Western Org. of Resource v. Bureau of Land Mgt.

• Decision Date: 26 November 2008
• Docket Number: Nos. 04-CV-18-J, 04-CV-19-J.,s. 04-CV-18-J, 04-CV-19-J.
• Citation: 591 F.Supp.2d 1206
• Parties: WESTERN ORGANIZATION OF RESOURCE COUNCILS, Jeanie Alderson, Wally McRae, Wyoming Outdoor Council, Natural Resources Defense Council, Powder River Basin Resource Council, Plaintiffs, v. BUREAU OF LAND MANAGEMENT, Director, in her official capacity also known as Kathleen Clarke, Bureau of Land Management, United States Department of Interior, Secretary, in her official capacity, also known as Gale A. Norton, United States Department of Interior, Defendants. v. Lance Oil & Gas Company, Inc., Western Gas Resources, Inc., Fidelity Exploration & Production Co., Pennaco Energy, Inc., Marathon Oil Company, State of Wyoming, Bill Barrett Corp., Devon Energy Corp., Williams Production RMT Co., Intervenors. American Lands Alliance, Biodiversity Conservation Alliance, George Wuerthner, Plaintiffs, v. Bureau of Land Management, an agency within the Department of Interior, United States Department of Interior, Secretary, in her official capacity, also known as Gale A. Norton, Defendants. v. Lance Oil & Gas Co., Inc., Western Gas Resources, Inc., Fidelity Exploration & Production Co., Williams Production RMT Co., Pennaco Energy, Inc., Marathon Oil Co., State of Wyoming, Devon Energy Corp., Anadarko Petroleum Corp., Bill Barrett Corp., Intervenors.
• Court: U.S. District Court — District of Wyoming

Page 1206

591 F.Supp.2d 1206

WESTERN ORGANIZATION OF RESOURCE COUNCILS, Jeanie Alderson, Wally McRae, Wyoming Outdoor Council, Natural Resources Defense Council, Powder River Basin Resource Council, Plaintiffs, v. BUREAU OF LAND MANAGEMENT, Director, in her official capacity also known as Kathleen Clarke, Bureau of Land Management, United States Department of Interior, Secretary, in her official capacity, also known as Gale A. Norton, United States Department of Interior, Defendants. v. Lance Oil & Gas Company, Inc., Western Gas Resources, Inc., Fidelity Exploration & Production Co., Pennaco Energy, Inc., Marathon Oil Company, State of Wyoming, Bill Barrett Corp., Devon Energy Corp., Williams Production RMT Co., Intervenors.

American Lands Alliance, Biodiversity Conservation Alliance, George Wuerthner, Plaintiffs, v. Bureau of Land Management, an agency within the Department of Interior, United States Department of Interior, Secretary, in her official capacity, also known as Gale A. Norton, Defendants. v. Lance Oil & Gas Co., Inc., Western Gas Resources, Inc., Fidelity Exploration & Production Co., Williams Production RMT Co., Pennaco Energy, Inc., Marathon Oil Co., State of Wyoming, Devon Energy Corp., Anadarko Petroleum Corp., Bill Barrett Corp., Intervenors.

Nos. 04-CV-18-J, 04-CV-19-J.

United States District Court, D. Wyoming.

November 26, 2008.

COPYRIGHT MATERIAL OMITTED

Johanna H. Wald, Natural Resources Defense Council, San Francisco, CA, Keith G. Bauerle, EarthJustice Legal Defense Fund, Denver, CO, Steve Jones, Wyoming Outdoor Council, Wyoming Outdoor Council, Lander, WY, Thomas Francis Darin, Jackson, WY, for Plaintiffs.

Carol A. Statkus, U.S. Attorney's Office, Cheyenne, WY, Lori L. Caramanian, Department of Justice, Environment and Natural Resources Division, Denver, CO, for Defendants.

Stephanie A. Reedy, Arnold & Porter, Carolyn L. McIntosh, Patton Boggs, David E. Brody, Denver, CO, Dana L. Hupp, Jon Metropoulos, Gough Shanahan Johnson & Waterman, Helena, MT, Keith Burron, Associated Legal Group, Cheyenne, WY, Amy B. Chasanov, John Charles Martin, Mary Beth Bosco, Patton Boggs, Washington, DC, Edward A. Strenkowski, Susan Brownlee Miller, Marathon Oil Company, Houston, TX, Thomas A. Nicholas, III, Hirst & Applegate, Eric Kaimond Nelson, Jay A. Jerde, Michael R. O'Donnell, Wyoming Attorney General's Office, Cheyenne, WY, for Intervenors/Defendants.

Charles A. Breer, Charles L. Kaiser, Davis Graham & Stubbs, Thomas E. Black, Jr., Williams Production RMT Company, Legal Department, Denver, CO, John W. Ross, Brown Law Firm, Billings, MT, Thomas A. Nicholas, III, Hirst & Applegate, Cheyenne, WY, for Intervenors.

ORDER ON ADMINISTRATIVE APPEALS

ALAN B. JOHNSON, District Judge.

