Thank you for your comment, Thomas Yelverton. The comment ...

Thank you for your comment, Thomas Yelverton.

The comment tracking number that has been assigned to your comment is OSTS2012D50287.

Comment Date: May 4, 2012 11:36:39AM OSTS 2012 Draft PEISComment ID: OSTS2012D50287

First Name: ThomasMiddle Initial: DLast Name: YelvertonOrganization: ExxonMobil Exploration CompanyAddress: 233 BenmarAddress 2: Address 3: City: HoustonState: TXZip: 77060Country: USAPrivacy Preference: Don't withhold name or address from public recordAttachment: EMEC BLM OSTS DPEIS RESPONSE 5 4 12 FINAL-2..pdf

Comment Submitted:

Submitting on behalf of James V. White, ExxonMobil Exploration Comapny

Attachment

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reanalyze the environmental impacts associated with amending ten land use plans in Colorado, Utah and Wyoming in order “to reassess the appropriate mix of allowable uses with respect to oil shale and tar sands leasing and potential development.”1 BLM’s Notice of Availability states that, while the 2012 Draft PEIS assesses various mitigation measures, “[n]o decision regarding the adoption of such measures is being made as part of this planning initiative; such measures may be applied, if appropriate, at the discretion of the decision-maker, at the time these resources are leased and/or developed.”2 This position is contrary to the preferred alternatives listed in the 2012 PEIS.

The U.S. oil shale industry needs consistency in federal policy and regulation to provide the confidence needed for industry to make long-term investments in technology and research demonstration projects. This important resource development must carefully balance other priorities with respect to the use of Federal lands, including environmental protection and the need for paced, sustainable development that is required to progress technology and infrastructure over a multiple-year horizon. While renewable or alternative energy supplies will make an important contribution to our energy mix, fossil fuels still supply the great majority of energy in the U.S. and will continue to do so for the foreseeable future. As Congress recognized in Section 369 of the EPAct, access to the oil shales of Colorado, Utah, and Wyoming is therefore critically important to sustain our country’s energy security.

ExxonMobil continues to support the BLM in its efforts to develop a commercial leasing program to make Federal lands available for commercial oil shale and tar sands leasing. We strongly urge BLM to select the “no action alternative” and leave the current allocation decisions from the 2008 ROD in place. We believe that access to oil shale resources as outlined in BLM’s 2008 PEIS and ROD could significantly increase domestic sources of energy supply in the years to come. The in-place oil shale resource for the Green River formation in the three-state area has been estimated at 1.5 to 1.8 trillion barrels. The size of the resource supports its strategic importance and the economic impact that its development would have. We believe that there would be significant economic benefits locally, statewide, and nationally as a result of oil shale development in the form of jobs and economic growth.

Of the Alternatives presented, Alternative 1 (No Change to 2008 ROD) is the most consistent with the EPAct and the only reasonable alternative at this stage of the NEPA process. “The lands available for lease under the 2008 land use plan amendment decisions would remain available for future leasing consideration under the No Action Alternative. These lands comprise the most geologically prospective oil shale and tar sands areas administered by the BLM . . . but excluding lands that are exempted by statute, regulation, or Executive Order.”3 ExxonMobil supports the BLM’s 2008 amendment of land use plans to guide future management of geologically prospective areas where oil shale and tar sands resources are present. We believe a commercial oil shale and tar sands leasing program is in the best interest of the nation with respect to meeting the country’s energy needs. Thus, ExxonMobil strongly favors Alternative 1, the No Action Alternative, which would leave the current allocation decisions from the 2008 ROD in place, and best meets the requirements of the EPAct.

1 77 Fed. Reg. 5833, 5834 (Feb. 6, 2012) 2 Id. at 5835 3 2012 Draft PEIS at ES-5

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There is no compelling reason to change BLM’s well researched and considered oil shale and tar sands leasing decisions made in 2008. The process took several years, was thorough and involved broad public participation from all stakeholders. We believe the 2008 BLM ruling provides appropriate acreage for potential commercial leasing, while preserving the adequate measures for environmental and socioeconomic protection. We strongly believe that viable economic development can only be sustained if performed in a safe, environmentally sound way. The “no action alternative” would support a long-term approach that favors resource access, and regulatory and fiscal stability with a level of certainty that supports the significant research investments required to develop technologies to unlock these vast oil and gas resources.

Contrary to BLM’s conclusion in its 2008 PEIS and ROD, and without any explanation for its change in position, the 2012 Draft PEIS’s Preferred Alternative (Alternative 2) would impose mandatory mitigation measures for greater sage grouse by excluding “core or priority sage grouse habitat” from development. As an initial matter, neither “core” nor “priority” sage grouse habitat has yet been defined by BLM, even though the Preferred Alternative purports to incorporate restrictions on development in these areas. As a result, interested parties cannot meaningfully comment on these restrictions at this time, because BLM has not defined the relevant terms.

Moreover, approval of this Alternative would still allow incorporation of mitigation measures identified as part of the ongoing efforts to increase the protections of sage grouse habitat, as BLM concedes additional NEPA analyses are required before any leases could be issued or developed. Thus, it is not the case here that BLM is ignoring its current policy on sage grouse management, rather BLM is presuming what such future guidance may entail and impermissibly imposing that guidance as mandatory mitigation at the programmatic stage. In fact, the total area actually developed even under Alternative 1 is certain to be smaller than outlined, precisely because regulatory and land management factors analyzed at the leasing and project approval phases have not yet been considered and will undoubtedly come into play. Indeed, as discussed further in the attached, BLM has recognized that the environmental impacts cannot be fully assessed at the programmatic level, but must be done at the leasing or project approval stage. Indeed, this would allow BLM to consider not only the resources that may be affected and whether any “core” or “priority” habitat are in the area, but also the actual technology being used and additional efforts by industry to reduce the impacts on sage grouse habitat.

