No. C13-0124-1
IN THE
Supreme Court of the United
States
____________________
FRIENDS OF NEWTONIAN,
Petitioner,
v.
UNITED STATES DEPARTMENT OF DEFENSE and
MAINSTAY RESOURCES, INC.
Respondents.
____________________
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
____________________
BRIEF FOR PETITIONER
____________________
Team 92
Counsels of Record 1 Q UESTIONS P RESENTED
I.
Whether the Defense Department engaged in a final federal action
ripe for judicial review under the Administrative Procedure Act
through its Record of Decision, its execution of a lease of mineral
rights with Mainstay Resources, Inc., or its approval of Mainstay
Resources, Inc.’s restructuring proposal.
II.
Whether the National Environmental Policy Act's requirement that
the government perform an environmental impact statement for
major federal actions that significantly affect the environment
applies to the Defense Department's excavation and development of
its oil and mineral resources via its lease with MRI, which
permitted excavation by hydraulic fracturing.
i T ABLE
OF
C ONTENTS
Q UESTIONS P RESENTED ........................................................................ I
T ABLE OF A UTHORITIES ...................................................................... IV
O PINION BELOW ................................................................................... 1
S TATEMENT OF J URISDICTION ................................................................ 1
S TATUTORY P ROVISIONS I NVOLVED ........................................................ 1
S TANDARD OF R EVIEW ........................................................................... 1
S TATEMENT OF THE C ASE ...................................................................... 2
S UMMARY OF THE A RGUMENT ................................................................ 6
A RGUMENT ........................................................................................ 12
I. THIS ACTION IS RIPE BECAUSE THE COMMISSION'S ACTIONS ARE FIT
FOR JUDICIAL REVIEW AND DELAYED REVIEW WILL CREATE HARDSHIP
FOR FRIENDS OF NEWTONIAN…………………………………………………….……12
A. This action is fit for judicial review because it is a final action under the
APA……………………………………………………………….………………………………..13
1. The Commission's Record of Decision, mineral rights lease, and fracking approval each
mark the completion of the DOD's decisionmaking process………………………………………...14
a. The Record of Decision is a final action under the APA...................................................... 15
b. The lease releasing mineral rights to MRI is the conclusion of a DOD decisionmaking
process. ....................................................................................................................................... 17
i. The lease is the result negotiations between MRI and the DOD through which the
DOD reached a final decision to grant the mineral rights. ................................................ 17
ii. The lease completes the decisionmaking process to grant legal rights over the subsurface minerals…………………………………………………………………………………….18
iii. A lease is similar to a Record of Decision on the spectrum of agency behavior……….19
c. The DOD’s failure to supplement the EIS with new information concerning the effects of
fracking when it blessed the land reconfiguration for Watt 1 and Watt 2 is a final agency
action. ......................................................................................................................................... 23
2. The Commission's actions directly affect Friends of Newtonian………………………………...25
3. Judicial intervention would not improperly interfere with administrative procedures……..26
B. Delayed review of this action will create hardship for Friends of Newtonian
and directly affect the water supply in Newtonian…………………………………….27
C. Friends of Newtonian is not required to show that the action is "major" under
NEPA to properly get into court…………………………………………………………….28
1. The lower court incorrectly attached independent significance to “major.” ........................... 28
2. The lower court erroneously interpreted Lujan v. National Wildlife Federation when it
determined that "major" and "federal" carry the same meaning……………………………..…….29
3. Assuming, arguendo, that an action must be “major,” the lower court erred in concluding a
federal lease of mineral rights was not a “major federal action.” ................................................ 32
II. THE DEFENSE DEPARTMENT'S LEASE OF U.S. MINERAL RIGHTS TO AND
ONGOING BUSINESS WITH MRI CONSTITUTES A MAJOR FEDERAL ACTION
REQUIRING AN ENVIRONMENTAL IMPACT STATEMENT PURSUANT TO
NEPA……………………………………………………………………………………………..33
A. The Department's lease federalized MRI's oil excavation project………………34
1. The project is federally approved……………………………………………………………………..34
2. The project is subject to federal control. .................................................................................. 38
ii B. The project is a major action with significant environmental effects………...40
1. The lease authorized the immediate and unfettered development of oil and mineral
resources. ........................................................................................................................................ 40
2. The decision to turn Fort Watt into a fracking oil field is the proximate cause of the
environmental damage to Newtonian. .......................................................................................... 42
C. The previous EIS for the sale of surface land and condemnation of the base
does not excuse the failure to produce an EIS for the lease of mineral rights and
decision to frack………………………………………………………………………………...45
1. The previous EIS was for the sale of land, not the lease of mineral with MRI. ..................... 45
2. The Department cannot rely on the previous EIS analysis because it did not adequately
cover fracking. ................................................................................................................................ 47
a. The Department did not give fracking a “hard look.” ......................................................... 47
b. Evaluating other oil productions says nothing as to the environmental impact of fracking.
.................................................................................................................................................... 49
c. Significant new circumstances require a new EIS. ............................................................. 51
CON CLU SION .................................................................................. 52
APPEN DIX ........................................................................................ A
I. ADMINISTRATIVE PROCEDURE ACT ................................................................A
II. NATIONAL ENVIRONMENTAL POLICY ACT .................................................. D
iii T ABLE
OF
A UTHORITIES
Cases
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967)…………………….. 12, 13
Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87
(1983)………………………………………………………………… 32, 34, 35, 47, 48
Bennett v. Spear, 520 U.S. 154 (1997)…………………………………………… 26
Bob Marshall Alliance v. Hodel, 852 F.2d 1223 (9th Cir. 1988)…….. 36, 41, 42
Ceres Gulf, Inc. v. United States, 94 Fed. Cl. 303 (Fed. Cl. 2010)…………… 18
Choice Inc. of Texas v. Greenstein, 691 F.3d 710 (5th Cir. 2012)…………….. 1
Connor v. Burford, 848 F.2d 1441 (9th Cir. 1988)……………………………… 21
Delaware Dep't of Natural Res. & Envtl. Control v. U.S. Army Corps of
Engineers, 685 F.3d 259 (3d Cir. 2012)………………………………………….. 51
Dep’t of Navy v. Egan, 484 U.S. 518 (1988)…………….……………………….. 22
Dep't of Transp. v. Pub. Citizen, 541 U.S. 752 (2004)……………. 34, 35, 37, 42
Found. on Econ. Trends v. Lyng, 943 F.2d 79 (D.C. Cir. 1991)…………...29, 31
Franklin v. Massachusetts, 505 U.S. 788 (1992)……………………………….. 14
Fund for Animals, Inc. v. Lujan, 962 F.2d 1391 (9th Cir. 1992)……………... 39
Fund for Animals v. U.S. Bureau of Land Mgmt., 357 F. Supp. 2d 225 (D.D.C.
2004)…………………………………………………………………………………….25
Goodrich v. United States, 434 F.3d 1329 (Fed. Cir. 2006)…………………… 15
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)………………………………………… 22
Hamilton v. Gonzalez, 485 F.3d 564 (10th Cir. 2007)…………………………. 13
iv Highway J Citizens Group v. Mineta, 349 F.3d 938 (7th Cir. 2003)………… 15
Impact Energy Resources, LLC v. Salazar, 693 F.3d 1239 (10th Cir. 2012)
……………………………………………………………………………………... 18, 19
Jersey Heights Neighborhood Ass’n. v. Glendening, 174 F.3d 180 (4th Cir.
1999)…………………………………………………………………………………… 15
Karst Envtl. Educ. & Prot., Inc. v. EPA, 475 F.3d 1291 (D.C. Cir. 2007)…... 13
Kleppe v. Sierra Club, 427 U.S. 390 (1976)………………………… 31, 40, 41, 45
Los Alamos Study Grp v. U.S. Dept. of Energy, 692 F.3d 1057 (10th Cir.
2012)………………………………………………………………………………..21, 23
Lujan v. National Wildlife Federation, 497 U.S. 871 (1990)………... 13, 20, 25,
26, 29, 30
Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989)……… 2, 30,
31, 49, 50
Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039 (4th Cir.
1986)…………………………………………………………………………………… 36
Mayaguezanos por la Salud y el Ambiente v. United States, 198 F.3d 297 (1st
Cir. 1999)……………………………………………………………………………… 38
Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 774 (1983)
………………………………………………………………………………….…….... 42
Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236 (3d Cir. 2011)……… 36
Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30 (D.D.C. 2003)……………. 36
v Minnesota Pub. Interest Research Grp. v. Butz, 498 F.2d 1314 (8th Cir. 1974)
…………………………………………………………………………………………..28
Mobil Exploration & Producing U.S., Inc. v. Dept. of Interior, 180 F.3d 1192
(10th Cir. 1999)………………………………………………………………...…20, 21
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)………………… 41
Nat'l Ass'n for Advancement of Colored People v. Med. Ctr., Inc., 584 F.2d
619 (3d Cir. 1978)……………………………………………………………………. 28
Nat’l Park Hospitality Assn. v. Dept. of Interior, 538 U.S. 803 (2003)……… 12
Native Village of Point Hope v. Salazar, 680 F.3d 1123 (9th Cir. 2012)……. 19
Natural Resources Defense Council, Inc. v. Berklund, 458 F. Supp. 925
(D.D.C. 1978)…………………………………………………………………………. 19
New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th
Cir. 2009)……………………………………………………………. 21, 42, 45, 49, 50
Ohio Forestry Assn., Inc. v. Sierra Club, 523 U.S. 726 (1998)…………… 12, 15
Oregon Natural Desert Ass’n. v. Bureau of Land Mgmt, 625 F.3d 1092 (9th
Cir. 2008)……………………………………………………………………………… 14
Ouachita Watch League v. Jacobs, 463 F.3d 1163 (11th Cir. 2006)…………..15
Pit River Tribe v. U.S. Forest Service, 469 F.3d 768 (9th Cir 2006)…… 40, 45
Portland Audubon Soc. v. Babbitt, 998 F.2d 705 (9th Cir. 1993)……………. 23
Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)…… 27, 30,
……………………………………………………………32, 33, 34, 37, 38, 44, 45, 47
vi Scarborough Citizens Protecting Res. v. U.S. Fish & Wildlife Serv., 674 F.3d
97 (1st Cir. 2012)……………………………………………………………………. 38
Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir. 1988)…………………………. 38
Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988)………………………… 37
Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 1983)………… 36, 40, 42, 45
Sierra Club v. Slater, 120 F.3d 623 (6th Cir. 1997)……………………….. 15, 16
Sierra Club v. U.S. Army Corps of Engineers, 446 F.3d 808 (8th Cir. 2006)
………………………………………………………………………………………….. 15
Sugarloaf Citizens Ass'n v. F.E.R.C., 959 F.2d 508 (4th Cir. 1992)…………. 38
Texas v. United States, 523 U.S. 296 (1998)………………………. 12, 20, 21, 26
Tinicum Twp., Pa. v. U.S. Dep’t. of Transp., 685 F.3d 288 (3d Cir. 2012)
………………………………………………………………………………………….. 14
United States v. SCRAP, 412 U.S. 669 (1973)………………………………….. 26
Utah v. U.S. Dep’t. of the Interior, 210 F.3d 1193 (10th Cir. 2000)..……….. 15
W.B. Fishburn Cleaners v. Army & Air Force Exchange Service, 374 F. Supp.
