The Wilderness Society * Montana Wildlife Federation
Wild Montana * Rocky Mountain Wild
The Coalition to Protect America’s National Parks
September 23, 2026
SUBMITTED VIA E-PLANNING
Jerry Davis
Acting State Director
Montana/Dakotas State Office
Bureau of Land Management
5001 Southgate Drive
Billings, MT 59101
Project Contact: Hattie Payne (hp****@*lm.gov)
(701) 227-7780
Re: Protest of Lease Parcels for the Montana-Dakotas Bureau of Land Management Fourth Quarter 2026 Competitive Oil & Gas Lease Sale (DOI-BLM-MT-0000-2026-0003-EA)
To Whom It May Concern:
The Wilderness Society, Montana Wildlife Federation, Wild Montana, Rocky Mountain Wild, and the Coalition To Protect America’s National Parks respectfully protest the below-listed parcels for the Bureau of Land Management’s (BLM’s) Montana-Dakotas Fourth Quarter 2026 Oil and Gas Lease Sale. The reference identification for this lease sale is DOI-BLM-MT-0000-2026-0003-EA. On August 25, 2026, the BLM Montana-Dakotas state office released its Environmental Assessment (EA)1 and Finding of No Significant Impact (FONSI)2 and released the Notice of Competitive Oil and Gas Internet Lease Sale,3 offering 1 parcel covering 160 acres in Montana, with 19 additional parcels in North Dakota. For the reasons stated herein, our groups protest the following parcel being offered in Montana, although the issues we raise apply to the North Dakota parcels as well: MT-2026-10-6961.
This protest is filed on behalf of the above-listed organizations. Contact information for each organization filing this protest is as follows:
Adina Nadler
Associate Attorney
The Wilderness Society
1801 Pennsylvania Ave NW #200
Washington, DC 20006
(202) 429-2627
an*****@*ws.org
Frank Szollosi
Executive Director
Montana Wildlife Federation
PO Box 7615
Missoula, MT 59807
Kayje Booker
Deputy Director
Wild Montana
80 S. Warren St.
Helena, MT 59601
Alison Gallensky
Conservation Geographer, Leadership Team
Rocky Mountain Wild
1536 Wynkoop St Ste 900
Denver CO 80202
Emily Thompson
Executive Director
The Coalition to Protect America’s National Parks
2 Massachusetts Ave NE
Unit 77436
Washington, DC 20013
I, Adina Nadler, have been authorized to file this protest on behalf of the above-listed organizations.
INTERESTS OF THE PROTESTING PARTIES
Our organizations have a long-standing interest in the management of BLM lands in Montana and engage frequently in the decision-making processes for land use planning and project proposals that could potentially affect our public lands and mineral estate, including the oil and gas leasing process and associated lease sales. Our members and staff enjoy myriad recreational, scientific, and other opportunities on BLM-managed public lands, including hiking, biking, nature-viewing, photography, and quiet contemplation in the solitude offered by wild places. Our missions are to work for the protection and enjoyment of the public lands for and by our members and the public.
The Wilderness Society (TWS) is a national non-profit membership organization that works to unite people to protect America’s wild places. Founded in 1935, TWS is headquartered in Washington, D.C., with offices throughout the country, including in Montana. TWS aims to transform federal land management to prioritize climate resilience and biodiversity protection and help develop and advance policies for just and equitable public land conservation on behalf of all people. In working toward this mission, TWS elevates the voices of communities that might otherwise be unable to engage in federal processes affecting public lands and waters. For years, TWS has advocated for reform of BLM’s oil and gas leasing program. TWS has used in-house science, policy, and legal expertise to comment on and engage in the oil and gas leasing process.
Since 1936, the Montana Wildlife Federation (MWF) has been at the table to conserve Montana’s fish and wildlife habitat, to promote public access, and to defend our hunting and fishing heritage. Representing 4,500 members and supporters and working closely with 15 affiliate organizations in Montana, MWF supports multiple-use land management that balances development with conserving wildlife habitat and public access for hunting, fishing, and other wildlife-based recreation.
Wild Montana: Since 1958, Wild Montana has been uniting and mobilizing people across Montana, creating and growing a conservation movement around a shared love of wild public lands and waters. We work at the local level, building trust, fostering collaboration, and forging agreements for protecting the wild, enhancing public land access, and helping communities thrive. Wild Montana routinely engages in public land-use planning processes, as well as local projects such as habitat restoration and timber harvest proposals, recreational infrastructure planning, oil and gas lease sales, and land acquisitions. Wild Montana and our more than 100,000 supporters are committed to the ecological integrity and preservation of quiet recreation opportunities on public lands across Montana.
Rocky Mountain Wild (RMW) is a non-profit conservation organization that works to protect, connect, and restore wildlife and wild lands in the Rocky Mountain region. RMW envisions a biologically healthy future for our region – one that includes a diversity of species and ecosystems, thriving populations of wildlife, and a sustainable coexistence between people and nature. Using research, community science, legal action, and advanced geospatial analysis, we offer solutions for conserving our most at-risk animal and plant species and landscapes. We review and engage in BLM oil and gas lease sales with a goal of reducing the impacts of oil and gas leasing on wildlife and wildlands.
The Coalition to Protect America’s National Parks (Coalition) represents over 5,000 members, including National Park Service (NPS) retirees, former and current employees, and volunteers, who collectively have more than 50,000 years of national park management and stewardship experience. The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. Our membership includes former Park Service directors, regional directors, superintendents, resource specialists, rangers, maintenance and administrative staff, and a full array of other former employees, volunteers, and supporters. We have advocated for BLM oil and gas leasing reforms and commented on Bureau leasing proposals for a number of years due, in part, to the many adverse impacts that oil- and gas-based carbon emissions are having on irreplaceable natural and cultural resources across America’s National Park System.
STATEMENT OF REASONS IN SUPPORT OF THE PROTEST OF THE MONTANA-DAKOTAS FOURTH QUARTER 2026 COMPETITIVE OIL AND GAS LEASE SALE
I. The BLM has not ensured that leasing complies with the Federal Land Policy and Management Act (FLPMA).
Under FLPMA, the BLM must manage public lands according to “multiple use” and “sustained yield” and “in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resources, and archeological values; that will preserve and protect certain public lands in their natural condition; [and] that will provide food and habitat for fish and wildlife and domestic animals.” 43 U.S.C. §§ 1701(a)(7) & (8), 1712(c)(1), 1732(a). Multiple use obligates the agency to make the “most judicious use” of public lands and their resources to “best meet the present and future needs of the American people.” Id. § 1702(c). This requires taking “into account the long-term needs of future generations” and ensuring “harmonious and coordinated management of the various resources without permanent impairment of the productivity of the land and the quality of the environment.” Id. Sustained yield mandates “achiev[ing] and maint[aining] in perpetuity . . . a high-level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use.” Id. § 1702(h). “It is past doubt that the principle of multiple use does not require BLM to prioritize development over other uses. . . . Development is a possible use, which BLM must weigh against other possible uses—including conservation to protect environmental values. . . .” New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 710 (10th Cir. 2009) (emphasis in original). FLPMA also requires the BLM to “take any action necessary to prevent unnecessary and undue degradation of the lands.” 43 U.S.C. § 1732(b).
A. The BLM has authority to defer lease parcels—and must evaluate deferral of lease parcels—proposed for this sale.
In order to comply with these FLPMA resource conservation mandates, the BLM must analyze the deferral of lease parcels and defer parcels where conflicts with other uses exist. Accordingly, under the Mineral Leasing Act (MLA), the BLM has traditionally exercised broad discretion over whether to lease lands for oil and gas development as well as over the conditions under which leasing occurs.4 While the MLA provides for quarterly lease sales in each state “where eligible lands are available,” the courts have made clear that this language does not reduce the BLM’s discretion, because (among other reasons) lands are not “available” for leasing under the MLA until all statutory requirements are met and legal reviews are complete. See, e.g., W. Energy All. v. Biden, No. 21-CV-13-SWS, 2022 WL 18587039, *9 (D. Wyo. Sept. 2, 2022). Moreover, the MLA itself requires that the agency “regulate all surface-disturbing activities conducted pursuant to any lease . . . in the interest of conservation of surface resources,” that it lease lands for oil and gas development only in the public interest, and that it include in each lease provisions to ensure “the safeguarding of the public welfare.” 30 U.S.C. §§ 187, 192, 226(g); see also Powder River Basin Res. Council v. U.S. DOI, No. 22-CV-2696 (TSC), 2026 WL 555013, at *5 (D.D.C. Feb. 27, 2026); NRDC v. Berklund, 458 F. Supp. 925, 936 n.17 (D.D.C. 1978), aff’d, 609 F.2d 553 (D.C. Cir. 1979) (interpreting “safeguarding of the public welfare” to provide “broad authority to set lease terms to prevent environmental harm”).
B. The BLM failed to address the impact of the 2025 Reconciliation Act on the proposed lease sale.
As set forth in detail in our scoping comment and in our comment on the Draft EA and Draft FONSI, the 2025 Reconciliation Act, Pub. L. No. 119-21, § 50101, 139 Stat. 72, 137-39 (2025), contains several amendments to the statutes governing the BLM’s management of oil and gas development. See Wild Montana et al., Re: Scoping Comments on Parcels for the Montana-Dakotas Bureau of Land Management 2026 Quarter 4 Competitive Oil & Gas Lease Sale, NEPA No. DOI BLM-MT-0000-2026-0003-EA, 6–7 (May 4, 2026) [hereinafter Wild Montana Scoping Comments]; The Wilderness Society et al., Re: Comments on the Draft Environmental Assessment and Finding of No Significant Impact for the Montana-Dakotas Bureau of Land Management Fourth Quarter 2026 Competitive Oil & Gas Lease Sale (DOI-BLM-MT-0000-2026-0003 EA), 3–4 (July 20, 2026) [hereinafter TWS Draft EA Comments]. In its analysis of this proposed lease sale, the BLM must explain the impact of the 2025 Reconciliation Act and must demonstrate—in light of that impact—that the lease sale complies with the BLM’s substantive obligations under FLPMA. While these obligations apply to all the resources in the areas proposed for leasing, they are of particular concern with regard to sage-grouse and big game habitat.
i. The BLM failed to address any changes that the 2025 Reconciliation Act makes with respect to its deferral authority.
Among other changes to the leasing process, the 2025 Reconciliation Act amends the MLA to replace language providing that lands subject to disposition which are known or believed to contain oil or gas deposits “may be leased,” 30 U.S.C § 226(a) (2024) (emphasis added), with a provision stating that such lands “shall be made available for leasing . . . not later than 18 months after the date of receipt . . . of an expression of interest in leasing the applicable parcel.” 30 U.S.C. § 226(a) (2025) (emphasis added). The 2025 Reconciliation Act also amends the provision of the MLA providing for quarterly lease sales “where eligible lands are available” to define “eligible lands” as those “not excluded from leasing by a statutory prohibition” and “available” lands as those designated as open for leasing under a Resource Management Plan (RMP) and “that have been nominated for leasing through the submission of an expression of interest, are subject to drainage in the absence of leasing, or are otherwise designated as available pursuant to regulations adopted by the Secretary.” Id. § 226(b)(1)(A). Additionally, the 2025 Reconciliation Act provides that any oil and gas leases issued “may not require any stipulations or mitigation requirements not included in the approved resource management plan.” Id. § 226(a)(2)(A)(ii).
As discussed above, see discussion supra Section I.A, under the MLA, the BLM has traditionally exercised broad discretion to defer parcels from leasing in order to comply with its obligations under FLPMA. Since the passage of the 2025 Reconciliation Act, the BLM has been inconsistent with respect to how it has interpreted the Act’s impact on its discretion to defer parcels nominated for leasing. While the BLM has not yet issued formal guidance outlining how it will implement the 2025 Reconciliation Act, in some instances, the agency has interpreted the Act as leaving room for this discretion. In response to public comment on the New Mexico Second Quarter 2026 lease sale, for example, the agency unequivocally stated that it has discretion to defer parcels, quoting from the 2025 Reconciliation Act to support the proposition:
The BLM has discretion to offer or defer any parcel during any sale. 30 U.S.C. § 226(a) (“Any parcel of land subject to disposition . . . that is known or believed to contain oil or gas deposits shall be made available for leasing . . . if the Secretary determines that the parcel of land is open to oil or gas leasing under the approved resource management plan applicable to the planning area …that is in effect on the date on which the expression of interest was submitted to the Secretary.”). . . .
[T]he BLM AO retains the discretion to lease none, some, or all the nominated lease parcels.
BLM FARMINGTON FIELD OFFICE, COMPETITIVE OIL AND GAS LEASE SALE ENVIRONMENTAL ASSESSMENT, NEW MEXICO QUARTER 2 2026 DOI-BLM-NM-F010-2026-0001-EA, D-29 (Mar. 20, 2026). Similarly, in its protest dismissal for the Utah Quarter 1 2026 lease sale, the agency stated that “[t]he Reconciliation Act requires the BLM to offer at least 50 percent of available parcels nominated for oil and gas development in a minimum of 4 oil and gas lease sales in Utah each fiscal year. Nothing in the Reconciliation Act precludes the BLM from considering alternatives that would offer fewer than 50 percent of the nominated parcels in any single lease sale.” BLM UTAH STATE OFFICE, DECISION ON PROTEST OF THE INCLUSION OF 57 PARCELS IN THE MARCH 2026 COMPETITIVE OIL AND GAS LEASE SALE, 10 (Apr. 2026).
Moreover, the BLM has in many cases continued to exercise its authority to defer lease sale parcels since the passage of the 2025 Reconciliation Act. See, e.g., BLM WYOMING, DECISION RECORD DOI-BLM-WY-0000-2026-0001-EA, 1–2 (June 9, 2026) (for the Wyoming Second Quarter 2026 lease sale, selecting Alternative 3, which defers parcels based on sage-grouse prioritization, the need for Surface Management Agency (SMA) consent, conflicts with existing coal leases, and tribal consultation requirements); BLM WYOMING, DECISION RECORD DOI-BLM-WY-0000-2025-0003-EA, 1–2 (May 11, 2026) (for the Wyoming First Quarter 2026 lease sale, selecting Alternative 3, which defers parcels based on sage-grouse prioritization); BLM WYOMING, 2025 FOURTH QUARTER COMPETITIVE OIL AND GAS LEASE SALE DECISION RECORD DOI-BLM-WY-0000-2025-0002-EA, 2 (Dec. 3, 2025) (for the Wyoming Q4 2025 lease sale held on December 3, 2025, deferring parcels due to sage-grouse prioritization and lack of SMA consent); BLM COLORADO, DECISION RECORD FOR SEPTEMBER 2025 COMPETITIVE OIL AND GAS LEASE SALE DOI-BLM-CO-0000-2025-0001-EA (Sept. 8, 2025) (for the Colorado Q3 2025 lease sale held on September 9, 2025, deferring portions of two parcels due to their overlap with the Yellow Creek Area of Critical Environmental Concern); BLM WYOMING, 2025 THIRD QUARTER COMPETITIVE OIL AND GAS LEASE SALE DECISION RECORD DOI-BLM-WY-0000-2025-0001-EA, 3 (Sept. 16, 2025) (for the Wyoming Q3 2025 lease sale held on September 16, 2025, deferring five parcels based on greater sage-grouse prioritization).
