CHAPTER 8 A (POTENTIALLY) LONG AND WINDING ROAD: ENERGY PROJECTS ON PUBLIC LANDS

• Jurisdiction: United States

Public Land Law, Regulation, and Management
(May 2014)
CHAPTER 8
A (POTENTIALLY) LONG AND WINDING ROAD: ENERGY PROJECTS ON PUBLIC LANDS
Nada Wolff Culver
Director and Senior Counsel
BLM Action Center, The Wilderness Society
Denver, Colorado

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NADA WOLFF CULVER is Senior Counsel and Director of the BLM Action Center at The Wilderness Society, providing technical advice and support to citizens and conservation groups working to protect their public lands. The Wilderness Society's mission is to protect wilderness and inspire Americans to care for our wild places. The BLM Action Center, located in Denver, Colorado, assists and encourages people to participate in land use planning processes and management decisions, including those addressing transmission, renewable energy, fossil fuel development, and protection of wilderness. The BLM Action Center also seeks to influence national policy on management of our federal public lands. Before joining The Wilderness Society, she practiced law in the private sector for more than 10 years, working on a variety of environmental issues including energy development and environmental remediation, and was a partner with the law firm of Patton Boggs. She is a graduate of Northwestern University and the University of Pennsylvania School of Law.

Resources on public lands provide opportunities to generate needed energy, not to mention profits. Yet with the proposed use of public lands comes "the public" - encompassing requirements to evaluate and disclose a host of impacts to other public resources and seek input from the public on proposals, which lead to opportunities for a variety of challenges to project approval. This paper provides an overview of the laws and legal processes that may add complexity, extend time for review and approval, and yield legal contests to using public lands for energy projects. A number of initiatives intended to reduce conflicts and support responsible energy development are also highlighted for their potential to move along a "straighter" path to development.

1. Public lands and the multiple use mandate - a balancing act

Energy plays a significant role on our federal public lands. There are approximately 36 million acres of federal minerals under lease to the oil and gas industry¹ and ongoing production from public lands is part of the President's "All of the Above" energy plan.² The President has recently committed to further expanding the goal for renewable energy development on public land from ten gigawatts of permitted projects by the end of 2012 (which was reached in October, 2012³ ) to another ten gigawatts by 2020.⁴ The Bureau of Land Management (BLM) manages most of these projects and, as a result, is the agency with which most developers seeking approval for a project on public lands will interact.

The BLM manages approximately 245 million acres of surface lands and also 700 million acres of subsurface mineral estate that may be separately leased or developed by the BLM even though other private or public entities may own the surface.⁵ The agency manages these lands under the

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directives of the Federal Land and Policy Management Act of 1976 (FLPMA), 43 U.S.C. § 1701 et seq., according to the principles of multiple use and sustained yield. Multiple use includes "renewable and non-renewable 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). However, FLPMA also clarifies that not all uses are appropriate in all places and that the public lands must be managed "with consideration being given to the relative values of the resources and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output." 43 U.S.C. § 1702(c). In fact, the U.S. Court of Appeals for the 10 Circuit has characterized this management challenge as the federal government's "enormously complicated task of striking a balance among the many competing uses to which land can be put" (New Mexico v. Bureau of Land Management, 563 F.3d 683, 690, fn. 3 (10th Cir. 2009))" while simultaneously reiterating that "[i]t is past doubt that the principle of multiple use does not require BLM to prioritize development over other uses." Id. at 710.

2. Legal context -- a quiver of legal arrows

Public lands have a well-defined process for decision-making in terms of offering lands for lease or responding to proposals for development, as well as resolving conflicts related to approving such actions. The manner in which conflicts will be defined and resolved is defined by a number of key laws that also give rise to challenges by interested members of the public.

National Environmental Policy Act (NEPA). 42 U.S.C. § 4321 et sea.

NEPA dictates that federal agencies take a "hard look" at the environmental consequences of a proposed action and the requisite environmental analysis "must be appropriate to the action in question." Metcalf v. Daley, 214 F.3d 1135, 1151 (9th Cir. 2000); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989).

NEPA requires preparation of an environmental impact statement (EIS) to evaluate the environmental consequences of a proposed action when that action may significantly impact the environment. 40 C.F.R. § 1501.4. The definition of "significantly" (set out at 40 C.F.R. § 1508.27) determines whether an EIS is required or if an environmental assessment (EA) can be prepared.

"Significantly," as used in NEPA and defined in the NEPA regulations, requires considerations of both context and intensity:

Context means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality, depending upon the setting of the proposed action.

Intensity refers to the severity of impact and includes consideration of:

— Unique characteristics of the geographic area, such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.

— The degree to which the effects on the quality of the human environment are likely to be highly controversial.

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- The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.

— The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.

— The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.

— Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.

40 C.F.R. § 1508.27. (emphases added).

If the decision-maker determines that the effects of the proposed action are significant, then the action cannot be approved without an EIS or modification to avoid significant effects. If there are no significant effects, then a Finding of No Significant Impacts (FONSI) is prepared. The FONSI sets out the reasons why an action will not have a significant effect on the human environment, often with reference to the above context and intensity factors. EAs involve a narrower environmental analysis but still must comply with the general requirements of NEPA discussed below. Decisions made in BLM's resource management plans require preparation of an EIS, as do analysis of large proposed energy projects. However, other actions, such as leasing and permitting, may be analyzed with an EA.

Regardless of which environmental document is prepared, in order to take the "hard look" required by NEPA, agencies are required to assess impacts and effects that include: "ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative." 40 C.F.R. § 1508.8. (emphasis added). To comply with NEPA, agencies must have sufficiently examined the evidence available and cannot conclude compacts will be minimal otherwise. See, State of New Mexico v. Bureau of Land Management, 565 F.3d 683, 714-715 (10th Cir. 2009) (BLM cannot conclude that drilling will have minimal impacts to groundwater without examining evidence to the contrary.), citing, National Audubon Society v. Department of the Navy, 422 F.3d 174, 187 (4th Cir. 2005) (Where evidence in the record indicated possible impacts on waterfowl, and no evidence pointed to the opposite conclusion, court could not find that the agency had sufficiently examined the evidence before reaching its determination.).

Further, NEPA requires agencies to "rigorously explore and objectively evaluate" a range of alternatives to proposed federal actions. See 40 C.F.R. §§ 1502.14(a) and 1508.25(c). "An agency must look at every reasonable alternative, with the range dictated by the nature and scope of the proposed action." Northwest Envtl Defense Center v. Bonneville Power Admin., 117 F.3d 1520, 1538 (9th Cir. 1997). NEPA requires that federal agencies consider alternatives to recommended actions whenever those actions 'involve[ ] unresolved conflicts concerning alternative uses of available resources.' 42 U.S.C. § 4332(2)(E) (1982)." Bob Marshall Alliance

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v. Hodel, 852 F.2d 1223, 1228 (9th Cir. 1988). This requirement applies equally to EAs and EISs. Id. at 1228-29; see also Davis v. Mineta, 302 F.3d 1104, 1120 (10th Cir. 2002).

Federal agencies are generally obligated to manage the public lands to protect...