162 (N.D. Texas 1974)………………………………………………………………. 17
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)…………….. 32, 46
Statutes and Regulations
5 U.S.C. §§ 701–706…………………………………………………………….. 1, 2, 5
5 U.S.C. § 702………………………………………………………………………… 29
5 U.S.C. § 704………………………………………………………………………… 13
vii 28 U.S.C. § 1292………………………………………………………………………. 1
28 U.S.C. § 1331………………………………………………………………………. 1
30 U.S.C. § 226–2……………………………………………………………………. 18
42 U.S.C. §4321……………………………………………………………………… 32
42 U.S.C. § 4332…………………………………………. 1, 3, 27, 28, 29, 32, 44, 45
43 U.S.C. § 1701……………………………………………………………………... 30
10 C.F.R. § 1021.314………………………………………………………………… 23
32 C.F.R. § 651.41………………………………………………………………. 42, 44
32 C.F.R. § 651.42………………………………………………………….. 31, 32, 34
32 C.F.R. § 651.46…………………………………………………………………… 49
40 C.F.R. § 1502.9…………………………………………………………………… 50
40 C.F.R. § 1508.18………………………………………………... 27, 28, 33, 37, 39
40 C.F.R. § 1508.27…………………………………………………………………. 42
Other Authorities
Arkansas: Disposal Well is Ordered Closed, ASSOCIATED PRESS, July 27, 2011,
available at http://www.nytimes.com/2011/07/28/us/28brfsDISPOSALWELL_
BRF.html……………………………………………………………………………… 44
Thomas P. Crocker, Who Decides on Liberty? 44 CONN. L. REV. 1511 (2012)
………………………………………………………………………………………….. 22
viii ENVTL. PROT. AGENCY, Natural Gas Extraction—Hydraulic Fracturing,
http://www2.epa.gov/hydraulicfracturing#providing (last visited Nov. 24,
2013)……………………………………………………………..……………….. 24 n.1
EXPLORE SHALE, http://exploreshale.org/# (last visited Nov. 24, 2013)……... 43
DANIEL R. MANDELKER, NEPA LAW AND LITIG. § 8:32 (2013)…………….. 28, 38
NAT’L WILDLIFE FED’N, Hydraulic Fracturing or “Fracking,”
http://www.nwf.org/What-­‐We-­‐Do/Energy-­‐and-­‐Climate/Drilling-­‐and-­‐
Mining/Natural-Gas-Fracking.aspx (last visited Nov. 24, 2013)…………… 25
Matthew C. Porterfield, Agency Action, Finality and Geographical Nexus:
Judicial Review of Agency Compliance with NEPA, 28 U. RICH. L. REV. 619
(1994)…………………………………………………………………………….. 29, 30
Elizabeth Ridlington & John Rumpler, Fracking by the Numbers: Key
Impacts of Dirty Drilling at the State and National Level, ENV’T AMERICA
RESEARCH AND POLICY CTR., 9–11 (2013),
http://www.environmentamerica.org/sites/environment/files/reports/EA_Frac
kingNumbers_scrn.pdf……………………………………………………………… 43
NANCY SAINT-PAUL, 1A SUMMERS OIL AND GAS §§ 7:7, 9:2 (3d ed.)……… 35, 45
John Upton, Marcellus Shale Fracking Wells Use 5 Million Gallons of Water
Apiece, GRIST (Oct. 31, 2013, 2:52 PM), http://grist.org/news/marcellus-­‐shale-­‐
fracking-­‐wells-­‐use-­‐5-­‐million-­‐gallons-­‐of-­‐water-­‐apiece/………………………… 43
ix Michael K. Whitman, The Ripeness Doctrine in the Land-Use Context: The
Municipality's Ally and the Landowner's Nemesis, 29 URB. LAW. 13 (1997)
…………………………………………………………………………………………... 1
x O PINION
BELOW
The opinion below, Friends of Newtonian v. United States Department of
Defense and Mainstay Resources, Inc., No. 12-cv-1314 (14th Cir. Oct. 15,
2013), is unreported. It is reproduced on pages 3–20 of the Record.
S TATEMENT
OF
J URISDICTION
Petitioner invokes this Court’s jurisdiction under 28 U.S.C. § 1292(a)(1) and
28 U.S.C. § 1331. Petitioner is seeking a preliminary injunction under two
federal statutes: the National Environmental Policy Act, 42 U.S.C. § 4332,
and the Administrative Procedure Act, 5 U.S.C. §§ 701–706.
S TATUTORY P ROVISIONS I NVOLVED
This case involves provisions of the National Environmental Policy Act of
1969 (“NEPA”) available at 42 U.S.C. § 4332, and the Administrative
Procedure Act, 5 U.S.C. §§ 701–706. The relevant statutory provisions are
included in Appendix, infra.
S TANDARD
OF
R EVIEW
This case presents questions of law and fact. Ripeness is a question of
law and is reviewed de novo. See e.g., Choice Inc. of Texas v. Greenstein, 691
1 F.3d 710, 714 (5th Cir. 2012); see also Michael K. Whitman, The Ripeness
Doctrine in the Land-Use Context: The Municipality's Ally and the
Landowner's Nemesis, 29 URB. LAW. 13, 20 (1997). Agency action is governed
by the APA and reviewed under an arbitrary and capricious standard. 5
U.S.C. § 706; Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 376
(1989).
S TATEMENT
OF THE
C ASE
In 2001, the Department of Defense (“DOD”) considered closing or
realigning a number of military installations throughout the United States to
more effectively support its forces and increase operational readiness. R. at
3–4. One of these installations is Fort Watt, a former command post for a
classified nuclear project in the northern part of New Tejas. R. at 4. Fort
Watt is situated on land owned outright by the DOD, located on a portion of
the Albertus Magnus shale formation, which provides a wealth of mineral
resources. R. at 4 n.3, 6.
As Fort Watt was expensive to maintain and no longer a useful
military base, the DOD’s Defense Base Closure and Realignment Commission
(the “Commission”) decided, “after careful consideration,” to close the base
and sell the land. R. at 4–5. As the closure of the base and sale of the land
constituted a “major federal action[] and project[],” the Commission was
required to complete an Environmental Impact Statement (“EIS”) under the
National Environmental Policy Act (“NEPA”). R. at 5. In an EIS, an agency
2 must consider the potential impacts of its proposed action on the natural and
human environments, and explore reasonable alternatives to those actions.
Id.; see 42 U.S.C. § 4332(2)(C).
As part of the EIS process for the sale of the land, local inhabitants
and environmentalists expressed an interest in “preventing our region from
becoming a wasteland of oil derricks and abandoned homes.” R. at 5 n.3. As
potential uses for the surface of the land, the EIS considered building
residential communities, business parks, and other commercial uses. R. at 6.
The EIS did mention the potential impacts of conventional oil recovery and
extraction; however, it only very briefly discussed the possibility of hydraulic
fracturing (“fracking”), because at the time of the EIS, fracking was not
economically feasible. Id. After completing the decisionmaking process to
decommission and sell Fort Watt, and after completing the EIS, the
Commission issued a Record of Decision as its final step. R. at 14. The
President and Congress accepted the Commission’s recommendations and
approved the land for sale in November, 2002. Id.
The DOD broke the Fort Watt property into pieces, and sold the
surface rights to all 2200 acres, but retained ownership of the mineral rights
to the entire property. R. at 8–9. Mainstay Resources, Inc. (“MRI”), one of
the largest oil and gas exploration and production companies in the country,
purchased the surface rights to 750 acres in the northwest quadrant of the
property on the New Tejas River. R. at 7–8.
3 While it had specifically retained the mineral rights to the land after
the sale of the surface rights, the DOD, in its sole discretion, then decided to
lease those mineral rights to MRI, and completed a comprehensive
negotiation process involving the terms of that lease. See R. at 8–9. The
DOD did not complete a supplemental EIS for the lease. The DOD permitted
MRI to lease the mineral rights for a period of twenty years, and for as long
thereafter as production continues to pay. R. at 8. Not only did the DOD
profit from this lease by receiving delay rental payments of twenty-five
dollars per acre in until an oil or gas well on the property actually yielded
royalties, but the DOD also retained a “participatory interest” in the mineral
rights. Id. That is, the DOD’s negotiations with MRI yielded a monthly
royalty equal to one quarter of the gross proceeds of all oil and gas on the
property. R. at 9. Further, the DOD retained significant control over the
leased rights, even though it had sold the land outright: it could conduct
frequent site visits to review MRI’s operations, and reserved the right to veto
any sales of oil or gas from the Fort Watt site to any unaffiliated third party
whom DOD, in its sole discretion, deemed a threat to national security. Id.
Soon after the lease was signed, MRI began construction on two
drilling sites (Watt 1 and Watt 2). R. at 10. Both federal and state
governments then granted the permits and regulatory approvals required in
order for MRI to drill. Id. However, rather than beginning to drill
immediately, MRI paid the DOD the required delay payments for a number
4 of years while it shifted its focus toward fracking. Id. As fracking promised
to be a far more lucrative means to harvest the wells than conventional
drilling, the DOD in 2010 “bless[ed]” the reconfiguration of Watt 1 and Watt
2 for fracking. Id. The DOD approved this project without completing an
EIS, even though fracking had not been thoroughly contemplated by the
earlier EIS. See id., R. at 6. The government granted MRI updated drilling
permits to allow the fracking. R. at 10.
Fracking is different from conventional oil and gas drilling in that
rather than merely drilling vertical wells and collecting the oil that emerges,
one drills several thousand feet into the shale, and then drills horizontal
channels branching off the vertical well. Immense quantities of chemicals,
sand, and water are pumped into the well at high pressure, fracturing large
areas of the shale and permitting the oil contained therein to enter the well.
R. at 6 n.4. Just as other groundwater would flow into aquifers and into
rivers, so too does the chemically tainted wastewater from fracking. See id.,
R. at 11. The river at issue in this case is the New Tejas River, which flows
across the border between the states of New Tejas and Newtonian, abutting
the section of the Fort Watt property sold to MRI. See R. at 8, 11.
Before MRI commenced drilling, Friends of Newtonian (“FON”), a local
environmental organization, filed this suit for injunctive relief under NEPA
and the Administrative Procedure Act, 5 U.S.C. §§ 701–706 (“APA”), in order
to protect the New Tejas River, which forms a crucial part of the water supply
5 of Newtonian, from infiltration by the fracking chemicals. R. at 11. The
United States District Court for the Western District of New Tejas denied the
preliminary injunction, and FON filed this appeal with the Fourteenth
Circuit. R. at 12. While it held that the case was ripe for adjudication, the
Fourteenth Circuit failed to find a major federal action and upheld the
district court’s ruling. R. at 17–18. FON then filed this appeal.
S UMMARY
OF THE
A RGUMENT
I. FON’s request for a preliminary injunction is ripe. The ripeness
doctrine looks to whether an action is fit for judicial review and whether it
creates hardship for the parties involved. The Commission’s failure to
provide a supplementary EIS is fit for judicial assessment and imposes a
hardship on FON, which seeks to protect the water supply for citizens of the
state.
This action is fit for judicial review because the APA grants access to
the courts once there is a final agency action. The court looks at two
questions to determine whether an agency action is final: (1) whether the
agency has completed its decisionmaking process, and (2) whether the result
of that process will directly affect the parties.