Although ExxonMobil strongly supports Alternative 1 in the 2012 Draft PEIS, we note that Alternative 4 (moderate development alternative) may also be consistent with the EPAct, unlike Alternatives 2 and 3. Alternative 4 is similar to Alternative 1 except that it would exclude from oil shale and tar sands leasing the whole of the Adobe Town “Very Rare or Uncommon” area, as designated by the Wyoming Environment Quality Council on April 10, 2008, and 76,666 acres in existing Areas of Critical Environmental Concerns (ACEC) in the 2008 PEIS plus an additional ACEC acreages as a result of Colorado, Utah, and Wyoming planning efforts recently completed.4 This less restrictive Alternative (Alternative 4) was also found to be consistent with the BLM’s 2011 settlement agreement with the Colorado Environmental Coalition, et al.5 It

4 See 2012 Draft PEIS at ES-8 to ES-9 5 Id. at ES-9

DETAILED COMMENTS OF EXXONMOBIL EXPLORATION COMPANY ON THE DRAFT PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENT

FOR ALLOCATION OF OIL SHALE AND TAR SANDS RESOURCES ON LANDS ADMINISTERED BY THE BUREAU OF LAND MANAGEMENT IN

COLORADO, UTAH, AND WYOMING 77 Fed. Reg. 5833 (Feb. 6, 2012)

OUTLINE I. Background

A. Energy Access Perspective

II. BLM Has Not Adequately Explained its Change in Position from the 2008 ROD and its Decision to Issue a New PEIS. A. The 2012 Draft PEIS does not identify any new information to support exclusion

of undefined “core or priority sage grouse habitat” from any oil shale or tar sands development.

B. BLM does not explain its change of position to exclude all of Adobe Town, contrary to its decision in 2008.

C. BLM’s voluntary settlement does not justify its change in position.

III. The Preferred Alternative (Alternative 2) is Counter to the United States’ Energy Policy as Identified in the Energy Policy Act, Which Defines the Purpose and Need for the BLM Action Here. A. An RD&D-first component is inconsistent with the EPAct. B. The 2012 Draft PEIS is inconsistent with the EPAct and with FLPMA and BLM

policy. C. The EPAct defines the Purpose and Need for this action, and BLM should return

to the Purpose and Need statement in the 2008 PEIS and ROD.

IV. As BLM Found in the 2008 ROD, Decisions Regarding Sage Grouse Mitigation Should be Considered at Later Planning Stages.

V. Any Exclusion of Potential Oil and Gas Leasing on “To Be Defined” Sage Grouse Habitat may be viewed as Arbitrary and Capricious. A. Protection for the sage grouse should be deferred to the environmental reviews of

leasing or project-specific actions. B BLM cannot impose mandatory limitations based on future “guidance.” C. BLM has failed to take a “hard look” at the potential impacts of the alternatives in

the 2012 Draft PEIS. D. Basing a decision prior to defining the precise parameters of the agency action is

arbitrary and capricious.

VI. BLM Should Await Completion of its Ongoing Review of Sage Grouse Management on Public Lands.

VII. Other Technical Comments A. Oil Shale development and water usage B. Multi-Mineral Leasing

Comments of ExxonMobil Exploration Company Oil Shale and Tar Sands Draft PEIS

May 4, 2012 Page 2

I. Background

A. Energy Access Perspective

Increased access to U.S. energy supplies will strengthen energy security, create jobs, stimulate economic growth, and generate tremendous revenues to federal and local governments.

In order to increase U.S. energy supplies, expanded access is needed to both areas that are currently off-limits to the oil and gas industry and to areas with large unconventional oil and natural gas resources. Decisions and regulatory frameworks governing the development of these resources need to be efficient and transparent. They should also recognize current scientific, technological and economic realities of oil and natural gas exploration and production.

The oil and gas industry currently faces significant regulatory challenges that are limiting development of our national resources. The business and national energy security implications of ever-growing barriers and regulatory requirements are significant and add uncertainty, time, and expense to the leasing and permitting process at all levels, making it more difficult, expensive, time-consuming and even possible to secure leases and to translate them into actual drilling permits, new drilling activity, and eventual production.

U.S. energy policy should provide for responsible development of oil and gas resources to help meet the nation’s long term energy needs. Policies should provide for both conventional and unconventional oil and natural gas resources and must require that exploration and development be done in an environmentally and socially responsible manner. Recent studies project global energy demand will be about 30 percent higher in 2040 than in 2010, even with substantial gains in efficiency across all regions of the world. Meeting this demand will require all energy sources and must include development of new oil and natural gas supplies. One important resource that will help us meet this demand is oil shale.

ExxonMobil supports development and use of high-quality scientific and technical knowledge bases to inform science-based regulation, leasing, and permitting decision making. Industry and the federal government should also continue to conduct and support research in key safety, health, and environment related areas associated with exploration.

II. BLM Has Not Adequately Explained its Change in Position from the 2008 ROD and its Decision to Issue a New PEIS.

EPAct Section 369(d) required BLM to prepare a PEIS for a commercial leasing program for oil shale and tar sands resources, emphasizing “the most geologically prospective lands within each of the States of Colorado, Utah, and Wyoming.” Pub. L. No. 109-58, § 369(d)(1). Congress imposed stringent timelines to ensure that a leasing program would be in place by February 2008. Additional provisions in the EPAct evidences Congress’ intention to provide for diligent development of these resources. Id. § 369(d), (e), (f). BLM issued a Final PEIS in September 2008 and the Approved Resource Management Plan Amendments/Record of Decision (ROD) for Oil Shale and Tar Sands Resources to Address Land Use Allocations in


May 4, 2012 Page 3

Colorado, Utah, and Wyoming and Final Programmatic Environmental Impact Statement in November 2008. The 2008 ROD amended ten RMPs to open nearly two million acres of federal lands for potential oil shale and tar sands leasing.

In the 2008 ROD, BLM rejected those alternatives that would not make the “most geologically prospective lands . . . available for application for leasing.” 2008 ROD at 22 (oil shale), 35 (tar sands). As BLM recognized, certain alternatives excluded much of the most geologically prospective acreage and unreasonably fragmented the area that would be available for application, resulting in parcels that are unlikely to be explored, leased, or developed. Id. at 22, 35-36. BLM also recognized that the allocation decision was only a first step in the process to establish a commercial oil shale and tar sands program, and that prior to the leasing and development additional analyses under the National Environmental Policy Act (“NEPA”) would be required. Id. at 38. BLM concluded, “[i]t would be premature to eliminate areas prior to site-specific analysis based on factors that are not known now, but that would be known at the leasing or operation permitting stages, such as location, timing and type of oil shale technology, that may show that these resources could be adequately protected through mitigation.” Id. 22; see also id. at 36.

