Southern Utah Wilderness Alliance – Center for Biological Diversity – Coalition to Protect America’s National Parks – Great Old Broads for Wilderness – Living Rivers – National Parks Conservation Association – Natural Resources Defense Council – Old Spanish Trail Association – Public Employees for Environmental Responsibility – Utah Chapter of the Sierra Club – Waterkeeper Alliance – Western Watersheds Project – WildEarth Guardians


August 21, 2020

Greg Sheehan
State Director
Bureau of Land Management
440 W. 200 S., Ste. 500
Salt Lake City, UT  84101-1345

RE: Protest of the Bureau of Land Management’s Notice of Competitive Oil and Gas Lease Sale to be Held on or Around September 29, 2020

State Director Sheehan: In accordance with 43 C.F.R. §§ 4.450-2 and 3120, the Southern Utah Wilderness Alliance, Center for Biological Diversity, Coalition to Protect America’s National Parks, Great Old Broads for Wilderness, Living Rivers, National Parks Conservation Association, Natural Resources Defense Council, Old Spanish Trail Association, Public Employees for Environmental Responsibility, Utah Chapter of the Sierra Club, Waterkeeper Alliance, Western Watersheds Project, and WildEarth Guardians (collectively, SUWA), hereby timely protest the offering of all twenty-three oil and gas lease parcels proposed for sale at the Bureau of Land Management’s (BLM) September 29, 2020 competitive oil and gas lease sale. See generally BLM, September 2020 Competitive Oil and Gas Lease Sale, DOI-BLM-UT-0000-2020-0004-EA (Aug. 2020) (“Lease Sale EA” or “EA”); BLM, Notice of Competitive Oil & Gas Lease Sale (Sept. 29, 2020).1Available at https://eplanning.blm.gov/public_projects/2000028/200369968/20023771/250029975/BLM-UT-Sept2020-NCLS-wAttachments.pdf

As explained below, BLM’s decision to offer these parcels for oil and gas leasing and development violates the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq.; the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. §§ 1701 et seq.; and the Administrative Procedures Act (APA), 5 U.S.C. §§ 551-559, 701-706; and the regulations and policies that implement these laws.2The arguments raised infra apply to all protested lease parcels unless otherwise stated.

I. Leasing Is the Point of Irretrievable Commitment of Resources.

Issuing an oil and gas lease without non-waivable no-surface occupancy (NSO) stipulations—such as those at issue in this protest—constitutes an irretrievable commitment of resources. As such, the Interior Board of Land Appeals and federal courts are in agreement that BLM must analyze all potential direct, indirect, and cumulative impacts prior to issuing a non-NSO lease. See, e.g., WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 64-66 (D.D.C. 2019); N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 718 (10th Cir. 2009); Union Oil Co. of Cal., 102 IBLA 187, 189 (1988). “Because BLM [cannot] prevent the impacts resulting from surface use after a lease is issued, it [is] required to analyze any foreseeable impacts of such use before committing the resources.” N.M. ex rel. Richardson, 565 F.3d at 718. That commitment, “the point of no return,” occurs “at the point of lease issuance.” WildEarth Guardians, 368 F. Supp. 3d at 65, 66. See also BLM, Manual H – 1624-1 – Planning for Fluid Mineral Resources § I.B.2, at I-2 (Jan. 28, 2013) (recognizing that BLM must analyze all direct, indirect and cumulative impacts of oil and gas leasing and development “at the point of lease issuance”).

II. BLM Failed to Take a Hard Look at the Direct, Indirect, and Cumulative Impacts of Oil and Gas Leasing and Development

NEPA and its implementing regulations are our “basic national charter for the protection of the environment.” 40 C.F.R. § 1500.1. The primary purpose of NEPA is two-fold: (1) “[i]t ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts,” and (2) “it . . . guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Thus, while “NEPA itself does not mandate particular results, but simply prescribes the necessary process,” id. at 350, agency compliance with NEPA’s action-forcing statutory and regulatory mandates helps federal agencies ensure that they are adhering to NEPA’s noble purpose and policies. See 42 U.S.C. §§ 4321, 4331.

NEPA imposes “action-forcing procedures … requir[ing] that agencies take a ‘hard look’ at environmental consequences.” Methow Valley Citizens Council, 490 U.S. at 350 (citations omitted). These “environmental consequences” may be direct, indirect, or cumulative. 40 C.F.R. §§ 1502.16, 1508.7, 1508.8.

A. Direct and Indirect Impacts

In the EA, BLM unlawfully postponed meaningful NEPA analysis to the Application for Permit to Drill (APD) stage. Reasonably foreseeable impacts cannot be deferred to the APD stage because at that point “the ‘No Action Alternative’ is no longer on the table with respect to the non-NSO leases.” Ctr. for Biological Diversity v. U.S. Forest Serv., — F. Supp. 3d —, 2020 WL 1429569, at *11 (E.D. Ohio March 13, 2020). As the court in Center for Biological Diversity stated when it recently rejected a similar attempt by the Forest Service to postpone its NEPA “hard look” obligation to the APD stage: 

Defendants’ decision not to conduct further review . . . was based on the assumption that there was no significant impact at the leasing stage because no surface disturbing activities [at the time of lease issuance] would occur. But this Court joins other courts in finding that this conclusion “fell short of NEPA’s requirements with respect to leases lacking NSO stipulations . . . because at the leasing stage ‘the agency made an irrevocable commitment to allow some surface-disturbing activities,’ and it was therefore required to analyze those activities before it could no longer preclude them.

Id. at *12 (internal citations and alterations omitted).

BLM fails to comply with NEPA when it fails to perform the analysis that NEPA requires. See, e.g., Diné Citizens Against Ruining Our Envtl. v. Bernhardt (Diné CARE), 923 F.3d 831, 857 (10th Cir. 2019); San Juan Citizens All. v. U.S. Bureau of Land Mgmt., 326 F. Supp. 3d 1227, 1254 (D.N.M. 2018); WildEarth Guardians, 368 F. Supp. 3d at 65. “[A]ssessment of all ‘reasonably foreseeable’ impacts must occur at the earliest practicable point, and must take place before an ‘irretrievable commitment of resources’ is made.” San Juan Citizens All., 326 F. Supp. 3d at 1254.

As explained in SUWA’s comments, in the EA, BLM acknowledged that the proposed action will impact resource values that were not analyzed in the EA. See SUWA Lease Sale Comments at 14. Nonetheless, BLM did not need to analyze these impacts, according to the agency, because it asserts that it need only consider reasonably foreseeable impacts, not parcel-specific impacts. EA, App. I at 226 (citing WildEarth Guardians v. Zinke, 368 F. Supp. 3d at 66 for this proposition). BLM contends further that has no obligation to analyze and disclose these impacts if the agency attached lease stipulations and notices to the parcels. Id. This “lease now, think later” approach violates NEPA. S. Utah Wilderness All. v. Norton, 457 F. Supp. 2d 1253, 1267 (D. Utah 2006).

First, BLM misinterprets the court’s decision in WildEarth Guardians as supporting the proposition that the agency can ignore—entirely—reasonably foreseeable resource impacts from oil and gas leasing and development, which misstates the law. While the court held that BLM did not need to analyze the parcel-specific greenhouse gas (GHG) emissions and climate impacts of development at the leasing stage, it also held that GHG emissions and climate impacts were reasonably foreseeable at the leasing stage and BLM violated NEPA by having failed to analyze and disclose them in the “aggregate,” i.e., “the impacts of oil and gas drilling across the leased parcels as a whole.” 368 F. Supp. 3d at 66-67. Here, BLM is offering leases in or near the Old Spanish National Historic Trail (OSNHT). While NEPA may not require BLM to analyze impacts to the OSNHT on a parcel-specific level (because, presumably, the placement and nature of development is unknown), it still requires BLM to analyze “the impacts [to the OSNHT] of oil and gas drilling across the leased parcels as a whole.” Id. at 67. This outcome is required by NEPA because at the leasing stage “the ‘No Action Alternative’ is no longer on the table with respect to the non-NSO leases.” Ctr. for Biological Diversity, 2020 WL 1429569, at * 11; see also WildEarth Guardians v. Bureau of Land Mgmt., — F. Supp. 3d —, 2020 WL 2104760, at *6 (D. Mont. May 1, 2020) (addressing this exact point and stating, “[s]ome impacts do not depend on placement within a parcel . . . and courts have required more specific analyses of these impacts at the leasing stage”). The same principle applies to all other resource values including, but not limited to, climate, visual, auditory, wildlife, and water resources.

For this reason, BLM’s decision to forego analysis and disclosure of impacts to the OSNHT, visual, auditory, wildlife, water resources, climate, and other resource values, including impacts associated with hydraulic fracturing, violated NEPA. See SUWA Lease Sale Comments at 16-18 (providing more detail on this point with regard to water resources and hydraulic fracturing). “NEPA requires that [federal agencies] engage in reasonable forecasting” and thus, courts “must reject any attempt by agencies to shirk their responsibility under NEPA by labeling any and all discussions of future environmental effects as crystal ball inquiry.” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1079 (9th Cir. 2011) (citation omitted). “The BLM can certainly explain specific projections with reference to uncertainty; however, it may not rely on a statement of uncertainty to avoid even attempting the requisite analysis.” Or. Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1134 (9th Cir. 2007).

When effects are reasonably foreseeable BLM must analyze them prior to making an irretrievable commitment of resources, as explained by the court in Center for Biological Diversity: 

But the problem with Defendants’ argument is that the regulatory language does not ask the agencies to review whether any surface disturbance will occur by its action; rather, the agencies are tasked with determining whether the proposed action will have “any irreversible and irretrievable commitment of resources.” As such, the lack of immediate physical disturbance cannot equate to “no irretrievable commitments of resources.”

2020 WL 1429569, at *9 (citation omitted). Here, BLM’s decision to postpone meaningful NEPA analysis past the point of an irretrievable commitment of resource “circumvent[s] the very purposes of NEPA.” Id. at *10; see also N.M. ex rel. Richardson, 565 F.3d at 718 (“Because BLM could not prevent the impacts resulting from surface use after a lease issued, it was required to analyze any foreseeable impacts of such use before committing the resource.”).

Second, lease stipulations and notices (and their accompanying BMPs and mitigation measures) do not constitute NEPA analyses. Thus, even though BLM has attached them to the leases at issue, this does not excuse the agency from its separate legal obligation to take a “hard look” at the potential impacts of its leasing decision. See, e.g., EA, App. D (citing to lease stipulations and notices attached to each lease for certain resource protection measures as justification for not having analyzed impacts). Stipulations and notices are used to comply with FLPMA and the MLA, and are not a substitute for a NEPA analysis. See, e.g., 43 C.F.R. § 3101.1-3; 43 U.S.C. § 1732(a). They also do not excuse BLM from compliance with its applicable policies such as Manual 6840, Manuals 6310 and 6320, and IM 2010-117.

Thus, BLM failed to take a hard look at direct and indirect impacts of oil and gas leasing and development.

B. Cumulative Impacts

The Lease Sale EA failed to analyze all cumulative impacts of its decisions. Cumulative impact “is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7. BLM must properly consider cumulative impacts in order to determine whether the proposed action may have a significant impact. Id. § 1508.27(b)(7). “Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.” Id.

To comply with NEPA, BLM must analyze all reasonably foreseeable cumulative impacts. The Tenth Circuit recently held that the preparation of a reasonably foreseeable development scenario (RFDS) makes it reasonably foreseeable that the number of wells identified would be drilled, and NEPA therefore requires BLM to consider the cumulative impacts of those wells in its subsequent NEPA analyses. Diné CARE, 923 F.3d at 853. As the Tenth Circuit explained, once an RFDS has been issued, the wells predicted in that document were “reasonably foreseeable future actions.” Id. (citing 40 C.F.R. § 1508.7). Thus, for purposes of NEPA, those reasonably foreseeable wells must be considered in the agency’s cumulative impact analysis. Id. at 853.

Relevant here, BLM has prepared RFDSs for the field offices at issue. This includes, but is not limited to:

    • The Fillmore field office. See generally BLM, Oil and Gas Leasing in the Fillmore Field Office, UT-010-2008-050 (April 2009) (attached).
    • The Price field office. See generally BLM, Price Field Office, App. 21, Fluid Mineral Reasonably Foreseeable Development.
    • The Richfield field office. See generally BLM, App. 12-Reasonably Foreseeable Development Scenario for Oil and Gas and Geothermal Resources.
    • The Vernal field office. See generally BLM, Vernal Field Office, App. A, Oil and Gas Development Potential; BLM, Greater Uinta Basin Oil and Gas Cumulative Impacts Technical Support Document (March 2012) [hereinafter, Greater Uinta Basin TSD].

Each RFDS anticipated the drilling of a certain number of oil and gas wells over a certain period of time (e.g., 128 wells over a fifteen year period). For example, in the Vernal RMP RFDS, BLM anticipated 6,530 wells would be drilled over a 15-year period. See Vernal RMP RFDS at A-1. BLM updated this RFDS in 2012 to predict the drilling of 28,417 new oil and gas wells. See Greater Uinta Basin TSD at 10, tbl. 3-2.

In the EA, BLM failed to analyze the cumulative impacts of the wells anticipated in the aforementioned RFDSs—wells the Tenth Circuit has held are “reasonably foreseeable future actions.” Diné CARE, 923 F.3d at 853. Instead, BLM analyzed only the cumulative impact of seventeen wells. See EA at 19, tbl. 4.3This does not include the wells anticipated for the Moab field office parcels—which have been deferred from this sale but still appear in BLM’s table. Additionally, BLM states that these wells were used to “analyze indirect impacts from leasing, not cumulative impacts.” EA, App. I at 229. If that is the case, BLM never provides an estimate of the number of wells used to analyze and disclose cumulative impacts—a number that certainly does not include all wells anticipated in the relevant RFDSs. This inappropriately narrow cumulative impacts analysis violates NEPA. By limiting its analysis in this manner BLM failed to analyze all reasonably foreseeable impacts to the following resources, among others:

  • Air quality (including the NAAQS for ozone and current nonattainment designation in the Uinta Basin);
  • Greenhouse gas emissions and climate;
  • Water quantity and quality, including the amount of water required during development of the leases (e.g., horizontal, directional, and vertical drilling), how that water will be obtained (and the effects from the drawdown of groundwater resources), and hydraulic fracturing;
  • Cultural, archaeological and historical including the OSNHT; and
  • Wildlife and plants including BLM “sensitive” species and threatened, endangered, and candidate species, and migratory birds.

