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

Policty Analysis of Produced Water Issues Associated with In-Situ Thermal Technologies

ABSTRACT Commercial scale oil shale and oil sands development will require water, the amount of which will depend on the technologies adopted and the scale of development that occurs. Water in oil shale and oil sands country is already in scarce supply, and because of the arid nature of the region and limitations on water consumption imposed by interstate compacts and the Endangered Species Act, the State of Utah normally does not issue new water rights in oil shale or oil sands rich areas. Prospective oil shale and oil sands developers that do not already hold adequate water rights can acquire water rights from willing sellers, but large and secure water supplies may be difficult and expensive to acquire, driving oil shale and oil sands developers to seek alternative sources of supply. Produced water is one such potential source of supply. When oil and gas are developed, operators often encounter ground water that must be removed and disposed of to facilitate hydrocarbon extraction. Water produced through mineral extraction was traditionally poor in quality and treated as a waste product rather than a valuable resource. However, the increase in produced water volume and the often-higher quality water associated with coalbed methane development have drawn attention to potential uses of produced water and its treatment under appropriations law. This growing interest in produced water has led to litigation and statutory changes that must be understood and evaluated if produced water is to be harnessed in the oil shale and oil sands development process. Conversely, if water is generated as a byproduct of oil shale and oil sands production, consideration must be given to how this water will be disposed of or utilized in the shale oil production process. This report explores the role produced water could play in commercial oil shale and oil sands production, explaining the evolving regulatory framework associated with produced water, Utah water law and produced water regulation, and the obstacles that must be overcome in order for produced water to support the nascent oil shale and oil sands industries

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

Conjunctive Surface and Groundwater Management in Utah: Implications for Oil Shale and Oil Sands Development

S.J. Quinney College of Law photograph

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

NEPA, FLPMA, and Impact Reduction: An Empirical Assessment of BLM Resource Management Planning in the Mountain West

This Article reviews Environmental Impact Statements (EIS) completed in conjunction with Resource Management Plan (RMP) revisions conducted by the Bureau of Land Management (BLM) in Colorado, Montana, Utah, and Wyoming between 2004 and 2014. Based on our review of sixteen EISs, we found that RMP revisions increased application of more protective surface use stipulations by statistically significant amounts without causing a statistically significant change in either the number of jobs created or the pace of oil and gas development. In fact, both the number of jobs created and wells drilled increased slightly despite strengthened environmental protections. We also found that Draft RMP EISs that are completed on an accelerated timeline come with a heightened risk that supplementation will be needed. The delays associated with preparing a Supplemental EIS far outweigh the timesaving associated with fast-tracking Draft EIS preparation and provide a strong caution against rushing the NEPA process

Comments Submitted in Response to Request for Information to Inform Interagency Working Group on Mining Regulations, Laws, and Permitting

On March 31, 2022, the Department of Interior announced the formation of an interagency working group to develop recommendations for improving Federal hardrock mining regulations, laws, and permitting processes, and invited public comment to help inform the efforts of the working group. The Request for Information sought, among other things, recommendations on “opportunities to reduce time, cost, and risk of permitting without compromising strong environmental and consultation benchmarks.” Members of the Wallace Stegner Center of Land Resources and the Environment, at the S.J. Quinney College of Law, University of Utah submitted comments based on their shared expertise in mining law, public land planning and management, federal Indian law, tribal sovereignty and governance, intergovernmental coordination, and federal permitting issues. The recommendations covered four broad categories: (1) increasing agency capacity to deal with strategic mineral development and associated issues by ensuring sufficient staff, adequate budgets, and institutional knowledge; (2) using land use planning procedures to facilitate mine permitting without causing unnecessary or undue environmental degradation; and (3) creating a voluntary “fast-track” program with a dedicated inter-agency permit processing team for applicants who voluntarily choose to meet the most stringent applicable performance and mitigation standards; and (4) developing incentives to stabilize the strategic mineral supply chain and ensure that strategic minerals are available for domestic needs

Synching Science and Policy to Address Climate Change in Tribal Communities

Climate change is a global environmental problem, and yet, the adverse impacts of climate change are disproportionately felt in tribal communities. There are 574 federally recognized tribes in the United States. While each tribe is unique and independent, many tribes share a common history of colonization and a connection to the land—legally and culturally. The majority of tribal nations were removed from their traditional homelands and placed on reservations by the federal government. In doing so, the federal government established these reservations as a permanent home for the tribe. But that home is now threatened by climate change. The article discusses the federal government’s legal obligations to protect Native Americans and the lands they occupy as well as the disproportionate impacts of climate change on tribal communities. Based upon an extensive review of literature on the nexus between science and law, we identify recommendations on how to better synchronize science and policy to address climate change. While these recommendations are made through the lens of climate change, we explain how they apply more broadly to the special relationship between tribal nations and the federal government

NEPA—Substantive Effectiveness Under a Procedural Mandate: Assessment of Oil and Gas EISs in the Mountain West

This paper empirically evaluates whether Environmental Impact Statements (EISs) for oil and natural gas field development projects lead to a significant reduction in environmental impacts. Based on our statistical analysis of projects within a four-state region, we conclude that EIS preparation does appear to produce final decisions that are substantially less impactive on the environment when compared to initially proposed projects. Impact reductions occur primarily between the Draft EIS and Final EIS, with minor reductions occurring between the Final EIS and Record of Decision. While reductions may be partially attributable to other legal requirements (such as Clean Air Act, Clean Water Act, or Endangered Species Act compliance or intervening economic and technological factors), external factors alone do not adequately explain impact reductions. We also found that the number of alternatives considered within an EIS affects the magnitude of impact reduction. EISs that consider a broader range of alternatives are more effective at reducing environmental impacts