Yet, Alternative 2 of the Oil Shale and Tar Sands Resources draft Programmatic Environmental Impact Statement (“2012 Draft PEIS”), which BLM has preliminarily selected as its Preferred Alternative, would “exclude from commercial oil shale leasing” numerous categories of public lands “and/or their resource value that may warrant protection from potential oil shale leasing and development.” 2012 Draft PEIS at ES-6 (emphasis added). This alternative would, among other things, exclude “[c]ore or priority sage-grouse habitat, as defined by such guidance as the BLM or the DOI may issue.”7 Id. “As a result, the acreage made available for application for commercial lease under Alternative 2 (461,965 acres) would be less than a quarter of that available under Alternative 1.”8 Id. at 6-114. BLM provides no rationale and cites no authority to support such blanket exclusions at this stage of the planning process. The Preferred Alternative would provide significantly less than the 830,297 acres that would have been available for oil shale leasing under a similar alternative rejected in 2008.9 In now identifying Alternative 2 as the “Preferred Alternative” in the 2012 Draft PEIS, BLM has taken the opposite approach than it took in 2008 by excluding lands from allocation even before a full

7 This alternative would also exclude “[a]ll areas that the BLM has identified or may identify as a result of inventories conducted during this planning process, as lands having wilderness characteristics” and “[t]he whole of the Adobe Town ‘Very Rare or Uncommon’ area, as designated by the Wyoming Environmental Quality Council on April 10, 2008.” 2012 Draft PEIS at ES-6 (emphasis added). As noted further below, ExxonMobil questions the basis for these exclusions, including the procedural process by which BLM is purporting to exclude them from potential leasing. See, infra §II.B. and n.11. 8 The Preferred Alternative would make an additional estimated 91,045 acres available for application for commercial tar sands leasing. 9 This Alternative in the 2008 PEIS would have identified a total of 229,038 acres available for application for commercial tar sands leasing.


May 4, 2012 Page 4

environmental impact analysis can be completed.10 BLM has failed to adequately explain or support this change in position.

A. The 2012 Draft PEIS does not identify any new information to support exclusion of undefined “core or priority sage grouse habitat” from any oil shale or tar sands development.

As with the 2008 PEIS, the 2012 Draft PEIS “is limited to an allocation decision.” 2012 Draft PEIS at 1-5. BLM concedes further analysis will be required at the leasing and project stages “when more specific information is known about the specific technologies being proposed and associated environmental consequences in the locations being proposed.” Id. The 2012 Draft PEIS also recognizes that oil shale and tar sands development remains relatively new, and there is simply not sufficient information at this time to assess the environmental impacts. Id.; see also id. at 1-14, 1-20. Notwithstanding, BLM now proposes to exclude a significant portion of lands from any further consideration, contrary to its decision in 2008 and without adequate explanation. As the Supreme Court has found, “a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811 (2009). BLM provides no explanation for its change in position.

In 2008, BLM rejected alternatives that would unduly restrict the lands that may be available for oil shale and tar sands leasing.

Unlike Alternative C,11 which excludes lands based on existing management decisions for oil and gas development, Alternative B12 provides the decisionmaker with the discretion to balance the oil shale use and protection of resources on the public lands during subsequent site-specific NEPA analysis. This balanced approach is consistent with the Federal Land Policy and Management Act (FLPMA) principles of “multiple use,” and “sustained yield.” The requirement to perform future NEPA analyses and to comply with other environmental laws allows the decisionmaker to optimize the recovery of energy resources, to establish appropriate lease stipulations to mitigate anticipated impacts, or to fully protect a resource or resource value by choosing not to offer an area for lease at any particular time. Even if some technologies may not allow

10 Throughout its analysis of the alleged impacts of the alternatives analyzed, as it did in the 2008 PEIS, BLM recognized that “there is no environmental impact associated with amending land use plans to make lands available or not available for application for commercial leasing in the three-state study area, but there may be impacts on land values.” See, e.g., 2012 Draft PEIS at 6-68 (discussion of Alternative 2). “In general, potential impacts of future commercial development on specific resources located within the 461,965 acres cannot be quantified at this time, because key information about the location of projects, the technologies employed, the project size or production level, and development time lines are unknown.” Id. at 6-68 to 6-69. 11 Alternative C was the conservation alternative in the 2008 PEIS and ROD and would have excluded lands that are identified as requiring special management or resource protection in existing land use plans (which included, among other things, sage grouse leks and nesting habitat). 2008 PEIS at ES-5 to ES-6. 12 Alternative B is the alternative that formed the basis of the 2008 RMP amendments and ROD.


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mining of some tracts to proceed without unacceptable impacts to other resource values, Alternative B would allow the agency the opportunity to choose to offer leases when a technology is proposed that can be used compatibly with the resource values in question. This is consistent with the comments that supported a viable and sustainable commercial oil shale leasing program, while ensuring that any impacts to sensitive resources or resource values are mitigated to any commercial development. It is also consistent with the planning decisions for other mineral resources for these parcels which authorize leasing subject to restrictive conditions, rather than preclude leasing altogether.

2008 PEIS at 16-17. Alternative 2, on the other hand, would amend the RMPs to designate less than the 830,000 acres opened under Alternative C in the 2008 PEIS as available for future commercial oil shale leasing, estimating only 461,965 acres would be available for oil shale leasing. BLM provides no explanation for abandoning this determination in the 2012 Draft PEIS.

BLM contends it “decided to take a fresh look at land use allocations made in the 2008 ROD,” because of new information not available in 2008. 2012 Draft PEIS at 1-5, 2-7. BLM purported such new information to be “nationwide and state-specific guidance recommending the consideration of certain management practices to address the appropriate management of sage-grouse habitat in the context of land use actions.” Id. at 2-21 (referencing a text box in Section 4.1.1 of the 2012 Draft PEIS). However, the information provided in the 2012 Draft PEIS concerning alleged impacts of oil shale leasing on greater sage grouse is taken practically verbatim from the same discussion of the impacts considered in 2008. Id. at 4-124 to 4-126. In fact, the only “new” information identified was that “BLM is in the process of updating its guidance regarding protection of sage-grouse habitat,” and that BLM is working with Utah to refine the delineation of preliminary priority sage grouse habitats. Id. at 4-126. BLM further states that “[i]t is anticipated that protection measures will be essentially as described.” Id. But again, the mitigation measures identified in the 2012 Draft PEIS are the same as those identified in the 2008 PEIS, and neither contains an outright prohibition on development in undefined “core or priority” sage grouse habitat. Id. See also 2012 Draft PEIS, App. F, at F-19.13 The fact that BLM may issue at some point in the future new sage grouse management policies does not justify closing off these areas from development entirely at this time, particularly when those policies must be adhered to in any subsequent leasing or project approval action.14 Indeed, the 2012 Draft PEIS states that “[c]urrent BLM guidance on similar actions (e.g., fluid mineral resources) requires that the least restrictive stipulation that effectively accomplishes the resource

13 Without any support, therefore, BLM then states as possible mitigation “[a]void leasing and/or development in sage-grouse habitats.” 2012 Draft PEIS at 4-133. BLM, however, does not explain what “sage-grouse habitats” are being referenced here, or how this proposed mitigation differs from the current stipulations with respect to avoiding disturbances to leks or winter habitats. 14 As BLM recognizes, the proposed amendments to the RMPs would themselves have “no effect” on species. See 2012 Draft PEIS at 4-131 (“The conservation measures developed in initial consultation with the USFWS, then, will not necessarily be applied, unless warranted by the results of the consultation that will take place at the time the BLM prepares to issue leases.”).


