Court arguments focus on process behind Roan leasing
DENVER—A federal judge Tuesday drilled down into some core legal questions surrounding the Bureau of Land Management’s 2008 leasing of 55,000 acres on the Roan Plateau for oil and gas development.
Judge Marcia Krieger of the U.S. District Court of Colorado grilled attorneys for the government, conservation groups and industry during nearly two hours of oral arguments in Denver over a lawsuit challenging the leasing and the planning that led up to it.
Krieger then said she’ll be taking the matter under advisement.
“We’ll have an opinion out as soon as possible,” she said.
Krieger said it’s not her role to judge the wisdom of the BLM’s Roan plan itself. Her ruling will be on “whether the BLM followed the correct process, not whether the BLM made a good decision,” she said.
Ten conservation groups sued in 2008, initially in hopes of stopping the leasing from even going forward. They are trying to protect an ecologically diverse plateau near Rifle that’s literally an island in a sea of nearby oil and gas development, and is home to waterfalls, rare plants and genetically pure Colorado River cutthroat trout.
However, it’s also thought to lie above rich natural gas reserves. The August 2008 lease sale ended up netting about $114 million.
Representatives from industry and the conservation community helped fill public seating in Krieger’s courtroom for Tuesday’s arguments. Those arguments centered on whether the BLM properly considered air quality impacts from drilling on the plateau, was justified in not considering a so-called “community” planning alternative that would have protected the plateau top from drilling, and acted appropriately in evaluating leasing impacts over only 20 years.
“The impacts are going to take place over the life of the project. They’re not just going to take place over the next 20 years. They (the BLM) knew that,” Jim Angell, an attorney for the plaintiffs, told Krieger.
“There has to be some reasonable cutoff,” responded government attorney Ayako Sato, who told Krieger the BLM has found it doesn’t have a good track record of forecasting drilling activity beyond 20 years.
The BLM evaluated the impacts of 210 wells it predicted would be drilled over 20 years on the plateau top, rather than the more than 1,000 wells it thought eventually might be drilled there, conservation groups contend.
Krieger said it was her understanding that the BLM maintained it didn’t consider the community alternative because it evaluated aspects of it in other alternatives. But Angell said that, unlike a no-action alternative that would have prevented drilling on the base of the plateau as well, the community alternative simply wanted drilling kept off the top.
Sato said the problem with the community alternative was it kept changing. At times it entailed no leasing at all on the plateau top, and at other times it called for leasing but no surface disturbance, with the oil and gas instead to be produced by directional drilling along the plateau base.
“There was really nothing the BLM could respond to because it shifted over time,” Sato said.
The lawsuit’s plaintiffs include the Colorado Environmental Coalition, the Colorado Mountain Club, Colorado Trout Unlimited, Rock the Earth, the Natural Resources Defense Council, the National Wildlife Federation, the Sierra Club, the Wilderness Society, Wilderness Workshop and Rocky Mountain Wild.
The lead defendant is Interior Secretary Ken Salazar. At the time of the suit’s filing, Salazar was a U.S. senator from Colorado who had supported leasing the Roan in phases. Instead, the Bush administration leased it all at once but stipulated that surface disturbance be limited to 1 percent of the plateau top at any one time.
The Obama administration, conservation groups and companies with affected leases tried unsuccessfully to settle the case. Bill Barrett Corp. owns a 90 percent interest in the leases on top of the plateau. BBC, Antero Resources, what is now WPX Energy and Oxy USA have intervened in the case.
Krieger was pointed in her questions Tuesday, seeking answers only regarding issues she had yet to see adequately addressed in case filings. One question she put numerous times to Angell was how many years the BLM should have evaluated for in its plan, if not 20.
Angell said that’s not up to conservation groups to say, but “every document says there’s going to be development significantly beyond” 20 years.
Said Krieger, “But that’s all hypothetical, all based on economic conditions that would support the development, isn’t that right?”
Said Angell, “Well, your honor, they didn’t lease for $100 million to make a contribution to the ... Treasury.”
Krieger likewise pushed Sato in her questioning. Conservation groups say the BLM failed to consider cumulative impacts of air pollution from wells both on the Roan and in surrounding areas. Sato told Krieger that the agency didn’t consider emissions from private wells outside the Roan planning area other than ones in the Vernal, Utah, area. But industry attorney Bret Sumner said the agency indicated it would require additional pollution controls if monitoring showed them to be necessary.
The lawsuit also says the BLM failed to do an assessment of ozone precursors that would result from Roan drilling. Sato said that’s because there haven’t been indications of ozone-related pollution limits being exceeded in the area up to now.
Attorney Michael Freeman, who also addressed Krieger on behalf of conservation groups Tuesday, said following the conclusion of arguments that it’s impossible to predict how she will rule.
But he added, “We continue to think we have a strong case,” and he contended the BLM acted in an arbitrary and capricious manner in the process leading up to the Roan leasing.
Mike Chiropolos, an attorney with the Western Resource Advocates conservation groups, said the government was forced to engage in legal “gymnastics” in trying to justify the BLM’s decision.
Kathleen Sgamma, who is vice president of government and public affairs for the Western Energy Alliance industry group and attended Tuesday’s hearing, countered that the BLM performed careful analysis in crafting the Roan plan.
“The Roan is one of the most restrictive plans, period ... that the BLM has ever put together, so it certainly more than balances natural gas development with environmental protection,” she said.