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

Date01 October 2009
Management and
Oil and Gas
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 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.
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®,, 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
issues/40.21/stuck-in-the-pawgmire; Je Gearino, 
Pinedale, C S T. (Feb. 3, 2009), available at
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.
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
8. U.S. EIA, Annual Energy Outlook 2009: Early Release Summary Presentation,
available at
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.; 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®,, 1-800-433-5120.

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