BLM must analyze the cumulative impacts to the foregoing resources from all past, present, and reasonably foreseeable projects including, but not limited to, oil and gas leasing and development. See, e.g., WildEarth Guardians, 368 F. Supp. 3d at 76-78; WildEarth Guardians, 2020 WL 2104760, *9-10 (BLM’s failure to fully analyze the cumulative impacts of its oil and gas leasing decisions violates NEPA); see also 40 C.F.R. §§ 1508.7, 1508.25(c). Notably, BLM knows that there are other past, present, and reasonably foreseeable actions that have impacted (or will impact) the same resource values at issue in this lease sale. See, e.g., SUWA Map – Piecemealed Leasing in the Uinta Basin (attached); BLM, September 2019 Competitive Oil and Gas Lease Sale, Richfield Field Office, DOI-BLM-UT-0000-2019-0003-OTHER_NEPA-RFO-EA (Jan. 2020) (analyzing and disclosing impacts of issuing sixty-two leases in the Richfield field office for oil and gas development—leases located adjacent to or near areas at issue in the September 2020 sale) (attached).

The agency proffered the following rationales for failing to analyze and disclose all cumulative impacts, including to the resources discussed herein:

  • The Greater Uinta Basin TSD is “not” a RFDS. EA, App I. at 227. Specifically, BLM claims that it cannot rely on the TSD because it “was not prepared in accordance with Handbook 3031, Handbook 1624 . . . or WO Instruction Memorandum 2004-0089.” Id.
  • The Greater Uinta Basin TSD was prepared during a “boom” cycle for the oil and gas industry. Id., App. I at 228. As such, due to the “bust” in oil and gas prices, including the cancellation of certain drilling projects, the TSD well estimates are “no longer a valid metric to use for analysis. . . .” Id. Instead, according to BLM, a “more reasonable metric would be the number of wells projected in the RFDS and the four development plans [for lands in the Vernal field office] requiring EISs since the [Vernal] RMP was approved, less the number of wells drilled since the RMP was approved. That number is 14,448 including 486 wells currently being processed under the APDs.” Id. at 229.
  • “BLM’s position is that most of the reasonably foreseeable impacts of those projects were identified in the EISs prepared for the relevant RMPs. An EIS prepared for a Land Use Plan is essentially a cumulative impacts analysis of the reasonably foreseeable impacts of development of the lands proposed to be designated as open to leasing.” Id.

These rationales are unsupported and arbitrary. First, BLM has already lost the argument that it does not have to incorporate the Greater Uinta Basin TSD in its NEPA analysis, including the 28,417 wells anticipated therein. On January 3, 2020, BLM Utah State Director, Mr. Ed Roberson, set-aside a 16-well drilling project in the Uinta Basin. See generally BLM, State Director Review UT 19-03 (Jan. 3, 2020) (attached). In that instance, SUWA had requested state director review (SDR) of an oil and gas drilling project approval, based on the agency’s failure to analyze the wells anticipated in the TSD. See SUWA, Request for SDR Re: Wapiti Proposes to Drill 16 Wells From Three Existing Well Pads, DOI-BLM-UT-G010-2017-0008-EA at 3-7 (July 23, 2019) (attached). This outcome forecloses BLM from ignoring the TSD in the Lease Sale EA.

Second, BLM failed to provide a “reasoned explanation” for concluding now—more than eight years after the fact (and after having repeatedly relied on the document)—that the Greater Uinta Basin TSD was not prepared in accordance with various policies and guidance. See F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009) (“a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy”). In 2012, BLM described the TSD as containing “the best available information related to existing oil and gas development impacts and the impacts expected to occur in the reasonably foreseeable future.” Greater Uinta Basin TSD at i. In the EA, BLM provided no explanation for ignoring its prior conclusion and likewise provided no explanation for how (or why) the TSD failed to comply with the agency’s guidance and policies. See, e.g., California v. Bernhardt, — F. Supp. 3d —, 2020 WL 4001480, at *16 (N.D. Cal. July 15, 2020) (“BLM failed not only to provide a ‘reasoned explanation . . . for disregarding facts and circumstances that underlay’ [the agency’s prior position], it provided no explanation at all.”) (citations omitted); Friends of Alaska Nat’l Wildlife Refuges v. Bernhardt, — F. Supp. 3d —, 2020 WL 2892221, at *3-6 (D. Alaska June 1, 2020) (holding that the Secretary of the Interior failed to provide adequate reasoning to support the change in policy); Friends of Alaska Nat’l Wildlife Refuges v. Bernhardt, 381 F. Supp. 3d 1127, 1143 (D. Alaska 2019) (same); Indigenous Envtl. Network v. U.S. Dept. of State, 347 F. Supp. 3d 561, 584 (D. Mont. 2018) (“An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate”) (quoting Fox, 556 U.S. at 537).

Third, BLM cannot simply ignore its existing RFDSs because—at a certain snapshot in time—the price of oil is low. Rather, as the Tenth Circuit explained, an RFDS makes it reasonably foreseeable that the predicted number of wells will be drilled and NEPA requires BLM to consider the cumulative impacts of those wells in subsequent project approvals. Diné CARE, 923 F.3d at 853. The Tenth Circuit did not carve out an exception to this rule. Id. at 854 (rejecting the argument that the wells were not reasonably foreseeable because “no operator has proposed to drill all of those wells”).

BLM’s narrow focus on current oil prices also ignores the fact that RFDSs by design are forward looking predictions, typically 15-20 years, so wells anticipated therein are reasonably foreseeable future actions even if they are “not going to be drilled immediately.” Diné CARE, 923 F.3d at 854. By focusing on the one-time snapshot of oil prices, BLM overlooks the fact that crude oil prices are predicted to steadily increase for the foreseeable future. See generally EIA, Annual Energy Outlook 2019 with projections to 2050 (Jan. 24, 2019) (predicting that oil prices will continue to increase through 2050) (attached).

In Diné CARE, the court dealt with a similar situation but explained: “And, although [the RFDS] predicted ‘a five-year delay in significant activity’ in the [area at issue] ‘due to unfavorable economics’ it also predicted that well activity would ‘rapidly increase’ once the economics become more favorable.” 923 F.3d at 853 (internal alterations omitted). Thus, the wells in the RFDS were reasonably foreseeable future actions regardless of the temporarily low price of oil and gas. Id.

Fourth, contrary to BLM’s assertion, the Greater Uinta Basin TSD was not prepared to predict oil and gas development during a “boom” cycle. Rather, BLM prepared that document to “improve[] upon the accuracy of the information contained in the [Vernal RMP RFDS] because it contains updated information about the amount of activity, the location of that activity, and the effect of changing technology.” Greater Uinta Basin TSD at i. “It is intended to summarize the best available information related to existing oil and gas development impacts and the impacts expected to occur in the reasonably foreseeable future.” Id.

When BLM discredited—without analysis—its own RFDS prepared for the TSD the agency concluded that its new “best” estimate of reasonably foreseeable wells is 14,448. See EA, App. I at 229. BLM does not provide in the EA the analysis or data to support its new “best” estimate. Further, even assuming that 14,448 wells are an accurate estimate, these reasonably foreseeable wells are unaccounted for in BLM’s cumulative impacts analysis in the EA. Moreover, BLM’s response on this point overlooks the fact that the lease sale includes lease parcels outside of the Vernal field office (i.e., Fillmore, Price and Richfield) so the “four development plans requiring EISs since the [Vernal] RMP was approved” are of little help to BLM here.4In the EA, BLM’s response to SUWA’s comments focuses almost entirely on (1) the Canyon Country District parcels—all of which were deferred, and (2) the Vernal field office parcels (e.g., the Greater Uinta Basin TSD). Almost nothing is said by the agency with regard to the parcels in the Fillmore, Price, and Richfield field offices, including the RFDSs prepared for those areas. See generally EA, App. I at 224-38. See S. Utah Wilderness All. v. U.S. Dept. of Interior, 2016 WL 6909036, at *4-7 (D. Utah Oct. 3, 2016) (BLM violated NEPA by relying on unrepresentative data prepared for an area hundreds of miles from the proposed action).

Finally, the applicable RMPs contain programmatic NEPA analysis, not site-specific analysis. As such, they cannot satisfy BLM’s NEPA obligations in the present instance. See, e.g., Protect Our Communities Found. v. LaCounte, 939 F.3d 1029, 1039 (9th Cir. 2019) (“Agencies cannot rely on a general discussion in a programmatic EIS or other document to satisfy its NEPA obligations for a site-specific action”); Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 997 (9th Cir. 2004) (holding that BLM improperly tiered to programmatic EISs because “[w]hat is missing in the documentation . . . is any specific information about the cumulative effects”); Or. Natural Res. Council Fund, 492 F.3d at 1133 (“The BLM must do more than merely state that past projects contributed to environmental harms”).

To the extent they are relevant, the RMPs, as BLM states, analyzed—at best—only “most” of the environmental impacts (on a programmatic level).5If BLM has in fact tiered to the programmatic RMPs for site-specific NEPA analysis in the present instance, the agency never identified the sections or resources therein that are supposedly relied on in the Lease Sale EA. Instead, the agency largely left it up to the public to piece together the information that BLM claims to have relied on. It is BLM’s burden—not the public’s—to organize this information and data as part of its informed decisionmaking. See WildEarth Guardians, 368 F. Supp. 3d at 69 (holding that BLM wrongly placed the burden of analyzing the data on the public and stating, “it did not relieve BLM of its burden to consolidate the available data as part of its ‘informed decisionmaking,’ before issuing the leases and irretrievably committing to drilling on the parcels”). None of the RMPs, for example, analyzed the cumulative impacts of hydraulic fracturing associated with oil and gas leasing and development, including on the parcels at issue here. See San Juan Citizens All., 326 F. Supp. 3d at 1252-54 (BLM failed to take hard look at impacts to water quantity and effect of water withdrawal to the environment); Ctr. for Biological Diversity, 2020 WL 1429569, *10-12 (holding that impacts to water including from hydraulic fracturing were reasonably foreseeable at the leasing stage); WildEarth Guardians, 2020 WL 2104760, at *3-6 (holding that BLM violated NEPA by failing to analyze and disclose oil and gas leasing impacts to groundwater).

As prior courts have recognized, BLM has “substantial evidence” regarding the potential risks to surface and groundwater resources from oil and gas leasing and development, including hydraulic fracturing. WildEarth Guardians, 2020 WL 2104760, at *3. In Utah, it is estimated that 78 to 99 percent of all new oil and gas wells are developed through fracking technologies. See, e.g., EPA, Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States, EPA-600-R-16-236Fa at 3-31 (Dec. 2016) (attached). Each new well in Utah requires on average 302,075 gallons of water. Id. at ES-13, tbl. ES-1. The source of this water is unknown. Id. App. B at B-56 to -57 (“no data are available to characterize the source of water for hydraulic fracturing operations in Utah.”). Because of the lack of information EPA has stated “the salinity threshold [for groundwater] necessary for decision-making is [not known] with precision, and collection of additional groundwater quality information is advised.” Id. at 2-13. And EPA further explained that in Utah the “low surface water availability, high groundwater dependence, and . . . frequent periods of drought over the last decade” are all factors that “increase the potential for localized impacts.” Id., App. B at B-57.

The National Park Service (NPS) has also repeatedly raised this issue with BLM in the oil and gas leasing context. See, e.g., NPS Letter to BLM, RE: March 2019 Lease Sale at 2 (Dec. 13, 2018) (“hydraulic fracturing associated with oil and gas production has the potential to introduce contaminants into groundwater systems”) (attached); NPS Letter to BLM, RE: March 2018 Lease Sale at *5-6 (Oct. 23, 2017) (“NPS believes that incremental cumulative additional degradation of water resources puts the nation’s resources and the public at risk”) (attached). And the impacts of hydraulic fracturing activities to water resources have been studied extensively by public and private institutions and researchers. See, e.g., Concerned Health Professionals of New York et al., Compendium of Scientific, Medical, and Media Findings Demonstrating Risks and Harms of Fracking (Unconventional Gas and Oil Extraction), Sixth Ed. (June 2019) (attached); Andrew J. Kondashm et al., The intensification of the water footprint of hydraulic fracturing, Sciences Advances (2018) (attached); Pavle Pavlovic et al., Evaluation of potentially toxic element contamination in the riparian zone of the River Sava, Catena (2019) (attached); NRDC, In Fracking’s Wake: New Rules are Needed to Protect Our Health and Environment from Contaminated Wastewater (May 2012) (attached); Briana Mordick, Risks to Drinking Water from Oil and Gas Wellbore Construction and Integrity, Case Studies and Lessons Learned (undated) (attached); EarthWorks, Still Wasting Away: The Failure to safely manage oil and gas waste continues (May 2019) (attached); Denise Akob et al., Wastewater Disposal from Unconventional Oil and Gas Development Degrades Stream Quality at a West Virginia Injection Facility, Envtl. Sci. & Tech (May 2016) (attached).

Federal caselaw and BLM’s own policy make clear that if a proposed action may impact the same resources impacted by past, present, or reasonably foreseeable actions then BLM must analyze those cumulative impacts prior to committing an irretrievable comment of resources (i.e., at the lease sale stage). BLM’s NEPA Handbook illustrates this principle (italicized emphasis in original):

For example, the BLM proposes to build a campground near a private land where a private utility company proposes to build and operate a power generation structure. . . . If the campground construction would affect sage grouse habitat, but have no effect on air quality, and the power generation structure would affect sage grouse habitat and air quality, your NEPA document for the campground construction must describe the cumulative effects on sage grouse habitat, but not on air quality.

In another example, the BLM is reviewing a proposal to develop a natural gas field that will affect air quality but not affect any sensitive plants. The State is proposing a large prescribed burn, which will affect air quality and a sensitive plant population. The NEPA document needs to discuss the cumulative effects on air quality, but not on sensitive plants.

BLM, National Environmental Policy Act, Handbook H-1790-1 § 6.8.3.1, pgs. 57-58 (Jan. 2008) (emphasis added) (BLM NEPA Handbook). Additionally, courts have rejected similar attempts by BLM to inappropriately limit the scope of its cumulative impacts analysis in this manner. See, e.g., Diné CARE, 923 F.3d at 853-54, 857-59; WildEarth Guardians, 368 F. Supp. 3d at 76-77; Native Ecosystems Council v. Judice, 2019 WL 1131231 (D. Mont. March 12, 2019). See also S. Utah Wilderness All., IBLA No. 2019-94, at *4-7 (Sept. 16, 2019) (holding that BLM violated NEPA when it failed to analyze the cumulative impacts to migratory birds from other projects in Grand Staircase-Escalante National Monument) (attached).

Therefore, BLM failed to take a hard look at cumulative impacts of oil and gas leasing and development.

