On March 19, 2019, the U.S. District Court for the District of Columbia granted in part plaintiff nongovernmental organizations' motion for summary judgment, remanding nine environmental assessments ("EAs"), and corresponding findings of no significant impact ("FONSIs"), to the U.S. Bureau of Land Management ("BLM") to further consider the climate change impacts of oil and gas leasing operations BLM authorized on federal land in Wyoming. WildEarth Guardians v. Zinke, No. 16-1724 (D.D.C. Mar. 19, 2019).
The first issue addressed by the court was whether the plaintiffs had standing to bring the challenge. While plaintiffs' challenge to the lease authorizations was based on an allegation that BLM failed to adequately consider the climate change impacts of the leases as required under the National Environmental Policy Act ("NEPA"), the court found plaintiffs had standing based on the alleged aesthetic injuries to two individuals caused by drilling rigs and associated haze and dust in areas of Wyoming that the individuals said they had visited and planned to visit again.
In addressing the merits of plaintiffs' argument, the court found that it was BLM's duty to assess the reasonably foreseeable impacts of greenhouse gas ("GHG") emissions at the leasing stage because BLM would not be able to fully prevent GHG emissions from oil and gas operations once leases were issued. While BLM argued that attempting to assess such impacts would be too speculative, the court found that the information BLM had on the number of wells to be developed—as well as the GHG emissions from each well; the GHG emissions produced by all wells overseen by certain field offices; and the GHG emissions produced by all wells in Wyoming—was sufficient to reasonably quantify the GHG emissions from development of the leased parcels in the aggregate.
The court also found that BLM must consider: (i) the downstream use of oil and gas as a reasonably foreseeable effect of oil and gas leasing; and (ii) the cumulative impact of GHG emissions from all of BLM's lease sales throughout the country, past, present, and foreseeable future. BLM need not, however, use the social cost of carbon protocol to specifically monetize climate change impacts at the leasing stage.
The court's ruling that NEPA requires BLM to undertake a more robust analysis of GHG emissions associated with the leases—both in terms of the direct emissions from the oil and gas operations on the leased land and the indirect emissions from downstream use—does not mean that these (and future) leases will not ultimately be authorized. Indeed, the court denied plaintiffs' request for vacatur, instead remanding EAs and FONSIs to BLM, because the probability that BLM will be able to justify its authorization of the leases is sufficiently high. But BLM must take this obligation seriously, as the court retained jurisdiction over the matter should plaintiffs seek to argue that BLM's work on remand still does not fulfill NEPA's requirements.
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