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objectives or resource uses for a given alternative should be used while remaining in compliance with the ESA.” 2012 Draft PEIS at 4-131.

B. BLM does not explain its change of position to exclude all of Adobe Town, contrary to its decision in 2008.

Alternative 2 would also exclude “[t]he whole of the Adobe Town ‘Very Rare or Uncommon’ area, as designated by the Wyoming Environmental Quality Council on April 10, 2008.” 2012 Draft PEIS at ES-6. The Alternatives considered in the 2008 PEIS included the designated Wilderness Study Areas within Adobe Town, but the “remaining fringe area was not.” 2008 ROD at 41.15 In 2008, BLM further stated:

During the subsequent NEPA analysis, if an oil shale application is received for a parcel in the fringe area around the Abode Town WSA or the Monument Valley Management Area, when specific technical and environmental information is available for analysis at that time, any potential conflicts with the Wyoming Environmental Quality Council’s designation can be addressed. The appropriate BLM Field Office will consider all available information and a range of alternative actions to mitigate or eliminate impacts to resource values present. This is consistent with the intent of the “Very Rare or Uncommon” designation to provide a higher level of scrutiny when it comes to non-coal mine permits.

Id. at 41-42. The 2012 Draft PEIS notes that “[d]uring the process of developing the Rawlins RMP, the BLM chose not to carry the analysis of wilderness characteristics into the Proposed RMP/Final EIS because valid existing lease rights prohibit management actions to protect the identified wilderness characteristics.” 2012 Draft PEIS at 3-34. BLM, however, provides no explanation for its decision now to exclude the broader area from potential leasing or of its assessment that the “whole” of Adobe Town should now be restricted in use, merely referencing Wyoming Environmental Quality Council’s designation of the area. Id.

C. BLM’s voluntary settlement does not justify its change in position.

In support of BLM’s change in position from the 2008 PEIS and ROD with respect to closing significant new areas from even the potential for leasing, BLM cannot rely on a settlement agreement with Colorado Environmental Coalition, et al. (“2011 Settlement”), to determine a purpose and need and to identify alternatives that are contrary to the EPAct.16 15 The description of the Wilderness Study Areas within Adobe Town appear somewhat inconsistent and should be clarified. Compare 2008 ROD at 41 with 2012 Draft PEIS at 3-34. 16 In 2009, a coalition of environmental groups filed a lawsuit challenging the 2008 PEIS and ROD. Colorado Envtl. Coalition v. Salazar, No. 09-cv-0085 (D. Colo. filed Jan. 16. 2009). The parties entered into a settlement agreement in February of 2011, in which, citing to no authority, BLM agreed to analyze the environmental effects of an alternative or alternatives in a NEPA analysis that would exclude all of certain identified areas, including “core or priority sage grouse habitat, as defined by such guidance as Defendants may issue,” from commercial oil shale or tar sands leasing. At the time of the settlement, Secretary of the Interior Ken Salazar nonetheless recognized the need to encourage further exploration of oil shale and tar sands resources: “For more than a century, and through many busts, we in the West have been trying to unlock oil shale resources to help power our country. … If we are to


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Although BLM agreed as part of that settlement to consider alternatives that would exclude oil shale and tar sands leasing from various categories of lands, the plaintiffs conceded the settlement could not “prejudice the outcome of the RMP review process,” and did not irretrievably commit resources prior to the environmental review being conducted. Opp’n to Mot. to Reopen, Colorado Envtl. Coalition, No. 09-cv-0085, at 37 (citations omitted) [Docket No. 68]; see also Metcalf v. Daley, 214 F.3d 1135, 1142-45 (9th Cir. 2000) (government officials predetermined and prejudiced NEPA outcome when, prior to NEPA compliance, the officials signed a contract with an Indian tribe that required officials to support and help implement tribe’s proposal to resume whaling). As explained further below, infra § III.C., this settlement agreement conflicts with NEPA by mandating the analysis of certain alternatives, and requiring BLM to define the “Purpose and Need” so as to encompass the mandated alternatives. NEPA, on the other hand, requires an agency to first define the Purpose and Need for an action, and then develop a reasonable range of alternatives that meet the Purpose and Need. The 2011 Settlement flips NEPA’s requirements on its head, and preordains the outcome. Moreover, BLM’s implementation of a voluntary settlement agreement cannot override statutory requirements and cannot replace Congress’ clear policy decisions. See 43 C.F.R. § 1610.4-7.

III. The Preferred Alternative (Alternative 2) is Counter to the United States’ Energy Policy as Identified in the Energy Policy Act, Which Defines the Purpose and Need for the BLM Action Here.

EPAct Section 369 highlights the critical role of energy supplies for the United States and expressly “declares that . . . oil shale [and] tar sands . . . are strategically important domestic resources that should be developed to reduce the growing dependence of the United States on politically and economically unstable sources of foreign oil imports.” Pub. L. No. 109-58, § 369(b). While recognizing that such development should be conducted in an environmentally sound manner, Congress found that “development of those strategic unconventional fuels should occur, with an emphasis on sustainability, to benefit the United States while taking into account affected States and communities.” Id.; see also 43 U.S.C. § 1701(a)(12) (noting policy of United States to manage public lands “in a manner which recognizes the Nation’s need for domestic sources of minerals …”); 30 U.S.C. § 21a. Alternative 2, however, would “exclude from commercial oil shale leasing” numerous categories of public lands “and/or their resource value that may warrant protection from potential oil shale leasing and development.” 2012 Draft PEIS at ES-6 (emphasis added). This alternative would, among other things, exclude “[c]ore or priority sage-grouse habitat, as defined by such guidance as the BLM or the DOI may issue.” Id. Although these core or priority habitat are not yet defined, BLM estimates that this Alternative would allow only 461,965 acres for oil shale resources to be “made available for application for

succeed this time, we must continue to encourage RD&D, determine whether the technologies would be viable on a commercial scale, and find a way to develop the resources in a way that protects water supplies in the arid West. With commercial oil shale technologies still years away, now is the time to ensure that our rules and plans reflect the latest information and will deliver a fair return to the American taxpayer.” DOI Press Release, Salazar: Technology, Water Supplies, and Fair Return Must Guide Nation’s Oil Shale Program (Feb. 15, 2011), http://www.blm.gov/wo/st/en/info/newsroom/2011/february/NR_02_15_2011.html. The 2012 Draft PEIS does not explain how Alternative 2 can meet these goals.


