Court says agency erred in approving the plan without a hard look at less harmful alternatives
By Bob Berwyn
SUMMIT COUNTY – A federal judge Friday ruled that the BLM erred in its approval of a Bush-era drilling plan for the wildlife-rich Roan Plateau in northwestern Colorado.
“The court said it was illegal because the BLM didn’t take a hard look and didn’t look at alternatives,” said Earthjustice attorney Mike Freeman. “It essentially means the Roan will get another look.”
The court recognized the inherent conflict facing land management agencies. Here’s an excerpt from U.S. District Court Judge Marcia S. Krieger’s ruling:
“It is sufficient to note that, like many areas of Colorado, the area has been blessed with an abundance of two major resources, the uses of which are often in conflict. Its surface offers extensive and largely unspoiled (particularly in the areas atop the Plateau) scenic, ecological, and wildlife virtues. Below the surface, the Planning Area contains significant and valuable oil and gas reserves.”
Ultimately, federal agencies have to consider a range of alternatives that evaluates and discloses impacts on a comparative basis. In the Roan Plateau case, the BLM didn’t meet that requirement by eliminating a more protective option from the get-go. From the ruling:
“The Court turns first to the Plaintiffs’ argument that BLM’s decision to exclude
Alternative F (prohibiting leasing on the top of the Plateau and setting that area aside for conservation and recreation purposes) violated NEPA.”
Specifically, Judge Krieger ruled that the BLM violated the Administrative Procedures Act by failing to consider a community crafted alternative for drilling that would leave most of the top of the Roan Plateau untouched, and by failing to address cumulative air quality and potential ozone impacts.
The court declined to set aside leases that the BLM has already issued, saying such an action would fall outside the scope of the legal challenges to the process the agency used to evaluate the impacts of drilling.
Read the entire court ruling here.
“The Colorado Mountain Club applauds Judge Krieger’s decision. Interior Secretary Salazar and the BLM now have an opportunity to develop a better plan that gives the Roan the protection it deserves,” said Scott Braden, with the Colorado Mountain Club.
CMC has long maintained that most of the natural gas beneath the Roan Plateau can be recovered without developing any of the public lands atop the plateau, or critical wildlife lands either. Advances in drilling technology in the intervening years since this debate began only make it easier to access the gas resource in a less intrusive way.
“This is a victory for the people and wildlife of Colorado who value clean water and open space. The BLM now has a chance to go back and fix the problems with this plan to protect these values,” Braden said.
The BLM and the Barrett Corp. could not be reached for comment late Friday. This story will be updated when they respond to requests for comments.
The case dates back to 2008 when the BLM sold leases on the plateau worth $114 million, said to be the highest-yielding lease sales in the U.S. up to that date, but planning for the plateau goes back to 2002. Read some of the background here.
A coalition of 10 conservation groups sued the agency immediately protect the Roan, considered to be one of the most biologically diverse areas in Colorado.
“We’re basically talking about national park-quality lands,” Freeman said after presenting oral arguments in the case in late May.
Preceding this week’s ruling, leaseholder Bill Barrett Corporation and the environmental groups tried to reach a compromise in year-long series of court-ordered negotiations.
“Our argument is that they didn’t consider more protective alternatives for the Roan, as required by NEPA and that the BLM’s analysis only covered about 15 percent of the wells that will likely be drilled on top of the Roan … their own documents show that they expected many more wells … They have an obligation to analyze those,” Freeman said.
The conservation groups also argued that the BLM’s analysis fell far short in evaluating potential air quality impacts by skipping a required cumulative effects analysis that would show air quality impacts in the context of all other drilling under way or proposed for the region.
“What they did was assume that no drilling would happen anywhere else in Colorado, which is just nonsense,” Freeman said, adding that the agency’s evaluation of ozone impacts was also lacking.
Freeman said the conservation groups don’t think this is an all-or-nothing situation and are hoping for a plan that protects the natural resources of the area.
There’s no set schedule for a ruling in the case, but Freeman said he expects the judge to rule on the legal claims. If the court upholds some of the challenges, there would likely be a separate remedy phase, when the judge could order the BLM to red0 all or parts of the environmental analysis.
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