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Center for Biological Diversity v. Bureau of Land Management

ELR Citation: 43 ELR 20076
Nos. C 11-06174 PSG, (N.D. Cal., 03/31/2013) (Grewal, J.)

A district court held that BLM violated NEPA when it sold four oil and gas leases on approximately 2,700 acres of federal land in Monterey and Fresno counties without considering impacts from hydraulic fracturing. The leases are located in California's Monterey Shale Formation, which is estimated to contain over 15 billion barrels of oil, most of which is not retrievable through conventional drilling techniques. BLM argued that its obligation to conduct NEPA analysis had not yet accrued, and even if it did, it satisfied this obligation by conducting an EA and finding the proposed action carried no significant environmental impact requiring a full EIS. But BLM's EA unreasonably relied on an earlier single-well development scenario. That scenario did not adequately consider the development impact of hydraulic fracturing techniques when used in combination with technologies such as horizontal drilling. Rather than at least considering what impact might result from fracking on the leased lands, BLM chose simply to ignore it. BLM claimed that "these issues are outside the scope of this EA because they are not under the authority or within the jurisdiction of the BLM." The court disagreed, stating that "how the issue of the environmental impact of fracking could lie outside BLM's 'jurisdiction' when NEPA plainly assigns all studying all environmental impacts of its own decision to BLM" was unclear. In addition, BLM's finding of no significant impact was erroneous as a matter of law. The court agreed that the effects of fracking on the parcels at issue are largely unknown, but this is precisely why proper investigation is so crucial. BLM, however, did not violate the Mineral Lease Act (MLA). The MLA requires that the leases contain language requiring the lessee to use reasonable precautions to avoid waste. Nothing in the statute suggests that courts may affirmatively compel BLM to require lessees to employ certain technologies, however reasonable or economically viable.