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commercial lease,” including only 6,612 acres of the 30,720 acres in existing RD&D leases.17 Id. at 2-27. Exclusion of these areas at the programmatic stage of the NEPA analysis is unwarranted and counter to the EPAct.

A. An RD&D-first component is inconsistent with the EPAct.

The 2012 Draft PEIS Preferred Alternative for oil shale (Alternative 2.b.), which makes significantly less acreage available for potential oil shale leasing than what BLM found in 2008 was necessary to make leasing feasible, appears to be in direct conflict with the goals of the EPAct. All policy and regulatory decisions made by the BLM with regard to development of oil shale on federal lands must comply with EPAct Section 369, which provides for a competitive commercial leasing program that is separate and distinct from the RD&D program.18 Under Preferred Alternative 2.b. for oil shale, it seems that the BLM decision to issue a commercial lease can only occur once a lessee satisfies the conditions of its RD&D lease. BLM’s new “contingency requirement” appears inconsistent with the EPAct. Moreover, in a separate settlement agreement, BLM agreed to issue a notice of proposed rulemaking in which it will propose amendments to its oil shale regulations19 to address the royalty rate and environmental protection requirements applicable to oil shale commercial leasing. See Attachment to Joint Motion for Order to Administratively Close the Case, Colorado Envtl. Coalition v. Salazar, No. 09-cv-0091 (D. Colo. filed Feb. 15. 2011) [Docket No. 80-1]. Under the settlement agreement, the notice of proposed rulemaking is due by May 15, 2012. To the extent BLM determines that oil shale development should be done in two phases -- RD&D and then commercial development -- BLM can address such requirements in its proposed rule and should not select Alternative 2.b. as beyond the scope of this action, which is merely intended to allocate lands potentially available for oil shale and tar sands leasing. For these same reasons, Alternatives 3 and 4.b. must be rejected.

17 This alternative would also exclude “[a]ll areas that the BLM has identified or may identify as a result of inventories conducted during this planning process, as lands having wilderness characteristics.” 2012 Draft PEIS at ES-6 (emphasis added). BLM cannot designate areas with wilderness characteristics, without complying with the requirements under the Federal Land Policy and Management Act (“FLPMA”) and its own regulations for modifying RMPs. 43 U.S.C. §§ 1711(a), 1712. As BLM has recognized, the inventory does not “of itself change or prevent change of the management or use of the lands.” BLM California, Other BLM Lands with Wilderness Characteristics, http://www.blm.gov/ca/st/en/prog/wilderness/other_blm_lands_with.html (last updated Sept. 12, 2011). Exclusion of areas from oil shale leasing that the BLM has identified or may identify as a result of inventories conducted during this planning process, as lands having wilderness characteristics combined with the unclear definition of what constitutes “core or priority sage-grouse habitat” make it virtually impossible for industry to either identify the excluded acreage or understand any associated restrictions. 18 With respect to RD&D leasing and the information developed therefrom, ExxonMobil also has concerns regarding the use of proprietary information obtained from such leasing. While we support appropriate environmental reviews and permitting processes, we feel that the current NEPA analysis presents a challenge for BLM and companies that invest a significant amount of dollars and resources to develop proprietary technologies. The review process must keep proprietary information confidential while providing the government agencies with all the necessary information for thorough environmental analysis. 19 The challenged regulations were published at 73 Fed. Reg. 69,414 (Nov. 18, 2008).


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B. The 2012 Draft PEIS is inconsistent with the EPAct and with FLPMA and BLM policy.

Even if an RD&D first component within an alternative is appropriate to consider, none of the iterations of Alternative 2 is consistent with the EPAct. As noted above, in the 2008 ROD, BLM rejected those alternatives that would not be consistent with EPAct’s mandate. BLM recognized that certain alternatives would “unreasonably fragment[] the area that would be available for application, resulting in parcels that are unlikely to be explored, leased, or developed.” 2008 ROD at 22, 35-36. BLM found that “[t]his could be an impediment to sound and rational development of the resource and can reduce the economic return to the public.” Id. at 22, 36. Resources are likely to be by-passed because of the exclusions, limiting the benefits to the nation from exploitation of a domestic unconventional energy source. Id. at 22, 36. “Selection of Alternative C precipitously limits or restricts the decisionmaker’s discretion to balance [oil shale or] tar sands use and the protection of resources or resource values, in accordance with FLPMA’s principal of ‘multiple use.’” Id. at 22, 36; see also id. (“Alternative C does not give the decisionmaker the necessary discretion to optimize the recovery of energy resources, establish appropriate lease stipulations to mitigate anticipated impacts, or to fully protect a resource or resource value by choosing not to offer an area for lease.”).

Notwithstanding BLM’s conclusions in 2008 that the fragmented nature of lands under Alternative C would preclude development of the resources, Alternative 2 of the 2012 Draft PEIS would impose even more significant restrictions than the Alternative C rejected in the 2008 ROD. Indeed, all of the versions of Alternatives 2 and 3 would make significantly less acreage available for potential oil shale and tar sands leasing than would have been made potentially available under Alternative C in the 2008 PEIS and ROD. Yet, the 2012 Draft PEIS fails to adequately explain how Alternative 2 can fulfill the requirements of the EPAct, given BLM’s prior determination that this approach would preclude development. BLM provides no reasoned explanation for the dramatic change in its assessment of appropriate areas for potential leasing.20

As reflected in Figures 2.3.3-1 and 2.3.3-4 (Colorado), 2.3.3-2 and 2.3.3-5 (Utah), and 2.3.3-3 and 2.3.3-6 (Wyoming) of the 2012 Draft PEIS, areas that would be excluded from development under Alternative 2 render the lands available for oil shale and tar sands leasing to be limited and widely scattered, despite BLM’s finding of these to be important areas of oil shale resources in the United States. Unduly restricting areas within this important resource would severely limit resource access, because the fragmented areas reduce operational efficiency and increase infrastructure impacts. It is BLM’s policy to optimize the potential for oil and gas development to secure the maximum return to the public in revenue and energy production, prevent avoidable waste of the public’s resources, honor the rights of lessees, and mitigate environmental impacts. See 2012 Draft PEIS at 2-13. Alternative 2 fails to comply with this policy. It would prematurely exclude areas, limiting the availability of continuous acreage to

20 Concerns regarding the limitations to development under Alternative C in the 2008 PEIS were raised in the public comments during the scoping process of the current PEIS. 2012 Draft PEIS, App. J. at J-39. BLM’s response was simply that such comments were “not relevant to the scope of the current analysis.” Id.


