seasoned practition-ers from around the country, the 18thSection Fall Meeting presents aunique opportunity to learn and shareinformation. Special sessions willfocus on the oil spill in the Gulf, includ-ing the likely impacts on governmentpolicy and the future of offshoredrilling. And a special session will high-light efforts to rebuild the Gulf Coastfollowing Hurricane Katrina. Other CLEsessions will address the Clean Air andWater Acts, green jobs and buildings,renewable energy, waste, disasterpreparedness, permitting tips, climate

change, water rights, enforcement pri-orities, the Endangered Species Act,vapor intrusion, and more. Visithttp://www.abanet.org/environ/fallmeet/2010/ .

Sea Grant Week 2010

New Orleans, LouisianaOctober 15-20, 2010

Sea Grant Week 2010 in NewOrleans will kick off with a wel-come reception at the Aquarium ofthe Americas. The conference willfeature speakers from each of theSea Grant Focus Areas, includingSafe and Sustainable Seafood,Sustainable Coastal Development,Healthy Coastal Ecosystems, andHazard Resilience. Potential break-out themes include “Climate Changeand Coastal Communities” and“Sustainable Seafood and ChangingMarkets.” For registration and more

information, visit http://www.lasea-grant.org/sgweek2010/index.html .

8th Marine Law Symposium

Bristol, Rhode IslandNov 4-5, 2010

Since passage in 1976, the Magnuson-Stevens Act has been the basis of oneof the most compelling naturalresource management issues of ourtime: the sustainable management ofour nation’s fisheries. The law hasbeen amended several times and thesubject of contentious debate and liti-gation in response to rapidly evolvinginformation and policy objectives. ThisSymposium will ex amine the currentand future state of this body of law asa resource management scheme,including the complex integration ofscientific, economic, and social infor-mation. More details are available athttp://law.rwu.edu/?q=node/1228 .

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