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Secretary of the Interior Salazar Cancels Utah Oil and Gas Leases After Federal Judge Grants TRO in Favor of Environmental Groups


On February 4, 2009, U.S. Department of the Interior Secretary Ken Salazar canceled the sale of oil and gas leases on 77 parcels of federal land in Utah, following U.S. District Judge for the District of Columbia Ricardo M. Urbina’s issuance of a temporary restraining order (“TRO”), which postponed the final sale transactions and paved the way for Interior to withdraw them. The TRO was issued in the context of pending litigation brought by several environmental groups (“Plaintiffs”) against Interior’s Assistant Secretary for Lands and Minerals Management and the Deputy State Director of the Bureau of Land Management’s Utah Office (“BLM”) (collectively “Interior Defendants”), as well as Utah state entities and purchasers of the leases which later intervened in the suit (“Producers”). [1] The Plaintiffs’ Complaint seeks declaratory and injunctive relief, citing concerns about oil and gas development on the federal lands harming air and water quality and natural quiet in several alleged wilderness areas, including the Arches National Park, Canyonlands National Park, Desolation Canyon and Dinosaur National Monument and alleges the BLM failed to follow proper procedures in identifying lands appropriate for oil and gas development in violation of the Federal Land Policy and Management Act (“FLPMA”), the National Environmental Policy Act (“NEPA”), the National Historic Preservation Act (“NHPA”) and Interior Secretary Order No. 3226, which requires the consideration of climate change in administrative decisions (the “Lawsuit”). The leases, worth an estimated $6 million, were sold this past December by the BLM during its quarterly oil and gas lease sale (required under the Mineral Leasing Act, as amended by the Federal Onshore Oil and Gas Leasing Reform Act of 1987). [2] In rejecting the sale of the contested parcels, Salazar acknowledged the need to develop the nation’s oil and gas supplies in a responsible way, though the move was criticized by some as limiting economic development of the West.


On November 4, 2008, the BLM announced that it proposed to lease 241 parcels, totaling 359,450 acres of federal lands for oil and gas development, including the Utah parcels at issue. The number of parcels was reduced after the BLM and the National Park Service mutually agreed to reduce the number ultimately proposed for leasing due to internal environmental concerns. On December 17, the environmental groups filed the Lawsuit and two days later the BLM held the quarterly lease sale during which it agreed to lease parcels including those contested by the Lawsuit. In a Stipulation as part of the litigation, BLM agreed to not actually issue the challenged leases until January 19, 2009, during which time the Plaintiffs filed the Motion for TRO and Preliminary Injunction (“Motion”) to prohibit lease issuance for the contested parcels. Generally speaking, the Plaintiffs’ Motion alleged they will likely be successful on the merits because the BLM did not properly develop its land use plans (known as Resource Management Plans [“RMPs”] which designate land appropriate for oil and gas development); make an appropriate Determination of NEPA Adequacy (“DNA”), which is conducted in accordance with BLM’s NEPA duty to analyze the environmental impacts of agency actions; or give adequate time for comment following the summer 2008 release of 6 RMPs and NEPA-mandated environmental impact studies (“EISs”), resulting in protestors having only 30 days to respond to the voluminous RMPs and EISs. In addition, it asserted that the finalization of the sale transactions would cause irreparable harm to the environment and the public interest, which would outweigh any injury to the lease purchasers and/or the federal government caused by any delay for further environmental study. The Interior Defendants countered that the multi-year land-use planning and oil and gas leasing process was in full compliance with all relevant statutes, and reminded the Court that the FLPMA requires that “the public lands be managed in a manner which recognizes the Nation’s need for domestic sources of minerals, food, timber, and fiber from the public lands including implementation of the Mining and Minerals Policy Act of 1970 . . . .” [3]


Because a TRO may be granted only upon a showing of a substantial likelihood of success on the merits, a judge’s order on such a motion often foreshadows his or her likely analysis on the merits. Judge Urbina’s Order states that the EIS undertaken in this case lacked sufficient air pollution and ozone level statistics and inadequately addressed the potential effects on historic properties under the NHPA. Although the Order addresses the issues raised on the merits, the decision to grant the TRO (but to defer ruling on the Motion for Preliminary Injunction) appears to have ultimately turned on the finding that the interest in developing domestic energy resources is “far outweighed by the public interest in avoiding irreparable damage to public lands and the environment . . . in this instance.” [4] With that, it could be said that this case typifies the policy issues raised by the struggle to balance increased domestic energy independence and environmental protection.


 

FOOTNOTES


  1. Southern Utah Wilderness Alliance, et al. v. Stephen Allred, et al., No. 1:08-CV-02187-RMU (D. D.C. filed Dec. 17, 2008).  The Plaintiffs in the lawsuit also include the Natural Resources Defense Counsel, Wilderness Society, National Parks Conservation Association, Sierra Club, Grand Canyon Trust and the National Trust for Historic Preservation.  The Intervenor Defendants are the Bill Barrett Corporation, Enduring Resources, L.L.C., EOG Resources, Inc., the State of Utah, Carbon County, Fidelity Exploration and Production Company, Twilight Resources, L.L.C. and Par 5 Exploration, L.L.C.
  2. 30 U.S.C. § 226(b)(1)(A) (2008).
  3. Fed. Defs.’ Opp’n to Pls.’ Mot. for TRO at 9 (Docket No. 33), quoting 43 U.S.C. § 1701(a)(12). In addition to arguments affecting the specific parcels purchased by them, the Purchasers, by virtue of multiple joint and separate Responses in Opposition, argued that the TRO was uncalled for based on the Plaintiffs’ failure to show their likely success on the merits, the lack of irreparable harm, the Producers’ relative irreparable harm, and the harm to the public interest in energy development.
  4. Missing Reference

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