On the other hand, the agency has elsewhere interpreted the Act as significantly altering its discretion throughout the oil and gas development process, potentially requiring the BLM to offer for lease all lands designated as open if requested by industry. In its recently issued Oil and Gas Leasing proposed rule, for example, the agency stated that the 2025 Reconciliation Act “requires the BLM to offer a parcel within 18 months of receipt of the lands within an [expression of interest].” 91 Fed. Reg. 38084, 38103 (June 24, 2026) (to be codified at 43 CFR Parts 3000, 3100, 3110, 3120, 3130, 3140, 3150, 3160, and 3180).5 The agency has also proffered this interpretation in a recent court filing. See Federal Defendants’ Opening Brief at *44, Mont. Wildlife Fed’n v. Burgum, No. 22-35367 (9th Cir. filed Jan. 14, 2026) (“[T]he [Act] requires the [BLM] to offer parcels nominated by industry through an expression of interest for lease within 18 months of receipt of the nomination, so long as those lands are open to leasing under the applicable resource management plan.”).6 The BLM Bakersfield Field Office offered a similar interpretation in an errata to its Supplemental EIS for its RMP. See BLM BAKERSFIELD FIELD OFFICE, ERRATA FOR BAKERSFIELD FIELD OFFICE COMMENT RESPONSE (June 4, 2026) (“The BLM issues this errata to clarify that, under the [2025 Reconciliation Act], BLM must offer for lease within 18 months of receipt of an expression of interest any parcel subject to disposition under the MLA that is known or believed to contain oil or gas deposits, so long as the parcel is open to leasing under the applicable approved resource management plan.”). And, in the oil and gas lease sale context, the BLM Montana-Dakotas office recently stated that the “BLM’s discretion at the leasing stage is limited by the [2025 Reconciliation Act’s]’s amendments to the Mineral Leasing Act and, regardless, does not create a mandatory duty to exercise deferral in the absence of supporting analysis. The exercise of discretion occurs within the bounds of existing RMPs.” BLM MONTANA-DAKOTAS, APPENDIX K MONTANA-DAKOTAS QUARTER 3 2026 OIL AND GAS LEASE SALE RESPONSE TO COMMENTS, 167 (June 1, 2026).
Regardless of these differing interpretations, the BLM is not required to actually lease parcels. The agency retains the authority to defer lease sale parcels, even after bidding has concluded. See McDonald v. Clark, 771 F.2d 460, 463 (10th Cir. 1985) (holding that the “fact that land has been offered for lease does not bind the Secretary to actually lease the land, nor is the Secretary bound to lease the land when a qualified applicant has been selected”); see also W. Energy All. v. Salazar, No. 10-CV-0226, 2011 WL 3737520, at *4–7 (D. Wyo. June 29, 2011) (holding that BLM is not required to issue leases after offering them at auction; it only needs to make a decision within 60 days on whether to issue the leases).
However, the position advanced by the agency in its recent proposed rule and elsewhere gives rise to serious questions about the BLM’s ability to balance oil and gas development against other public-land values and achieve its statutory obligations. The BLM must address those questions and clarify its interpretation of the 2025 Reconciliation Act as it applies to the proposed leasing. To the extent that the BLM believes that the 2025 Reconciliation Act restricts
Rule) for purposes of this lease sale, and commenters will refer to the BLM’s obligations under the Leasing Rule throughout this comment.
its discretion over oil and gas leasing, the agency faces additional burdens in demonstrating that its proposed lease sale comports with FLPMA’s substantive mandates. A recent case in the District of Montana illustrates this point; there, the judge stated that “FLPMA’s requirements to maintain sustainable wildlife populations and avoid unnecessary or undue degradation of public lands . . . remain in force under [the 2025 Reconciliation Act]. . . . The statutory text of [the 2025 Reconciliation Act] does not effectively eliminate BLM’s discretion so broadly as to mandate the sale and issuance of leases without oversight.” Mont. Wildlife Fed’n v. Burgum, No. CV-18-69-GF-BMM, 2026 WL 1707576, at *5 (D. Mont. June 12, 2026). The court also looked to the 2025 Reconciliation Act’s legislative history to determine that the “shall be made available” language in the 2025 Reconciliation Act means something different than “shall offer” and does not require leasing. Indeed, on May 20, 2025, “Congress contemplated, and ultimately rejected,” language requiring “that BLM ‘shall . . . offer’ lands within 18 months,” id. (quoting H.R. 1, 119th Cong. § 80101(a)(1) (May 20, 2025)), and “later amended the bill to require only that the lands ‘shall be made available for leasing’ within 18 months,” id. (first quoting 30 U.S.C. § 226(a)(1); and then quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987) (“Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.”)). And, as the court stated, the 2025 Reconciliation Act defines lands that are eligible for leasing to exclude lands that cannot be leased due to a statutory prohibition, which “restrict[s] BLM from selling and issuing leases that violate FLPMA’s mandates for the protection of public lands and resources.” Id. (citing 30 U.S.C. § 226(b)(1)(A)).
The BLM has traditionally followed a three-step process for managing oil and gas development on public lands. W. Energy All. v. Zinke, 877 F.3d 1157, 1161 (10th Cir. 2017). At the first step, the BLM develops RMPs for each land management unit. Id.; 43 U.S.C. § 1712(a). Each RMP specifies those lands that will be open or closed to oil and gas leasing and under what conditions. Zinke, 877 F.3d at 1161; 43 C.F.R. § 1601.0-5(n). At the second step, the BLM may (but is not required to) offer leases in areas designated as open, subject to the requirements of the RMP. New Mexico, 565 F.3d at 689 n.1; Zinke, 877 F.3d at 1161; 43 C.F.R. § 1610.5-3. At the final step, lessees file applications for permits to drill (APDs), and the BLM reviews those applications before deciding whether to approve and issue the permit. New Mexico, 565 F.3d at 689 n.1; 43 C.F.R. § 3162.3-1(c).
The fundamental assumption in this multi-stage development process—and one on which all RMPs rest—is that the designation of lands as open to leasing at the RMP-stage is not a decision that those lands will be offered for lease or leased. The BLM has long exercised discretion to determine—in service of its FLPMA obligations to manage for multiple-use and sustained-yield—not to offer to lease or to ultimately lease lands designated as open. Indeed, based on this fundamental assumption, the BLM’s RMPs list the vast majority of public land— over 80%—as open to oil and gas leasing. THE WILDERNESS SOCIETY, OPEN FOR DRILLING: THE OUTSIZED INFLUENCE OF OIL & GAS ON PUBLIC LANDS, 2 (2025) [Ex. 1], https://www.wilderness.org/sites/default/files/media/file/Open%20for%20Drilling_TWS%20Rep ort.pdf. But the BLM has elected not to lease the majority of these lands. See U.S. GOV’T ACCOUNTABILITY OFF., GAO-22-103968, OIL AND GAS LEASING: BLM SHOULD UPDATE ITS GUIDANCE AND REVIEW ITS FEES, 18 (Nov. 2021) (finding that between 2009 and 2019, the BLM nominated 87 million acres for leasing but only offered 18 million acres—or 21% of nominated land—at auction).
To the extent that the BLM believes that the 2025 Reconciliation Act removes the agency’s discretion not to offer for lease or to lease areas designated as open in an RMP, and instead obligates the agency to offer for lease or to lease any open land for which it receives an industry expression of interest (EOI), the BLM’s assessment of its compliance with its duties under FLPMA must account for that fundamental change. For example, if the BLM believes it now has a non-discretionary duty to offer for lease or to lease all lands designated as open if requested by industry, it must demonstrate that those current open-to-leasing designations in an RMP comport with FLPMA’s multiple use and sustained yield requirements. And if—as is likely—they do not, the BLM must revisit those designations in light of such a fundamental change in its discretion.
The obligation to comply with FLPMA’s substantive sustained yield and unnecessary and undue degradation requirements applies at each stage of the BLM’s three-step oil and gas management process. See, e.g., 40 C.F.R. § 3120.32 (requiring the BLM to address substantive FLPMA obligations in determining whether to offer lands for lease). The BLM, however, has frequently taken the position in litigation that it can satisfy its substantive FLPMA obligations by imposing any needed protective conditions at the final stage of the process, when approving APDs. See, e.g., Dakota Res. Council v. DOI, 2024 WL 1239698, at *22 (D.D.C. 2024); Bd. of Cnty. Comm’rs v. BLM, 584 F. Supp. 3d 949, 978 (D. Colo. 2022); Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66, 78 (D.C. Cir. 2011).
If the BLM determines that the 2025 Reconciliation Act precludes the agency from imposing lease stipulations or other mitigations beyond those included in the governing RMP, then the agency must demonstrate complete compliance with its substantive FLPMA obligations before holding the proposed lease sale. It cannot defer the development of protective measures without assessing the adequacy of the requirements in the RMP. On the other hand, if the BLM believes it continues to have discretion to impose additional conditions on leases beyond those in the RMP, it needs to make that clear, including by proposing appropriate stipulations to protect wildlife and other public-land values during the lease sale process.
Moreover, while the 2025 Reconciliation Act may prohibit the application of stipulations or mitigation requirements not included in the RMP at the leasing stage, the agency has interpreted this requirement as not applying to conditions of approval or mitigation that can be implemented at the permitting stage, nor does it apply to the agency’s ability to apply stipulations specified by Federal surface management agencies for lands managed by those other agencies.
91 Fed. Reg. at 38097. Given the BLM’s ongoing obligations under FLPMA to provide for multiple use and sustained yield and to prevent unnecessary and undue degradation, and the MLA’s direction to include lease provisions to ensure the safeguarding of the public welfare, the BLM must develop and implement new, site-specific mitigation measures at the permitting stage as necessary to comply with those obligations, and it must continue to apply stipulations deemed necessary by the relevant surface management agencies.
The BLM cannot fall back on the assertion that the relevant RMPs are adequate to satisfy FLPMA. Like all RMPs finalized prior to the 2025 Reconciliation Act, the BLM developed the RMP for the Billings Field Offices based on the assumption that additional mitigation measures or stipulations needed to protect critical resources and landscape uses would be developed during later stages of oil and gas development. See e.g., BLM BILLINGS FIELD OFFICE, APPROVED RESOURCE MANAGEMENT PLAN, 3-1 (Sept. 2015) (“However, post-lease actions or authorizations . . . will potentially be subject to mitigation measures, as necessary, consistent with the decisions, on a case-by-case basis as required through project-specific National Environmental Policy Act (NEPA) analysis or other environmental review.”); id. at 3-47 (“Where a proposed fluid mineral development project on an existing lease could adversely affect [sage-grouse] populations or habitat, the BLM will work with the lessees, operators, or other project proponents to avoid, reduce and mitigate adverse impacts . . . .”).
The BLM fails to address these concerns, stating that “[t]o the extent this comment seeks BLM’s legal interpretation of the 2025 Reconciliation Act . . . , it is beyond the scope of the proposed action” and concluding without explanation that “[t]he agency applies the regulatory and planning framework currently in effect, including the governing approved RMPs, the Mineral Leasing Act (MLA) as amended, and FLPMA’s substantive requirements.” EA, App. K at 172. But the BLM’s compliance with its FLPMA mandates is undoubtedly within the scope of this proposed action, and in light of the serious changes that the 2025 Reconciliation Act made to the leasing process, the BLM cannot seriously contend that it is complying with its statutory obligations without grappling with those changes. A conclusory statement that the agency is complying with FLPMA is insufficient. The BLM’s failure to comply with FLPMA’s substantive requirements will render the proposed lease sale arbitrary and capricious.
ii. The BLM failed to address other changes made by the 2025 Reconciliation Act.
In addition to the aforementioned potential changes to the BLM’s deferral authority made by the 2025 Reconciliation Act, the Act makes other process changes, the effect of which the agency must also address. As indicated above, the 2025 Reconciliation Act provides that any oil and gas leases issued “shall be subject to the terms and conditions of the approved resource management plan” and “may not require any stipulations or mitigation requirements not included in the approved resource management plan.” 30 U.S.C. § 226(a)(2)(A). In addition to addressing the implications of this language on its substantive FLPMA mandates, the BLM must also address which RMP—and therefore which RMP’s stipulations—will apply to a parcel once leased.
While the BLM has not issued a formal interpretation of this language, the agency has indicated that it is interpreting the 2025 Reconciliation Act as requiring it to apply stipulations from the RMP that was in place at the time of the EOI submission. See, e.g., CARLSBAD FIELD OFFICE, OIL AND GAS LEASE SALE ENVIRONMENTAL ASSESSMENT, NEW MEXICO QUARTER 3 2026, DOI-BLM-NM-P020-2026-0484-EA, 2 (Apr. 15, 2026) (“[O]il and gas lease parcels are subject to the terms and conditions of the approved RMP that is in effect at the time a parcel’s EOI is submitted.”). In proffering this interpretation, the BLM appears to be conflating the RMP that is relevant for purposes of determining whether land is open or closed to leasing with the RMP that contains the applicable stipulations and mitigation requirements. The 2025 Reconciliation Act provides that land is deemed open to oil and gas leasing based on the “approved resource management plan . . . that is in effect on the date on which the expression of interest was submitted to the Secretary (referred to in this subsection as the ‘approved resource management plan’).” 30 U.S.C. § 226(a)(1). The question is whether this definition applies to 30 U.S.C. § 226(a)(2), which subjects leasing to the stipulations included in the “approved resource management plan.” Id. § 226(a)(2). It makes no sense at all to subject leases issued today to stipulations from previous RMPs that are no longer in effect, nor does it make sense to craft terms and conditions under an RMP only to have them not apply to presently-issued leases. The resulting situation—in which two leases may be issued at once in adjoining parcels but subject to different stipulations based on the time of EOI submission—is an absurd result that ought to be avoided. See United States v. LKAV, 712 F.3d 436, 440 (9th Cir. 2013) (“[S]tatutory interpretations which would produce absurd results are to be avoided.” (alteration in original) (quoting Ariz. St. Bd. for Charter Schs. v. U.S. Dep’t of Educ., 464 F.3d 1003, 1008 (9th Cir. 2006))). Subjecting presently-issued leases to outdated terms and conditions also runs afoul of the BLM’s obligations under FLPMA to provide for multiple use and sustained yield and to prevent unnecessary and undue degradation, and the MLA’s directive to include lease provisions that ensure the safeguarding of the public welfare.
The 2025 Reconciliation Act also states that, in conducting a lease sale, the agency “shall offer not less than 50 percent of available parcels nominated for oil and gas development under the applicable resource management plan.” § 50101(c)(2)(A), 139 Stat. at 138. The BLM must explain how it determines what parcels comprise the denominator for this requirement. In other words, which nominated parcels are netted into that number—all those nominated within the last year? Two years? Throughout history? The 2025 Reconciliation Act also reinstates the requirement, previously repealed by the Inflation Reduction Act, calling on the BLM to lease any unsold parcels noncompetitively. § 50101(a)(2), 139 Stat. at 137; 30 U.S.C. § 226(b)(3)(C). The BLM must address the impact of this requirement.
Finally, the 2025 Reconciliation Act states that “the term ‘available’’, with respect to eligible lands, means those lands that have been designated as open for leasing under a land use plan . . . and that have been nominated for leasing through the submission of an expression of interest, are subject to drainage in the absence of leasing, or are otherwise designated as available pursuant to regulations adopted by the Secretary.” 30 U.S.C. § 226(b)(1)(A) (2025). The BLM must therefore confirm that every parcel it makes available for leasing falls into one of these categories, providing proof of EOIs for those parcels that were nominated by industry.
C. The BLM must consider deferral of the following parcels due to conservation conflicts.
For this lease sale, the BLM must consider whether to defer—and, if conflicts exists, must defer—parcels based on the agency’s FLPMA resource conservation mandates. The following subsections discuss conservation conflicts and the associated parcel deferral recommendations.
i. The BLM has not deferred parcels in Priority Habitat Management Areas (PHMA) and General Habitat Management Areas (GHMA) for the greater sage-grouse.
The following proposed parcel overlaps PHMA for the greater sage-grouse: MT-2026-10-6961. In fact, this parcel is right in the middle of this priority habitat.
While the BLM designates this parcel as having a low preference for leasing in part based on its proximity to wildlife habitat, it does not consider deferring this parcel. EA at app. J.
The agency is obligated to consider these parcels for deferral and to defer or remove them from sale where leasing would impair sage-grouse habitat pursuant to its obligations under FLPMA and the Leasing Rule. See 43 U.S.C. §§ 1701(a)(7) & (8), 1702(l), 1712(c)(1), 1732(a) (directing the BLM to manage public lands according to “multiple use” and “sustained yield” and including “wildlife and fish” as one of the resources expressly included in the definition of “multiple use”; directing the BLM to manage lands “in a manner that . . . will provide food and habitat for fish and wildlife and domestic animals”; and identifying “fish and wildlife development and utilization” as one of the six “principal or major uses” of the public lands); 43 C.F.R. § 3120.32(b) (directing the agency to preference “lands that would not impair the proper functioning of [fish and wildlife] habitats or corridors”). As explained in the Leasing Rule’s preamble, the BLM’s “preference criteria . . . were proposed consistent with the MLA to direct the BLM’s administrative resources . . . to reduce conflicts between oil and gas development and other public land uses that were not resolved in the resource management plans, and to ‘take[ ] into account the long-term needs of future generations for renewable and nonrenewable resources.” 89 Fed. Reg. 30,916, 30,919 (Apr. 23, 2024) (quoting 43 U.S.C. §1702). Moreover, the agency explained that it “will apply the criteria . . . consistent with the BLM’s existing policy and implementation of [Instruction Memorandum] IM 2023-007, Evaluating Competitive Oil and Gas Lease Sale Parcels for Future Lease Sales.” Although that IM and associated attachment have been rescinded, the Leasing Rule’s requirement that the BLM apply the preference criteria consistent with the principles in the IM remains. Those principles direct deferral of parcels with identified conflicts with the criteria, such as parcels in sage-grouse habitat.
