Natural Resources Defense Council v. Kempthorne

• Decision Date: 30 November 2007
• Docket Number: Civ. Action No. 07cv1709 (RJL).
• Citation: 525 F.Supp.2d 115
• Parties: NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. Dirk KEMPTHORNE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

525 F.Supp.2d 115

NATURAL RESOURCES DEFENSE COUNCIL, et al., Plaintiffs, v. Dirk KEMPTHORNE, et al., Defendants.

Civ. Action No. 07cv1709 (RJL).

United States District Court, District of Columbia.

November 30, 2007.

COPYRIGHT MATERIAL OMITTED

Sharon Buccino, Natural Resources Defense Council, Washington, DC, for Plaintiffs.

Lori Caramanian, U.S. Department of Justice, Denver, CO, for Defendants.

MEMORANDUM OPINION

RICHARD J. LEON, District Judge.

Plaintiffs Natural Resources Defense Council, Biodiversity Conservation Alliance, Wyoming Outdoor Council, Western Watershed Project and Wyoming Wilderness Association have sued Dirk Kernptborne, the Secretary of the Department of the Interior, the Department of the Interior and the Bureau of Land Management ("BLM"), alleging that the BLM's approval of approximately 90 applications for permits to drill ("APDs" or "drilling permits") in the Atlantic Rim Project Area ("ARPA" or "Atlantic Rim area") violated the Administrative Procedure Act ("APA"), .5 U.S.C. § 551 et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the Federal Land Policy Management Act ("FLPMA"), 43 U.S.C. § 1701 et seq., and the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.,¹ Currently before the Court is the plaintiffs' motion for a preliminary injunction seeking to enjoin certain ground disturbing activity pursuant to the drilling permits already approved and to prohibit BLM from approving additional applications to drill in the Atlantic Rim area. After consideration of the parties' submissions, the relevant caselaw, oral arguments of counsel and the entire record herein, plaintiffs' motion is DENIED.

I. BACKGROUND

The Atlantic Rim Project Area comprises more than 270,000 acres of BLM managed land in south-central Wyoming.² Final Environmental Impact Statement for the Atlantic Rim Natural Gas Field Development Project ("FE IS"), p. 1-1 to 1-6. Rich in oil and natural gas deposits, this area of the state has been under development since the 1950s and now provides more than 5% of Wyoming's total gas production. Record of Decision, Environmental Impact Statement for the Atlantic Rim Natural Gas Field Development Project ("ROD"), p. 7.

In May 2001, a consortium of oil and gas companies which ultimately included Anadarko Petroleum ("Anadarko"), Warren Resources ("Warren") and Double Eagle Petroleum ("Double Eagle"), submitted a proposal to the BLM to drill more than 3,880 natural gas wells in the Atlantic Rim area. Intervenors' Opposition to the Motion for a Preliminary Injunction ("Intervenors' Opp."), p. 2. In December 2005, after four years of study, BLM released a draft environmental impact statement ("EIS") for the project.³ Id. at p. 3. After an opportunity for public notice and comment, BLM released its final environmental impact statement ("FEIS") in December 2006. Compl. at 49-53. In accordance with NEPA regulations, the FEIS identified the purpose and need of the project, identified a range of alternative plans and analyzed their respective environmental impacts.⁴ FEIS, p. ES-1 to ES-7. Pursuant to its stated goal of optimizing natural gas recovery while minimizing surface disturbance, BLM ultimately selected as its preferred alternative, a plan to drill approximately 2,000 wells in the Atlantic Rim area but limit development at any one time to no more than 7,600 acres (2.8% of the total project area). Id. at ES-2 to ES-3. After further notice and comment, BLM released its ROD approving the plan on May 26, 2007. ROD, pi Designated the Atlantic Rim Natural Gas Development Project (the "Atlantic Rim Project" or "the project"), the project is expected to produce 1,350 billion cubic feet of natural gas over its 30-50 year, life-span, enough gas to heat 19.3 million homes for one year. Id. at p. 11.

Plaintiff Biodiversity Conservation Alliance, among others, appealed the ROD and FEIS to the Interior Board of Land Appeals ("BLA"). Complaint at ¶ 55. That appeal was denied on September 5, 2007. Id. at ¶ 56.

In the meantime, on June 28, 2007, BLM approved Double Eagle's drilling permits in the Catalina area of ARPA.⁵ Catalina Environmental Assessment/Decision Record ("Catalina EA"), p. 11. Anadarko's applications to drill in the Sun Dog area were approved on August 16, 2007, Sun Dog Environmental Assessment/Decision Record ("Sun Dog EA"), p. 11. Before approving either`proposal, ELM conducted site specific environmental assessments ("EAs")⁶ and concluded that "the [environmental] impacts [were] not expected to be significant", and, therefore, that EISs were not required (a finding of no significant impact ("FONSI")). Development of the well sites and supporting infrastructure began soon after and (according to the defendants), is now largely complete.

