Synopsis Although Federal law requires that the public lands be managed to protect a host of environmental values, as well as to provide opportunities for commercial exploitation of commodity resources, a series of administrative decisions beginning within the first months of the Bush Administration have made oil and gas development the dominant use of the public lands managed by the Bureau of Land Management.
Introduction
The Federal Land Policy and Management Act provides that the 261 million acres of public lands managed by the Bureau of Land Management be managed "…in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use" (43 U.S.C. 1701 (a)(8)). The law also provides that the public lands be managed in a manner that "recognizes the Nation's need for domestic sources of minerals…" (43 U.S.C. 1701 (a)(12)). Under current policies, however, the BLM's management of the public lands has become radically unbalanced in favor of mineral extraction -- especially oil and gas development -- at the expense of the other values Congress intended to be protected. This paper traces the evolution of the new "no holds barred" policies toward oil and gas development on the public lands.
DOI Paves the Way for Cheney Task Force
Even before Vice President Cheney's energy task force recommended in May 2001 that Secretary Gale Norton review and revise "impediments and restrictions" on oil and gas development on the public lands, Secretary Norton had authorized her own task force, under the direction of the Interior Department's Office of Policy Analysis, to develop proposals for expediting the extraction of energy minerals from federal lands, and to make recommendations to the Cheney task force.
As early as March 2001, Secretary Norton received a briefing from this group which highlighted a number of actions the Department could take to "examine impediments to leasing and identify opportunities to increase access" to public lands for oil and gas development. These actions included reviewing lands withdrawn from leasing and revoking withdrawals that inhibited energy development, using the BLM land use planning program to "enhance federal energy development on Department of the Interior and Forest Service administered land," reviewing "stipulations" applied to oil and gas leases to protect environmental values, and reviewing opportunities for changing the status BLM Wilderness Study Areas "to examine their potential for energy development and potential release." i
The Cheney Energy Task Force Targets the West
The Interior Department's recommendations (for example, promoting legislation to open up the Arctic National Wildlife Refuge to development, and increasing and accelerating the development of the National Petroleum Reserve-Alaska) were reflected in key recommendations of Vice President Cheney's energy task force report. For example, the Interior Department's energy task force had recommended in March 2001 that the Energy Policy and Conservation Act study ("EPCA" study) be "expedited" and that there be a "review [of] public land withdrawals and leases stipulations, with full public consultation, to consider their modifications where appropriate…"ii The Cheney task force report consequently recommended that the Interior Department "expedite the ongoing [EPCA] study of impediments to federal oil and gas exploration and development," and "Review public land withdrawals and lease stipulations, with full public participation,… to consider modifications where appropriate." iii
Industry Lobbies for "More Access," Complains About "Impediments" to Oil and Gas Development
The Cheney Energy Task Force recommendations not coincidentally echoed the proposals of the oil and gas industry. Though the Bush Administration has refused to release documents of the input the Cheney task force received from oil and gas industry representatives, from testimony delivered before Congress we can ascertain what that input was. For example, at a March 7, 2001, hearing before the House energy and mineral resources subcommittee, a witness for the oil and gas industry complained that, "Impediments to gaining access for natural gas development come in many forms. Recent monument designations, new policies prohibiting road construction, and continuous wilderness reviews prohibit access to some areas. Administrative withdrawals, inaction, and extensive delays work similarly to restrict access. Outdated resource management plans and overly restrictive surface use requirements also prevent access…."iv
Bush Executive Orders Initiate the Western Assault
Two important executive orders also accompanied release the Cheney report in May 2001. One (E.O. 13212) directed federal agencies to "Expedite energy-related projects" and established an interagency task force led by the Council on Environmental Quality to "accelerate the completion of energy -- related projects…" The second executive order (E.O. 13211) required federal agencies to prepare a "statement of energy effects" for any action (rule, project, program, etc) that could have an adverse effect on "energy supply, distribution, and use."
