United States v. Coalition for Buzzards Bay

United States Court of Appeals
For the First Circuit

Nos. 10-1664
10-1668

UNITED STATES ET AL.,

Plaintiffs, Appellees,

v.

COALITION FOR BUZZARDS BAY ET AL.,

Defendants, Appellants.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Boudin, Selya and Howard, Circuit Judges.

Seth Schofield, Assistant Attorney General, with whom Martha
Coakley, Attorney General, and Pierce O. Cray, Assistant Attorney
General, were on brief, for appellants Commonwealth of
Massachusetts et al.
Jonathan M. Ettinger, Elisabeth M. DeLisle, Amy E. Boyd, and
Foley Hoag LLP on brief for intervenor-appellant Coalition for
Buzzards Bay.
Philip N. Beauregard on brief for Towns of Bourne, Fairhaven,
Falmouth, Gosnold, Marion, Mattapoisett, Rochester, Wareham, and
Westport, and City of New Bedford, amici curiae.
Anisha S. Dasgupta, Attorney, Appellate Staff, Civil Division,
United States Department of Justice, with whom Tony West, Assistant
Attorney General, Carmen M. Ortiz, United States Attorney, and Mark
B. Stern, Attorney, Appellate Staff, were on brief, for federal
appellees.
C. Jonathan Benner, with whom Jeffrey Orenstein and Reed Smith
LLP were on brief, for intervenors-appellees American Waterways
Operators et al.

May 17, 2011
 SELYA, Circuit Judge. Buzzards Bay is a brilliant jewel

in the diadem of Massachusetts waters. It comprises an inlet

flowing landward from the Atlantic Ocean, thirty miles long and up

to ten miles wide. Many people regard it as the gateway to Cape

Cod.

The name "Buzzards Bay" is a fluke. Folklore has it that

early settlers mistook an indigenous flight of ospreys for

buzzards, and the rest is history.

The bay is not only a spectacularly beautiful natural

resource but also a major channel of maritime commerce in

southeastern Massachusetts. The combined environmental and

commercial significance of the bay has sparked a pitched battle

between federal and state sovereigns over the nature of

preventative measures needed to safeguard against the risk of oil

spills. These appeals mark the latest round in that battle.

The overarching question before us involves the Coast

Guard's authority to promulgate regulations that preempt state

environmental law with respect to tank vessels. But as the proverb

teaches, there is many a slip twixt the cup and the lip.

Discerning such a slip, we do not reach the preemption question

but, rather, hold that, during the rulemaking process, the Coast

Guard failed to comply with its obligations under the National

Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347. Inasmuch

as this bevue was not harmless, we reverse the district court's

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entry of summary judgment in favor of the Coast Guard, vacate the

injunction against the enforcement of state law issued below, and

remand for further proceedings.1

I. BACKGROUND

This case had its genesis in a particularly regrettable

maritime misfortune. On April 27, 2003, the Bouchard Barge-120

struck an outcropping of rocks, spilling an estimated 98,000

gallons of oil into Buzzards Bay. Bad things sometimes can lead to

good things and, spurred by this incident, the state legislature

enacted the Massachusetts Oil Spill Prevention Act (MOSPA),

codified as amended primarily at Mass. Gen. Laws ch. 21, §§ 42,

50B-50E; ch. 21M, §§ 1-8. The federal government saw this as a

threat to its power to regulate commercial shipping on Buzzards Bay

and sued to abrogate certain provisions of the MOSPA. The suit

asserted that the challenged provisions of the state statutory

scheme were preempted by the Ports and Waterways Safety Act, Pub.

L. No. 92-340, 86 Stat. 424, as amended by the Port and Tanker

1
The parties to this litigation are numerous. The principal
plaintiffs include the United States, the Coast Guard, and shipping
industry representatives who have intervened on their behalf. The
principal defendants are the Commonwealth of Massachusetts (the
Commonwealth), various state officials and agencies, and the
Coalition for Buzzards Bay, a nonprofit organization that has
intervened to support the Commonwealth's position. An array of
municipalities bordering Buzzards Bay appear as amici in support of
the Commonwealth. Given this crowded field, we opt for simplicity
and refer to the protagonists as the Coast Guard (a shorthand for
the appellees, collectively) and the Commonwealth (a shorthand for
the appellants, collectively).

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Safety Act, Pub. L. No. 95-474, 92 Stat. 1471, codified at 33

U.S.C. §§ 1221-1232 and scattered sections of 46 U.S.C., and by

Coast Guard regulations promulgated thereunder.

