United States District Court, D. Colorado
WILDERNESS WORKSHOP, WESTERN COLORADO CONGRESS, NATURAL RESOURCES DEFENSE COUNCIL, and SIERRA CLUB, Plaintiffs,
UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the U.S. Department of the Interior, RYAN ZINKE, in his official capacity as Secretary of the U.S. Department of the Interior, BRIAN STEED, in his official capacity as Deputy Director of the U.S. Bureau of Land Management, GREG SHOOP, in his official capacity as Acting Colorado State Director of the U.S. Bureau of Land Management, and GLORIA TIBBETTS, in her official capacity as Acting Field Manager of the Colorado River Valley Field Office of the U.S. Bureau of Land Management, Defendants.
MEMORANDUM OPINION AND ORDER
T. BABCOCK, JUDGE
matter is before me on Plaintiffs' Petition for Review of
Agency Action. Plaintiffs seek judicial review of defendant
Bureau of Land Management's (referred to as
“Defendants” or “BLM”) Resource
Management Plan concerning land managed under BLM's
Colorado River Valley Field Office (see Addendum for a list
of acronyms used in this Opinion). The public officers named
as defendants in this case have been updated pursuant to
Fed.R.Civ.P. 25(d). The matter has been fully briefed (ECF
Nos. 24, 27, 28). After carefully analyzing the briefs and
the relevant portions of the record, I GRANT in part and
DEFER final ruling pending further briefing on remedies in
accordance with this Order.
Statutory and regulatory background
The National Environmental Policy Act
the “basic national charter for protection of the
environment” and its “procedures must insure that
environmental information is available to public officials
and citizens before decisions are made and before actions are
taken.” 40 C.F.R. § 1500.1. Congress enacted NEPA
to ensure that all federal agencies consider the
environmental impacts of their actions to prevent or
eliminate damage to the environment. Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 371 (1989);
see 42 U.S.C. § 4321.
NEPA, federal agencies must “include in every
recommendation or report on proposals for legislation and
other major Federal actions significantly affecting the
quality of the human environment, a detailed statement by the
responsible official on, ” in relevant part, the
environmental impact of the proposed action and alternatives
to the proposed action. 42 U.S.C. § 4332(C)(i), (iii).
An agency can choose to perform an Environmental Assessment,
or may proceed directly to preparing an Environmental Impact
Statement (“EIS”). New Mexico ex rel.
Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703
n.23 (10th Cir. 2009) (“New Mexico”).
requirement to complete an EIS aims to ensure “that the
agency, in reaching its decision, will have available, and
will carefully consider, detailed information concerning
significant environmental impacts” and guarantees
“that the relevant information will be made available
to the larger audience that may also play a role in both the
decisionmaking process and the implementation of that
decision.” Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 349 (1989).
The Administrative Procedure Act (“APA”)
provides no private cause of action and thus Plaintiffs'
claims arise under the APA. Pls.' Compl., ECF No. 1 at
14; see New Mexico, 565 F.3d at 704. Under the APA,
a person who is suffering a “legal wrong because of
agency action” is entitled to judicial review. 5 U.S.C.
agency's NEPA compliance is reviewed to see whether it is
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” New
Mexico, 565 F.3d at 704 (quoting 5 U.S.C. §
706(2)(a)). The agency action is arbitrary and capricious if
(1) entirely failed to consider an important aspect of the
problem, (2) 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, (3) failed to base
its decision on consideration of the relevant factors, or (4)
made a clear error of judgment.
