Wild v. Haaland
| Docket Number | Civil Action 18-cv-02468-MSK |
| Decision Date | 28 September 2021 |
| Parties | ROCKY MOUNTAIN WILD, NATIONAL PARKS CONSERVATION ASSOCIATION, CENTER FOR BIOLOGICAL DIVERSITY, and WILDEARTH GUARDIANS, Plaintiffs, v. DEB HAALAND,[1] in her official capacity as Secretary of the Interior, and BUREAU OF LAND MANAGEMENT, Defendants, v. AMERICAN PETROLEUM INSTITUTE, INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA, UTAH PETROLEUM ASSOCIATION, and STATE OF UTAH, Intervenor-Defendants. |
| Court | U.S. District Court — District of Colorado |
THIS MATTER comes before the Court for resolution of the Plaintiffs' claims on the merits. The Court has reviewed the Administrative Record (# 45), as well as the parties' briefing (# 55, 59, 61, 62-1 63).
The Bureau of Land Management (“BLM”) oversees federally-owned land in, among other areas, the northwest Colorado counties of Moffat, Routt, Jackson, and Rio Blanco. The lands at issue in this case fall variously within the BLM's White River, Little Snake, and Kremmling Field Offices. In the early 2010s, each of the relevant field offices issued broad Resource Management Plans (“RMPs”), setting forth the BLM's general management priorities for the lands within their jurisdiction. In each case, the RMPs adopted by the field offices contemplated a balance of resource conservation and resource development, including the expectation that certain lands within each field office's jurisdiction would be leased for oil and gas development. Consistent with the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., each of the RMPs was supposed by an Environmental Impact Statement (“EIS”) that extensively analyzed the environmental effects of the BLM's chosen management strategies and potential alternative management approaches. Although the contents of the RMPs and their supporting EISs are relevant in this case the decisions embodied in those documents have already become final and are not subject to review or independent consideration at this time.
Pursuant to the management priorities expressed in the RMPs, in June 2017, the BLM considered whether to auction off oil and gas development leases on roughly 100, 000 acres within each of the field offices' jurisdiction. In making that decision the BLM conducted an Environmental Assessment (“the 2017 EA”) of the potential environmental consequences of leasing, ultimately concluding that leasing was appropriate. As with the RMPs, the 2017 EA is of considerable relevance to this case, but the decisions embodied in that document are final and not subject to independent review now.
In June 2018, the BLM proposed auctioning off another batch of oil and gas leases on the lands in question, amounting to roughly 58, 000 additional acres. This time, instead of conducting another EA, the BLM decided that the EA developed for the 2017 leases, in conjunction with the EIS prepared for the 2015 RMPs, provided a sufficient assessment of environmental issues arising from the decision to lease, and that no substantial additional environmental analysis was not necessary. The BLM issued a “Determination of NEPA Adequacy” (“the 2018 Determination”), adopting the analysis contained in the earlier NEPA documents without substantial modification or comment and approving the decision to auction off the leases. The June 2018 lease auction proceeded and most of the parcels offered were leased.
The Plaintiffs are environmental advocacy organizations that oppose the BLM's 2018 decision to grant oil and gas leases on the lands in question. The Plaintiffs point out that oil and gas development activities result in the release of air pollutants that combine to form ozone and particulates, degrading the air quality in affected areas and that substantial portions of the lands at issue here already suffer from harmful levels of ozone and effects of particulate matter associated with oil and gas development. The Plaintiffs commenced this action pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., contending that the BLM's issuance of the 2018 Determination was arbitrary and capricious and contrary to law. The Plaintiffs allege that in adopting the Determination, the BLM violated NEPA, due to the BLM's failure to adequately consider environmental effects from that decision, failure to consider reasonable alternatives to leasing, and failed to prevent the unnecessary degradation of public lands.