The district court (Tauro, J.) granted an injunction.

United States v. Massachusetts, 440 F. Supp. 2d 24, 48 (D. Mass.

2006). The Commonwealth appealed, seeking to reinstate the MOSPA's

manning and tug escort requirements for vessels. We vacated the

injunction because the district court had not applied the correct

analytical model for resolving federal-state regulatory conflicts.

United States v. Massachusetts, 493 F.3d 1, 4-5 (1st Cir. 2007).

The case was remanded for further development of the record. Id.

at 4.

With the case pending before the district court, the

Coast Guard changed the legal seascape by promulgating a final rule

relating to navigation in Buzzards Bay (the 2007 Rule). This rule,

unlike the version previously before this court, purported

expressly to preempt the challenged provisions of the MOSPA. See

72 Fed. Reg. 50,052, 50,056-57 (Aug. 30, 2007). It established

manning and escort requirements limited to Buzzards Bay. See id.

at 50,052.

As part of the rulemaking process that culminated in the

issuance of the 2007 Rule, the Coast Guard eschewed the preparation

of either an environmental impact statement (EIS) or an

environmental assessment (EA). It determined instead that its

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proposed action fell within a categorical exclusion that obviated

any such analysis.

There are material differences between the protections

afforded by the MOSPA and those afforded by the 2007 Rule. The

MOSPA, with an exception not relevant here, requires a tugboat

escort for all tank vessels transiting Buzzards Bay that carry

6,000 or more barrels of oil. Mass. Gen. Laws ch. 21M, § 6. The

2007 Rule has a variant tug escort provision, which does not apply

at all to double-hulled barges. See 72 Fed. Reg. at 50,054,

50,059. Similar disparities exist as to manning requirements. The

MOSPA demands that "[t]he navigation watch on all tow vessels

transiting Buzzards bay and carrying 6,000 or more barrels of oil

shall consist of at least 1 licensed deck officer or tow vessel

operator, who shall serve exclusively as a lookout" and that

"[t]hree licensed officers or tow vessel operators shall be on a

tow vessel" when it is escorting a tank barge. Mass. Gen. Laws ch.

21M, § 4(a). The MOSPA also establishes crew requirements for tank

barges. Id. § 4(b). Once again, the 2007 Rule takes a divergent

approach; as to manning requirements, it is in some respects

broader than the MOSPA and in some respects narrower. See 72 Fed.

Reg. at 50,059.

Due to circumstances beyond the parties' control, the

case below was passed from judge to judge to judge. On October 29,

2007, the Coast Guard renewed its motion for an injunction against

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the enforcement of the challenged MOSPA provisions. While that

motion was pending, Judge Lindsay allowed the Commonwealth to file

counterclaims alleging that the Coast Guard, in the process of

promulgating the 2007 Rule, had violated both the Administrative

Procedure Act (APA), 5 U.S.C. §§ 551-559, 701-706, and the NEPA.

In the fall of 2008, the district court (Young, J.),

acting in conformity with a magistrate judge's recommendation,

preliminarily enjoined the enforcement of the challenged MOSPA

provisions. The parties subsequently cross-moved for summary

judgment. The magistrate judge recommended that summary judgment

enter for the Coast Guard on the ground that the 2007 Rule

preempted the challenged MOSPA provisions.

On de novo review, the district court (Woodlock, J.)

found a NEPA violation, but concluded that this violation was

"essentially harmless" because "the substance of the Coast Guard's

actual rulemaking analysis was the functional equivalent of what an

environmental impact statement would have generated." United

States v. Massachusetts, 724 F. Supp. 2d 170, 174-75 (D. Mass.

2010). The court proceeded to overrule the Commonwealth's other

objections, found preemption appropriate, entered a declaratory

judgment for the Coast Guard, and permanently enjoined enforcement

of the controverted portions of the state statute. Id. at 175.

These timely appeals followed.

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II. NEPA COMPLIANCE

We review an appeal from the entry of summary judgment de

novo. URI Student Senate v. Town of Narragansett, 631 F.3d 1, 7

(1st Cir. 2011). In the administrative law context, our evaluation

is informed by the APA. See Assoc'd Fisheries of Me., Inc. v.