Deferral of parcels in habitat management areas is required. The 2015 Greater Sage-Grouse Plan Amendments (the 2015 Plans)7 require the BLM to prioritize new oil and gas leasing outside of PHMA and GHMA to protect that habitat from future disturbance. The Ninth Circuit recently affirmed that “the government must take an affirmative role in encouraging oil and gas leasing in non-sage-grouse habitat.” Mont. Wildlife Fed’n v. Haaland, 127 F.4th 1, 45 (9th Cir. 2025).8 The BLM cannot merely “respond[] to industry expressions of interest . . . in leasing specific land parcels,” but rather must undertake “independent agency determinations of which parcels to offer for oil and gas leases.” Id. at 43. The approach the BLM has taken here fails to comply with the 2015 Plans. The agency must prioritize leasing away from PHMA and also guide leasing away from GHMA lands. Stipulations are insufficient—the “Prioritization Objective imposes an affirmative requirement on the Bureau to ‘guide’ and ‘encourage’ development away from sage-grouse habitat.” Id.
The science makes clear that the BLM’s focus must be to “stop the bleeding” on sage-grouse population losses. See Wilderness Soc’y v. U.S. Dep’t of Interior, No. 22-CV-1871 (CRC), 2024 WL 1241906, at *15 (D.D.C. Mar. 22, 2024). In March 2021, U.S. Geological Survey (USGS) researchers released a report that provides one of the most comprehensive population trend modeling efforts ever undertaken for sage-grouse. See PETER S. COATES ET AL., RANGE-
While commenters do not endorse the BLM’s broader interpretation of the 2025 Reconciliation Act, commenters agree that the BLM should apply the prioritization and preference criteria requirements from the 2015 Plans. The 2025 Amendments suffer from a variety of legal defects that that were outlined in a Complaint filed challenging those amendments, which is attached. Complaint, Mont. Wildlife Fed’n v. Burgum, No. 4:26-cv-00133-JTJ (Mar. 26, 2026), ECF No. 1 [Ex. 2]. For the reasons stated in this Complaint, application of the 2025 Amendments in this lease sale would violate FLPMA, the APA, and NEPA.
WIDE GREATER SAGE-GROUSE HIERARCHICAL MONITORING FRAMEWORK: IMPLICATIONS FOR DEFINING POPULATION BOUNDARIES, TREND ESTIMATION, AND A TARGETED ANNUAL WARNING SYSTEM (Mar. 2021) [Exs. 3a &3b], https://doi.org/10.3133/ofr20201154. The report reveals that since 1966, sage-grouse populations have declined about 80% range-wide. See id. at 3. Since 2002, range-wide populations have declined 37%. See id. Also, 78% of leks have a greater than 50% probability of extirpation in the next 56 years. See id. at 52, 90. In September 2022, the USGS and other federal agencies released a report that found that an average of 1.3 million acres of habitat are transitioning each year from largely intact sagebrush sites to less functioning sagebrush habitat. See KEVIN DOHERTY ET AL., A SAGEBRUSH CONSERVATION DESIGN TO
PROACTIVELY RESTORE AMERICA’S SAGEBRUSH BIOME: U.S. GEOLOGICAL SURVEY OPEN-FILE REPORT 2022–1081, 28 (Sept. 2022) [Ex. 4], https://pubs.usgs.gov/of/2022/1081/ofr20221081.pdf. Moreover, the BLM itself has “specifically identified ‘oil and gas development’ as a ‘major threat’ to sage-grouse habitat.” Mont. Wildlife Fed’n, 127 4th at 43.
ii. The BLM has not deferred parcels in big game habitat.
In its EA, the BLM identifies several conflicts with pronghorn range, bighorn sheep range and critical range, mule deer range, and identified elk range. See EA at 66–73. For example, the BLM identifies the following parcel as overlapping general pronghorn and mule deer habitat in Montana: MT-2026-10-6961.9 While the BLM designates this parcel as having a low preference for leasing in part based on its proximity to wildlife habitat, it does not consider deferring this parcel. See EA at App. J.
The agency is obligated to consider these parcels for deferral and to defer or remove them from sale where leasing would impair big game habitat pursuant to its obligations under FLPMA and the Leasing Rule. See 43 U.S.C. §§ 1701(a)(7) & (8), 1702(l), 1712(c)(1), 1732(a) (directing the BLM to manage public lands according to “multiple use” and “sustained yield” and including “wildlife and fish” as one of the resources expressly included in the definition of “multiple use”; directing the BLM to manage lands “in a manner that . . . will provide food and habitat for fish and wildlife and domestic animals”; and identifying “fish and wildlife development and utilization” as one of the six “principal or major uses” of the public lands); 43 C.F.R. § 3120.32(b) (directing the agency to preference “lands that would not impair the proper functioning of [fish and wildlife] habitats or corridors”).
Avoiding parcels in important big game habitat is also consistent with the BLM’s responsibilities under Secretarial Order 3362 to work with the Western states to “conserve and/or improve priority western big-game winter range and migration corridors in sagebrush ecosystems and in other ecotypes as necessary.” U.S. DEP’T OF THE INTERIOR, SECRETARIAL
ORDER NO. 3362, IMPROVING HABITAT QUALITY IN WESTERN BIG-GAME WINTER RANGE AND MIGRATION CORRIDORS, 2 (Feb. 9, 2018), https://www.doi.gov/document-library/secretary-order. The Secretarial Order recognizes that “[r]obust and sustainable elk, deer, and pronghorn populations contribute greatly to the economy and well-being of communities across the West,” and that “hunters and tourists travel to Western States from across our Nation and beyond to pursue and enjoy this wildlife,” contributing billions of dollars to State and local economies. Id. The BLM is directed to conserve and restore big game habitat by, among other things, “avoiding development in the most crucial winter range or migration corridors during sensitive seasons,” “minimizing development that would fragment winter range and primary migration corridors,” and “limiting disturbance of big game on winter range.” Id. at 5.
As discussed in great detail in previously submitted comments, the science is clear that oil and gas leasing in big game habitat has substantial negative effects on big game populations. See TWS Draft EA Comments at 13–14. Moreover, the agency itself has recognized that substantial population loss of certain big game species is due in part to oil and gas development. See Wilderness Soc’y, 2024 WL 1241906, at *17.
iii. The BLM has not deferred parcels in areas with low oil and gas development potential.
The BLM identifies the following parcel as having low approximate development potential and as being not proximate to development: MT-2026-10-6961. EA at App. J. The fact that the BLM is proposing to offer one small, isolated parcel for sale in Montana is in conflict with its obligation to consider development potential; the parcel’s small size and isolation appear to undermine its value for resource extraction and its likelihood of receiving a competitive bid. Nevertheless, the BLM moves this parcel forward without considering deferral.
The MLA directs the BLM to hold periodic oil and gas lease sales for lands which are “known or believed to contain oil or gas deposits.” 30 U.S.C. § 226(a); see Vessels Coal Gas, Inc., 175 IBLA 8, 25 (2008) (“It is well-settled under the MLA that competitive leasing is to be based upon reasonable assurance of an existing mineral deposit.”). The BLM’s regulations also call for preferencing lands with “high potential” for oil and gas development. 43 C.F.R. § 3120.32(e).
Leasing lands with no or low potential for oil and gas development violates FLPMA’s multiple use mandate because it precludes management for other uses. Wilderness Workshop v. BLM, 342 F. Supp. 3d 1145, 1166 (D. Colo. 2018) (“[I]f [low and medium potential] areas were open for leasing, even if there is a minimal chance for development, it would detract from BLM designating that land for other uses.”); see also, e.g., BLM COLORADO RIVER VALLEY FIELD OFFICE, PROPOSED COLORADO RIVER VALLEY RMP/FINAL EIS (2014), 3-135 (deciding against managing lands for protection of wilderness characteristics despite those lands “meet[ing] the overall criteria for wilderness character” in the Grand Hogback unit based on the presence of oil and gas leases, even though the leases were non-producing). The BLM itself has reiterated this point, explaining that the preference criteria are meant to “ensure that oil and gas leasing on public lands focuses development where there is the most potential for recovery and allows the agency to manage public lands for other uses.” 89 Fed. Reg. at 30,956. Accordingly, the BLM should analyze for deferral—and defer—parcels on land with low development potential.
iv. The BLM has not adequately resolved the question of whether there are parcels that overlap inventoried Lands with Wilderness Characteristics (LWC). To the extent that parcels do overlap with LWCs, the BLM should defer those parcels.
Previously submitted comments indicated that “[w]hile commenters do not currently have data regarding parcel overlap with BLM recognized LWCs, the BLM in its Draft EA recognizes that there is overlap with proposed parcels and LWCs.” TWS Draft EA Comments at 16 (citing DRAFT EA at 95). In response, the BLM indicated the following:
Table 1.2 of Appendix L, which has been updated in response to this comment, identifies “Lands with Wilderness Characteristics (LWCs)” as a resource considered but not analyzed in detail, with the stated rationale that “There are no LWCs or proposed LWCs within the nominated lease parcels per review of GIS data.” This is a factual determination based on BLM’s GIS screening of the 20 nominated parcels in this sale.
EA, App. at 111. Despite this statement, the BLM has not updated the portion of the EA previously cited by commenters, which still states that, with respect to LWCs, “[l]ease notices, stipulation application, and regulatory requirements will adequately minimize potential impacts at APD stage.” EA at 95, tbl. 1.2. In that same table, the BLM elsewhere indicates that there are no resource conflicts for resources that do not overlap the proposed lease parcels, but it does not do so for LWCs. See e.g., EA at 95, tbl.1.2 (“There are no ACECs or proposed ACECs within the nominated lease parcels.”). The BLM must confirm that that there are no LWCs that are implicated by this lease sale, and if there are not, it must update its EA accordingly.
In the event that the lease sale parcels do overlap with LWCs, the BL M should defer those parcels. FLPMA obligates the BLM to take its resource inventory into account when preparing management plans and authorizing uses, “giving priority to areas of critical environmental concern” and observing the principles of multiple use and sustained yield. See 43 U.S.C. §§ 1711(a), 1712(c). In making decisions about leasing areas for oil and gas development, the BLM can and should protect wildlife, scenic values, recreation opportunities, and wilderness character on public lands. This is necessary and consistent with the definition of multiple use, which identifies the importance of various aspects of wilderness characteristics (such as recreation, wildlife, and natural scenic values). Id. § 1702(c); see also Or. Nat. Desert Ass’n v.
BLM, 625 F.3d 1092, 1121 (9th Cir. 2008) (discussing the BLM’s continuing duty to consider and manage for wilderness characteristics). FLPMA also requires the BLM to “take any action necessary to prevent unnecessary and undue degradation of the lands.” 43 U.S.C. § 1732(b).
It is equally important for the BLM to defer leasing in inventoried LWCs and ACECs for which management decisions have not yet been made. This approach is consistent with agency policy and authority and is critical to preserving the BLM’s ability to make management decisions for those wilderness resources through a public planning process. The BLM has rightfully exercised its discretion to defer such parcels in its lease sales. For example, the Grand Junction Field Office deferred lease parcels from its December 2017 lease sale in areas that the BLM inventoried and found to have wilderness characteristics. The BLM deferred these parcels “due to having lands with wilderness characteristics that require further evaluation.” BLM GRAND JUNCTION FIELD OFFICE, DETERMINATION OF NEPA ADEQUACY FOR THE DECEMBER 2017 COMPETITIVE OIL & GAS LEASE SALE DOI-BLM-CO-N050-2017-0051-DNA, 1 (Dec. 7, 2017).
D. The BLM may not proceed with this lease sale if the governing field office RMP is invalid.
Under FLPMA, the BLM may issue decisions such as leases, permits, rights of way, and other authorizations only “in accordance with” a valid land use plan. 43 U.S.C. § 1732(a). FLPMA’s implementing regulations likewise provide that all “resource management authorizations and actions . . . shall conform to the approved [RMP].” 43 C.F.R. § 1610.5-3(a). BLM cannot proceed with approving new leases or authorizations or take other action predicated on a plan that is not in effect. Doing so would violate FLPMA along with the recently enacted 2025 Reconciliation Act (and the MLA, which it amended) and be contrary to law in violation of the APA.
The Congressional Review Act (CRA) requires federal agencies to submit rules to Congress for review before they can take effect. 5 U.S.C. § 801(a)(1)(A). Historically, land management agencies like the BLM have not submitted their land or resource management plans to Congress, taking the position that such plans are not “rules” for CRA purposes. However, after the Government Accountability Office determined, at the request of members of Congress, that four BLM RMPs/Resource Management Plan Amendments (RMPAs) were “rules” for purposes of the CRA,10 Congress voted in the fall of 2025 to disapprove those four RMPs/RMPAs under the terms of the CRA, subjecting such plans to the CRA’s procedural requirements for the first time.11 This legislative action and its associated significant adverse and destabilizing consequences for federal land management raise serious questions as to whether land or resource plans or amendments approved after passage of the CRA in 1996 are in effect if they have not been submitted to Congress under the CRA’s requirements. See 5 U.S.C. § 801(a)(1)(A).
As previously explained in comments, the BLM must address these questions before proceeding with this lease sale. See Wild Montana Scoping Comments at 4-5; TWS Draft EA Comments at 17–18. The BLM approved the Billings RMP in 2015. Since then, the BLM has not transmitted the RMP to Congress under the CRA, which renders its status questionable. The BLM should not proceed with issuing leases based on an RMP that never took effect. Doing so may violate FLPMA, the 2025 Reconciliation Act, and the MLA and may therefore be contrary to law, in violation of the APA.
E. Even assuming the RMP is valid and in effect, it is inadequate to support leasing.
As previously explained in comments, plans governing lands subject to this lease sale are old or inadequately analyze impacts. See Wild Montana Scoping Comments at 5–6; TWS Draft EA Comments at 18. The Billings RMP, which is the relevant plan with respect to the Montana parcel, is over ten years old. This issue is all the more pressing now, as the BLM is attempting to remove process such as leasing preference criteria and public participation periods as “duplicative of existing established processes for land use planning” 91 Fed. Reg. at 38103. The BLM cannot continue to rely on increasingly old and outdated RMPs while simultaneously eliminating any means to obtain and address new information past the land use planning stage.
Consequently, the BLM should defer leasing in these areas until the agency can consider new inventories and analyze how best to protect the resources. At the very least, the agency must undertake a thorough analysis that considers the potential impacts that new leasing and development would have on sensitive resources.
Even where implicated RMPs were finalized within the last five years, the BLM must take a hard look at new resource inventories and stipulations at the lease sale stage to ensure that new leases comply with existing plans, reflect updated inventory data, and adequately protect sensitive resources. Failure to consider, analyze, and disclose these issues would violate NEPA and FLPMA.
II. The BLM failed to ensure that leasing complies with NEPA and the APA.
The BLM must evaluate the environmental impacts of this proposed lease sale under NEPA. See 42 U.S.C. §§ 4331–4347. NEPA fosters informed decision-making by federal agencies and promotes informed public participation in government decisions. See Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983). To meet those goals, NEPA requires that the BLM “consider every significant aspect of the environmental impact of a proposed action” and inform the public of those impacts. Id. (quoting Vt. Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 553 (1978)).12 The BLM must take a “hard look” at the environmental effects before making any leasing decisions, ensuring “that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349–50 (1989). Environmental “[e]ffects are reasonably foreseeable if they are sufficiently likely to occur that a person of ordinary prudence would take [them] into account in reaching a decision.” Sierra Club v. Fed. Energy Reg. Comm’n, 867 F.3d 1357, 1371 (D.C. Cir. 2017) (internal quotation marks and citation omitted). The agency must undertake a thorough analysis that considers the potential impacts (direct, indirect, and cumulative13) of new leasing and development.
