Federal judge overturns BLM, USFS orders limiting CX use

A US district judge overturned two federal agencies’ 2010 orders limiting the use of categorical exclusions (CXs) for environmental reviews on federally managed lands. The court took the nationwide view on the basis that the instructions by the US Bureau of Land Management and US Forest Service “constitute legislative rules adopted contrary to public notice and comment procedures required by law,” Nancy D. Freudenthal, chief judge for US District Court for Wyoming, said in her Aug. 12 decision.

Her ruling came in response to a petition by the Denver-based Western Energy Alliance seeking a review of BLM’s May 17, 2010, instruction memorandum, and a June 10 USFS letter that limited the use of CXs on federal oil and gas leases. Section 390 of the 2005 Energy Policy Act listed five situations under which activities could be excluded from a full environmental impact statement under the National Environmental Policy Act.

WEA argued in its petition that the instructions, which were issued under US Sec. of the Interior Ken Salazar’s order, were arbitrary, capricious, and contrary to law, and constituted substantive rules adopted contrary to legally required public comment and noticed procedures.

“The judge’s ruling is a victory for responsible American energy development, and holds the promise of new jobs and economic growth,” Kathleen Sgamma, WEA’s government and public affairs director, said on Aug. 15. “With this nationwide injunction, we hope the government will return to using categorical exclusions to encourage domestic oil and natural gas production and cease requiring redundant environmental analysis that slows economic activity.”

Sgamma said Freudenthal rejected four key arguments by the federal government: that WEA members did not have standing without tying the case to a specific drilling permit application; that harm from the policy was speculative and consequently not ripe for judicial review; that the regulations were not binding and did not require public notice under the federal Administrative Procedures Act; and that the policies merely clarified ambiguities and did not substantively rewrite a statute.

“The judge ruled soundly that the government cannot substantially change a law passed by Congress without so much as notifying the public and engaging in proper rulemaking,” Sgamma said. “We’re also pleased that there are consequences when [DOI] engages in closed-door settlements and promises to rewrite law and policies at the behest of environmental groups.”

Contact Nick Snow at nicks@pennwell.com.

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