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support a commercial operation that would justify the investments necessary to engage in such operations.

Further, excluding lands in the manner proposed under Alternative 2 is inconsistent with the multiple use management mandate of FLPMA, as it may preclude any significant development of oil shale resources. The 2012 Draft PEIS goes against the mandate in the EPAct to promote the responsible development of this important energy resource. The primary difference between the new 2012 Draft PEIS and the 2008 PEIS is that the current document contains several alternatives that would dramatically reduce the acreage of BLM administered land where applications for oil shale and tar sands leases could be submitted. Yet, BLM has chosen Alternative 2.b. as its Preferred Alternative for oil shale, even though it previously found this approach would severely restrict the potential for oil shale development.

This approach is counter to the EPAct and this nation’s energy policy, which governs BLM’s decisionmaking process. Indeed, the EPAct recognized the need for large, contiguous areas, expanding the size of potential oil shale leases under the Minerals Leasing Act. Pub. L. No. 109-58, § 369(i). Alternative 2 also unduly limits the land available for land exchanges, again contrary to the EPAct, which requires consideration of land use exchanges to consolidate land ownership and mineral leases into management areas “[t]o facilitate the recovery of oil shale and tar sands.” Id. § 369(n). On public lands within the Green River, Piceance Creek, Uintah, and Washakie geologic basins, BLM is to give priority to implementing land exchanges within those basins to determine the optimum size of lands to be consolidated. Id. The 2012 Draft PEIS does not even consider possible locations for such land use exchanges. 2012 Draft PEIS at 1-12. Thus, Alternative 2 places restrictions on such exchanges and size of leases that was not intended by the EPAct, and unnecessarily constrains potential oil shale development opportunities before the full impacts of any potential development can be explored.

Further, given BLM’s policy to promote use of resources to the benefit of the public, BLM has not adequately analyzed the alternatives in the 2012 Draft PEIS. It wholly fails to explain how Alternative 2 may affect the ability to feasibly develop oil shale and tar sands resources, including development of valid existing rights on private lands. It also fails to assess state initiatives regarding the sage grouse, noting only that states are taking action. 2012 Draft PEIS at 3-197. Thus, it is unclear whether Alternative 2 appropriately applies a balanced approach, as it appears to be designed solely to significantly limit the ability to explore and develop any oil shale or tar sands resources.

C. The EPAct defines the Purpose and Need for this action, and BLM should return to the Purpose and Need statement in the 2008 PEIS and ROD.

The Purpose and Need for BLM’s action here is to implement the requirements of Section 369 of the EPAct. Pursuant to NEPA, BLM must properly identify and reject alternatives based on the purpose and need of the proposed action as outlined in the EPAct, as it did in the 2008 PEIS. See Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1181 (9th Cir. 2000) (finding agency “had no obligation to consider an alternative unlikely to be implemented and inconsistent with basic policy objectives for managing the area”) (citations


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omitted); Headwaters, Inc. v. BLM, Medford Dist., 914 F.2d 1174, 1180 (9th Cir. 1990) (“Nor must an agency consider alternatives which are infeasible, ineffective, or inconsistent with the basic policy objectives for the management of the area.”) (citation omitted).

In this case, Congress mandated that the purpose and need include the need to develop domestic oil shale and tar sands resources. Citizens’ Comm. To Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1030 (10th Cir. 2002); see also Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991) (“Perhaps more importantly, an agency should always consider the views of Congress, expressed, to the extent that the agency can determine them, in the agency’s statutory authorization to act, as well as in other congressional directives.”) (citations omitted). In the 2008 PEIS, BLM identified the purpose and need to “describe the most geologically prospective areas managed by the BLM . . . and to decide which portions of those areas will be open to application for commercial leasing, exploration, and development.” 2008 PEIS at 1-2. The 2008 PEIS was drafted “to meet the requirements of the Energy Policy Act of 2005.” Id. at 1-3. This stands in stark contrast with the purpose and need in the 2012 Draft PEIS, which BLM structures to address the commitments it made in its voluntary settlement agreement.

BLM is not required to craft a statement so broad that it requires consideration of alternatives that are inconsistent with the overarching purpose of the proposal. Northwest Ecosystem Alliance v. Rey, 380 F. Supp. 2d 1175, 1186 (W.D. Wash. 2005) (citation omitted). Moreover, NEPA is a procedural statute, and does not require an agency to choose environmental concerns over other policy choices. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); Biodiversity Conservation Alliance v. BLM, 404 F. Supp. 2d 212, 216 (D.D.C. 2005). Here, Congress made the policy decision that “development of those strategic unconventional fuels should occur, with an emphasis on sustainability, to benefit the United States while taking into account affected States and communities.”

BLM cannot rely on the 2011 Settlement to avoid its statutory directives. Paragraph 2(a) and (b) of the 2011 Settlement required that BLM consider “[a]n alternative or alternatives removing all of the lands described . . . from applications for oil shale or tar sands leasing” and “[a]t least one alternative that removes some, but not all, of the lands described . . . from applications for oil shale or tar sands leasing.”21 Attachment to Joint Motion for Order to Administratively Close the Case, Colorado Envtl. Coalition, No. 09-cv-0085, at 3-4 [Docket No. 63-1]. It further provided that “[t]he purpose and need statement in the NEPA analysis supporting the RMP amendment process or processes shall be defined in such a manner that it can be met by any and all of the alternatives described in Paragraph 2(a) and 2(b) above.” Id. at 4 (emphasis added). In the 2012 Draft PEIS, BLM merely states it seeks to “reassess” the allocations from the 2008 ROD. 2012 Draft PEIS at 1-4.

