Victory in an Unexpected Place
by Kathleen Sgamma, President of Western Energy Alliance on May 16, 2019 - 12:18pm
WildEarth Guardians (WEG) and the Center for Biological Diversity (CBD) are the two most litigious groups when it comes to our western oil and natural gas issues. Sure, there are other environmental groups, like Western Watersheds and the Sierra Club, but no group beats those two when it comes to sheer volume.
Their legal strategy is to file as many lawsuits as possible and hope some stick. It’s a business model. The existence of the lawsuits generates activity and makes it seem like they’re doing something to protect the environment, whether there’s any merit to their suits or not. They plea to individual donors and large foundations for multi-millions to fund their legal activities, yet have the temerity to file for reimbursement of legal expenses under the Equal Access to Justice Act and pass their costs onto the American taxpayer. There’s no downside to their strategy, since even when they lose, they earn more money.
But I’m happy to report their strategy recently backfired with the release of draft and final Resource Management Plans (RMP) in California, delivering Western Energy Alliance an unexpected, if somewhat convoluted, victory.
So how can I, who regularly jokes in presentations to groups that the Alliance purposefully leaves California out of our definition of “the West,” claim a victory from RMPs in California? Bear with me a moment for a bit of history.
In 2013, when CBD sued BLM over leases issued under two RMPs newly completed in 2012 for the Hollister (now Central Coast) and Bakersfield Field Offices, we knew we had to get involved. The basis of the claim was that BLM had failed to analyze the impact of hydraulic fracturing, and therefore, leases must be cancelled.
Remember the good old days when fracking was the basis for all challenges against the industry? Ah yes, memories. Now methane is the new fracking. Yet, I digress.
Western Energy Alliance felt compelled to file an amicus brief as we watched the government defense leading down a path of lease cancelation in the event the groups won in court, which they did. As a procedural law, the proper remedy when a court finds an agency has not done adequate NEPA analysis is more NEPA analysis. The government just wasn’t making that case, and no other industry group was involved. As the premier public lands trade association, we couldn’t let new precedents be set for all public lands that leases can be cancelled for NEPA deficiencies and that establish a false premise that fracking is unsafe on public lands.
We filed an amicus brief way back in 2013, and lo and behold, the court relied upon it heavily in the 2014 ruling remanding the RMP back to BLM for further analysis of fracking. BLM then spent the next five years doing that corrective NEPA, including waiting for a comprehensive study by the Lawrence Berkeley National Laboratory. Things were further delayed when the environmental groups pressed the court to rule in 2016 that BLM had not adequately incorporated the study into the NEPA document, causing BLM to do yet another round of corrective NEPA.
So the bureaucratic inertia of the Obama Administration and the environmental groups caused the RMP updates to take so long that guess who is now issuing the final plan?
It’s generally good news any time an RMP involving oil and natural gas is finally complete. But I’m relishing how the obstructionist tactics of the environmental lobby failed miserably in this case. The litigants first failed to cancel the leases because of Western Energy Alliance’s court action in defense of leasing and hydraulic fracturing. Then their delay tactics to force an unnecessary analysis of fracking, even as President Obama’s EPA and multiple university studies were showing how fracking is safe and protective of public health and the environment, pushed back the final plans over seven years–long enough to give the Trump Administration the final say.
Irony and victory indeed are sweet.