326 F. Supp. 3d 1227
D.N.M.2018Background
- BLM and the U.S. Forest Service approved and issued 13 federal oil-and-gas leases (19,788 acres) in the Santa Fe National Forest after an EA/FONSI that tiered to a 2008 FEIS and 2012 supplemental FEIS. BLM issued the leases in 2015 subject to Forest Service stipulations.
- Plaintiffs (conservation groups) challenged the decision under NEPA, alleging the agencies failed to take a "hard look" at direct, indirect, and cumulative impacts (GHG/climate, air quality, water quantity/quality), failed to provide a convincing FONSI, and improperly issued leases during a pending forest-plan amendment.
- The EA/Decision Record incorporated an Air Resources Technical Report (ARTR) and quantified on-site emissions from anticipated well development but did not quantify downstream (combustion) greenhouse gas emissions or analyze their specific climate impacts.
- The agencies deferred many site-specific mitigation and resource-impact analyses (e.g., detailed water use, APD-level mitigation) to the permit-to-drill stage, relying on future, site-specific NEPA and regulatory review.
- The Court reviewed the agency action under the APA (arbitrary-and-capricious standard), found Plaintiffs had standing, and concluded certain NEPA analyses were deficient, warranting vacatur of the FONSI and leases and remand to BLM for further analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BLM took a "hard look" at greenhouse gas (GHG) impacts, including downstream combustion emissions | BLM failed to quantify or analyze downstream (combustion) GHGs and their cumulative/climate effects; EA conclusions were conclusory | BLM relied on tiered FEIS/FSFEIS and ARTR; consumption emissions are not a direct/indirect effect at leasing stage and cannot be linked to local climate impacts | Court: BLM acted arbitrarily by failing to quantify and analyze foreseeable downstream GHG emissions; remand required for new analysis using up-to-date science |
| Adequacy of mitigation analysis (deferred to APD/permitting) | Deferral violated NEPA's requirement to discuss mitigation sufficiently to evaluate severity of impacts | Deferral appropriate because site-specific measures require APD-level detail and NEPA permits staged analysis | Court: Deferral to APD permissible under controlling precedent, but remand may require revised mitigation analysis after recalculating GHG impacts |
| Air-quality analysis (criteria and non-criteria pollutants; cumulative air impacts) | BLM failed to quantify direct emissions, and failed to aggregate/model cumulative air impacts beyond NAAQS | Analysis properly tiered to the 2012 FSFEIS and ARTR which modeled potential construction/operation emissions and considered cumulative effects | Court: Air-quality analysis (via FSFEIS/ARTR) satisfied NEPA's "hard look" for criteria and cumulative air impacts; no further relief on air quality needed now |
| Water resources (quantity and quality) — sufficiency of EA analysis | BLM failed to quantify reasonably foreseeable water use (e.g., fracturing) or analyze groundwater drawdown and impacts to resources; water-use quantification was possible at leasing stage | BLM argued quantities too speculative at leasing stage and more precise analysis is possible at APD stage; state water regulators manage water rights | Court: BLM failed to take a hard look at water quantity (and its environmental consequences) because sufficient data existed to estimate water use; groundwater-quality and surface-water analyses were adequate, but water-quantity analysis must be revisited on remand |
| Remedy: vacatur, injunction, remand | Plaintiffs sought vacatur of leases, injunctive relief barring further leasing, and declaratory relief | Defendants argued against vacatur/overly broad relief | Court: Set aside FONSI and vacated the leases; remanded to BLM for further NEPA analysis; declined to enter broader injunction or declaratory relief at this stage |
Key Cases Cited
- Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208 (9th Cir.) (EA/FONSI purpose and role in NEPA process)
- Dep't of Transportation v. Public Citizen, 541 U.S. 752 (U.S.) (rule of reason in determining need for EIS)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (U.S.) (NEPA requires procedural "hard look" and discussion of mitigation, but not substantive results)
- Kleppe v. Sierra Club, 427 U.S. 390 (U.S.) (courts must ensure agencies took a hard look but not substitute their judgment)
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (U.S.) (standing/redressability principles in agency-review context)
- Park County Resource Council v. U.S. Dep't of Agric., 817 F.2d 609 (10th Cir.) (permitting some mitigation and site-specific analysis to await later permitting/APD stage)
- Diné Citizens Against Ruining Our Environment v. Jewell, 839 F.3d 1276 (10th Cir.) (treatment of emissions projections and agency responsibility to analyze impacts in San Juan Basin context)