First, there are three available agency actions that mark the
completion of the agency’s decisionmaking process: the Commission’s Record
of Decision, the DOD’s lease agreement with MRI, and the DOD’s approval to
6 repurpose the land for fracking. Second, each of these actions directly affect
FON because each sanctions destructive activities that will irreparably
damage the New Tejas River on which Newtonian relies to supply its citizens
with healthy drinking water. Because the agency has completed its
decisionmaking process and no further negotiations are required for MRI to
begin fracking, judicial intervention is appropriate and will not improperly
interfere with administrative procedures.
Moreover, delayed review will create hardship for FON. Once MRI
begins fracking, the chemicals used in that process will enter the New Tejas
River and cause severe and permanent environmental damage. Thus, it is
crucial that review not be delayed.
The lower court erroneously conflated a “final agency action” under the
APA, which grants access to the courts, with “major federal action” under
NEPA, which requires an EIS for major actions. This interpretation
mistakenly merges the ripeness of a claim with the merits of that claim. The
lower court relied on an opinion from this Court that does not even discuss
ripeness in the context of NEPA but rather discusses it under an entirely
separate statute. Moreover, Congress chose to the word “major” in NEPA as
distinct from “final” in the APA. Under the doctrine of surplusage, courts are
required to read meaning into each word of a statute. Giving two different
words the same meaning violates this doctrine. Thus, the words “major” and
“final” must have different meanings.
7 This Court should clarify that in terms of the threshold inquiry of
ripeness, courts only need look to whether the agency action was final under
the APA, which the only statute granting jurisdiction over this case. If the
court wishes to fashion a new rule, however, that merges the ripeness and
merits of all future NEPA claims, then this action is still properly before the
court because it is a “major federal action” as contemplated in NEPA.
II. When the federal government chooses to employ a private company
to excavate and sell the government’s oil on the government’s behalf, the
federal government must acknowledge the environmental impact of its
project. NEPA requires agencies, at a minimum, to analyze and publicize the
environmental impact of their actions. An agency cannot engage in an endrun around this requirement simply by hiring a private company to act on its
behalf.
The DOD’s excavation of oil through its lease with MRI is a federal
project. When the federal government is sufficiently involved in a private
action, the action is federal for the purposes of NEPA, and subject to its
requirements. The DOD’s approval of and control over the mining project
made the project federal. The DOD decided, on its own and under no
statutory obligation, to lease its mineral rights on the market and reap the
profit from the excavation of the shale. Rather than excavate the oil and
minerals itself, the DOD elected to essentially hire a private oil-drilling
company, MRI, to undertake this task for them. Because the DOD chose, in
8 its unfettered discretion, to execute a lease with MRI for oil excavation, it
assumes responsibility for the environmental effects. At a very minimum,
NEPA requires a full and thorough analysis of the oil excavation project.
The DOD’s control over the fracking project also federalizes it.
Whenever a private project is subject to federal control, the project is federal
for the purposes of NEPA, and the sponsoring agency must analyze its
environmental effects. Beyond initiating and approving the project, the DOD
maintained significant control over MRI’s excavation. It required royalty
payments to be paid, reserved the right for unlimited inspections, required
MRI to act as its “agent,” and reserved the right to veto sales to virtually any
buyer. In short, as the lower court noted, the DOD had the ability to “grind
the project to a halt.” So great was DOD’s control and influence that MRI
made sure to gain DOD’s “blessing” before switching from conventional
drilling to fracking.
While NEPA does not apply to every agency action, it does apply to
those likely to significantly impact the environment. Fracking is such a
project. Many courts, including this Court, require impact statements when
the federal government makes an irretrievable commitment of its natural
resources. Mineral leases routinely fall under this category. Holding
otherwise reverses the precedent of this Court as well as the overwhelming
majority of lower courts.
9 Additionally, fracking poses dangers altogether unique from other oil
excavation methods. Fracking works by injecting massive amounts of water,
sand, and chemicals at such pressure as to fracture the earth, so that
subterranean oil deposits may seep toward the surface, pooling in wells. This
explosive method is difficult to control and, where it has been used,
frequently results in water contamination and other side effects, including
earthquakes. Doing so adjacent to the New Tejas River endangers not only
New Tejas and the river ecosystem, but also environments downstream of
Newtonian. These impacts, unique to fracking, have gone unnoticed and
unanalyzed by the DOD.
The DOD, in lower court briefs, argued that its only new action was
accepting royalty payments, which does not have an environmental impact.
This is simply incorrect. The DOD’s execution of the lease was a new action.
Thus, if the DOD means to rely on the EIS it prepared for the sale of the land
in 2002 to satisfy NEPA, it cannot do so, because that EIS is unrelated to the
current fracking project. The previous EIS was not for the lease of mineral
rights to MRI, but for the closure of the base and the sale of land. When an
agency engages in a new, separate action that will have environmental
effects, it must prepare a new, separate EIS that analyzes those effects. The
DOD cannot avoid its statutory obligations simply because it lived up to those
obligations on a separate matter.
10 Nor can the DOD credibly allege that the data in the previous EIS
absolves its failure to perform one here. While the 2002 EIS did include,
inter alia, analysis of conventional oil excavation methods, it engaged in no
analysis of the environmental impact of the method actually chosen—
fracking. NEPA requires that agencies give their chosen action a “hard look,”
and the DOD did not do so in the 2002 EIS. It simply provided a definition of
fracking, and noted that it may be a viable option in the future, without
discussing any of the environmental consequences of fracking, or how the
environmental impact of fracking would differ from conventional drilling.
The infeasibility of fracking in 2002 may have absolved the DOD’s
responsibility of analyzing it if the lease were short-term. But as the agency
elected to grant a lease of at least twenty years, and as long thereafter as the
wells produced oil, it eliminated that arrow from its quiver. And even if the
DOD could rely on the old EIS at the time the lease was executed, when MRI
subsequently elected to alter its excavation technique, and alerted the DOD
of the change, the DOD was then required to perform a supplemental EIS.
Instead, the DOD again sidestepped its statutory obligations.
11 A RGUMENT
I. THIS ACTION IS RIPE BECAUSE THE COMMISSION’S
ACTIONS ARE FIT FOR JUDICIAL REVIEW AND DELAYED
REVIEW WILL CREATE HARDSHIP FOR FRIENDS OF
NEWTONIAN.
Ripeness is a judicial doctrine preventing courts from entangling
themselves in “abstract disagreements over administrative policies, and also
[protecting] [] agencies from judicial interference until an administrative
decision has been formalized and its effects felt in a concrete way” by the
parties involved in the case. Ohio Forestry Assn., Inc. v. Sierra Club, 523
U.S. 726, 732–33 (1998) (quoting Abbott Laboratories v. Gardner, 387 U.S.
136, 148–49 (1967)). The DOD’s decision not to provide an EIS in light of
repurposing its land and lease with MRI for fracking is ripe for review.
Congress passed NEPA as an environmental safety net. The safety net
requires federal agencies to consider major environmental effects before
taking action. If the court does not review agency decisions that directly
impact the environment in ways not contemplated by an original EIS then
the Court is subverting the congressional imperative of NEPA.
An action is ripe for review when (A) it is fit for judicial decision
(“fitness prong”) and (B) withholding such a decision would create hardship
for the parties involved (“hardship prong”). Texas v. United States, 523 U.S.
296, 300–01 (1998) (citing Abbott Laboratories, 387 U.S. at 149); see also
Nat’l Park Hospitality Assn. v. Dept. of Interior, 538 U.S. 803, 808 (2003).
12 Inquiry into both fitness and hardship “involve[s] the exercise of judgment,
not black-letter rule.” R. at 13. Under the fitness prong, in order for an
action to be fit for judicial review, there must be an enabling statute that
grants access to the court for the claim. In this case, the APA enables NEPA
claimants to bring suit if the complained of action is a “final agency action.”
A final agency action is one in which 1) the agency has completed its
decisionmaking process and 2) the result of the decision directly affects the
parties. As a final matter, the lower court improperly reasons that in order
for a claim to ripen “[i]n the NEPA context, the ‘final agency action’ required
by the APA must also be a ‘major federal action’ under NEPA.” R. at 13
(citing Karst Envtl. Educ. & Prot., Inc. v. EPA, 475 F.3d 1291, 1295–96 (D.C.
Cir. 2007)). This reasoning is incorrect and unnecessary under the ripeness
doctrine set out in Abbott Laboratories. A claim ripens once agency action is
final under the APA; there is no additional burden applying exclusively to
NEPA claimants to gain access to the courtroom.
A. This action is fit for judicial review because it is a final
action under the APA.
In order for an action to be fit for judicial review, that is to say,
properly before an Article III court, there must be an enabling statute to
grant review of the claim. See Hamilton v. Gonzalez, 485 F.3d 564, 568–69
(10th Cir. 2007). The APA allows a right of action for NEPA claimants
because NEPA does not provide for a private right of action. The APA limits
13 judicial review to “final agency action for which there is no other adequate
remedy in a court.” 5 U.S.C. § 704; Lujan v. National Wildlife Federation,
497 U.S. 871, 882–83 (1990). In assessing what qualifies as a final agency
action, courts must find that (1) the agency has completed its decisionmaking
process and (2) the result of that process directly affects the parties.
Franklin v. Massachusetts, 505 U.S. 788, 797 (1992). In APA cases, the
finality assessment effectively supplants the “fitness” prong of the ripeness
inquiry. This action is fit for judicial review because the DOD completed its
decisionmaking process, the result of the process directly affects Friends of
Newtonian, and judicial intervention would not improperly interfere with
administrative procedures.
1. The Commission’s Record of Decision, mineral rights lease, and
fracking approval each mark the completion of the DOD’s
decisionmaking process.
A final agency action is one wherein the agency has “completed its
decisionmaking process.” Id. The DOD made three decisions that each
reflect the conclusion of the agency decisionmaking process. The
Commission’s Record of Decision, grant of mineral rights through an
executed lease, and the DOD’s approval of land reconfiguration for fracking
each memorialize the conclusion of an agency decisionmaking process.
14 a. The Record of Decision is a final action under the APA.
A Record of Decision that reflects the analysis of an impact statement
is a judicially reviewable final agency action. See Tinicum Twp., Pa. v. U.S.
Dept. of Transp., 685 F.3d 288, 294 (3d Cir. 2012); Oregon Natural Desert
Ass’n. v. Bureau of Land Mgmt. 625 F.3d 1092, 1118 (9th Cir. 2008)
(affirming that a Record of Decision is a reviewable final agency action under
5 U.S.C. § 706(2)(A)); see also R. at 14 (holding that “[t]here is no doubt that
the DOD reached a final agency action under NEPA…[t]he Commission
completed a Record of Decision…”); Ouachita Watch League v. Jacobs, 463
F.3d 1163, 1173 (11th Cir. 2006) (holding it “well settled that ‘a final EIS or
record of decision issued thereon constitute[] final agency action.’” (quoting
Sw. Williamson County Community Association v. Slater, 173 F.3d 1033,
1036 (6th Cir. 1999)); Sierra Club v. U.S. Army Corps of Engineers, 446 F.3d
808, 815 (8th Cir. 2006) (noting that “[t]he Supreme Court has strong
signaled that an agency’s decision to issue…an environmental impact
statement is a ‘final agency action’ permitting immediate judicial review
under NEPA”) (citing Ohio Forestry, 523 U.S. at 737); Goodrich v. United
States, 434 F.3d 1329, 1335 (Fed. Cir. 2006) (collecting “case law from our
sister circuits holding that, for purposes of the [APA] a ROD is a ‘final agency
action’”); Highway J Citizens Group v. Mineta, 349 F.3d 938, 958 (7th Cir.
