Last week, Judge Michael Fitzgerald granted summary judgment to the plaintiffs in a citizen suit alleging that BLM's Environmental Impact Statement prepared to address whether to open certain lands in California to mineral development was inadequate. Judge Fitzgerald concluded that the EIS pretty much completely failed to address the potential risks of fracking and that, as a result, the EIS did not comply with NEPA.
Aside from three isolated and passing references to fracking in the RMP/FEIS, the 1,073-page document makes no mention of fracking at all, let alone a meaningful discussion to inform decisionmakers and the public of the attendant environmental concerns unique to fracking.
BLM made two arguments in response. First, it asserted that there were other references "in the record as a whole." Judge Fitzgerald rejected this argument, because there was no evidence that BLM had met its obligation to "consider and analyze" the data – Judge Fitgerald's emphasis.
BLM also argued that there was it was premature to analyze fracking impacts prior to any actual leasing decisions, because that analysis would necessarily be site- and project-specific. Judge Fitzgerald's rejection of this argument is the most important part of the decision, because this issue is commonplace in these types of decisions and will recur in other contexts, including those, such as offshore wind permitting, where the ultimate projects are generally considered much more environment-friendly than fracking.
Judge Fitzgerald first noted that there is no expectation that the EIS at this stage would provide a site- or project-specific level of analysis. Instead, he stated:
[T]he purpose of an [EIS] is to evaluate the possibilities in light of current and contemplated plans and to produce an informed estimate of the environmental consequences .... Drafting an [EIS] necessarily involves some degree of forecasting." (emphasis in original)). Uncertainty about which specific parcels and wells will employ fracking in the future does not obviate the necessity to evaluate the cumulative environmental consequences to the Bureau's decision to open or maintain over one million acres of federal land in central California to oil and gas activities.
Fair enough, but the question still remains how much analysis is required at such a preliminary stage and how much deference the agency should have in answering that question. As I noted in my post earlier this week regarding DOE's and DOI's National Offshore Wind Strategy, offshore wind isn't going to flourish until developers have gained confidence that there is a reliable and well-defined regulatory process that will avoid 10 or 15 years of litigation.
Here's hoping.
To view Foley Hoag's Law and the Environment Blog please click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
