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NEPA and the Roan Plateau: Forcing the Bureau of Land Management to Take a Hard Look William Griffin Boston College Law School, [email protected]

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NEPA and the Roan Plateau: Forcing the Bureau of Land Management to Take a Hard Look William Griffin Boston College Law School, William.Griffin.2@Bc.Edu Boston College Environmental Affairs Law Review Volume 40 | Issue 2 Article 10 5-28-2013 NEPA and the Roan Plateau: Forcing the Bureau of Land Management to Take a Hard Look William Griffin Boston College Law School, [email protected] Follow this and additional works at: http://lawdigitalcommons.bc.edu/ealr Part of the Administrative Law Commons, Energy and Utilities Law Commons, Land Use Law Commons, and the Natural Resources Law Commons Recommended Citation William Griffin, NEPA and the Roan Plateau: Forcing the Bureau of Land Management to Take a Hard Look, 40 B.C. Envtl. Aff. L. Rev. 553 (2013), http://lawdigitalcommons.bc.edu/ealr/vol40/iss2/10 This Comments is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Environmental Affairs Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. NEPA AND THE ROAN PLATEAU: FORCING THE BUREAU OF LAND MANAGEMENT TO TAKE A HARD LOOK William Griffin* Abstract: In 2007, the Bureau of Land Management adopted a resource management plan that essentially made all public land within the Roan Plateau Planning Area available for leasing to private oil and gas entities. Environmental groups alleged that the BLM, in adopting the plan, failed to satisfy the National Environmental Policy Act’s procedural require- ments. In Colorado Environmental Coalition v. Salazar, the district court held that the BLM violated NEPA by failing to adequately consider the plan’s cumulative air quality effects. On remand, the court did not offer the agency any instructions in curing the procedural deficiency. The court’s lack of guidance on remand is consistent with the Tenth Circuit’s refusal to equate NEPA’s procedural requirements with the production of hard data. This Comment argues that the Ninth Circuit’s application of NEPA better promotes the Act’s underlying policies of public awareness and in- formed decisionmaking without imposing an undue burden on federal agencies. Introduction Visit the Roan Plateau in Garfield County, Colorado, and you will encounter a diverse wildlife population that includes mountain lions, sage grouse, peregrine falcons, and a species of cutthroat trout that has remained genetically pure since the most recent ice age.1 The hydro- carbon-rich soils of the Roan Plateau produce a variety of rare plant species, some of which cannot be found anywhere else in the world.2 Paradoxically, the biological and geological characteristics that account for the Roan Plateau’s natural beauty have also incentivized humanity’s * Staff Writer, Boston College Environmental Affairs Law Review, 2012–2013. 1 Colo. Envtl. Coal. v. Salazar, 875 F. Supp. 2d 1233, 1239 (D. Colo. 2012); Sean Patrick Farrell, Defending the Not-Quite-Wild, N.Y. Times, Oct. 30, 2009, at B1; Anthony Licata, An Over- view of the Roan Plateau, Field & Stream ( July 20, 2010), http://fieldandstream.com/blogs/ finding-deer-hunt/2010/07/overview-roan-plateau; Roan Plateau, LANDSCOPE AMERICA, http:// www.landscope.org/colorado/places/Roan%20Plateau (last visited Apr. 22, 2013). 2 Roan Plateau, supra note 1. 553 554 Environmental Affairs [Vol. 40:553 degradation of the environment.3 In particular, tension exists between preserving an unsullied landscape and extracting the nine trillion cubic feet of recoverable natural gas beneath the Roan Plateau.4 The natural resources of the Roan Plateau represent up to $1.13 billion in leasing revenue for Colorado and the federal government.5 Furthermore, en- ergy industry experts project that within the next twenty years, an addi- tional ten thousand to twenty thousand oil wells will be drilled in the area—more wells than in Saudi Arabia and Iran combined.6 A significant portion of the drilling will occur on publicly owned land as a result of an amended Resource Management Plan (“RMP”) that the Bureau of Land Management (“BLM”) promulgated in 2006.7 The amended RMP was a response to an act of Congress mandating that the BLM make publicly owned lands within the Roan Plateau available to private entities for petroleum exploration and develop- ment.8 Prior to the BLM’s amendment to the RMP, approximately sixty percent of the Roan Plateau Planning Area remained unavailable for oil and gas development.9 The amended RMP made the entire Plan- ning Area available for leasing.10 In 2012, in Colorado Environmental Coalition v. Salazar the U.S. Dis- trict Court for the District of Colorado found that the BLM’s decision to amend the RMP was arbitrary and capricious, and remanded the matter back to the agency.11 The court held that a significant defect in the agency’s Environmental Impact Statement (“EIS”) was a failure to 3 See Colorado Wildlife Federation, Northwest Colorado’s Wildlife Habitat Today: Are We Losing Our Heritage? 