CHAPTER 5 USING NEPA AND OTHER FEDERAL LAND MANAGEMENT STATUTES TO ANALYZE AIR QUALITY IMPACTS
| Jurisdiction | United States |
(Feb 2013)
USING NEPA AND OTHER FEDERAL LAND MANAGEMENT STATUTES TO ANALYZE AIR QUALITY IMPACTS
Rocky Mountain Region
U.S. Department of the Interior
Office of the Solicitor
Lakewood, Colorado
MATT McKEOWN is the Regional Solicitor, Rocky Mountain Region, Office of the Solicitor, United States Department of the Interior, in Lakewood, Colorado. In this capacity, Matt oversees the legal work for every Interior Department agency within his region. Prior to taking his current position, Matt was Associate Solicitor for Mineral Resources, Associate Solicitor for Land and Water, and Deputy Solicitor. Matt also served as Principal Deputy Attorney General for the Justice Department's Environment and Natural Resources Division. Before commencing federal service, Matt spent seven years as a Deputy Attorney General for the State of Idaho. Matt received his law degree from the University of Oregon and his bachelor's degree in English (with a Film and Communications focus) from McGill University in Montreal.
Introduction * 1
The relationship between mineral development and the quality of the air we breathe has long been a source of concern. In 1853, Charles Dickens vividly described the air quality challenges presented by Victorian London, fueled by coal, "[s]moke lowering down from chimney-pots, making a soft black drizzle, with flakes of soot as big as full-grown snow-flakes -- gone into mourning, one might imagine, for the death of the sun."2 Closer to our own time and place, many worry that "[c]lean air is a hallmark of the American West, but its cherished vistas are becoming marred by smog and haze."3 But others also express concern that "[w]hen too many resources are spent to achieve minimal [air quality] benefit compared to the cost . . . the impact is less American energy and higher costs."4 And just as the "legendary hatreds"5 of
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Dickens' time ended up being pursued in the 19th century courts, the competing priorities of mineral development and air quality protection have been frequent, recent sources of litigation in the federal courts.
While the subject of air quality litigation is a vast and well-traveled subject, this chapter has a precise focus: the level of analysis that is required pursuant to three federal resource management statutes,6 in conjunction with the National Environmental Policy Act of 1969 (NEPA),7 to address air quality impacts that may be the result of mineral development on federal land. A number of cases involving both federal land mineral development and air quality claims have been litigated and decided in 2010-12. These cases have helped define the federal responsibility for some of the key analytical issues related to air quality, including the type and sufficiency of modeling analysis, the adequacy of greenhouse gas analysis, and cumulative impacts.
This paper will first examine seven cases in detail. They have been selected to highlight mineral development managed by both the U.S. Bureau of Land Management (BLM) and the U.S. Forest Service (Forest Service). They have also been selected to examine air quality issues in the oil, gas, and coal development contexts. Some cases involve claims that address issues other than air quality. Unless understanding those claims is necessary to understand the air quality issues, this chapter omits analysis of non-air quality issues.
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This chapter will next synthesize the learning of the cases to identify trends. Finally, this chapter will examine the emerging trends in an attempt to determine what legally defensible air quality analysis will look like in the future.
