WildEarth Guardians v. Zinke

368 F.Supp.3d 41

WILDEARTH GUARDIANS, et al., Plaintiffs,

v.ZINKE, et al., Defendants,Western Energy Alliance, et al., Defendant-Intervenors

Civil Action No.: 16-1724 (RC)

United States District Court, District of Columbia.

March 19, 2019

Kyle James Tisdel, Western Enviornmental Law Center, Taos, NM, Samantha Ruscavage-Barz, WildEarth Guardians, Santa Fe, NM, for Plaintiffs.

John S. Most Department of Justice, Land & Natural Resources Div. Washington, DC, for Defendants.

Bret A. Sumner, James B. Martin, Pro Hac Vice, Michael K. Cross, Pro Hac Vice, Beatty & Wozniak, P.C., Denver, CO, Steven J. Rosenbaum, Bradley K. Ervin, Covington & Burling LLP, Washington, DC, for Defendant-Intervenors.

MEMORANDUM OPINION

GRANTING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANTS' CROSS-MOTIONS FOR SUMMARY JUDGMENT; DENYING MOTION FOR LEAVE TO FILE AMICUS BRIEF

Re Document Nos.: 55, 60, 61, 62, 63, 71

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Climate change, and humanity's ability to combat it, are increasingly prominent topics of public discourse. This case concerns the attention the government must give climate change when taking action that may increase its effects. Two non-profit organizations, WildEarth Guardians ("WildEarth") and Physicians for Social Responsibility (together, "Plaintiffs") assert that the United States Bureau of Land Management ("BLM") violated federal law by not sufficiently considering climate change when authorizing oil and gas leasing on federal land in Wyoming, Utah, and Colorado. Those states and two industry organizations with interests in the Leases—the Western Energy Alliance and Petroleum Association of Wyoming ("Western Alliance"), and the American Petroleum Association of Wyoming ("American Petroleum")—(together with BLM, "Defendants") have intervened as defendants. Another organization, the New York University School of Law's Institute for Policy Integrity (the "Institute"), seeks to file an amicus curiae brief in support of Plaintiffs.

Before the Court are the parties' cross-motions for summary judgment and the Institute's motion to file an amicus brief. Having reviewed the record and the relevant law, the Court concludes that—withholding judgment on whether BLM's leasing decisions were correct—BLM did not sufficiently consider climate change when making those decisions. BLM summarized the potential on-the-ground impacts of climate change in the state, the region, and across the country. It failed, however, to provide the information necessary for the public and agency decisionmakers to understand the degree to which the leasing decisions at issue would contribute to those impacts. In short, BLM did not adequately quantify the climate change impacts of oil and gas leasing. Thus, for the reasons explained more thoroughly below, the Court grants Plaintiffs' motion in part, denies Defendants' motions, and denies the Institute's motion.¹

II. BACKGROUND

A. Statutory and Regulatory Framework

1. Mineral Leasing Act

Under the Mineral Leasing Act ("MLA"), 30 U.S.C. §§ 181 – 287, the Secretary of the Interior is responsible for managing and overseeing mineral development on public lands in a manner that "safeguard[s] ... the public welfare." Id. § 187. Subject to this general mandate, the MLA provides for the development of oil and gas resources on federal land. Id. § 226; see also AR3379. It requires that "[l]ease sales shall be held for each State where eligible lands are available [for oil and gas development] at least quarterly and more frequently if the Secretary of the Interior determines such sales are necessary." 30 U.S.C. § 226(b)(1)(A). However, while oil and gas leasing is mandatory, the Secretary has discretion to determine where, when, and under what terms and conditions oil and gas development should occur. Id. § 226 ; 43 C.F.R. § 3101.1-2. Accordingly, the federal government may impose a broad range of stipulations on oil and gas leases for federal land, including concerning the timing, pace, and scale of development. Id.

2. Federal Land Policy and Management Act

The MLA's mandate to lease federal land for oil and gas development is carried out by BLM, in strict compliance with the Federal Land Policy and Management Act of 1976 ("FLPMA"). 43 U.S.C. §§ 1701 – 1787. The FLPMA directs BLM to "manage the public lands under principles of multiple use and sustained yield." Id. § 1732(a). Under this mandate, the FLPMA identifies "mineral exploration and production" as one of the "principal or major uses" of public lands. Id. § 1702(l). As described below, the FLPMA establishes a series of steps that BLM must take when leasing federal lands for oil and gas development. Id. § 1712(a); 43 C.F.R. § 1601.0-5(n). These steps are further governed by the National Environmental Policy Act ("NEPA").

