GOP House members urge Salazar to not abandon categorical exclusions

Nick Snow
OGJ Washington Editor

WASHINGTON, DC, Nov. 6 -- Four US House Republicans urged US Interior Secretary Ken Salazar to improve, instead of jettison, categorical exclusions in response to a recent Government Accountability Office report.

“We are deeply concerned about a common practice of the Departments of the Interior and Justice of settling lawsuits filed without forcefully defending authorized agency actions,” said Doc Hastings (Wash.), ranking minority member of the House Natural Resources Committee, and three other GOP members of the committee in a Nov. 5 letter to Salazar.

“Specifically, a current lawsuit is challenging the use of categorical exclusions, a valuable tool provided by Congress to the land management agencies to improve the government process of approving energy production while at the same time ensuring protection of the environment,” they said, adding, “We are worried that an out-of-court settlement by this department would eliminate or severely limit the use of categorical exclusions and further prohibit the production of US oil and natural gas.”

Doug Lamborn (Colo.), ranking minority member of the committee’s Energy and Minerals Subcommittee; Rob Bishop (Utah), ranking minority member of the committee’s National Parks Subcommitte; and Cynthia M. Lummus (Wyo.), a committee member, also signed the letter. DOI is reviewing it, a spokeswoman said.

They noted that under Section 390 of the Energy Policy Act of 2005, Congress directed the US Bureau of Land Management to use categorical exclusions to expedite energy supply growth by limiting redundant analysis and unnecessary red tape.

‘Scalpel, not sledgehammer’
“While we support the department’s efforts to develop new guidance to address the few issues of consistency identified by GAO in the use of these categorical exclusions, we are concerned that the [US] Department of the Interior is prepared to use a sledgehammer where a scalpel would suffice,” the four Republican lawmakers said.

They noted that in its report, GAO recommended that errors it identified be cleared up with resided guidance implementation guidelines and better oversight from state BLM offices.

“The report found many examples where BLM failed to use categorical exclusions or applied additional restrictions, highlighting the cautious and overly conservative use of categorical exclusions by BLM,” they continued. “Categorical exclusions are not discretionary, yet GAO didn’t attempt to quantify the one major use of BLM’s implementation of Section 390: the frequent violation of the law when categorical exclusions were not used for projects that met the criteria mandated by Congress.”

DOI should not need to be reminded that the Section 390 categorical exclusions are statutory, not administrative, the four House Republicans said in their letter. “There is nothing in the statutory language that even mentions extraordinary circumstances; rather, the language is straightforward in mandating the use of categorical exclusions when the conditions in the statute are met,” they indicated. The law does not give the Obama administration or DOI discretion to decide which provisions will be followed, they added.

They also noted that it is important to recognize that categorical exclusions are one of EPACT’s biggest success stories. “[Their] use in energy permitting has been accompanied by more time available for field staff to conduct environmental inspections and to address the backlog of [drilling permit applications],” the federal lawmakers said. “Field personnel recognize and appreciate having categorical exclusions in their management toolkit as it allows them to efficiently process permits in a timely manner while making educated, common sense field decisions.”

Contact Nick Snow at nicks@pennwell.com.

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