Daley, 127 F.3d 104, 109 (1st Cir. 1997). That paradigm applies

here. Under it, we may set aside agency action if that action is

"arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law." 5 U.S.C. § 706(2)(A).2

Employing this yardstick, an agency rule fails "if the

agency relied on improper factors, failed to consider pertinent

aspects of the problem, offered a rationale contradicting the

evidence before it, or reached a conclusion so implausible that it

cannot be attributed to a difference of opinion or the application

of agency expertise." Assoc'd Fisheries, 127 F.3d at 109.

In this case, our task begins and ends with the issue of

NEPA compliance. We focus the lens of our inquiry accordingly.

A. The NEPA Framework.

The NEPA "is our basic national charter for protection of

the environment." 40 C.F.R. § 1500.1(a). It has dual objectives.

"First, it 'places upon an agency the obligation to consider every

2
There is a special interplay between summary judgment and
discretionary agency judgments under the APA. See, e.g., Mass.
Dep't of Pub. Welfare v. Sec'y of Agric., 984 F.2d 514, 525 (1st
Cir. 1993). We need not dwell upon those subtleties here.

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significant aspect of the environmental impact of a proposed

action.'" Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983)

(quoting Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553

(1978)). "Second, it ensures that the agency will inform the

public that it has indeed considered environmental concerns in its

decisionmaking process." Id.

As a means of achieving its twin goals, the NEPA directs

federal agencies, "to the fullest extent possible," to prepare an

EIS for "major Federal actions significantly affecting the quality

of the human environment." 42 U.S.C. § 4332. Timing is important.

If the NEPA's prescribed analysis is to factor into the

decisionmaking process as Congress intended, the agency must

"consider all significant environmental impacts before choosing a

course of action." Sierra Club v. Marsh, 872 F.2d 497, 502 (1st

Cir. 1989); see Vt. Yankee, 435 U.S. at 558; Wilderness Watch v.

Mainella, 375 F.3d 1085, 1096 (11th Cir. 2004). After all, "[p]art

of the harm NEPA attempts to prevent in requiring an EIS is that,

without one, there may be little if any information about

prospective environmental harms and potential mitigating measures."

Winter v. NRDC, 129 S. Ct. 365, 376 (2008). It follows inexorably

that "when a decision to which NEPA obligations attach is made

without the informed environmental consideration that NEPA

requires, the harm that NEPA intends to prevent has been suffered."

Massachusetts v. Watt, 716 F.2d 946, 952 (1st Cir. 1983).

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 Though significant, the NEPA's requirements are

procedural in nature. Dep't of Transp. v. Pub. Citizen, 541 U.S.

752, 756 (2004). So long as the environmental effects of a

proposed action have been adequately identified and studied, the

agency is free to weigh those effects and decide — within the

limits fixed by the APA — that other values overbalance

environmental costs. Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 350 (1989). Seen in this light, the role of judicial

review is simply to "insure that the agency has taken a 'hard look'

at environmental consequences." Kleppe v. Sierra Club, 427 U.S.

390, 410 n.21 (1976).

The NEPA's general requirement that federal agencies

prepare either an EIS or an EA in anticipation of any major action

is not absolute. The exemptions are fleshed out in implementing

regulations promulgated by the Council on Environmental Quality

(CEQ). See 40 C.F.R. § 1500.3. The CEQ is a body that Congress

created for the express purpose of administering the NEPA. See 42

U.S.C. § 4342. Under this regulatory regime, an affected agency is

charged in the first instance with determining if a proposed action

is one which, on the one hand, ordinarily requires an EIS, or

which, on the other hand, is exempted from environmental review

because it comes within a categorical exclusion. 40 C.F.R.

§ 1501.4(a). A categorical exclusion is meant to encompass "a

category of actions which do not individually or cumulatively have

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a significant effect on the human environment and which have been

found to have no such effect in procedures adopted by a Federal

agency in implementation of these regulations." Id. § 1508.4.

Such actions normally do not require the preparation of either an

EIS or an EA. Id.

If a proposed agency action is not one that ordinarily

would require an EIS, but nevertheless is not exempted from

environmental review, the agency must prepare an EA. Id.

§ 1501.4(b). That EA is intended to serve as the foundation upon

which the agency will make its determination about whether it is

necessary to prepare an EIS. Id. § 1501.4(c). While an EA is not

as extensive as an EIS, it nonetheless must include "discussion[]

. . . of the environmental impacts of the proposed action and

alternatives." Id. § 1508.9(b).