DOI's To Do List of "40 Tasks"
Not surprisingly, the Department of the Interior eagerly embraced the Cheney task force recommendations, and the BLM set about devising ways to reduce environmental safeguards in its oil and gas program in order to expedite the exploitation of these resources. On August 24, 2001, the BLM published it list of "40 tasks" to be completed to implement the task force recommendations. The new policies were usually articulated in "instruction memoranda" (internal directives to BLM State and Field Offices) developed without any opportunity for public review and comment, despite the Cheney task force recommendation that reviews of land status be done with "full public participation." v
BLM to State Directors: Lease, Then Look
Instruction Memorandum No. 2001-191, issued on August 3, 2001, instructs the BLM state directors to continue to issue leases and drilling permits on lands where new land use plans had not yet been completed. This countermanded an existing policy that leasing decisions should be withheld pending the completion of planning decisions, for the sensible reason that leases should not be issued in places where development might not be found to be compatible with environmental, recreation, cultural, historical or other values. The new policy signaled that leasing and development should proceed full steam ahead, regardless of the fact that not all of the environmental consequences of such decisions had been thought through by the agency, or that the public had not yet had opportunities to "fully participate" in these decisions. The die was cast: the BLM had set itself on the path of making oil and gas development the dominant use of the lands it manages. vi
"Statements of Adverse Energy Impact"
Another key milestone on this path was the issuance in December 2001 of another instruction memorandum that required the BLM to develop a "Statement of Adverse Energy Impact" on any occasion where the BLM proposed actions, projects, or programs that might be construed as inhibiting some energy development scheme. Specific examples used in this instruction memorandum included mineral withdrawals, road closures, Historic Trails designations, scenic buffers, no leasing zones, no surface occupancy stipulations, and denial of requests from waivers from protective provisions of oil and gas leases. vii
Utah: Issuing Drilling Permits is Priority #1
State BLM Offices were definitely getting the message by the beginning of 2002. On January 4, 2002, the State BLM Director in Utah sent out an "information bulletin" that among other things stated that BLM officials in Utah needed "…to ensure that existing staff understand that when an oil and gas lease parcel or when an APD comes in the door, that this work is their No. 1 priority." viii
"Time Sensitive Plans"
In February 2002, the BLM announced that it had designated 21 "Time Sensitive Plans." ix Approximately half of the 21 new expedited land use planning efforts identified by the BLM were intended to facilitate more energy development, especially oil and gas development. x
EPCA Report Undercuts "Access" Rationale for Eviscerating Environmental Safeguards
In January 2003 the BLM issued its long anticipated "EPCA" report. Though the report had been expected by some to confirm allegations that there were too many "impediments and restrictions" to oil and gas development on public lands in the Rockies, in fact the report indicated that most federal oil (85%) and natural gas (88%) resources in the region were currently available for leasing and development. xi These facts, however, did not change the Bush Administration's intention to eschew environmental safeguards and open more sensitive lands to development.
Winter, 2002-2003: BLM Caves In to Industry Demands for "Exceptions" to Wildlife Requirements
The pattern of relaxation of environmental safeguards is evident from BLM records obtained from its Pinedale, Wyoming, field office, which administers one of the most active areas of intense natural gas development on public lands in the West. Records released in March, 2003 by the BLM's Pinedale, Wyoming, field office indicate that virtually all formal requests by oil and gas operators for "exceptions" to winter stipulations designed to protect wildlife populations and habitat from the adverse impacts of oil and gas activities were granted. For example, of 172 requests for "exceptions" from sage grouse protection requirements, the BLM granted 169, most of them for the entire season. BLM also granted hundreds of demands for exceptions from requirements protecting raptor and big game habitat. xii
BLM's Oil and Gas Budget Balloons
In February, 2003, the BLM requests an $88 million for its oil and gas program, up from $55 million in FY 2000, a 62% increase. xiii
Interior Department Settles "Friendly" Anti-Wilderness Lawsuit, Bans New Wilderness Study Area Designations
On April 11, 2003, the BLM entered into a settlement agreement with the State of Utah that prohibits the BLM from ever again designating Wilderness Study Areas on the public lands or taking steps to assure that the wilderness values of such places are not impaired by other decisions, such as oil and gas development. xiv On June 20, 2003, the BLM issued an instruction memorandum that rescinded existing policies providing for the identification of wilderness characteristics on the public lands. The instruction memorandum also directed the BLM not to implement an instruction memorandum issued during the Clinton Administration requiring the BLM to inventory lands within Wyoming's Red Desert (as part of the development of its "Jack Morrow Hills Coordinated Activity Plan") for their wilderness characteristics, one of the few areas of BLM lands in Wyoming with lands potentially eligible for wilderness designation. xv The previous policy had also prohibited the BLM from delaying "implementation decisions that would impair the resources that BLM has been asked to consider through the planning process." xvi This new policy was further articulated in two instruction memoranda sent to the field offices on September 29, 2003. xvii Subsequently, the BLM has issued oil and gas leases on thousands of acres of lands identified by the agency itself as meriting wilderness consideration in Colorado and Utah.