III. Greenhouse Gas Emissions and the Climate
A. Climate Change Impacts are Already Occurring and Must be Analyzed and Disclosed

A large and growing body of scientific research demonstrates, with ever increasing confidence, that climate change is occurring and is caused by emissions of GHGs from human activities, primarily the use of fossil fuels. The 2018 Intergovernmental Panel on Climate Change (IPCC) Special Report on Global Warming of 1.5°C found that human activities are estimated to have caused approximately 1.0°C of global warming above pre-industrial levels, and that warming is likely to reach 1.5°C between 2030 and 2052 if it continues to increase at the current rate.62018 Intergovernmental Panel on Climate Change, Summary for Policymakers, in Global Warming of 1.5°C: An IPCC Special Report on the Impacts of Global Warming of 1.5°C Above Pre-industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty 6 (Valérie Masson-Delmotte et al. eds., 2018), available at: https://www.ipcc.ch/site/assets/uploads/sites/2/2018/07/SR15_SPM_version_stand_alone_LR.pdf [hereinafter, Summary of IPCC 1.5°C Report]. The IPCC also found that “[i]mpacts on natural and human systems from global warming have already been observed.”7Id. at 7. Additional warming will likely lead to further impacts according to the IPCC, including:

Warming of extreme temperatures in many regions. The number of hot days is projected to increase in most land regions;8Id. at 9.

  • Increases in frequency, intensity, and/or amount of heavy precipitation in several regions;9Id.
  • Increase in intensity or frequency of droughts in some regions;10Id.
  • Rise in global mean sea level, which could potentially expose millions of people to related risks including increased saltwater intrusion, flooding and damage to infrastructure;11Id. at 10.
  • Impacts on biodiversity and ecosystems, including species loss and extinction associated with forest fires, the spread of invasive species, transformation of ecosystems from one type to another, loss of geographic range, and other climate related changes;12Id.
  • Increases in ocean temperature as well as associated increases in ocean acidity and decreases in ocean oxygen levels, and resultant risks to marine biodiversity, fisheries, and ecosystems, and their functions and services to humans;13Id.
  • Shifting the ranges of many marine species to higher latitudes, increasing the amount of damage to many ecosystems; loss of coastal resources and reduced productivity of fisheries and aquaculture; irreversible loss of many marine and coastal ecosystems;14Id.
  • Ocean acidification-driven impacts to the growth, development, calcification, survival, and thus abundance of a broad range of species;15Id. at 11.
  • Risks to fisheries and aquaculture via impacts on the physiology, survivorship, habitat, reproduction, disease incidence, and risk of invasive species;16Id.
  • Disproportionately higher risk of adverse consequences to certain populations, including disadvantaged and vulnerable populations, some indigenous peoples, and local communities dependent on agricultural or coastal livelihoods. Poverty and disadvantage are expected to increase in some populations as global warming increases;17Id.
  • Negative consequences for human health including heat-related morbidity and mortality, ozone-related mortality, amplified impacts of heatwaves in cities resulting from urban heat islands, and increased risks from some vector-borne diseases, such as malaria and dengue fever, including potential shifts in their geographic range;18Id.
  • Net reductions in yields of maize, rice, wheat, and potentially other cereal crops, particularly in sub-Saharan Africa, Southeast Asia, and Central and South America, and in the CO2-dependent nutritional quality of rice and wheat;19Id. and
  • Potential adverse impacts to livestock, depending on the extent of changes in feed quality, spread of diseases, and water resource availability.20Id.

The 2018 United States Fourth National Climate Assessment (hereinafter, NCA4) found, “that the evidence of human-caused climate change is overwhelming and continues to strengthen, that the impacts of climate change are intensifying across the country, and that climate-related threats to Americans’ physical, social, and economic well-being are rising.”21U.S. Global Change Research Program, Fourth National Climate Assessment: Volume II Impacts, Risks, and Adaptation in the United States 36 (David Reidmiller et al. eds. 2018), available at: https://nca2018.globalchange.gov/downloads/NCA4_2018_FullReport.pdf (emphasis omitted). Like the IPCC, the authors of NCA4 found that impacts are already occurring, concluding that “[t]he impacts of global climate change are already being felt in the United States and are projected to intensify in the future—but the severity of future impacts will depend largely on actions taken to reduce greenhouse gas emissions and to adapt to the changes that will occur.”22Id. at 34.

Specifically, for the Southwest region, which includes Arizona, California, Colorado, New Mexico, Nevada, and Utah, NCA4 found that:

  • Climate change is altering ecosystems and their services through major vegetation shifts and increases in the area burned by wildfire;23Id. at 1107.
  • Water resources can be scarce because of the arid conditions of much of the Southwest and the large water demands of agriculture, energy, and cities. Water supplies change with year-to-year variability in precipitation and water use, but increased evapotranspiration due to higher temperatures reduces the effectiveness of precipitation in replenishing soil moisture and surface water;24Id.
  • Greenhouse gases emitted from human activities have increased global average temperature since 1880 and caused detectable warming in the western United States since 1901. The average annual temperature of the Southwest increased 1.6°F (0.9°C) between 1901 and 2016. Moreover, the region recorded more warm nights and fewer cold nights between 1990 and 2016, including an increase of 4.1°F (2.3°C) for the coldest day of the year. Parts of the Southwest recorded the highest temperatures since 1895, in 2012, 2014, 2015, 2016, and 2017;25Id. at 1108.
  • Extreme heat episodes in much of the region disproportionately threaten the health and well-being of individuals and populations who are especially vulnerable;26Id.
  • Communicable diseases, ground-level ozone air pollution, dust storms, and allergens can combine with temperature and precipitation extremes to generate multiple disease burdens;27Id.
  • Native Americans are among the most at risk from climate change, often experiencing the worst effects because of higher exposure, higher sensitivity, and lower adaptive capacity for historical, socioeconomic, and ecological reasons. With one and a half million Native Americans, 182 federally recognized tribes, and many state-recognized and other non-federally recognized tribes, the Southwest has the largest population of Indigenous peoples in the country. Over the last five centuries, many Indigenous peoples in the Southwest have either been forcibly restricted to lands with limited water and resources or struggled to get their federally reserved water rights recognized by other users. Climate change exacerbates this historical legacy because the sovereign lands on which many Indigenous peoples live are becoming increasingly dry;28Id. at 1109.
  • Climate change affects traditional plant and animal species, sacred places, traditional building materials, and other material cultural heritage. The physical, mental, emotional, and spiritual health and overall well-being of Indigenous peoples rely on these vulnerable species and materials for their livelihoods, subsistence, cultural practices, ceremonies, and traditions;29Id.
  • In parts of the region, hotter temperatures have already contributed to reductions of seasonal maximum snowpack and its water content over the past 30–65 years, partially attributed to human-caused climate change;30Id. and
  • The increase in heat and reduction of snow under climate change have amplified recent hydrological droughts (severe shortages of water) in California, the Colorado River Basin, and the Rio Grande.31Id.

Both the IPCC and National Climate Assessment, respectively, acknowledge the role of fossil fuels in driving climate change:

“CO2 emissions from fossil fuel combustion and industrial processes contributed about 78% to the total GHG emission increase between 1970 and 2010, with a contribution of similar percentage over the 2000–2010 period (high confidence).”322014 Intergovernmental Panel on Climate Change, Climate Change 2014 Synthesis Report: Contribution of Working Groups I, II, and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change 46 (Rajendra K. Pachauri et al. eds. 2015), available at: https://archive.ipcc.ch/pdf/assessment-report/ar5/syr/SYR_AR5_FINAL_full_wcover.pdf (emphasis omitted) [hereinafter, AR5].
“Many lines of evidence demonstrate that human activities, especially emissions of greenhouse gases from fossil fuel combustion, deforestation, and land-use change, are primarily responsible for the climate changes observed in the industrial era, especially over the last six decades.”33NCA4 at 76.

Research shows that fossil fuels produced from U.S. federal lands are already a significant source of GHG emissions: “[t]ogether, coal, oil, and natural gas produced on federal lands account for approximately 25 percent of the total fossil fuels produced annually in the United States.”34Jayni Foley Hein, Federal Lands and Fossil Fuels: Maximizing Social Welfare in Federal Energy Leasing, 42 Harv. Envtl. L. Rev. 1, 9 (2018) (citing U.S. Energy Info. Admin., Sales of Fossil Fuels Produced from Federal and Indian Lands, FY 2003 through FY 2014 9 (2015), available at: https://perma.cc/AG74-3H3U). Coal produced on federal lands accounted for about 40 percent of U.S. total coal production; crude oil and natural gas produced from federal lands account for about 25 percent of U.S. production.35Id. n.26 (citing Office of Policy Analysis, U.S. Dep’t of the Interior, U.S. Department of the Interior Economic Report FY 2015 1 (2016), available at: https://perma.cc/WD39-YYXR).

A 2018 analysis from the U.S. Geological Survey (USGS) found that, “[n]ationwide emissions from [fossil] fuels extracted from Federal lands in 2014 were 1,279.0 MMT CO2 Eq. [million metric tons of carbon dioxide equivalent] for CO2 [carbon dioxide], 47.6 MMT CO2 Eq. for CH4 [methane], and 5.5 MMT CO2 Eq. for N2O [nitrous oxide]. . . . On average, Federal lands fuels emissions . . . accounted for 23.7 percent of national CO2 emissions, 7.3 percent for CH4, and 1.5 percent for N2O” over the 10 years included in this estimate.36Matthew D. Merrill et al., Federal Lands Greenhouse Gas Emissions and Sequestration in the United States: Estimates for 2005-14: U.S. Geological Survey Scientific Investigations Report 2018-5131 6 (2018), available at: https://pubs.usgs.gov/sir/2018/5131/sir20185131.pdf [hereinafter, USGS 2018 Report].

BLM acknowledges that the energy sector accounts for nearly 24 percent of national emissions for CO2, 7.3 percent for CH4, and 1.5 percent for N2O over a ten year period, and that fossil fuel combustion is the largest source of energy-related GHG emissions. See Lease Sale EA at 37. Thus, BLM must analyze and disclose to the public the contribution of its fossil fuel leasing and development decisions to this increase in GHG emissions and the resulting climate change impacts.

Federal lands are also a critical carbon sink. The USGS found that in 2014, federal lands of the conterminous United States stored an estimated 83,600 MMT CO2 Eq., in soils (63 percent), live vegetation (26 percent), and dead organic matter (10 percent).37USGS 2018 Report at 12-13. In addition, the USGS estimated that Federal lands “sequestered an average of 195 MMT CO2 Eq./yr between 2005 and 2014, offsetting approximately 15 percent of the CO2 emissions resulting from the extraction of fossil fuels on Federal lands and their end-use combustion.”38Id. at 1. Here, BLM’s only attempt to discuss sequestration is to use EPA’s Greenhouse Gas Equivalencies calculator to state that it would require approximately 648,804 acres of U.S. forests to sequester projected emissions (496,805 MT CO2e/yr). See EA at 42. While this may be helpful for contextualizing emissions, it is completely insufficient to meet BLM’s obligations under NEPA to analyze and disclose the impacts of its leasing decisions. BLM must analyze and disclose how its leasing decision and resulting fossil fuel development could lead to the elimination or degradation of these crucial carbon sinks, resulting loss of carbon storage, and related climate change impacts, including a consideration of the time lag between leasing and any reclamation and the significance of the loss of carbon sinks on GHG emissions and climate change during that time period.

Federal fossil fuels are large sources of GHG emissions and federal public lands contain important carbon sinks to help mitigate the adverse effects of climate change that could be disturbed by BLM’s leasing decisions. BLM failed to analyze and disclose to the public the comprehensive impacts of its leasing decision on GHG emissions, carbon sinks, and climate change in violation of NEPA, as further described herein.

B. The Lease Sale EA Failed to Analyze and Disclose Climate Impacts

As detailed above and previously explained by SUWA, a large and growing body of scientific research demonstrates, with ever increasing confidence, that climate change is occurring and is caused by emissions of GHG from human activities, primarily the use of fossil fuels. See generally SUWA et al., Comments re: March 2020 Competitive Oil and Gas Lease Sale, DOI-BLM-UT-0000-2020-0001-OTHER NEPA-EA at 10-36 (Dec. 28, 2019) (explaining that climate change impacts are already occurring and must be analyzed and disclosed) (SUWA Comments on March 2020 Lease Sale).39These comments and exhibits thereto were provided as part of SUWA’s comments on the September 2020 lease sale.

Here, as in the recent case, WildEarth Guardians, 368 F. Supp. 3d at 77, the discussion of climate change in the EA is conceptual: BLM merely summarizes Utah’s current climate, the mechanics of climate change, acknowledges that emissions of GHGs—especially carbon dioxide and methane—from fossil fuel development contribute to climate change, and predicts the impacts of climate change on the state’s climate. See, e.g., EA at 36-48. However, BLM fails to connect the dots by meaningfully analyzing and disclosing to the public the significance of the impacts of its fossil fuel leasing decisions on GHG emissions and climate change, as further described herein.

First, in BLM’s direct impact analysis of GHG emissions and the climate, it makes unsupported assertions. For example, in the EA, BLM states that “[n]ew well operation emissions are not included since they are approximately offset by the decrease in emissions from wells that were plugged and abandoned in 2019. In 2019, there were 126 new wells drilled and 195 wells plugged.” EA at 37. However, BLM fails to disclose the calculations it made, and the assumptions associated with those calculations, to support this assertion so the public can follow whether this assertion is factually correct.

Second, BLM’s cumulative impact analysis of GHG emissions and the climate lacks necessary information and data. In WildEarth Guardians, the court stated:

[NEPA] does . . . require that BLM quantify the emissions from each leasing decision—past, present, or reasonably foreseeable—and compare those emissions to regional and national emissions, setting forth with reasonable specificity the cumulative effect of the leasing decisions at issue. To the extent other BLM actions in the region—such as other lease sales—are reasonably foreseeable when an EA is issued, BLM must discuss them as well . . . Although BLM may determine that each lease sale individually has a de minimis impact on climate change, the agency must also consider the cumulative impact of GHG emissions generated by past, present, or reasonably foreseeable BLM lease sales in the region and nation.