B. The Coast Guard's Supplemental Procedures.

The CEQ regulations are not meant to stand alone but,

rather, contemplate that the agencies to which they apply adopt

supplemental procedures, if and as needed. Id. § 1507.3(a). The

Coast Guard has adopted such supplemental procedures and codified

them in Commandant Instruction M16475.1D (Nov. 29, 2000). These

supplemental procedures describe thirty-five categorical exclusions

(CEs). COMDTINST M16475.1D, fig. 2-1. This compendium includes

CEs that cover "[r]egulations establishing, disestablishing, or

changing Regulated Navigation Areas and security or safety zones"

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and "[r]egulations in aid of navigation." Id. fig. 2-1, ¶34(g),

(i). When promulgating the 2007 Rule, the Coast Guard asserted the

applicability of both of these exclusions. 72 Fed. Reg. at 50,058.

The Commonwealth does not dispute that the Coast Guard's proposed

action fell within the compass of these CEs. But the applicability

of a CE does not automatically relieve an agency of the obligation

to prepare either an EIS or an EA.

The CEQ regulations recognize that even agency actions

that are of a kind typically excluded from NEPA review by the

operation of a CE "may have a significant environmental effect."

40 C.F.R. § 1508.4. In response to that concern, the Coast Guard,

like many other agencies, has enumerated in its supplemental

procedures various considerations to guide its assessment of

whether a particular action, though nominally covered by a CE,

involves "extraordinary circumstances" and, thus, requires the

preparation of either an EIS or an EA. COMDTINST M16475.1D, ch. 2,

§ B.2.b. In effect, this constitutes a list of exceptions to the

exclusions.

The Coast Guard has identified ten extraordinary

circumstances exceptions which, if applicable, may trump a CE and

require it to prepare an EIS or an EA. Id. By the same token, the

Coast Guard may not rely upon a CE if its proposed action triggers

any of the extraordinary circumstances exceptions limned in an

incorporated Department of Transportation (DOT) order. Id. The

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incorporated order requires the preparation of an EIS or an EA for

agency actions that are likely to involve any of four additional,

albeit overlapping, extraordinary circumstances. Id. encl. 1 (DOT

5610.1C), § 20.b.(2).

The Coast Guard attempts to put a new gloss on the

extraordinary circumstances described in its NEPA procedures. It

claims the right to do so in consequence of its reassignment from

the DOT to the Department of Homeland Security (DHS), which

occurred in 2003. This reassignment, the Coast Guard implies,

rendered its preexisting NEPA compliance procedures subject to

creative interpretation (at least to the extent that they conflict

with the DHS's own regulations).3 Under the guise of this creative

interpretation, the Coast Guard rips out the heart of its own

exceptions.

The Coast Guard cites very little authority for this

partial repudiation of its clearly delineated extraordinary

circumstances exceptions. In taking this position, it cites cases

such as Auer v. Robbins, 519 U.S. 452, 461 (1997), and claims that

it has the authority to interpret its own supplemental procedures.

The existence of that power is undeniable, but it cannot be wielded

to read a provision in a manner that is utterly contrary to its

plain language. Id. (explaining that an agency's interpretation of

3
The DHS's regulations are set forth in 71 Fed. Reg. 16,790
(Apr. 4, 2006).

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its own regulations is controlling unless "plainly erroneous or

inconsistent with the regulation" (quoting Robertson, 490 U.S. at

359)). For purposes of this case, the Coast Guard attempts to

nullify plainly stated provisions of its own longstanding NEPA

procedures — and judicial deference to agency interpretations

cannot be stretched so far.4

In its March 2006 notice of proposed rulemaking, the

Coast Guard explicitly cited Commandant Instruction M16475.1D — its

own set of procedures, which incorporate the DOT order. It

described this matrix as the document that would "guide[] the Coast

Guard in complying with the [NEPA]." 71 Fed. Reg. 15,649, 15,654

(Mar. 29, 2006). In August of 2007, the Coast Guard reiterated

this point when it published the final rule. 72 Fed. Reg. at

50,058. In neither of these notices did the Coast Guard identify

any other instructions as applicable to its NEPA compliance.

Neither the DHS's regulations nor the Coast Guard's newly minted

interpretation of its own procedures were ever mentioned.

No incongruity inheres in the Coast Guard's continued

use of the incorporated DOT order. Under the CEQ regulations,

nothing prevents one agency from incorporating into its

4
To cite but one example, where Commandant Instruction
M16475.1D makes an extraordinary circumstance applicable when an
action "is likely to be highly controversial in terms of scientific
validity or public opinion," the Coast Guard now seeks to interpret
that provision to apply only where there exists "scientific
controversy" over a proposed action, thus reading the "public
opinion" language out of the exception entirely.

