On March 27, 2019, Judge Babcock of the U. S. District Court in Colorado held that the environmental reviews conducted by the Bureau of Land Management (BLM) and the U.S. Forest Service (USFS) of proposed oil and gas drilling in the upper North Fork Valley were deficient. This case is Citizens for a Healthy Community et al v. United States Bureau of Land Management et al, No. 1:2017cv02519 - Document 53 (D. Colo. 2019). The suit was brought by the environmental organizations Citizens for a Healthy Community, High Country Conservation Advocates, Center for Biological Diversity, WildEarth Guardians, and Wilderness Workshop that sought review of BLM’S approval of a master development plan, USFS’ approval of certain natural gas wells, well pads, and related infrastructure, as well as both agencies’ approval of applications for permits to drill.
The property in question is the Bull Mountain Unit (Unit), an area 30 miles northeast of Paonia, Colorado. The Unit consists of 440 acres of federal surface lands, 12,900 acres of split-estate lands, and 6,330 acres of lands consisting of private surface and private minerals regulated by the Colorado Oil and Gas Conservation Commission. In 2008 and 2009, BLM sought public input for a master development plan (MDP) to provide infrastructural information regarding oil and gas development. BLM published an environmental impact statement (EIS) regarding the Unit’s MDP. The EIS is a document that requires federal agencies complete to ensure it considers and makes available to the public detailed information how a proposed action may impact the environment. The EIS is a key requirement of the National Environmental Policy Act (NEPA). The purpose of the National Environmental Policy Act (NEPA) is to ensure all federal agencies consider the environmental impacts of their actions to prevent or eliminate damage to the environment.
The final EIS indicated four alternatives BLM considered: alternative A no action alternative and alternatives B, C, and D which contained a development of 146 new gas wells and four new water disposal wells. Plaintiffs argued the alternatives BLM and USFS considered were too narrow and in violation of NEPA. They stated a phased development alternative should have been considered that would cluster drilling geographically “to maintain open areas and allowing concentrated development that proceeds in stages rather than all at once.” The Court however held the Plaintiffs did not show their proposed alternative significantly differs from other alternatives considered.
Plaintiffs argued BLM and USFS failed to sufficiently consider: (1) the severity and impacts of greenhouse gas (GHG) pollution and climate change; (2) the severity and impacts of hydraulic fracturing on water resources and human health; and (3) the cumulative impacts of air quality, water quantity, and wildlife.” They stated the EIS by the Defendants provided no analysis of the indirect impacts of oil and gas production. Defendants responded to Plaintiffs’ argument by stating that the available scientific models are unable to perform such precise calculations.
What the Court Held On Various Issues
The United States District Court in Denver, Colorado held that BLM and USFS sufficiently considered the Projects’ impacts on the environment, but still failed to perform an analysis enough to comply with NEPA. The Court noted other recent persuasive cases that held combustion emissions were an indirect effect of an agency’s decision to extract those natural resources. The Court decided in favor of the Plaintiffs stating that the Defendants violated NEPA by “not taking a hard look at the foreseeable indirect effects resulting from the combustion of oil and gas in the EIS. The Defendants were ordered to quantify and reanalyze the foreseeable indirect effects of the emissions.
The Court also held the Defendants did not sufficiently explain the cumulative impact on mule deer and elk in the EIS. This is supported by a comment letter from the Colorado Division of Wildlife that stated it was “concerned with the proposed density and extent of development in the Bull Mountain Unit.” The comment noted that “development activities should be planned at the largest scale possible and that development activities should be phased and concentrated.” The Plaintiffs noted that Defendants narrowed the scope of analysis to the Unit’s boundaries and did not include other planned oil and gas developments in the area. The Court ordered the Defendants must either provide sufficient explanation why it only studied the Unit for its cumulative impact analysis or expand the area of its analysis.
The Court found the Defendants complied in several other areas of their investigation. It found the Defendants investigation into the cumulative climate change impacts in the EIS and EA were appropriate. It came to this conclusion by citing a federal court case that held “courts are not in a position to decide the propriety of competing methodologies and must simply determine whether the agency had a rational basis for employing the challenged method.” The Court decided in favor of the Defendants, stating they sufficiently examined the ecological, economic, and social impacts of the Projects’ predicted GHG emissions. Defendants fulfilled the Court’s requirements by providing a general description and national assessment of climate change, and a climate change analysis of the Unit’s location. The Court also held the Projects’ impacts to air quality and water quantity were adequately addressed.
The Court ruled on a significant number of issues as set forth above. Here is the Court holding: "For the reasons set forth above, the Court concludes that Defendants:
1. Considered reasonable alternatives to the proposed actions in the EIS and EA;
2. Failed to comply with NEPA by not taking a hard look at the reasonably foreseeable indirect impacts of oil and gas;
3. Took an appropriately hard look at cumulative climate change impacts in the EIS and EA;
4. Sufficiently examined the ecological, economic, and social impacts of the Projects’ predicted GHG emissions;
5. Took a sufficiently hard look in the EIS and EA on the impacts of hydraulic fracturing on water resources and human health;
6. Sufficiently considered the Projects’ impacts on air quality
7. Sufficiently considered the Projects’ impacts on water quantity;
8. Failed to comply with NEPA by not taking hard look at the cumulative impacts on mule deer and elk. Defendants must clarify the area it used when it analyzed the Unit MDP’s cumulative impacts on mule deer and elk in the EIS. Then, if Defendants only considered the Unit itself for its cumulative impacts analysis, it must reconsider that decision and provide sufficient explanation or expand the area of its analysis."
The Court ordered the parties' counsel to, "confer and attempt in good faith to reach an agreement as to remedies concerning the issues on which Defendants were not in compliance with NEPA. If an agreement is not reached, the parties may submit briefs. This briefing will consist of one brief from each party, including Intervenor-Defendants, not exceeding 4,000 words, including everything from the caption to the certificate of service. It shall be filed with the Court on or before May 6, 2019." It defered a final ruling until further briefing was received by the court.
As this case indicates, NEPA requires studies that are comprehensive to prevent or eliminate damage to the environment. For more information on this case as well as assistance on how you can contest a decision by a government agency, contact Whitcomb Selinsky PC at (866) 476-4558.