BLM settles suit over CX use in eastern Utah drilling permits

The US Bureau of Land Management has settled a lawsuit challenging its use of the 2005 Energy Policy Act’s categorical exclusion (CX) provision to approve 30 oil and gas drilling permits near Nine Mile Canyon in eastern Utah.

Nick Snow
OGJ Washington Editor

WASHINGTON, DC, Apr. 2 -- The US Bureau of Land Management has settled a lawsuit challenging its use of the 2005 Energy Policy Act’s categorical exclusion (CX) provision to approve 30 oil and gas drilling permits near Nine Mile Canyon in eastern Utah.

The US Department of the Interior agency said on Mar. 31 that it agreed under the settlement to not issue any more CXs in the area until a full-field environmental impact statement is completed; to continue studying the impacts of dust on petroglyphs in the area; and to issue national guidance stating that the extraordinary circumstances provision of the National Environmental Policy Act applies to the CXs under EPACT’s Section 390.

BLM Director Robert V. Abbey said the agency was pleased to have settled the litigation. “[It] is consistent with BLM’s plans to issue additional guidance on when and how Section 390 [CXs] will be applied to oil and gas drilling projects,” he said.

Environmental organizations that sued to block the permits were pleased. “This settlement tracks closely with [US Interior Secretary Ken Salazar’s] announced oil and gas reforms in January and is an important step to bring balance and common sense back to public lands management,” said Stephen Bloch, conservation director and attorney for the Southern Utah Wilderness Alliance.

An angry US Sen. Robert F. Bennett (R-Utah) said that BLM is dropping a key EPACT provision from use in the field under the guise of a legal settlement. “I find it outrageous and cynical that on the same day that [US President Barack H. Obama] is trying to persuade Americans that he supports new oil and gas development [on the US Outer Continental Shelf], a secret deal is announced with the SUWA that will result in gutting one of [EPACT’s] key energy streamlining provisions,” he declared.

US Rep. Doc Hastings (R-Wash.), the House Natural Resources Committee’s ranking minority member, said the settlement “flies directly in the face of the letter and spirit of one of the most successful provisions of the 2005 energy bill,” adding, “Nowhere in EPACT does it mention that an ‘extraordinary circumstance’ caveat is necessary for a categorical exclusion to be used.”

In its announcement. BLM said EPACT Section 390 established five new CXs exclusively for oil and gas development, including those which disturb less than five acres on a leasehold, and drilling in a location where drilling has occurred in the previous 5 years. SUWA and two other environmental organizations, the Nine Mile Canyon Coalition and the Wilderness Society, argued in their suit that BLM violated NEPA by not considering whether extraordinary circumstances, such as the release of corrosive dust into the air and onto neighboring rock art panels in the canyon.

The groups said in a joint statement that, practically speaking, BLM will no longer rely on CXs to approve oil and gas activity where it might adversely affect historic or cultural resources, parks, recreation areas, wildlife refuges, and environmentally significant floodplains and wetlands. “We need to give BLM the chance to think twice before approving more drilling without environmental analysis,” maintained Nada Culver, a Wilderness Society senior attorney.

Contact Nick Snow at nicks@pennwell.com.

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