Policty Analysis of Water Availability and Use Issues for Domestic Oil Shale and Oil Sands Development

ABSTRACT Oil shale and oil sands resources located within the intermountain west represent a vast, and as of yet, commercially untapped source of energy. Development will require water, and demand for scarce water resources stands at the front of a long list of barriers to commercialization. Water requirements and the consequences of commercial development will depend on the number, size, and location of facilities, as well as the technologies employed to develop these unconventional fuels. While the details remain unclear, the implication is not unconventional fuel development will increase demand for water in an arid region where demand for water often exceeds supply. Water demands in excess of supplies have long been the norm in the west, and for more than a century water has been apportioned on a first-come, first-served basis. Unconventional fuel developers who have not already secured water rights stand at the back of a long line and will need to obtain water from willing water purveyors. However, uncertainty regarding the nature and extent of some senior water claims combine with indeterminate interstate river management to cast a cloud over water resource allocation and management. Quantitative and qualitative water requirements associated with Endangered Species protection also stand as barriers to significant water development, and complex water quality regulations will apply to unconventional fuel development. Legal and political decisions can give shape to an indeterminate landscape. Settlement of Northern Ute reserved rights claims would help clarify the worth of existing water rights and viability of alternative sources of supply. Interstate apportionment of the White River would go a long way towards resolving water availability in downstream Utah. And energy policy clarification will help determine the role oil shale and oil sands will play in our nations future

Chapter 2: Western Public Land Law and the Evolving Management Landscape

Our nation’s history, and the history of the lands that we inhabit, are inextricably intertwined. Ranchers, miners, loggers, and intrepid homesteaders of the Old West embodies manifest destiny era ideals that set our nation on a trajectory which continues to shape the choices we make today. Laws enacted to speed westward expansion and resolve land ownership indelibly marked the Western landscape, where the vast majority of our public lands are found today. The US government acquired the Western frontier with federal blood and treasure, and then enacted laws conveying much of that landscape to states, railroads, and the indomitable men and women who personified Old West ideals. The laws that transferred millions of acres of land out of federal ownership, and that retained other lands as part of our nation’s treasured landscapes, also created property rights and expectations that provide important sideboards on our transition to a New West. Some of those laws remain in force, supplemented by new laws protecting wildlife, wild places, and the public’s voice in public land management. Our public land mangers face a difficult task in finding the balance required by a complex legal framework, and communities that grew up around Old West imperatives sometimes struggle to adapt to New West values. Understanding the role public lands have played in American history helps explain who we are today. This understanding illuminates the tensions underpinning disputes like the takeover of the Malheur National Wildlife Refuge and state efforts to wrest control of our public lands from the federal government. Lurking behind these battles are long simmering questions over the values we seek from our public lands. As past is prelude, we must understand where we came from as we strive to chart a course defining a Next West

The Transfer of Public Lands Movement: Taking “Back” Lands that were Never Theirs and other Examples of Legal Falsehoods and Revisionist History

Like the sagebrush rebels before them, today’s transfer advocates feel left behind by evolving public land management priorities that depart from their vision of how the West should be managed. The TPLA and its progeny appeal to that pain and frustration, but offer only empty answers to real questions, and in so doing, distract us from opportunities to address the root causes of frustration over public land management. The law is clear, the federal government possesses plenary power over the public domain, including the power to retain the land in federal ownership, and to do so indefinitely. The federal government is not obligated to dispose of additional public land — beyond the almost 400 million acres of land surface it already gave up in the eleven contiguous Western states — and statehood enabling acts do nothing to change this settled legal reality. Even if transfer advocates overcome long legal odds and a disposal obligation is found to exist, such an obligation would not necessitate giving the land away, let alone giving the land to the states. Furthermore, that duty to dispose would almost certainly not extend to lands that are mineral in character, leaving states without the revenue they would need to manage the lands they fought so hard to obtain. States would be faced with significant fiscal and policy challenges, and the public would see fewer and fewer opportunities to engage in land management decisions. The fate of our Western public lands matters, as does the fate of those communities that depend on our public lands. We must look beyond the empty promise of easy riches and begin the hard work needed to address profound questions raised by evolutions in public land management policies, including what we owe to those who live closest to the public domain. Their pain and frustration are real, and that pain and frustration need to be addressed if the next generation is to avoid revisiting these same battles. There are opportunities to improve public land management: updating laws, consolidating lands, fully funding agencies and community development, and cooperating with our neighbors all hold promise

A Response to Dismantling Monuments

This article refutes the main arguments made in Dismantling Monuments, which recently appeared in the Florida Law Review. It shows that national monument designations have been used to protect large landscapes for more than a century, and that no legal challenge to a monument’s size has ever succeeded. It then explains why the weight of evidence suggests that Congress, in passing the Antiquities Act, intended to endow the President with the power to designate national monuments; but that Congress did not intend to vest the President with the power to dramatically reduce them. It also dispels notions that in reducing the Bears Ears and Grand Staircase-Escalante national monuments, President Trump was reducing them to the smallest area necessary to protect sensitive resources, and that history provides a precedent for these radical reductions

The Trump Administration and Lessons Not Learned from Prior National Monument Modifications

