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Tuesday, July 16, 2024 | Back issues
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Environmentalists take fight over oil and gas drilling to 10th Circuit

Approval of oil and gas drilling in Wyoming’s Upper Green River Valley will imperil nearly endangered sage grouse and native pronghorn that rely on a nearby federally protected corridor, the environmentalists say.

(CN) — Conservation groups asked a Tenth Circuit panel on Wednesday to reverse a federal judge's decision to uphold the Trump administration’s approval of oil and gas drilling in Wyoming’s Upper Green River Valley.

In 2018, the U.S. Bureau of Land Management approved Jonah Energy’s Normally Pressured Lance Project in Sublette County, Wyoming, allowing the company to develop 3,500 gas wells, hundreds of miles of pipelines and roads and 11 gas-gathering facilities on critical habitat for the near-endangered sage grouse.

The proposed 40-year project also intersects a migration corridor to Grand Teton National Park for pronghorn, potentially imperiling two native species susceptible to human activities.

Western Watersheds Project joined the Center for Biological Diversity in suing the bureau over its policy changes that would allow the project to continue, the first of which rolled back a compromise forged between western states and the federal government that aimed to protect the sage grouse’s habitat while keeping the species off the endangered list.

The second policy mandated alterations to the approval process by which oil and gas companies seek and receive permission to drill on federal lands, something the groups argued is meant to exclude the public from the decision-making process.

In court, the groups argued that the bureau’s approval violated the Federal Land Policy and Management Act by disregarding an earlier sage grouse management plan and that the agency violated the National Environmental Policy Act by failing to take a hard look at the impacts of the project and not considering reasonable alternatives.

In April 2022, U.S. District Judge Scott W. Skavdahl ruled against the groups, finding that the government’s policies complied with the National Environmental Policy Act and that the bureau did, in fact, take a “hard look” through its environmental impact statement.

“The EIS did consider the potential adverse impacts to pronghorn,” Skavdahl wrote in his order, adding that the environmental impacts statement acknowledged that the proposed action would likely displace or disrupt pronghorn populations.

Skavdahl also found that, based on the wildlife prevention measures considered in Jonah’s “Alternative A” plan, the bureau did not act arbitrarily or capriciously when it did not consider a buffer zone alternative — an idea proposed during the comment period.

“The BLM specifically addressed this public comment, finding it was similar to other analyzed alternatives,” Skavdahl wrote. “The only evidence petitioners offer to support their contentions is that the final EIS never explicitly discussed buffer zones around migratory routes. The omission of one very specific protective measure from the EIS does not show the BLM wholly failed to consider a reasonable alternative.”

Moreover, Skavdahl did not find that the bureau violated any laws by not obtaining baseline data on winter concentration areas for sage grouse before approving limited development while concurrently testing the effects on the birds.

Before a Tenth Circuit panel on Wednesday, Western Watersheds attorney Wendy Park argued that the bureau’s failure to require phase development in sage grouse priority habitat violated the Federal Land Management Act’s requirement that all governing land use actions conform to the governing land use plans. She also argued that the bureau did not explain why it chose an alternative without phase development and failed to apply an exemption, implying that the required design was somehow discretionary.

To that, U.S. Circuit Judge Timothy Tymkovich — a George W. Bush appointee — noted that the bureau designed its approval to require Jonah to demonstrate certain factors when they seek exploration permits and, at that point, there would be an evaluation of the resource impacts of drilling.

“Why isn’t that really functionally the equivalent of a phasing proposal that’s required by policy?” Tymkovich asked.

Park answered, “To clarify, BLM never made a determination that it would consider phasing at the drilling stage,” later adding that the agency needs to include direction on how to do phasing up front.

Park also revisited Western Watershed’s argument that the bureau authorized gas well development across prime sage grouse winter concentration areas without considering the harm to the birds’ population.

“Instead of gathering the necessary baseline winter habitat use information to determine the Project’s reasonably foreseeable effects on sage-grouse populations before approving the Project, BLM got the process exactly backwards: it authorized development in winter concentration areas to inform itself of the project’s effects,” Park wrote in the groups’ brief.

The judges — including U.S. Circuit Judges Nancy Mortiz, a Barack Obama appointee, and Veronica S. Rossman, a Joe Biden appointee — were more skeptical of this argument, noting the bureau plans to complete site-specific reviews.

Bureau attorney Sommer Engels addressed the court next alongside Wyoming attorney Travis Jordon and Jonah attorney Katie Schroder, asking the panel to affirm the lower court’s decision. To Park’s opening argument, Engels said that while the plaintiffs claim the bureau didn’t apply a required design feature appropriately or failed to make a particular finding that an exemption applied, they do not dispute that none of their comments mentioned the phasing feature or any specific requirement to make a particular finding.

When asked why it was appropriate for the bureau to use the project to test its effects, Engels reiterated that the project approved limited development in winter concentration areas and that any resulting disturbances would be analyzed at the site.

“This project does not authorize any site-specific disturbance, but the agency also explained that the information it was looking to collect through that additional analysis was not the sort of baseline information that petitioners assert,” Engels said.

Instead, the attorney said the information was a “more refined, more sophisticated, more nuanced understanding of information they already had.” As for the project’s effect on pronghorns, Engels said the project addressed there could be potential effects on migration but, ultimately, the migration path occurs outside of the project area.

The panel took the matter under submission and did not indicate when or how it would rule.

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Categories / Appeals, Energy, Environment, Government

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