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supplemental NEPA procedures guidance borrowed from another agency.

See 40 C.F.R. § 1507.3. And in any event, even if the incorporated

DOT order were somehow set aside, the Coast Guard's professed

interpretation of its own procedures itself defies logic and

exceeds the bounds of reasonable agency interpretations entitled to

deference.

The government must turn square corners when dealing with

the public, and we think that it is bound by its express reliance

on the document that includes the incorporated DOT order and makes

no reference to the supposed DHS policy. Cf. NRDC v. EPA, 824 F.2d

1258, 1284-85 (1st Cir. 1987) (explaining that agencies must

present proposals to the public with sufficiently clear notice so

that commenters will have a fair opportunity to express their

views). The Coast Guard took the position during the rulemaking

process incident to the 2007 Rule that the document that included

the incorporated DOT order was part of the regulatory mix. It

never provided the public with any hint that either its

reassignment to the DHS or the DHS's policies had effected a change

in its procedures. Given the Coast Guard's continued reliance on

materials predating its reassignment to the DHS, the absence of any

explicit disavowal of the incorporated DOT order, and its utter

failure to integrate the DHS regulations into its procedures,5 we

5
This failure is particularly perplexing in light of the
DHS's declarations that its "Directive shall prevail in case of any
inconsistencies" and that the Coast Guard "will amend [its]

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hold that the NEPA determination in this case must give full effect

to the content of Commandant Instruction M16475.1D.

C. The Violation.

The next question that we must answer is whether the

Coast Guard complied with the NEPA. In promulgating the 2007 Rule,

it used a standard environmental checklist. See COMDTINST

M16475.1D, encl. 2. This checklist included prompts corresponding

to the extraordinary circumstances exceptions that might prevent

the Coast Guard from relying on a CE. Each prompt received a

simple "yes" or "no" answer.

The completed checklist contains a negative response to

the prompt asking whether the proposed action is "likely to [have]

a significant effect on public health or safety." Elaborating, the

document explains that "[i]mplementation of the rule would have an

indirect and beneficial impact on public health and safety" due to

its anticipated prevention of future oil spills in Buzzards Bay.

Negative responses also accompany prompts asking whether the

proposed action presents the potential "to be highly controversial

in terms of scientific validity or public opinion" or whether the

proposed action would potentially violate state environmental law.

There is no discussion of the reasoning behind these negative

responses.

procedures to conform to this Directive." 71 Fed. Reg. at 16,790.
The Coast Guard has apparently ignored this mandate.

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 The checklist does contain a lone affirmative response.

This affirmative response is to the prompt asking whether the

proposed action is to take place "on or near a unique

characteristic of the geographic area." The Coast Guard added, in

a wholly conclusory fashion, that the proposed action "is projected

to produce negligible adverse impacts on the environment from

increased air and water emissions from the additional tugs."

In a bid to shut off further inquiry into the sufficiency

of those responses, the Coast Guard says that the Commonwealth's

failure to object during the notice-and-comment period to its

proposed reliance on a CE amounts to a waiver. As articulated,

this claim rests entirely on the Supreme Court's decision in Public

Citizen, where the Court explained that "[p]ersons challenging an

agency's compliance with NEPA must 'structure their participation

so that it . . . alerts the agency to the [parties'] position and

contentions.'" 541 U.S. at 764 (alterations in original) (quoting

Vt. Yankee, 435 U.S. at 553). But nothing in Public Citizen shifts

the burden of ensuring NEPA compliance from the agency that is

proposing an action to those who wish to challenge that action.

Indeed, the Public Citizen Court stressed that "the agency bears

the primary responsibility to ensure that it complies with NEPA."

Id. at 765.

In all events, the case at hand is readily

distinguishable from Public Citizen. There, the agency had

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prepared an EA and determined that it need not take the more

laborious step of preparing an EIS. Id. at 763. The challenge to

that determination was premised on the agency's supposed failure to

consider specific alternatives when compiling the EA, but the

challenger had not objected to the EA on that ground during the

comment period. Id. at 764. In fine, the dispute was one about

the substance of what evidence the agency should have considered.

