On April 17, 2013, the Center for Biological Diversity and the Sierra Club (together, “Plaintiffs”) filed suit against the Bureau of Land Management (“BLM”) in the Northern District of California, alleging BLM violated the National Environmental Policy Act (“NEPA”) when it did not complete an Environmental Impact Statement (“EIS”) to assess the impacts of hydraulic fracturing, or fracking, before granting certain oil and gas leases on the Monterey Shale, located in Central California.
This new complaint comes on the heels of a March 31 Order by the Northern District’s Judge Paul Grewal holding BLM violated NEPA under similar circumstances, as discussed in more detail in our prior alert (BLM Violated NEPA in Failing to Analyze Fracking Before Granting Oil and Gas Leases in Monterey.) That case, Center for Biological Diversity v. Bureau of Land Management, No. 11-CV-6174, filed in the Northern District in November 2011, in many ways parallels the April 17 Complaint.
Plaintiffs have tailored much of the April 17 Complaint’s factual background regarding the alleged impacts of fracking in response to the March 31 Order. The April 17 Complaint includes more detailed allegations on the potential of fracking to cause spills and leaks, to contribute to air pollution, and to affect seismic activity. For example, the April 17 Complaint discusses potential impacts from storing fracking waste in open pits, as well as possible dangers associated with underground injection of fracking fluids and wastewater. While the 2011 case only alleges potential methane pollution, the April 17 Complaint expands possible air pollution impacts to include harms from volatile organic compounds (“VOCs”). While the April 17 Complaint minimizes its discussion of harms to species and habitat as compared to the 2011 case, it contains a new section devoted to alleged seismological impacts associated with fracking.
Plaintiffs also seem to have adjusted their legal arguments to conform to Judge Grewal’s findings. For example, the April 17 Complaint drops any reference to the Mineral Leasing Act claim, which failed in the earlier suit. While many of the NEPA claims remain unchanged between the two complaints, the April 17 Complaint also adds allegations that BLM’s consideration of the Council on Environmental Quality (“CEQ”) factors used to determine the intensity of an action’s environmental effects was inadequate and arbitrary, a point Judge Grewal emphasized when determining BLM erroneously failed to undertake the required EIS in the 2011 case.
In their April 17 Complaint, Plaintiffs’ are trying to capitalize on their recent success against the BLM under NEPA, but the ultimate outcome still remains uncertain. No remedy has yet been specified in the 2011 case, and Plaintiffs and BLM have been ordered to propose a remedy to the Court by May 15. Remedies could include enjoining further activity pending EIS analysis or invalidating the leases in question. The remedy ordered by the Court may now carry additional import, as it could foreshadow the fate of the leases at issue in the April 17 Complaint. Meanwhile, as the push to develop the Monterey Shale continues, state and federal agencies are devoting additional resources to assessing the potential impacts of fracking and developing new regulations to address them as discussed in our prior Alert (South Coast Air Quality Management District Approves California’s First New Fracking Rule.)
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This article was originally published by Bingham McCutchen LLP.