NEPA and Natural Gas Development - Where Are The Feds Going?
From David Mandelbaum, GT Philadelphia, and K.B. Battaglini, GT Houston.
Special 
interest groups have long relied on the National Environmental Policy Act of 1969 (NEPA) to delay or halt domestic oil and gas development. Now, reversing decades of policy and practice, the federal government (e.g. the Department of Agriculture's Forest Service and the Department of Interior's Bureau of Land Management) seems to be playing along with the environmentalists' strategy. The government apparently has determined to apply NEPA not only to the availability of federal lands for oil and gas development, but also to the grant of specific oil and gas leases and perhaps even for mere access to drill individual wells. This new policy needlessly pits the government against mineral rights holders. Oddly, at a time when the country clearly needs different energy infrastructure and resources, the government is using NEPA to avoid engagement on the substantive questions and as a vehicle for delay.
The evidence of a policy shift is clear.
- In Forest Service Employees for Environmental Ethics v. United States Forest Service, No. 1:08-cv-323-SJM (W.D. Pa. consent decree entered April 9, 2009), the Forest Service agreed to a moratorium on access by oil and gas developers to their minerals (typically held as fee interests in a severed mineral estate) on the Allegheny National Forest pending completion of an EIS. The agreement has been preliminarily enjoined. Minard Run Oil Company v. United States Forest Service, No. 1:09-cv-125-SJM (W.D. Pa. Dec. 15, 2009), appeal pending, No. 10-1265 (3d Cir.).
- In Montana Environmental Information Center v. United States Bureau of Land Management, No. 9:08-cv-178-M-DWM (D. Mont. settlement filed Mar. 12, 2010), the BLM agreed to suspend dozens of oil and gas leases in Montana pending “further review under NEPA” for climate change impacts.
- In Nine Mile Canyon Coalition v. Steiwig, No. 2:08-cv-586 (D. Utah settlement filed Mar. 31, 2010), BLM agreed to stop applying NEPA “categorical exclusions” for oil and gas drilling with less than five acres of impact or in areas drilled within five years. Senators Bennett and Hatch expressed outrage.
All wells are subject to various state and federal environmental controls and substantive standards. The lawsuits and settlements noted above are not about whether those substantive standards or controls adequately protect the environment. Rather, they are lawsuits over whether and how many "environmental impact" studies must be performed prior to drilling a well. This is irrational.
We can keep on importing oil and burning coal for electricity, or we can change. Engagement and debate on whether domestic drilling and greater energy independence is, on balance, for good or ill is welcome. Delay in engagement to perform "environmental impact studies" is just delay for its own sake, irrational, wasteful, and the opposite of change.