3. National Environmental Policy Act

NEPA is the country's "basic national charter for the protection of the environment." 40 C.F.R. § 1500.1(a). Its purpose is "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of [humans]," 42 U.S.C. § 4321 ; to ensure that the federal government uses all practicable means to "assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings"; and to "attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences," among other policies, 42 U.S.C. § 4331(b). The Council on Environmental Quality ("CEQ") promulgates regulations that guide federal agencies' compliance with NEPA. See 40 C.F.R. §§ 1500.1 – 1508.28.

At its core, NEPA simply requires that federal agencies consider the environmental consequences of their actions. See 42 U.S.C. §§ 4321 – 4370h ; 40 C.F.R. § 1501.1. Under NEPA, agency decisionmakers must identify and understand the environmental effects of proposed actions, and they must inform the public of those effects so that it may "play a role in both the decisionmaking process and the implementation of [the agency's] decision." Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) ; see also 42 U.S.C. § 4321 ; 40 C.F.R. § 1501.1. In other words, "NEPA was designed ‘to insure a fully informed and well-considered decision.’ " Park Cty. Res. Council, Inc. v. U.S. Dep't of Agric. , 817 F.2d 609, 621 (10th Cir. 1987) (quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc. , 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) ), overruled in part on other grounds by Village of Los Ranchos De Albuquerque v. Marsh , 956 F.2d 970 (10th Cir. 1992). Importantly, "NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail." 40 C.F.R. § 1500.1(b). NEPA is not intended to "generate ... excellent paperwork," but rather to "foster excellent action" through informed decisionmaking. Id. § 1500.1(c).

NEPA dictates that an agency must prepare an environmental impact statement ("EIS") for every "major [f]ederal action[ ] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C) ; 40 C.F.R. § 1502.3. The "detailed" EIS must consider "the environmental impact of the proposed action" and "any adverse environmental effects which cannot be avoided." 42 U.S.C. § 4332(C)(i)–(ii). It must also examine "alternatives to the proposed action," and the action's direct, indirect and cumulative effects.² 42 U.S.C. § 4332(2)(C)(iii) ; 40 C.F.R. §§ 1502.16, 1508.7, 1508.8.³

Not every federal action, however, requires the preparation of an EIS, because not every federal action significantly affects the quality of the human environment. To determine whether an EIS is necessary for a particular action, the agency may prepare an Environmental Assessment ("EA"). See 40 C.F.R. §§ 1501.4, 1508.9. An EA is "a ‘concise public document’ that ‘[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].’ " Dep't of Transp. v. Pub. Citizen , 541 U.S. 752, 757, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004) (quoting 40 C.F.R. § 1508.9(a) ). As in an EIS, the EA must take a "hard look" at the environmental consequences of the proposed action, Kleppe v. Sierra Club , 427 U.S. 390, 410 n.21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), including its direct, indirect, and cumulative effects, see EarthReports, Inc. v. FERC , 828 F.3d 949, 953 (D.C. Cir 2016) ; 40 C.F.R. §§ 1508.9, 1508.25(c). If, after preparing the EA, the agency determines that an EIS is not necessary, the agency must issue a finding of no significant impact ("FONSI") summarizing its decision. See 40 C.F.R. §§ 1501.3, 1501.4, 1508.13 ; see also AR28440.

For multi-stage agency programs, such as the oil and gas development program at issue here, NEPA provides that the environmental analysis conducted at each stage may incorporate by reference previous, related analyses. In NEPA parlance, this is called "tiering." NEPA more precisely defines tiering as the:

coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared.

40 C.F.R. §§ 1502.20, 1508.28. CEQ regulations state that "[t]iering is appropriate when the sequence of statements or analyses is ... [f]rom a program, plan, or policy environmental impact statement to a ... site-specific statement or analysis." Id. § 1508.28(a).

In other words, "[a]n [EA] prepared in support of an individual proposed action can be tiered to a programmatic or other broader-scope [EIS] ... for a proposed action with significant effects ... if the...