The BLM must analyze these environmental impacts at the lease sale stage. It is well established that leasing constitutes an “irreversible, irretrievable commitment of resources,” and that the BLM is therefore obliged to analyze such impacts at this stage. Sierra Club v. Peterson, 717 F.2d 1409, 1412 (D.C. Cir. 1983). Federal courts have repeatedly rejected agency attempts to avoid analyzing reasonably foreseeable future impacts by claiming that considering them at the lease sale stage would be speculative. See, e.g., N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1078–79 (9th Cir. 2011); Conner v. Burford, 848 F.2d 1441, 1450 (9th Cir. 1988); W. Watersheds Project v. Bernhardt, 543 F. Supp. 3d 958, 992 (D. Idaho 2021); Wildearth Guardians v. BLM, 457 F. Supp. 3d 880, 888 (D. Mont. 2020); Wilderness Soc’y, 2024 WL 1241906, at *17.
The BLM must also ensure that it is considering this environmental analysis as part of its decision-making process under the APA. The APA authorizes judicial review of agency actions and provides that courts “shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary[ and] capricious.” 5 U.S.C. § 706(2)(A). An agency acts arbitrarily and capriciously when it, among other things, “entirely fail[s] to consider an important aspect of the problem” or fails to conduct a “reasoned evaluation of the relevant factors.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 995 (9th Cir. 2014) (quoting Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 378 (1989)). As one court explained, the agency’s failure to consider environmental harm as part of its decision-making process is “at odds with the APA[’s mandate] to consider an important aspect of the problem.” Wilderness Soc’y, 2024 WL 1241906, at *24 (citation and internal quotation marks omitted).
A. The BLM failed to adequately analyze the environmental impacts of leasing.
Given the aforementioned conflicts between the proposed parcels and conservation values, see discussion supra Section I.C, as well as the consequences that oil and gas leasing can have related to a plethora of environmental issues including climate, groundwater, methane emissions, public health, and environmental justice, the BLM must sufficiently analyze the environmental impacts of leasing and consider those impacts as part of its decision-making in order to comply with its obligations under NEPA and the APA. The following subsections discuss various issues that the BLM must address as part of its environmental analysis, and explain how the BLM’s environmental analysis for each of the issues in its Draft EA is insufficient.
i. The BLM failed to adequately analyze impacts of leasing on sage-grouse.
As indicated above, some of the parcels that are being considered for leasing overlap sage-grouse habitat. See discussion supra Section I.C.i. The BLM must provide an analysis of the reasonably foreseeable impacts to sage-grouse from development on the proposed lease parcels, and must consider those impacts as part of its leasing decisions. Impacts on sage-grouse must be a component of the decision-making process given that the research shows—and the agency agrees—that oil and gas development is a major threat to sage-grouse habitat. See discussion supra Section I.C.i.
A comprehensive evaluation of these impacts is mandated by NEPA and the APA. See 42 U.S.C. § 4332(C)(i) (mandating consideration of “reasonably foreseeable environmental effects of the proposed agency action”); Wilderness Soc’y, 2024 WL 124190, at *15–17 (finding that the agency’s analysis of the impacts of oil and gas drilling on sage-grouse violated NEPA’s hard look review requirement and constituted a “failure ‘to consider an important aspect of the problem’” in violation of the APA (quoting State Farm, 463 U.S. at 43)).
The EA fails to properly analyze impacts to the sage-grouse. The BLM generally cites the negative impacts that oil and gas development can have on sage-grouse habitat and defers any further analysis, stating that “[p]roject specific proposals would be further evaluated at the APD stage and would undergo site specific NEPA review. It is at this time that project specific avoidance, minimization, and mitigation measures would be identified.” EA at 61–62. This analysis is insufficient. The cursory statement that oil and gas development “may negatively affect sage-grouse habitat” just “informs [the BLM] and the public what they already know.” EA at 61; WildEarth Guardians v. BLM, 457 F. Supp. 3d at 886. Such “general statements” do not substitute for evaluating the foreseeable impacts. See Or. Nat. Desert Ass’n v. Rose, 921 F.3d 1185, 1191 (9th Cir. 2019). And the BLM cannot defer all analysis to the APD stage, given that leasing constitutes an “irreversible, irretrievable commitment of resources.” Sierra Club, 717 F.2d at 1412.
The BLM also relies heavily on the sage-grouse stipulations from the 2015 Plans to conclude that leasing will have minimal impacts. See EA at 64–65. But the BLM “must do more to justify its conclusion that the effects would be the same as those outlined in the RMPs.” Wilderness Soc’y, 2024 WL 1241906, at *17; see also W. Watersheds Project, 543 F. Supp. 3d at 991–93 (finding that the BLM did not adequately analyze impacts to sage-grouse of drilling where the agency simply referenced RMP EISs, which are “too generic to foster informed decision-making about leasing in particular locations” and which “are no substitute for more precise cumulative impact analyses for later-in-time lease sales” because they fail to “consider cumulative effects to greater sage-grouse at . . . the specific locales affected by each lease sale”).
ii. The BLM has not properly analyzed impacts of leasing on big game.
As previously discussed, there is overlap between parcels being considered for leasing and big game habitat. See discussion supra Section I.C.ii. The BLM must provide a thorough analysis of the reasonably foreseeable impacts to big game populations from development on these particular lease parcels, and must consider those impacts when deciding whether to move forward with affected parcels. The effect of leasing on big game population is an important factor in these decisions given the well-documented impacts that leasing has on big game populations. See discussion supra Section I.C.ii.
A thorough evaluation of these impacts is mandated by NEPA and the APA. See 42 U.S.C. § 4332(C)(i) (mandating consideration of “reasonably foreseeable environmental effects of the proposed agency action”); Wilderness Soc’y, 2024 WL 1241906, at *17–19 (finding that the BLM’s analysis of the impacts of oil and gas drilling on big game was inadequate under NEPA); State Farm, 463 U.S. at 43 (holding that an agency acts arbitrarily and capriciously when it “fail[s] to consider an important aspect of the problem”).
The BLM fails to thoroughly analyze the impacts of leasing in big game habitat. The BLM refers to analysis conducted at the planning stage, stating that “information regarding wildlife species and impacts in the subject planning areas can be found within the respective Field Office’s ARMP.” EA at 65. After generally describing the ways in which oil and gas development can negatively impact big game species, the BLM concludes that “at the leasing stage, the exact location, timing, and intensity of potential future development are unknown. Mitigation actions, location and type of development, and other context specific factors are key to the specific impacts on big game and avoidance behaviors caused by development activity. As such, potential impacts would depend on the extent and configuration of future surface disturbance and would be evaluated in greater detail during subsequent site-specific analysis.” EA at 70.
The BLM’s prior approach to analyzing big game has been found to violate NEPA because it relied on analysis prepared for the agency’s RMPs and lacked “anything resembling an estimate of how the lease sale [at issue] will impact these species.” Wilderness Soc’y, 2024 WL 1241906, at 18–19. This approach is especially inadequate here because the Billings RMP is old or stale, and therefore does not benefit from new research that has augmented scientific understanding of the major impact that oil and gas development has on big game. See id. at *17.
The BLM must also consider how drilling on the proposed parcels will add to habitat impairment from past, present, and reasonably foreseeable future drilling elsewhere in Montana’s big game habitat. In doing so, the agency must provide a baseline of impacts from existing development, including how much critical winter range acreage is directly disturbed or impaired in connection with ongoing and future development. The BLM has an obligation to determine whether the direct, indirect, and cumulative effects of this lease sale will have a significant impact on big game, and thus whether an EIS is required.
iii. The BLM has not properly analyzed impacts of leasing on LWCs.
As discussed above, there may be some overlap between leasing parcels and LWCs. See discussion supra Section I.C.iii. In the event that there is indeed this overlap, it is particularly important for the BLM to analyze the impacts of leasing in these areas and to consider these impacts as part of its leasing decisions given the role that these areas play in the BLM’s ability to manage for multiple use. See discussion supra Section I.C.iii.
A thorough evaluation of these impacts is mandated by NEPA and the APA. See 42 U.S.C. § 4332(C)(i) (mandating consideration of “reasonably foreseeable environmental effects of the proposed agency action”); State Farm, 463 U.S. at 43 (holding that an agency acts arbitrarily and capriciously when it “fail[s] to consider an important aspect of the problem”). The BLM’s approach to analyzing impacts of oil and gas development has been deemed insufficient under NEPA where it, among other things, failed to assess the positions of parcels relative to proposed and existing ACECs. See Bd. of County Comm’rs v. BLM, 706 F. Supp. 3d 1180, 1202 (D. Colo. 2022).
The BLM fails to analyze the impacts of leasing in LWCs. Instead, the BLM concluded that the presence of LWCs did “not warrant analysis in this EA,” determining that there are “[n]o issues from act of leasing. Lease notices, stipulation application, and regulatory requirements will adequately minimize potential impacts at APD stage.” EA at 95.
iv. The BLM failed to adequately analyze greenhouse gas (GHG) emissions and climate effects, and to factor GHG emissions and climate effects into its leasing decisions.
The EA fails to properly consider GHG emissions and their effect on climate change. Given that the climate is “widely regarded as the most pressing environmental threat facing the world today,” the BLM must give appropriate attention to its consideration of GHG emissions and climate impacts. Wilderness Soc’y, 2024 WL 1241906, at *24. NEPA requires the BLM not only to properly analyze and quantify the direct, indirect, and cumulative GHG emissions and climate impacts that may result from leasing, but also to factor GHG emissions into its leasing decisions. Id. at *25 (stating that the BLM “must . . . explain how its GHG analysis inform[s] the decision to select” its preferred alternative, noting that “the complexity of the task does not give the [BLM] a free pass to avoid making these tough decisions by asserting that GHG emissions did not factor into its decision-making”); see also Powder River Basin Res. Council, 2026 WL 555013, at *7 (finding that the “BLM violated its obligation to rigorously evaluate a reasonable range of alternatives to its proposed action” in contravention of NEPA’s requirements by “eliminating . . . greenhouse gas reduction alternatives without further analysis”). As one court explained, “[a]ny claim that the analysis of GHG emissions was informational only and did not inform BLM’s decision-making is hard to square with [NEPA’s] purpose[ and] is equally at odds with the APA.” Wilderness Soc’y, 2024 WL 1241906, at *24. NEPA also requires the agency to consider unquantified effects, recognize the worldwide and long-range character of climate change impacts, and incorporate this analysis of ecological information into its environmental analysis. See 42 U.S.C. § 4332(A), (B), (D), (I), (K). The BLM has the tools to undertake this analysis. Failing to do so for this lease sale would be arbitrary and capricious.
The requirement to consider GHG emissions and climate impacts is further reinforced by other components of the statutory scheme. For example, the MLA’s requirement to lease lands for oil and gas development only in the public interest and FLPMA’s mandate to prevent unnecessary and undue degradation both demand the BLM to consider adverse effects to health and the environment. See 30 U.S.C. § 192; 43 U.S.C. § 1732(b); Sierra Club v. Fed. Energy Reg. Comm’n, 867 F.3d at 1373–74 (holding that where an agency is vested with statutory authority to deny a project based on harm to the environment, that agency must consider direct and indirect environmental effects—including GHG emissions—as part of its decision).
Court decisions clearly establish that NEPA mandates consideration and analysis of the indirect and cumulative climate impacts of BLM fossil fuel production decisions, including at the leasing stage.14 The Supreme Court’s recent decision in Seven County Infrastructure Coalition v. Eagle County, 605 U.S. 168 (2025), does not alter the BLM’s NEPA obligations to analyze GHG emissions and climate impacts for this lease sale. Seven County affirmed that agencies must still analyze indirect effects under NEPA. See id. at 187 (“To be clear, the environmental effects of the project at issue may fall within NEPA even if those effects might extend outside the geographical territory of the project or might materialize later in time . . . . But if the project at issue might lead to the construction or increased use of a separate project . . . the agency need not consider the environmental effects of that separate project.” (emphases in original)); id. at 189 (holding that the Surface Transportation Board rightly considered indirect effects such as soil erosion from new rail embankments and air pollution from trains in evaluating the environmental effects of a railroad line construction); see also Las Vegas Paiute Tribe, 200 IBLA 172, 187 (2025) (applying the Court’s holding in Seven County to find that the tribe was likely to succeed on the merits of its claim that the BLM had unlawfully failed to consider how a transfer of land for development might impact the tribe’s water availability or its ability to exercise water rights, because those were reasonably foreseeable potential impacts of the land sale).
Here, the downstream GHG emissions that will result from this lease sale require analysis. Oil and gas development and extraction is the precise purpose of the leases being issued and is thus not too proximately separate in time or place. Cf. Seven County, 605 U.S. at 187 (distinguishing between an agency’s obligation to conduct NEPA analysis where “effects might extend outside the geographical territory of the project or might materialize later in time” and effects of “a possible future project or one that is geographically distinct from the project at hand”—“for example, a housing development that might someday be built near a highway”— that do not require NEPA analysis). And here, unlike in Seven County, the BLM controls the oil and gas leasing process and thus possesses regulatory authority over managing the oil or gas subject to the prospective leasehold. Cf. 605 U.S. at 175 (“[T]he Board possesses no authority or control over potential future oil and gas development in the Basin.” (citation modified)); id. at 195 (Sotomayor, J., concurring in judgment) (“[T]he Board cannot control the products trans-ported on the proposed rail line.” (citation modified)). As such, under a rule of reason, the BLM must analyze the GHG emissions that would result because it manages and exerts authority over oil or gas development and extraction, which is the direct result of this lease sale.
The BLM must ensure that it fully considers not only the GHG emissions from prospective wells drilled on the leases sold at this lease sale—and the climate change impacts of those GHG emissions—but also the cumulative impacts from other federal lease sales in the state, region, and nation, as well as impacts of GHG emissions from non-federal sources. The BLM must consider GHG emissions in the aggregate along with other foreseeable emissions. Such analysis is necessary to meet the cumulative impacts demands of NEPA.
The indirect and cumulative impacts must be given meaningful context—including within carbon budgets—rather than being simply dismissed as insignificant compared to national or global total GHG emissions. See, e.g., WildEarth Guardians, 368 F. Supp. 3d at 77 (finding that the “BLM’s refusal to quantify GHG emissions rendered the EAs’ cumulative impacts analyses inadequate” because it failed to “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”). “Without establishing the baseline conditions . . . there is simply no way to determine what effect the proposed [action] will have on the environment and, consequently, no way to comply with NEPA.” Half Moon Bay Fisherman’s Marketing Ass’n v. Carlucci, 857 F.2d 505, 510 (9th Cir. 1988). Excluding climate change effects from the environmental baseline ignores the reality of the already deteriorating, climate-impacted state of the resources, ecosystems, human communities, and structures that will be affected. The BLM’s climate effects analysis “must give a realistic evaluation of the total impacts and cannot isolate a proposed project, viewing it in a vacuum.” Grand Canyon Trust v. Fed. Aviation Admin., 290 F.3d 339, 342 (D.C. Cir. 2002).15 In addition, the BLM must make a significance determination “that is grounded in the record and available scientific evidence” and does not just summarily dismiss the impacts as minor relative to other global sources of GHGs. 350 Montana, 50 F.4th at 1266–70.
a. The BLM must quantify climate impacts with a tool such as the social cost of greenhouse gases.
In analyzing these impacts, the BLM must consider the full lifecycle of development activities and GHG emissions that are reasonably foreseeable under a BLM oil and gas lease. The social cost of greenhouse gases (SC-GHG) is a useful tool to aid in this analysis. Courts have rejected agency refusals to properly quantify the impact of GHG emissions and have approved of social cost estimates as an available tool to do so. See, e.g., Mont. Env’t Info. Ctr. v. U.S. Off. of Surface Mining, 274 F. Supp. 3d 1074, 1094–99 (D. Mont. 2017) (rejecting agency’s failure to incorporate the federal social cost of carbon (SCC) estimates into its cost-benefit analysis of a proposed mine expansion); High Country Conservation Advocs. v. U.S. Forest Serv., 52 F. Supp. 3d 1174, 1190–93 (D. Colo. 2014) (rejecting the agency’s post-hoc attempts to justify not using SCC estimates); Zero Zone, Inc. v. U.S. Dep’t of Energy, 832 F.3d 654, 679 (7th Cir. 2016) (holding that SCC estimates used to date by agencies were reasonable).16 While “NEPA does not require agencies to perform a full cost-benefit analysis . . . this does not support a decision to overlook GHGs and their corresponding social costs entirely.” Wilderness Soc’y, 2024 WL 1241906, at *24–25. Moreover, it is “arbitrary and capricious to quantify the benefits . . . and then explain that a similar analysis of the costs was impossible when such an analysis was in fact possible.” High Country Conservation Advocs. v. U.S. Forest Serv., 52 F. Supp. 3d 1174, 1191 (D. Colo. 2014) (emphases in original).