The “purpose statement is an obvious place for the court to start when analyzing the adequacy of an environmental impact statement or an environmental assessment. It is from this statement that the agency, public, and, ultimately, the court may begin to judge whether the 21 The lands described are those that are listed under Alternative 2.


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agency has fully analyzed the possible impacts of the action and reviewed a reasonable range of alternatives to that action.” Soda Mt. Wilderness Council v. Norton, 424 F. Supp. 2d 1241, 1261 (E.D. Cal. 2006). “In sum, NEPA forces agencies to explain what it is they seek to do, why they seek to do it, what the environmental impacts may be of their proposed action, and what alternatives might be available to the agency that might lessen environmental impact. Without a clear ‘what and why’ statement, the public is kept in the dark.” Id. at 1262. Thus, when an agency evaluates alternatives to a proposed action in an impact statement, it “must answer three questions in order. First, what is the purpose of the proposed project? Second, given that purpose, what are the reasonable alternatives to the project? And third, to what extent should the agency explore each particular alternative?” Habitat Educ. Ctr., Inc. v. U.S. Forest Serv., 593 F. Supp. 2d 1019, 1026-27 (E.D. Wis. 2009), aff’d 609 F.3d 897 (7th Cir. 2010) (citing Simmons v. U.S. Army Corps of Eng’rs, 120 F.3d 664, 668 (7th Cir.1997)). In other words, the purpose of the action is to determine the “reasonable range of alternatives” to be considered. However, the 2011 Settlement required BLM to identify the alternatives and then define the purpose and need. This turns NEPA on its head and must be rejected.22

IV. As BLM Found in the 2008 ROD, Decisions Regarding Sage Grouse Mitigation Should be Considered at Later Planning Stages.

Alternative 2 would eliminate significant lands from allocation even for potential consideration of leasing. It is premature to make this type of decision within the context of a PEIS, particularly on the bases of protection of a resource that has not yet even been defined. Exclusion of environmentally sensitive lands that may be impacted is a decision that is more appropriate to review and determine when a leasing or project-specific analysis is conducted. BLM should make more lands available at the PEIS stage and allow site-specific analyses to assess the local resources and appropriate measures.

Amendment of the land use plans, along with the supporting PEIS, is the first step in a commercial oil shale and tar sands leasing program that includes federally mandated further reviews. Separate NEPA analyses, including compliance with the Endangered Species Act (“ESA”), would be required before leasing or site development activities could occur. As such, any commercial oil shale lease sales will undergo multiple site-specific environmental analyses and project-specific NEPA reviews prior to approval of any proposed projects on the oil shale

22 We are not aware that BLM provided notice or sought public comment on the 2011 Settlement. Rather, the settlement was submitted to the Court only as an exhibit to a “Joint Motion for Order to Administratively Close the Case,” Colorado Envtl. Coalition, No. 09-cv-0085 [Docket No. 63]. Although Intervenors in the case identified potential NEPA violations with certain terms within the settlement agreement, BLM nonetheless chose to enter the settlement agreement. This flawed NEPA process is evidence that the federal government should invite more open discussion and seek public input to settlements that purport to address environmental protection concerns, including obtaining and considering the comments of industry who face unreasonable access barriers or permit restrictions as a result of the terms or conditions within the settlement agreement. In a very real sense, energy policy in the U.S. is increasingly driven by NGOs and not by Congress. EPA, DOI, NOAA and other federal agencies have settled environmental NGO lawsuits that have imposed new arbitrary barriers to oil and gas access under regulations pursuant to the Clean Air Act, ESA, Clean Water Act, Marine Mammal Protection Act, NEPA, Clean Water Act and other laws.


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leases. These subsequent environmental analyses for oil shale/tar sands leases will be the focal point of resolution for site-specific concerns (e.g., groundwater protection, historic and cultural resources, and threatened and endangered species). These analyses will allow for informed evaluation of the environmental impacts of proposed technologies and development plans at a time when those technologies are more mature and better understood.

Leveraging the existing process is the most effective way to continuously evaluate land use. Conducting periodic revisions of the PEIS before specific operations are proposed and projecting speculative impacts from undetermined methods is not an effective or efficient way to proceed. The 2102 Draft PEIS fails to properly account for and utilize these subsequent NEPA reviews because they prematurely remove large areas of potential oil shale and oil sands leasing without allowing proper site-specific environmental reviews.

Finally, the environmental reviews should take place after the access to the lands is granted to avoid large pre-investments required to gather the necessary environmental information. We must remember that assignment within a phased permit approach precludes operations until all permits and requirements are in place. Therefore, granting such a lease will not, in itself, allow or cause environmental impacts because no activities are authorized by the actual lease terms. Project development activities will continue to be subject to a project-specific NEPA analysis, which will require project development plans, as well as the required mitigation activities to meet local, state, federal regulatory requirements, and conformity of the lease to the applicable RMP.

Indeed, this is the approach BLM took in the 2008 ROD. BLM found that the initial RMP amendments to address oil shale and tar sands resource development “serves as the first step in the process to establish a commercial oil shale and tar sands program that meets the intent of Congress while taking advantage of information and practices to minimize future impacts and ensure that states, local communities, and the public have the opportunity to be involved at future NEPA steps in the oil shale and tar sands program.” 2008 ROD at 38. “The allocation decision essentially removes an administrative barrier present today that prevents the BLM from accepting and considering applications to lease oil shale or tar sands without first amending the respective land use plan. Prior to the leasing and development phases additional NEPA analysis will be required.” Id. BLM correctly concluded at the time, “[i]t would be premature to eliminate areas prior to site-specific analysis based on factors that are not known now, but that would be known at the leasing or operation permitting stages, such as location, timing and type of tar sands technology, that may show that these resources could be adequately protected through mitigation.” Id. at 36.

In particular, in 2008, BLM recognized that subsequent project or site specific NEPA documents will be prepared to evaluate specific occurrences of sage grouse. 2008 PEIS, Vol. 4, at 509, 5485-5486 (Sept. 2008). Mitigation measures would also include recommendations from BLM’s national sage grouse habitat conservation strategy, as well as those contained in statewide and regional sage grouse conservation strategies that have been prepared by state agencies. Id. BLM recognized that site-specific review can more adequately map sage grouse habitat in relation to potential oil shale and tar sands development. Id. at 515. As BLM conceded,


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identifying lands for potential leasing “does not imply a commitment to leasing that is too large to be sustainable or that would threaten the existence of species.” Id. at 780. The agency retains discretion to decide which particular tracts to offer for leasing and the stipulations on such leases. Id. In any event, BLM must comply with the ESA in approving specific leases or projects and in the development of those areas. BLM correctly determined in 2008 that the initial allocation decision is not, however, the appropriate time to limit its ability to do so.

