April 12, 2013

Fracking leases halted

By Damien M. Schiff Senior Attorney

Last week, Magistrate Judge Paul Grewal of the Northern District of California ruled in Center for Biological Diversity v. Bureau of Land Management that the Bureau violated the National Environmental Policy Act when it failed to produce an environmental impact statement detailing the environmental effects attendant on the lease of some 2,700 acres of federal land in Central California for oil and gas exploration.  The environmentalists argued that the Bureau was required to produce a full EIS rather than the truncated environmental assessment.  The court agreed, faulting the Bureau for assuming that the leases would result in little drilling.  The court reasoned that, in a post-fracking world, the Bureau should expect that areas previously inaccessible to drilling (for technological or economic reasons) would now be ripe for resource extraction.  The court rejected the Bureau’s (admittedly weak IMHO) defense that the impacts of fracking are not within the Bureau’s bailiwick.  The court aptly responded,

If nothing else, it is unclear exactly how the issue of the environmental impact of fracking could lie outside BLM’s “jurisdiction” when NEPA plainly assigns all studying all environmental impacts of its own decision to BLM. Put another way, if not within BLM’s jurisdiction, then whose?

The court also was concerned that the Bureau had not discussed any of the potential negative environmental consequences of fracking, particularly water pollution.  The court made clear, however, that it was not making a judgment on the utility of fracking.  Finally, the court rejected the environmentalists’ claim that the leases violated the Mineral Leasing Act, but refused at this time to invalidate the leases.

In sum, this is certainly a win for the environmentalists, but it is by no means a judicial rejection of fracking.

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