By contrast, the dispute here is functional. The Coast

Guard's reliance on a CE permitted it to avoid any environmental

analysis. The principles announced in Public Citizen cannot be

twisted so far as to cover such a situation. See 'Ilio'ulaokalani

Coal. v. Rumsfeld, 464 F.3d 1083, 1092 (9th Cir. 2006).

This brings us to the question of whether the Coast

Guard, in relying on a CE as a means of sidestepping any meaningful

environmental analysis, acted arbitrarily. In arguing for an

affirmative answer to this question, the Commonwealth focuses on

four extraordinary circumstances exceptions that, in its view,

prevented the agency from relying on a CE. These extraordinary

circumstances exceptions relate to (i) agency actions affecting

"[p]ublic health or safety," (ii) those touching upon a site

including or "near a unique characteristic of the geographic area,"

(iii) those "likely to be highly controversial in terms of

scientific validity or public opinion," and (iv) those creating

"[a] potential or threatened violation of . . . state . . . law

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. . . imposed for the protection of the environment." COMDTINST

M16475.1D, ch. 2, § B.2.b. If any one of these exceptions applies,

then the Coast Guard was bound to determine whether further

analysis was required based on the potential environmental effects

of the proposed action. Id. And in that event, reliance on the CE

would be inappropriate.

Here, we can limit our consideration to the extraordinary

circumstances exception for proposed actions that are "likely to be

highly controversial in terms of . . . public opinion" (to the

extent that other exceptions might also apply, they are

superfluous).6 Careful perscrutation of the record in this case

persuades us that the Coast Guard's bareboned negative response —

a simple "no" — to the prompt asking whether the proposed action

was likely to be highly controversial was arbitrary and capricious.

Judicial review of the applicability of an extraordinary

circumstances exception is informed by the agency's guidelines.

See Stone Forest Indus., Inc. v. United States, 973 F.2d 1548, 1551

(Fed. Cir. 1992) (explaining that internal guides for agency

employees are evidence of agency's custom and practice); Burroughs

v. Hills, 741 F.2d 1525, 1529 (7th Cir. 1984) (per curiam)

6
The concern about reliance on a CE for potentially
controversial actions, expressed in the Coast Guard's procedures,
is echoed in the incorporated DOT order, which likewise prohibits
the use of a CE when the proposed action is likely to involve
"substantial controversy." COMDTINST M16475.1D, encl. 1 (DOT
5610.1C), § 20.b.(2).

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(similar). The Coast Guard's guidelines outline the considerations

that should be factored into the decisionmaker's evaluative

process. COMDTINST M16475.1D, encl. 2. As to the exception for

"highly controversial" actions, they direct decisionmakers to

"[c]onsider first whether [the] action is likely to be

controversial in any way." Id. If the decisionmaker concludes

that it is, he is directed to "consider whether this controversy is

likely to have an environmental element." Id. The guidelines

specifically caution decisionmakers to "be sure not to interpret

the word 'environmental' too narrowly" to guard against "missing a

controversial issue that should be addressed under NEPA." Id.

We need not tarry. The record in this case belies the

Coast Guard's conclusory determination that its proposed action was

not likely to be highly controversial within the meaning of its own

procedures and guidelines. During the rulemaking process, the

Coast Guard received a plethora of worried comments from local

officials, state legislators, and other representatives of state

government. The state's principal environmental regulator, the

Massachusetts Department of Environmental Protection (MDEP),

expressed grave concerns about the potential environmental

consequences of the proposed rule. The MDEP indicated that, in its

strongly held view, tug escorts for all tank barges were necessary

to reduce the risk of oil spills in Buzzards Bay. The MDEP

specifically noted that escort requirements for double-hulled tank

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barges were enforced "in other environmentally sensitive waters"

and should not be forsaken in Buzzards Bay. The Massachusetts

congressional delegation urged the Coast Guard to adopt broader tug

escort standards parallel to those embedded in the MOSPA, so that

both single and double-hulled barges would be covered. This

coverage was essential, the solons wrote, in order to "provide[]

crucial protection" for Buzzards Bay.

The Coast Guard shrugs off this tidal wave of comments as

mere political opposition. Of course, many of the comments were

submitted by "political" figures. But in a democracy, citizens may

justifiably rely on political leaders to speak for them, and the

fervent community concern expressed here went directly to

potentially serious environmental effects of the Coast Guard's

proposed action. This is the very type of controversy that the

Coast Guard's guidelines direct decisionmakers to consider. At any

rate, the public officials' comments were supplemented by

submissions from private groups and individuals who believed that

protections beyond those described in the proposed rule were needed

to prevent environmental damage to Buzzards Bay.

