United States District Court, D. Colorado
ORDER AFFIRMING AGENCY DECISION
WILLIAM J. MARTINEZ, UNITED STATES DISTRICT JUDGE
WildEarth Guardians (“WildEarth”) sues the Bureau
of Land Management (“BLM”), under the
Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 701 et seq. WildEarth claims that BLM
unlawfully determined that it had no duty to perform a
“conformity” analysis under the Clean Air Act
(“CAA”), 42 U.S.C. §§ 7401 et
seq., when it auctioned certain oil and gas leases in
May and November 2015.
arguments presented, WildEarth has not carried its burden to
show that BLM acted unlawfully. Accordingly, BLM's
decisions as to the two lease sales will be affirmed.
STANDARD OF REVIEW
empowers a reviewing court to set aside agency action if it
is, inter alia, “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). Generally, an agency
decision will be considered arbitrary and capricious
if the agency has 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 is so implausible that it could not be ascribed to
a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). A reviewing court
should engage in a “thorough, probing, in-depth review,
” Wyoming v. United States, 279 F.3d 1214,
1238 (10th Cir. 2002) (citation omitted), with its review of
the merits “generally limited to . . . the
administrative record, ” Custer Cnty. Action Assoc.
v. Garvey, 256 F.3d 1024, 1027 n.1 (10th Cir. 2001).
“[t]he scope of review under the ‘arbitrary and
capricious' standard is narrow and a court is not to
substitute its judgment for that of the agency.”
Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43;
see also Davis v. Mineta, 302 F.3d 1104, 1111 (10th
Cir. 2002) (stating that the court's review is
“highly deferential”). The Court confines its
review “to ascertaining whether the agency examined the
relevant data and articulated a satisfactory explanation for
its decision, including a rational connection between the
facts found and the decision made.” Colo. Wild v.
U.S. Forest Serv., 435 F.3d 1204, 1213 (10th Cir. 2006).
“An agency's action is entitled to a presumption of
validity, and the burden is upon the petitioner to establish
the action is arbitrary or capricious.” Sorenson
Commc'ns, Inc. v. FCC, 567 F.3d 1215, 1221 (10th
STATUTORY & REGULATORY BACKGROUND
NAAQS, SIPs, and Ozone
of the CAA, Congress charged the Environmental Protection
Agency (“EPA”) with setting National Ambient Air
Quality Standards (“NAAQS”) for certain
pollutants. 42 U.S.C. § 7409. NAAQS are specifically
described as “ambient air quality standards the
attainment and maintenance of which in the judgment of the
[EPA], based on such criteria and allowing an adequate margin
of safety, are requisite to protect the public health.”
Id. § 7409(b)(1).
NAAQS is promulgated or revised, each state must adopt and
submit to the EPA for approval a State Implementation Plan
(“SIP”) that “provides for implementation,
maintenance, and enforcement of [the NAAQS] in each air
quality control region (or portion thereof) within such
State.” Id. § 7410(a)(1). Each SIP must
“include enforceable emission limitations and other
control measures, means, or techniques . . ., as well as
schedules and timetables for compliance, as may be necessary
or appropriate to meet the [CAA's] applicable
requirements.” Id. § 7410(a)(2)(A).
has promulgated NAAQS for ozone, among other pollutants. The
current ozone NAAQS is “0.075 parts per million (ppm),
daily maximum 8-hour average.” 40 C.F.R. §
50.15(a). Whether a region meets the standard is
judged by asking whether “the 3-year average of the
annual fourth-highest daily maximum 8-hour average [ozone]
concentration is less than or equal to 0.075 ppm.”
Id. § 50.15(b). If the answer is yes, the
region is deemed in “attainment” with the ozone
NAAQS. See 42 U.S.C. § 7407(d)(1)(A)(ii). If
the answer is no, the region is in
“nonattainment” status. Id. §
substantial portion of Colorado's Front Range, along with
portions of the eastern plains in Adams, Arapahoe, and Weld
counties, is in nonattainment status for ozone
(“Nonattainment Area”). See 40 C.F.R.
The General Conformity Rule
federal government may not approve or support any activity
that does not “conform” to an approved SIP.
