WEG, Member Companies File Second Lawsuit Against BLM, DOI

The Denver-based Western Energy Alliance and member companies have filed its second lawsuit this month against the U.S. Bureau of Land Management (BLM) and U.S. Department of the Interior (DOI) Secretary Ken Salazar.

The second lawsuit, filed in U.S. District Court of Wyoming, requests that the court declare invalid rules issued by the BLM and U.S. Forest Service directing federal employees to ignore statutory provisions in Section 390 of the Energy Policy Act of 2005.

Section 390 directs federal land managers to streamline energy development by exempting five minimally intrusive development activities on federal oil and gas leases issued by the DOI from the procedural requirements of the National Environmental Policy Act (NEPA), but not from any other law or requirement.

These situations include individual surface disturbances of less than five acres as the total surface disturbance on the lease is not greater than 150 acres, and site-specific analysis in a document prepared pursuant to NEPA has been previously completed.

Other examples include drilling an oil or gas well where drilling has occurred five years previously prior to a well being spud; and drilling an oil or gas well within a developed field for which an approved land use plan or any environmental document prepared pursuant to NEPA analyzed such drilling as a reasonably foreseeable activity, as long as such plan or document was approved within five years prior to the date of spudding the well.

Other exemptions include placement of a pipeline in an approved right-of-way corridor, so long as the corridor was approved within five years prior to the date of placement of the pipeline; and maintenance of a minor activity, other than any construction or major renovation of a building or facility.

According to the lawsuit, the BLM and Forest Service abruptly changed their nationwide interpretation of Section 390 as a result of a litigation settlement related to a oil and gas development project in Utah entered into by the BLM without public notice or involvement. BLM agreed to issue a new instruction memorandum modifying the BLM's NEPA Handbook and stating that future statutory categoral exclusions will not be invoked absent a determination that there are no 'extraordinary circumstances."

The rules appear in an instructional memorandum issued by the BLM on May 17, 2010, and in an instruction memorandum issued by the Forest Service on June 9, 2010.

WEG and member companies claim that the New Rules "are arbitrary and capricious because the BLM and Forest Service are prohibiting the use of the statutory Section 390 exclusions based on conditions that do not appear in the statute," the lawsuit states.

The companies joining in the lawsuit include Devon Energy, QEP Resources and Laramie Energy; these companies are involved in oil and gas development on federal leases in Colorado, Wyoming, Montana, Utah and New Mexico.


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