Integrating Adaptive Management and Oil and Gas Development: Existing Obstacles and Opportunities for Reform

• Date: 01 October 2009

39 ELR 10962 ENVIRONMENTAL LAW REPORTER 10-2009

Integrating

Adaptive

Management and

Oil and Gas

Development:

Existing Obstacles

and Opportunities

for Reform

by Melinda Harm Benson

Melinda Harm Benson is an assistant professor, University

of New Mexico, Department of Geography.

Editors’ Summary

Adaptive management is gaining inuence with natural

resource decisionmakers. Current laws and regulations

in the United States, however, limit eective implemen-

tation of adaptive management. Wyoming’s Pinedale

Anticline can be examined as a case study focusing on

barriers to adaptive management in the context of oil

and gas development in the United States. Beginning

with a brief primer on adaptive management, this case

study reveals how three legal structures—the Federal

Advisory Committee Act, the National Environmental

Policy Act, and the Mineral Leasing Act—are currently

impeding eective utilization of adaptive management.

Adaptive management is an innovative and relatively

recent environmental management strateg y gaining

inuence with natural resource decisionmakers. It is

a method by which scientic research is incorporated in t he

management actions through an iterative process. Eorts

to utilize adaptive management in the United States are on

the increase.1 In March 2007, Secretary Dirk Kempthorne

directed all bureaus within the U.S. Department of the Inte-

rior (DOI) to utilize adaptive management whenever pos-

sible.2 Eorts to employ adaptive management in projects

extracting oil and gas from federal reserves, however, have

stumbled. e Bureau of Land Ma nagement’s (BLM’s) ag-

ship eort in this area is the Pinedale Anticline Oil and Gas

Exploration and Development Project in northeastern Wyo-

ming.3 From an adaptive management perspective, the proj-

ect ha s been unsuccessful. e sta keholder group designed

to implement the process fell apart, wildlife populations in

the area are in signicant decline, and oil and gas extraction

         

      



       

    

  

          

        









1. Agencies throughout the federal government have begun incorporating adap-

tive management into actions ranging from species recovery and resource

management planning to ocean dumping and cattle grazing. See, e.g., 73 Fed.

Reg. 67542 (Nov. 14, 2008) (Notice of Intent to Revise a Resource Manage-

ment Plan for the Bualo Field Oce, Wyoming, and Prepare an Associated

Environmental Impact Statement); 73 Fed. Reg. 71575 (Nov. 25, 2008) (Des-

ignation of Ocean Dredged Material Disposal Sites Oshore of the Umpqua

River); 73 Fed. Reg. 67835 (Nov. 17, 2008) (Kemmerer Grazing and Range-

land Vegetation Management Project).

2. See U.S. Secretary of the Interior, Secretariat Order 3270 (2007), available at

http://www.doi.gov/initiatives/AdaptiveManagemen t/documents/Secretarial

Order3270AM030907.pdf. e order recognized that a number of condi-

tions are necessary for a management situat ion to allow for adaptive manage-

ment. e order states that consideration of adaptive management is war-

ranted when:

(a) there are consequential decisions to be made; (b) there is an op-

portunity to apply learning; (c) the objectives of management are

clear; (d) the value of reducing uncertainty is high, (e) uncertainty

can be expressed as a set of competing, testable models, and (f ) an

experimental design and monitoring system can be put in place with

a reasonable expectation of reducing uncertainty.

Id.

3. U.S. Department of Interior, Record of Decision (ROD) Environmental Im-

pact Statement for the Pinedale Anticline Oil and Gas Exploration and De-

velopment Project, Sublette County, Wyoming (2000) [hereinafter Pinedale

Anticline Project or 2000 ROD].

Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

10-2009 NEWS & ANALYSIS 39 ELR 10963

is escalating, despite increasing concerns over wildlife a nd

air quality.4

As t he DOI moves forward with integration of adaptive

management into its decisionmaking structure, it is impor-

tant that the BLM learn from its experience on the Pine-

dale Anticline. Eorts to utilize adaptive management in the

energy development context have merit. As a general matter,

adaptive management represents a signicant step forward

in natural resource management, recognizing the need to

incorporate the inevitability of scientic uncertainty into

management planning.5 With regard to oil and gas devel-

opment specically, adaptive management is particularly

important because, as will be explained, oil and gas develop-

ment involves management actions that can be as dynamic

as the ecosystems they alter. Better utilization of adaptive

management in this context is also of increasing importance,

given intensifying pressure to develop domestic sources of

natural gas. Due to its relatively low greenhouse gas emis-

sions in comparison to coal and oil, natural gas is viewed by

many as a critical “bridge fuel” key to building meaningful

approach to global climate change.6 e Energy Informa-

tion Administration (EI A)7 recently raised its projection of

U.S. production and consumption of natu ral gas, reecting

its view that there will be both increased availability of natu-

ral gas and higher demand for electric power-generation.8

e EIA also projects fewer imports and increased domestic

production for natural gas.9 Pressure on these resources will

4. See Hall Sawyer, -

  , 70 J. W M. 396, 403 (2006);

Rebecca Hunnington,   -

dale, H C N (Nov 18, 2008), available at http://www.hcn.org/

issues/40.21/stuck-in-the-pawgmire; Je Gearino, 

Pinedale, C S T. (Feb. 3, 2009), available at http://www.trib.com/

articles/2009/02/04/news/wyoming/11bcbd52f2a1893a872575530005cc76.

txt.

