Wednesday, September 5, 2018

Shale Law in the Spotlight - Overview of Recent Legal Actions Relating to Oil and Gas Development on Public Lands in the United States, Part 2

Written by Chloe Marie - Research Fellow

This article provides an overview of recent legal developments relating to oil and gas development on public lands in the United States. This is the second and final article in a series that looks at select cases addressing this issue. The first article in this series was published on August 29, 2018. 

Center for Biological Diversity et al. v. U.S. Bureau of Land Management et al., in the U.S. District Court for the District of Nevada (Docket No. 3:17-cv-00553)

On September 11, 2017, the Center for Biological Diversity and Sierra Club filed a complaint for declaratory and injunctive relief against the U.S. Bureau of Land Management (BLM) calling into question the 2017 leasing of “sensitive” lands for oil and gas development purposes in Nevada. Plaintiffs argue that BLM did not properly assess the environmental impacts and consequences resulting from the use of hydraulic fracturing in rare Nevada wetlands and riparian habitats. Therefore, plaintiffs seek to overturn BLM’s “unlawful lease sale” and have the court direct BLM to conduct a thorough environmental review for all subsequent oil and gas leasing and development in Nevada. 

On June 22, 2018, plaintiffs filed a motion for summary judgment and requested that the court vacate and remand the 2017 lease sale. As part of its argument, plaintiffs alleged that “BLM fails to analyze the impacts of its decisions to lease, instead deferring the analysis to some point in the future when an applicant files an application for a permit to drill a well (‘APD’) on a particular parcel” before adding that “BLM treats the leasing of land as a mere paperwork exercise with no real impacts.”

BLM moved for a summary judgment on August 22, 2018, seeking to dismiss all of plaintiffs’ claims stating that “BLM was not required to show that no harm to the environment would occur, but only that the harm would not be significant.”

This case remains pending.

Western Energy Alliance et al. v. Jewell et al., in the U.S. District Court for the District of New Mexico (Docket No. 1:16-cv-00912)

On August 11, 2016, Western Energy Alliance brought legal action against the Obama administration pointing out the U.S. Bureau of Land Management’s (BLM) failure to hold quarterly lease sales violated the Mineral Leasing Act’s [30 U.S.C. § 226(b)] mandate stipulating that “lease sales shall be held for each State where eligible lands are available at least quarterly and more frequently if the Secretary of the Interior determines such sales are necessary.” 

Western Energy Alliance supported its claim by reference to the cancellation of lease sales and the lack of government action despite expressions of interest for leasing public land in the states of New Mexico, North Dakota, South Dakota, Montana, Wyoming, Utah, and Colorado as well as some Eastern states, including Mississippi, Michigan, Louisiana, Alabama, Arkansas, Ohio, Pennsylvania, and Kentucky. The Alliance argued that “the failure to hold lease sales according to the Mineral Leasing Act’s mandate unnecessarily delays - and can completely halt - development of certain federal minerals.” 

As a result, the Alliance requested the court to “direct BLM to abandon its current leasing schedule immediately, rescind any guidance documents and instruction memoranda that implement these unlawful practices, and promptly adopt a revised schedule that complies with the terms of the Mineral Leasing Act.” In addition, the Alliance complained that BLM withheld information from its members regarding the scheduling, rescheduling, and timing of oil and gas lease sales even though Alliance members submitted Freedom of Information Act (FOIA) requests seeking access to BLM’s records. As part of their suit, the Alliance asked the court to mandate that BLM respond to the FOIA requests. 

On October 19, 2016, some conservation groups, including the Center for Biological Diversity and Sierra Club, among others, filed a motion to intervene in the case, which motion was denied on January 13, 2017. 

On November 9, 2016, the U.S. Department of the Interior filed a motion to dismiss for lack of jurisdiction certain claims in the complaint related to BLM’s alleged violations of the Mineral Leasing Act. The basis for the motion was the argument that the Alliance did not meet associational standing requirements and did not demonstrate an injury-in-fact. The court denied this motion on January 13, 2017. 

On January 17, 2017, the conservation groups appealed the court’s order denying their motion to intervene and three days later, filed a motion to stay proceedings on certain claims pending appeal of the above order denying motion to intervene. The court granted the motion to stay proceedings on March 1, 2017. 

Subsequently, on February 1, 2018, the parties submitted a stipulation of partial dismissal of all claims subject to the motion to stay proceedings. In addition, on July 30, 2018, the parties submitted another stipulation of dismissal, but this time, regarding the entire case. 

This case is now closed. 

San Juan Citizens Alliance et al. v. U.S. Bureau of Land Management et al., in the U.S. District Court for the District of New Mexico (Docket No. 1:16-cv-00376)

On May 3, 2016, the San Juan Citizens Alliance and four other environmental groups launched a lawsuit against the U.S. Bureau of Land Management (BLM) challenging the October 2015 issuance of 13 oil and gas leases for parcels located in the Santa Fe National Forest, New Mexico. The environmental groups claim that “in conferring rights that authorize the expansion of oil and gas development, Federal Defendants failed to acknowledge or analyze the serious environmental consequences of this decision, including potentially significant impacts to wilderness, air and water quality, and climate.” Plaintiffs, as a result, asked the court to vacate and remand BLM’s lease sale and enjoin the agency from authorizing any further oil and gas leasing until it fully complies with NEPA. 

On June 14, 2018, plaintiffs received a favorable judgment from the U.S. District Court, which decided to set aside BLM’s finding of no significant impact and leasing decisions. The court remanded this matter to BLM, directing the agency to further analyze the environmental impacts and consequences of the leasing decisions at issue. BLM then filed an appeal to the U.S. Court of Appeals for the 10th Circuit on August 13, 2018. 

The case remains pending before the U.S. Court of Appeals for the 10th Circuit at Docket no. 18-2119.

Stay tuned for further legal developments!

This project is funded by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture

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