WildEarth Guardians v. Bernhardt

• Decision Date: 13 November 2020
• Docket Number: Civil Action No. 16-1724 (RC)
• Parties: WILDEARTH GUARDIANS, et al., Plaintiffs, v. BERNHARDT, et al., Defendants. Western Energy Alliance, et al., Defendant-Intervenors.
• Court: U.S. District Court — District of Columbia

502 F.Supp.3d 237

WILDEARTH GUARDIANS, et al., Plaintiffs,

v.BERNHARDT, et al., Defendants.

Western Energy Alliance, et al., Defendant-Intervenors.

Civil Action No. 16-1724 (RC)

United States District Court, District of Columbia.

Signed November 13, 2020

Daniel Lloyd Timmons, Samantha Ruscavage-Barz, WildEarth Guardians, Santa Fe, NM, Kyle James Tisdel, Western Environmental Law Center, Taos, NM, Shiloh Silvan Hernandez, Western Environmental Law Center, Helena, MT, for Plaintiffs.

Michelle-Ann Camielle Williams, Michael Sean Sawyer, U.S. Department of Justice, Washington, DC, for Defendants.

Bret A. Sumner, Malinda Morain, Pro Hac Vice, James B. Martin, Pro Hac Vice, Beatty & Wozniak, P.C., Denver, CO, for Defendant-Intervenors Western Energy Alliance, Petroleum Association of Wyoming.

Malinda Morain, Pro Hac Vice, Beatty & Wozniak, P.C., Denver, CO, Steven J. Rosenbaum, Bradley K. Ervin, Covington & Burling LLP, Washington, DC, for Defendant-Intervenor American Petroleum Institute.

MEMORANDUM OPINION

GRANTING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Two non-profit organizations, WildEarth Guardians ("WildEarth") and Physicians for Social Responsibility (together, "Plaintiffs"), assert that the United States Bureau of Land Management ("BLM") failed to sufficiently consider climate change when authorizing oil and gas leasing on federal land in Wyoming, Utah, and Colorado. Those states and two industry organizations with interests in the leases—the Western Energy Alliance and Petroleum Association of Wyoming ("Western Alliance"), and the American Petroleum Institute ("API")—(together with BLM, "Defendants") have intervened as defendants. The Court previously considered motions for summary judgment concerning the leases in Wyoming and held that BLM failed to comply with the National Environmental Policy Act ("NEPA") because it did not sufficiently consider the impacts of climate change before authorizing oil and gas leasing on federal land in the state. See WildEarth Guardians v. Zinke , 368 F. Supp. 3d 41 (D.D.C. 2019). The Court remanded to the agency for further consideration.

BLM has considered the environmental impacts again and produced a supplemental assessment of the potential effects that oil and gas leasing on the federal land in Wyoming may have on climate change. Plaintiffs maintain that BLM's supplemental assessment still fails to take the requisite "hard look" at the environmental impacts of the leasing decisions. The parties have again moved for summary judgment.¹ Having considered the record and relevant law, the Court concludes that BLM's supplemental assessment does not comply with federal law and does not adequately consider the climate change impacts of the oil and gas leasing decisions in accordance with this Court's prior opinion. Accordingly, for the reasons set forth below, the Court grants Plaintiffs’ motion in part, denies Defendants’ motions, and again remands to the agency for further consideration.

II. BACKGROUND

A. Statutory and Regulatory Framework

1. Mineral Leasing Act

Under the Mineral Leasing Act ("MLA"), 30 U.S.C. §§ 181 – 287, the Secretary of the Interior must manage and oversee mineral development on public lands in a manner that "safeguard[s] ... the public welfare." Id. § 187. Subject to this general mandate, the MLA provides for the development of oil and gas resources on federal land. Id. § 226. It requires that "[l]ease sales shall be held for each State where eligible lands are available [for oil and gas development] at least quarterly and more frequently if the Secretary of the Interior determines such sales are necessary." 30 U.S.C. § 226(b)(1)(A). However, while oil and gas leasing is mandatory, the Secretary has discretion to determine where, when, and under what terms and conditions oil and gas development should occur. See id. § 226 ; 43 C.F.R. § 3101.1-2. Accordingly, the federal government may impose a broad range of stipulations on oil and gas leases for federal land, including concerning the timing, pace, and scale of development. Id.