2 (2009), http://coloradowildlife.org/ui/images/ public/uploads/AreWeLosingOurWildlifeHeritageReport123009sm.pdf. 4 Id.; see U.S. Bureau Of Land Mgmt., Roan Plateau Resource Management Plan Amendment: Facts And Figures [hereinafter Facts and Figures], http://www.blm.gov/ pgdata/etc/medialib/blm/co/programs/land_use_planning/rmp/roan_plateau/documents. Par.15350.File.dat/AtAGlance.pdf (last visited May 12, 2013) [hereinafter Facts and Fig- ures]. 5 See Facts and Figures, supra note 4. 6 U.S. Bureau Of Land Mgmt., Roan Plateau Planning Area Resource Management Plan Amendment & Environmental Impact Statement 3–4 (2006), available at http:// www.blm.gov/pgdata/etc/medialib/blm/co/programs/land_use_planning/rmp/roan_plateau/ documents/final_eis.Par.67688.File.dat/Volume_I.pdf; Org. of the Petroleum Exporting Countries, Annual Statistical Bulletin 2010/2011 EDITION 27 (2011), available at http:// www.opec.org/opec_web/static_files_project/media/downloads/publications/ASB2010_20 11.pdf. 7 Colo. Envtl. Coal., 875 F. Supp. 2d at 1242. 8 See id. at 1240; 10 U.S.C. § 7439(b)(1) (2006). 9 Colo. Envtl. Coal., 875 F. Supp. 2d at 1241. 10 Id. 11 Id. at 1256. 2013] On the Roan Plateau: BLM Owes NEPA a Hard Look 555 address the potential effects of the new RMP on ozone levels.12 When remanding, however, the court offered no instructions for the agency in curing the EIS.13 Problematically, courts in the Tenth Circuit, includ- ing the district court in this case, do not have a basis in case law for im- posing stringent requirements on agencies when remanding.14 Prece- dent in the nearby Ninth Circuit allows district courts to issue broad guidelines or more stringent requirements on remand.15 This Com- ment argues that the Ninth Circuit’s application of the National Envi- ronmental Policy Act (“NEPA”) better promotes the statute’s underly- ing policies of public awareness and informed decisionmaking without imposing excessive burdens on government agencies.16 I. Facts and Procedural History The Roan Plateau Planning Area (“Planning Area”) spans more than one-hundred-and-twenty-thousand acres of northwestern Colo- rado.17 The federal government owns approximately fifty-eight percent of the Planning Area, which the BLM manages.18 Steep cliffs separate the Planning Area into two distinct zones.19 The upper portion of the Planning Area, commonly referred to as the “Roan,” is predominantly untainted, moist montane and sub-alpine habitat that has been shaped into distinct drainage basins by various creeks.20 The lower portion of the Planning Area is slightly larger and is a comparatively arid, semi- desert habitat.21 Historically, the Department of Energy (“DOE”) kept the Planning Area as a strategic petroleum and oil shale reserve for use in times of war or national emergency.22 The DOE referred to the upper portion of the Planning Area as Naval Petroleum and Oil Shale Reserve 12 Id. at 1258–59. 13 Id. at 1259 n.23. 14 See infra notes 53–57 and accompanying text. 15 See Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1379 (9th Cir. 1998). 16 See infra notes 110–125 and accompanying text. 17 Colo. Envtl. Coal., 875 F. Supp. at 1239. 18 Id. 19 Id. 20 Id. Mountain montane habitats are characterized by rocky cliffs and steep slopes above the natural tree-line. Tayside Biodiversity Partnership, Montane 1, available at http:// www.angus.gov.uk/biodiversity/pdf/Section%202/Upland/U1.pdf. Such habitats are bio- logically diverse, and because of the geological features of montane areas, are often undis- turbed landscapes. Id. 21 Colo. Envtl. Coal., 875 F. Supp. 2d at 1239. 22 Id. at 1239–40. 556 Environmental Affairs [Vol. 40:553 (“NOSR”) 1, and the lower portion NOSR 3.23 In the 1980s, the DOE feared that private developers on adjacent lands were draining the oil reserves beneath NOSRs 1 and 3.24 As a result, the DOE authorized drilling on NOSR 3, producing a large amount of gas through 1996.25 By 1997, Congress and the DOE agreed that NOSRs 1 and 3 no longer served a strategic purpose.26 Congress transferred jurisdiction over the Planning Area from the DOE to the BLM and ordered that (1) the BLM enter into leases with private entities for energy exploration and development; and (2) the BLM manage the Planning Area in ac- cordance with the Federal Land Policy and Management Act of 1976 and other laws applicable to public lands.27 In 2000, the BLM announced its intention to amend the control- ling RMP to comply with the directives of Congress and facilitate di- verse use of the Planning Area.28 By 2002, the BLM outlined six alter- natives for consideration, and four of the alternatives would
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