As framed by the parties' briefing, the Plaintiffs assert the following arguments for resolution here: (i) by relying on the 2017 EA, the BLM failed to consider more accurate air monitoring data and modeling that became available after the 2017 EA was issued, resulting in the BLM ignoring evidence of adverse air quality impacts that will result from additional leasing in 2018; (ii) the BLM failed to consider the effects that leasing in 2018 would have on lands that the BLM had previously identified as having wilderness characteristics; and (iii) the BLM failed to consider a “no action” alternative in which no additional leasing would be offered in 2018.
1. APA
The APA provides the mechanism by which courts are authorized to review final agency actions. Under the APA, the Court may set aside an agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). A decision is arbitrary or capricious if the agency “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency” or where the action “is so implausible that it could not be ascribed to a different in view or the product of agency expertise.” High Country Conservation Advocates v. U.S. Forest Serv., 951 F.3d 1217, 1222 (10th Cir. 2020). The Court affords the agency's decisionmaking a presumption of validity and the burden is on the party challenging it to demonstrate that the decision is arbitrary and capricious. Id.
2. NEPA
NEPA requires federal agencies to “pause before committing resources to a project and consider the likely environmental impacts of the preferred course of action as well as reasonable alternatives.” High Country Conservation Advocates v. U.S. Forest Service, 951 F.3d 1217, 1223 (10th Cir. 2020). Before making a decision that could have environmental consequences, the agency must first conduct an EA to determine whether the action is likely to “significantly affect the quality of the human environment, ” as well as consider any alternatives to the proposed action. 42 U.S.C. § 4332(2)(C). If, after conducting the EA, the agency concludes that the project will not have significant environmental effects, it may issue a “finding of no significant impact, ” ending the environmental analysis. 40 C.F.R. § 1501.6. Otherwise, the agency must proceed to conduct an extensive examination of potential environmental effects of each possible alternative, producing a comprehensive EIS.
NEPA describes only procedural requirements; so long as those requirements are followed, the Court does not concern itself with the wisdom of the agency's decisionmaking. New Mexico ex. rel. Richardson v. Bureau of Land Management, 565 F.3d 683, 704 (10th Cir. 2009). As the Supreme Court has stated, NEPA “prohibits uninformed - rather than unwise -agency action.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989). The touchstone of the Court's inquiry is whether the agency “took a hard look at information relevant to the decision, ” that is, whether the agency “did a careful job at fact gathering and otherwise supporting its position.” Richardson, , 565 F.3d at 704.
The Plaintiffs first argue that, by adopting the 2017 EA instead of conducting a new EA for the 2018 lease auction, the BLM failed to consider new data and more reliable air pollution monitoring that had become available in the interim.
Before it addresses the 2017 EA's findings relating to air pollution, and ozone in particular, the Court pauses to identify two pertinent issues. First, the BLM's environmental decisionmaking is based, in part, on complex simulated air pollution models called CARMMS. In the 2017 EA the BLM explained that CARMMS “assesse[s] statewide impacts of projected oil and gas development [ ] out to year 2021 for three development scenarios (low, medium, and high).” It is undisputed that the 2017 EA used calculations from CARMMS version 1.5, and that in August 2017, the BLM updated CARMMS to version 2.0. CARMMS 2.0 is more effective in modeling wintertime ozone formation and caried other improvements (including extending projections out to 2025 instead of 2021). In addition, CARMMS 2.0 employed real-world data from 18 additional air monitors, including one in Rangely, Colorado, whereas CARMMS 1.5 used regional estimates to predict data in that area. The Plaintiffs' briefing originally contended that the BLM's failure to consider CARMMS 2.0 modeling as part of the 2018 leasing decision, and its reliance instead on the 2017 EA's CARMMS 1.5 modeling, constituted a NEPA violation. The BLM argued in its response that its CARMMS 1.5 modeling produced “functionally equivalent data” to that that CARMMS 2.0 would have generated. In their reply brief, the Plaintiffs do not appear to substantially dispute that the two models produced roughly equivalent outcomes. Instead, the Plaintiffs argue that “[e]ven assuming BLM had ‘functionally equivalent' data to CARMMS 2.0 when it prepared the 2017 EA, [ ] it disregarded that evidence in the 2017...
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