Id. (quoting Utah Envtl. Cong. v. Troyer,
479 F.3d 1269, 1280 (10th Cir. 2007)) (quotations omitted).
reviewing factual determinations made by agencies under NEPA,
short of a “clear error of judgment, ” an agency
is required to take “hard look” at information
relevant to a decision. Id. A court considers only
the agency's reasoning at the time it made its decision,
“excluding post-hoc rationalization concocted by
counsel in briefs or argument.” Id. (citing
Utahns for Better Transp. v. U.S. Dep't of
Transp., 305 F.3d 1152, 1165 (10th Cir. 2002));
see 3 Charles H. Koch, Jr. and Richard Murphy,
Admin. L. & Prac. § 9:26 (3d ed. 2018)
(“Without engaging in review of the actual resolution
of factual questions of this variety, courts by using the
hard look standard assure that the agency did a careful job
at fact gathering and otherwise supporting its
in an EIS that are mere ‘flyspecks' and do not
defeat NEPA's goals of informed decisionmaking and
informed public comment will not lead to reversal.”
Id. (citing cases). As such, the agency action is
presumed valid and the burden of proof rests upon those
challenging the agency action. Id. (citing
Citizens' Comm. to Save Our Canyons v. Krueger,
513 F.3d 1169, 1176 (10th Cir. 2008)). “So long as the
record demonstrates that the agencies in question followed
the NEPA procedures . . . the court will not second-guess the
wisdom of the ultimate decision.” Utahns for Better
Transp. v. U.S. Dep't of Transp., 305 F.3d at 1163
(quoting Robertson v. Methow Valley Citizens
Council, 490 U.S. at 350).
The Federal Land Policy and Management Act
enacting the FLPMA, Congress aimed to empower the Secretary
of the Interior to manage the United States' public
lands. 43 U.S.C. § 1701. The Secretary, through BLM,
“shall manage the public lands under principles of
multiple use and sustained yield.” 43 U.S.C. §
1732(a). “Multiple use” means “a
combination of balanced and diverse resource uses that takes
into account the long-term needs of future generations for
renewable and nonrenewable resources, including, but not
limited to, recreation, range, timber, minerals, watershed,
wildlife and fish, and natural scenic, scientific and
historical values . . . .”43 U.S.C. § 1702(c).
managing public lands, BLM must develop resource management
plans (“RMPs”). BioDiversity Conservation
All. v. Bureau of Land Mgmt., 608 F.3d 709, 712 (10th
Cir. 2010) (citing 43 U.S.C. § 1712; 43 C.F.R. §
1601.0-5(n)). An RMP is “designed to guide and control
future management actions and the development of subsequent,
more detailed and limited scope plans for resources and
uses.” 43 C.F.R. § 1601.0-2; see Norton v. S.
Utah Wilderness All., 542 U.S. 55, 59 (2004)
(“Generally, a land use plan describes, for a
particular area, allowable uses, goals for future condition
of the land, and specific next steps.”). The approval
of an RMP “is considered a major Federal action
significantly affecting the quality of the human
environment” and thus requires an EIS. 43 C.F.R. §
Oil and gas development under the FLPMA
public lands, the FLPMA entrusts BLM with the “orderly
and efficient exploration, development and production of oil
and gas.” 43 C.F.R. § 3160.0-4; 43 U.S.C. §
1732(b); see 43 C.F.R. § 3100.0-3. This is done
by using a “three-phase decision-making process.”
W. Energy All. v. Zinke, 877 F.3d 1157, 1161 (10th
Cir. 2017) (quoting Pennaco Energy, Inc. v. U.S.
Dep't of Interior, 377 F.3d 1147, 1151 (10th Cir.
first phase, BLM creates RMPs. Id. Part of an RMP
indicates the lands open or closed to the development of oil
and gas, and subsequent development must abide by the terms
of the RMP. Id.
second phase, through state offices, BLM identifies parcels
that it will offer for lease, responds to potential protests
of the suggested parcels, and conducts “a competitive
lease sale auction.” Id. at 1162 (citing 43
C.F.R. Subpart 3120). During the identification of parcels
available for leasing, a 2010 Department of Interior policy
mandates additional review, including: (1) an
interdisciplinary team reviewing the parcels proposed for
leasing and conducting site visits; (2) identifying issues
BLM must consider; and (3) obliging BLM to consult other
final phase, after the sale of a lease, BLM “decides
whether specific development projects will be permitted on
the leased land.” Id.; see 43 C.F.R.
