WildEarth Guardians v. Bernhardt

• Decision Date: 19 November 2020
• Docket Number: No. 1:19-cv-00505-RB-SCY,1:19-cv-00505-RB-SCY
• Citation: 501 F.Supp.3d 1192
• Parties: WILDEARTH GUARDIANS, Plaintiff, v. David BERNHARDT, et al., Defendants, and American Petroleum Institute, and Western Energy Alliance, Intervenor-Defendants.
• Court: U.S. District Court — District of New Mexico

501 F.Supp.3d 1192

WILDEARTH GUARDIANS, Plaintiff,

v. David BERNHARDT, et al., Defendants,andAmerican Petroleum Institute, and Western Energy Alliance, Intervenor-Defendants.

No. 1:19-cv-00505-RB-SCY

United States District Court, D. New Mexico.

Filed November 19, 2020

Daniel L. Timmons, Samantha M. Ruscavage-Barz, WildEarth Guardians, Santa Fe, NM, for Plaintiff.

Caitlin M. Cipicchio, Department of Justice, ENRD Natural Resources Section, Washington, DC, Cassandra C. Currie, USDOJ US Attorney's Office D.NM, Albuquerque, NM, Clare Marie Boronow, U.S. Department of Justice, Denver, CO, for Defendants.

Alexander K. Obrecht, Baker & Hostetler, LLP, Denver, CO, for Intervenor-Defendant Western Energy Alliance.

Jon J. Indall, Maldegen, Templeman & Indall, LLP, Santa Fe, NM, Bradley Ervin, Pro Hac Vice, Steven J. Rosenbaum, Pro Hac Vice, Covington & Burling, LLP, Washington, DC, for Intervenor American Petroleum Institute.

AMENDED MEMORANDUM OPINION AND ORDER ¹

ROBERT C. BRACK, SENIOR U.S. DISTRICT JUDGE

In the last decade, New Mexico has emerged as one of the largest oil and gas producers in the United States. With production levels at one million barrels per day, the state now generates more oil than OPEC member countries Ecuador, Equatorial Guinea, and Gabon combined.² Such rapid development, however, will naturally raise questions about the collateral environmental impact. Much of this growth in southeastern New Mexico has taken place on federal land, and the Bureau of Land Management (BLM) is responsible for leasing the land to oil and gas companies. BLM's leasing process requires voluminous documentation and must comport with the National Environmental Policy Act (NEPA) and its implementing regulations.

In 2017 and 2018, BLM approved three separate leases for oil and gas development in the Carlsbad and Permian Basin regions of southeastern New Mexico. Plaintiff Wildlife Guardians (Guardians) is a non-profit organization focused on environmental protection and advocacy. Guardians filed suit against Defendant Secretary of the Interior, David Bernhardt, in his capacity as head of BLM. In an earlier Memorandum Opinion and Order, the Court allowed the American Petroleum Institute (API) and Western Energy Alliance (WEA)—both oil and gas industry trade organizations—to join as intervenor-defendants in the suit. (See Doc. 36.) Guardians contends that BLM did not follow the appropriate procedures and perform adequate analyses before issuing the three leases. Specifically, Guardians argues that BLM did not account for the cumulative environmental effects of existing development in the region and failed to frame these three leases within the broader global climate crisis. As a result, Guardians requests that BLM's Leasing Authorizations be vacated.

In considering the parties’ briefs and the extensive administrative record, the Court recalls the final chapter of Rachel Carson's seminal Silent Spring , where she warns that we stand at a fork in the road. One path leads toward environmental intervention; the other toward the status quo. See Rachel Carson, Silent Spring 277 (First Mariner Books ed., 2002). However dire this fork might be, only policymakers are empowered to choose which of these two paths to take. The Court's role is simply to ensure that once that decision is made, the parties stay within the guardrails of the chosen path. Under the Administrative Procedure Act (APA), the Court largely defers to agency decisionmaking, and NEPA does not require that BLM adhere to specific methodologies related to the environment. As such, the Court will deny in part Guardians’ Motion for Vacatur.

I. Background

Guardians is a non-profit organization based in Santa Fe, New Mexico. (Doc. 31 (Am. Compl.) ¶ 14.) The group advocates on behalf of the environment and seeks to "restore the wildlife, wild places, wild rivers, and health of the American West." Mission, Vision, and History , WildEarth Guardians, https://wildearthguardians.org/about-us/mission-vision-history/ (last visited July 28, 2020). The group includes over 231,000 members, some of whom live and work in the Greater Carlsbad region. (Am. Compl. ¶ 14.) Members "regularly use and enjoy the wildlands, wildlife habitat, rivers, streams, and healthy environment" on public land in New Mexico. (Id. ¶ 15.) They "derive recreational, inspirational, scientific, educational, and aesthetic benefit from their activities on lands covered by the leases ...." (Id. )

Defendant David Bernhardt is the United States Secretary of the Interior and oversees BLM's practices. (Id. ¶ 22.) BLM "is responsible for managing public lands and resources in New Mexico, including federal onshore oil and gas resources and the leasing program for those resources." (Id. ¶ 23.)