In the debate surrounding President Trump’s monument reductions, a critical and as-yet unanswered question is whether prior presidential monument reductions create a precedent for contemporary actions through the doctrine of congressional acquiescence. This article undertakes a historical survey of prior presidential reductions to determine whether—and if so to what extent—there is a pattern of presidential action sufficient to support the congressional acquiescence argument

Measuring the NEPA Litigation Burden: A Review of 1,499 Federal Court Cases

We reviewed thirteen years of National Environmental Policy Act (“NEPA”) litigation data summarizing 1,499 federal court opinions to assess: (1) How frequently NEPA compliance efforts result in litigation; (2) how agency NEPA decisions fare in court; and (3) how NEPA litigation outcomes compare to outcomes in other challenges to federal agency decisions. We found that only one in 450 NEPA decisions were litigated and that the rate of NEPA challenges declined during the thirteen-year study period. We noted an inverse relationship between the amount of time spent on Environmental Impact Statement (“EIS”) preparation and the likelihood that an EIS would be challenged in court. We also found that while federal agencies prevail in NEPA litigation at slightly higher rates than in other civil cases where the government is a defendant, environmental plaintiffs win at higher rates than any other class of NEPA challengers. Overall, we conclude that the NEPA litigation burden may be overstated because few decisions are challenged in court, the rate of challenge is declining, and environmental plaintiffs are likely to bring only cases where they have a high likelihood of success. We therefore recommend against imposing strict deadlines and page limits on EISs as these “reforms” may do little to reduce the NEPA compliance burden while limiting opportunities for public engagement

NEPA and the Energy Policy Act of 2005 Statutory Categorical Exclusions: What Are the Environmental Costs of Expedited Oil and Gas Development?

A decade ago, concerned that National Environmental Policy Act (“NEPA”) compliance caused delays in permitting oil and gas (“O&G”) development on federal land, Congress enacted Section 390 of the Energy Policy Act (“EPAct”) of 2005. Section 390 is intended to expedite the environmental review of O&G development projects on federal lands. To effectuate that end Congress created several statutory categorical exclusions (“CEs”) to NEPA that apply to O&G development. Prior to the EPAct, the Bureau of Land Management (“BLM”) would permit new O&G development after conducting an Environmental Impact Statement (“EIS”) or Environmental Assessment (“EA”). EISs and EAs were the only NEPA compliance option available to the BLM because the agency had not promulgated regulations creating CEs for O&G projects. After the EPAct was passed, the BLM began permitting a substantial number of wells using the less rigorous CEs provided in Section 390. In fiscal years 2006 through 2008, the BLM used Section 390 CEs to permit approximately 28 percent of all wells nationally. States, members of Congress, and environmental groups have expressed concerns that the Section 390 CEs would lead to otherwise avoidable environmental impacts by circumventing conventional NEPA review. This article reviews 189 NEPA decisions and assesses whether the EPAct’s CEs result in more environmental harm then would occur had the projects undergone EA or EIS review

NEPA at 50: An Empirical Analysis of NEPA in the Courts

The National Environmental Policy Act (NEPA), the groundbreaking 1970 statute that requires federal agencies to take a “hard look” at the environmental impacts of their actions, turned 50 this year. In this anniversary year, and with NEPA revision efforts a hot topic in environmental law, we begin by quantifying the burden imposed by NEPA compliance. We then look back on approximately 1,500 court decisions to quantify the rate at which NEPA decisions are challenged, assess how those cases are resolved, and compare NEPA cases to other environmental litigation. We then discuss efforts to “streamline” NEPA and why we believe those efforts are likely to have unintended consequences

Comments in Response to Request for Information to Inform Interagency Efforts to Develop the American Conservation and Stewardship Atlas

On January 2, 2022, the Department of the Interior published a notice in the Federal Register seeking Information to Inform Interagency Efforts to Develop the American Conservation and Stewardship Atlas. This letter responds to the Department’s request for information. Our comments focus on what we believe would be a useful framework for the Atlas. Our comments proceed in 5 parts: (1) broad comments about conservation, the Conservation and Stewardship Atlas, and the America the Beautiful Initiative; (2) the need to provide a universal baseline of ecological health that includes ecological potential, existing conditions, and a landscape health assessment; (3) the benefits and risks of recognizing a continuum of conservation; (4) avoiding a “lemons” market in the conservation sphere by providing transparent information about the purpose, management, efficacy, and durability of conservation projects included in the Atlas; and (5) the need to develop an assessment methodology and report card that creates transparency along the continuum of conservation

Debunking the Myths Behind the NEPA Review Process

The National Environmental Policy Act (NEPA) requires major federal actions that significantly affect the quality of the human environment to undergo an environmental review prior to federal authorization or funding. The decision to license or permit a project on federal lands is generally considered a major federal action subject to NEPA review. NEPA’s critics allege that the review process delays federal decision making, unduly impedes development, and results in excessive litigation. These claims, however, are not supported by empirical evidence. Using quantitative analyses we challenge four pervasive myths about NEPA compliance and litigation, and we argue that efforts to “streamline” NEPA are likely to have significant unintended consequences