United States: Environmental Groups Set Stage For Litigation Challenging BLM’s Proposed Hydraulic Fracturing Rulemaking With Claim That BLM Is Violating NEPA

Eighteen environmental organizations – lead by the Sierra Club – are claiming that the Bureau of Land Management ("BLM") will violate the National Environmental Policy Act ("NEPA") if it finalizes its proposed rulemaking related to hydraulic fracturing on federal lands without preparing a full-scale Environmental Impact Statement ("EIS").

Under NEPA, an EIS is required if the proposed major federal action would significantly affect the quality of the human environment. 42 U.S.C. § 4332(C). BLM assessed the environmental impacts of operators' compliance with the proposed regulations and issued an Environmental Assessment ("EA") finding that its proposed regulations "would not have a significant impact on the environment." Accordingly, BLM concluded that "an environmental impact statement is not required."

The environmental groups state their contrary position – that the EA does not satisfy BLM's obligations under NEPA and that BLM must instead prepare an EIS – in an August 23, 2013 letter commenting on BLM's proposed rulemaking. Their letter is one of more than 1 million submissions to BLM regarding its proposed rulemaking, which specifies standards for the structural integrity of wells, requires disclosure of fracking fluids (such as through the FracFocus registry), and requires wastewater management plans. (See " Public Comment Period for Proposed Federal Fracking Regulations Draws to a Close")

The environmental groups criticize BLM's EA for not assessing the cumulative environmental impacts of increased "well stimulation" on federal lands, including "effects on climate," and for not considering additional alternatives to the proposal, such as a "prohibition on hydraulic fracturing in all areas not currently undergoing unconventional oil and gas production."

The environmental groups' assertion that BLM's EA is insufficient portends litigation under NEPA when BLM finalizes its proposed regulations. BLM has not announced a date by which it intends to do so.

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