BLM Adopts Policy Reducing Wildlife Protections from Oil and Gas Impacts
On July 28, 2003, the Deputy BLM Director issued two instruction memoranda that stated among their purposes "my commitment to not unduly restrict access to the public lands for energy exploration and development." The memoranda articulate a new policy that the BLM must use measures that that were "the least restrictive necessary," to protect environmental values, rather than, say, "the most effective possible." In particular, the new policy discourages the use of "protective stipulations" as a condition of oil and gas leases to assure protection of critical wildlife and environmental values. For example, in areas where there exists critical winter habitat for game species, such as elk, antelope or sage grouse, the BLM's existing policy had been to condition leases on conditions that sometimes prohibited operations in such areas during seasons of the year when wildlife were present. The rationale for this new policy of utilizing the "least restrictive constraint necessary" has no basis in any of the laws or regulations governing oil and gas development on the public lands. It was adopted by the BLM in the absence of "full public participation," and certainly without any of the "consultation, cooperation, an communication" so often invoked by the Secretary of the Interior. xviii
BLM Issues Oil and Gas Leases on Wilderness Quality Lands in Utah
On November 24, 2003, the BLM sold oil and gas leases on 14,500 acres of wild lands the BLM itself had found to have "wilderness characteristics" in it 1999 Utah Wilderness Inventory. This was the first time since the April 11 "no more wilderness" settlement agreement that the BLM sold oil and gas leases on lands that the agency itself found harbored wilderness values that merited consideration for permanent wilderness protection. The sale included tracts within Desolation Canyon, an area the BLM itself characterized as being one of the largest contiguous blocks of unroaded but unprotected public land in the lower 48 states. xix
Norton Calls for Tripling Drilling Permits
According to a January 22, 2004, Associated Press report, Interior Secretary Gale Norton called for the tripling of BLM drilling permits issued in Wyoming's Powder River Basin, from 1,000 issued yearly to 3,000. xx
Otero Mesa Plan Released -- BLM Doubles Proposed Leasing Area, Invokes "Least Restrictive" Policy
On January 5, 2004, the BLM released its final Resource Management Plan for southern New Mexico's Otero Mesa. The final plan almost doubled the amount of acreage originally proposed for oil and gas leasing -- approximately 1.4 million acres of land open to leasing with standard lease terms and conditions, as opposed to the approximately 779,000 acres open in the Draft RMP/EIS. Several of BLM's responses to public comments requesting more protection of Otero Mesa's environmental values contained the following phraseology: "BLM is required to impose the least restrictive constraints needed to provide adequate protection while allowing fluid mineral leasing and development." xxi In fact there is no legal requirement anywhere in the governing statutes or regulations requiring the "least restrictive constraints" on mineral leasing and development on the public lands. Instead, the phraseology reflected the new policies toward protection of environmental values articulated in IM # 2003-233, and IM # 2003-234, described above: "When reviewing lease stipulations through the Use Authorization/NEPA analysis process, consideration must be given to the least restrictive constraint necessary to meet the resource protection objective." The BLM plan for Otero Mesa is so unbalanced in favor of oil and gas development that it has drawn the protests of conservationists, ranchers, sportsmen, the local Hispanic community, and New Mexico Governor Bill Richardson, who has insisted the BLM consider a more balanced development approach proposed by the State of New Mexico. xxii
Colorado BLM Sells Parcels Surrounding Dinosaur National Monument Visitor Center and on Proposed Wilderness Areas