368 F. Supp. 3d at 77 (internal citations omitted). The Lease Sale EA does not meet this standard.

Here, BLM’s designated Cumulative Impacts Analysis Area (CIAA) for climate analysis in the Lease Sale EA is limited to “state and regional” impacts because, according to BLM, “the public tends to experience the impacts and adaptation at a local level.” EA at 44. BLM provides no record evidence to support its conclusion. Moreover, BLM’s CIAA is arbitrary. BLM knows that climate impacts will result outside of Utah and the regional level40The EA never defines “regional level” so it is unclear what BLM means with this term. At any extent, in WildEarth Guardians, the court held that BLM’s NEPA analysis had to “consider the cumulative impact of GHG emissions generated by past, present, or reasonably foreseeable BLM lease sales in the region and nation.” 368 F. Supp. 3d at 77 (emphasis added). from the proposed sale alone, or when viewed together with other lease sales throughout the country. See, e.g., EA at 44 (recognizing that impacts can occur “on various scales” including “local, state, national, and global”). For this reason, in past lease sale EAs BLM has properly established its CIAA for climate analysis as “the State of Utah, the United States, and the globe.” BLM, Environmental Assessment, December 2018 Competitive Oil and Gas Lease Sale, DOI-BLM-UT-G010-2018-0044-EA at 41 (Sept. 2018). Designation of a broad CIAA is consistent with BLM’s guidance which states that the CIAA “is generally based on the natural boundaries of the resource affected, rather than jurisdictional boundaries.” NEPA Handbook § 6.8.3.2, pg. 58. Climate change is global in nature, so it is arbitrary for BLM to limit its climate analysis to state and regional impacts. See Mont. Envtl. Info. Ctr. v. U.S. Office of Surface Mining, 274 F. Supp. 3d 1074, 1101–02 (D. Mont. 2017) (for greenhouse gases, agency may not “limit its context analysis to the local and regional level”); accord Barnes v. United States Dep’t of Transp., 655 F.3d 1124, 1139–40 (9th Cir. 2011) (noting “the effect of greenhouse gases on climate is a global problem” (emphasis in original)).

Third, in the EA, BLM attempts to explain its use of the 20-year global warming potential (GWP) for CO2 and CH4 in its consideration of cumulative impacts. EA, App. I at 230; see also SUWA Comments on March 2020 Lease Sale at 15-17 (explaining that BLM must consider both the 20-year and 100-year GWP of 28 and 84, respectively, to account for the upper-end estimates of fossil methane). In the draft EA BLM stated that for the analysis in the EA the agency “uses [the] 100-year GWP . . . except where stated otherwise.” Draft EA at 35. In the final Lease Sale EA, BLM stated that it used the 100-year time horizon “to allow for a direct comparison with state and national emissions that are also reported using the 100-year GWP. Both the 20 year and 100-year values are reported for construction and operation emissions (Section 3.3.2.2). Only the 100-year value is reported for combustion emissions since this process converts methane into carbon dioxide (CH4 + 2O2 → CO2 + 2H20) and combustion emissions will not be meaningfully different between different GWP time scales.” EA, App. I at 230. We presume BLM’s rationale is that CO2, by definition, has a GWP of 1 regardless of the time period used, because it is the gas being used.41U.S. Environmental Protection Agency, Understanding Global Warming Potentials, https://www.epa.gov/ghgemissions/understanding-global-warming-potentials (last visited August 19, 2020). But, again, BLM assumes—without support—that all methane is completely combusted, which is simply not the case, as further described below.

It is arbitrary for BLM to report only the 100-year value for combustion emissions. See, e.g., W. Org. of Res. Councils v. U.S. Bureau of Land Mgmt., 2018 WL 1475470, at *18 (D. Mont. 2018) (“BLM violated NEPA where it failed to justify its use of GWPs based on a 100-year time horizon rather than the 20-year time horizon”); WildEarth Guardians, 2020 WL 2104760, *9-10 (holding that the failure to fully analyze cumulative impacts is a NEPA violation). See also 40 C.F.R. § 1502.1 (requiring a “full and fair discussion of significant environmental impacts”); id. § 1500.1(b) (“Accurate scientific analysis” proves “essential to implementing NEPA”); id. § 1508.27(a) (NEPA finds relevant “both short- and long-term effects”). In order to disclose both the long- and short-term impacts of its decisions, as required by NEPA, BLM must analyze the warming potential of methane emissions using both the IPCC’s current 100-year GWP for fossil methane of 36, and the IPCC’s current 20-year GWP for fossil methane of 87.42Gunnar Nyhre & Drew Shindell et al., Anthropogenic and Natural Radiative Forcing in IPCC, Climate Change 2013: The Physical Science Basis, Contribution of Working Group 1 to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change 714 (2013), available at: http://www.climatechange2013.org/images/report/WG1AR5_Chapter08_FINAL.pdf. Applying the current GWPs for fossil methane for both 20 and 100 years could substantially change BLM’s assumptions regarding the methane pollution’s impacts. See SUWA Comments on March 2020 Lease Sale at 15-20.

BLM also continues to maintain that “[t]he 20-year GWP overestimates emissions since the single well emissions inventories used in this analysis were developed before implementation of Utah Administrative Code R307-511: Associated Gas Flaring Requirements.” Lease Sale EA at 40 (emphasis added). According to BLM, “[t]his rule requires that associated gas either be routed to a sales pipeline, combustor unit, or other VOC control device which results in a reduction of [CH4] emissions and the 20-year GWP.” Id. at 40-41. As we stated in our prior comments, BLM must clarify how the 20-year GWP “overestimates” GHG emissions and provide support for this proposition. BLM must also clarify whether (and how) that purported overestimation applies in the cumulative impacts analysis section.

As previously explained, BLM must analyze and disclose the most recent 20- and 100-year GWPs. See SUWA Comments on March 2020 Lease Sale at 15-20. In addition, in the EA, BLM states that it relied on 20-year and 100-year GWP values of 28 and 84 for CH4, respectively. Lease Sale EA, App. I at 230. However, these GWP values fail to account for the upper-end estimates of fossil CH4. See SUWA Comments on March 2020 Lease Sale at 15-17 (explaining that BLM must consider upper-end estimates). BLM’s reasoning for its failure to account for carbon-feedbacks is “for the sake of simplicity and transparency to the decision maker and to provide a better comparison with state and national emissions, which do not use carbon feedback. GWP with and without carbon-feedback effects are not necessarily ‘upperend’ or ‘lower-end’ estimate, as suggested by SUWA. There is large uncertainty in the GWP estimates: ±30% and ±39% for the 20-year and 100-year methane GWPs, respectively.” EA, App. I at 230-31. BLM also asserts that including them “would not substantially change the information provided for the decision maker.” Id. at 231. However, IPCC states that ideally all indirect effects should be taken into account and that, “[t[hough uncertainties in the carbon cycle are substantial, it is likely that including the climate-carbon feedback for non-CO2 gases as well as for CO2 provides a better estimate of the metric value than including it only for CO2.” 43Myhre, G., D. Shindell, et al., 2013: Anthropogenic and Natural Radiative Forcing. In: Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change at 714, available at: https://www.ipcc.ch/site/assets/uploads/2018/02/WG1AR5_Chapter08_FINAL.pdf.Note that the term “likely” is associated with a particular certainty range, which is why it’s italicized. As such, BLM should use the GWP values that include carbon feedbacks including the adjustment for fossil methane, which for the 100-year GWP for fossil methane is 36, and for the 20-year GWP for fossil methane is 87.44Id.

Fourth, BLM failed to analyze and disclose any end uses other than combustion. In the EA, BLM states that such analysis is unwarranted because the agency “has no authority to direct or regulate the end-use of the produced products and an actual end-use may differ from the assumption used for calculating downstream GHG emissions.” EA at 41. In the EA, BLM also asserts that “[o]nly the 100-year value is reported for combustion emissions since this process converts methane into carbon dioxide (CH4 + 2O2 → CO2 + 2H20) and combustion emissions will not be meaningfully different between different GWP time scales.” Id., App. I at 230. We presume BLM’s rationale is that the GWP of CO2 is always one, regardless of time scale used. But, again, this assumes—without support—that all methane is completely combusted. This rationale is unlawful. And the conclusion that BLM’s end-use GHG emissions estimate is conservative because it assumes all oil and gas is combusted is also arbitrary because it is completely unsupported. This assumes that all end uses result in combustion, which is false. Other end uses may result in oil or natural gas being used as a feedstock to create other products rather than being combusted. The creation and use of such products may also result in GHG emissions, and those emissions could be greater or lesser than the GHG emissions caused by combustion. As noted in SUWA’s recent September 2019 lease sale protest, BLM has not demonstrated that the other potential end-uses it recognizes result in lower GHG emissions than combustion. BLM should estimate GHG emissions based on anticipated end-use or at the very least provide a range of emissions estimates for various reasonable end-use scenarios.

Additionally, BLM must analyze and disclose to the public the potential GHG emissions from activities other than construction, operation, and combustion, such as: potential emissions from gathering, boosting, processing, transmission, storage, distribution, and refining. Other indirect emissions sources downstream of the wellpad and upstream of end use that BLM should disclose and analyze CH4, CO2, and N2O emissions, including from:

  • Gathering and boosting stations;
  • Compressor stations;
  • Pig launchers/receivers;
  • Pipeline blowdowns;
  • Pipeline leaks;
  • Pneumatic devices;
  • Malfunctions and upsets;
  • Processing plants; and
  • Distribution pipeline and M&R station leaks.

BLM provides a brief list of BMPs it has identified that could potentially be used to, “reduce emissions from field production and operations.” Lease Sale EA at 44. However, BLM fails to require the use of any of these BMPs to mitigate the impacts of GHG emissions and instead simply defers mitigation to some future date stating, “[a]nalysis and approval of future development on the lease parcels may include application of BMPs within BLM’s authority, as Conditions of Approval, to reduce or mitigate GHG emissions. Additional measures developed at the project development stage also may be incorporated as applicant-committed measures by the project proponent or added to necessary air quality permits.” Id. BLM must analyze the GHG emissions and include mandatory mitigation measures to address them, rather than blindly trusting the industry to act voluntarily. See California, 2020 WL 4001480, at *19.

Fifth, as explained supra, in the EA, BLM failed to analyze the cumulative impacts of all reasonably foreseeable wells anticipated in the RFDSs prepared for each field office at issue. See supra at 7-11. As such, BLM is wrong that it has “already disclose[d] the cumulative impacts of the other actions . . . that SUWA list[ed] in their comments.” EA, App. I at 231. In fact, BLM acknowledges that it did not follow the RFDSs with regard to GHG emissions and climate impacts because, according to the agency, “BLM has determined that the use of [RFDSs] from field office RMP’s [sic] to estimate future oil and gas emissions is not the best way to estimate aggregate GHG emissions that may result from oil and gas leasing actions.” Id. at 232. This conclusion is in direct conflict with Diné CARE and thus arbitrary. Diné CARE, 923 F.3d at 853 (“We conclude that the [RFDS] made it reasonably foreseeable that 3,960 horizontal Mancos Shale wells would be drilled, and NEPA therefore required the BLM to consider the cumulative impacts of those wells in the EAs.”).45It also contradicts the agency’s claim that it relied on the relevant RMPs for cumulative impacts analysis. See EA, App. I at 229 (“BLM’s position is that most of the reasonably foreseeable impacts . . . were identified in the EISs prepared for the relevant RMPs”). In addition, BLM’s proffered rationales for why it was not required to use the RFDS are arbitrary for the reasons discussed supra. See EA, App. I at 232; see also supra at 7-11.

BLM must analyze and disclose the impacts of the proposed action including the incremental GHG emissions increases, added to other past, present, and reasonably foreseeable fossil fuel extraction emissions on a regional and national scale. See 40 C.F.R. §§ 1508.7, 1508.27(a). BLM attempts to downplay the emissions from this lease sale by arguing that “an increase in emissions from a single project would not stand out compared to natural variation. For these reasons, the BLM uses GHG emissions as a proxy for the direct and indirect environmental impacts. The climate change impacts analysis is presented with the cumulative assessment since it is the global aggregate GHG emissions over time that produces environmental impacts.” EA, App. I at 232.

This statement misleadingly trivializes the climate impacts of the GHG emissions resulting from its fossil fuel leasing decisions in violation of NEPA. Considering this lease sale in a vacuum, as BLM urges, would deprive the public of the broader context: the significant climate impacts of BLM’s overall fossil fuel program. See California, 2020 WL 4001480, at *49. Once the cumulative emissions are correctly calculated, BLM must then analyze and disclose the significance of these emissions, rather than attempt to minimize or downplay the impacts of its decisions. Nowhere in the EA does BLM specifically link the emissions resulting from its approvals to the specific climate change impacts they will cause. Mere quantification of emissions is insufficient. BLM must communicate the “actual environmental effects resulting from . . . emissions” of greenhouse gas, not just quantify them. Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 538 F.3d 1172, 1216 (9th Cir. 2008).

BLM must therefore complete a comprehensive cumulative impacts analysis that compares GHG emissions from the lease parcels to emissions from other BLM-managed projects in this region and across the country. WildEarth Guardians, 368 F.Supp.3d at 76. “To the extent other BLM actions in the region—such as other lease sales—are reasonably foreseeable when an EA is issued, BLM must discuss them as well.” Id. at 77. The court reasoned that “[g]iven the national, cumulative nature of climate change, considering each individual drilling project in a vacuum deprives the agency and the public of the context necessary to evaluate oil and gas drilling on federal land before irretrievably committing to that drilling.” Id. at 83.

Similarly, here, BLM must analyze and disclose to the public the cumulative GHG emissions from similar, collectively significant oil and gas lease sales within Utah, as well as throughout the Rocky Mountain West, and nationally. Id. at 77. (“[NEPA] does, however, require that BLM quantify the emissions from each leasing decision—past, present, or reasonably foreseeable—and compare those emissions to regional and national emissions, setting forth with reasonable specificity the cumulative effect of the leasing decision at issue. To the extent other BLM actions in the region—such as other lease sales—are reasonably foreseeable when an EA is issued, BLM must discuss them as well.”).

BLM cannot only account for emissions from this proposed lease sale but must do so for all GHG emissions associated with BLM-approved oil and gas leasing in the region and nationwide. See California, 2020 WL 4001480, at *47-48 (citing WildEarth Guardians, 368 F. Supp. 3d at 75-77 (requiring cumulative climate assessment for lease sale to include assessment of BLM’s oil and gas leasing program nationwide)). Here, BLM failed to analyze and disclose the emissions and climate impacts of these wells when added to the emissions resulting from other past, present, or reasonably foreseeable actions, in violation of NEPA. See 40 C.F.R. § 1508.27(b)(7) (requiring cumulative analysis even for impacts that are “individually insignificant but cumulatively significant”). Without considering “the combined effects” of such management, the agency cannot make an informed decision “whether, or how, to alter” the plans “to lessen cumulative impacts.” Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 810 (9th Cir. 1999).

Importantly, BLM—at best—attempted to quantify some of the GHG emissions (i.e., state and regional emissions) but entirely failed to analyze the climate effects of those emissions including, but not limited to, water resources, wildlife, and public health. NEPA requires a more searching analysis than merely disclosing the amount of pollution. BLM stated that annual GHG operation and combustion emissions would increase statewide emissions by 0.69% and national emissions by 0.0074%. EA at 48. BLM attempts to support its limited analysis by asserting that members of the public would not understand it: “[t]he Climate change and potential climate impacts, in and of themselves, are often not well understood by the general public.” EA, App. H at 213. To the contrary, disclosing that a lease sale will have $100 million in climate impacts makes it an easily digestible figure for the public, as opposed to trying to minimize the impacts as a percentage of total emissions, for example, 0.00074% percent, as BLM did here. The public can understand how an agency’s comparison of an action’s annual emissions to state, national, or global emissions misleadingly suggests that an action’s contribution to climate change is static and small, while in fact a continuing stream of emissions will add to the already too-high level of GHGs in the atmosphere and exacerbate the already excessive damage occurring each year. Comparing an agency action’s emissions to a state, national, or global inventory reveals nothing about the significance of the action’s contributions to actual environmental impacts. See California, 2020 WL 4001480, at *46 (citing Stack & Vandenbergh, The One Percent Problem, 111 COLUM. L. REV. 1385, 1393 (2011) (framing sources as less than 1% of global emissions is dishonest and a prescription for climate disaster)).

