The Bureau of Land Management (“BLM”) recently filed a Motion for Summary Judgment in a lawsuit brought by a coalition of environmental activists who have challenged the BLM’s Resource Management Plan (“RMP”) for public lands and minerals in California managed by the Bakersfield Field Office.  The activists asked a California federal judge to strike down the BLM’s RMP, claiming that the BLM never considered the effect of “unconventional drilling methods,” such as hydraulic fracturing on the land.

The BLM responded by pointing out that hydraulic fracturing is not a new, unproven technology and has been routinely used in California for over 50 years. It is estimated that only 25% of new wells in the Bakersfield planning area are expected to undergo hydraulic fracturing.  Furthermore, the BLM noted that 98% of new wells on federal mineral lands in the planning area are projected to be drilled on existing leases that have been producing for over 30 years and not on pristine, undisturbed lands.

The activists claimed that the BLM failed to take a “hard look” at the environmental impacts associated with fracking as required by the National Environmental Policy Act (“NEPA”). However, any claim that the BLM did not comply with NEPA in developing the RMP is particularly weak under these facts.  The BLM developed a comprehensive, 1,000-page environmental impact statement (“EIS”).  Additionally, before issuing a final decision, BLM commissioned an independent review of well stimulation technologies in California to ensure that its EIS accurately reflected the potential impacts of fracking.  And finally, the independent review concluded that overall, the direct environmental impacts of well stimulation practice are relatively limited in California.

Additionally, the BLM accused the activists of misrepresenting the effect of the RMP. Indeed, the RMP does not authorize leasing or drilling on over 1 million acres; rather, it merely makes these lands, most of which were already open to development under prior RMPs, available for future leasing.  This approach is consistent with the Federal Land Policy and Management Act (“FLPMA”) mandate to manage public lands “under principles of multiple use and sustained yield.” 43 U.S.C. § 1732(a).  One of the many uses that BLM must consider is mineral development.  BLM lands are, therefore, by definition not exempt from oil and gas development.

Notwithstanding the substantive claims in the activists’ complaint, which are weak at best, the BLM also argues in its motion papers that the activists do not have standing to bring the case in the first place because they cannot allege a concrete injury stemming from BLM’s approval of the RMP. The BLM argued that the activists’ “some day” intention to visit “an unidentified area within the over one million acres of the decision area that could be leased or drilled in the future if BLM so decides after subsequent NEPA analysis is too tenuous to support standing.”

This lawsuit is not unlike many of the others brought by activists in an attempt to force undue delay in the implementation of RMP plans. The environmental activists are casting a wide net in their attempt to delay and impede the further development of California’s oil and gas reserves.  However, in doing so, they may have stretched themselves and their claims to a breaking point, grossly overstating their case and their alleged harm.  We will continue to monitor this lawsuit and update this blog as events develop.