2003) (asserting that NEPA “documents are intended to be the culmination of
15 an agency’s environmental assessment”); Utah v. U.S. Dept. of the Interior,
210 F.3d 1193, 1196 (10th Cir. 2000) (holding that “judicial review of final
agency action under the [APA] … provides the proper procedure to challenge
the sufficiency of an EIS”); Jersey Heights Neighborhood Ass’n. v.
Glendening, 174 F.3d 180, 187 (4th Cir. 1999) (holding that the “designation
of the ROD as final agency action under the APA is generally recognized”);
Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir. 1997) (holding that “it
appears well-established that a final EIS or the ROD issued thereon
constitute the ‘final agency action’ for purposes of the APA” and collecting
cases). An overwhelming majority of circuits agree that the Record of
Decision issued by the Commission is sufficient to satisfy the first prong of
the finality assessment. While the Supreme Court has never held that a
Record of Decision automatically satisfies ripeness concerns, there is no need
to address such an issue when a significant majority of circuit courts agree,
and no circuit court disagrees, that a Record of Decision marks the conclusion
of the agency decisionmaking process. The Commission completed a Record
of Decision and recommended with full approval the sale of Fort Watt. R. at
14. The Commission’s Record of Decision constitutes agency action
sufficiently final to warrant review.
16 b. The lease releasing mineral rights to MRI is the conclusion of a
DOD decisionmaking process.
The lease agreement with MRI is the result of DOD deciding to release
mineral rights that they specifically retained after the sale of the surface
rights. R. at 8. The lease agreement represents the conclusion of agency
decisionmaking process because (i) it legally documents the result of the
negotiations between the DOD and MRI, (ii) it legally grants all mineral
rights to a private company, and (iii) it is the final step in the decisionmaking
process.
i. The lease is the result negotiations between MRI and the DOD
through which the DOD reached a final decision to grant the
mineral rights.
The DOD engaged in negotiations with MRI before making the final
decision to enter into a lease agreement for the mineral rights. R. 8. The
lease between the two parties is the legally documented conclusion of the
DOD’s decisionmaking process after negotiations. See W.B. Fishburn
Cleaners v. Army & Air Force Exch. Serv., 374 F. Supp. 162 (N.D. Texas
1974). In W.B. Fishburn Cleaners, an unsuccessful bidder for a dry-cleaning
contract awarded by the Army and Air Force Exchange Service (“AAFES”)
brought an action alleging the procedure by which contracts were awarded
was unlawful. Id. The court granted jurisdiction under the APA reasoning
that “there can be no doubt as to the finality” of the conduct in awarding the
bid. Id. at 167. Similar to our case, there should be no doubt as to the
17 finality of awarding mineral rights to MRI through a lease agreement. The
court in W.B. Fishburn Cleaners went on to emphasize that “the conduct
complained of is the type that Congress intended to expose to judicial
scrutiny under the APA.” Id. The dry cleaning company engaged with the
agency through a bidding process, and the result of that process was a
finalized contract awarded to another company. The contract was the legal
document consummating the agency’s decisionmaking process. Here, MRI
engaged with the DOD through a negotiations process, and the result of that
process was a finalized lease awarding mineral rights. Similar to W.B.
Fishburn Cleaners, the lease between MRI and DOD is the legal document
consummating the agency’s decisionmaking process.
ii. The lease completes the decisionmaking process to grant legal
rights over the sub-surface minerals.
In Impact Energy Resources, LLC v. Salazar, the Tenth Circuit
reasoned that a decision not to execute leases that were preliminarily
approved constituted final agency action subject to judicial review. 693 F.3d
1239 (10th Cir. 2012); see also Ceres Gulf, Inc. v. United States, 94 Fed. Cl.
303 (Fed. Cl. 2010) (reasoning that the Army rescinding a contract award to
perform stevedoring work for military cargo and resoliciting revised bids
constituted final agency action). If the decision not to execute a lease
constitutes final agency action where no rights are transferred or granted, it
must follow that the full execution of a lease granting mineral rights is also a
18 final agency action. In Impact Energy Resources, the Secretary of the
Interior decided not to issue certain oil and gas leases after companies
submitted high bids at auction. See 693 F.3d. at 1241. The Secretary
announced his decision at a press conference, memorialized the decision two
days later in a memorandum, and mailed notification to the bidders about a
week later. Id. The issue before the court was precisely which action was
“final” under the APA and Mineral Leasing Act (“MLA”), which looked to the
“final decision of the Secretary,” to trigger the statute of limitations under
the MLA. 30 U.S.C. § 226–2. A majority of the panel agreed that “the
decision to withdraw the leases at issue [] could not have been sufficiently
“final” to trigger the statute of limitations [under the MLA] without also
being final for the purposes of the APA.” 693 F.3d. at 1253. In this case, the
government gave up mineral rights that it had specifically retained when
making original sales. R. at 8. The lease agreement with MRI memorializes
the government’s decision to give up those specifically retained rights.
Granting mineral rights to a private company is equally final under the APA,
if not more so, than deciding to maintain the status quo by holding onto
rights it already has as the government did in Impact Energy Resources.
iii. A lease is similar to a Record of Decision on the spectrum of
agency behavior.
As the Fourteenth Circuit noted, the ripeness inquiry “involve[s] the
exercise of judgment, not black-letter rule.” R. at 13. This opens up a
19 spectrum of agency behavior on which the court must apply its judgment in
assessing finality. On one end of the spectrum, courts find such actions as
statutory interpretation and approval of an exploration plan sufficiently final
to warrant review. See Native Vill. of Point Hope v. Salazar, 680 F.3d 1123,
1129 (9th Cir. 2012) (Bureau of Ocean Energy Management’s approval of
exploration plan under Outer Continental Shelf Lands Act was final action
subject to review even though approval was subject to conditions); Natural
Res. Def. Council, Inc. v. Berklund, 458 F. Supp. 925, 932 (D.D.C. 1978)
(holding that Secretary of Interior’s interpretation of a statutory provision as
mandating issuance of a preference right coal lease upon showing that the
coal exists in commercial quantities is reviewable final agency action). On
the other end of the spectrum, “[a] claim is not ripe for adjudication if it rests
upon contingent future events that may not occur as anticipated, or indeed
may not occur at all.” Texas, 523 U.S. at 300; see also Lujan, 497 U.S. at 891
(holding that “land withdrawal review program” was not final and reasoning
that APA is not available for “wholesale improvement” and “programmatic
review” of agency plans); Mobil Exploration & Producing U.S., Inc. v. Dept. of
Interior, 180 F.3d 1192 (10th Cir. 1999) (holding that letter from Minerals
Management Service indicating pending audit served to initiate further
proceedings rather than constitute a final agency action). A lease is closer to
the end of the spectrum requiring judicial review because it marks the final
20 step in a decisionmaking process rather than the beginning step in a series of
agency actions and decisions.
In Mobil, plaintiffs argued that a letter from the Secretary of Interior
initiating an audit consummated the agency decisionmaking process to
conduct an audit. 180 F.3d at 1192. The court disagreed, reasoning that the
letter merely asked the company to keep its records and provided notification.
The letter “only [served] to initiate proceedings by which a definitive agency
position could become known, the complaint had no legal force or practical
effect….” Id. at 1198. In direct contrast, executing a lease has both legal
force and practical environmental effects on the New Tejas River.
Respondents may argue that the lease with MRI is closer to the letter
in Mobil because it initiates a relationship whereby the DOD may reject all
potential customers and thus “grind [production] to a halt.” R. at 20; see also
Texas, 523 U.S. at 300 (“A claim is not ripe for adjudication if it rests upon
contingent future events that may not occur as anticipated, or indeed may
not occur at all.”). This argument is misguided for two reasons.
First, the lease constrains DOD rejections to only those rejections in
the interest of national security and does not allow the government to
prevent later environmental consequences. R. at 9; see Los Alamos Study
Grp v. U.S. Dept. of Energy, 692 F.3d 1057, 1066 (10th Cir. 2012) (looking to
“cases [that] turn on whether the agency has committed to an action that
eliminates its ability to prevent later adverse consequences”); see also New
21 Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 718 (10th
Cir. 2009) (reasoning that the issuance of a lease without a no-surfaceoccupancy stipulation was an irretrievable commitment because the agency
could not prevent environmental impacts caused by the lease after its
issuance); Connor v. Burford, 848 F.2d 1441, 1450 (9th Cir. 1988) (holding
that sale of leases required an EIS because after the sale the government
could not preclude “activities [that were] likely, if not certain, to significantly
affect the environment”).
Second, if the court were to delay review until the DOD rejects a
customer for national security reasons then the court would be intervening in
traditionally executive authority. See Dep’t of Navy v. Egan, 484 U.S. 518,
527 (1988) (holding that the president alone has authority to classify and
control access to information bearing on national security); see also Hamdi v.
Rumsfeld, 542 U.S. 507, 580 (2004) (Thomas, J., dissenting) (“President ha[s]
primary responsibility- along with the necessary power- to protect the
national security”). “Deference to experts means that the executive branch,
not Congress or the judicial branch, should make the tradeoff between
security and liberty.” Thomas P. Crocker, Who Decides on Liberty? 44 CONN.
L. REV. 1511, 1514 (2012) (citing Eric A. Posner & Adrian Vermeule, TERROR
IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS
158 (2007)). Should
the court refuse to review reasoning that the claim is not ripe until the DOD
rejects a customer under the lease provision, the court would be forced to
22 analyze and question the precise national security reason provided by the
DOD. Such an action is both unnecessary and improper for judicial review in
light of executive authority. While the lease with MRI does allow some DOD
participation, the agency involvement is so minimal and historically
restricted to executive authority that judicial review is appropriate here.
c. The DOD’s failure to supplement the EIS with new information
concerning the effects of fracking when it “blessed” the land
reconfiguration for Watt 1 and Watt 2 is a final agency action.
A final agency decision not to supplement an EIS with new
information relating to the environmental effects of the proposed or pending
action is a final agency action under the APA. See Portland Audubon Soc. v.
Babbitt, 998 F.2d 705, 708 (9th Cir. 1993). In Portland Audubon Society, the
Ninth Circuit reviewed pending logging operations and the Department of
Interior’s decision not to supplement Timber Management Plans (“TMPs”)
with new information concerning the effect of those plans on the northern
spotted owl. Id. at 707. The court concluded that failing to supplement the
EIS constituted a final agency decision ripe for review. Id. (citing Idaho
Conservation League v. Mumma, 956 F.2d 1508, 1514–16 (9th Cir. 1992)).