On February 12, 2004, the Colorado BLM sold lease tracts surrounding the visitor center of Dinosaur National Monument and along the access road to the Monument. In addition, thousands acres of tracts were sold within areas proposed for wilderness designation by H.R. 2305, the "Colorado Wilderness Act of 2003." xxiii
Utah BLM Sells More Leases in Wilderness Inventory Areas
On February 18, 2004, the BLM sold leases on 14 tracts of lands within Wilderness Inventory Areas identified by the BLM itself as possessing wilderness qualities. Additional leases were sold on tracts directly adjacent to Dinosaur National Monument. The sale drew the protests of over 100 Members of Congress, who wrote to Norton imploring her to desist from issuing leases on these sensitive lands. xxiv
BLM Issues "You Must Lease" Policy to State Directors
On February 23, 2004, the BLM Deputy Director issued an instruction memorandum to state directors that in essence directed that the "burden of proof" for not offering for sale a lease tract nominated by industry lay with the state directors. According to the memorandum, if the state director decided not to issue a lease, "The State Director must provide a letter to those who submitted the expression of interest for the tract, setting the reasons for not offering the parcel(s), the factors considered in reaching that decision, and an approximate date when analysis of new information bearing on the leasing decision is anticipated to be complete and when a decision to lease (or amend the plan) is expected to be made (emphasis added)." xxv The memo went on to say that, "a decision not to lease that extends beyond the one year could be considered a change in land use allocation outside of the planning process that effectively removes large parcels of land from mineral development without following appropriate planning procedures." In effect, the memo overturned a BLM policy previously articulated in its planning handbook that provided that, "If the BLM determines that a proposed action would harm values so as to limit the choice of reasonable alternatives being considered in the planning process, the BLM must consider among the alternatives, the no action alternative. Subject to valid existing rights, proposed actions [such as leasing] that cannot be modified to preserve opportunities for any of the reasonable alternatives [in a land use plan] should be postponed or denied." (BLM Handbook H-1601-1, paragraph VII.E.) It is important to note that under the Mineral Leasing Act, the BLM is not required to offer an oil and gas lease when asked to do so by the industry. Under the statute, the decision to lease is solely a discretionary decision, and not a mandatory duty (30 U.S.C. 225). The new policy, however, implies that the state directors have no choice but to eventually offer a lease on an area of the public lands, unless that area is explicitly withdrawn from leasing.
BLM Data Shows Nearly 42,000,000 Acres Under Lease, But Only About a Quarter in Production
A table released by the BLM on March 4, 2004, indicated that 41,940,860 acres of the public lands were under lease for oil and gas. xxvi Yet, another report by the BLM -- Public Rewards from Public Lands -- indicated that only 11 million acres were actually under development. xxvii The fact that almost three-quarters of the public lands under lease are not in production has not deterred the BLM from offering leases on hundreds of thousands more acres of public lands, including those identified by the agency itself as harboring sensitive environmental values, including wilderness values.
BLM Announces Additional Sale of Wilderness-Quality Land in Colorado
On March 29, 2004, the Colorado BLM office announced a May 13 lease sale in Colorado where nearly 74,000 acres will be offered. The sale notice identified some lands being offered as within five "former Citizens Wilderness Proposals." xviii It includes 19,000 acres proposed for wilderness designation in H.R. 2305. A TWS analysis indicated that 70 percent of leased public lands in Colorado (3,000,000 acres out of 4.4 million under lease) were not in production. xxix (The BLM subsequently dropped a number of sensitive tracts from the May 13 sale, due to the submission of formal protests, however two tracts within proposed wilderness areas, and two tracts within national forest roadless areas were sold.)
