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Court Holds Bureau of Land Management Failed to Consider Climate Change in Issuing Licenses

This week the Federal District Court for  the District of Columbia found that the United States Bureau of Land Management (BLM) failed to adequately consider the potential impacts of oil and gas leases on climate change. In Wildearth Guardians v. Zinke, the Court noted:

“Climate change, and humanity’s ability to combat it, are increasingly prominent topics of public discourse. This case concerns the attention the government must give climate change when taking action that may increase its effects.”

At issue are a number of oil and gas leases on federal lands. The Plaintiffs’ claim that the BLM should have prepared an Environmental Impact Statement (EIS) for these leases, claiming the BLM failed to take into account the impact of greenhouse gas emissions from the activities that would be performed under the leases.

In granting summary judgment to the Plaintiffs and remanding the matter for further review by the BLM, the Court held:

“Before the Court are the parties’ cross-motions for summary judgment and the Institute’s motion to file an amicus brief. Having reviewed the record and the relevant law, the Court concludes that—withholding judgment on whether BLM’s leasing decisions were correct—BLM did not sufficiently consider climate change when making those decisions. BLM summarized the potential on-the-ground impacts of climate change in the state, the region, and across the country. It failed, however, to provide the information necessary for the public and agency decisionmakers to understand the degree to which the leasing decisions at issue would contribute to those impacts. In short, BLM did not adequately quantify the climate change impacts of oil and gas leasing. Thus, for the reasons explained more thoroughly below, the Court grants Plaintiffs’ motion in part, denies Defendants’ motions, and denies the Institute’s motion.”

In analyzing the law, the Court noted that the Mineral Leasing Act (“MLA”), 30 U.S.C. §§ 181287, gives the Secretary of the Interior broad discretion in granting leases for oil and gas exploration on public lands. While the Secretary is required to grant leases, he is also required to “safeguard the public welfare” and may determine “the terms and conditions” of the leases and may therefore “impose a broad range of stipulations on oil and gas leases for federal land, including concerning the timing, pace, and scale of development.”

Citing the National Environmental Policy Act (NEPA) the Court outlined its purpose noting in part:

“NEPA simply requires that federal agencies consider the environmental consequences of their actions. See 42 U.S.C. §§ 43214370h; 40 C.F.R. § 1501.1. Under NEPA, agency decisionmakers must identify and understand the environmental effects of proposed actions, and they must inform the public of those effects so that it may “play a role in both the decisionmaking process and the implementation of [the agency’s] decision.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989);…”

The Court noted that where an Environmental Impact Statement (EIS) has been prepared and has fully analyzed the potential environmental impacts for a particular project, the regulations allow a subsequently proposed project to rely on those findings in what is referred to as “tiering”. However, a subsequent project “must supplement those EISs with more specific environmental analyses of the action at issue.”

During the leasing stage, in addition to the tiered review, some analysis was performed regarding  greenhouse gases (GHGs), but no environmental impact statements were prepared. The Court found the agency “…acknowledge that oil and gas drilling on leased parcels will emit GHGs, and they describe the sources of those emissions, but they do not attempt to quantify and project the GHG emissions likely to result from a given lease sale.”

The Court went on to note that the BLM claimed the climate models were inadequate to develop sound predictions of the impacts and that in any case the proposed drilling would not have a “measurable effect” on national and global emissions.

“Finally, the EAs emphasize that the leasing stage is a preliminary step towards oil and gas drilling, but that specific drilling projects are not guaranteed to move forward simply because a given lease was sold. ”

However, in granting partial summary judgment to Plaintiffs  the Court, among other findings, held that granting the leases was an “irrevocable commitment” and therefore: “…because BLM cannot fully prevent GHG emissions from oil and gas drilling once leases have been issued, BLM was required to assess the reasonably foreseeable impacts of drilling, at the leasing stage. BLM’s assessments fell short of NEPA’s requirements.”

While the Court did not agree with the claim that there should have been a site specific analysis for each of the leases issued, it did find that there was sufficient degree of information available to perform an analysis based on the projected number of likely wells.

“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.”

Rejecting the argument the tiered analysis that was performed provided sufficient information, the Court noted that the amount of additional information available to BLM would have permitted a quantitative analysis of the impacts that was not performed.

Plaintiffs’ also argued that BLM should have examined the indirect impacts of the downstream use of oil and gas produced from the leased lands. BLM argued those impacts were too attenuated and the information contained in its analysis was sufficient.  The Court disagreed finding  “… 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.”  Yet, while finding the issue is relevant the Court also noted that a full quantitative analysis, that Plaintiffs argued was required,  was more than legally mandated. However, the Court directed that BLM obtain available information and make a more detailed assessment than was previously undertaken.

Finally, the Court determined not to vacate the leases but to remand the matter for further analysis by BLM with the directive that no new drilling may be permitted in the iterim. The Court retained jurisdiction and admonished the BLM not to consider this a mere formality in filling out paperwork.

-Steven M. Silverberg