On February 11, 2020, the Court granted intervention of two additional parties. (See Doc. 36.) API is a trade group for the oil and gas industry. It "represents all segments of America's oil and natural gas industry." Who We Are , Am. Petroleum Inst., https://www.api.org/about (last visited July 10, 2020). API's more than 600 members produce most of the nation's energy. (See Doc. 12 at 2.) API advocates on behalf of the industry before local, state, and federal governments, offers research and analysis, and sets standards for oil and gas development. (See id. )

WEA is a trade group representing 300 companies "engaged in all aspects of environmentally responsible exploration and production ... of oil and natural gas in the West." About the Alliance , W. Energy Alliance, https://www.westernenergyalliance.org/about.html (last visited July 28, 2020). WEA member companies are "independent oil and gas producers, the majority of which are small businesses with an average of fourteen employees." Id. Specifically, WEA represents the " ‘upstream’ segment of the industry." Id. Similar to API, WEA engages with all levels of government on behalf of its clients. See id.

a. BLM's Oil and Gas Leasing Practices

BLM oversees the administration and use of public lands. BLM "manages onshore oil and gas development through a three-phase process." (Am. Compl. ¶ 55.) First, BLM is required to prepare a resource management plan to project "present and future use of public lands and their resources by establishing management priorities, as well as guiding and constraining BLM's implementation-stage management." (Id. ¶ 56 (citing 43 C.F.R. § 1600).) The resource management plan denotes which land "containing federal minerals will be open to leasing for oil and gas, and under what general conditions, and must analyze the landscape-level impacts from predicted future development." (Id. )

Second, BLM identifies land to be offered for sale based on "competitive bidding." See 43 C.F.R. § 3120.1-1. Before January 31, 2018, BLM's leasing process, outlined in Instruction Memorandum No. 2010-117 (IM 2010-117), was lengthier than its current version. (Doc. 37-1 (Administrative Record (AR) at 012103.)) Instruction Memorandum No. 2018-034 (IM 2018-034) replaced and amended the previous guidance. (AR at 012478.) Under IM 2010-117, local offices would draft a schedule to review leasing plots with no specific review timeline (AR at 012103), but IM 2018-034 limited this to six months. (AR at 012478.) IM 2010-117 stated that the public "will " participate in the review process (AR at 012105), but IM 2018-034 only holds that the public "may " participate (AR at 012479). The new guidance cut the public notification period for the lease sale in half from 90 to 45 days. (AR at 012479–80.) Additionally, IM 2018-034 created exceptions that limit the amount of documentation needed to move forward with a lease sale when its impact is minimal. (AR at 012479.) After lease sales are made, individuals and organizations have a protest period to contest the sales. (AR at 012480.) IM 2018-034 shortened this period from 30 days to 10 days. (See id. )

Lastly, oil and gas companies must submit an application for permit to drill (APD) to BLM. See 43 C.F.R. § 3162.3-1(c). BLM states that local field offices are charged with conducting the NEPA review and collecting public comments. (Am. Compl. ¶ 60.) The third phase occurs once BLM issues the lease. (Id. ¶ 66.) The "lessee is required to submit an application for permit to drill ... to BLM prior to drilling." (Id. ¶ 66.) Once it reviews the APD, BLM may then impose reasonable conditions on the lessee prior to approval. See 43 C.F.R. § 3101.1-2.

b. BLM's Challenged Leasing Decisions

Guardians filed suit against BLM for approving certain oil and gas leases across more than 68,232 acres of public land in southeastern New Mexico. (Doc. 1 (Compl.).) Guardians contends that approval of these leases contravenes NEPA, the Federal Land Policy and Management Act (FLPMA), and the APA. (Id. ) Generally, Guardians claims that BLM failed to adequately assess the environmental impact of cumulative oil and gas development. (Am. Compl. ¶ 256–88.)

i. September 2017 Lease Sale

On November 21, 2016, BLM provided a list of 52 potential parcels of land for the September 2017 lease sale. (Id. ¶ 148.) BLM issued a lease sale notice and draft environmental assessment (EA), which initiated the 30-day protest period. (AR at 002561.) An EA is a document analyzing the environmental impact of an agency's action. Guardians filed its administrative protest on July 6, 2017. (AR at 002619.) Two months later, BLM sold 61 of the 62 parcels, for a total of 15,331.91 acres. (AR at 002634.) BLM denied Guardians’ protest and issued the leases. (AR at 002758.) But on September 24, 2019, "BLM's counsel informed Guardians’ counsel that 18 of the 61 issued leases had been subsequently cancelled." (Am. Compl. ¶ 156 (citing Doc. 29-1).) As a result, Guardians "voluntarily dismissed these cancelled parcels from this litigation, subject to BLM's stipulation that the agency will prepare a new NEPA-compliant EA prior to any of the cancelled parcels being reinstated." (Id. )

ii. December 2017 Lease Sale

On ...