§ 3162.3-1; 30 U.S.C. § 226. BLM must approve
permits to drill after parcels of land are leased. 30 U.S.C.
its administrative boundary, BLM's Colorado River Valley
Field Office (“CRVFO”) has over 2.9 million acres
of public and private surface land. Administrative Record
(“AR”) 184599. At issue here is the
administration of 505, 200 acres of BLM-managed surface lands
and 701, 200 acres of BLM-managed federal mineral estate that
lie beneath other federal, state, and private surface
ownership, apart from National Forest lands. AR 184647-48.
These lands within the purview of the CRVFO primarily extend
across Eagle, Garfield, Mesa, Pitkin, and Routt counties. AR
184600. Additionally, the Roan Plateau, which is within the
purview of the CRVFO, is exempted from the RMP in question
because it is under the management of a separate RMP. AR
184600-02; see Colorado Envtl. Coal. v. Salazar, 875
F.Supp.2d 1233, 1238 (D. Colo. 2012) (concerning challenges
to the RMP of the Roan Plateau).
2007, BLM formally initiated a process to revise the 1984
Glenwood Springs Resource Area RMP. AR 184604, 184644.
Pursuant to the FLPMA, BLM began the revision process: (1)
“in response to new issues that have arisen since the
original plan was prepared in 1984 and to higher levels of
controversy around existing issues”; (2) “to
allow for updated BLM management direction, guidance, and
policy”; and (3) because “new resource
assessments and scientific information have become available
to help the CRVFO revise previous decisions and address
increased uses and demands on BLM lands (such as oil and gas
development and recreation), as well as the protection of
natural and cultural resources.” AR 184646. The RMP
analyzed environmental effects, thus the terms
“RMP” and “EIS” are interchangeable
in the context of this case. See AR 184644.
noted a timeline of the revision process as promulgated in 43
C.F.R. Subpart 1610. AR 184650. This revision process
includes: (1) identifying planning issues; (2) developing
planning criteria; (3) collecting data and information
analyzing the management situation; (4) formulating
alternatives; (5) assessing and selecting a preferred
alternative; (6) opening the RMP and EIS to public comment
for review; and (7) signing the Record of Decision
(“ROD”), marking the approval from BLM of the
considered alternatives, Alternative A was classified as the
“no action alternative” meaning that
“current management practices, based on existing RMPs
and other management decision documents, would
continue.” AR 184606. This allowed for 672, 500 acres
of the Federal mineral estate to be open to fluid mineral
leasing, leaving 28, 700 acres closed. AR 184683.
B was the “mixed use” alternative which allocated
“public land resources among competing human interests,
land uses, and the conservation of natural and cultural
resources.” AR 184606. This allowed for 603, 100 acres
of the Federal mineral estate to be open to fluid mineral
leasing, leaving 98, 100 acres closed. AR 184683.
C was the conservation alternative, which emphasized
“protecting resource values and enhancing or restoring
the ecological integrity of habitats for all priority plant,
wildlife, and fish species.” AR 184608. This would
allow for 521, 500 acres of the Federal mineral estate to be
open to fluid mineral leasing, leaving 179, 700 acres closed.
D was the resource use alternative, which emphasized
“allowable uses that maximize resource production in an
environmentally responsible manner.” AR 184608. This
would allow for 648, 400 acres of the Federal mineral estate
to be open to fluid mineral leasing, leaving 52, 800 acres
closed. AR 184683.
selected Alternative B as its preferred alternative. AR
184606. BLM opened the proposed RMP to public comment and
found that “[n]o modifications were necessary as a
result of the protests, but some clarifications were made . .