Id. § 7506(c)(1).
to [a SIP] means-
(A) conformity to [a SIP's] purpose of eliminating or
reducing the severity and number of violations of the
national ambient air quality standards and achieving
expeditious attainment of such standards; and
(B) that such activities will not-
(i) cause or contribute to any new violation of any standard
in any area;
(ii) increase the frequency or severity of any existing
violation of any standard in any area; or
(iii) delay timely attainment of any standard or any required
interim emission reductions or other milestones in any area.
has promulgated regulations, collectively known as the
“General Conformity Rule, ” that guide federal
agencies' application of this requirement. See
40 C.F.R. §§ 51.851, 93.150-93.165. If a federal
action is (a) unrelated to a transportation project and (b)
may affect an ozone nonattainment area, the General
Conformity Rule requires an agency to perform an ozone
conformity analysis if “the total of direct and
indirect emissions of [ozone] or [an ozone] precursor . . .
caused by a Federal action would equal or exceed, ” as
applicable here, 100 tons per year (tpy). 40 C.F.R. §
93.153(b)(1). EPA considers 100 tpy a de
minimis level of ozone or precursor emissions.
See 58 Fed. Reg. 63214, 63228 (Nov. 30, 1993)
(explaining why the General Conformity Rule excuses NAAQS
conformity analysis in some circumstances).
General Conformity Rule defines “direct
emissions” as “those emissions of a criteria
pollutant or its precursors that are caused or initiated by
the Federal action and originate in a nonattainment or
maintenance area and occur at the same time and place as the
action and are reasonably foreseeable.” 40 C.F.R.
§ 93.152. “Indirect emissions, ” by
contrast, are those emissions of a criteria pollutant or its
(1) That are caused or initiated by the Federal action and
originate in the same nonattainment or maintenance area but
occur at a different time or place as the action;
(2) That are reasonably foreseeable;
(3) That the agency can practically control; and
(4) For which the agency has continuing program
Id. Finally, indirect emissions are
“reasonably foreseeable” when “the location
of such emissions is known and the emissions are quantifiable
as described and documented by the Federal agency based on
its own information and after reviewing any information
presented to the Federal agency.” Id.
as applicable here, the General Conformity Rule establishes
that an agency which can reasonably foresee more than de
minimis ozone precursor emissions (defined as 100 tpy)
must then take the next step of actually performing a NAAQS
Oil & Gas Leasing on Federal Lands
the Secretary of the Interior's delegate for offering and
managing onshore leases of federal property for purposes of
mineral extraction, including oil and gas operations.
See 43 C.F.R. § 3160.0-3. BLM carries out this
responsibility through “a three-phase decision-making
process.” Pennaco Energy, Inc. v. U.S. Dep't of
Interior, 377 F.3d 1147, 1151 (10th Cir. 2004). First,
BLM develops a resource management plan (“RMP”)
for the region in question, which includes decisions
regarding which resources may be extracted from the land. 43
C.F.R. § 1601.0-5(n). Second, BLM decides which parcels
to offer for leasing, and then auctions the lease rights to
those parcels to the highest bidder. See generally
id. §§ 3120-3120.7. Third, BLM must decide
whether to approve a lessee's “Application for
Permit to Drill” (“APD”). Id.
§ 3162.3-1(c). “[A]t [this] point the agency has a
second opportunity to review the potential environmental
impacts of the proposed action and impose any necessary
conditions of approval . . . .” Amigos Bravos v.
BLM, 2011 WL 7701433, at *5 (D.N.M. Aug. 3,
FACTUAL BACKGROUND & PROCEDURAL HISTORY
gas drilling and extraction operations may release nitrogen
oxides (NOx) and volatile organic compounds (VOCs), which are
ozone precursors. More specifically, given sunlight and the
right meteorological conditions, NOx and VOCs can react with
each other to produce ozone. This case turns on BLM's
consideration of NOx and VOCs at the second stage of the
three-stage process described above.
The May 2015 Lease Sales
under an RMP encompassing northeastern Colorado, BLM issued
an August 2014 environmental assessment
(“EA”) analyzing the environmental
consequences of a proposed May 2015 auction of numerous oil
and gas leases in that region. (Administrative Record (ECF
No. 11) (“R.”) at 3895.) BLM understood that some
of the lease parcels fall within the Nonattainment Area. (R.
at 3700.) The EA therefore included a discussion of the NAAQS
conformity requirement. (R. at 3700-01.)
the General Conformity Rule, BLM concluded that it did not
need to perform a full conformity analysis for a number of
reasons. As to “direct” emissions, BLM noted that
leasing does not authorize any sort of emissions-generating
activity, and so no “direct” emissions would
result. (Id.) Concerning “indirect”
emissions (i.e., future emissions likely to result
upon approval of a lessee's APD), BLM found them
analogous to land transfers, which EPA exempts from
conformity analysis. (Id.) BLM also found that
indirect emissions were not reasonably foreseeable:
- It is unclear who may bid on, let alone win individual
lease parcels. Where such sales are made on a broad scale, it
is unclear how many individuals may gain an interest in any
number of the nominated parcels.
- Further, it is unclear if/how the parcels would be
developed during the initial 10 year lease period, such that
an emissions inventory could be reasonably estimated and