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Wilderness Workshop v. United States Bureau of Land Management

United States District Court, D. Colorado

October 17, 2018

WILDERNESS WORKSHOP, WESTERN COLORADO CONGRESS, NATURAL RESOURCES DEFENSE COUNCIL, and SIERRA CLUB, Plaintiffs,
v.
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

          LEWIS T. BABCOCK, JUDGE

         This 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.

         I. Background

         A. Statutory and regulatory background

         1. The National Environmental Policy Act (“NEPA”)

         NEPA is 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.

         Under 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”).

         The 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).

         2. The Administrative Procedure Act (“APA”)

         NEPA 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. § 702.

         An 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 the agency

(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).

         When 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 position.”).

         “Deficiencies 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).

         3. The Federal Land Policy and Management Act (“FLPMA”)

         In 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).

         In 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. § 1601.0-6.

         a. Oil and gas development under the FLPMA

         On 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. 2004)).

         In the 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.

         In the 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 stakeholders. Id.

         In the 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. § 226(g).

         B. Factual background

         Within 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).

         In 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.

         BLM 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 RMP. Id.

         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.

         Alternative 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.

         Alternative 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. AR 184683.

         Alternative 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.

         BLM 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.

         II. Analysis

         Plaintiffs 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.

         A. Hard look at the direct, indirect, and cumulative impacts to people and environment

         In 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.

         In an 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. § 1508.27(b)).

         1. GHG pollution and climate change

         Plaintiffs 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 emissions.

         a. Foreseeable indirect impacts of oil and gas

         Plaintiffs 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.

         BLM 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.

         Plaintiffs 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 ...


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