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Environmental Nonprofits Sue BLM And USFS

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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 organization's 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.

Background

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, the BLM sought public input for a master development plan to provide infrastructural information regarding oil and gas development. The BLM published an environmental impact statement regarding the Unit’s master development plan. The environmental impact statement document requires federal agencies complete to ensure it considers and makes available to the public detailed information on how a proposed action may impact the environment. The environmental impact statement is a key requirement of the National Environmental Policy Act. The purpose of the Act is to ensure all federal agencies consider the environmental impacts of their actions to prevent or eliminate damage to the environment.

Plaintiff's Claims

The final environmental impact statement indicated four alternatives for the BLM to consider: alternative A no-action alternative and alternatives B, C, and D which contained the development of 146 new gas wells and four new water disposal wells. Plaintiffs argued the alternatives the BLM and USFS considered were too narrow and in violation of the National Environmental Policy Act. 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 the BLM and USFS failed to sufficiently consider: (1) the severity and impacts of greenhouse gas 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 environmental impact statement by the Defendants provided no analysis of the indirect impacts of oil and gas production. Defendants responded to the 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 the BLM and USFS sufficiently considered the Projects’ impacts on the environment, but still failed to perform an analysis thorough enough to comply with National Environmental Policy Act. 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 the National Environmental Policy Act by “not taking a hard look at the foreseeable indirect effects resulting from the combustion of oil and gas in the impact statement indicated." 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. 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 Defendant's investigation into the cumulative climate change impacts 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 on air quality and water quantity were adequately addressed.

Court's Decision

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 environmental impact statement 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 National Environmental Policy Act by not taking a 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 National Environmental Policy Act. 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 deferred a final ruling until further briefing was received by the court.

As this case indicates, the National Environmental Policy Act 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.

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About the AuthorWhitcomb, Selinsky, PC

Whitcomb, Selinsky, PC is a full service law firm serving clients’ diverse legal needs. Our focus is in helping people in their interactions with federal, state and local governments.

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