Merely listing the tons of GHGs emitted by a project is insufficient under NEPA if the agency “does not reveal the meaning of those impacts in terms of human health or other environmental values,” since “it is not releases of [pollution] that Congress wanted disclosed” but rather “the effects, or environmental significance, of those releases.” NRDC v. Nuclear Reg. Comm’n, 685 F.2d 459, 486–87 (D.C. Cir. 1982), rev’d on other grounds, Balt. Gas & Elec. Co., 462 U.S. at 106–07. In other words, the actual effects and relevant factors that must be analyzed and disclosed to the public are the incremental climate impacts caused by a project’s GHG emissions, including: property lost or damaged by sea-level rise; increases in energy demand; lost agricultural productivity; and human health impacts, such as cardiovascular and respiratory mortality from heat-related illnesses, changing disease vectors like malaria and dengue fever, increased diarrhea, and changes in associated pollution that cause or exacerbate other health conditions. These impacts are all included to some degree in the different assessment models included in SC-GHG estimates. See, e.g., ENV’T PROT. AGENCY, REPORT ON THE SOCIAL COST OF GREENHOUSE GASES: ESTIMATES INCORPORATING RECENT SCIENTIFIC ADVANCES, 45-61 (2023) [Ex. 5] [hereinafter GREENHOUSE GAS REPORT].
Even in combination with a general, qualitative discussion of climate change, an agency that only calculates the tons of GHGs emitted fails to meaningfully assess the actual incremental impacts to property, human health, productivity, and so forth.17 An agency therefore falls short of its legal obligations and statutory objectives by disclosing only volume estimates. To take an analogous example, courts have held that just quantifying the acres of timber to be harvested or the miles of road to be constructed does not constitute a “description of actual environmental effects,” even when paired with a qualitative “list of environmental concerns such as air quality, water quality, and endangered species,” when the agency fails to assess “the degree that each factor will be impacted.” Klamath-Siskiyou Wildlands Ctr. v. BLM, 387 F.3d 989, 995 (9th Cir. 2004) (emphasis in original) (“A calculation of the total number of acres to be harvested in the watershed is . . . not a sufficient description of the actual environmental effects that can be expected from logging those acres.”); see also Or. Nat. Res. Council v. BLM, 470 F.3d 818, 822– 23 (9th Cir. 2006).
Monetizing climate damages using the SC-GHG helps the agency assess the incremental and actual effects of emissions on the public interest. SC-GHG calculates how the emission of an additional unit of GHG affects atmospheric greenhouse concentrations, how that change in atmospheric concentrations changes temperature, and how that change in temperature incrementally contributes to economic damages, including property damages, energy demand effects, lost agricultural productivity, human mortality and morbidity, lost ecosystem services and non-market amenities, among other impacts. See, e.g., INTERAGENCY WORKING GRP. ON SOC. COST OF CARBON, TECHNICAL SUPPORT DOCUMENT: SOCIAL COST OF CARBON FOR REGULATORY IMPACT ANALYSIS (Feb. 2010) [Ex. 6]. The SC-GHG captures the factors that actually affect public welfare and assesses the degree of impact to each factor, in ways that merely estimating the volume of emissions cannot.
The Interior Department previously “adopt[ed] . . . [the EPA’s 2023] estimates of the social cost as the best available science.” 90 Fed. Reg. 4779, 4779 (Jan. 16, 2025); see U.S. DEP’T OF THE INTERIOR, INFORMATIONAL MEMORANDUM: DOI COMPARISON OF AVAILABLE ESTIMATES OF SOCIAL COST OF GREENHOUSE GASES (SC-GHG), 1, 8 (Oct. 16, 2024) [Ex. 7] (directing the BLM to “adopt the EPA’s 2023 estimates of the Social Cost of Greenhouse Gases (SC-GHG) as the best available science (as of September 30, 2024)”). For years and over multiple projects, the BLM has quantified climate impacts, primarily relying on well-supported SC-GHG estimates. See, e.g., BLM WYOMING, ENVIRONMENTAL ASSESSMENT, DOI-BLM-WY-0000-2023-0001-EA, 2023 SECOND QUARTER COMPETITIVE LEASE SALE, 60 (2023); BLM PECOS
information about the cumulative and incremental environmental impacts” that NEPA requires (emphasis in original) (internal quotation marks omitted)); California v. Bernhardt, 472 F. Supp. 3d 573, 623 (N.D. Cal. 2020) (“[F]raming sources as less than 1% of global emissions is dishonest and a prescription for climate disaster[.] Mere quantification [of greenhouse gas emissions] is insufficient.” (citation omitted)); Mont. Env’t Info. Ctr. v. U.S. Off. of Surface Mining, 274 F. Supp. 3d 1074, 1096–99 (D. Mont. 2017) (rejecting the argument that the agency “reasonably considered the impact of greenhouse gas emissions by quantifying the emissions which would be released if the [coal] mine expansion is approved, and comparing that amount to the net emissions of the United States”); High Country Conservation Advocs. v. U.S. Forest Serv., 52 F. Supp. 3d 1174, 1191 (D. Colo. 2014) (“Beyond quantifying the amount of emissions relative to state and national emissions and giving general discussion to the impacts of global climate change, [the agencies] did not discuss the impacts caused by these emissions.”).
DISTRICT OFFICE, OIL AND GAS LEASE SALE ENVIRONMENTAL ASSESSMENT, CHAVES AND LEA COUNTIES, NEW MEXICO, JUNE 2022, DOI-BLM-NM-P000-2021-0001-EA, 76-77 (2022); see also PETER HOWARD ET AL., INSTITUTE FOR POLICY INTEGRITY, ZERO RATIONALITY: WHAT OIRA’S NEW MEMORANDUM GETS WRONG ON MONETIZING CLIMATE IMPACTS, 2-3 (May 2025) [Ex. 8] [hereinafter ZERO RATIONALITY] (noting that “[f]ederal agencies have used SC-GHG estimates for more than 15 years,” first using the estimates developed in 2010 by the Interagency Working Group on the Social Cost of Greenhouse Gases, and then using EPA’s 2023 estimates).
Here, the BLM omits SC-GHG from its environmental analysis, without replacing it with any other adequate quantitative evaluation of the costs of emissions. But the BLM failed to provide proper justification for changing its position. Cf. FCC v. Fox TV Stations, Inc., 556 U.S. 502, 515 (2009) (holding that an agency must provide “good reasons” for a change in position and must provide “a more detailed justification” when a “new policy rests upon factual findings that contradict those which underlay [an agency’s] prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account”).
The BLM’s justifications for this omission all fall flat.18 First, the BLM asserts that “this action is not a rulemaking. Rulemakings are the administrative actions for which the IWG originally developed the SCC protocol.” EA, App. K at 8. But the IWG documents specifically states that it applies to “regulations and other relevant agency action,” and it is not specific to formal rulemaking procedure. INTERAGENCY WORKING GRP. ON SOC. COST OF CARBON at 1. Given the obvious implications that oil and gas development has for GHG emissions, leasing parcels is certainly a “relevant” agency action per the IWG’s guidance.
In any case, as the BLM offers for its second justification, “Executive Order 14154 clarifies that the IWG has been disbanded, and its guidance has been withdrawn.” EA, App. K at 8. The need for the BLM to conduct social cost estimates stems from its statutory mandates under NEPA, the APA, and the MLA, as discussed earlier in this section. These statutes are not undermined by the withdrawal of this guidance, nor are their requirements limited to formal agency rulemaking.
Third, the BLM states that “NEPA does not require agencies to prepare SCC or SC-GHG estimates or cost-benefit analyses.” Id., App. K at 9. This contention does not address the issue of the agency changing position nor does it address the arbitrariness of quantifying the benefits of leasing without quantifying the costs.
Fourth, the BLM maintains that the “full social benefits of carbon-based energy production have not been monetized, and quantifying only the costs of GHG emissions, but not the benefits, would yield information that is both potentially inaccurate and not useful.” Id., App. K at 9. This is a confusing and misleading statement given that the EA does quantify the benefits of leasing in its discussion of the various economic and financial benefits of leasing, including increased employment opportunities and mineral leasing revenue. See EA at 116–18.
And finally, the agency states that “costs attributed to GHGs are often so variable and uncertain that they are unhelpful for the BLM’s analysis.” Id., App. K at 9.
This last contention, with no reference or explanation to support it, is insufficient to justify a change in position. Contrary to the BLM’s assertions, the tool’s estimates are based on nearly two decades of extensive expert development and peer review. See ZERO RATIONALITY at 1. The Environmental Protection Agency’s (EPA’s) 2023 SC-GHG report underwent public comment and peer review by eminently qualified experts. See ENV’T PROT. AGENCY, DETAILS OF EXTERNAL PEER REVIEW PANEL PROCESS FOR THE REVIEW OF EPA’S “REPORT ON THE SOCIAL COST OF GREENHOUSE GASES: ESTIMATES INCORPORATING RECENT SCIENTIFIC ADVANCES,” 2-4 (2023) [Ex. 9] (listing peer reviewers). EPA valued climate impacts using the best available scientific information, relying on three state-of-the-art damage functions from leading climate economists and research laboratories: the Climate Impact Lab with experts from the University of Chicago and the University of California, Berkeley among other institutions; the Resources for the Future Social Cost of Carbon Initiative in collaboration with dozens of researchers from private and public institutions across the globe; and a meta-analysis from Dr. Thomas Sterner and Dr. Peter Howard that integrates and combines many other published estimates. See GREENHOUSE GAS REPORT at 47, 52. Collectively, these three damage functions capture various market and non-market damages caused by climate change, including impacts on health, energy, labor productivity, agriculture, and coastal regions. Id. at 52 tbl.2.3.1, 55 tbl.2.3.2. The choice to combine three independently constructed damage functions helped to ensure that analysis was rigorous and to safeguard against overreliance on any one methodology. Subsequently, numerous federal agencies (including the Department of the Interior, as noted above) assessed EPA’s updated estimates and determined that the updated estimates reflect the best available science on monetizing GHG emissions. See OFF. OF MGMT. & BUDGET, REPORT TO CONGRESS ON THE BENEFITS AND COSTS OF FEDERAL REGULATIONS AND AGENCY COMPLIANCE WITH THE UNFUNDED MANDATES REFORM ACT: FISCAL YEAR 2023, 21-22 & n.52 (2024) [Ex. 10], https://bidenwhitehouse.archives.gov/wp-content/uploads/2025/01/FY23-Benefit-Cost-Report.pdf.
Moreover, federal courts have repeatedly recognized that agency analysis necessitates making predictive judgments under uncertain conditions, explaining that “[r]egulators by nature work under conditions of serious uncertainty,” Pub. Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209, 1221 (D.C. Cir. 2004), and “are often called upon to confront difficult administrative problems armed with imperfect data.” Mont. Wilderness Ass’n v. McAllister, 666 F.3d 549, 559 (9th Cir. 2011). As the Ninth Circuit has explained, “the proper response” to the problem of uncertain information is not for the agency to ignore the issue but rather “for the [agency] to do the best it can with the data it has.” Id.
Experts have also accounted for uncertainty in SC-GHG estimation in rigorous ways. In addition to applying three damage models developed by different experts to develop its SC-GHG estimates, as indicated above, EPA incorporated a range of probabilistic socioeconomic and emissions scenarios. See GREENHOUSE GAS REPORT at 21–33. Further, to address uncertainty and how it compounds throughout the different modules, EPA used a Monte Carlo simulation-based approach. See id. at 2. And while this approach produced a range of estimates, EPA provided average estimates at different discount rates including a “central” discount rate of 2%. See id. at 12. Accordingly, EPA both rigorously accounted for uncertainty and provided a single central SC-GHG estimate that regulators can apply, and the Interagency Working Group on the Social Cost of Greenhouse Gases, in its estimates, did so as well. See ZERO RATIONALITY at 3–4.
Failing to properly quantify climate impacts in this process is thus arbitrary and capricious.
Finally, NEPA requires agencies to “identify and develop methods and procedures . . . which will ensure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations.” 42 U.S.C. § 4332(2)(B). A livable climate is a “presently unquantified environmental amenit[y].” By neglecting to use SC-GHG, the BLM would be failing to “identify and develop methods and procedures” to ensure that this “presently unquantified environmental . . . value” is “given appropriate consideration in decisionmaking.”
v. The BLM fails to adequately analyze impacts to groundwater from well construction practices and hydraulic fracturing.
The EA fails to adequately address groundwater impacts. NEPA and the APA require the BLM to thoroughly evaluate the impact of oil and gas development on groundwater before issuing leases. See WildEarth Guardians v. BLM, 457 F. Supp. 3d at 886–89; see also 42 U.S.C § 4321 (describing the underlying purpose of NEPA as including “stimulat[ing] the health and welfare of man”); id. § 4331(b) (requiring agencies to “assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings”); State Farm, 463 U.S. at 43 (holding that an agency acts arbitrarily and capriciously when it “fail[s] to consider an important aspect of the problem”).
As previously discussed in comments, oil and gas development can contaminate underground sources of water without proper oil and gas well construction and vertical separation between aquifers and the production zone. Wild Montana Scoping Comments at 30– 31. Federal rules and regulations do not provide adequate protection to usable water, and industry does not protect usable water in practice. See Wild Montana Scoping Comments at 31– 32; see also REBECCA TISHERMAN ET AL., PSE HEALTH ENERGY, EXAMINATION OF GROUNDWATER RESOURCES IN AREAS OF WYOMING PROPOSED FOR THE JUNE 2022 BLM LEASE SALE (May 11, 2022) [hereinafter TISHERMAN REPORT] [Ex. 11]; DOMINIC DIGIULIO, PSE HEALTH ENERGY, EXAMINATION OF GROUNDWATER RESOURCES IN AREAS OF MONTANA PROPOSED FOR THE MARCH 2018 BLM LEASE SALE (Jan. 10, 2018) [hereinafter DIGIULIO REPORT] [Ex. 12].
Here, the BLM’s EA does not provide adequate analysis of its measures to protect all usable water zones. The BLM defers its analysis, stating that “[t]he use of any specific water source on a federally administered well requires review and analysis of the proposal through the NEPA process, which will be completed at the APD stage.” EA at 42. But there is ample information available now to consider those risks. Failing to analyze these groundwater issues at the leasing stage is arbitrary and capricious. See Wildearth Guardians v. BLM, 457 F. Supp. 3d at 888–89; Wilderness Soc’y, 2024 WL 1241906, at *8–11.
The BLM generally references state regulatory requirements for well construction, without providing any insight into how and whether those regulations adequately protect the groundwater at issue here. See EA at 42. For shallow fracturing, the EA also falls short. The BLM fails to provide an explanation of the impacts to usable water zones where fracking is already occurring (even if those zones are not currently being used as a drinking water source) and how that fracking may degrade the quality of groundwater.
vi. The BLM has not properly analyzed the impacts of venting, flaring, and leaks that would result from this lease sale.
Venting (the release of natural gas), flaring (the burning off of natural gas), and leaks during oil and gas production are a major cause of methane emissions, a potent GHG. Based on the BLM’s aforementioned obligation to consider GHG emissions at the lease sale stage, the BLM must take the requisite hard look at the impacts of methane emissions that will result from development of and production on these lease parcels. See discussion supra Section II.A.iv; see also, e.g., W. Org. of Res. Councils v. BLM, No. CV 16-21-GF-BMM, 2018 WL 1475470, at *15, 18 (D. Mont. Mar. 26, 2018) (at the land use planning stage, finding that the BLM violated NEPA where it failed to acknowledge evolving science to properly quantify the magnitude of methane pollution of future leasing/development).