Merely quantifying GHG emissions and calculating what percentage they represent of U.S. GHG emissions is inadequate. Ctr. for Biological Diversity, 538 F.3d at 1216-17; see also California, 2020 WL 4001480, at *48-49 (citing San Juan Citizens All., 326 F. Supp. 3d. at 1248) (rejecting “facile conclusion” that leasing decision’s climate impacts were “minor” and no cumulative impacts analysis was required); Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976) (discussing “practical considerations” of studies)). Further, BLM does not translate the percentage “into locally-quantifiable environmental impacts” despite the fact that oil and gas regulation and development are not new, nor are the expected impacts. California, 2020 WL 4001480, at *52 (citing Barnes, 655 F.3d at 1140); see also Ctr. for Biological Diversity v. Kempthorne, 588 F.3d at 712; Am. Wild Horse Campaign v. Zinke, 353 F. Supp. 3d 971, 988 (D. Nev. 2018); WildEarth Guardians, 368 F. Supp. 3d at 83 (“Defendants correctly note that ‘oil and gas leasing is commonplace in the mountain west,’ and that the ‘uncertainties Plaintiffs point to concerning quantity of GHG emissions . . . do not establish uncertainty as to the effect of GHG emissions.’”).

Further, in WildEarth Guardians v. BLM, the court noted that “if BLM ever hopes to determine the true impact of its projects on climate change, it can do so only by looking at projects in combination with each other, not simply in the context of state and nation-wide emissions.” 2020 WL 2104760, at *11. “Without doing so, the relevant ‘decisionmaker’ cannot determine ‘whether, or how, to alter the program to lessen cumulative impacts’ on climate change.” Id. (internal citations omitted).

Additionally, CEQ has explicitly addressed the inappropriateness of an agency’s assertion that the emissions resulting from its actions represent only a small fraction of global emissions in order to avoid analysis and disclosure of climate impacts, as follows:

Climate change results from the incremental addition of GHG emissions from millions of individual sources, which collectively have a large impact on a global scale. CEQ recognizes that the totality of climate change impacts is not attributable to any single action, but are exacerbated by a series of actions including actions taken pursuant to decisions of the Federal Government. Therefore, a statement that emissions from a proposed Federal action represent only a small fraction of global emissions is essentially a statement about the nature of the climate change challenge, and is not an appropriate basis for deciding whether or to what extent to consider climate change impacts under NEPA. Moreover, these comparisons are also not an appropriate method for characterizing the potential impacts associated with a proposed action and its alternatives and mitigations because this approach does not reveal anything beyond the nature of the climate change challenge itself: the fact that diverse individual sources of emissions each make a relatively small addition to global atmospheric GHG concentrations that collectively have a large impact. 46CEQ Final Guidance at 10-11 (emphasis added).

In addition to including quantitative estimates of the total GHG emissions resulting from its approvals, BLM must also assess the ecological, economic, and social impacts of those emissions, including assessing their significance. See 40 C.F.R. §§ 1508.8(b); 1502.16(a)-(b). The inclusion of this information in an agency’s NEPA analysis allows members of the public and interested parties to evaluate this information, submit written comments where appropriate, and spur further analysis as needed. W. Org. of Res. Councils, 2018 WL 1475470, at *16. Without all the relevant information, a NEPA analysis cannot “foster informed decision-making” and is unlikely to survive judicial scrutiny. Id. (citing California v. Block, 690 F.2d 753, 761 (9th Cir. 1982)). Agencies must analyze the significance and severity of emissions, so that decisionmakers and the public can determine whether and how those emissions should influence the choice among alternatives. See Methow Valley Citizens Council, 490 U.S. at 351-52 (recognizing that EIS must discuss “adverse environmental effects which cannot be avoided[,]” which is necessary to “properly evaluate the severity of the adverse effects”).

While agencies are not required to use any specific protocols to determine the significance of emissions under NEPA, BLM must undertake a more robust discussion of GHG emissions. WildEarth Guardians, 368 F. Supp. 3d at 78. This is because an agency’s failure to provide a discussion of the significance of impacts resulting from its decisions and associated climate implications deprives the public of important information on the cumulative GHG emissions and true climate implications of agency actions. See Or. Nat. Desert Ass’n v. U.S. Bureau of Land Mgmt., 625 F.3d 1092, 1099-1100 (9th Cir. 2010) (“[NEPA] require[es] agencies to take a ‘hard look’ at how the choices before them affect the environment, and then to place their data and conclusions before the public.”). Accepted methods exist to quantify and analyze the significance of GHG emissions (through monetization), which BLM could use to evaluate the significance of those emissions and to balance consequences of emissions against benefits of a specific approval.47

Here, BLM’s only attempt to assess the significance of emissions is to use EPA’s Greenhouse Gas Equivalencies calculator to convert its estimate of emissions to the equivalent emissions from passenger vehicles. EA at 41. While this may be helpful for trying to contextualize emissions, it is insufficient to meet BLM’s obligations under NEPA to analyze and disclose significance, as it misleadingly trivializes the project’s contributions. The public does not necessarily have any frame of reference to assess whether the energy used by a certain number of cars driven for a year is significant or not. Such figures are still abstract, lack context, and on their own are misleading. Monetization is a much more relatable scale for the public to understand and it assesses the significance of a project’s contributions.

To that end, one tool available to analyze and disclose the significance of emissions and related climate change impacts is the Interagency Working Group’s Social Costs of Greenhouse Gases, including the social costs of carbon and methane, which are discussed in greater detail in SUWA’s June 2020 lease sale comments (included with SUWA’s Lease Sale Comments). Here, BLM must consider the social cost of carbon and methane. In the EA, BLM states that this analysis is not warranted because the “EA provides no quantitative monetary estimates of any benefits or costs.” EA at 42. BLM further states that social cost of carbon tool prepared by federal agencies with help from many other private and public partners is not applicable here because that tool was meant for “rulemakings” and “[t]he action considered here is not a rulemaking and [thus] does not require a regulatory-impact analysis.” Id. These conclusions are arbitrary.

To begin with, BLM has previously conceded that the “only meant for rule-making” argument is not legally sound as it has been “invalidated by a court decision and can no longer be considered an adequate response.” E-mail from Julie A Suhr Pierce, Great Basin Socioeconomic Specialist, BLM, to Sheri Wysong, Utah-BLM Fluid Minerals Leasing Coordinator (Aug. 14, 2017) (e-mail exchange attached with SUWA’s comments). BLM further conceded that its ‘only meant for rule-making response’ “would not hold up in court if the previous ruling [i.e., High Country Conserv. Advocates v. U.S. Forest Service, 52 F. Supp. 3d. 1147 (D. Colo. 2014)] were to be cited.” Id. Nothing has changed that would alter this conclusion.

BLM further asserts that while Executive Order 12866 required federal agencies to assess the cost and benefits of rulemakings as part of their regulatory impact analyses. 58 Fed. Reg. 51,735 (October 4, 1993), supplemented by Exec. Order No. 13,563, 76 Fed. Reg. 3821 (Jan. 18, 2011), the requirement was subsequently withdrawn by Executive Order No. 13783, 82 FR 16093 (Mar 28, 2017). Lease Sale EA at 42. However, the withdrawal of the technical documents does not impact the fact that the model developed by more than a dozen federal agencies and offices in 2010, the Interagency Working Group (IWG) on the Social Cost of Greenhouse Gases, used the best available scientific data, nor do the executive orders and regulations require BLM to limit its consideration to domestic impacts. California, 2020 WL 4001480, at *33. This approach was developed over several years through robust scientific and peer-reviewed analyses and public processes and represents the best available science on this issue. Id. at 31. “Courts have recognized that the peer review process, while not necessary, clearly is designed to ensure the accuracy and reliability of scientific information relied on by agencies.” Id. at 32 (citing Defenders of Wildlife v. United States Fish & Wildlife Serv., No. 15-cv-01993-LHK, 2016 WL 4382604, at *20 (N.D. Cal. Aug. 17, 2016) (internal quotations and citation omitted). The Social Costs of Greenhouse Gases would therefore be a far more reputable method to use to analyze and disclose the significance of emissions, as opposed to the one-sided economic “analysis” that BLM presented, as further described below.

In the EA, BLM does provide quantitative monetary estimates of purported benefits of oil and gas leasing and development. See EA at 48-56 (analyzing potential impacts to “social and economic conditions”). For example, the EA considers the “socioeconomics” of offering the leases for development and concludes there would be “generation of revenue from the lease sale.” EA at 50. This includes $9.8 million in 2019 and $156.9 million from 2003 to 2019. Id. The EA estimates that oil and gas crews will spend money in the local or regional communities. Id. at 50-51. The EA also provides information regarding “oil and gas employment effects.” Id. at 52, tbl. 14. BLM responds to these arguments by misleadingly stating “the word ‘positive’ as quoted, was used in the mathematical sense of the word. Again, no generally ‘positive’ effect to the overall region was implied. The paragraph was edited to make this abundantly clear. Whether economic impacts are viewed as beneficial or detrimental depends on the specific viewpoint of the observer. The present analysis does not presume a specific viewpoint and does not judge impacts to be benefits or costs in the universal sense of those terms.” EA, App. I at 233. No matter how BLM labels its assertions regarding the economic gains or benefits of this lease sale, it must also disclose the costs in order to comply with NEPA. It is arbitrary for an agency to quantify an action’s benefits while ignoring its costs where tools—such as the Social Costs of Greenhouse Gases—exist to calculate those costs. See High Country Conserv. Advocates, 52 F. Supp. 3d at 1192.

As SUWA has previously explained in a similar context, if an agency monetizes the economic benefits of fossil fuel extraction, it must then also monetize the costs of carbon pollution. See SUWA Comments on March 2020 Lease Sale at 21-29 (making this same point, with citations to numerous cases and regulations). NEPA mandates that an agency use state of the art science to make sound scientific decisions. California, 2020 WL 4001480, at *79 (citing 40 C.F.R. §§ 1500.1(b), 1502.22(b), 1502.24). The chosen methodology must be accurate and defensible. Id. (citing Nat. Res. Def. Council v. United States Forest Serv., 421 F.3d 797, 813 (9th Cir. 2005)) (holding that agency’s “misleading” economic methodology violated NEPA’s “procedural requirement to present complete and accurate information to decision makers and to the public to allow an informed comparison of the alternatives”).

Further, despite BLM’s claims to the contrary, the social cost of carbon and methane tools would help BLM—and the public—interpret and understand the significance of the data presented in the EA. For example, despite having touted the economic benefits of oil and gas leasing and development (e.g., jobs, local spending), BLM entirely failed to disclose any adverse effects, including cumulative impacts. In the EA, BLM makes a brief reference to “concern about effects on recreation and tourism activities due to oil and gas development.” EA at 53. However, the sum total of BLM’s analysis on this point is to state the obvious: recreation and tourism-related industries benefit from increased spending and suffer from reduced economic spending. See id. (stating that new spending of $100,000 “support[s] an estimated average of 1.2 jobs” while “[a] reduction of spending within the same industrial sectors would have opposite effects”).

In support of this recreational and tourism spending analysis, BLM prepared Table 15, which—allegedly—provides “recreation and tourism employment effects.” Id. at 53, tbl. 15. Not so. That table provides data—based on an assumption of $100,000 of new recreational and tourism spending—regarding “employment effects,” “labor income effects,” and “output effects.” Id. Notably, prior to providing this table of data in the EA BLM also cautioned: “it is understood that none of the figures shown below [i.e., Table 15] will accurately reflect current economic conditions.” Id. at 51. The social cost of carbon and methane tools, had BLM used them, would have added necessary context, detail and relevance to BLM’s data—data which as currently presented is completely untethered from any actual impacts analysis.

Among other things, BLM never explains (1) why it chose $100,000 as its baseline, (2) what the data in Table 15 actually represents (or is meant to represent, or how it is supposed to be interpreted), (3) how that data is relevant with regard to oil and gas leasing and development, and, importantly, (4) how the data is being used to inform BLM’s decision regarding potential impacts of leasing and development. Instead, BLM presents the data and concludes: “Where recreation and tourism play a greater role in a county’s economy, the economic effects from an increase or reduction in spending would be greater than in the study area on average. The opposite is also true.” Id. at 53. This is merely a recognition of basic economic principles, it is not NEPA analysis.

Moreover, the entirety of BLM’s cumulative impacts “analysis” consists of the following sentence: “To the extent that separate future activities within the study area affect the county economies included in this analysis, social and economic impacts could be compounded by those activities.” EA at 56. In the Tenth Circuit a proper cumulative impacts analysis “must” address five points, at a minimum:

(1) the area in which the effects of the proposed action will be felt; (2) the impacts that are expected in that area from the proposed project; (3) other actions—past, present, and proposed, and reasonably foreseeable—that have had or are expected to have impacts in the same area; (4) the impacts or expected impacts from these other actions; and (5) the overall impact that can be expected if the individual impacts are allowed to accumulate.

Wilderness Workshop, 342 F. Supp. 3d. at 1157 (quoting San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1056) (10th Cir. 2011)) (internal alterations omitted; emphases added). Here, BLM’s one sentence of analysis does not meet this standard.

  • Seventh, another measuring standard available to agencies for analyzing the significance of GHG emissions is to apply those emissions to the remaining global carbon budget through carbon budgeting—which offers a cap on the remaining stock of greenhouse gases that can be emitted while keeping global average temperature rise below scientifically researched warming thresholds, beyond which climate change impacts may result in severe and irreparable harm.47The Paris Agreement states that global warming must be held “well below 2°C above pre-industrial levels” with a goal to “limit the temperature increase to 1.5°C.” U.N. Framework Convention on Climate Change Conference of the Parties, Twenty-First Session, Adoption of the Paris Agreement, Art. 2, U.N. Doc. FCCC/CP/2015/L.9/Rev.I (Dec. 12, 2015), available at: http://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement.pdf [hereinafter, Paris Agreement] (attached with SUWA’s Lease Sale Comments). Research shows that enormous and rapid cuts in GHG emissions are needed to meet climate goals. The IPCC’s Special Report on 1.5°C estimated a remaining budget from the start of 2018 of approximately:
  • 420 Gigatonnes of CO2 (GtCO2) for a two-thirds chance of limiting warming to 1.5°C;48See Joeri Rogelj, et al., Mitigation Pathways Compatible With 1.5°C in the Context of Sustainable Development 108 (V. Masson-Delmotte et al. eds., 2018)( An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty) [hereinafter, Chapter 2 of IPCC 1.5°C Report], available at: https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_Chapter2_Low_Res.pdf (attached with SUWA’s Lease Sale Comments).
  • 580 GtCO2 for a 50 percent chance of limiting warming to 1.5°C;49Id.
  • 1170 GtCO2 for a two-thirds chance of limiting warming to 2°C;50Id. and
  • 1500 GtCO2 for a 50 percent chance of limiting warming to 2°C.51Id.