BLM Announces Sale of Wilderness-Quality Land In Utah
On April 27, 2004, the Utah State BLM office issues a sale notice for its June 25, 2004, lease sale. Numerous tracts within areas proposed for wilderness designation by conservationists are scheduled for sale.
New Study Shows Thousands of Drilling Permits Unused by Industry
A TWS analysis released in April 2004 indicates that, despite industry complaints regarding the alleged difficulty of obtaining drilling permits from the BLM in a timely fashion, thousands of drilling permits issued by the agency during the last few years have not actually been drilled. xxx A March 29, 2004 article in the Casper Star-Tribune quoted a Wyoming BLM official as stating that over 1,000 drilling permits issued by his office had gone undrilled during the past year. xxxi
Conclusion
Congress has given the Secretary of the Interior a stewardship responsibility for our public lands, and the obligation of that stewardship responsibility is to pass on the multitude of values occurring on our public lands unimpaired to future generations of Americans. Clearly the present leadership of the Interior Department has no concept of that responsibility. Instead, the Secretary of the Interior has decided that her primary responsibility is to satisfy the demands of the oil and gas industry, that her obligation to them is to facilitate their rapid exploitation of oil and gas resources on our public lands, and to do so in a manner that is detrimental to the environmental values she has been assigned by law to protect. Unless balance is restored to the management of our public lands, the current abuse of trust will continue to devastate the West's last great landscapes, from Montana's Rocky Mountain Front to New Mexico's Otero Mesa.
Notes and Links
i DOI, "Addressing Energy Opportunities through Interior Department Programs – Briefing of the Secretary, March 20, 2001," unpublished Powerpoint presentation.
ii March 20, 2001 draft "Energy Options Associated with Federal and Indian Lands, DOI, p. 4.
iii , p. 5-7.
iv "" p. 2. (PDF)
v BLM, "," August 24, 2001. (PDF)
vi BLM, .
vii BLM, .
viii BLM, Information Bulletin No. UT 2002-008, January 4, 2002.
ix BLM, .
x BLM, "Time Sensitive Plan News," Issue I, November, 2002. (PDF)
xi DOI, , January, 2003, pp. xii-xiii.
xii BLM, Pinedale Field Office, "."
xiii BLM, Budget Justifications and Performance Information, Fiscal Year 2005, p. 111-165.
xiv State of Utah v. Norton, 2:CV0870 B, Stipulation and Joint Motion to Enter Order Approving Settlement and to Dismiss the Third Amended and Supplemented Complaint, April 11, 2003.
xv BLM, .
xvi BLM, Instruction Memorandum No. 2001-075, January 19, 2001.
xvii BLM, and , September 29, 2003.
xviii BLM, and , July 28, 2003.
xix BLM, , 1999, p. 127.
xx "Norton calls for tripling gas permits in Wyoming," Billings Gazette, January 22, 2004.
xxi BLM, Proposed Resource Management Plan Amendment and Final Environmental Impact Statement for Federal Fluid Minerals Leasing and Development in Sierra and Otero Counties, December, 2003, p. 5-12.
xxii "Agencies Protest to Save Mesa From Drilling Tuesday," Santa Fe New Mexican, February 10, 2004.
xxiii "Feds to open drilling Auction of oil, gas leases near Dinosaur park draws protests," Rocky Mountain News, February 11, 2004.
xxiv Letter to the Honorable Gale A. Norton, Secretary, from Rep. Maurice Hinchey, et.al., February 4, 2004.
xxv BLM, .
xxvi BLM, "Oil and Gas Leasing Statistics, March 4, 2004," unpublished document.
xxvii BLM, , p. 2.
xxviii BLM, "," p. 2.
xxix The Wilderness Society, "," April 15, 2004.
xxx .
xxxi "BLM, producers dispute undrilled gas," Casper Star-Tribune, March 29, 2004.