2. Federal Land Policy and Management Act

The MLA's mandate to lease federal land for oil and gas development is carried out by BLM, in strict compliance with the Federal Land Policy and Management Act of 1976 ("FLPMA"). 43 U.S.C. §§ 1701 – 1787. The FLPMA directs BLM to "manage the public lands under principles of multiple use and sustained yield." Id. § 1732(a). Under this mandate, the FLPMA identifies "mineral exploration and production" as one of the "principal or major uses" of public lands. Id. § 1702(l). As described below, the FLPMA establishes a series of steps that BLM must take when leasing federal lands for oil and gas development. Id. § 1712(a); 43 C.F.R. § 1601.0-5(n). These steps are further governed by the National Environmental Policy Act ("NEPA").

3. National Environmental Policy Act

NEPA is the country's basic national charter for the protection of the environment. See 40 C.F.R. § 1500.1(a). Its purposes are:

To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.

42 U.S.C. § 4321. The Council on Environmental Quality ("CEQ") formed pursuant to NEPA promulgates regulations that guide federal agencies’ compliance with the statute. See 40 C.F.R. §§ 1500.1 – 1508.28.

Broadly speaking, NEPA requires that federal agencies consider the environmental consequences of their actions. See 42 U.S.C. §§ 4321 – 4370(h) ; 40 C.F.R. § 1501.1. NEPA directs agency decisionmakers to identify and understand the environmental effects of proposed federal actions and to inform the public of those effects so that it may "play a role in both the decisionmaking process and the implementation of [the agency's] decision." Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). NEPA thus "imposes on agencies certain procedural requirements, but it ‘does not mandate particular consequences.’ " Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers , 440 F. Supp. 3d 1, 8 (D.D.C. 2020) (quoting Citizens Against Burlington, Inc. v. Busey , 938 F.2d 190, 194 (D.C. Cir. 1991) ). While the statute does not mandate particular substantive results, NEPA compliance is not merely a bureaucratic exercise. NEPA is not intended to "generate ... excellent paperwork," but rather to "foster excellent action" through informed decisionmaking. 40 C.F.R. § 1500.1(a).

Under NEPA, an agency must prepare an environmental impact statement ("EIS") for every "major [f]ederal action[ ] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C) ; 40 C.F.R. § 1502.3. An EIS is a detailed study of "the environmental impact of the proposed action" and "any adverse environmental effects which cannot be avoided." 42 U.S.C. § 4332(C)(i)–(ii). An EIS must examine "alternatives to the proposed action," and the action's direct, indirect and cumulative effects.² 42 U.S.C. § 4332(C)(iii) ; 40 C.F.R. §§ 1502.16, 1508.7, 1508.8.³

To determine whether an EIS must be prepared for a proposed action, the agency may prepare an environmental assessment ("EA"). See 40 C.F.R. §§ 1501.4, 1508.9. An EA is "a ‘concise public document’ that ‘[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].’ "

Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 757, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 40 C.F.R. § 1508.9(a) ). An EA, like an EIS, must take a "hard look" at the environmental consequences of the proposed action, Kleppe v. Sierra Club , 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), including its direct, indirect, and cumulative effects, see EarthReports, Inc. v. FERC , 828 F.3d 949, 953 (D.C. Cir. 2016) ; 40 C.F.R. §§ 1508.9, 1508.25(c). If, after preparing the EA, the agency determines that an EIS is not necessary, the agency must issue a finding of no significant impact ("FONSI") summarizing its decision. See 40 C.F.R. §§ 1501.3, 1501.4, 1508.13.

An EA may incorporate by reference previous related analyses, a process known as "tiering." Tiering refers to the

coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements of ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared.

40 C.F.R. § 1508.28. An EA may therefore refer to a more general EIS prepared for a broader federal program. See 43 C.F.R. § 46.140(c). However, "[t]o the extent that any relevant analysis in the broader NEPA document is not sufficiently comprehensive or adequate to support further decisions, the tiered NEPA document must explain this and provide any necessary analysis." Id. § 46.140(b).

B. Oil and Gas Development Framework

Oil and gas development on federal land is typically conducted through a three-stage process governed by the FLPMA, NEPA, and the BLM's Land Use Planning Handbook. These stages are: (1) land use planning; (2) leasing; and (3) drilling.

1. Land Use Planning Stage

The land use planning stage begins when a BLM field office develops a resource management plan for its assigned geographic area (the "planning area"). 43 U.S.C. § 1712(a) ; 43 C.F.R. §§ 1601.0-5(n), 1610.1. The resource management plan determines which portions of the planning area will be open to oil and gas leasing, and under what conditions. 43 U.S.C. § 1712(a)...