Feds can allow gas drilling in sage grouse habitat, Tenth Circuit rules
DENVER (CN) — The Bureau of Land Management did not break the law when it approved a natural gas drilling project on habitat for sage grouse that intersects with migration paths for pronghorns in Wyoming, and collected enough information about the effect that project will have on those species, a Tenth Circuit panel ruled Monday.
In 2018, the bureau approved plans to build 3,500 wells over 10 years on 140,000 acres in the Upper Green River Valley in Wyoming. About 48,000 of those acres are protected habitat for sage grouse, big brownish-gray birds that are relatives to turkeys that live along sagebrush steppe in the American and Canadian Intermountain West.
Planned by a company called Jonah Energy, the project also intersects with grazing areas and a migration corridor to the Grand Teton National Park used by pronghorn, an antelope-like animal native to the area, which could potentially imperil them.
Three environmental conservation groups sued the bureau in Wyoming federal court to stop the so-called Normally Pressured Lance Project.
Western Watersheds Project, Center for Biological Diversity and Upper Green River Alliance argued the government agency failed to hold Jonah Energy to its own land use plan, violating the Federal Land Policy and Management Act, and didn't collect enough information on the effects of the project on the sage grouse and local pronghorn, counter to the National Environmental Protection Act.
The lower court rejected those arguments, and the Tenth Circuit panel agreed.
“We conclude that BLM adequately collected and considered information on the sage grouse and pronghorn, and selected a development plan that meets the statutory requirements,” U.S. Circuit Judge Timothy Tymkovich, a George W. Bush appointee, wrote in the 31-page opinion.
The court's reasoning came down to procedure, before it even had to address the environmental groups' claim that the bureau was supposed to require phase development in sage grouse habitat.
“But we need not reach that argument because the groups failed to raise it to the bureau as required by administrative exhaustion rules,” Tymkovich wrote. “A party challenging an agency action often must first raise its objection to that agency —not a federal court.”
Tymkovich described the National Environmental Protection Act as a law that guides federal agencies while they evaluate the likely environmental impacts of a project or an agency's actions, and reasonable alternatives to those actions.
“NEPA does not, however, set substantive benchmarks. It does not even require agencies to promulgate environmentally friendly rules,” Tymkovich wrote.
Nodding to case law the judge explained the statute prohibits uninformed actions, not unwise ones — so the court evaluates an agency’s compliance by analyzing whether it looked hard enough at the environmental consequences of project proposals and alternatives.
As the lower court had done, the Tenth Circuit refuted the environmental groups' argument that the bureau had not collected enough essential information on the sage grouse and potential impact on the Grand Teton herd of pronghorns, and found the missing information was "not-so-essential."
“The bureau has adequately explained why the information the groups want it to procure is not ‘essential,’” Tymkovich wrote.
When choosing an alternative plan, “the bureau clearly possessed enough information to anticipate how development would affect the sage-grouse and [winter concentration areas] under the selected action,” Tymkovich wrote.
“It discussed how the project would destroy wintering habitat, contribute to sagebrush loss, and further displace sage grouse from WCAs. It is not clear how the additional information is ‘essential’ such that it would likely materially alter the agency’s choice to select Alternative B.”
"At bottom, the groups conflate information that would be 'nice to have' with information that is ‘essential to a reasoned choice among alternatives,'" Tymkovich continued.
“The Bureau might have benefited from additional information on the location of geography sites or travel corridors. But under the essential information regulation, the groups must go one step further: they must explain how this information is central to choosing between the proposals. They do not connect these dots; instead, the groups chiefly claim that the deleterious impact on WCAs might be worse than the agency realizes. But we do not sit ‘as a panel of scientists that instructs the [agency] how to validate its hypotheses . . . choose among scientific studies . . . and order the agency to explain every possible scientific uncertainty.’”
Eric Molvar, the executive director of Western Watersheds Project, said one of the most disappointing aspects of the the ruling was that the court ruled the bureau's study of the projects effect on pronghorns in general was adequate, but not specifically how it will affect the pronghorns that migrate through the area, which he described as the most significant pronghorn migration route in the country.
The loss of the pronghorns migration corridor could have prolonged ecological consequences that the bureau never considered, Molvar said.
“We’re considering what our next steps might be,” he added.
Brian Hires, the press secretary and spokesperson for the bureau wrote in an email that the agency “does not have a comment on this at this time.”