Recent Decisions
[1] Theodore Roosevelt Conservation Partnership v. Salazar (Atlantic Rim)8
One of the most comprehensive recent decisions involving air quality and mineral development is the D.C. Circuit's 2010 decision in Atlantic Rim. The action forming the backdrop for Atlantic Rim was BLM's 1990 promulgation of the Great Divide Resource Management Plan (RMP) for an area within Carbon County, Wyoming.9 The RMP was prepared according to the multiple-use direction required by section 202 of FLPMA and its implementing regulations10 to provide management controls for the orderly production of oil and natural gas leasing in the area, while providing for sustained yield management and environmental protection.11 In 2007, BLM developed a final environmental impact statement (FEIS) and issued a record of decision (ROD) to manage 270,000 acres within the Great Divide Resource Area as the Atlantic Rim Gas Field Development Project (Atlantic Rim Project).12 The ROD predicted the approval of approximately 2,000 new natural gas wells in the project area over the next 30 to 50 years.13 The FEIS and ROD identified a number of likely impacts associated with the
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approval of this number of gas wells, including the release of gases contributing to ground-level ozone pollution.14 While the authorization provided some requirements for approval of drilling applications, it left specific resource management decisions to a case-by-case determination at the drilling approval stage.15
When the BLM issued the authorizations requested by the applications for permission to drill (APD) submitted by the project proponent, the Theodore Roosevelt Conservation Partnership (TRCP), the Natural Resources Defense Council (NRDC), and other organizations sued, arguing that both the FEIS and the drilling permits16 issued for the Atlantic Rim Project violated NEPA and FLPMA.17 The plans of development at issue in the litigation consisted of a total of 51 new wells.18 The plans of development were each supported by environmental assessments (EA) with findings of no significant impact (FONSI).19 The State of Wyoming, as well as three energy companies20 planning to drill in the area, all joined the litigation as
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interveners.21 The district court granted summary judgment in favor of BLM and the intervenors.22
Before the D.C. Circuit, the plaintiffs first argued that BLM violated the regulations implementing NEPA23 by committing resources to the Atlantic Rim Project before the Great Divide RMP had been revised24 to reflect the specific development scenario anticipated by the project. The specific issue before the court was whether the Great Divide RMP, and its accompanying NEPA analysis, provided sufficient NEPA coverage when the number of wells approved for the Atlantic Rim Project exceeded the number of wells originally predicted in the Great Divide RMP.25 The D.C. Circuit declined to follow the plaintiffs' assertion that the number of wells was dispositive of the claim for two reasons. First, the court determined that permits issued in excess of the 1,440 wells specified in the then-draft EIS for the Great Divide RMP revision were allowed because the 1,440 number was an estimate, not a hard cap.26 Second, the court ruled that the plaintiffs would have to prove that the impacts associated with the number of wells approved as part of the Atlantic Rim Project exceeded the predicted
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environmental impacts addressed by the Great Divide RMP.27 The D.C. Circuit held that the plaintiffs did not meet this burden and accordingly ruled in favor of BLM.28
The plaintiffs next argued that BLM's method of estimating air pollution impacts was obsolete when BLM used it in the Atlantic Rim Project's EIS.29 The plaintiffs asserted that BLM's choice to use an allegedly outdated method of computation of ground-level ozone concentration prevented the agency from taking a sufficiently "hard look" at the Atlantic Rim Project.30 At issue was the "Scheffe" model, which BLM, and others, deemed to be an acceptable method for analyzing ground-level ozone when the NEPA analysis was conducted in 2006.31 The court found that BLM was not required to use a new analytical method just because the "Scheffe" model became outdated after the original agency analysis.32 The D.C. Circuit ruled that requiring BLM to recalculate ozone estimates every time a new model might emerge could engage the agency in a continuing recalculation obligation.33
The plaintiffs followed their unsuccessful attack on the air modeling with a challenge to BLM's cumulative impact analysis. They argued that BLM had inadequately addressed the cumulative impacts that would be created by two other proposed gas development projects, the Hiawatha Regional Energy Development Project and the Continental Divide-Creston Natural
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Gas Project.34 The plaintiffs argued that BLM was required to include impacts from these two projects in the EIS as cumulative impacts required by 40 C.F.R. § 1508.25.35 But, by the time the Pacific Rim EIS was completed the two projects had only proceeded to the stage at which a notice to prepare an EIS was issued for each project.36 Thus, the D.C. Circuit ruled that although a project does not need to be finalized to be "reasonably foreseeable" for purposes of 40 C.F.R. § 1508.7, a project in the early stages of NEPA planning need not be included in cumulative impact analysis.37 And since the other two proposed projects in question were at the early planning stage, the court ruled that BLM did not violate the requirement to analyze cumulative impacts associated with the Atlantic Rim Project.38
[2] San Juan Citizens Alliance v. Stiles (San Juan Citizens)39
In 2000, six companies proposed to drill for coalbed methane (CBM) in a 125,000-acre area (Project Area) in Colorado's La Plata and Archuleta Counties.40 The proposed plan, the
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Northern San Juan Basin Coal Bed Methane Project (CBM Project) anticipated 284 wells and the associated infrastructure.41 Of the 284 total wells, 185 were to be located on federal land.42 The Forest Service and BLM published a notice of intent to prepare an EIS to analyze this proposal on April 4, 2000.43 Despite the fact that...
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