The Ninth Circuit reviewed this action even before individual land sales were
announced because “to the extent [the] TMPs pre-determine[d] the future,
the Secretary’s failure to comply with NEPA represent[ed] a concrete injury
which would undermine any future challenges by plaintiffs.” Id. Moreover,
23 once an EIS has been prepared [or] there are substantial changes to the
proposal or significant new circumstances or information relevant to
environmental concerns, then a supplemental EIS (an SEIS) must be
prepared. 10 C.F.R. § 1021.314(a); Los Alamos Study Grp., 692 F.3d at
1066.1
Here, the surface rights and the mineral rights have already been
released. There is no possible future failure to comply with NEPA in this
instance because a supplemental EIS is the last available option before
fracking commences at Watt 1 and Watt 2. Without a preliminary injunction,
fracking can begin this very day. Once the DOD provided its “blessing” for
fracking and MRI obtained the necessary permits, there was no longer
anything standing in the way of the environmental harm that results from
fracking. The DOD’s blessing to reconfigure the land for fracking or the
1 The federal government notes several relevant environmental concerns with
fracking including
(1) Stress on surface water and ground water supplies from the
withdrawal of large volumes of water used in drilling and hydraulic
fracturing; (2) contamination of underground sources of drinking water
and surface waters resulting from spills, faulty well construction, or by
other means; (3) adverse impacts from discharges into surface waters
or from disposal into underground injections wells; and (4) air pollution
from the release of volatile organic compounds, hazardous air
pollutants, and greenhouse gases.
ENVTL. PROT. AGENCY, Natural Gas Extraction—Hydraulic Fracturing,
http://www2.epa.gov/hydraulicfracturing#providing (last visited Nov. 24,
2013). Significantly, three out of four major concerns for the United States
government center on water pollution.
24 decision not to supplement the EIS with information pertaining to the
potential environmental effects of fracking or both decisions combined
constitute the completion of a decisionmaking process to allow fracking
without further study.
2. The Commission’s actions directly affect Friends of Newtonian.
The lease allows activity that will directly affect Friends of Newtonian,
the state of Newtonian, and its citizens through the New Tejas River. R. at
14. The New Tejas River “plays a vital role in recharging several reservoirs
and fresh water aquifers in Newtonian.” R. at 11. Fracking can begin today
without further agency action. See Fund for Animals v. U.S. Bureau of Land
Mgmt., 357 F. Supp. 2d 225, 229 (D.D.C. 2004) (“It is not the type of decision
that will directly affect the parties because further agency action is necessary
before any concrete action will be taken by the agency that might affect the
rights of the plaintiffs.”) This activity can contaminate the New Tejas River
which directly affects Friends of Newtonian. See NAT’L WILDLIFE FED’N,
Hydraulic Fracturing or “Fracking,” http://www.nwf.org/What-WeDo/Energy-and-Climate/Drilling-and-Mining/Natural-Gas-Fracking.aspx (last
visited Nov. 24, 2013).
25 3. Judicial Intervention would not improperly interfere with
administrative procedures.
Judicial intervention is appropriate in APA claims when the court is
the last barrier to potential harm. See Lujan, 397 U.S. at 894. Respondents
in Lujan complained that the Bureau of Land Management’s “land
withdrawal review program” was generally harmful and sought “wholesale
improvement of this program.” Id. at 891. The court rejected the idea that
courts could engage in “whole program” review without specific agency action
creating pinpointed harm. Id. at 894. While sympathizing with respondents,
Justice Scalia wrote, “The case-by-case approach that this requires is
understandably frustrating to an organization such as respondent, which has
as its objective across-the-board protection of our Nation’s wildlife and the
streams and forests that support it. But this is the traditional, and remains
the normal, mode of operation of the courts.” Id. Unlike respondents in
Lujan, Friends of Newtonian does not allege harm that demands “across-theboard” protection but rather narrowly focuses this action upon a specific
water source with precise implications for the citizens of Newtonian. Judicial
intervention would not improperly interfere with agency action in this case
because Friends of Newtonian has alleged harm with sufficient specificity.
26 B. Delayed review of this action will create hardship for
Friends of Newtonian and directly affect the water supply in
Newtonian.
The second prong of ripeness requires that delayed review create
hardship for the parties. Texas, 523 U.S. at 300. Hardship is assessed
looking to whether “rights or obligations have been determined, or [whether
the action is one] from which legal consequences flow. Bennett v. Spear, 520
U.S. 154, 177–78 (1997). First, the negotiated lease between MRI and DOD
triggers the allocation of mineral rights. The DOD legally endowed MRI with
those mineral rights. Without review, Friends of Newtonian have no other
resource to prevent possible water contamination. Second, several judicial
decisions have established that allegations of injury to important
environmental interests constitute substantial harm deserving of judicial
intervention. See R. at 14; United States v. SCRAP, 412 U.S. 669, 686 (1973)
(explaining “[a]esthetic and environmental well-being, like economic wellbeing, are important ingredients of the quality of life in our society, and . . .
[are] not less deserving of legal protection through the judicial process). The
Record of Decision, mineral rights lease, and blessing for fracking each create
hardship for Friends of Newtonian by directly affecting the New Tejas River.
27 C. Friends of Newtonian are not required to show that the
action is “major” under NEPA to properly get into court.
1. The lower court incorrectly attached independent significance to
“major.”
The lower court concludes that, for ripeness in an NEPA action, the
agency’s action must be not only final, but major. See R. at 13. This is a
mistake of law. The APA, under which NEPA claims are brought, makes no
such requirement. The lower court’s mistake is grounded in a misreading of
the statute, wherein independent significance is attached to the word
“major.” This misreading ignores the Council on Environmental Quality
(“CEQ”)’s explicit guidance, the direction of this Court, and the majority of
other circuits.
NEPA requires an EIS for “major federal actions significantly affecting
the environment.” 42 U.S.C. § 4332(C). The word “major” “reinforces but
does not have a meaning independent of significantly[.]” 40 C.F.R. § 1508.18.
The CEQ regulations, to which this Court owes great deference, Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 355 (1989), make this clear.
There is no requirement in NEPA that the federal agency undertake a
“major” action, whatever that may mean—just an action “with effects that
may be major[.]” 40 C.F.R. 1508.18. Thus, any action an agency takes with
major environmental effects is subject to NEPA. 42 U.S.C. § 4332(C). This is
known as the “unitary standard,” where “major” and “significantly” in unison
28 refer to the environmental effects the action causes. DANIEL R. MANDELKER,
NEPA LAW AND LITIG. § 8:32 (2013).
This standard was not always in place, and is presumably the source of
the lower court’s confusion. Formerly, the CEQ recommended a “dual
standard” where an action was required to be both “major” and causing
significant effects. See id.; Nat'l Ass'n for Advancement of Colored People v.
Med. Ctr., Inc., 584 F.2d 619, 623 (3d Cir. 1978) (citing the previous CEQ
regulations). Some circuits built precedent around this principle, which is
now rejected by scholars and other circuits. See MANDELKER, § 8:32 (“The
unitary standard adopted by CEQ appears correct.”). Recognizing its error,
the CEQ changed its recommendation because “if the action has a significant
effect, it is the intent of NEPA that it should be the subject of the detailed
consideration mandated by NEPA[.]” Minnesota Pub. Interest Research Grp.
v. Butz, 498 F.2d 1314, 1322 (8th Cir. 1974).
2. The lower court erroneously interpreted Lujan v. National Wildlife
Federation when it determined that “major” and “federal” carry the same
meaning.
The Fourteenth Circuit improperly equated an “agency action” under
section 702 of the APA with a “major federal action” under section 102(2)(C)
of NEPA. This action is properly before the court regardless of whether it is a
major federal action because it is sufficiently final under the APA, and it is
not subject to additional requirements for purposes of the ripeness inquiry.
29 Compare Lujan, 497 U.S. 871, with Found. on Econ. Trends v. Lyng, 943 F.2d
79 (D.C. Cir. 1991).
In Foundation on Economic Trends, the D.C. Circuit held that
plaintiffs challenging the Department of Agriculture’s refusal to prepare an
EIS on a “germplasm preservation program” lacked standing because they
were not able to identify an “agency action” reviewable under the APA. 943
F.2d at 86. The D.C. Circuit reached this conclusion reasoning that the
Lujan Court implicitly held “that an agency’s refusal to prepare an EIS did
not constitute ‘agency action’ within the meaning of section 702 of the APA;
instead, the agency action which must be identified in the context of NEPA is
the ‘major federal action’ subject to the EIS requirement.” Matthew C.
Porterfield, Agency Action, Finality and Geographical Nexus: Judicial Review
of Agency Compliance with NEPA, 28 U. RICH. L. REV. 619, 644 (1994);
Found. on Econ. Trends, 943 F.3d at 85 (“Although the Court does not
explicitly say as much, the opinion indicates that plaintiffs in NEPA cases
must point to ‘action’ at least arguably triggering the agency’s obligation to
prepare an impact statement.”). To the contrary, however, Justice Scalia
does not direct his discussion or holding at NEPA. In fact, NEPA is not even
mentioned in the section of Justice Scalia’s opinion on which the D.C. Circuit
relies. Lujan, 497 U.S. 871, 890–94. Instead, the Court’s discussion focuses
on a “programmatic” review of the Bureau of Land Management’s compliance
with its substantive obligations under the Federal Land and Policy
30 Management Act (“FLPMA”). Id.; Porterfield at 644. The FLPMA, along with
most other statutes for which the APA is asserted as a basis of review,
imposes substantive obligations on the agency. 43 U.S.C. § 1701 et. seq.; see
Porterfield at 646 n.154. The FLPMA requires the Bureau of Land
Management to keep an inventory of public lands and make determinations
about possible commercial uses for such lands including mining. Lujan, 497
U.S. at 877. NEPA does not impose such substantive obligations but rather
only contains the procedural requirement that agencies consider the
environmental impact of agency actions through the preparation of an EIS
before taking major action. See Robertson, 490 U.S. at 350 (“Although these
procedures are almost certain to affect the agency’s substantive decision, it is
now well settled that NEPA itself does not mandate particular results, but
simply prescribes the necessary process.”). Therefore, reviewable agency
action under NEPA is compliance with the EIS requirement rather than the
“substantive action itself which is the subject of the EIS.” Porterfield at 647.
In fact, the Supreme Court has granted review of an agency decision not to
prepare a supplemental EIS. Marsh, 490 U.S. 360 at 375.
In Marsh, nonprofit organizations brought suit to enjoin the
construction of a dam claiming that the Army Corps of Engineers violated
NEPA by failing to prepare a supplemental EIS in light of new information.
Id. at 360. The Court held that review of the decision by the Corps not to
prepare a supplement EIS was controlled by the “arbitrary and capricious”
31 standard of the APA. Id. The Court did not engage in an analysis of whether
the decision was sufficiently final and major as the D.C. Circuit did in
Foundation on Economic Trends, but rather directly reviewed the agency
decision not to prepare a supplemental EIS. Following the Court’s reasoning
in Marsh, the DOD’s decision not to prepare a supplemental EIS is properly
reviewable agency action under the APA.
3. Assuming, arguendo, that an action must be “major,” the lower court
erred in concluding a federal lease of mineral rights was not a “major
federal action.”
This Court has always considered leases for mineral rights to be
sufficiently “major” to trigger NEPA. See Kleppe v. Sierra Club, 427 U.S. 390
(1976). In Kleppe, discussed in detail infra at 41, the Department of the
Interior completed an EIS for each individual lease of mineral rights, and it
did so without “dispute.” See Kleppe 427 U.S. at 400. Lower courts have
followed this Court’s lead in deeming mineral leases sufficiently “major.” See
infra at 40. The relevant DOD regulations, too, make clear that leases are
precisely the type of action subject to NEPA. 32 C.F.R. § 651.42. The DOD
“normally require[s] an EIS” when “leasing [rights] that may lead to
significant changes in land use.” Id. The assertion now of the Fourteenth
Circuit that such leases are now not “major” for the purposes of NEPA is not
so much unprecedented as it is against precedent.
