Theodore Roosevelt Conserv. Partnership v. Salazar
| Decision Date | 31 March 2009 |
| Docket Number | Civ. Action No. 07-1709 (RJL).,Civ. Action No. 07-01486 (RJL). |
| Parties | THEODORE ROOSEVELT CONSERVATION PARTNERSHIP, Plaintiff, v. Ken SALAZAR, United States Bureau of Land Management, Defendants v. Anadarko Petroleum Corporation, Warren Resources, Inc., Double Eagle Petroleum, Co., and State of Wyoming, Intervenor Defendants. and Natural Resources Defense Council, Biodiversity Conservation Alliance, Wyoming Outdoor Council, Western Watersheds Project, Wyoming Wilderness Association, Plaintiffs, v. Ken Salazar, U.S. Department of the Interior, U.S. Bureau of Land Management, Defendants. v. State of Wyoming, Anadarko Petroleum Corporation, Warren Resources, Inc., Double Eagle Petroleum Co., Intervenor Defendants. |
| Court | U.S. District Court — District of Columbia |
Donald G. Blankenau, Thomas R. Wilmoth, Husch Blackwell Sanders LLP, Lincoln, NE, for Plaintiffs.
Lori Caramanian, U.S. Department of Justice, Denver, CO, for Defendants.
Michael B. Wigmore, Bingham McCutchen LLP, Washington, DC, Robert Charles Mathes, Bjork Lindley Little, PC, Denver, CO, David James Willms, Jay A. Jerde, John Scudder Burbridge, Wyoming Attorney Generals Office, Cheyenne, WY, for Intervenor Defendants.
These two cases involve challenges to the government's decision to grant drilling permits in the Atlantic Rim area of Wyoming. The Theodore Roosevelt Conservation Partnership (TRCP) brought one of these actions in 2007 against the Secretary of the Interior,1 the Department of the Interior, and the Bureau of Land Management (BLM), challenging the granting of drilling permits as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and thus in violation of the Federal Land Policy Management Act (FLPMA), 43 U.S.C. §§ 1702 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. Five additional plaintiffs—Natural Resources Defense Council, Biodiversity Conservation Alliance, Wyoming Outdoor Council, Western Watershed Project, and Wyoming Wilderness Association (NRDC plaintiffs)—brought a separate lawsuit later in 2007, alleging that the government violated NEPA when it granted these drilling permits.2 The three operator companies who received the permits—Anadarko Petroleum Corporation, Warren Resources, Inc., and Double Eagle Petroleum Co.—and the State of Wyoming intervened in both cases in support of the BLM decision. Each of the parties has filed a summary judgment motion. After considering the parties' submissions, caselaw, and the record, the Court DENIES the plaintiffs' summary judgment motions and GRANTS the summary judgment motions filed by the federal defendants, the operator-intervenors, and the State of Wyoming.
BLM issued drilling permits after approving a Record of Decision (ROD) for the Atlantic Rim Natural Gas Field Development Project. This project manages more than 270,000 acres of publicly and privately owned land in south-central Wyoming, which is the home to many species of big game and a dense population of sage grouse. This area is also rich in oil and natural gas deposits and has been under development since the 1950s.4 Indeed, the land now provides more than 5% of Wyoming's total gas production. NRDC v. Kempthorne, 525 F.Supp.2d 115, 117 (D.D.C.2007) ().
BLM's evaluation and approval of the Atlantic Rim project was the culmination of seven years of study. In May 2001, oil and gas companies, which ultimately included Anadarko Petroleum, Warren Resources, and Double Eagle Petroleum, notified BLM that they wanted to explore and potentially develop more than 3,880 natural gas wells in the Atlantic Rim area. Id. BLM released a draft environmental impact statement in December 2005,5 in which it analyzed in detail the environmental effects of three alternative proposals. (See Draft Environmental Impact Statement for the Atlantic Rim Natural Gas Field Development Project, Carbon County, Wyoming (DEIS), Dec. 2005 (AR 1436).) Under Alternative A, existing wells would have continued to operate but additional drilling would be rejected. (FEIS at ES-2 (AR 2089).) Under Alternative B, BLM would have accepted the companies' proposals for additional drilling, but the project would have been developed in three phases over the course of twenty years, with the first developed over a six-to-seven-year period. (DEIS at 2-2 (AR 1489); DEIS at 5-3 (AR 1445).) Under Alternative C, BLM would have accepted the companies' proposals for additional drilling, but would have employed special protection measures to limit surface disturbance, such as reducing road density and allowing fewer areas of disturbance. (FEIS at ES-2 (AR 2089).)