The above captioned matter was heard and argued following submission of written appeal briefs in the above captioned cases. The Court has considered the parties' written submissions, the arguments of counsel during the hearing, the applicable law, and FINDS and ORDERS as follows:

Background and Contentions

These cases present challenges to the decision of the Bureau of Land Management ("BLM") allowing the development of up to 51,000 coalbed methane wells in the Powder River Basin, which extends from northeast Wyoming into Montana. The project would also authorize construction of 17,000 miles of road and 26,000 miles of pipeline; it would permit up to 1.0 trillion gallons of water to be pumped from groundwater aquifers onto the surface; allow for excavation of 3,100 unlined reservoirs of waste pits to hold some of the produced water and authorize the discharge of the remainder of the water, untreated, onto the ground. Plaintiffs contend that almost 200,000 acres of surface resources, including soils and vegetation, will be affected.

Mineral and energy-related activities have been significant in the Powder River Basin since the 1960s. Ranching and agricultural production also are among the present uses of land in the Powder River Basin. Many of the federal lands in the basin are split estate lands, where surface is owned privately and mineral estate is owned by the federal government. Five major river systems, three of which (the Powder, Little Powder and Tongue) originate in Wyoming and flow north into the Powder River Basin in Montana. Plaintiffs assert these basins will receive discharges of hundreds of billions of coalbed methane ("CBM") produced water over the life of the project.

Plaintiffs note that the release of CBM from coal requires removal of the water, or dewatering, which is a process involving removal of large amounts of water. Plaintiffs suggest that this process involves on average 14,000 gallons of water per day per well. FEIS at 2-25; A.R. CD6: 116, Table 2-8).¹ The proposed project in the Powder River Basin involves drilling 39,367 new wells over the next 10 years; as a result more than 3 million acre-feet of water are expected to be pumped from the ground. The BLM has acknowledged "water is the number one issue in the EIS." A.R. at CD8:622-623 (August 2001 BLM Briefing for Secretary).

There are subsurface water concerns. Groundwater provides water for domestic purposes and ranching and agricultural operations in the area. CBM can impact groundwater, including complete loss of water wells for domestic use and for irrigation. While many underground aquifers will likely be recharged or replenished through infiltration over time, substantial recharge may take more than 100 years.

CBM-produced water is high in salinity and sodicity (ratio of sodium to magnesium and calcium) ("SAR" or "sodium absorption ratio"). See e.g., A.R. CD8: 614, Attachment to October letter from Montana DEQ to Wyoming DEQ. This type of water can negatively affect soils and plant life and may often be unsuitable for irrigation or surface disposal. Disposal is a key issue. A.R. at CD8:622-623 (August 2001 Briefing for Secretary). BLM proposed to dispose of water by (1) putting it in infiltration pits, impoundments or reservoirs or (2) directly discharging onto the ground or into ephemeral and intermittent drainages. Water in pits that does not evaporate will soak back gradually into underground aquifers or spill out onto the ground or streams. CBM water through direct discharge onto the ground may be sprayed onto the ground or dumped into ephemeral drainages. This water is typically not treated for salinity or sodicity before discharge. In addition, the movement of water on the surface may cause erosion. Id.

Plaintiffs assert disposal of CBM water high in salinity and sodicity threatens soils and vegetation and the future of agriculture in the region. Saline water may irreversibly affect or kill native vegetation which provides forage; salt and water tolerant plants that replace native plants are unpalatable and less productive for livestock. High SAR in CBM water can destroy soil structure by reducing infiltration rates and soil permeability. Crusting or sealing of soils can result, which can increase runoff. Pits constructed by CBM producers will concentrate salts and other contaminants in the six acre ponds, and some water from the pits may discharge into ephemeral channels or alluvial aquifers. Later, they may dry and become salty, barren patches subject to erosion and which can also further spread salt.

Air quality impacts with CBM are also alleged to be significant, including air pollution from general particulate matter, nitrogen oxides from sources including construction of well pads, roads, pipelines, infiltration pits; dewatering coal seams with pumps electrified by gas or diesel fired generators; and use of gas or diesel compressors to transport gas from the surface. See e.g., A.R. at CD7;680-771 (analysis, comments and reports addressing air quality issues). Plaintiffs contend all are sources of air pollution impacting health of residents and causing visibility problems in wilderness areas and national parks.

Plaintiffs complain that the NEPA process has been insufficient in this case. They assert that the process was completed under political pressure to complete the project speedily and hasten development in accordance with the administration's national energy plan. The BLM decided critically important questions, such as whether to prepare a single EIS for the entire basin or two, and whether to include alternatives or a supplemental EIS, on the basis of whether delay would be caused.

Plaintiffs participated in the scoping process, then arguing that a single EIS on CBM development in the entire basin should be prepared, rather than two (one for Montana; one for Wyoming). Plaintiffs requested BLM to analyze a full range of alternatives to the proposed action, including different methods of handling CBM-produced water, such as reinjection and/or desalinization of water, different measures to reduce impacts to landowners, and an analysis of all the impacts on water supplies both in Wyoming and Montana.

After participating in the process and attempting from the time of the Draft EIS ("DEIS") to the Final EIS ("FEIS") to reach a compromise, the BLM announced the Wyoming FEIS January 17, 2003. Plaintiffs assert the FEIS referenced new technical reports regarding surface water impacts, groundwater modeling and air impacts for the entire Powder River Basin, which had not been provided with or included in the DEIS. New information as to water was provided, including a 230 page surface water quality analysis technical report, with new and key assumptions about the two primary water handing options and how much water would enter the surface waters and amount that would recharge depleted aquifers.

With all this information, plaintiffs complain that the agency did not make substantial changes in the proposed action or the alternatives considered. Plaintiffs assert that the FEIS still proposed development of the same exact number of CBM wells the companies wanted, with the same water handling methods, infrastructure and...