Michigan couple file lawsuit to prevent BLM lease auction

The Department of Interior’s Bureau of Land Management (BLM) plans to hold a competitive oil and gas lease auction of approximately 27,000 acres in the Allegan State Game Area in Michigan on September 12, 2013. Plaintiffs who reside on 40-acres in Allegan County adjacent to the Game Area, created “a conservation easement on their property in order to protect groundwater springs, three spring-fed streams, the headwaters of Bear Creek (a tributary of the Kalamazoo River), a wetland, a significant vernal pool, 22 bird species designated by the Michigan Department of Natural Resources…, 70 other bird species, and state-designated threatened reptiles.” In their Complaint for Declaratory and Injunctive Relief (see attached Complaint), the Plaintiffs allege that the two Environmental Assessments (EA 634 and EA 1662) prepared by the BLM and the Findings of No Significant Impact “are based, in part, on inaccurate assumptions, serious misconceptions and erroneous information.” Among the issues raised are:
  • The EAs rest on the faulty assumption that oil and gas development in the Game Area will never occur on surface lands.
  • The EAs fail to analyze likely impacts from the forecast of up to 300 million gallons of water used in probable fracking operations.
  • The EAs fail to analyze where the water will come from and where the waste water will be disposed.
  • There is no discussion on any environmental effects of these withdrawals and disposals.
  • “Neither EA discusses the probable scenario of the need for using over 20 million gallons for each lateral leg of fracking production wells, which can result in cumulative water consumption of more than one billion gallons of water permanently withdrawn from the water cycle for each fracking production well.”
  • There is no discussion on effects on existing water wells used for residential and agricultural purposes.
  • The withdrawal assessment tool used does not consider the cumulative effects of high volume withdrawals.
  • The EAs were not made available to the public before finalization of the Findings of No Significant Impact.
The Plaintiffs further claim that the BLM violated the National Environmental Policy Act (NEPA) by authorizing the lease sales without preparing an Environmental Impact Statement (EIS).

The Center for Biological Diversity started its own legal effort to stop the leasing by filing a 60-day notice letter with the BLM, claiming that the BLM did not consider how fracking and drilling could harm endangered and threatened species in the Allegan State Game Area (see attached Notice). The Center for Biological Diversity was recently successful in a similar case in California. On March 31, 2013, in Center for Biological Diversity and Sierra Club v. The Bureau of Land Management and Ken Salazar, Secretary of the Department of the Interior, No. CV-11-06174 (N.D. Cal., December 8, 2011), the Court ruled that the BLM failed to conduct the “hard look” analysis required by NEPA by dismissing any development scenario involving hydraulic fracturing when used in combination with technologies such as horizontal drilling. The EA and the finding of no significant impact were found to be erroneous as a matter of law. See prior blog entitled “BLM Violated NEPA by Granting Leases without Evaluating Fracking Risks,” dated April 10, 2013.

Attached: (1) Complaint for Declaratory and Injunctive Relief and (2) Center for Biological Diversity’s Notice Letter to BLM

This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.