Ctr. for Biological Diversity v. U.S. Forest Serv.

• Decision Date: 13 March 2020
• Docket Number: Case No. 2:17-cv-372
• Citation: 444 F.Supp.3d 832
• Parties: CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. FOREST SERVICE, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

444 F.Supp.3d 832

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.U.S. FOREST SERVICE, et al., Defendants.

Case No. 2:17-cv-372

United States District Court, S.D. Ohio, Eastern Division.

Filed: March 13, 2020

Wendy S. Park, Pro Hac Vice, Center for Biological Diversity, Elizabeth Fay Benson, Oakland, CA, Diana M. Dascalu-Joffe, Pro Hac Vice, Center for Biological Diversity, Denver, CO, Nathan G. Johnson, Ohio Environmental Council, Columbus, OH, for Plaintiffs.

John P. Tustin, United States Department of Justice, Washington, DC, Bridget Kennedy McNeil, United States Department of Justice, Denver, CO, for Defendants.

OPINION AND ORDER

MICHAEL H. WATSON, JUDGE

Four non-profit organizations, the Center for Biological Diversity ("the Center"), Heartwood, Ohio Environmental Council ("OEC"), and the Sierra Club (together, "Plaintiffs") move for summary judgment under the Administrative Procedure Act, 5 U.S.C. § 551 et seq. ("APA") against the United States Forest Service ("USFS"), the United States Bureau of Land Management ("BLM"), the United States Fish and Wildlife Service ("FWS"), Vicki Christiansen in her official capacity as Chief of USFS, William Perry Pendley in his official capacity as acting director of BLM, and Aurelia Skipwith in her official capacity as director of FWS (together, "Defendants").¹ Pls.' Mot. for Summ. J., ECF No. 83. Defendants oppose Plaintiffs' motion and move for summary judgment. ECF No. 92. American Petroleum Institute ("API"), Independent Petroleum Association of America ("IPAA"), and Eclipse Resources I, LP ("Eclipse") have entered the action as Intervenor Defendants (collectively, "Intervenors"). See ECF Nos. 52, 71. Intervenors echo Defendants' motion for summary judgment and move independently for the same. Eclipse Mot. for Summ. J., ECF No. 97; API & IPAA Mots. for Summ. J., ECF No. 99.

Additionally, Plaintiffs move for judicial notice, ECF No. 84, and the American Forestry Resource Counsel and Ohio Forestry Associate Inc. ("Amici") move for leave to file an Amicus Curiae Brief. ECF No. 94. Both motions are opposed.

I. LEGAL BACKGROUND²

A. Oil and Gas Leasing in the National Forest System Lands

1. Governing Law

The Mineral Leasing Act of 1920 (the "MLA"), 30 U.S.C. § 181, et seq. , established a permit and leasing system that granted the Secretary of the Interior broad discretion in deciding whether to lease particular federal lands. The Federal Onshore Oil and Gas Leasing Reform Act of 1987, 30 U.S.C. § 226(g) – (h) ("FOOGLRA"), which amends the MLA, divides leasing responsibility between the Secretary of the Interior, acting through BLM, and the Secretary of Agriculture, acting through USFS. See 30 U.S.C. § 226(h) – (n) ; 43 C.F.R. § 3101.7–2(a). Generally, USFS manages the surface of the forest lands, and BLM manages the subsurface of the lands. 30 U.S.C. § 226(g). While BLM has ultimate authority over leasing, it may not issue a lease on forest lands over USFS's objection. 43 C.F.R. § 3101.7–2(c). Prior to issuing a lease on federal land, BLM and USFS must verify that the activity approved by the lease complies with the National Environmental Policy Act ("NEPA"), NEPA's implementing regulations at 43 C.F.R. §§ 1500–08, and USFS policies and procedures. 36 C.F.R. § 228.102(a).

NEPA "has twin aims." Balt. Gas & Elec. Co. v. NRDC , 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). It obliges an agency "to consider every significant aspect of the environmental impact of a proposed action" and to "inform the public that it has indeed considered environmental concerns in its decisionmaking process." Id. "NEPA serves procedural rather than substantive goals, and is not a ‘results-driven’ statute." Latin Ams. for Soc. and Econ. Dev. v. Adm'r of Fed. Highway Admin. , 756 F.3d 447, 462 (6th Cir. 2014). As a result, "[e]ven agency action with adverse environmental effects can be NEPA-compliant so long as the agency has considered those effects and determined that competing policy values outweigh those costs." Id. (quoting Kentuckians for the Commonwealth v. U.S. Army Corps of Eng'rs , 746 F.3d 698, 706 (6th Cir. 2014) ); see also Balt. Gas & Elec. Co. , 462 U.S. at 97, 103 S.Ct. 2246 ("Congress in enacting NEPA ... did not require agencies to elevate environmental concerns over other appropriate considerations."). At bottom, NEPA's procedural requirements exist to ensure that decisions to lease are "fully informed and well-considered." Latin Ams. for Soc. and Econ. Dev. , 756 F.3d at 462 (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Del Council , 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) ).