After the initial comment period, BLM released a final environmental impact statement in December 2006, in which BLM selected a fourth alternative, Alternative D. Under this alternative, approximately 2,000 new wells would be drilled, but the amount of surface disturbance at any given time would be limited to less than 7,600 acres, which is 2.8% of the total project area. (See FEIS at ES-1 to ES-3 (AR 2088-90).) Indeed, Alternative D's "objective ... is to minimize surface disturbance while optimizing natural gas recovery." (Id. at 2-7 (AR 2155).) The final impact statement deferred evaluation of environmental impacts for site-specific drilling projects until the specific proposals were received. NRDC, 525 F.Supp.2d at 117 n. 4.
BLM received comments on the final environmental impact statement and responded to them in the ROD, which was published in March 2007.6 (Record of Decision Environmental Impact Statement for the Atlantic Rim Natural Gas Field Development Project (ROD), Carbon County, Wyoming, Mar. 2007 (AR 4791).) According to the ROD, the final project is expected to produce 1,350 billion cubic feet of natural gas over its 30-50 year life span, which is enough gas to heat 19.3 million homes for one year. (ROD at 11 (AR 4806).) Indeed, BLM itself acknowledged the development it was authorizing would "adversely impact certain resource values and limit opportunities for other uses in the short-term," but noted "the long-term goal is to return these lands to a condition approximate to that which existed before developments." (Id. at 4 (AR 4799).)
In the summer of 2007, BLM approved Double Eagle's drilling permits in the Catalina area of the ARPA and Anadarko's applications to drill in the Sun Dog area of the ARPA. See NRDC, 525 F.Supp.2d at 118; (Environmental Assessment, Catalina A & B PODs, June 18, 2007 (AR 73492); Environmental Assessment, Sun Dog A & B PODs, Aug. 13, 2007 (AR 74063).) BLM conducted site-specific environmental assessments (EAs) and concluded that "the [environmental] impacts [were] not expected to be significant." NRDC, 525 F.Supp.2d at 119. Accordingly, BLM did not prepare environmental impact statements for the Catalina area or Sun Dog projects. Id.
All of the parties have filed motions for summary judgment, which are especially appropriate in cases such as this because the Court's review is based entirely on the administrative record. See Mineral Policy Ctr. v. Norton, 292 F.Supp.2d 30, 36 (D.D.C.2003). Of course, the Court will only grant summary judgment when there are "no genuine issues of material fact" and the party is entitled to judgment as a matter of law. Id. Because plaintiffs are challenging action by an administrative agency, the plaintiffs have the burden of establishing that the agency acted arbitrarily, capriciously, or otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A); Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1031 (D.C.Cir.2008). For the following reasons, the Court concludes that BLM's decisions were not arbitrary, capricious, or otherwise unlawful and thus did not violate either NEPA or FLPMA.
NEPA is the "basic national charter" for environmental protection. 40 C.F.R. § 1500.1(a). It requires federal agencies to analyze the environmental impact of their proposed actions by preparing environmental impact statements for actions "significantly" affecting the environment. 42 U.S.C. § 4332(c); see also Biodiversity Conservation Alliance v. BLM, 404 F.Supp.2d 212, 216 (D.D.C. 2005). NEPA does not mandate particular outcomes, but requires only that agencies take "a hard look" at the environmental consequences of their proposed courses of action, Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), and "consider every significant aspect of the environmental impact of a proposed action," Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (quotation omitted). In determining whether BLM violated NEPA, "the Court must `consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment.'" Biodiversity Conservation Alliance, 404 F.Supp.2d at 216 (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)). The Court must not substitute its judgment for that of the agency's, as "NEPA merely prohibits uninformed—rather than unwise—agency action." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989).
NEPA requires agencies to first conduct an "environmental assessment" to determine whether a proposed action will have a significant effect on the environment. 40 C.F.R. §§ 1508.9(a), 1508.13; Winter v. NRDC, ___ U.S. ___, 129 S.Ct. 365, 372, 172 L.Ed.2d 249 (2008). If, after conducting an environmental...
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