NEPA, FLPMA, and impact reduction: an empirical assessment of BLM resource management planning and NEPA in the Mountain West.

• Author: Ruple, John
• Position: National Environmental Policy Act of 1969, Federal Land Policy and Management Act of 1976, Bureau of Land Management

1. INTRODUCTION II. BACKGROUND III. METHODS IV. RESULTS V. DISCUSSION A. Preparation Time B. Environmental Impact Reduction 1. Livestock Grazing 2. Areas of Critical Environmental Concern 3. Routes Designated as Open to Vehicle Travel 4. Terrain Open to Cross-County Motorized Travel 5. Oil and Gas Development 6. Air Quality C. Impacts on Economic Metrics D. Impact Reduction and Causation 1. Subsequent Impact Reduction 2. Reductions Driven by Other Environmental Laws 3. Intervening Technological Factors VI. CONCLUSIONS I. INTRODUCTION

   The National Environmental Policy Act (1) (NEPA) requires that, prior to making, authorizing, or funding any "major Federal action significantly affecting the quality of the human environment," the lead federal agency must prepare a detailed statement discussing the environmental impacts resulting from the proposed action, and alternative means of satisfying the purpose and need for the proposed action. (2) The scope and intensity of impacts associated with the proposed action determine the level of analysis required, with the most significant projects necessitating completion of an Environmental Impact Statement (EIS). (3)

   NEPA has proven to be a controversial statute, with supporters claiming that it enhances public involvement and leads to environmentally aware decision making. (4) Detractors contend that NEPA is unduly burdensome and unnecessarily expensive, that it results in unnecessary and unreasonable project delays, and that the burden of compliance outweighs speculative environmental benefits. (5) These competing claims are difficult to evaluate because NEPA is a purely procedural statute, and statutory compliance is measured with regard to the adequacy of the investigation rather than the environmental impacts resulting from the final decision. (6) Indeed, "[i]f the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs." (7) Furthermore, as the United States Government Accountability Office explained recently, "agency activities under NEPA are hard to separate from other environmental review tasks under federal laws, such as the Clean Water Act and the Endangered Species Act; executive orders; agency guidance; and state and local laws." (8)

   These difficulties in evaluating NEPA efficacy aside, we hypothesize that NEPA compliance is likely to result in final agency decisions that are less damaging to the environment. (9) We believe that impact reduction is a byproduct of careful consideration of environmental consequences through an open and public process. If our hypothesis holds true, that finding would argue against efforts to exempt certain projects from NEPA analysis or to severely limit the scope of the analysis. (10) If our hypothesis is proven wrong, that finding would highlight a need for NEPA reform.

   To test this hypothesis we previously evaluated EISs for large oil and gas (O&G) development projects in Colorado, Montana, Utah, and Wyoming to determine whether a significant reduction in environmental impacts occurred between the initial project proposal and the final agency decision, and whether reductions carried with them a commensurate economic cost, as measured in terms of job and tax revenue creation. (11) We concluded that NEPA compliance does appear to lead to final decisions that have substantially less impact on the environment when compared to initially proposed projects. (12) "While reductions may be partially attributable to factors external to NEPA..., external factors alone do not adequately explain impact reductions."" We also found that the number of alternatives considered within an EIS affects impact reduction, with EISs considering a broader range of alternatives more effectively reducing environmental impacts. (14)

   This Article reviews EISs completed in conjunction with Resource Management Plan (RMP) revisions completed by the United States Bureau of Land Management (BLM) across the same geographic area and over the same timespan as our previous work. We seek to determine whether RMPs exhibit comparable impact reductions at similarly low economic costs. We also seek to clarify how phased NEPA reviews work together to address environmental impacts, with RMP NEPA reviews first determining which lands are available for development and under what conditions development can occur, and field development NEPA reviews addressing the site-specific approval of specific development plans.