32 II. THE DEFENSE DEPARTMENT’S LEASE OF U.S. MINERAL
RIGHTS TO AND ONGOING BUSINESS RELATIONSHIP WITH
MRI CONSTITUTES A MAJOR FEDERAL ACTION REQUIRING
AN ENVIRONMENTAL IMPACT STATEMENT PURSUANT TO
NEPA.
NEPA is the preeminent federal environmental protection statute. 42
U.S.C. §4321 et seq. Its “twin aims” are to force agencies to consider “every
significant aspect of the environmental impact” of their actions, and to inform
the public about this impact. Robertson, 490 U.S. at 349; Baltimore Gas &
Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97 (1983).
In order to fulfill these aims, NEPA requires agencies to prepare an
EIS for “major Federal actions significantly affecting the quality of the
human environment.” 42 U.S.C. §4332(2)(C); Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 47 (2008). Environmental concerns must be
“integrated into the very process of agency decisionmaking” and “interwoven
into the fabric of agency planning.” Id. By preparing an EIS, the agency
ensures that both its decisionmaking and the public are informed as to the
environmental consequences of the agency’s actions. Id.
However in the case below, the court of appeals held that NEPA did
not apply to the Department’s decision to lease its mineral rights to MRI—
converting disused land into an oil field—and, thus did not require an
assessment of oil excavation’s environmental impacts. In doing so, the lower
court erred. The lease federalized the fracking project for the purposes of
NEPA, fracking has an environmental impact that the DOD is statutorily
33 required to account for, and the 2002 EIS performed for the sale of land does
not fulfill DOD’s requirement to perform an EIS for fracking.
A. The Department’s lease federalized MRI’s oil excavation
project.
Federal regulations and this Court are clear: a nonfederal action
becomes federal when (1) it requires federal approval and (2) is “potentially
subject to federal control and responsibility.” 40 C.F.R. § 1508.18; see
Robertson, 490 U.S. at 332 (finding that approval of permit to allow private
development of ski resort on federal lands by Methow Recreation, Inc.
required an EIS). MRI’s oil excavation by fracking at oil sites Watt 1 and
Watt 2 was both approved by the Department and also subject to federal
control, so an EIS is required.
1. The project is federally approved.
Projects that require the discretionary approval of a federal agency are
federal projects. See Robertson, 490 U.S. at 332. In particular, the
Department is required to perform an EIS for “[l]and acquisition, leasing, or
other actions that may lead to significant changes in land use.” 32 C.F.R. §
651.42. In Robertson, the Forest Service granted special land use permits to
Methow Recreation Inc. to develop federal forest lands into a resort. “[T]hat
decision [was] a “major Federal action” within the meaning of NEPA, [and] it
must be preceded by the preparation of an [EIS]”. Robertson, 490 U.S. at 336
34 (citing NEPA, 42 U.S.C. § 4332). The Forest Service was not required to
grant a special use permit—it had the discretion to do so. Because the
agency could choose whether to allow or forbid the construction of a resort,
the agency was required to perform an EIS. Id. That requirement was so
apparent that it remained uncontested by the parties in that case. See id.
This principle of discretionary approval as sufficient to require an EIS
for nonfederal actions is a constant in this Court’s NEPA decisions. In
Baltimore Gas, the Nuclear Regulatory Commission (“NRC”) had the
discretion to approve potential nuclear power plants, and the Court required
an EIS. 462 U.S. at 97. In Department of Transportation v. Public Citizen,
the agency had no discretion to issue permits to Mexican motor carriers so
long as they met predetermined criteria described in statute, and an EIS was
not required. 541 U.S. 752, 765 (2004). There, the agency’s approval was
merely ministerial. Id. For this Court, the central issue on which
federalization of private actions turns is, and has always been, whether the
action required the discretionary approval of a federal agency. See Baltimore
Gas, 462 U.S. at 97; Pub. Citizen, 541 U.S. at 765. The criterion on which
permits for nuclear power plants may be issued is a choice within the NRC’s
discretion. See Baltimore Gas, 462 U.S. at 97. Whether to issue a permit to
a Mexican motor carrier, so long as they met the requirements, was not
within the Department of Transportation’s discretion. Pub. Citizen, 541 U.S.
at 765.
35 Just as in Robertson and Baltimore, here, the Department had
complete and total discretion whether to grant a lease for its mineral rights.
It was not mandated to do so by statute, nor executive order. See Pub.
Citizen, 541 U.S. at 765. The Fourteenth Circuit was correct that
federalization occurs where “federal and private components of a major
project are interdependent[.]” R. at 17. The lower court is correct, too, in
treating fracking as a major project. See generally R. Where the court erred,
however, was in failing to recognize that the private action of fracking is
entirely dependent upon the Department’s lease of mineral rights. R. at 17;
see also NANCY SAINT-PAUL, 1A SUMMERS OIL AND GAS §§ 7:7, 9:2 (3d ed.). But
see R. at 20 (“[T]he lease inextricably connected the DoD and MRI and
transformed fracking at Watt 1 and Watt 2 into a major federal action.”)
(McBride, J., dissenting).
Lower courts assimilated this basic principle of discretionary approval
and put it to work in their own application of NEPA. For example, the
Fourth Circuit required an EIS when a privately funded highway project
crossed through a federal park, necessitating the approval of several federal
agencies. See Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039
(4th Cir. 1986). It was beyond dispute that a project was federal for the
purposes of NEPA if it “cannot begin or continue without prior approval of a
federal agency.” See id. at 1042. Further, nothing unique to mineral leases
changes the application of this Court’s principles in lower courts. Both the
36 Ninth Circuit and the D.C. Circuit require an EIS when a lease allows
private drilling. See e.g., Bob Marshall Alliance v. Hodel, 852 F.2d 1223,
1225 (9th Cir. 1988), Sierra Club v. Peterson, 717 F.2d 1409 (D.C. Cir. 1983).
Federal approval of mineral development projects has only not constituted a
federal action when the approval was unnecessary for the private project to
proceed, see Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236, 254 (3d
Cir. 2011) (holding that a notice of drilling projects did not require an EIS
when the agency could not otherwise halt the project), or when the approval
was ministerial and not subject to any meaningful agency discretion. See
Mineral Policy Ctr. v. Norton, 292 F. Supp. 2d 30, 56 (D.D.C. 2003) (approval
of notice of mineral exploration project is “ministerial” where the agency may
only determine whether applicants provided all required information,
including name, address, description of mining activity, and estimated cost
and environmental impact).
This Court’s consistent precedent, and the lower courts’ application of
the same, undercuts the Department’s assertion that this lease was not a
major federal action. Under any fair reading of this Court’s jurisprudence,
leasing mineral rights for private development at the agency’s discretion
federalizes that private development for the purposes of NEPA. The
Department was not obliged to grant MRI a lease if MRI met some
predetermined criteria. But see Pub. Citizen, 541 U.S. at 765; Sierra Club v.
Penfold, 857 F.2d 1307 (9th Cir. 1988) (determining that a mining notice was
37 “ministerial” because the agency had no discretion). The Department was not
obligated to do anything with the minerals at all. When the Department
elected, in its discretion, to engage in a business relationship with MRI, it
needed to consider the environmental aspects of doing so. See Robertson, 490
U.S. at 336. Holding otherwise requires this Court to jettison the reasoning
of Public Citizen, 541 U.S. at 765 (holding that agency discretion is
dispositive when determining whether a project was federally approved), or
overrule Robertson. 490 U.S. at 336 (holding that agency approval of a
private development project requires an EIS).
2. The project is subject to federal control.
The CEQ regulations deem a private action federally controlled if the
agency participates in or “partly . . . conduct[s]” the project. 40 CFR §
1508.18(a). This Court affords these regulations “substantial deference[,]”
Robertson, 490 U.S. at 355. In Robertson, consulting and approving final
construction plans constituted sufficient federal involvement to trigger
NEPA. Id. at 337. Likewise, the circuits look to whether the federal agency
“possesses some form of authority over the outcome.” Mayaguezanos por la
Salud y el Ambiente v. United States, 198 F.3d 297, 302 (1st Cir. 1999); see
e.g., Sugarloaf Citizens Ass'n v. F.E.R.C., 959 F.2d 508, 512 (4th Cir. 1992)
(“agency possesses authority ‘to exercise discretion over the outcome.’”
(citation omitted)); Sierra Club v. Hodel, 848 F.2d 1068, 1089 (10th Cir. 1988)
38 (considering “agency's authority to influence significant nonfederal activity”)
overruled on other grounds by Vill. of Los Ranchos De Albuquerque v. Marsh,
956 F.2d 970 (10th Cir. 1992).
The court below errs in its reading of other circuits and, thus, in
deeming federal control insufficient. Though not explicitly saying so, the
lower court presumably relies on a “small handle” argument in deeming
federal control insufficient to trigger NEPA. See R. at 16–17; see also
MANDELKER, NEPA LAW AND LITIGATION § 8:19 (2013). A “small handle”
occurs when federal involvement is so minor and indirect that the private
action could not be reasonably considered a federal action. See MANDELKER,
NEPA LAW AND LITIGATION § 8:19. The court then grafts ill-fitting First and
Ninth Circuit precedent onto the case at hand. See R. at 16–17. The First
Circuit found that state-granted easements were not federal projects even
though the federal government could, in theory, withhold federal funding
from the state in the future. Scarborough Citizens Protecting Res. v. U.S.
Fish & Wildlife Serv., 674 F.3d 97, 103 (1st Cir. 2012). The Ninth Circuit
similarly found that a state voluntarily agreeing to abide by a nonbinding
federal wildlife management plan did not federalize the state’s action. Fund
for Animals, Inc. v. Lujan, 962 F.2d 1391, 1398 (9th Cir. 1992). The lower
court is correct that these cases do not constitute sufficient federal control—
the court errs in suggesting the reasoning behind these decisions have any
bearing on the Department and MRI’s joint venture.
39 By the very terms of the lease, the Department possessed authority to
control the major aspects of the project. MRI was to act as the Department’s
“agent” on the market. R. at 9 n.7 (describing terms of the lease). The
Department required MRI to produce the identity of any buyers. Id. They
retained authority to veto any sales. Id. They retained the authority to
inspect the site. Id. They received royalties for all sales. Id. The
Department remains “inextricably linked” in all aspects of the sale of oil, and
thus possesses significant control over the project. See R. at 20 (McBride, J.,
dissenting). As the lower court’s dissent observed, the Department possessed
the ability to “grind [the entire project] to a halt.” Id. Thus, the MRI project
was subject to federal control under 40 C.F.R. § 1508.18.
B. The project is a major action with significant environmental
effects.
Fracking significantly impacts the environment. The Department
needs to recognize and account for those effects. The Department’s lease
allowed the immediate excavation of oil, and the decision to turn Fort Watt
into a fracking oil field directly causes the environmental damage of which
FON complains.
1. The lease authorized the immediate and unfettered development of
oil and mineral resources.
Leases that irretrievably commit federal mineral resources for private
development are major actions with significant environmental impacts. See
40 Sierra Club v. Peterson, 717 F.2d at 1409. Contrary to the Fourteenth
Circuit’s suggestion, this proposition is not controversial across circuits.
