Nov 182011

The D.C. Circuit Court of Appeals today affirmed a lower court decision finding that BLM complied with NEPA and FLPMA when it prepared an Environmental Impact Statement for the Pinedale Anticline natural gas project in Wyoming (Theodore Roosevelt Conservation Partnership v. Salazar, 10-5386, 11/18/2011).

Sage-grouse on the Pinedale Anticline (pic from operators' web page)

Circuit Judges David B. Sentelle (author), Judith W. Rogers and Thomas B. Griffith determined that BLM reasonably defined its objective, examined an adequate range of alternatives, and rationally balanced competing interests when it approved an increase in wells and year-round drilling in certain areas, instead of seasonal restrictions to protect wildlife.

The nearly 200,000 acres of the PAPA (the Pinedale Anticline Project Area) include the third-largest natural gas field in the United States. But it also includes habitat for Greater sage-grouse, a candidate species under the Endangered Species Act, as well as for mule deer and pronghorn. TRCP contended that BLM should not have abandoned the seasonal restrictions and should have provided larger buffer zones to mitigate for the effects on sage-grouse.

The court said, however, that "even where TRCP offers evidence that a particular mitigation measure likely will be ineffective, it fails to provide any other solution that still would permit significant recovery of natural gas—a use [the Federal Land Policy Management Act (FLPMA)] requires the Bureau to balance with conservation. Specifically, TRCP argues that there is no evidence that the Bureau’s one-quarter-mile buffer for greater sage-grouse leks will prevent the sage-grouses from abandoning their leks or attending in smaller numbers. The Bureau concedes that one-quarter-mile buffers 'will not avoid adverse consequences to the greater sage grouse,' but the record shows that TRCP’s recommended two-mile buffer would prevent natural gas extraction in nearly the entire PAPA. Again, FLPMA prohibits only unnecessary or undue degradation, not all degradation."

As to the goals of the project, "Nothing in the record demonstrates that preventing all declines in wildlife populations was ever the Bureau’s management objective," the opinion says. "TRCP calls the Bureau’s stated objective 'unreasonably narrow' because it focuses only on the operators’ need to increase production, but TRCP misreads the Bureau’s explicit statement of purpose and need," the court said. " The Bureau does not state a purpose to enact or adopt the operators’ proposal to some degree; rather, its purpose is to 'act upon' that proposal.  The former language might be unreasonably narrow to the extent it presupposes approval of the proposal, thereby limiting the alternatives to be analyzed to only those that would enact the proposal."

BLM also adequately examined the impact of the proposed drilling on hunting and wildlife populations the court said. Here's an excerpt:

"The Bureau also engages in detailed analysis of the proposed development’s effects on the wildlife the TRCP members hunt, including mule deer and greater sage-grouse.  This analysis concludes that surface disturbance and loss of habitat function are likely to adversely impact the populations of several game species.  Given the direct and intuitive link between a decrease in game species and a corresponding decrease in opportunities to hunt those species, such an analysis reasonably supports the Bureau’s conclusion that hunting opportunities are likely to decrease.  Taken as a whole, the Bureau’s analysis of the proposed development’s impact on game species and hunting opportunities is 'tolerably terse' rather than 'intolerably mute.'  See City of Alexandria, 198 F.3d at 870-71. We conclude that the Bureau’s discussion satisfies its hard-look mandate."

Nor did BLM fail to look closely at whether the drilling would cause "unnecessary or undue degradation," one of the standards in FLPMA.

Opined the court: "[B]y following FLPMA’s multiple-use and sustained-yield mandates, the Bureau will often, if not always, fulfill FLPMA’s requirement that it prevent environmental degradation because the former principles already require the Bureau to balance potentially degrading uses—e.g., mineral extraction, grazing, or timber harvesting—with conservation of the natural environment.  If the Bureau appropriately balances those uses and follows principles of sustained yield, then generally it will have taken the steps necessary to prevent unnecessary or undue degradation."

"In adopting the 2008 Record of Decision, the Bureau recognized the primary competing uses of the PAPA: the recovery of natural gas from the third-largest natural gas field in the continental United States and recreational use of the PAPA’s other natural resources. Pursuant to its multiple-use mandate, the Bureau decided to allow additional natural gas extraction in the PAPA while implementing significant measures to mitigate the degradation the Bureau conceded would be necessary to allow significant recovery. The record supports the Bureau’s determination that these mitigation measures would be adequate to prevent degradation that is unnecessary to, or undue in proportion to, the natural gas development that the 2008 Record of Decision permits."

The case was argued before the appeals court panel Sept. 20, nearly a year after U.S. District Judge Richard J. Leon issued his decision below.

Background (from the decision)

The PAPA encompasses just over 198,000 acres of federal, state, and private land in western Wyoming.  It contains what is now considered the third-largest natural gas field in the United States (Pinedale Field).  The PAPA also provides other natural resources, including recreational opportunities and wildlife habitat.  In particular, the PAPA supports part of the “winter range” for mule deer and pronghorn, which serves as survival habitat during harsh winter conditions.  The PAPA also provides year-round habitat for part of a significant population of the greater sage-grouse. This habitat includes mating-display grounds called leks as well as brood-rearing areas and wintering areas.  Mule deer, pronghorn, and sage-grouse are game species of particular interest to this region’s hunters.

The Bureau manages the roughly 80 percent of the federally owned land and resources in the PAPA.  The government has leased most of its mineral resources, including most of the Pinedale Field, to oil and gas companies (the Operators). Energy development in the PAPA remained negligible until the 1990s, when new drilling technology allowed for commercially practicable recovery of the PAPA’s natural gas.

More info

District court citation: Theodore Roosevelt Conservation P’ship v. Salazar, 744 F. Supp. 2d 151 (D.D.C. 2010)

Theodore Roosevelt Conservation Partnership page

TRCP FAQ on litigation

Complaint in district court (10-1047, D.D.C.)

TRCP appeals district court decision (press release, 12/15/2010)

Pinedale Anticline Project Office (BLM page) and SEIS page

Pronghorn, sage grouse still above matrix "triggers" (Joy Ufford, Sublette (Wyo.) Examiner, 11/7/11)