377 F. Supp. 3d 1223
D. Colo.2019Background
- The Bureau of Land Management (BLM) approved a Master Development Plan (MDP) and Record of Decision for the Bull Mountain Unit (federal and split-estate minerals; mix of federal, private surface) and approved certain Applications for Permits to Drill (APDs); the U.S. Forest Service (USFS) approved a separate 25-well Project EA/FONSI covering 25 wells across multiple pads.
- Plaintiffs (environmental organizations) challenged both agencies’ NEPA analyses, alleging inadequate consideration of alternatives and insufficient "hard look" at direct, indirect, and cumulative impacts (GHG/climate, hydraulic fracturing effects on water and health, air, water quantity, wildlife).
- BLM prepared an EIS for the MDP (preferred Alternative D) and USFS/BLM prepared an EA/FONSI for the 25-well Project; agencies included mitigation measures, timing limits, interim reclamation and habitat measures; some site-specific analyses were deferred/tiered to APD stage.
- The agencies analyzed greenhouse gas (GHG) emissions quantitatively (project emissions) and qualitatively (climate context), used regional modeling (CARMMS) for air, estimated water use, and modeled HAP cancer risks; they declined to use the Social Cost of Carbon protocol for monetized climate damages.
- The court reviewed agency action under the Administrative Procedure Act (arbitrary and capricious/hard-look standards) and NEPA’s requirements for alternatives and analysis of direct, indirect, and cumulative impacts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agencies considered a reasonable range of alternatives | Plaintiffs: agencies omitted a "phased development" alternative that would cluster and stage drilling to preserve open space | Defendants: alternatives C and D already incorporated phased/progressive features, timing limits, reclamation and multi-pad strategies; extended timeframe rejected as speculative | Held: Agencies considered reasonable alternatives; plaintiffs’ proposed phased alternative was not significantly distinguishable |
| Whether agencies analyzed foreseeable indirect impacts of combustion (downstream GHG) | Plaintiffs: agencies failed to quantify/consider combustion emissions from produced gas | Defendants: downstream combustion is too speculative to quantify precisely at this stage; lacks reliable tools and specific use information | Held: Agencies acted arbitrarily and capriciously by failing to quantify and analyze reasonably foreseeable indirect combustion emissions; NEPA "hard look" required |
| Whether agencies adequately analyzed cumulative GHG/climate impacts and use of Social Cost of Carbon (SCC) | Plaintiffs: agencies should have assessed cumulative/regional/national GHG contributions and used SCC to monetize climate costs | Defendants: global climate attribution and SCC monetization are complex; agencies provided project-level estimates, qualitative context, and followed CEQ guidance | Held: Agencies took an adequate hard look at cumulative climate impacts and need not have used the SCC here; quantitative project emissions plus qualitative context were sufficient |
| Whether agencies examined impacts of fracking on water and human health, and cumulative impacts to air, water quantity, and wildlife (mule deer/elk) | Plaintiffs: agencies failed to analyze health impacts of fracking chemicals, cumulative air/water/wildlife impacts, and used too narrow scope for wildlife cumulative analysis | Defendants: EIS/EA discussed HAPs, water risks, mitigation, monitoring, and tiered site-specific analyses to APD stage; used CARMMS and NAAQS context for air; wildlife analysis used agency-chosen scoping | Held: Agencies took a sufficient hard look on fracking health impacts, air quality, and water quantity; but failed to sufficiently explain the geographic scope for cumulative impacts on mule deer and elk and must clarify or expand that analysis |
Key Cases Cited
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989) (NEPA ensures agencies consider environmental impacts and disclose information before decisions)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (EIS ensures agency has detailed information on significant impacts and makes it available to the public)
- New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009) (standard of review and NEPA procedures; rule of reason for alternatives)
- Wilderness Workshop v. United States Bureau of Land Management, 342 F. Supp. 3d 1145 (D. Colo. 2018) (BLM must analyze indirect combustion emissions; failure to do so can violate NEPA)
- San Juan Citizens Alliance v. U.S. Bureau of Land Management, 326 F. Supp. 3d 1227 (D.N.M. 2018) (downstream combustion emissions can be reasonably foreseeable indirect effects under NEPA)
- High Country Conservation Advocates v. United States Forest Service, 52 F. Supp. 3d 1174 (D. Colo. 2014) (agencies’ removal of SCC analysis in drafts made later omissions misleading; cost-benefit/monetization issues under NEPA)
- Hillsdale Environmental Loss Prevention, Inc. v. U.S. Army Corps of Engineers, 702 F.3d 1156 (10th Cir. 2012) (significance assessed by context/intensity; courts defer to agency technical methodology when reasonable)