Court Opinions

 

For everyone who has wondered why BLM needs to conduct the same level of environmental analysis to lease federal minerals under private surface as they do to lease a tract where both the surface and the minerals are federal, the answer is . . . maybe they don’t.  In Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31 (2015), the U.S. Court of Appeals for the District of Columbia Circuit considered a claim that, in reviewing a proposed oil pipeline extending across nearly 600 miles of land, over 95% of which was privately-owned, the agencies with jurisdiction over the federal lands along the pipeline route were required to prepare an environmental analysis for the entire pipeline.  The court rejected that claim.  In an opinion that provides a crash course on the National Environmental Policy Act, the court recognized that the agency approvals relating to the pipeline segments on federal lands represented agency action that was subject to NEPA requirements – “governmental review, with public input, of the full range of such action’s reasonably foreseeable direct or indirect environmental effects.”  However, the court found, it did not follow that possible environmental impacts from construction of the pipeline outside of the federal segments represented “connected actions” or “cumulative actions” that would need to be analyzed in an environmental assessment or environmental impact statement.  The “connected actions” doctrine, under which actions are required to be analyzed together, pertains only to those actions that are subject to a NEPA review requirement in the first place.  And the function of the “cumulative actions” doctrine, which requires the effects of an action to be assessed in the context of other past, present, and reasonably foreseeable future actions, is to “set the baseline state of affairs” only for the specific action that is under consideration.  (Note: A footnote to the opinion states, “We hold today only that the agencies were not required to perform a pipeline-wide NEPA review; we do not opine on whether an agency lawfully could have conducted such a review, had it so chosen.”  But in the context of offering split-estate minerals for leasing, if BLM is not required to prepare a comprehensive EA, then – given current staffing and budget constraints – why would they want to?)