Compare R. at 16 (“[W]e find the reasoning of the . . . Ninth Circuit more
persuasive [in determining whether a major federal action significantly
impacting the environment occurred.]”) with Pit River Tribe v. United States
Forest Service, 469 F.3d 768, 782 (9th Cir 2006) ([S]ale of the ... leases
required preparation of an EIS unless the lease ‘absolutely prohibits surface
disturbance in the absence of specific government approval[.]’”). In fact, no
case cited by the lower court in demonstrating a circuit split involved a lease
for mineral rights at all. See R. at 16–17. And this Court’s jurisprudence
involving mineral leases demonstrate that an EIS must be performed for
individual leases of mineral rights. See Kleppe, 427 U.S. 390.
In Kleppe, the Department of Interior constructed a national plan to
develop mineral resources. See id. at 397–98. For this, it completed an EIS.
Id. at 398. As it issued individual leases for mineral development, it too
completed an EIS for each project. Id. at 399–400. The Court never
questioned whether an EIS was necessary for each granted mineral lease.
See id. at 400. Nor, for that matter, did the agency. Id. The Department of
Interior did “not dispute this requirement” and did not attempt to avoid it.2
Id.
2 The central issue in Kleppe was not the issuance of a separate EIS for each
mineral lease granted. See Kleppe, 427 U.S. at 399. This was taken for
41 Such practice and precedent reveals the Department’s request before
this Court to be a novel one. It wishes to avoid performing an environmental
impact statement despite irretrievably committing resources to a project
certain to have an environmental impact of some kind. See R. at 12. To
grant the Department its request, the Court will have to upset the breadth of
Circuit precedent, see e.g., Bob Marshall Alliance, 852 F.2d 1223 (requiring
an EIS when leases irretrievably commit natural resources), as well as gut or
overrule its own recently reaffirmed precedent. Monsanto Co. v. Geertson
Seed Farms, 561 U.S. 139 (2010) (citing Kleppe, 427 U.S. at 410, n.20 (1976)).
2. The decision to turn Fort Watt into a fracking oil field is the
proximate cause of the environmental damage to Newtonian.
Whether an action causes a significant environmental effect is similar
to proximate cause in tort law. See Pub. Citizen, 541 U.S. at 767 (2004).
Actions or projects that are likely to lead to environmental impacts require
an EIS. See Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S.
766, 774 (1983). That oil excavation causes an environmental impact is not
only axiomatic in NEPA cases, but explicitly recognized across circuits. See
granted. See id. at 400. The dispute was whether the Interior needed to
perform an additional EIS analyzing the regional effects of the leasing
program. Id. at 399. Because the Interior never developed a regional project,
it was not required to conduct an EIS on it. See id. at 400–02. Put simply, an
agency is not required to perform an EIS on a project it is not, and has not,
contemplated. See id. That lesson is inapplicable here where the
Department explicitly contemplated and intended mineral extraction in its
lease with MRI. See R. at 8–9.
42 Bob Marshall Alliance, 852 F.2d at 1223 (oil drilling causes environmental
impact); Sierra Club v. Peterson, 717 F.2d at 1409 (same); see also
Richardson, 565 F.3d 683 (decision to allow private development on federal
land affects environment).
The CEQ requires that agencies analyze the “degree to which the
proposed action affects public health or safety." 40 C.F.R. § 1508.27(2). In so
doing, agencies must consider whether the action is close to “wild and scenic
rivers[.]” § 1508.27(3). Other considerations include whether the effects are
“likely to be highly controversial[,]” “involve unique or unknown risks[,]” and
“degree to which the action may establish a precedent for future actions[.]” §
1508.27(4)–(6) (emphasis added). The Army regulations largely implement
these recommendations verbatim. See 32 C.F.R. § 651.41.
Fracking requires “drilling vertically into the rock formation for
several thousand feet and then drilling horizontal wells branching out from
the vertical well.” R. at 6 n.4. Then, “huge quantities of water mixed with
sand and chemicals are then injected at high pressure and volume into the
rock[.]” Id. To frack a single well, MRI may require up to two to five million
gallons of water, 190,000 to 475,000 gallons of sand, and 10,000 to 25,000
gallons of chemicals. See John Upton, Marcellus Shale Fracking Wells Use 5
Million Gallons of Water Apiece, GRIST (Oct. 31, 2013, 2:52 PM),
http://grist.org/news/marcellus-shale-fracking-wells-use-5-million-gallons-ofwater-apiece/; EXPLORE SHALE, http://exploreshale.org/# (last visited Nov. 24,
43 2013).3 When the rock is fractured, oil seeps up from below the surface and
pools in the newly created wells. R. at 6 n.4. This explosive and difficult to
control process is highly susceptible to water pollution. Oil or the fracking
fluids, can leak from the wells into adjacent water supplies, contaminating
them. New Mexico alone has at least 743 instances of oil contamination, and
over half of all ground water contamination incidents are traced to faulty
wells. Elizabeth Ridlington & John Rumpler, Fracking by the Numbers: Key
Impacts of Dirty Drilling at the State and National Level, ENV’T AMERICA
RESEARCH AND POLICY CTR., 9–11 (2013),
http://www.environmentamerica.org/sites/environment/files/reports/EA_Frac
kingNumbers_scrn.pdf. The Arkansas Oil and Gas Commission halted
fracking operations in that state after the area experienced a severe seismic
activity—including 3.9 and 4.7 magnitude earthquakes. Arkansas: Disposal
Well is Ordered Closed, ASSOCIATED PRESS, Jul.y 27, 2011, available at
http://www.nytimes.com/2011/07/28/us/28brfs-DISPOSALWELL_BRF.html.
The environmental damage FON complains of—the contamination of
the river adjacent to the field, which flows into Newtonian—is directly caused
by the decision to turn portions of Fort Watt into an oil fracking field.
Because fracking significantly affects “wild and scenic rivers” and is “highly
3 Consolidating the studies reveals that the average minimum amount of
water is two million gallons, and the maximum is five million. The
remaining numbers are determined by combining those numbers with the
figures provided in the record. See R. at 6, n.4.
44 controversial from an environmental standpoint[,]” the Department must
perform an EIS. 32 C.F.R. § 651.41.
C. The previous EIS for the sale of surface land and
condemnation of the base does not excuse the failure to
produce an EIS for the lease of mineral rights and the decision
to frack.
All major federal actions require an EIS. See 42 U.S.C. §4332(2)(C);
e.g., Robertson, 490 U.S. 332 (1989). The 2002 EIS for the sale of land does
not absolve the Department of its responsibility to perform an EIS for the
lease of mineral rights. First, the 2002 EIS was for a different federal action.
When the Department engaged in a new action, it needed a new EIS. Second,
the 2002 EIS did not adequately analyze the environmental impacts of
unique to fracking, and the Department therefore may not rely on its
analysis to excuse its failure to perform a new EIS.
1. The previous EIS was for the sale of land, not the lease of mineral
rights with MRI.
All major federal actions require an EIS. See 42 U.S.C. §4332(2)(C);
e.g., Robertson, 490 U.S. 332 (1989). No one disputes that the DOD correctly
performed an EIS before condemning Fort Watt and selling the surface land.
See generally R. Base closure and sale of property are major acts. So, too, is
a lease to turn dormant land into an oil field. See Kleppe, 427 U.S. 390; e.g.,
Sierra Club v. Peterson, 717 F.2d 1409. Changes to the status quo that affect
45 the environment require an EIS. See generally Robertson, 490 U.S. 332
(changing land from protected federal land to a private ski resort required an
EIS); see also Richardson, 565 F.3d 683 (developing previously undeveloped
land changes the “status quo” and requires and EIS); Pit River Tribe, 469
F.3d 768 (extending leases while not reserving right to preclude “surfacedisturbing activity” did not preserve status quo and required new EIS).
Nor can the mineral lease be viewed as one with the original
conveyance of the surface land. It is well-established in property law that
mineral rights are separate from and dominate to surface property rights.
SAINT-PAUL, SUMMERS OIL AND GAS §§ 7:8. The Department’s remarkable
view is that conveyance of surface land with no permission to frack requires
an EIS, but granting permission to inject large amounts of water, sand, and
chemicals into the ground to fracture the earth does not. See R at 6, 8–10.
This is irreconcilable with NEPA’s purpose of “’promot[ing] its sweeping
commitment’ to environmental integrity ‘by focusing Government and public
attention on the environmental effects of proposed agency action.’” Winter,
555 U.S. at 47 (quoting Andrus v. Sierra Club, 442 U.S. 347, 350–51 (1979)).
The Department will not even analyze these potential impacts of
fracking at Watt 1 and 2, see supra at 24, let alone adequately inform the
public or explain why, in its expertise, the financial benefits of fracking
outweigh the environmental costs. While NEPA does not require the
Department reach any substantive conclusion, it does demand certain
46 procedures be followed before reaching a conclusion—any conclusion. In the
MRI lease, these procedures were not observed. Put simply, the Department
has not yet done the work it must do.
2. The Department cannot rely on the previous EIS analysis because it
did not adequately cover fracking.
The Department may not rely on the 2002 EIS for the sale of land to
rid itself of its obligation to perform an EIS for the lease of mineral rights.
First, the Department did not give fracking a “hard look.” Second, the
analysis evaluated conventional oil excavation techniques, which says
nothing of the environmental impact of fracking. Last, at the very least, the
Department was required to perform a supplemental EIS after fracking
became the chosen excavation method.
a. The Department did not give fracking a “hard look.”
NEPA requires agencies give the environmental impacts of their
actions a “hard look.” Baltimore Gas & Electric, 462 U.S. at 97–98. Effects
must be “discussed in sufficient detail to ensure that environmental
consequences have been fairly evaluated.” Robertson, 490 U.S. at 352 (1989).
When approving the construction of a ski resort, the Forest Service needed to
consider every potential effect on the environment, from the potential impact
on air quality to how the ski resort may impact the migratory patterns of
mule deer. Id. at 342–44. The Forest Service was not required to assign
47 priority to any one impact or another, but simply to analyze in “sufficient
detail” so both the agency’s decision was informed and the public knew what
the likely environmental impacts would be. Id. at 343.
The DOD’s assessment of fracking lacked all required detail. Its
discussion was “brief[,]” consisted of a definition, and an acknowledgement
that while currently not economically feasible, it could be “an option in the
future.” R. at 6. This is not sufficient detail to determine the environmental
impacts of fracking because it did not discuss environmental impacts at all—
worse, it focuses on economic, rather than environmental, considerations.
See id. Nor is it comparable to the detail with which the Department
discussed other oil excavation techniques. Id. This level of analysis may or
may not be appropriate for an EIS on discussing the many potential uses of
the land, but it is grossly inadequate when analyzing the final determined
use.
Nor is the Department’s scant analysis explainable by any appeal to
agency expertise or attempt to grapple with a difficult problem. The
Department’s request to wholly ignore an oil excavation technique that is, by
the Department’s own admission, potentially viable is without precedent.
Agencies are not required to speculate on far-reaching and unlikely harms,
but they are required to analyze what they do know. In Baltimore Gas &
Electric, the Court required the Natural Resources Defense Council to give
the environmental impact of nuclear waste a “hard look” before electing to
48 discount them. 462 U.S. at 104. In that case, the discount was appropriate
because, unlike fracking in this case, the plant’s environmental impact could
not be reasonably estimated. Id.
At the time of the lease’s execution, the Department knew what
fracking was. R. at 6. The Department could have reasonably estimated the
potential environmental impact, but chose not to do so. Id. The stated
reason, that the procedure was not economically feasible at the time but
“could be an option in the future,” id., is inadequate to relieve the agency
from the required analysis, particularly when the lease was for at least “20
years and as long thereafter that production continued in paying quantities.”