5. See J.B. Ruhl, Regulation by Adaptive Management—Is It Possible?, 7 M.

J.L. S.  T. 21, 21-22 (2005); Julie rower, Adaptive Management and

   -

tion. 3 E L.Q. 871, 884 (2006). Adaptive management has its critics.

See Holly Doremus, Adaptive Management, the Endangered Species Act, and the

, 41 W

L.J. 50, 53 (2001) (noting skepticism regarding agencies’ ability to imple-

ment adaptive management eectively, and concerns that the exibility in-

herent in adaptive management will be subject to the inuence of political

pressure more than the needs of biological resources). See also 73 Fed Reg.

61292, 61300 (Oct. 15, 2008) (comments on the U.S. Department of the

Interior’s new rules for implementation of the National Environmental Policy

Act, which include integrating adaptive management).

6. See P R. T E  O: O  E   P N

W 168 (2004). Chuck Alston. Progressive Policy Institute, 

, June 2003, available at http://www.ppionline.

org/documents/Natural_Gas_0603.pdf.

7. e EIA was created by the U.S. Congress in 1977 and is the statistical agency

of the U.S. Department of Energy. By law, EIA’s products are prepared inde-

pendently of administration policy considerations. For more information, see

the EIA’s website at http://www.eia.doe.gov/.

8. U.S. EIA, Annual Energy Outlook 2009: Early Release Summary Presentation,

available at http://www.eia.doe.gov/oiaf/aeo/pdf/aeo2009_presentation.pdf.

9. Id.

continue, a nd it is essential that adaptive management be

more eectively engaged in these eorts.10

It might be tempting to blame the BLM’s failure on the

Pinedale Anticline on politics. Adaptive management eorts

there were conceived in the last yea r of the relatively eco-

logically innovative William J. Clinton Administration but

were then implemented by t he George W. Bush Adminis-

tration, which had a National Energy Plan that called for

expediting development of domestic oil and gas reserves.11

Or blame could be placed on the inherently controversial

nature of oil and gas development in relatively pristine areas

like the Pinedale Anticline, which is part of the Greater Yel-

lowstone Ecosystem. While these factors are at play, t his

Article argues that the core diculty is the current legal and

regulatory framework, which hinders, rather than facilitates,

eective implementation of adaptive management in oil and

gas development.

is Art icle begins with a brief primer on adaptive man-

agement. It t hen examines the BLM’s eorts to implement

adaptive management on the Pinedale Anticline. It addresses

why three legal structures associated with the development

of federal oil and gas reserves—the Federal Advisory Com-

mittee Act (FACA),12 the National Environmental Policy

Act (NEPA),13 and the Mineral Leasing Act (MLA)14—are

currently impeding eective utilization of adaptive man-

agement. First, FACA was passed into law in an attempt to

eliminate inappropriate involvement by industry groups in

government decisionmaking. In practice, however, FACA

impedes sta keholder involvement in collaborative processes

that are necessary for successful adaptive ma nagement in

many natural resource contexts. Second, NEPA requires fed-

eral agencies to take a hard look at the environmental conse-

quences of their proposed actions. is is problematic in the

oil and gas context, where management actions evolve over

time in ve distinct stages. Moreover, NEPA’s assumption

that the agency engages in a single, well-dened “major fed-

10. e pressure to bring federal reserves to market is increasing and is embedded

in our national laws and policies. See National Energy Policy, http://www.

whitehouse.gov/energy/2001/National-Energy-Policy.pdf; Gary C. Bryner,

, 73 U. C L. R.

331 (2002). e Energy Policy Act of 2005, Pub. L. 109-58, 119 Stat. 594

(2005). See also Park County v. U.S. Department of Agriculture, 817 F.2d 609,

620, 17 ELR 20851 (10th Cir. 1987), which states:

It is the stated public policy of the United States to make public lands,

including national forest land, available for mineral leasing in an ef-

fort to reduce our energy dependence on foreign sources and to pro-

tect our national security. is policy is reected in such legislation as

the Federal Land Policy and Management Act, 43 U.S.C. §§1701-

1784 (1982) and the Mineral Lands Leasing Act, discussed earlier, as

well as §100 of the Energy Security Act of 1979, 42 U.S.C. §8701(b)(1),

explicitly establishing a national policy to end dependence on foreign

energy sources.

11. See Bryner, supra note 10.

12. 5 U.S.C. app. 2 §§1-15 (2005).

13. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.

14. 30 U.S.C. §§181 et seq. (2008).

Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.