In order to meet these targets, global CO2 emissions would need to reach net zero in about 30 years to stay within a 580 GtCO2 budget, reduced to 20 years for a 420 GtCO2 budget.52Id. at 96.

However, there are also significant uncertainties in these carbon budgets—uncertainties that in some cases are nearly as large as the entire budgets themselves. While the multiple sources of uncertainties cannot be formally combined, the IPCC concluded that, overall, “current understanding of the assessed geophysical uncertainties suggests at least a ±50% possible variation for remaining carbon budgets for 1.5°C-consistent pathways.”53Id. at 107. In other words, the remaining global carbon budget may be significantly smaller than these estimated budgets. The potential carbon emissions from existing fossil fuel reserves—the known belowground stock of extractable fossil fuels—considerably exceed both 2°C and 1.5°C of warming. Globally, the IPCC found in AR5 that, “[e]stimated total fossil carbon reserves exceed [the 2°C budget] by a factor of 4 to 7.”54AR5 at 63. Another study found that, to meet the target of 2°C, “a third of oil reserves, half of gas reserves and over 80 percent of current coal reserves should remain unused from 2010 to 2050.”55Christophe McGlade & Paul Ekins, The Geographical Distribution of Fossil Fuels Unused When Limiting Global Warming to 2°C, 517 Nature 187, 187 (2015), available at: https://www.nature.com/articles/nature14016.pdf (attached with SUWA”s Lease Sale Comments).

Research shows that potential emissions from just U.S. federal fossil fuels could take up all or a significant portion of the remaining global carbon budget. A 2015 analysis prepared by EcoShift Consulting estimated that the potential emissions from all U.S. fossil fuels is 697-1,070 GtCO2eq.56Dustin Mulvaney et al., EcoShift Consulting, The Potential Greenhouse Gas Emissions of U.S. Federal Fossil Fuels 18 (2015), available at: https://www.ourenergypolicy.org/wp-content/uploads/2015/08/Potential-Greenhouse-Gas-Emissions-U-S-Federal-Fossil-Fuels.pdf (attached with SUWA”s Lease Sale Comments). Federal fossil fuels—including crude oil, gas, coal, oil shale, and tar sands—account for as much as 492 GtCO2eq, or approximately 46 to 50 percent of total potential emissions.57Id. Unleased federal fossil fuels comprise 91 percent of these potential emissions, with already leased federal fossil fuels accounting for as much as 43 GtCO2eq.58Id. Unleased federal gas has potential GHG emissions ranging from 37.86 to 47.26 GtCO2eq, while leased federal gas represents 10.39 to 12.88 GtCO2eq.59Id.

Unleased federal crude oil has potential GHG emissions ranging from 37.03 to 42.19 GtCO2e, while potential emissions from leased federal crude oil represents from 6.95 to 7.92 GtCO2e.60Id.

BLM responds by stating as follows: “[w]hile a carbon budget sounds like a simple tool there is a lot of complexity and uncertainty to it that make it confusing to the decision maker and public.” EA at 43. While we acknowledge that global carbon budgets are imperfect, as BLM asserts, see EA, App. H at 214, they represent tools presently available to agencies to use in analyzing and disclosing to the public the significance of their decisions on GHG emissions and their implications for climate change. Despite BLM’s assertions that the public doesn’t understand climate change, Id. at 213, most people are familiar with budgets because they use them to manage their own household and business expenses. Members of the public are more likely to understand a budget, as opposed to BLM’s method of minimizing the impacts of its leasing decision as a percentage of total emissions, for example, 0.00074% percent, as BLM did here. The reality is that the global carbon budget is rapidly being spent, and every additional ton of emissions is a debit against the climate. Thus, BLM should analyze and disclose the cumulative emissions resulting from its actions against the remaining carbon budget, thereby providing decisionmakers and the public the necessary context for understanding the significance of their decisions. See 40 C.F.R.§ 1508.27(a).

Finally, in light of rapidly shrinking global carbon budgets, BLM should consider a “no leasing” alternative. BLM has broad discretion not to lease public lands for minerals development, and has the responsibility to use this discretion to safeguard environmental and human health resources and values in light of climate change. See, e.g., Udall v. Tallman, 380 U.S. 1 (1965); Rocky Mountain Oil & Gas Ass’n v. U.S. Forest Serv. 157 F. Supp. 2d 1142 (D. Mont. 2000). BLM should use carbon budgeting to contextualize emissions, quantifying how much of the remaining global carbon budget the lease sale will consume, utilizing the lease sale’s direct and indirect emissions.

Notably, BLM already took this approach in a draft environmental assessment for the New Elk coal lease in Colorado. As BLM’s New Elk EA demonstrates:

The newest budget estimates are expressed as the remaining cumulative CO2 emissions from the start of 2018 until the time of net zero global emissions and suggest a value between approximately 420 gigatons of carbon dioxide (GtCO2) and 580 GtCO2. For the purposes of this analysis, an average of 500 GtCO2 is used (BLM 2019). Over the life of the project, the Mine is anticipated to generate 300.3 million tons of CO2e (direct and indirect) if all of the recoverable coal is mined under the Proposed Action. The federal scope or portion of that estimate would be 14.3 percent or 42.9 million tons of CO2e (Proposed Action minus the No Action Alternative). Although not strictly a one-to-one comparison, on a CO2e basis, the No Action Alternative would consume approximately 0.06 percent of the remaining carbon budget, while the federal scope of the Proposed Action Alternative would consume 0.01 percent.61BLM, New Elk Coal Lease By Application, Federal Coal Lease (COC71978), Draft Environmental Assessment, at 3-7 (April 2019) (attached).

The fact that BLM has recently used this tool to analyze the climate impact of both a single federal coal lease and a set of 283 federal oil and gas leases demonstrates the availability of the tool, its usefulness to the public and decisionmakers, and BLM’s ability to apply the tool in the NEPA decision making context.62BLM, Supplemental Environmental Assessment for the May 2015-August 2016 Sold and Issued Leases, No. DOI-BLM-WY-0000-2019-0007-EA, at 12, 51-52 (May 2019) (attached). NEPA requires agencies to use the tools available to them in order to ascertain essential information or explain why they cannot do so. 40 C.F.R. § 1502.22. Under the applicable NEPA regulations, if an agency intends not to include essential information in its NEPA review, it “shall” explain (1) why such essential information is incomplete or unavailable; (2) its relevance to reasonably foreseeable impacts; (3) a summary of existing science on the topic; and (4) the agency’s evaluation based on any generally accepted theoretical approach. Id. § 1502.22(b).

Utilizing carbon budgets would disclose the cumulative climate impacts of its decisions in a way that is clearly understandable to decisionmakers and the public. As explained above, it is a three-step process: (1) list the remaining global carbon budget for estimated probabilities of limiting warming to 2° and 1.5°C; (2) list the cumulative greenhouse gas emissions from its lease sales; and (3) compare figures (1) and (2).

BLM offers various justifications for a refusal to place emissions totals in the context of a carbon budget, relying primarily on range of variability in carbon budget estimates. In its response to comments, BLM argues:

According to the IPCC Special Report, “uncertainties in the size of these estimated remaining carbon budgets are substantial.” The IPCC estimates the budget for a 50/50 chance of exceeding 1.5°C at 580 gigatons of CO2 (GtCO2), with an uncertainty of ±400GtCO2. This uncertainty is nearly 70% of the budget and results from the precise meaning of the 1.5°C target, the definitions of “surface temperature” and “pre-industrial” period, the choice in observational temperature datasets, the uncertainty in non-CO2 factors that influence warming, and if earth-system feedbacks should be taken into account. With the large uncertainty in the remaining carbon budgets, it is not a useful tool for assigning a GHG emissions significance level at this time. Additionally, carbon budgets are inherently reduced with any GHG emissions. Based on the disclosed GHG emissions in the EA and the substantial uncertainties in the size of carbon budgets, inclusion of carbon budgets would not provide additional useful information to the decision maker or public. The IPCC further states that policy actions across sectors and spatial scales are needed to reduce emissions and limit warming. Evaluations of such policy actions are beyond the scope of this EA.

EA, App. H at 214. Uncertainties in the size of remaining carbon budgets, however, weigh in favor not of refusing to consider the issue, but rather of disclosing those uncertainties—including the possibility that the remaining budget for even a 50% change of avoiding 1.5°C warming may be as little as approximately 180 GtCO2e. Furthermore, given the reliance of virtually all modeled scenarios for averting catastrophic climate change on “overshooting” carbon targets then later extracting carbon using untested technologies, avoidance of catastrophic risks requires acknowledging the possibility that remaining carbon budgets may be at the lower end of the estimated range of variation, and acknowledging the increasing costs of delays in decarbonization.

Agencies may not shirk their responsibilities to assess climate change merely because of uncertainties. “Reasonable forecasting and speculation is…implicit in NEPA, and we must reject any attempt by agencies to shirk their responsibilities under NEPA by labelling any and all discussion of future environmental effects as ‘crystal ball inquiry.’” Save Our Ecosystems v. Clark, 747 F.2d 1240, 1246 n.9 (9th Cir. 1984) (quoting Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Comm., 481 F.2d 1079, 1092 (D.C. Cir. 1973)). NEPA’s hard look merely requires “a reasonably thorough discussion of the significant aspects of the probable environmental consequences” to “foster both informed decision‐making and informed public participation.” Ctr. for Biological Diversity, 538 F.3d at 1194 (quotations and citations omitted). As here, BLM has refused to address the implications of its actions in the context of climate change on the basis of uncertainties which has led BLM to take short-sighted, arbitrary, and capricious action that does not, in fact, account for climate change.

NEPA does not allow agencies to use uncertainty as an excuse for refusing to conduct reasonably available analysis of foreseeable environmental consequences. Agencies are not allowed to use uncertainty as an excuse for failing to do the analysis. In Ctr. for Biological Diversity v. NHTSA, 538 F.3d at 1194, the Ninth Circuit noted that while there was uncertainty in the range of estimates for the social cost of carbon, it was not zero, and ignoring it treated it as zero. Similarly, in Public Citizen v. FMCSA, the court held that “[t]he agency’s job is to exercise its expertise to make tough choices about which of the competing estimates is most plausible, and to hazard a guess as to which is correct . . . . Regulators by nature work under conditions of serious uncertainty, and regulation would be at an end if uncertainty alone were an excuse to ignore a congressional command.” 374 F.3d 1209, 1221 (D.C. Cir. 2004).

IV. BLM Unlawfully Relied on IM 2018-34

The Lease Sale EA unlawfully relied on sections of IM 2018-34 that have been set-aside by a Federal court. See generally SUWA Lease Sale Comments at 2-3 (explaining this point in more detail). Rather than address and remedy this fact—or dispute it—BLM in the EA merely stated that “[t]his is beyond the scope of commenting on the EA.” EA, App. I at 224. This response is arbitrary.

First, the issue of whether BLM’s proposed action violates federal law and the agency’s leasing guidance and policy cannot reasonably be viewed as “beyond the scope” of the present matter. See N.M. Farm & Livestock Bureau v. U.S. Dept. of Interior, 952 F.3d 1216, 1230-31 (10th Cir. 2020) (“agencies are under an obligation to follow their own regulations, procedures, and precedents, or provide a rational explanation for their departure”) (internal alteration and quotation omitted; citation omitted). When the agency fails to follow its policies (or fails to provide a rational explanation for doing so) “it acts arbitrarily and capriciously.” Id. (citations omitted).

Federal courts have repeatedly vacated BLM’s leasing decisions and ordered the agency to cancel hundreds of oil and gas leases, covering more than a million acres of public lands, because the agency’s leasing decisions were unlawful, including when—as is the case here—BLM relied on IM 2018-34. See, e.g., W. Watersheds Project v. Zinke, 441 F. Supp. 3d 1042 (D. Idaho 2020); WildEarth Guardians, 2020 WL 2104760; Mont. Wildlife Fed’n v. Bernhardt, — F. Supp. 3d —, 2020 WL 2615631 (May 22, 2020).

In Western Watersheds Project, the court held that IM 2018-34 was “procedurally and substantively invalid under the APA, FLPMA, and NEPA.” 441 F. Supp. 3d at 1083. As SUWA has previously explained, based on these facts the court’s holding can easily be extended to non-greater sage-grouse lease parcels. See SUWA Lease Sale Comments at 2-3. BLM cannot avoid this reality by concluding—without analysis or record support—that the issue is “beyond the scope of commenting on the EA.”

While it is true that the court in Western Watersheds Project limited the scope of its ruling to greater sage-grouse habitat it did so for one simple reason: “This case is tied to oil and gas leases that affect greater sage-grouse habitat.” Id. at 1085. Stated differently, the court’s decision applied to greater sage-grouse because that was the resource value at issue in that instance. However, had the lawsuit involved resource values beyond greater sage-grouse (e.g., lands with wilderness characteristics, threatened and endangered species), based on the “seriousness” of the NEPA, FLPMA, and APA violations there is little doubt that the court would have extended its holding to those resource values as well. Id. at 1084 (“the seriousness of BLM’s errors outweighs the disruptive consequences resulting from vacatur”).

Here, as explained in SUWA’s comments, the Lease Sale EA followed the same “procedurally and substantively invalid” sections of IM 2018-34 at issue in Western Watersheds Project, including:

  • IM 2018-34 § III.A (six month parcel review timeframe; statewide sale—rather than rotating lease sale); and
  • IM 2018-34 § IV.B (10-day protest). And BLM failed to follow sections of IM 2010-117 that the court reinstated, including:
  • IM 2010-117 § III.A (requiring BLM emphasize “rotating lease sale parcel review responsibilities among field offices”);
  • IM 2010-117 § III.E (stating that BLM will consider three alternatives, at a minimum);
  • IM 2010-117 § III.H (requiring “[a] 30-day protest period”; requiring the NCLS be posted “at least 60 days” before the sale).

See generally SUWA Lease Sale Comments at 3 (explaining these points in more detail).