. .” AR 188126. On June 12, 2015, the ROD was signed,
marking the approval from BLM of the RMP and EIS. AR 188163.
are non-profit organizations who focus on environmental
issues. ECF No. 1 at 7-10. The parties agree that this case
is currently in the first stage of the three-stage oil and
gas development process under the FLPMA. Pls.' Opening
Br., ECF No. 24 at 7; Defs.' Resp., ECF No. 27 at 2.
Plaintiffs challenge multiple aspects of the RMP, alleging
generally that BLM “failed to take a hard look at the
direct, indirect, and cumulative impacts to people and
environment” and “failed to consider a reasonable
range of alternatives.” ECF No. 24 at 10, 36.
Hard look at the direct, indirect, and cumulative impacts to
people and environment
approving the RMP, Plaintiffs claim that BLM failed to take a
hard look at the severity and impacts of: (1) greenhouse gas
(“GHG”) pollution and climate change; (2) methane
emissions; and (3) oil and gas on human health.
EIS, BLM must consider the direct, indirect, and cumulative
predicted impacts of a proposed action. New Mexico,
565 F.3d at 703 (citing 42 U.S.C. § 4332(2)(C); 40
C.F.R. pt. 1502 & §§ 1508.11, 1508.25(c)).
“The significance of an impact is determined by the
action's context and its intensity.” Hillsdale
Envtl. Loss Prevention, Inc. v. U.S. Army Corps of
Engineers, 702 F.3d 1156, 1166 (10th Cir. 2012) (citing
Middle Rio Grande Conservancy Dist. v. Norton, 294
F.3d 1220, 1224 (10th Cir. 2002)). “Applicable
regulations require agencies to consider ten factors when
assessing intensity, including the proposed action's
effects on public health, the unique characteristics of the
geographic area, the uncertainty of potential effects, and
the degree of controversy surrounding the effects on the
human environment.” Id. (citing 40 C.F.R.
GHG pollution and climate change
contend that BLM: (1) failed to analyze the foreseeable
indirect GHG emissions resulting from combustion or other end
uses of the oil and gas extracted from the planning area; (2)
failed to consider the cumulative impacts of GHG emissions
associated with oil and gas production; and (3) failed to
analyze the significance and severity of the volume of
Foreseeable indirect impacts of oil and gas
argue that BLM failed to include in the RMP an analysis of
the reasonably foreseeable indirect impacts of oil and gas.
ECF No. 24 at 13. They contend that the “reasonably
foreseeable effects of allowing fossil fuel extraction on
public lands include the emissions resulting from eventual
combustion of that fuel, ” and that BLM did not include
the emissions analysis resulting from combustion.
Id. at 13-14. Plaintiffs state that BLM recognized
that decisions made under the RMP may have indirect effects
resulting from activities that release GHG emissions, but BLM
“failed to analyze the foreseeable emissions that will
result from the processing, transmission, storage,
distribution, and end use of these hydrocarbons.”
Id. at 14.
responds that it provided sufficient information on the
indirect effects “while candidly discussing the
limitations in BLM's ability to assess such impacts based
on the information available at the planning stage.”
ECF No. 27 at 18. It adds that even though it estimated the
total number of wells that would be drilled over the life of
the RMP, it additionally noted the speculative nature of
forecasting oil and gas production and was thus justified to
provide a qualitative analysis. Id. at 19. Further,
BLM points to reasoning in the RMP that because natural gas
produces fewer GHG emissions, if it were to displace coal and
oil, it could in fact reduce GHG emissions. Id. BLM
surmises that this potential outcome means that quantifying
GHG emissions would be potentially misleading and thus it was
not arbitrary or capricious in leaving it out. Id.
reply that BLM agrees that it must consider the indirect
effects of burning the natural gas under the RMP and states
it does so by focusing on a qualitative analysis. Pls.'
Reply, ECF No. 28 at 3. Plaintiffs continue that this is
flawed because it is not sufficient for BLM to claim as its
qualitative analysis that an effect is unforeseeable and