What makes the Coast Guard's refusal to recognize the

potential for controversy all the more difficult to fathom is that,

during the notice-and-comment period, the Coast Guard was already

embroiled in litigation that touched upon the environmental effects

of a prior rule that affected Buzzards Bay. It made its decision

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to rely on a CE (and thereby avoid a more in-depth environmental

analysis) while this litigation remained unresolved. At the very

least, the pendency of that bitterly contested case should have

alerted the Coast Guard to the existence of a serious disagreement

about the wisdom of displacing the Commonwealth's regulatory regime

and the environmental effects of the proposed federal action.

The short of it is that, during the time when rulemaking

was underway, there was ferocious and widespread opposition to the

Coast Guard's approach to the regulation of oil barges in Buzzards

Bay. The Coast Guard knew of this opposition and also knew that

much of it implicated the not implausible fear that environmental

harm would ensue should the protections afforded by the MOSPA be

eliminated and the proposed federal standards adopted. In the

idiom of the Coast Guard's own procedures, "the potential

significance of the proposed action's effects on the environment"

was great. COMDTINST M16475.1D, ch. 2, § B.2.b. In the view of

many, the proposed rule threatened to decrease materially the level

of protection against oil spills in Buzzards Bay. Given these

realities, we conclude, as did the district court, that the Coast

Guard's eschewal of any meaningful environmental inquiry was

arbitrary and capricious. See Massachusetts, 724 F. Supp. 2d at

174 (characterizing Coast Guard's decision not to prepare an EIS as

"an act of procedural hubris").

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 D. Harmless Error.

This does not end our voyage. The Coast Guard contends

that even if the existence of extraordinary circumstances

foreclosed it from relying on a CE, its failure to prepare either

an EIS or an EA was harmless. We turn to this contention.

Assuredly, NEPA violations are subject to harmless error

review. See Save Our Heritage, Inc. v. FAA, 269 F.3d 49, 61 (1st

Cir. 2001); see also 5 U.S.C. § 706. "[T]he burden of showing that

an error is harmful normally falls upon the party attacking the

agency's determination." Shinseki v. Sanders, 129 S. Ct. 1696,

1706 (2009). The circumstances of a particular case often will

make clear whether the error was harmless or not. Id. In this

case, the Coast Guard premises its harmless error argument on the

notion that it conducted an analysis functionally equivalent to an

EIS or an EA during the rulemaking process. The district court

accepted this argument, relying heavily on our decision in Save Our

Heritage. See Massachusetts, 724 F. Supp. 2d at 175. That

reliance was misplaced.

In Save Our Heritage, the agency had determined that a

proposed modification to a preexisting rule (authorizing the

addition of a few new flights) would have a de minimis

environmental impact and, thus, invoked a CE to pretermit further

NEPA review. We noted that the agency had "directly studied the

three types of potential effects from the additional flights:

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noise, fuel emissions, and surface traffic." 269 F.3d at 58-59.

Moreover, it had "extrapolated" from two previously prepared

documents: a generic environmental impact report (which had

anticipated the future environmental effects of increased

commercial aviation in the area) and a prior surface traffic study.

Id. at 59. Finally, to confirm the continued reliability and

accuracy of the findings contained in the generic environmental

impact report, the agency compared its projections to actual growth

patterns. Id. On these facts, we applied the harmless error

doctrine and concluded that it would "make[] no sense to remand for

an environmental assessment where, as here, the [agency] has

already made a reasoned finding that the environmental effects are

de minimis." Id. at 61.

The case at hand is readily distinguishable from Save Our

Heritage. Although the Coast Guard, in its advance notice of

proposed rulemaking, mentioned two prior local studies (a 1996

regional risk assessment recommendation and a 2003 safety

assessment), see 69 Fed. Reg. 62,427, 62,428 (Oct. 26, 2004), there

is no indication that it took any steps to confirm the continued

relevance of the information contained in those studies. The same

is true of a 1999 regulatory assessment prepared for Puget Sound

and included in the administrative record here.

