The Interior Department agreed in a legal settlement yesterday to curtail the use of a provision to streamline oil and gas drilling applications on public lands.
The settlement was made public just prior to President Obama's announcement of a major expansion of offshore oil and gas development.
The Bureau of Land Management agreed to stop using the fast-track provision nationwide when certain circumstances apply as part of the settlement of a lawsuit challenging the agency's approval of 30 natural gas wells in the Nine Mile Canyon region of Utah.
At issue is a provision of a 2005 law that allows BLM to approve certain oil and gas projects without preparing new environmental analyses that would normally be required by the National Environmental Policy Act. Federal agencies have used "categorical exclusions" to approve thousands of projects when the agency determined the projects will not have significant effects to the environmental.
BLM yesterday agreed to stop using these categorical exclusions when there are "extraordinary circumstances" such as impacts to protected species, historic or cultural resources, or human health and safety.
Conservation groups hailed the agreement, saying it means BLM can no longer rely on a shortcut to approve development when it may harm a wide variety of lands including parks, refuges, recreation areas, wetlands, floodplains or other ecological significant or critical areas.
"We need to give the BLM the chance to think twice before approving more drilling without environmental analysis," said Nada Culver, senior counsel for the Wilderness Society. "This is an important step toward ensuring that other valuable resources, such as the spectacular rock art of Nine Mile Canyon, and other essential uses of our public lands, such as recreation, are considered and protected before drilling."
But industry groups condemned the agreement, saying it was illegal and would effectively end the use of all categorical exclusions.
"The effect of the policy that the settlement calls for would be to render statutory categorical exclusions unusable for their intent from Congress, which was to encourage development of natural gas and oil where it has minimal environmental impact or where environmental analysis has already been completed," said Kathleen Sgamma, director of government affairs for the Independent Petroleum Association of Mountain States. "The policy the settlement calls for is unlawful and directly violates the intent of Congress."
While the agreement only addresses extraordinary circumstances, Sgamma said it may have much wider effects.
"I can't imagine a situation where BLM won't come up with an extraordinary circumstance," she said. "They've been so reluctant to use categorical exclusions to date, they have not used them when companies have clearly met the criteria established in the law. ... So adding another layer of review on top of categorical exclusions will virtually eliminate their usefulness."
Sen. Robert Bennett (R-Utah) also blasted the agreement.
"I find it outrageous and cynical that on the same day that the president is attempting to persuade Americans that he is supportive of new oil and gas development, a secret deal is announced ... that will result in gutting one of the key energy streamlining provisions of the Energy Policy Act of 2005 -- ironically a bipartisan legislative achievement that both he and Secretary Salazar supported when in the Senate," Bennett said in a statement.
But Culver of the Wilderness Society disputed those claims, saying the categorical exclusion is still available to approve drilling and that the settlement simply seeks to clarify the original intent of the law, that the agency should ensure there are not extraordinary circumstances present before using them.
"Where you have a situation where you know there's significant risk of harm, you don't use a categorical exclusion and that's all the settlement is clarifying," Culver said.
She noted BLM has always had the option to invoke extraordinary circumstances but that it has not stopped the agency from using the exclusion. "I don't think we will see it as a wholesale stop on using this tool," Culver said.
The agreement closely tracks with policy changes announced in January by Interior Secretary Ken Salazar. The department said then that BLM was issuing interim draft guidance to its field offices not to use categorical exclusions in cases involving extraordinary circumstances (Greenwire, Jan. 6).
Melodie Rydalch, a spokeswoman for the U.S. attorney's office in Salt Lake City, confirmed that the settlement "has both national and Utah-specific implications." The agreement requires BLM to consider extraordinary circumstances whenever it relies on a categorical exclusion to review applications to drill oil and gas wells on federal land, she said.
In Utah, Rydalch added, BLM agreed to study the effects of dust on the rock art in Nine Mile Canyon and not to rely on any categorical exclusions to approve permits to drill in the West Tavaputs area until the agency finalizes its draft environmental impact statement for the area.
The lawsuit was filed in 2008 by the Wilderness Society, Southern Utah Wilderness Alliance and Nine Mile Canyon Coalition.
Click here to read the settlement.