As previously discussed in scoping comments, the oil and gas industry is one of the world’s largest sources of methane emissions, which has significant impacts on the economy and on public health. See Wild Montana Scoping Comments at 32–33. The EA barely touches on methane. The BLM must take the requisite hard look at the impacts of methane emissions that will result from development of and production on these lease parcels, including the economic, public health, and public welfare impacts of venting and flaring.
vii. The BLM fails to analyze the impacts of oil and gas leasing on public health.
Protecting public health is fundamental to the underlying purpose of NEPA, which includes “stimulat[ing] the health and welfare of man” and mandates that agencies consider the degree to which their proposed actions affect public health or safety. 42 U.S.C § 4321. NEPA requires federal agencies “to use all practicable means, consistent with other essential considerations of national policy” to “assure for all Americans safe, healthful, productive and aesthetically and culturally pleasing surroundings.” Id. § 4331(b). To protect public health and promote informed agency decision-making, transparency, and public participation, NEPA imposes “action-forcing procedures . . . requir[ing] that agencies take a hard look at environmental consequences,” Robertson, 490 U.S. at 350, which includes public health.
As discussed at length in scoping comments, oil and gas development poses myriad public health concerns. See Wild Montana Scoping Comments at 33-35. The BLM’s analysis on public health impacts in its EA is inadequate. After listing some of the many impacts about human health associated with oil and gas development, the BLM simply concludes that “[h]uman health risk assessments cannot be performed until project-specific details are known so that frequency, timing, and levels of contact with potential stressors may be identified. However, each of the reasonably foreseeable actions has been, or will be, subject to relevant rules and regulations regarding public health and safety.” EA at 114.
viii. The BLM has not adequately analyzed the impacts of oil and gas leasing on environmental justice.
The BLM fails to take a hard look at environmental justice. In response to comments raising this issue, BLM points to its general assessment of impacts to human health as well as its analyses on air quality and GHGs, none of which address commenters’ concerns. See EA, App. K at 96. The BLM also points to repeal of Executive Orders 12898 and 14096. Id., App. K at 97. But as previously explained in scoping comments, courts have repeatedly held that agencies must take a hard look at environmental justice pursuant to NEPA. See Wild Montana Scoping Comments at 35. The BLM fails to explain this change in position from previous lease sale analyses that discussed the adverse effects of oil and gas activity on environmental justice communities. The agency’s failure to include this analysis in the EA is arbitrary and capricious both because it has failed to explain its change in position and because, by ignoring environmental justice, the agency has failed to consider an important part of the problem.
B. The BLM has failed to consider a range of reasonable alternatives.
The BLM failed to evaluate a range of reasonable alternatives in the Draft EA prepared for this lease sale. See 42 U.S.C. 4332(2)(F) (requiring agencies to “study, develop, and describe technically and economically feasible alternatives”). The range of alternatives is the “heart” of a NEPA document because “[w]ithout substantive, comparative environmental impact information regarding other possible courses of action, the ability of [a NEPA analysis] to inform agency deliberation and facilitate public involvement would be greatly degraded.” New Mexico ex rel. Richardson, 565 F.3d at 708; see also California v. Block, 690 F.2d 753, 767 (9th Cir. 1982) (stating that the “touchstone” is whether the agency’s “selection and discussion of alternatives fosters informed decision-making and informed public participation”).
The two alternatives evaluated here—namely, a choice between leasing every parcel nominated and leasing nothing at all under the no-action alternative—fails to present a reasonable range of alternatives. See Rocky Mountain Wild v. Bernhardt, 506 F. Supp. 3d 1169, 1185–88 (D. Utah 2020) (finding that the BLM’s inclusion of two “polar opposite alternatives” to “lease all or lease none” of the available parcels “fell short of NEPA’s requirements”); see also Powder River Basin Res. Council, 2026 WL 555013, at *6–7 (finding that the “BLM violated its obligation to rigorously evaluate a reasonable range of alternatives to its proposed action” by “eliminating reduced rate of development . . . without further analysis” because “[i]t is beyond doubt that NEPA requires consideration of reasonable alternatives to a contemplated action that minimize or reduce the environmental effects of its decision”).
A middle-ground alternative must consider deferring at least some parcels. Such an alternative is particularly important when considering impacts to specific resources, such as sage-grouse and big game habitat. For this lease sale, the BLM must evaluate an alternative that would defer leasing on some or all parcels overlapping sage-grouse habitat, along with deferrals based on other use conflicts.
C. The BLM fails to properly evaluate mitigation measures.
NEPA requires the BLM to include a discussion of possible mitigation measures in its EA.19 See WildEarth Guardians v. U.S. Fish & Wildlife Serv., 784 F.3d 677, 698 (10th Cir. 2015) (holding that an EA must “explore mitigation measures where it acknowledges the possibility that the agency action will cause environmental harm”). The BLM must, in the following order: seek to avoid impacts, minimize impacts, and, only if those approaches are insufficient to fully mitigate the impacts, appropriately and sufficiently compensate for any remaining impacts. 43 C.F.R. § 6102.5.1.
D. The BLM’s NEPA analysis for this lease sale fails to reflect the impacts of the 2025 Reconciliation Act.
As discussed in detail in scoping comments, the recently enacted 2025 Reconciliation Act contains several amendments to the statutes governing the BLM’s management of oil and gas development. See Wild Montana Scoping Comments at 6–7. To the extent that the BLM believes that the 2025 Reconciliation Act removes the agency’s discretion not to offer for lease or to lease areas designated as open in an RMP, and instead obligates the agency to offer for lease or to lease any open land for which it receives an industry expression of interest, the BLM’s NEPA analysis must account for that fundamental change. If the BLM must lease all lands for which it has received an expression of interest, and cannot apply mitigation measures and stipulations not contained in the RMP to the leases, it must account for this in its NEPA analysis of all affected lease sales, including this lease sale. For instance, the BLM must consider important questions such as: apart from the parcels being considered for this sale, how many additional expressions of interest have been submitted that overlap with sage-grouse and big game habitat? How many additional expressions of interest in these same areas are foreseeable in the coming years? And how would the BLM’s non-discretionary response to any such expressions of interest affect its compliance with fundamental NEPA mandates for oil and gas leasing, discussed below?
Rocky Mountain Wild created a map of industry leasing interest as of September 2, 2026, which shows the large number of EOIs received in Montana during the current administration. Rocky Mountain Wild, Leasing Nominations As of 9/2/2025 from BLM NFLSS, ARCGIS, https://experience.arcgis.com/experience/95da81dcca904a03b3e6443bc597eb6a (last accessed Sept. 16, 2026). If the BLM believes that it has to offer all these parcels for lease in the coming 18 months, this will lead to a significant amount of leasing and drilling that was not contemplated in the agency’s existing RMPs.
As previously discussed, the BLM developed the Billings RMP on the assumption that additional mitigation measures or stipulations would be developed during the leasing and/or APD stages of oil and gas development. See discussion supra Section I.B.i. The NEPA analyses for the RMP also relies on that assumption. See e.g., BLM BILLINGS FIELD OFFICE, MONTANA, BILLINGS
AND POMPEYS PILLAR NATIONAL MONUMENT PROPOSED RESOURCE MANAGEMENT PLAN AND FINAL ENVIRONMENTAL IMPACT STATEMENT, ES-4 (June 2015) (noting the need for the ability to “[r]etain[] flexibility to adapt to new and emerging issues and opportunities and to provide for adjustments to decisions over time based on new information and monitoring”); id. at 4-23 (“The adaptive management strategy for oil and gas resources provides the flexibility to respond to changing conditions that could not have been predicted during RMP development. The strategy also allows for the use of new technology and methods that may minimize or reduce impacts.”).
The BLM is obligated, at the leasing stage, to prepare a NEPA analysis that accurately reflects the agency’s understanding of the oil and gas leasing process as amended by the 2025 Reconciliation Act. If the BLM understands the 2025 Reconciliation Act to limit its discretion over the leases to be offered and the mitigation measures and stipulations that subsequently can be applied to those leases, the NEPA analysis must reflect that understanding. The BLM cannot tier to the EISs for the RMPs, given that the RMP is outdated and the 2025 Reconciliation Act substantially changes the leasing landscape. See 42 U.S.C. § 4336b; discussion supra Section I.E. Further, the RMP assumes that the BLM has discretion to apply additional mitigation and stipulations at the leasing stage. See, e.g., Wilderness Soc’y, 2024 WL 1241906, at *16 (“Having deferred analysis of future lease sales when preparing its RMPs, the Bureau cannot now point back to those plans in lieu of doing additional analysis.”); W. Watersheds Project, 543 F. Supp. 3d at 991–92 (finding that the BLM’s tiering to RMP EISs was insufficient to fulfill its NEPA duties given that the agency “expressly deferred . . . analysis [of site-specific impacts] to later implementing decisions”); Dine Citizens Against Ruining Our Env’t v. Bernhardt, 923 F. 3d 831, 856–57 (10th Cir. 2019) (holding that the BLM erred in tiering EAs for APDs to flawed analysis of water use in RMP EIS); WildEarth Guardians v. Zinke, 368 F. Supp. 3d at 71 (holding that the BLM erred in tiering lease sale NEPA analyses to RMP EISs that relied on outdated data and methodologies and were too broad to support forecasts at the leasing stage).
In short, the BLM’s NEPA analysis for this lease sale must reflects any change in agency discretion over oil and gas development under the 2025 Reconciliation Act and display for the public the environmental impacts of that change.
III. The BLM may not rely on the so-called energy emergency in its oil and gas leasing.
Evidence does not support the existence of a “national energy emergency” as declared in Executive Order 14156, 90 Fed. Reg. 8,433 (Jan. 29, 2025), or the associated emergency procedures set forth in the “Alternative Arrangements for NEPA Compliance,” see DEP’T OF THE INTERIOR, ALTERNATIVE ARRANGEMENTS FOR NEPA COMPLIANCE (Apr. 2025), https://www.doi.gov/sites/default/files/documents/2025-04/alternative-arrangements-nepa-during-national-energy-emergency-2025-04-23-signed_1.pdf; Dep’t of the Interior, Department of the Interior Implements Emergency Permitting Procedures to Strengthen Domestic Energy Supply (Apr. 23, 2025), https://www.doi.gov/pressreleases/department-interior-implements-emergency-permitting-procedures-strengthen-domestic [collectively, “Emergency Procedures”]. For detailed discussion as to why the declaration of a national energy emergency is unjustified and why the BLM cannot use the Emergency Procedures for leasing, please refer to the May 16, 2025, letter submitted to the Secretary of the Interior, which this comment letter incorporates by reference. See Letter from Earthjustice et al. to Doug Burgum, Sec. of the Interior on Department of the Interior Emergency NEPA Procedures (May 16, 2025) [Ex. 13].20
As discussed in detail in that letter, the Emergency Procedures are unlawful for numerous reasons, including that: (1) they are premised on the baseless and unsupported declaration of a “national energy emergency”; (2) they conflict with the Department of the Interior’s NEPA regulation on emergency responses; (3) they violate the Department’s public participation obligations; (4) they fail to conform to the requirements for APA notice and comment rulemaking; and (5) they are inconsistent with the timeframes and participation periods mandated by the BLM’s oil and gas leasing regulations. The Department must clarify that the Emergency Procedures cannot be used to approve onshore oil and gas leasing because, among other reasons, they are inconsistent with the timeframes and participation periods mandated by 43 C.F.R. § 3120.42(b). The BLM’s regulation contains no exceptions and requires the BLM to provide a 30-day scoping period, 30-day comment period, a Notice of Competitive Lease Sale at least 60 calendar days prior to the lease auction, and a 30-day protest period following the posting of the Notice of Competitive Lease Sale. The Emergency Procedures are inconsistent with these requirements and thus cannot be used to approve onshore oil and gas leasing.
Despite the unlawfulness of doing so, the BLM has relied on the so-called energy emergency in its oil and gas leasing process. The BLM’s recently issued Instruction Memorandum (IM) 2025-028 commands the agency to offer for lease “all eligible parcels”— regardless of leasing preference designation—based on the national energy emergency declaration. BLM, INSTRUCTION MEMORANDUM 2025-028: OIL AND GAS LEASING – LAND USE PLANNING AND LEASE PARCEL REVIEWS, 5 (May 8, 2025). This IM is unlawfully directing BLM offices to offer parcels for lease irrespective of conflicts with wildlife habitat, cultural resources, or the other issues identified in the agency’s leasing preference criteria, see 43 C.F.R. § 3120.32, premised on the unlawful national energy emergency. In accordance with this directive, the BLM has in some instances elected to move forward all eligible parcels even after designating all of them as low preference for leasing based on conflicts with conservation values. See, e.g., BLM PECOS DISTRICT OFFICE, COMPETITIVE OIL AND GAS LEASE SALE ENVIRONMENTAL ASSESSMENT, NEW MEXICO QUARTER 2 2026 DOI-BLM-NM-P000-2026-0001-EA, 187–89 (Mar. 2026); BLM FARMINGTON FIELD OFFICE, COMPETITIVE OIL AND GAS LEASE SALE ENVIRONMENTAL ASSESSMENT, NEW MEXICO QUARTER 2 2026 DOI-BLM-NM-F010-2026-0001-EA, C-1 (Mar. 2026). As discussed in more depth below, to comply with the agency’s obligations pursuant to its own leasing regulations and the statutory requirements of FLPMA and NEPA, the BLM must rescind this IM and disregard its invalid directives for this lease sale. See discussion infra Section IV.
IV. The BLM may not rely on IM 2025-028, which undercuts its obligations under NEPA and FLPMA.
In direct tension with its regulations, the BLM’s IM 2025-028 mandates that the agency move forward all “eligible” parcels for leasing regardless of their preference designation or resource conflicts. IM 2025-028 at 5. The IM’s directive is unlawful not only because it roots the command to offer all parcels in the illegitimate energy emergency declaration, see id.; discussion supra Section III, but also because: (a) the IM conflicts with the BLM’s legal requirements, including the 2024 Leasing Rule itself; and (b) it represents a substantive agency rule that requires, but did not receive, notice and comment under the APA.
First, the IM conflicts with the preference criteria regulation, which as described above, directs BLM to defer low preference parcels. Moreover, it conflicts with the BLM’s obligations under FLPMA and NEPA. The BLM’s eligibility determination is general and performed before the BLM has examined what specific resource conflicts might exist for nominated parcels. The BLM cannot ascertain those conflicts until it conducts the environmental analysis and examines resource conflicts for the specific parcels at issue for a particular sale. Thus, the IM’s directive to move forward all “eligible” parcels binds the agency to offering parcels for lease irrespective of their resource conflicts. This violates the BLM’s obligations under FLPMA.
The IM also fails to recognize that lands must not only be “eligible” for leasing but also “available.” By requiring that all lands the BLM determines are “eligible” be leased, without also determining whether acreage is “available,” the IM violates both the MLA and the agency’s own regulations. See 30 U.S.C. 226(b)(1)(A) (“Lease sales shall be held for each State where eligible lands are available at least quarterly and more frequently if the Secretary of the Interior determines such sales are necessary.”) (emphasis added); 43 C.F.R. § 3120.11 (“All lands eligible and available for leasing may be offered for competitive auction . . . .” (emphases added)).
Indeed, the BLM has recognized the importance of retaining the ability to defer parcels after conducting its environmental review. Pursuant to the Leasing Rule, “[w]hen determining whether the BLM should offer lands specified in an expression of interest at lease sales, the BLM will evaluate the [agency’s] obligations to manage public lands for multiple use and sustained yield and to take any action required to prevent unnecessary or undue degradation of the lands and their resources.” 43 C.F.R. § 3120.32 (emphases added). During the scoping process, the BLM must evaluate what lands to offer based on the preference criteria. See id. This means the BLM’s own regulations require the agency to retain discretion after scoping to determine whether to offer—or defer—certain lands. Otherwise, the BLM cannot fulfill its multiple use and sustained yield obligations under FLPMA or account for resource conflicts with industry-nominated parcels. The BLM discussed this need in the final Leasing Rule, explaining that it “changed the ‘shall’ to ‘may’” in 43 C.F.R. § 3120.11, which now states that “[a]ll lands eligible and available for leasing may be offered for competitive auction.” 89 Fed. Reg. at 30,945. The agency did so “to clarify that the Secretary retains the discretion to decide, even after lands have been determined to be eligible and available, what lands will ultimately be offered for lease.” 89 Fed. Reg. at 30,945 (emphasis added).
