American Oil and Gas Reporter - April 2020 - 20

pages 14-21_Layout 1 4/6/2020 8:44 AM Page 20

IndustryDigest
The tribe sued the Corps after the
agency concluded granting an easement
for the pipeline would have no
significant environment impact, thus
exempting it from having to prepare an
EIS. Its decision led several tribes
whose reservations lie near Lake Oahe,
which stretches from North Dakota to
South Dakota, to sue.
Ruling in the U.S. District Court for
the District of Columbia, District
Judge James Boasberg noted in one of
its many prior opinions in this case, the
court held the agency's decision
largely complied with the National
Environmental Policy Act. He pointed
out there were substantial exceptions to
that compliance, including the Corps'
failure to address expert comments
noting the pipeline suffered from
serious flaws that could result in
extensive environmental harm if there
were an oil spill. Boasberg ordered the
agency to consider the issues on
remand, "and the tribes, not
surprisingly, strongly disagree with the
Corps' most recent conclusion," he
wrote.
The judge reported being guided by
an appeals court decision, National
Parks Conservation Association v.
Semonite, which clarified how much
inquiry a district court must use when
determining if an agency has dealt with
expert criticism. Boasberg concluded
too many questions remain unanswered
regarding the Dakota Access Pipeline.
Examining leak detection systems,
operator safety records and worst-case
discharge situations, he decided the
easement approval remained "highly
controversial" under NEPA standards.
"As the court thus cannot find that
the Corps has adequately discharged
its duties under that statute, it will
remain the matter to the agency to
prepare an environmental impact
statement," he ruled.
Because the Dakota Access Pipeline
is transporting 570,000 barrels of oil a
day, Boasberg says he is ordering the
parties to prepare briefs on whether the
easement should be vacated and the
pipeline shut down during the remand.
In a separate case, the U.S. District
Court of the Western District of Texas,
Austin Division, held that work could
continue on Kinder Morgan's Permian
Highway natural gas pipeline, despite
concerns over the project's compliance
with the Endangered Species Act.
20 THE AMERICAN OIL & GAS REPORTER

Judge Robert Pitman, writing in City
of Austin v. Kinder Morgan Texas
Pipeline, held that the plaintiffs failed to
meet the ESA threshold for establishing
"a reasonably certain threat of imminent
harm to a protected species." The
project, which will carry 2 billion cubic
feet a day from the Waha market area to
Gulf Coast customers, is scheduled for
completion in the first quarter of 2021.
❒

Federal Court Decision
Leads to Deferral Of
Wayne Forest Leasing
COLUMBUS, OH.-The Bureau of
Land Management-Eastern States is
deferring 13 parcels in Ohio's Wayne
National Forest from its quarterly oil
and natural gas lease sale that was
scheduled for March 19. The move
comes in response to a federal judge's
ruling six days earlier that agencies
failed to consider the impacts of
hydraulic fracturing on public health,
waterways and endangered species.
In Center for Biological Diversity v.
U.S. Forest Service in the U.S. District
Court, Southern District of Ohio,
Eastern Division, the plaintiffs-the
Center for Biological Diversity,
Heartwood, Ohio Environmental
Council and Sierra Club-allege BLM,
U.S. Forest Service and U.S. Fish &
Wildlife Service violated the
Administrative Procedure Act.
Wayne National Forest is a
patchwork of private and federal lands,
with most of the acreage privately
owned, court documents describe.
USFS owns and manages nearly
240,000 of the forest's more than
800,000 acres. The forest consists of
three noncontiguous units, with the
easternmost one, Marietta, the subject
of the lawsuit. It contains 268,000 acres,
with more than three-fourths of them
privately owned.
USFS, relying on a 2004
development scenario that projected
total surface disturbance of oil and gas
wells, approved a final revised land and
resource management plan and an
environmental impact statement for the
forest in 2006.
Neither the 2006 forest plan, the EIS,
nor the 2004 development scenario
"considered effects of horizontal
drilling and hydraulic fracturing

methods, because those methods did not
appear to be economically feasible at
the time, rather, they only considered
conventional vertical drilling," the
plaintiffs say.
In 2012, public fracturing concerns
pushed USFS to request BLM review
and update its planning and
management documents, court
documents say. BLM concluded no
updates were needed because current
and anticipated surface disturbance
levels remained below the 2006
forecast. BLM then proposed in 2015 to
lease forest parcels. On June 15, 2016,
USFS approved leasing 2,719 acres in
the Marietta unit.
On May 5, 2017, the plaintiff sued
the agencies, claiming APA and
National Environmental Policy Act
violations. They claim USFS and BLM
should have studied the impacts of
fracturing more closely before issuing
the leases in order to properly consider
its cumulative impacts.
In his ruling, U.S. District Judge
Michael Watson said both agencies
demonstrated a disregard for the
different impacts of fracturing, and
premised leasing decisions on a faulty
foundation: that the 2006 forest plan
and the EIS's consideration of vertical
drilling sufficiently accounted for those
impacts.
"Neither USFS nor BLM stopped to
take that 'hard look' that was required
of them," Watson stated. He found that
at the decision-to-lease phase, neither
agency considered fracturing's impacts
on surface area disturbance, cumulative
impacts on the Indiana Bat and the
Little Muskingum River, or impacts on
air quality. ❒

Trinity East Wins Suit
Over Dallas Gas Leases
DALLAS-The city of Dallas must
pay a natural gas producer $45.6 million
to settle a court case alleging a breach
of contract for leases purchased in 2007.
Following a jury trial that found for
Trinity East Energy in a 2014 lawsuit
filed in Dallas County Court, Judge
Craig Smith, serving in the 192nd Civil
District Court, ordered the city to pay
the maximum amount recommended by
the jury, $33.6 million, with an interest
payment set at $10.9 million, news
reports indicate.
American Oil and Gas Reporter - April 2020

Table of Contents for the Digital Edition of American Oil and Gas Reporter - April 2020