Under NEPA's procedural requirements, whenever a federal agency endeavors to take "major ... action[ ] significantly affecting the quality of the human environment"—which may include opening up federal lands for oil and gas leasing—the agency must first generate a "detailed statement" reviewing the environmental impacts of the proposed action and alternatives to that action. 42 U.S.C. § 4332(C).³ This statement is referred to as an environmental impact statement ("EIS"), and it constitutes a "NEPA document." Developing the EIS fulfills NEPA's procedural guarantee of informed decision-making because it compels the agency producing the EIS to take a "hard look at environmental consequences" stemming from its actions. Ky. Riverkeeper, Inc. v. Rowlette , 714 F.3d 402, 407 (6th Cir. 2013).

"To spare agencies the hardship of conducting exhaustive review of every" proposed significant federal action, however, federal regulations allow the acting agency "to first prepare a less burdensome environmental assessment [ ("EA") ] as a method for determining whether a proposal need[s] an [EIS]." Id. at 407–08 ; 40 C.F.R. § 1501.4(a)–(c). If, after preparing an EA, the agency determines that no EIS is required, the agency must issue a Finding of No Significant Impact, which "briefly present[s] the reasons why an action ... will not have a significant effect on the human environment and" thus does not require an EIS. 40 C.F.R. §§ 1501.4(e), 1508.13.

Finally, an agency must prepare supplements to a draft or final EIS if the agency "makes substantial changes in the proposed action that are relevant to environmental concerns" or if "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1). The agency may also prepare a supplement at any time that it "determines that the purposes of [NEPA] will be furthered by doing so." Id. § 1502.9(c)(2).

2. The Leasing Process

The leasing process consists of a complex series of procedures during which USFS and BLM share responsibility for ensuring that the leasing decision and subsequently issued permits to drill comply with NEPA, NEPA's implementing regulations, and USFS's Forest Plan. See Wy. Outdoor Council v. Bosworth , 284 F. Supp. 2d 81, 83 (D.D.C. 2003) (outlining the process in detail). In 2006, USFS and BLM entered into a memorandum of understanding that further clarifies their shared responsibilities.

At the first step of the leasing process, after conducting a NEPA analysis, USFS determines which forest lands it will make administratively available to BLM for leasing. 36 C.F.R. § 228.102(c). The responsibility then shifts to BLM to determine, out of all forest land USFS made administratively available for leasing, which specific parcels BLM will designate for leasing. 36 C.F.R. § 228.102(d). Once BLM does so, it submits, for USFS's approval and consent, a proposal to lease specific parcels. Before consenting, USFS must verify that the leasing of those specific lands "has been adequately addressed in a NEPA document and is consistent with the Forest land and resource management plan." Id. § 228.102(e)(1). Additional environmental analysis must be performed if USFS determines that the leasing has not been adequately addressed or if significant new information or circumstances requires further analysis. Id. USFS also verifies that BLM's leasing proposal includes all required stipulations. Id. If these conditions are met, USFS may consent to BLM's leasing proposal. Finally, the process shifts back to BLM to offer the specific land for oil and gas leasing through a lease sale and awards leases to the "highest qualified bidder." 43 C.F.R. §§ 3924.5, 3925.10.

3. Approval of Drilling Operations on Leased Land

Before a lessee commences drilling operations or other surface-disturbing activities on leased land, the lessee must submit an application for permit to drill ("APD") for each planned well site on the parcel. 43 C.F.R. § 3126.3–1(c). The APD includes a surface use plan of operation ("SUPO") describing the proposed drilling program and addressing environmental hazards caused by the drilling and efforts to mitigate those hazards. Id. § 3162.1–1(c), (d), (e). USFS reviews the SUPO for compliance with NEPA and its implementing regulations as well as USFS policies and procedures. 36 C.F.R. § 228.107(a). USFS may approve the SUPO as submitted, approve it subject to specified conditions, or disapprove it. Id. § 228.107(b)(2). USFS then gives public notice of its decision on the SUPO and forwards the decision to BLM. Id. § 228.107(c), (d). BLM may approve the APD only after USFS approves the SUPO included therein. 30 U.S.C. § 226(g) ; 43 C.F.R. § 3162.3–1(h). Finally, even after the APD is approved, the lessee must supplement the SUPO if it seeks to conduct additional surface-disturbing operations on a particular well site that were not previously accounted for in the plan. 36 C.F.R. § 228.106(d).

B. The Endangered Species Act

The Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531, et seq. also has bearing on what federal forest lands USFS and BLM may approve for oil and gas leasing. The ESA "is comprehensive legislation for the preservation of endangered species." Bosworth , 284 F. Supp. 2d at 83–84 (citing Tenn. Valley Auth. v. Hill , 437 U.S....