To meet its legal mandates under FLPMA, the BLM must maintain the ability to defer lease parcels that involve resource conflicts. See discussion supra Section I. For example, as discussed above, BLM offices must retain the discretion to defer nominated parcels due to conservation conflicts, such as sage-grouse habitat. See discussion supra Section I.E.
The BLM engages in a pattern and practice of deferring analysis to the permitting stage and then failing to properly conduct that analysis. In some recent EAs, the agency has only analyzed a few issues, punting analysis for the remaining issues to the Application for Permit to Drill (APD) stage. See e.g., BLM FARMINGTON FIELD OFFICE, COMPETITIVE OIL AND GAS LEASE SALE ENVIRONMENTAL ASSESSMENT, QUARTER 2 2026 DOI-BLM-NM-F010-2026-0001-EA, 18-59 (Mar. 20, 2026) (analyzing all but three issues “in brief”); BLM PECOS DISTRICT OFFICE, OIL
AND GAS LEASE SALE ENVIRONMENTAL ASSESSMENT, NEW MEXICO, QUARTER 4 2025, DOI-BLM-NM-P000-2025-0001-EA, i–ii (Apr. 2025) (analyzing all but four issues “in brief”).; BLM, DRAFT ENVIRONMENTAL ASSESSMENT QUARTER 3 2025, DOI-BLM-CO-0000-2025-0001-EA, E-12 (Mar. 14, 2025) (“[I]n-depth analyses will be conducted as necessary once an action is proposed . . . .”). The BLM “cannot escape” proper analysis at the leasing stage “by claiming that a more precise analysis is not feasible and promising a more probing review of the site-specific effects at the APD stage.” Wilderness Soc’y, 2024 WL 1241906, at *17 (quotation marks omitted).
Moreover, during the APD process itself, the BLM regularly fails to conduct the analysis it claims must wait for the permitting stage. The BLM has a practice of issuing drilling permits without any opportunity for public comment on the underlying EA and without providing any environmental analysis on the drilling project. In fact, the BLM routinely issues APDs without first providing the EAs, decision records, or any notice that the APDs have already been approved until well after the approval date, leaving the public completely in the dark on the decision-making process.
The BLM’s Automated Fluid Minerals Support System (AFMSS) has repeatedly reported approving APDs before the BLM has released the EAs and decision records. (AFMSS includes only basic well information and does not provide EAs or decision records, so the public has no way of understanding how or why BLM issued the approvals.) The BLM, in several instances, has then released the EAs and decision records for the APDs on its National NEPA Register site months or years after they were apparently approved. In one instance, the BLM posted basic well information on its National NEPA Register website for four APDs in March 2022. In early August 2022, the website reported after the fact that three of the four APDs were previously approved as of August 8, 2022, otherwise providing only basic well information with no EA or decision record. Nearly two years later, in April 2024, BLM posted the EA and decision record on the National NEPA register website. See BLM, BLM National NEPA Register, DOI-BLM-
CA-C060-2022-0065-EA, https://eplanning.blm.gov/Project-Home/?id=68b004d1-a7f2-f011-8407-001dd806295a (navigate to “Documents” page) (showing EA and decision record dated August 2, 2022, with the release date nearly two years later, on April 11, 2024) (last visited May 4, 2026).
This practice of releasing environmental documents on the National NEPA Register site months or even years after they were apparently approved is common. For example, in the Bakersfield Field Office, the BLM approved an APD package of 50 wells in July 2021, and did not post its DNA—which was dated November 2021—until August 2025, over four years later. See BLM, BLM National NEPA Register, DOI-BLM-CA-C060-2021-0074-DNA, https://eplanning.blm.gov/Project-Home/?id=56ddbacb-a7f2-f011-8406-001dd802fdea (navigate to “Documents” page) (last visited May 4, 2026). In addition, in the Carlsbad Field Office, the EA, FONSI, and Decision Record Documents were released on the National NEPA Register on February 8, 2024, but the documents were dated December 20, 2024. Given that this timing does not make sense, and therefore assuming that the document was incorrectly dated 2024 instead of December 2023, these documents were posted two months after their approval date. The posted documents have no dates or signatures authorizing the Decision Records or FONSI to verify if the opportunity to comment period took place. These nine APDs from operator COG Operating LLC are labelled as “Completed” for the EA, even with no published decision date. See BLM National NEPA Register, DOI-BLM-NM-P020-2024-0438-EA, https://eplanning.blm.gov/eplanning-ui/project/2030996/570 (navigate to “Documents” page) (last visited May 4, 2026). In another example out of the Carlsbad Field Office in New Mexico, on February 21, 2025, the BLM posted the EA, a Finding of No Significant Impact (FONSI), and Decision Record for APDs for 39 horizontal oil and gas wells from the operator EOG Resources, Inc. See BLM, BLM National NEPA Register, DOI-BLM-NM-P020-2024-1325-EA, https://eplanning.blm.gov/eplanning-ui/project/2034305/510 (navigate to “Documents” page) (last visited May 4, 2026). In this instance, the BLM released the EAs and decision records for these APDs on its National NEPA Register site the same day as the decision date. This is a prevalent issue in Wyoming as well. For example, in the Casper Field Office, on February 23, 2024, the BLM released the EA, FONSI, and Decision Record in one document for seven horizontal oil and gas wells from one multi-well pad from the operator, 1876 Resources, LLC. The decision date posted on the National NEPA Register is also February 23, 2024. See BLM National NEPA Register, DOI-BLM-WY-P060-2024-0034-EA, https://eplanning.blm.gov/eplanning-ui/project/2030779/570 (navigate to “Documents” page) (last visited May 4, 2026).
The agency has also approved APDs a day to a week after posting notice of the application, leaving no time for the public to learn about the application, let alone review and comment on it. See, e.g., BLM, BLM National NEPA Register, DOI-BLM-CA-C060-2022-0046-EA, https://eplanning.blm.gov/Project-Home/?id=e1b104d1-a7f2-f011-8407-001dd806295a (navigate to “Documents” page) (last visited May 4, 2026).
In summary, the BLM’s failures to adequately review environmental impacts, in addition to its failures to provide opportunity for public comment and to release environmental documents, mean that the analyses the BLM punts from the leasing stage to the APD stage are woefully inadequate (or never take place at all). As such, the BLM cannot use a DNA for this lease sale or defer environmental analysis to the APD stage.
Moreover, the IM prohibits the BLM from satisfying its requirement under NEPA to analyze a reasonable range of alternatives because the agency is required to consider only the no-action alternative and a full-leasing alternative. See IM 2025-028 at 5; discussion supra Section II.B. The IM thus unlawfully (and impractically) constrains the BLM’s ability to realize its statutory and regulatory obligations.
Second, the IM is akin to a “substantive agency rule . . . that carries the force and effect of law” by creating new obligations. See W. Watersheds Project v. Zinke, 441 F. Supp. 3d 1042, 1067 (D. Idaho 2020), aff’d in part, rev’d in part on other grounds and remanded sub nom. Mont. Wildlife Fed’n v. Haaland, 127 F.4th 1 (9th Cir. 2025) (citing Sacora v. Thomas, 628 F.3d 1059, 1070 (9th Cir. 2010) (holding that interpretative rules cannot be “inconsistent with” existing laws or “impose new rights or obligations”)). “‘The critical factor’ in determining whether a directive constitutes a general statement of policy is ‘the extent to which the challenged [directive] leaves the agency, or its implementing official, free to exercise discretion to follow, or not to follow, the [announced] policy in an individual case.’” W. Watersheds Project v. Zinke, 441 F. Supp. 3d at 1067 (alterations in original) (quoting Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1012–13 (9th Cir. 1987)).
IM 2025-028 appears to leave the agency and its offices no discretion to defer parcels or consider any other leasing alternative. Moreover, as noted, the IM directly conflicts with the BLM’s Leasing Rule. The IM’s prescriptions render the leasing preference criteria a meaningless paperwork exercise, nullifying the agency’s own regulatory requirements. Accordingly, the agency was required to undergo notice-and-comment procedures pursuant to the APA for this IM but failed to do so.
The BLM indicates that it relies on IM 2025-028 to “provide[] guidance on the process for reviewing and approving oil and gas lease parcels on public lands.” EA at 5. That IM appears to have directed the agency’s decision to designate the one Montana parcel as having low preference for leasing but nevertheless move that parcel forward for leasing. See EA at App. J. For this lease sale, the BLM must disregard the IM’s unlawful directives when analyzing parcels. Rather, the agency must consider whether to defer—and, if conflicts exists, must defer—parcels based on the leasing preference criteria and the agency’s other statutory and regulatory obligation
V. The BLM must comply with its obligations under the Endangered Species Act (ESA).
Before issuing a lease, the BLM must comply with ESA Section 7 by consulting with the U.S. Fish & Wildlife Service (FWS) to “insure that [the] action . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species . . . us[ing] the best scientific . . . data available.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.02 (including the granting of leases in the definition of “action”); Conner, 848 F.2d at 1453 (“[B]efore any leases could be sold, the FWS was required to prepare a biological opinion” (emphasis in original)). If threatened or endangered species “may be present,” the BLM must prepare a “biological assessment” to identify species likely to be affected. 16 U.S.C. § 7(c)(1). Then, if the agency determines that leasing “may affect listed species or critical habitat,” the BLM must formally consult with FWS resulting in a “biological opinion” issued by the expert agency, which is a comprehensive document that considers impacts to the species from all stages of oil and gas development. 16 U.S.C. § 7(b); 50 C.F.R. § 402.14; see also Conner, 848 F.2d at 1453–34 (holding that the biological opinion issued by the FWS was insufficient where it attempted to justify its lack of thorough analysis based on uncertainty around future oil and gas activities). If the biological opinion concludes that the proposed action is likely to jeopardize a protected species, the BLM must “suggest . . . reasonable and prudent alternatives” to its proposal. 16 U.S.C. § 1536(b)(3)(A).
In its Draft EA, the BLM identified multiple species as overlapping proposed lease parcels. EA at 110–11. Therefore, before issuing leases in these parcels, the BLM must comply with its ESA Section 7 consultation obligations.
VI. The BLM must follow Forest Service leasing consent procedures.
With respect to the proposed parcels that overlap with U.S. Forest Service lands, the BLM must provide the Forest Service with the opportunity to review and withdraw leasing consent per the leasing consent procedures. See 36 C.F.R. § 228.103(e).
The BLM must provide the Forest Service with the opportunity to withdraw leasing consent for the below 6 parcels that overlap with the Dakota Prairie Grasslands:
ND-2026-10-0961 ND-2026-10-0966 ND-2026-10-0982 ND-2026-10-0993 ND-2026-10-6960 ND-2026-10-0998
Specifically, the BLM must provide the Forest Service with an opportunity to review— and it must be shown that the Forest Service has reviewed—its prior leasing consent decisions to ensure that (1) the leasing of these lands was adequately addressed in a NEPA document and is consistent with the applicable land management plan; and (2) the stipulations adopted in the prior leasing decision remain adequate and are applied here. 36 C.F.R. § 228.103(e)(1). The BLM should publish documentation showing that the Forest Service has in fact reviewed its prior leasing consent decision and has not withdrawn its consent; otherwise, this process is being conducted in a black box and the public has no assurance that the agency is following required procedure. Or, if there is significant new information or a circumstance requiring additional environmental review, the Forest Service must withdraw its prior consent, id.§ 228.103(e)(2), and notify the BLM of its new decision, id. § 228.103(e)(3).
Moreover, the statutory mandates of the 2025 Reconciliation Act do not apply to Forest Service lands. As amended by the 2025 Reconciliation Act, the MLA requires the BLM to make lands available for leasing if those lands are, among other requirements, “open to oil or gas leasing under the approved resource management plan.” 30 U.S.C. § 226(a)(1). The MLA also defines “available” lands as those lands that are designated as open by a land use plan developed under FLPMA. 30 U.S.C. § 226(b)(1)(A). Forest Service lands, in contrast, are designated as open or closed to leasing in their respective Forest Service oil and gas leasing analyses, rather than in BLM RMPs developed under FLPMA. Thus, Forest Service lands are exempt from these requirements of the 2025 Reconciliation Act and the BLM may defer leasing such lands and impose lease stipulations and mitigation measures that are not included in the approved RMP.
VII. BLM must disclose its use of artificial intelligence (AI) for any components of this scoping process.
In its EA, the BLM stated that in a footnote that “Artificial Intelligence (AI) tools were used to organize and refine the analysis, such as outlining and restructuring for clarity. All substantive content, analysis, decisions, and conclusions were produced and verified by agency staff (M365 Copilot, May 2026).” EA at 76 n.4. But there is not a clear distinction between what would be considered “outlining” and “refining” versus “substantive content.” And, in an EA, the ordering, framing, sequencing, structuring, and relative emphasis of impacts is a matter of substance, rather than being mere packaging. These are choices that can carry analytical weight and cause serious error.
In response to commenters’ prior raising of this issue, the BLM states that “[t]he commenter has not identified a statute, regulation, or case law that requires disclosure of an agency’s ‘inputs and outputs’ and such a disclosure would potentially reveal an agency’s privileged deliberative process.” EA, App. K at 177. Commenters disagree. An AI tool’s inputs and outputs are part of the agency record, being components of what the agency considered as part of its decisionmaking. See e.g., Rocky Mountain Peace & Just. Ctr. v. United States Fish & Wildlife Serv., 40 F.4th 1133, 1160 (10th Cir. 2022) (“The complete administrative record consists of all documents and materials directly or indirectly considered by the agency.”). Commenters also take issue with the BLM’s contention that “[t]he commenter does not identify any specific substantive analysis, factual finding, or conclusion in the EA that it believes was generated without human authorship or verification; the objection is generalized and speculative.” EA, App. K at 177. The onus is on the BLM, not on commenters, to identify what was generated via AI. Moreover, commenters note that the BLM’s basic failure to meaningfully consider previously submitted comments and update its EA accordingly is evidence of a lack of human authorship or verification. For example, as discussed above, the inconsistency between how the BLM responded to comments about LWCs versus how it updated its EA (or failed to update it, in this case) seems to evince a lack of human oversight. See discussion supra Section I.C.iv.
While AI can be used appropriately to improve agency efficiency, its use must be properly moderated and disclosed such that the public has the opportunity to identify and correct errors. FLPMA, NEPA, the BLM’s regulations, and case law emphasize rigorous public engagement in all public lands processes, including leasing. See e.g., 43 U.S.C. § 1702(d) (defining “public involvement” to mean “the opportunity for participation by affected citizens in rulemaking, decisionmaking, and planning with respect to the public lands, including public meetings or hearings held at locations near the affected lands, or advisory mechanisms, or such other procedures as may be necessary to provide public comment in a particular instance); Montana Wildlife Fed’n v. Haaland, 127 F.4th 1, 41 (9th Cir. 2025) (emphasizing NEPA’s requirement that the public have the “ability to provide ‘meaningful’ input into the agency’s decision”); 43 C.F.R. § 3120.42(b) (providing several opportunities for public comment and input throughout the leasing process). The disclosure of the use of AI is essential to a transparent and rigorous public engagement process. And while high volumes of comments certainly could leave an agency searching for efficiency-improving measures, the BLM should be aware that the practice of AI-generated response to comments erodes the public trust that the NEPA process is designed to cultivate. Cf. OFF. OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, MEMORANDUM M-25-21, ACCELERATING FEDERAL USE OF AI THROUGH INNOVATION, GOVERNANCE, AND PUBLIC TRUST, 13 (Apr. 3, 2025) (noting that while “[a]gencies must continue to develop AI that serves the public by . . . increasing government efficiency,” “[a]gencies must ensure their AI use is trustworthy, secure, and accountable”).
Any undisclosed or underexplained use of AI could render the BLM’s leasing process unlawful. Courts have interpreted the arbitrary and capricious language to require reasoned decision-making from the agency. See, e.g., Fox v. Clinton, 684 F.3d 67, 74 (D.C. Cir. 2012). When agencies rely on computer-generated results, like computer models, courts have long held that “ultimate responsibility for the policy decision remains with the agency rather than the computer.” Sierra Club v. Costle, 657 F.2d 298, 334–35 (D.C. Cir. 1981). Courts have also specified that agencies must respond to comments “in a reasoned manner.” Conf. of State Bank Supervisors v. Off. of Thrift Supervision, 792 F. Supp. 837, 846 (D.D.C. 1992). Using AI without sufficient human oversight to respond to relevant comments may not fulfill an agency’s legal duty of consideration because AI does not think in a reasoned manner. Given that the BLM has used AI as part of this leasing process, the agency must explain the assumptions and methodology behind that use. Otherwise, any action taken will be unlawful under the arbitrary and capricious standard.