Id. at 9 n.7. Because the length of the lease was indefinite, the Department
should have known that the possibility of eventual fracking was significantly
higher. Based on information available to the Department at the time and
the length of the lease, the Department was required to analyze the
environmental impacts of fracking.
b. Evaluating other methods of oil production says nothing as to
the environmental impact of fracking.
Agencies cannot be allowed to avoid performing an EIS simply because
they performed one on a similar matter. “If there remains ‘major Federal
actio[n]” to occur’ . . . a supplemental EIS must be prepared.” Marsh, 490
U.S. at 374. Likewise, the Department’s regulations provide “a newly
proposed action must be the subject of a separate EIS.” 32 C.F.R. § 651.46.
49 Allowing otherwise would be “anathema to NEPA's “twin aims” of informed
agency decisionmaking and public access to information.” Richardson, 565
F.3d at 707 (citing Marsh, 490 U.S. at 371; Balt. Gas & Elec. Co., 462 U.S. at
97). No circuit allows such a practice, yet the DOD requests this privilege
from the Court today.
Because NEPA’s purpose is to inform the agency and the public as to
the environmental consequences of the action it takes, an EIS on an
alternative action is insufficient. In an analogous Tenth Circuit case, the
Bureau of Land Management performed an EIS for a land development plan
authorizing construction in areas adjacent to roads. Richardson, 565 F.3d at
706. This development plan was qualitative—it imposed a requirement that
construction be contiguous. Id. The Bureau was not permitted to rely on this
EIS when adopting an alternative plan that authorized construction on five
percent of available lands. Id. This alternative plan was quantitative—its
requirement was an absolute amount. The plans were different and thus
raised different environmental concerns. Id. at 710–11. Because the impacts
on the environment were different, a different EIS was required. Id.
Similarly, performing a thorough EIS on traditional oil drilling
techniques does not absolve the DOD of its statutory requirement to perform
an EIS on the oil excavation technique actually chosen. Because the oil
excavation techniques are vastly different, different analysis is required by
the Department. While fracking does raise many of the same concerns as
50 traditional oil excavation, such as air pollution, impact on indigenous species,
and the prospect of oil spills, it also raises new ones. See supra at 43. These
altogether separate concerns unique to the process of fracking require proper
analysis by the approving agency.
c. Significant new circumstances require a new EIS.
If new information or events arise that are relevant to environmental
concerns and bearing on proposed action, a supplemental EIS is required. 40
C.F.R. § 1502.9. This is demanded by both the CEQ regulations, which are
owed great deference, and this Court’s jurisprudence. See id.; Marsh, 490
U.S. 360. It is also necessary to ensure that NEPA fulfills its twin aims of
informed agency decisions and an informed public.
In Delaware Dep't of Natural Res. & Envtl. Control v. U.S. Army Corps
of Engineers, the Army Corps performed an EIS on a project to dredge a
navigable waterway between the Allegheny River in Philadelphia and the
deep water point in the Delaware Bay. 685 F.3d 259, 262 (3d Cir. 2012).
After the initial EIS was submitted and approved by Congress, the Corp
decided to add one additional disposal facility—increasing the total from
three to four. Id. at 262 n.2. This modification to the original plan required a
supplemental EIS, which the Corps promptly prepared and submitted. Id at
262. One additional storage facility constituted a significant new
circumstance. See id.
51 Changing the method of oil excavation is a significant new
circumstance. When fracking became economically viable and MRI selected
it as the excavation method, the DOD needed to perform an EIS relating to
fracking. Fracking raises new environmental concerns, see supra at 43, and
its sudden availability as an oil extraction technique changed the nature, and
dangers, of the project. Such a change in circumstances requires the
Department to perform a new, relevant, EIS.
C ONCLUSION
For the foregoing reasons, this Court should hold that the issue is ripe
for judicial review, and that the DOD’s lease of mineral rights to MRI
constitutes a major federal action requiring an EIS.
52 A PPENDIX
I. ADMINISTRATIVE PROCEDURE ACT
5 U.S.C. § 701—Application; Definitions
(a) This chapter applies, according to the provisions thereof, except to the
extent that-(1) statutes preclude judicial review; or
(2) agency action is committed to agency discretion by law.
(b) For the purpose of this chapter-(1) “agency” means each authority of the Government of the United
States, whether or not it is within or subject to review by another
agency, but does not include-(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the
United States;
(D) the government of the District of Columbia;
(E) agencies composed of representatives of the parties or of
representatives of organizations of the parties to the disputes
determined by them;
(F) courts martial and military commissions;
(G) military authority exercised in the field in time of war or in
occupied territory; or
(H) functions conferred by sections 1738, 1739, 1743, and 1744
of title 12; subchapter II of chapter 471 of title 49; or sections
1884, 1891-1902, and former section 1641(b)(2), of title 50,
appendix; and
(2) “person”, “rule”, “order”, “license”, “sanction”, “relief”, and “agency
action” have the meanings given them by section 551 of this title.
5 U.S.C. § 702—Right of Review
A person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant
statute, is entitled to judicial review thereof. An action in a court of the
United States seeking relief other than money damages and stating a claim
that an agency or an officer or employee thereof acted or failed to act in an
A official capacity or under color of legal authority shall not be dismissed nor
relief therein be denied on the ground that it is against the United States or
that the United States is an indispensable party. The United States may be
named as a defendant in any such action, and a judgment or decree may be
entered against the United States: Provided, That any mandatory or
injunctive decree shall specify the Federal officer or officers (by name or by
title), and their successors in office, personally responsible for compliance.
Nothing herein (1) affects other limitations on judicial review or the power or
duty of the court to dismiss any action or deny relief on any other appropriate
legal or equitable ground; or (2) confers authority to grant relief if any other
statute that grants consent to suit expressly or impliedly forbids the relief
which is sought.
5 U.S.C. § 703—Form and Venue of Proceeding
The form of proceeding for judicial review is the special statutory
review proceeding relevant to the subject matter in a court specified by
statute or, in the absence or inadequacy thereof, any applicable form of legal
action, including actions for declaratory judgments or writs of prohibitory or
mandatory injunction or habeas corpus, in a court of competent jurisdiction.
If no special statutory review proceeding is applicable, the action for judicial
review may be brought against the United States, the agency by its official
title, or the appropriate officer. Except to the extent that prior, adequate, and
exclusive opportunity for judicial review is provided by law, agency action is
subject to judicial review in civil or criminal proceedings for judicial
enforcement.
5 U.S.C. § 704—Actions Reviewable
Agency action made reviewable by statute and final agency action for
which there is no other adequate remedy in a court are subject to judicial
review. A preliminary, procedural, or intermediate agency action or ruling
not directly reviewable is subject to review on the review of the final agency
action. Except as otherwise expressly required by statute, agency action
otherwise final is final for the purposes of this section whether or not there
has been presented or determined an application for a declaratory order, for
any form of reconsideration, or, unless the agency otherwise requires by rule
and provides that the action meanwhile is inoperative, for an appeal to
superior agency authority.
B 5 U.S.C. § 705—Relief Pending Review
When an agency finds that justice so requires, it may postpone the
effective date of action taken by it, pending judicial review. On such
conditions as may be required and to the extent necessary to prevent
irreparable injury, the reviewing court, including the court to which a case
may be taken on appeal from or on application for certiorari or other writ to a
reviewing court, may issue all necessary and appropriate process to postpone
the effective date of an agency action or to preserve status or rights pending
conclusion of the review proceedings.
5 U.S.C. § 706—Scope of Review
To the extent necessary to decision and when presented, the reviewing court
shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms
of an agency action. The reviewing court shall-(1) compel agency action unlawfully withheld or unreasonably
delayed; and
(2) hold unlawful and set aside agency action, findings, and
conclusions found to be-(A) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law;
(B) contrary to constitutional right, power, privilege, or
immunity;
(C) in excess of statutory jurisdiction, authority, or limitations,
or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject
to sections 556 and 557 of this title or otherwise reviewed on the
record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are
subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole
record or those parts of it cited by a party, and due account shall be taken of
the rule of prejudicial error.
C II. NATIONAL ENVIRONMENTAL POLICY ACT
42 U.S.C. § 4332—Cooperation of Agencies; Reports; Availability
of Information; Recommendations; International and National
Coordination of Efforts
The Congress authorizes and directs that, to the fullest extent possible:
(1) the policies, regulations, and public laws of the United States shall be
interpreted and administered in accordance with the policies set forth in this
chapter, and (2) all agencies of the Federal Government shall-(A) utilize a systematic, interdisciplinary approach which will insure
the integrated use of the natural and social sciences and the
environmental design arts in planning and in decisionmaking which
may have an impact on man's environment;
(B) identify and develop methods and procedures, in consultation with
the Council on Environmental Quality established by subchapter II of
this chapter, which will insure that presently unquantified
environmental amenities and values may be given appropriate
consideration in decisionmaking along with economic and technical
considerations;
(C) include in every recommendation or report on proposals for
legislation and other major Federal actions significantly affecting the
quality of the human environment, a detailed statement by the
responsible official on-(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's
environment and the maintenance and enhancement of longterm productivity, and
(v) any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be
implemented.
Prior to making any detailed statement, the responsible Federal
official shall consult with and obtain the comments of any Federal
agency which has jurisdiction by law or special expertise with respect
to any environmental impact involved. Copies of such statement and
the comments and views of the appropriate Federal, State, and local
agencies, which are authorized to develop and enforce environmental
standards, shall be made available to the President, the Council on
D Environmental Quality and to the public as provided by section 552 of
Title 5, and shall accompany the proposal through the existing agency
review processes;
(D) Any detailed statement required under subparagraph (C) after
January 1, 1970, for any major Federal action funded under a program
of grants to States shall not be deemed to be legally insufficient solely
by reason of having been prepared by a State agency or official, if:
(i) the State agency or official has statewide jurisdiction and has
the responsibility for such action,
(ii) the responsible Federal official furnishes guidance and
participates in such preparation,
(iii) the responsible Federal official independently evaluates
such statement prior to its approval and adoption, and
(iv) after January 1, 1976, the responsible Federal official
provides early notification to, and solicits the views of, any other
State or any Federal land management entity of any action or
any alternative thereto which may have significant impacts
upon such State or affected Federal land management entity
and, if there is any disagreement on such impacts, prepares a
written assessment of such impacts and views for incorporation
into such detailed statement.
The procedures in this subparagraph shall not relieve the Federal
official of his responsibilities for the scope, objectivity, and content of
the entire statement or of any other responsibility under this chapter;
and further, this subparagraph does not affect the legal sufficiency of
statements prepared by State agencies with less than statewide
jurisdiction.
(E) study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available resources;
(F) recognize the worldwide and long-range character of
environmental problems and, where consistent with the foreign policy
of the United States, lend appropriate support to initiatives,
resolutions, and programs designed to maximize international
cooperation in anticipating and preventing a decline in the quality of
mankind's world environment;
(G) make available to States, counties, municipalities, institutions,
and individuals, advice and information useful in restoring,
maintaining, and enhancing the quality of the environment;
(H) initiate and utilize ecological information in the planning and
development of resource-oriented projects; and
E (I) assist the Council on Environmental Quality established by
subchapter II of this chapter.
F