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Western Energy Alliance v. Salazar

ELR Citation: 41 ELR 20264
Nos. No. 10-CV-237F, (D. Wyo. , 08/12/2011)

A district court vacated two internal DOI guidance documents that address and limit the use of §390 of the Energy Policy Act of 2005, which establishes a "rebuttable presumption" that a categorical exclusion from review under NEPA would apply to certain oil and gas development activities on federal oil and gas leases. The documents—a BLM memorandum and a U.S. Forest Service letter—established a screening process to consider extraordinary circumstances when using any §390 categorical exclusion and imposed conditions limiting the use of the exclusions. Because the documents are a complete "about-face" compared to past practices, and because they bind the agencies and impose or affect individual rights and duties, the documents are rules as opposed to mere policy statements. In addition, the documents set forth legislative rules rather than interpretive ones, as the agencies admitted that the documents serve as "gap fillers." Accordingly, the court vacated the documents because they were adopted in violation of the APA's notice-and-comment requirements for legislative rules.