Second, in an analogous context, a federal court recently vacated an instruction memorandum and ordered BLM to cancel more than 450 oil and gas leases because “the errors here occurred at the beginning of the oil and gas lease sale process, infecting everything that followed.” Mont. Wildlife Fed’n, 2020 WL 2615631, at *11. There, the court held that BLM’s new instruction memorandum regarding greater sage-grouse prioritization for oil and gas leasing and development violated the law. See id. at *8-9. The lease sales at issue had been conducted, at least in part, in accordance with that unlawful policy. Id. at *10. As a result, the court explained that BLM’s “errors . . . occurred at the beginning of the oil and gas lease sale process, infecting everything that followed.” Id. at *11. Because these errors had infected the entire leasing process, including “BLM’s NEPA analysis of each lease sale, the protests that BLM received and the responses it provided to those protests, and potentially the EOIs that interested parties may have submitted in the first place” the court vacated the sales and leases. Id. at 11.

The same principles apply here. Like in Montana Wildlife Federation, BLM has conducted this lease sale, at least in part, in accordance with its unlawful policy (i.e., IM 2018-34). The errors occurred “at the beginning of the oil and gas lease sale process, infecting everything that followed.” Among other things, the errors infected the Lease Sale EA, lease sale protests, and the EOIs considered for this sale. For example, the EA considered only two alternatives (i.e., lease everything and lease nothing) rather than, at a minimum, three alternatives as required by IM 2010-117 § III.E—which the court reinstated. BLM also held a 10-day protest period for this sale—an unlawful action since IM 2018-34 § IV.B has been replaced with IM 2010-117 § III.H, which requires a “30-day protest period.” And, importantly, the sale includes parcels that would not otherwise have been included but for section IM 2018-34 § III.A (encouraging statewide leasing and a six-month parcel review period)—another section set-aside by the court and replaced with IM 2010-117 § III.A and its emphasis on “rotating lease sale parcel review responsibilities among field offices.”
BLM’s errors, like in Montana Wildlife Federation, “undercut” the entire leasing process and “prevent [the agency] from fulfilling” its obligations under the reinstated IM 2010-117. 2020 WL 2615631, at *11. Thus, due to the nature of these legal violations, there is no “serious possibility that the agency would be able to substantiate its decision on remand,” that is, a court would have no option but to vacate the lease sale and leases. Id. at *12 (internal alteration omitted; citation omitted). Thus, BLM’s lease sale has been infected with numerous errors and must be set-aside.

V. The Old Spanish National Historic Trail

Ten of the proposed parcels are crossed by or lie in close proximity to the OSNHT. BLM has not adequately assessed the potential impact on the OSNHT as required pursuant to the National Trail Systems Act of 1968 (NTSA), as amended,63See 16 U.S.C. §§ 1241 et seq. and NEPA.64See 42 U.S.C.S. §§ 4321 et seq.

Offering these leases additionally contradicts BLM’s own internal guidelines for management of the OSNHT, as reflected in the 2017 OSNHT Comprehensive Administrative Strategy (CAS) and in BLM’s policy manuals, particularly Manual 6280.

Therefore, lease parcels 18, 19, 20, 22, 23, 24, 26, 30, 31, and 33 within the Richfield Field Office’s purview should be excluded from the September sale. These parcels should not be leased unless and until the BLM conducts an adequate analysis of the impacts oil and gas development would have on the OSNHT and its users, and then only if leasing will not “substantially interfere” with the nature and purposes of the Trail.65See 16 U.S.C. 1246(c).

A. Violation of BLM’s Statutory Duty to Manage the OSNHT

BLM and NPS never developed a Comprehensive Management Plan as required by the NTSA.

The OSNHT was statutorily designated a national historic trail in 2002, and joint administrative responsibility was delegated to the National Park Service and BLM in 2003. The NTSA requires that, within two fiscal years of the congressional designation of a national scenic, historic, or recreational trail, the administrating agency or agencies submit a comprehensive management plan (CMP) for the trail’s use and maintenance to the Committee on Natural Resources of the House of Representatives and the Committee on Energy and Natural Resources of the Senate for approval.66See id. § 1244(e)-(f). The CMP for the OSNHT is now approximately fifteen years overdue.

In 2017, the agencies issued a “Comprehensive Administrative Strategy,” evidently in lieu of a CMP.67See “Old Spanish National Historic Trail Comprehensive Administrative Strategy” at 15, available at https://parkplanning.nps.gov/Final-OLSP-CAS. Of the nineteen statutorily designated national historic trails, the OSNHT is one of two without a CMP. None of the others has a CAS.68See, generally, https://www.nps.gov/subjects/nationaltrailssystem/national-historic-trails.htm. The CAS is not a sufficient substitute for a CMP. Not only was the CAS not submitted to Congress for approval as required under NTSA, but BLM and NPS did not complete any concurrent environmental review under NEPA to assess the CAS’ impacts. Other national historic trails’ CMPs have typically been accompanied by an EIS or EA.69For instance, as one example, the BLM and NPS co-issued a CMP/EIS for El Camino Real de Tierra Adentro National Historic Trail in 2004, recognizing that different environmental impacts would result from different management strategies, and that direct, indirect, short-term, long-term, and cumulative impacts all had to be considered. See generally, https://www.nps.gov/elca/learn/management/upload/Comprehensive-Management-Plan-Chapter-4-508.pdf. Because policies and procedures guiding the management of a federal trail and the lands around it have the potential to “significantly affect the quality of the human environment,”7042 USCS § 4332(C). they should, under NEPA, likewise undergo an EIS or an EA before implementation. Because the CAS was not accompanied by an EIS or an EA, management decisions like the one to lease these ten parcels are made piecemeal, without adequate consideration of the direct, indirect, short-term, long-term, and cumulative impacts on the Trail. Under NTSA and NEPA alike, this violates the statutory obligations of the Department of the Interior (DOI), and of the BLM and NPS as delegated OSNHT co-administrators.

In BLM’s response to comments the agency states that this comment is beyond the scope of the EA.71See Lease Sale EA, App. I at 234-35. Not so. The statutory requirements of the NTSA require that BLM prepare a CMP before making management decisions, like allowing oil and gas development on parcels adjacent to or on the OSNHT. By preparing a CAS, the BLM and the NPS have only sorted the administration of the Trail between the two agencies. A CAS does not take the place of a CMP as a CMP requires Congressional approval and thorough NEPA review.

B. Failure to Comply with BLM’s Stated Policies in CAS and Policy

The lack of an established National Trail Management Corridor and of comprehensive inventories of Trail resources, qualities, and values goes against BLM policy.

Even without the statutorily required CMP in place, the proposed lease parcels still go against BLM’s own policies. BLM Manual 6280, internal guidance for the BLM on National Scenic and Historic Trail management released in 2012, directs land managers to conduct an inventory of all Trail resources, qualities, and values as soon as possible after Trail designation by Congress, and in preparation for the CMP required within two years of such designation.72“6280 – Management of National Scenic and Historic Trails and Trails Under Study or Recommended as Suitable for Congressional Designation (Public),” Rel.6-139 at 3-1. The Manual inventory requirements state that the BLM shall, in part: “Recommend to the National Trail administering agency for inclusion in the trailwide Comprehensive Plan, data regarding Federal Protection Components (land and water based components of a historic trail), including high potential historic sites and high potential route segments, identified or discovered through the inventory process.” Manual 6280 additionally states that the BLM is required to amend land management plans that cover National Trails so as to account for Trail maintenance; when an action is proposed within the National Trail viewshed, BLM is expressly required to create an inventory of Trail resources and values.73Id. at 1-19, 1.6(A)(3)(iii). (“Until such time as a National Trail Management Corridor is established through the Resource Management Plan in accordance with this policy, an inventory shall be conducted for proposed actions within the National Trail viewshed.”)

There is no indication that the BLM Utah State Office or Richfield Field Office have conducted the comprehensive inventories of OSNHT resources, qualities, and values required by BLM Manual 6280. The RMP for the Richfield Field Office area make little mention of the existence, status, or management of the OSNHT, and does not refer to any inventories required by Manual 6280. Despite its federal designation, the plan does not refer to the OSNHT as a “special designation”—although they do refer to certain other “special designations” such as monuments, wilderness study areas, and areas of critical environmental concern, established through presidential proclamations, temporary legislative authorities, or agency administrative action.

Going forward with the lease sale in the absence of an established resource inventory or management plans that account for Trail management violates the NTSA. In the absence of an established National Trail Management Corridor, BLM should adopt the NPS practice of an interim management corridor of five miles on either side of the OSNHT.

In the absence of an established National Trail Management Corridor, BLM should adopt the NPS practice of an interim management corridor of five miles on either side of the OSNHT.

Manual 6280 also states that BLM will create an inventory of trail-related resources—including scenic resources, viewshed analyses, and scenic settings74Id. at 3-5(1)-(2).—in order to establish a National Trail Management Corridor through the land use planning process.75Id. at 1-2, 1-19. Overall, BLM is required to manage trails to protect the nature and purposes of the trail as much as possible, “recognizing the nationally significant scenic, historic, cultural, recreation, natural, and other landscape values … of the public land areas through which such National Trails may pass.”76Id. at 1-17.

To date, there has been no comprehensive inventory of Trail resources, qualities, and values, and there is no established National Trail Management Corridor to provide clear guidance on how the trail is to be managed and maintained. BLM therefore does not adequately account for the impacts of its other actions on the resources and values of the Trail.

The CAS points out that BLM Manual 6280 defines a trail corridor as “includ[ing] the area of land that is of sufficient width to encompass national trail resources, qualities, values, and associated settings.”77See “Old Spanish National Historic Trail Comprehensive Administrative Strategy” at pp. 22-29.  The OSNHT CAS also states that the

width of the corridor fluctuates as it incorporates variations in routes and alignments (the result of environmental factors) and is dependent on landforms. The resource corridor might include narrow canyons or extensive viewsheds; it traverses a variety of ecoregions that create a multitude of landscapes of varying lengths and widths.

The need for intensive Trail inventories is thus clearly a fundamental part of the corridor identification process. An unresolved conflict between the federal Co-Administrators, BLM and NPS, of the OSNHT further illustrates this need:

The trail corridor is informally considered by the NPS to lie five miles on either side of the centerline of the trail alignment to include the nearest elements of the view shed, parts of the cultural landscapes, landmarks, and traditional cultural properties near the trail. The BLM follows direction from their trail administration manual to establish a trail corridor.78Id. at 5.

This conflict between Co-Administrators contradicts the NTSA’s intent to uniformly assess and establish Trail corridors that protect Trail resources, qualities, and values. Until the BLM fulfills its NTSA obligations and meets the requirements of internal policies such as those in Manual 6280, the long-established NPS practice of an interim management corridor of five miles on either side of a Trail centerline should be adopted.

Based on map information uploaded by the BLM to the ArcGIS site,79ArcGIS Layers: “BLM Utah – National Scenic and Historic Trails,” created by bmueller@blm.gov_BLM_EGIS, updated July 6, 2018; “BLM Utah – VRM Classes,” created by bmueller@blm.gov_BLM_EGIS, updated July 18, 2018; as well as map data on the proposed leases available on the BLM NEPA Register Page,80“Sept2020_revised_prelim.zip,” on https://eplanning.blm.gov/eplanning-ui/project/2000028/590, accessed June 25, 2020. 10 of the proposed parcels on the September 2020 lease list appear to be within five miles of the trail:

 

 

 

 

 

These parcels’ proximity to the OSNHT means that any development could greatly disturb the viewshed from the trail. Viewshed analysis from the trail should be conducted under the procedures detailed in BLM Policy Manual 6280,81See “6280 – Management of National Scenic and Historic Trails and Trails Under Study or Recommended as Suitable for Congressional Designation (Public),” Rel.6-139 at 3-4(B). and these parcels should not be leased until it can be completed.

C. If BLM would like to set a “Two-Mile from Centerline Corridor” Rule, the Agency should engage in Rulemaking, as required by the Administration Procedure Act

In response to our comment that since BLM has not done appropriate planning as an interim measure BLM should apply the NPS trail corridor of five miles, BLM set an arbitrary number of two miles.82Lease Sale EA, App. I at 235. BLM justifies this by stating

Whereas the nature of a National Park allows for greater protection of viewshed, the multiple use mandate of the BLM confines it to a more conservative setting. For most segments of the trail, five miles from the centerline would be excessive…Lease notices have been added to all remaining parcels within two miles of the trail, to inform the potential lessee of the conflict.” 83Id.

We fail to see how the FLPMA’s defined multiple use mandate requires a more narrow evaluation of the trail corridor than the National Park Service. In fact, since BLM, pursuant to

FLPMA, is required to consider multiple uses of resources including recreation, health and well-being of rural communities, wildlife, and environmental protection in addition to the considerations of the NTSA considerations, like the cultural landscapes, landmarks, and traditional cultural properties, it could be argued that the trail corridor should in fact be broader than that of the NPS established trail corridor. This is the type of analysis that is determined in agency rulemaking.
Generally, agencies must promulgate rules whenever adopting an “agency statement of general or particular applicability” that implements or interprets an enactment of Congress or a regulation adopted by a federal agency.845 U.S.C. § 551(4). For an agency to create a rule which establishes a “binding norm,” rulemaking is required.85Id. By setting a two mile trail corridor the agency has created a rule without engaging in proper rulemaking procedure as required by the APA. Rulemaking in a land use planning document requires adequate public notice and the opportunity for meaningful comment.86Id. § 533.

We have seen no evidence that BLM ever provided notice of a rulemaking hearing in the Federal Register to set a centerline variance for a trail corridor for the OSNHT. This decision to only consider impacts of oil and gas leasing to those parcels within two miles of the center line of the trail, is a “final agency action” and is subject to judicial review in part because of its binding application to all parcels in the lease sale.

A rulemaking proceeding would best serve the public interest because it will accommodate thoughtful consideration of significant environmental, public health, economic, and social impacts of the formal adoption of an applicable standard. Rulemaking gives the public and stakeholders the opportunity to participate though notice, comment, and a public hearing. As discussed above, because a CMP, with appropriative and comment, would legally establish a trail corridor, and an inventory of resources, qualities, and values are all lacking, limiting the evaluation distance set by BLM at two miles is unwarranted.

D. If Applying BLM’s “Two-Mile from Centerline” Rule, Lease Notice Stipulations Should be Applied to Three Additional Parcels

Where BLM acknowledges potential impact to the OSNHT, the proposed remedies—lease stipulations to restrict development—are inadequate. Not only is this stipulation insufficient to protect OSNHT resources, qualities, and values, it is unevenly applied—there is no clear explanation why it has been applied to some parcels and not others.

