On March 19, 2019, District Judge Rudolph Contreras of the U.S. District Court for the District of Columbia held that the U.S. Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA) when it authorized oil and gas leases on federal land without adequately quantifying climate change impacts of the oil and gas leasing. The court granted in part plaintiffs’ motion for summary judgment and remanded the NEPA documents at issue to the BLM “so that BLM may satisfy its NEPA obligations in the manner described [in the court’s order].” [WildEarth Guardians, et al. v. Zinke, et al., ___F.Supp.3d___, Case No. 16-1724(D. D.C. Mar 19, 2019).]

Background

Plaintiffs WildEarth Guardians and Physicians for Social Responsibility challenged BLM’s approval and issuance of 473 oil and gas leases, issued through 11 different lease sales, covering over 460,000 acres of land in Wyoming, Utah, and Colorado.  The parties agreed to first brief the merits of plaintiffs’ claims concerning the Wyoming leasing decisions, to be followed by briefing on the Utah and Colorado leasing decisions. The court’s March 19, 2019 decision addressed the Wyoming lease sales.

As summarized by the court, the BLM’s authorization of oil and gas development on federal lands is governed by the Federal Land Policy and Management Act, NEPA, and BLM’s Land Use Planning Handbook, and involves the following three stages: 1) Land Use Planning Stage; 2) Leasing Stage; and 3) Drilling Stage. In this case, the plaintiffs challenged BLM’s failure to comply with NEPA at the Leasing Stage.

Under NEPA, federal agencies must “consider the environmental consequences of their actions” and prepare an Environmental Impact Statement (EIS) for “major Federal actions significantly affecting the quality of the human environment.” (42 U.S.C. §4332(C).) BLM determined that the lease sales at issue did not require issuance of EISs and instead issued Environmental Assessments (EA) and Findings of No Significant Impacts (FONSI).  Plaintiffs alleged that the EAs and FONSIs “failed to sufficiently account for the greenhouse gas (GHG) emissions that would be generated by oil and gas development on the leased parcels.” The court ultimately agreed.

The District Court’s Decision

 BLM’s NEPA Analysis of Potential GHG Emissions Was Inadequate

The court concluded that:

• . . .BLM did not take a hard look at drilling-related and downstream GHG emissions from the leased parcels, and it failed to sufficiently compare those emissions to regional and national emissions. These shortcomings also rendered the challenged FONSIs deficient, because the FONSIs could not convincingly state that BLMs leasing decisions would not significantly affect the quality of the environment.

First, the court summarized the general principle under NEPA that:

• . . .an agency cannot defer analyzing the reasonably foreseeable environmental impacts of an activity past the point when that activity can be precluded.

Because the BLM cannot preclude oil and gas drilling after having sold leases authorizing such drilling, it cannot defer more detailed environmental analysis until a later time. “While it may be true that after the leasing stage BLM can impose conditions to limit and mitigate GHG emissions and other environmental impacts, . . .the leasing stage is the point of no return with respect to emissions. Thus, in issuing the leases BLM ‘made an irrevocable commitment to allow some’ GHG emissions” and must “fully analyze the reasonably foreseeable impacts of those emissions at the leasing stage.”

Although the BLM was not required to analyze the site-specific environmental impacts of individual drilling projects, given that BLM could not reasonably foresee the projects to be undertaken on specific leased parcels at the Leasing Stage, it was required quantify drilling-related GHG emissions in the aggregate, across the leased parcels as a whole:

• BLM had at its disposal estimates of (1) the number of wells to be developed; (2) the GHG emissions produced by each well; (3) the GHG emissions produced by all wells overseen by certain field offices; and (4) the GHG emissions produced by all wells in the state. With this data, BLM could have reasonably forecasted, by multiple methods, the GHG emissions to be produced by wells on the leased parcels.

In addition to drilling-related GHG emissions, BLM was also required to evaluate the potential indirect effects associated with the leases, namely, the GHG emissions generated by the downstream use of oil and gas produced from the leased parcels.  Under NEPA, an agency must evaluate the indirect effects of a proposed action “which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” (40 C.F.R. §1508.8(b).)  The court concluded that:

• . . .the lease sales are a ‘legally relevant cause’ of downstream GHG emissions, and BLM was required to consider those emissions as indirect effects of oil and gas leasing.

Although the court required BLM to evaluate on remand whether quantification of emissions from downstream oil and gas use is possible, it did not mandate such quantification, as it did with respect to drilling-related emissions.

Finally, the court agreed with plaintiffs that the BLM’s failure to quantify GHG emissions rendered the EA’s cumulative impacts analysis inadequate:

• Without access to a data-driven comparison of GHG emissions from the leased parcels to regional and national GHG emissions, the public and agency decisionmakers had no context for the EA’s conclusions that GHG emissions from the leased parcels would represent only an ‘incremental’ contribution to climate change.

Conclusion and Implications

Rather than vacating the leases, the court elected to remand the NEPA documents to the BLM. “BLM’s NEPA violation consists merely of a failure to fully discuss the environmental effects of those lease sales; nothing in the record indicates that on remand the agency will necessarily fail to justify its decisions to issue EAs and FONSIs.” However, the court did enjoin BLM from authorizing any new drilling on the lands subject to the Wyoming leases until “BLM sufficiently explains its conclusion that the Wyoming Lease Sales did not significantly affect the environment.”

(Nicole Martin)