Having lost their appeal before the BLA and hoping to halt further development, plaintiffs filed suit in this Court on September 28, 2007, claiming that BLM' failed to comply with NEPA, the FLMPA and the CWA when it approved the Catalina and Sun Dog drilling permits. Plaintiffs subsequently moved for a preliminary injunction to enjoin further development of the 90 sites already approved for drilling and to bar the BLM from considering other APDs currently pending.

II. ANALYSIS

To prevail on a motion for a preliminary injunction, a plaintiff "must demonstrate: (1) a substantial likelihood of success on the merits; (2) that [they] would suffer irreparable injury if the injunction were not granted; (3) that an injunction would not substantially injure, other interested parties; and (4) that the public interest would be furthered by the injunction." Katz v. Georgetown. Univ, 246 F.3d 685, 687-88 (D.C.Cir.2001) (internal quotations omitted). These factors interrelate on a sliding scale and must be balanced against each other. Davenport v. International Brotherhood of Teamsters, AFL-CIO, 166 F.3d 356, 361 (D.C.Cir.1999); Dodd v. Fleming, 223 F.Supp.2d 15, 19 (D.D.C. 2002). However, "[i]f the plaintiff makes a particularly weak showing on one factor ... the other factors may not be enough to compensate." Dodd, 223 F.Supp.2d at 20 (citing Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1507 (D.C.Cir.1995), amended on other grounds, 66 F.3d 1226 (D.C.Cir.1995)). Indeed, courts in our Circuit have held that "if a party makes no showing of irreparable injury, the court may deny the motion for injunctive relief without considering the other factors." Id. at 20 (citing CityFed Financial Corp. v. OTS, 58 F.3d 738, 747 (D.C.Cir.1995)). Additionally, our Circuit mandates that a preliminary injunction cannot be issued unless a movant can "demonstrate at least `some injury'" to warrant the granting of an injunction, and, if he fails to do so, the court need not consider the remaining factors for issuance of a preliminary injunction. CityFed. Fin. Corp., 58 F.3d at 747. For the following reasons, the Court concludes that the plaintiffs have not demonstrated a combination of these factors that would warrant this extraordinary relief.

A. LIKELIHOOD OF SUCCESS ON THE MERITS

Plaintiffs have sued BLM pursuant to the APA claiming that BLM's approval of the 90 drilling permits in the Catalina and Sun Dog areas violated, inter alia, and the CWA⁷ To succeed plaintiffs must demonstrate that the BLM's decision to approve these drilling permits was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In order to reach that conclusion this Court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). At a minimum, the agency must have weighed the relevant data and articulated an explanation that establishes a "rational connection between the facts found and the choice made." Bowen v. Am. Hosp. Ass'n, 476 U.S. 610, 626, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986). In the final analysis, however, an agency action is "entitled to a presumption of regularity." Volpe, 401 U.S. at 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (noting the court cannot substitute its judgment for that of the agency). Plaintiffs have failed to demonstrate a violation of either NEPA or the CWA by the BLM. How so?

1. Plaintiffs Have Not Demonstrated a Violation of NEPA

Here, plaintiffs contend that BLM violated NEPA when it: (1) failed to allow for public participation in the APD approval process; (2) failed to consider a reasonable range of mitigation measures for wildlife threatened by the proposed development; and (3) failed to take a "hard look" at the environmental impact of the proposal. Defendants argue, in essence, that the BLM decision should be upheld because the agency provided for public participation to the extent required by NEPA and considered the impacts of the project and measures to mitigate those impacts. I agree.

a. The BLM Provided Adequate Public Participation

NEPA requires federal agencies to "[m]ake diligent efforts to involve the public in preparing and implementing their NEPA procedures" and to "provide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents so as to inform those persons and agencies who may be interested or affected." 40 C.F.R, § 1506.6(b). Accordingly, federal agencies must post certain information relating to a pending APD (i.e. the operator's name, the well name and its location) for public inspection, 43 C.F.R. § 3162.3-1, and must involve the public "to the extent practicable" in the preparation of the EA. 40 C.F.R. § 1501.4(b). What constitutes "to the extent practicable," however, is not easily discernable. As this Court has held, "determining whether the public was adequately involved is a fact-intensive inquiry made on a case-by-case basis." Biodiversity Conservation Alliance v. Bureau of Land Moat., 404 F.Supp.2d 212, 220 ...