Based on map information uploaded by the BLM to the ArcGIS site,87ArcGIS Layers: “BLM Utah – National Scenic and Historic Trails,” created by bmueller@blm.gov_BLM_EGIS, updated July 6, 2018; “BLM Utah – VRM Classes,” created by bmueller@blm.gov_BLM_EGIS, updated July 18, 2018; as well as map data on the proposed leases available on the BLM NEPA Register Page,88“Sept2020_revised_prelim.zip,” on https://eplanning.blm.gov/eplanning-ui/project/2000028/590, accessed June 25, 2020. seven of the proposed ten parcels on the September 2020 lease list appear to be within two miles of the trail. The BLM has applied Lease Notice Stipulations to four of them, but failed to include Parcels 24, 31, 33 which are respectively 1.94, 1.13, and 1.29 miles from the centerline.

The stipulation is attached to some parcels but not to other similarly situated parcels, without explanation or discernable reason. An arbitrarily applied lease stipulation will not effectively protect these resources.

E. There is an Error in the Lease Notice Stipulation for Parcel 020

Although the EA states89Lease Sale EA, Unsigned Finding of No Significant Impact at 5.:

Four parcels are within two-miles of the Old Spanish National Historic Trail. Lease notice UT- LN-65 is applied to parcels 018, 019, 020, and 030. Other historic and cultural resources, are protected by the National Historic Preservation Act (NHPA), as stated in the Cultural Resource Protection stipulation which is applied to all parcels.

UT-LN-65 was not applied to Parcel 020 in the EA-FONSI91 nor in the Final September Lease Sale List.90Notice of Competitive Oil and Gas Lease Sale, September 29, 2020, Attached September 2020 Final Oil and Gas Lease Sale List, Utah State Office at pp. 7-8. This parcel cannot be listed for sale without the appropriate Lease Notice Stipulation. At a minimum, the lease sale notice must be corrected and posted and publicized with the appropriate time for protest.

F. Failure of the EA to Analyze and Disclose Impacts to the Resources, Qualities and Values of the OSNHT

BLM misinterprets the NTSA to only afford “Federal protection” for “high-potential” sites and route segments.

BLM routinely disregards the potential impacts of its actions across all stretches of the OSNHT on federally owned lands, finding that only “high potential sites” (HPS) and “high potential route segments” (HPRS) of the OSNHT warrant protection.91Lease Sale EA at 13, 100, 101, 197, 322. Rather, under a plain reading of the statutory text, all federal lands along the OSNHT that are subject to the proposed lease sale at issue must be assessed. In response to comments, BLM again asserts that

The commenter’s assertion that the cumulative impact analysis area (CIAA) for impacts to the OST must be the entire trail defies the rule of reason. A reasonable CIAA might be an entire high potential segment.92Id., App. I at 235.

However, the NTSA holds that

only those selected land and water based components of an historic trail which are on federally owned lands and which meet the national historic trail criteria established in this Act are included as Federal protection components of a national historic trail9316 USC § 1242(a)(3). (emphasis added).

BLM’s Manual 6280 at times conflates these categories, writing that Federal Protection Components are only those HPS and HPRS located on federally owned land.94BLM Manual 6280, pp. 1-7, 1-8. This definition is contradicted elsewhere in the manual, where the BLM defines “Federal protection components” of NTs to include “selected high potential historic sites and high potential route segments and other land- and waterbased components of a designated National Historic Trail located on federally owned land which meet the National Historic Trail criteria listed in the National Trails System Act and are identified in trailwide Comprehensive Plans, Resource Management Plans, and implementation plans.” Id. at 5 (emphasis added). However, this misreads the NTSA. The national historic trail criteria include (1) a trail’s historic use; (2) its national significance; and (3) its potential for public recreational use.95See 16 USC § 1244(b)(11). By designating the OSNHT a National Historic Trail, Congress confirmed that the OSNHT routes met these three criteria.96Routes were determined by the DOI and NPS in their “National Historic Trail Feasibility Study and Environmental Assessment – Old Spanish Trail” of July, 2001 The Study also confirmed that the route of the Trail met the historic criteria of the NTSA. The Study, and accompanying route maps, is cited as the basis for Congressional authorization of the OSNHT. See 16 USC §1244(a)(23)(A); Public Law 107-325 (2002). Therefore, all OSNHT routes which are congressionally designated and are on federally owned lands are “Federal protection components” of the OSNHT.

Apart from defining HPS and HPRS, the NTSA only references these categorizations twice. First, when establishing the Secretarial power to acquire privately-owned “high potential sites” or “segments” of NHTs through the condemnation process99—a reference which indicates Congress’ intent that federal land managers have an important role in identifying HPS and HPRS on all lands, including private lands, traversed by NHTs. Second, the NTSA calls to incorporate “a protection plan for any high potential historic sites or high potential route segments” in trails’ CMPs 97Id. §1244(f).—underscoring the responsibility to protect such areas, regardless of their location on federal or other lands traversed by a Trail.

The NTSA recognizes that HPS and HPRS are important Trail components, and may require special attention. However, these additional provisions for HPS and HPRS do not limit federal land managers’ responsibility to also protect all other resources, qualities, and values of NHTs.98Although not made explicit, the BLM/NPS joint CRM for El Camino Real de Tierra Adentro National Historic Trail gestures at this broader understanding of federal protection, noting that a sign plan would be created for “certified sites, segments, and federal protection components.” https://www.nps.gov/elca/learn/management/upload/Comprehensive-Management-Plan-Chapter-2-508.pdf, p. 19. Additionally, in the inventory and research process, “Priorities would be established for protecting additional sites, trail segments, scenic and natural values according to their significance, contribution to linking trail segments, and threats to integrity.” Id. at 44. All stretches of a statutorily designated National Trails, like the OSNHT, that cross federally owned lands are “Federal protection components,” and BLM must therefore consider impacts to all such portions in this EA, not just impacts to HPS and HPRS.

Although entitled to a specific protection plan, the extant list of HPS and HRPS is incomplete. 

NTSA envisioned a specific protection plan for a Trail’s HPS and HPRS, to afford such areas an even greater degree of protection. Without a completed inventory of such areas, however, it is impossible to create an effective plan. Again, a CMP for the OSNHT has never been prepared, and, therefore, no “protection plan” for such HPS and HPRS along the OSNHT exists, much less a protection strategy for all “Federal protection components” of the OSNHT.

Some efforts have been made to identify HPS and HPRS along the Trail, but all are incomplete. The 2001 feasibility study for the OSNHT made preliminary recommendations for HPS and HPRS along the Trail. In developing the CAS, the BLM and NPS reviewed the previous recommendations and refined lists of “verifiable” HPS and HPRS. The Co-Administrators also added recommended lists of additional “tentative” HPS and HPRS.99CAS at p.56.

The CAS additionally references one study and inventory conducted by the BLM via contract, the “National Historic Trails Inventory Project” (2012) (funded by the American Recovery and Reinvestment Act, and sometimes referred to as the “ARRA Study”). The ARRA Study was extremely limited in its geographic coverage, only examining selective portions of the OSNHT, and focusing on the presence of archeological resources, and some Visual Resource Management (VRM) analysis—it did not comprehensively inventory all OSNHT resources, qualities, and values as required by BLM Manual 6280.

The ARRA Study itself stated that

the project was not able to inventory all of the high potential route segments and sites on BLM, and there are many more equally deserving segments and sites on public land managed by the US Forest Service, National Park Service, state, local government, as well as on private land managed by trail partners103 (emphasis added).

The study points out areas that may deserve additional attention and protection, but it should not be treated as comprehensive.

Even the geographic limits of the HPS and HPRS identified so far by the BLM and NPS in the 2017 CAS are ill-defined and unavailable to the public. As a consequence, it is impossible for the public to properly assess the potential impact that oil and gas lease activities on proximate lease parcels would have on these OSNHT designations. Without such a comprehensive study, BLM cannot conclusively state that the portions of the OSNHT bordered by these lease parcels do not contain additional HPS and HPRS.

According to the NTSA, “high potential route segments” are

those segments of a trail which would afford high quality recreation experience in a portion of the route having greater than average scenic values or affording an opportunity to vicariously share the experience of the original users of a historic route.10016 USC § 1251(2).

Without an inventory of viewshed, soundshed and airshed protection for the entirety of the OSNHT of the ten parcels in question, there is no clear justification for finding that the segments potentially affected in this lease sale do not have “greater than average scenic values.” 

More significantly, it is hard to see how oil and gas development on the lands adjoining or overlapping the Trail would not impair Trail users’ ability to “vicariously share the experience of the original users of a historic route”—here, the original users were commercial traders moving between New Mexico and California from 1829 to 1848. Oil was not discovered in the continental U.S. until 1859, in Pennsylvania 101“First American Oil Well,” American Oil & Gas Historical Society. https://aoghs.org/petroleum-pioneers/american-oil-history. Last Updated: December 21, 2019. Original Published Date: April 14, 2016.; historic travelers along the Utah segment of the trail certainly would not have encountered anything resembling modern drilling equipment. The joint BLM-NPS CAS, from 2017, notes that the areas along the trail include

few modern intrusions, offering exceptional opportunities for the public to enjoy and appreciate both the natural and cultural environment … The Old Spanish Trail, even by today’s standards, remains an arduous route, one where public users can encounter the landscapes and experience the adventure of yesteryear.102“Old Spanish National Historic Trail Comprehensive Administrative Strategy,” at 5, available at https://parkplanning.nps.gov/Final-OLSP-CAS.

Development alongside the trail therefore poses a serious threat to the preservation of the trail’s historic character, a top priority of the NTSA. 

Direct, indirect, and cumulative impacts to the OSNHT are not adequately considered in this EA. 

There is little to no analysis in the EA regarding the comprehensive slate of resources, qualities, and values of the Trail and how each might be affected by the proposed leases; BLM merely refers the public back to previous documents, each of which also lacked comprehensive analysis of effects to the Trail, thereby failing to satisfy NEPA’s hard look requirement.103See Wildearth Guardians, 2020 WL 2104760 at *4.

For example, the September 2020 EA refers the public back to the September 2019 lease sale’s final EA for discussion of the potential visual impacts to the parcels bordering on the OSNHT and incorporates that discussion.104See Lease Sale EA at 13 (“The analysis of impacts to the Muleshoe Loop of the Old Spanish Trail is incorporated by reference from the analysis of impacts to the Green River Gap in the September 2019 MbFO Oil and Gas Leasing EA DOI-BLM-UT-0000-2019-0003-OTHER_NEPA MbFO-EA pages 38-40”).

However, the September 2019 lease sale concerned a different set of lease parcels. BLM cannot adequately assess the direct, indirect, and cumulative effects of this current set of lease parcels on OSNHT or its viewshed without evaluating the new set of parcels.

Likewise, references back to the Richfield RMP are inadequate to assess the cumulative impact of these lease parcels to the Trail as a complete, statutorily designated unit.105See id. at 14, 322. Note that the quoted section of the RFO RMP references an OSNHT comprehensive management plan—which never materialized. 

To that end, during NEPA analysis for a proposed action or implementation-level activity affecting National Historic Trails, BLM must describe and analyze the potential impacts to the Trail’s nature and purposes.106“6280 – Management of National Scenic and Historic Trails and Trails Under Study or Recommended as Suitable for Congressional Designation (Public),” Rel.6-139, 1-22. The September 2020 EA does not adequately describe or analyze potential impacts to the trail. Because the leases themselves constitute an “irreversible and irretrievable commitment of resources,”107Wildearth Guardians, 2020 WL 2104760 at *4 (citing 43 C.F.R. § 3162.3-1(c)) (vacating 287 oil and gas leases and rejecting BLM’s argument that parcel-specific analysis could be deferred until an application for permit to drill was submitted, holding instead that NEPA requires some site-specific analysis at the leasing stage, because a lease sale represents an “irretrievable commitment of resources”). BLM must undertake case-by-case analysis of all direct, indirect, and cumulative effects, rather than waiting until the development stage. The OSNHT must be included in consideration of the leases’ effects before the parcels are sold. 

BLM’s response to comments ignores the fact that the required analysis of cumulative impacts to the Trail have not been completed.108See Lease Sale EA, App. I at 234-35. It is impossible to analyze cumulative impacts to a trail if they plan to rely on a site-specific document. Further, BLM argues that since only ten parcels will be in the lease sale, it is not required to analyze impacts to this cultural resource, and states that, “[o]nly a handful of the now 23 parcels in the lease sale are in proximity to the OST.”109Id. at 234. However, this logic is flawed. Because there are only ten parcels in the lease sale, the agency has the resources and ability to analyze impacts to these few parcels.110Id. 

Interested members of the public should be alerted if and when development is requested on any of these parcels. 

One purpose of the NTSA is “to encourage and assist volunteer citizen involvement in the planning, development, maintenance, and management, where appropriate, of trails.”11116 USC § 1241(c). Reserving viewshed analysis or environmental impact statement until a lessee submits an APD or other development request hinders the public’s ability to effectively comment on the trail impacts from these leases. To that end, the below-signed commenters and any others members of the public commenting about the visual impacts to the OSNHT on this EA should be directly informed if and when subsequent Trail resource, qualities, and values inventories and viewshed analyses from the OSNHT occur, and/or when such development requests are submitted. 

The public-facing ArcGIS site should be updated to include map layers indicating the location of high potential sites and segments. 

In the absence of a CMP, the ArcGIS mapping interface is the best resource available to members of the public to help them understand what resources along the route of the Trail have been inventoried for protection. Using common-sense Boolean search terms, we were unable to locate any ArcGIS layers indicating the specific location of the high potential sites and segments identified in the 2017 CAS. In line with the NTSA mandate to “encourage and assist volunteer citizen involvement,” as referenced above, BLM should create and make publicly available such layers. Doing so will allow members of the public to better understand the potential effects of development near the Trail, and tailor their input accordingly. 

REQUEST FOR RELIEF 

SUWA respectfully requests the withdrawal of the protested parcels from the September 29, 2020 competitive oil and gas lease sale until such time as BLM resolves the failures discussed herein. 

This protest is brought by and through the undersigned on behalf of the above-listed parties. The members of each of these organizations reside, work, and recreate, or regularly visit the areas to be impacted by the proposed lease sale and have an interest in, and will be adversely affected by, the proposed action. 

DATED: August 21, 2020 

Landon Newell
Staff Attorney
Southern Utah Wilderness Alliance
425 E. 100 S.
Salt Lake City, UT 84111 

landon@suwa.org 

Alison Kelly
Senior Attorney
Nature Program
Natural Resources Defense Council
1152 15th St. NW, Ste. 300
Washington, DC 20005 

akelly@nrdc.org 

Chandra Rosenthal
Rocky Mountain Field Office Director
Public Employees for Environmental Responsibility 

crosenthal@peer.org

John W. Hiscock, JD112John Hiscock is a retired 38 year veteran of the National Park Service, having worked as a park ranger, regulatory specialist, superintendent, state coordinator, and leader of numerous management initiatives. He also served as Association Manager, and is a life member of, the Old Spanish Trail Association.
johnwhiscock@gmail.com