CONCLUSION
We appreciate your consideration of the information and concerns addressed in this protest. Should you have any questions, please do not hesitate to contact us.
Respectfully submitted,
Adina Nadler Associate Attorney The Wilderness Society 1801 Pennsylvania Ave NW #200 Washington, DC 20006 (202) 429-2627 an*****@*ws.org
Footnotes
- 1 BLM MONTANA/DAKOTAS STATE OFFICE, MONTANA-DAKOTAS OIL AND GAS LEASE SALE QUARTER 4 2026 ENVIRONMENTAL ASSESSMENT DOI-BLM-MT-0000-2026-0003-EA (Aug. 24, 2026) [hereinafter EA].
- 2 BLM MONTANA/DAKOTAS STATE OFFICE, FINDING OF NO SIGNIFICANT IMPACT QUARTER 4 2026 COMPETITIVE OIL AND GAS LEASE SALE DOI-BLM-MT-0000-2026-0003-EA (Aug. 24, 2026) [hereinafter FONSI].
- 3 BLM MONTANA/DAKOTAS STATE OFFICE, NOTICE OF COMPETITIVE OIL AND GAS INTERNET LEASE SALE (Aug. 24, 2026) [hereinafter NOTICE OF SALE].
- 4 See Udall v. Tallman, 380 U.S. 1, 4 (1965) (“The Mineral Leasing Act of 1920 . . . left the Secretary discretion to refuse to issue any lease at all on a given tract.”); United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 419 (1931) (ruling that the Interior Secretary possesses “general powers over the public lands as guardian of the people,” which include the authority to deny oil and gas lease applications); Mont. Wildlife Fed’n v. Haaland, 127 F.4th 1, 44–45 (9th Cir. 2025) (“We note that there is no doubt that the government has the authority affirmatively to determine which parcels shall be offered for oil and gas leasing . . . .”); Bob Marshall All. v. Hodel, 852 F.2d 1223, 1230 (9th Cir. 1988) (“[T]he Mineral Leasing Act gives the Interior Secretary discretion to determine which lands are to be leased under the statute. . . . Thus refusing to issue the . . . leases . . . would constitute a legitimate exercise of the discretion granted to the Interior Secretary under that statute.”).
- 5 Commenters note that the comment period is currently open for this proposed rule and it has not been finalized. Therefore, the BLM is still guided by its 2024 BLM’s Fluid Mineral Leases and Leasing Process Rule (Leasing
- 6 See also Intervenor-Defendant State of Wyoming Notice of Supplemental Authority at *2–3, W. Watersheds Proj. v. Bernhardt, 1:18-cv-00187 (D. Idaho filed Aug. 12, 2025) (in litigation to which the United States is a party, the state of Wyoming interpreting the 2025 Reconciliation Act as stripping the BLM of discretion to determine which parcels should be offered for lease; “mandat[ing]” an approach in which the BLM’s response to industry nominations may “create[] widespread leasing, even in sensitive habitat”; and restricting the BLM’s ability to impose protective mitigations or stipulations on leases beyond those identified in the RMP, limiting the agency’s role to “passively processing expressions of interest”).
- 7 Note that while the BLM Montana-Dakotas State Office released an updated Greater Sage-Grouse Rangewide Planning Record of Decision and Approved RMP Amendment in December 2025 (2025 Amendments), the BLM in its Environmental Assessment states that the Montana parcel in this lease sale is subject to the 2015 Plans because it “was nominated after the signing of the [2025 Reconciliation Act] but prior to finalization of the 2025 [Amendments] and must therefore be analyzed under the 2015 [Plans], the approved RMP in effect at the time of nomination.” EA at 5-6.
- 8 The BLM’s 2018 national policy addressing prioritization, IM 2018-026—which provided that BLM did “not need to lease and develop outside of [sage-grouse] habitat management areas before considering any leasing and development within [sage-grouse] habitat”—was struck down. See Mont. Wildlife Fed’n v. Bernhardt, No. 18-cv-69-GF-BMM, 2020 WL 2615631 (D. Mont. May 22, 2020), aff’d, 127 F.4th 1 (9th Cir. 2025). The agency has not adopted new national guidance on the prioritization requirement and has represented to the U.S. Montana District Court that the agency’s previous prioritization guidance (adopted in 2016) is also not in effect. As a result, there is currently no national guidance providing direction on how prioritization is to be applied.
- 9 The BLM states that parcel MT-2026-10-0691 overlaps with this habitat. EA at 73. Given that -6961 is the parcel at issue in this sale, commenters assume that -0691 was written in error.
- 10 See U.S. GOV’T ACCOUNTABILITY OFF., APPLICABILITY OF THE CONGRESSIONAL REVIEW ACT TO CENTRAL YUKON RECORD OF DECISION AND APPROVED RESOURCE MANAGEMENT PLAN, B-337200 (2025); U.S. GOV’T ACCOUNTABILITY OFF., APPLICABILITY OF THE CONGRESSIONAL REVIEW ACT TO NORTH DAKOTA FIELD OFFICE RECORD OF DECISION AND APPROVED RESOURCE MANAGEMENT PLAN, B-337175 (2025); U.S. GOV’T ACCOUNTABILITY OFF., APPLICABILITY OF THE CONGRESSIONAL REVIEW ACT TO MILES CITY FIELD OFFICE RECORD OF DECISION AND APPROVED RESOURCE MANAGEMENT PLAN AMENDMENT, B-337163 (2025); U.S. GOV’T ACCOUNTABILITY OFF., APPLICABILITY OF THE CONGRESSIONAL REVIEW ACT TO BUFFALO FIELD OFFICE RECORD OF DECISION AND APPROVED RESOURCE MANAGEMENT PLAN AMENDMENT, B-337503 (2025).
- 11 See H.R.J. Res. 104, 119th Cong. (2025) (providing for CRA disapproval of the Miles City Field Office Record of Decision and Approved Resource Management Plan Amendment); H.R.J. Res. 105, 119th Cong. (2025) (providing for CRA disapproval of North Dakota Field Office Record of Decision and Approved Resource Management Plan); H.R.J. Res. 106, 119th Cong. (2025) (providing for CRA disapproval of Central Yukon Record of Decision and Approved Resource Management Plan); H.R.J. Res. 130, 119th Cong. (2025) (providing for congressional disapproval of the Biden administration’s Buffalo Field Office RMP Amendment).
- 12 Accord City of Rochester v. U.S. Postal Serv., 541 F.2d 967, 973–74 (2d Cir. 1976); Concerned About Trident v. Rumsfeld, 555 F.2d 817, 827 (D.C. Cir 1976); City of Davis v. Coleman, 521 F.2d 661, 673–77 (9th Cir. 1975); Env’t. Def. Fund, Inc. v. Corps of Eng’rs of U.S. Army, 492 F.2d 1123, 1135 (5th Cir. 1974); NRDC v. Morton, 458 F.2d 827, 834–36 (D.C. Cir. 1972); Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109, 1114 (D.C. Cir. 1971).
- 13 Courts have long held that NEPA’s mandate includes considering cumulative effects. See, e.g., Swain v. Brinegar, 542 F.2d 364, 369–70 (7th Cir. 1976); Henry v. Fed. Power Comm’n, 513 F.2d 395, 406–07 (D.C. Cir. 1975); Sierra Club v. Morton, 510 F.2d 813, 824–25 (5th Cir. 1975); Hanly v. Kleindienst, 471 F.2d 823, 830-31 (2d Cir. 1972); Kleppe v. Sierra Club, 427 U.S. 390, 410, 413 (1976); NRDC v. Callaway, 524 F.2d 79, 89 (2d Cir. 1975); Swain v. Brinegar, 517 F.2d 766, 775 (7th Cir. 1975); Minn. Pub. Interest Res. Grp. v. Butz, 498 F.2d 1314, 1322 (8th Cir. 1974).
- 14 See, e.g., 350 Mont. v. Haaland, 50 F.4th 1254, 1266–70 (9th Cir. 2022); Vecinos para el Bienestar de la Comunidad Costera v. Fed. Energy Reg. Comm’n, 6 F.4th 1321, 1329–30 (D.C. Cir. 2021); Sierra Club v. Fed. Energy Reg. Comm’n, 867 F.3d at 1371–75 (requiring quantification of indirect greenhouse gas emissions); Ctr. for Biological Diversity v. Nat’l Highway Transp. Safety Admin., 538 F.3d 1172, 1215–16 (9th Cir. 2008) (requiring assessment of the cumulative impacts of climate change); WildEarth Guardians v. BLM, 870 F.3d 1222, 1236–38 (10th Cir. 2017); Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 550 (8th Cir. 2003); Wilderness Soc’y, 2024 WL 1241906, at *24 (explaining that the BLM cannot “overlook[] what is widely regarded as the most pressing environmental threat facing the world today”); WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 63 (D.D.C. 2019) (invalidating nine BLM NEPA analyses in support of oil and gas lease sales because “BLM did not take a hard look at drilling-related and downstream GHG emissions from the leased parcels and, it failed to sufficiently compare those emissions to regional and national emissions”).
- 15 See also Great Basin Mine Watch v. Hankins, 456 F.3d 955, 973–74 (9th Cir. 2006) (holding the agency’s cumulative impacts analysis insufficient based on failure to discuss other mining projects in the region); Kern v. BLM, 284 F.3d 1062, 1078 (9th Cir. 2002) (holding that the BLM arbitrarily failed to include cumulative impacts analysis of reasonably foreseeable future timber sales in the same district as the current sale); Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1214 (9th Cir. 1998) (holding a Forest Service EA inadequate where it analyzed impacts of only one of five concurrent logging projects in the same region); San Juan Citizens All. v. BLM, 326 F. Supp. 3d 1227, 1248 (D.N.M. 2018) (finding that the BLM failed to take a hard look at the cumulative impact of GHG emissions, “concluding that an agency ‘must provide the necessary contextual information about the cumulative and incremental environmental impacts’ because even though the impact might be ‘individually minor,’ its impact together with the impacts of other actions would be ‘collectively significant’” (quoting Ctr. for Biological Diversity, 538 F.3d at 1217)).
- 16 An agency may not assert that the social cost of fossil fuel development is zero. See High Country Conservation Advocs., 52 F. Supp. 3d at 1192 (“[B]y deciding not to quantify the costs at all, the agencies effectively zeroed out the cost in its quantitative analysis.”); Ctr. for Biological Diversity, 538 F.3d at 1200 (holding that while there is a range potential social cost figures, “the value of carbon emissions reduction is certainly not zero”).
- 17 See Ctr. for Biological Diversity, 538 F.3d at 1216–17 (rejecting analysis under NEPA when agency “quantifie[d] the expected amount of [carbon dioxide] emitted” but failed to “evaluate the incremental impact that these emissions will have on climate change or on the environment more generally,” noting that this approach impermissibly failed to “discuss the actual environmental effects resulting from those emissions” or “provide the necessary contextual
- 18 The Office of Information and Regulatory Affairs’ May 5, 2025, memorandum directing agencies to minimize consideration of climate impacts likewise contains deeply flawed reasoning that cannot support failure to use SC-GHG. See EXEC. OFF. OF THE PRESIDENT, OFF. OF MGMT. & BUDGET, MEMORANDUM M-25-27, MEMORANDUM FOR REGULATORY POLICY OFFICERS AT DEPARTMENTS AND AGENCIES AND MANAGING AND EXECUTIVE DIRECTORS OF COMMISSIONS AND BOARDS RE: GUIDANCE IMPLEMENTING SECTION 6 OF EXECUTIVE ORDER 14154, ENTITLED “UNLEASHING AMERICAN ENERGY” (May 5, 2025).
- 19 For a discussion of the 2025 Reconciliation Act’s bearing on the agency’s obligation to explore mitigation measures, see discussion supra Section I.B.
- 20 As one recent example highlighting the absurdity of the so-called energy emergency, the unsold parcels from the Colorado December 2025 lease sale that were reoffered in a replacement sale mandated by the 2025 Reconciliation Act all went unsold at the replacement sale. See BLM COLORADO, FEDERAL OIL & GAS LEASE SALE JANUARY 8, 2026 (BLMCO-2026-Q1) SALE RESULTS SUMMARY (Jan. 9, 2026).
Attachments
Exhibit Index to The Wilderness Society et. al. Protest of Lease Parcels for the Montana-Dakotas Bureau of Land Management Fourth Quarter 2026 Competitive Oil & Gas Lease Sale (DOI-BLM-MT-0000-2026-0003-EA)
| Appendix | Exhibit No. | Title/Description |
|---|---|---|
| A | 1 | THE WILDERNESS SOCIETY, OPEN FOR DRILLING: THE OUTSIZED INFLUENCE OF OIL & GAS ON PUBLIC LANDS (2025) |
| A | 2 | Complaint, Mont. Wildlife Fed’n v. Burgum, No. 4:26-cv-00133-JTJ (Mar. 26, 2026), ECF No. 1 |
| B | 3a & 3b | PETER S. COATES ET AL., RANGE-WIDE GREATER SAGE-GROUSE HIERARCHICAL MONITORING FRAMEWORK: IMPLICATIONS FOR DEFINING POPULATION BOUNDARIES, TREND ESTIMATION, AND A TARGETED ANNUAL WARNING SYSTEM (Mar. 2021) |
| C | 4 | KEVIN DOHERTY ET AL., A SAGEBRUSH CONSERVATION DESIGN TO PROACTIVELY RESTORE AMERICA’S SAGEBRUSH BIOME: U.S. GEOLOGICAL SURVEY OPEN-FILE REPORT 2022–1081 (Sept. 2022) |
| C | 5 | ENV’T PROT. AGENCY, REPORT ON THE SOCIAL COST OF GREENHOUSE GASES: ESTIMATES INCORPORATING RECENT SCIENTIFIC ADVANCES (2023) |
| D | 6 | INTERAGENCY WORKING GRP. ON SOC. COST OF CARBON, TECHNICAL SUPPORT DOCUMENT: SOCIAL COST OF CARBON FOR REGULATORY IMPACT ANALYSIS (Feb. 2010) |
| D | 7 | U.S. DEP’T OF THE INTERIOR, INFORMATIONAL MEMORANDUM: DOI COMPARISON OF AVAILABLE ESTIMATES OF SOCIAL COST OF GREENHOUSE GASES (SC-GHG) (Oct. 16, 2024) |
| D | 8 | PETER HOWARD ET AL., INSTITUTE FOR POLICY INTEGRITY, ZERO RATIONALITY: WHAT OIRA’S NEW MEMORANDUM GETS WRONG ON MONETIZING CLIMATE IMPACTS (May 2025) |
| D | 9 | ENV’T PROT. AGENCY, DETAILS OF EXTERNAL PEER REVIEW PANEL PROCESS FOR THE REVIEW OF EPA’S “REPORT ON THE SOCIAL COST OF GREENHOUSE GASES: ESTIMATES INCORPORATING RECENT SCIENTIFIC ADVANCES” (2023) |
| D | 10 | OFF. OF MGMT. & BUDGET, REPORT TO CONGRESS ON THE BENEFITS AND COSTS OF FEDERAL REGULATIONS AND AGENCY COMPLIANCE WITH THE UNFUNDED MANDATES REFORM ACT: FISCAL YEAR 2023, 21-22 & n.52 (2024) |
| D | 11 | REBECCA TISHERMAN ET AL., PSE HEALTH ENERGY, EXAMINATION OF GROUNDWATER RESOURCES IN AREAS OF WYOMING PROPOSED FOR THE JUNE 2022 BLM LEASE SALE (May 11, 2022) |
| D | 12 | DOMINIC DIGIULIO, PSE HEALTH ENERGY, EXAMINATION OF GROUNDWATER RESOURCES IN AREAS OF MONTANA PROPOSED FOR THE MARCH 2018 BLM LEASE SALE (Jan. 10, 2018) |
| D | 13 | Letter from Earthjustice et al. to Doug Burgum, Sec. of the Interior on Department of the Interior Emergency NEPA Procedures (May 16, 2025) |