2. BACKGROUND

   BLM currently administers 247 million acres of federal lands, more land than any other federal agency. (15) BLM also administers subsurface minerals across a 700 million-acre federal estate. (16) The Federal Land Policy and Management Act1 (FLPMA) requires BLM to "prepare and maintain on a continuing basis an inventory of all public lands and their resource[s]." (18) Based on this inventory, BLM must "develop, maintain, and, when appropriate, revise land use plans which provide by tracts ... for the use of the public lands." (19) These plans, commonly referred to as RMPs, must be developed with public involvement. (20) Each RMP establishes management direction for a discrete region of public land that can cover millions of acres, and that direction can last a decade or more. (21) Critical RMP decisions include, but are not limited to: which lands will be available for mineral development, which lands will be managed to emphasize resource protection, and what management stipulations are required to balance BLM's multiple use and sustained yield mandates across the federal landscape. (22)

   Because RMPs typically cover several million acres, they may lack the resolution needed to adequately assess the resources and environmental impacts that will result from subsequent development. Many resources, even if mapped adequately, are simply too small to show up at the multimillion acres planning scale. (23) Furthermore, determining which areas should be available to lease for future O&G development does not guarantee that those lands will be of interest to O&G operators. Even if interest exists, the timing and scale of development are unknown at the planning phase, as are project specific details like road, well pad, and utility locations. Accordingly, development level decisions are typically deferred for consideration in a subsequent EIS that "tiers" to the earlier RMP decision. (24)

   Under NEPA, RMP revisions are invariably considered "major Federal actions significantly affecting the quality of the human environment." (25) As such, RMP development and revision requires the completion of an EIS. (26) EISs are part of an iterative analytical and decision-making process that begins with publication of a Notice of Intent (NOI) to prepare an EIS. (27) The NOI kicks off a public scoping period in which the public is invited to submit comments about the proposal, the environmental issues the proposal raises, and potential alternative means of achieving the purpose and need driving the proposed action. (28) Those comments help the lead federal agency identify issues and develop alternatives to the proposed action. The reasonably foreseeable direct, indirect, and cumulative impacts anticipated to result from implementation of each alternative are then analyzed and disclosed in a Draft EIS (DEIS). (29) The DEIS is made available for public review and comment. (30) After receiving and considering public input, the lead federal agency releases a Final EIS (FEIS) that reflects public input on the agency's methods and analysis. (31) Following another public review period, the lead federal agency then issues a Record of Decision (ROD) stating the agency's decision and initiating a protest or appeals period. (32)

   The result is an iterative process whereby additional information can be acquired or considered, and actions and alternatives can be revised to reflect new information and public input. Indeed, the deciding official need not select one of the alternatives evaluated in the EIS provided that the selected alternative, which may combine elements of other alternatives, is within the range of alternatives considered. (33) Iterative change occurs both at the planning (e.g., RMP) and implementation (e.g., O&G development) level.

   The iterative nature of the FLPMA/NEPA process frequently results in changes to the proposed action, and these changes can result in significant reductions in environmental impacts. As we noted in an earlier publication, O&G development projects that are analyzed in an EIS typically see a reduction in impacts over the course of the NEPA process. (34) Some of the most significant impact reductions identified involved reductions in surface disturbing activity. (35) Air pollutant emissions also commonly experienced reductions, particularly with respect to precursors of ground-level ozone. (36)

   This Article reviews the iterative changes that occur during the RMP revision process. We compare the environmental impacts associated with continuation of current management activities as reflected in the "No Action Alternative," (37) the "Proposed Alternative" in the DEIS, and BLM's "Preferred Alternative" in the FEIS to the approved plan documented in the ROD. We also compare, where possible, the amount of impact reduction that occurs during the RMP planning phase to reductions occurring during the O&G implementation phase.

3. METHODS

   We focus on EISs for RMPs because RMPs include the predicate decisions of which BLM-managed lands will be available for O&G development, and, for those lands, what management stipulations will apply. As such, RMPs represent the first major discretionary agency decision that can significantly reduce project-related environmental impacts. (38) In order to allow for longitudinal consideration of RMPs, EISs, and O&G EISs, we limited our analysis to the same four-state region...