In all events, these reports standing alone are neither

sufficiently focused nor sufficiently detailed to serve, separately

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or in cumulation, as a proxy for the environmental analysis that

the NEPA requires. The 1996 study recommended a Regulated

Navigation Area, which, when adopted, would "impose[] certain

requirements on single-hulled tank barges transiting New England

waters, including Buzzards Bay." Id. The record offers no further

information about this study. The 2003 report — a ports and

waterways safety assessment — recognized "that the risk for oil or

hazardous material discharge in Buzzards Bay is relatively high"

and that one way of reducing this risk would be to "establish

requirements for escort tugs." Id. But this report did not

purpose to evaluate the merits (or relative merits) of any

particular courses of action. Rather, its goal was to spur

regional risk mitigation efforts by generating input from

interested parties about ways to reduce the risks associated with

a broad range of navigation concerns.

The last of the documents upon which the Coast Guard

leans — the 1999 regulatory assessment for Puget Sound — goes into

some depth in describing "the potential impact of oil spills on the

environment." But this data is presented in the site-specific

context of the topography and environmental characteristics of a

body of water some 2,500 miles distant from Buzzards Bay. While

this assessment could be relevant, the Coast Guard made no

explanation of how it might apply to the presumably different

topography and environmental characteristics of Buzzards Bay.

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 These shortcomings are troubling, but the sockdolager is

that the Coast Guard did not perform any environmental analysis at

all. Indeed, it made no site-specific appraisal of the potential

environmental effects of its proposed action. For ought that

appears, it took no "hard look" at the situation. It gave the

matter the barest of glances and, in the parlance of the Save Our

Heritage court, made no "reasoned finding." 269 F.3d at 61.

In a nutshell, this is not a case, like Save Our

Heritage, in which an agency, while failing to carry out a formal

EIS or EA, nevertheless performed a substantial environmental

analysis. The absence of any such analysis is antithetic to a

finding of harmlessness. See Wilderness Watch, 375 F.3d at 1096

(noting that courts "have only been willing to declare a NEPA

violation harmless when the relevant decision makers actually

engaged in significant environmental analysis prior to the decision

but failed to comply with the exact procedures mandated"); see also

Cal. Wilderness Coal. v. U.S. Dep't of Energy, 631 F.3d 1072, 1106

(9th Cir. 2011) (finding error not harmless where agency had not

shown that it had taken a "hard look" at the environmental

consequences of its proposed action).

The Coast Guard suggests that the comments submitted

during the rulemaking process compensate for the missing

environmental analysis. We do not agree. Although these comments

may have brought certain environmental concerns to the agency's

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attention, they did not bridge the gap between agency awareness of

potentially detrimental environmental effects and agency analysis

of those effects. It is precisely such an analysis that the NEPA

requires. See 40 C.F.R. § 1508.9(b) (requiring an EA to include

discussion "of the environmental impacts of the proposed action and

alternatives").

At the expense of carting coal to Newcastle, we add that

the NEPA framework is designed in part to stimulate public

participation in the rulemaking process. See Pub. Citizen, 541

U.S. at 768 (describing an EIS as intended to "provid[e] a

springboard for public comment" (alteration in original) (quoting

Robertson, 490 U.S. at 349)); New Mexico ex rel. Richardson v.

Bureau of Land Mgmt., 565 F.3d 683, 708 (10th Cir. 2009) (finding

failure to prepare a supplemental EIS not harmless and noting that

"[a] public comment period is beneficial only to the extent the

public has meaningful information on which to comment"). It would

be Kafkaesque to deem the very comments submitted by the public, in

and of themselves, a competent proxy for the NEPA determination

that is meant to prompt and inform such comments.

What we have said to this point dictates what must be

done. The error here was one of function, not merely of form. The

administrative record, viewed as a whole, does not show that the

Coast Guard ever analyzed, or even adequately studied, the

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environmental impact of its proposed action. Consequently, its

failure to prepare either an EIS or an EA was not harmless.7

III. CONCLUSION

We need go no further. Where, as here, an agency has

failed to satisfy its obligations under the NEPA and its error is

not demonstrably harmless, the appropriate remedy is a remand to

the agency for performance of those obligations. See, e.g.,

Georgetown Univ. Hosp. v. Bowen, 821 F.2d 750, 758 (D.C. Cir.

1987). Accordingly, we reverse the entry of summary judgment,

vacate the injunction, and return the case to the district court

with instructions to remand it to the Coast Guard for further

proceedings consistent with this opinion. We take no view of the

overarching preemption issue, the applicability vel non of any

other extraordinary circumstances exception, the APA issue, or any

of the parties' other contentions.

So Ordered.

7
For present purposes, we need not decide whether the Coast
Guard should have prepared an EIS or an EA. What is apparent is
that some further level of analysis was required.

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