The decision on viability and compatibility of oil shale commercial development with other alternative uses or preservation priorities on the land should be based on proposed techniques and specific plans of operations. Exclusion of lands without clearly understanding the technologies to be employed to develop the oil shale resource is therefore premature. Experience with onshore conventional and unconventional oil and gas operations indicates that it is possible to recover the mineral potential without adversely impacting the protected surface uses on lands that currently have stipulations for no surface disturbance or seasonal limitations. We can achieve the multi-use purpose intended for these lands through careful planning, management, mitigation and reclamation.

There is no information BLM can point to support its 180-degree change of position. Subsequent project and site-specific NEPA analyses will still be required. Identification of sensitive resources, including sage grouse habitats, and appropriate mitigation measures, including those identified in BLM and state sage grouse conservation strategies, still must occur. BLM still retains the discretion to determine which specific tracts to offer for leasing and what stipulations will be imposed. BLM still must comply with the ESA, as well as all applicable laws. The only new information is BLM’s decision to settle litigation challenging its 2008 ROD, but that alone is inadequate justification for BLM’s abandoning its prior position.

V. Any Exclusion of Potential Oil and Gas Leasing on “To Be Defined” Sage Grouse Habitat may be viewed as Arbitrary and Capricious.

A. Protection for the sage grouse should be deferred to the environmental reviews of leasing or project-specific actions.

In any event, existing BLM and state recommendations concerning management of sage grouse habitat would not prohibit all development. Moreover, even without having defined these terms, it is clear Alternative 2 could eliminate any production of oil shale or tar sands resources due to the fragmented nature of the lands that BLM may open under this alternative. As BLM correctly concluded in its 2008 PEIS and ROD, such fragmentation would undermine the purposes of the EPAct. Again, BLM has not provided an adequate justification for its change of position excluding “core or priority sage-grouse habitat” from potential leasing. Moreover, it is important to recognize that the 2012 Draft PEIS is only intended to identify lands that may be “available for application for leasing.” 2012 Draft PEIS at ES-1 (emphasis added). As BLM recognized in 2008, the protections for the sage grouse, including identification of any areas where development may appropriately be limited, should be deferred to the environmental reviews of leasing or project-specific actions, by which time BLM can have defined the “core”


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and “priority” habitat areas to be protected. Consequently, BLM should choose Alternative 1 (No Action) in the Final PEIS, affirming its 2008 decision.

BLM is currently undergoing an assessment of its sage grouse conservation policies in the context of a separate NEPA process. Until that process is complete, each of the relevant States here has its own sage grouse conservation program that includes mitigation measures aimed at protecting the sage grouse, which can be used in the interim by BLM when considering leasing applications and specific projects. These measures are more appropriate than an outright prohibition on development of oil shale and tar sands resources in certain as-of-yet undefined sage grouse habitats. BLM should abandon its piecemeal approach, and determine the appropriate sage grouse conservation measures for all ground disturbing activities in the context of the on-going Sage Grouse Conservation NEPA process, the purpose of which is to develop BLM’s sage grouse conservation strategy.

B. BLM cannot impose mandatory limitations based on future “guidance.”

FLPMA requires public lands to be managed “in accordance with the land use plans developed.” 43 U.S.C. § 1732(a). Alternative 2 would exclude from the potential for leasing “core or priority sage-grouse habitat, as defined by such guidance as the BLM or the DOI may issue.” Subsequent BLM action, then, would be bound by some future guidance, which is subject to revision and change. This again, is a reversal from its position in the 2008 PEIS and ROD where the only lands excluded were those based on “existing laws and regulations, executive orders and other administrative designations or withdrawal.” 2008 ROD at 17. Even assuming BLM could explain its change from the 2008 ROD and that Alternative 2 meets the purpose and need identified in the EPAct, BLM cannot adopt in a ROD an alternative that relies on some future guidance to define its terms.

First, reliance on such guidance violates the public participation requirements of NEPA and FLPMA. NEPA requires an analysis of alternatives that “sharply” defines the issues and provides a clear basis for choice among options by the decisionmaker and the public. 40 C.F.R. § 1502.14. The EIS must also provide the scientific and analytic basis for the comparisons under Section 1502.14. Id. § 1502.16. “Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” Id. § 1500.1(b). FLPMA also requires an opportunity for public involvement in the formulation of RMPs. 43 U.S.C. § 1712(a), (f); see also 43 C.F.R. § 1610.2 (“The public shall be provided opportunities to meaningfully participate in and comment on the preparation of plans, amendments and related guidance and be given early notice of planning activities.”) (emphasis added).

BLM failed to meet these obligations. The 2012 Draft PEIS does not clearly define Alternative 2, BLM’s Preferred Alternative, because it incorporates as one of its principal elements some future guidance. Although the 2012 Draft PEIS includes maps and estimates of acreage of lands to be made available for allocation, BLM has made clear that its guidance is as yet to be developed and, moreover, applicable guidance can include any guidance developed by


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the Department of the Interior.23 The public, therefore, does not have an adequate opportunity to comment, because the lands to be excluded are not anywhere clearly defined. See Grand Canyon Air Tour Coal. v. FAA, 154 F.3d 455, 468 (D.C. Cir. 1998) (“An agency is required to provide a meaningful opportunity for comments, which means that the agency's mind must be open to considering them.”) (citing McLouth Steel Products Corp. v. Thomas, 838 F.2d 1317, 1323 (D.C. Cir. 1988)).

BLM must manage its lands consistent with applicable laws and regulations and development of BLM lands must be consistent with the applicable RMP, which can only be amended after notice and an opportunity to comment. By committing now to prohibit development in areas defined by future guidance, BLM is impermissibly elevating the status of the future guidance to have the force and effect of law. The issuance of subsequent “guidance,” even if the public is allowed to comment on it, is insufficient to satisfy the public’s right to notice and comment before BLM makes binding decisions concerning development of BLM lands. See Kennecott Corp. v. EPA, 684 F.2d 1007, 1019 (D.C. Cir. 1982) (finding “[t]hat EPA allowed petitions for reconsideration is not an adequate substitute for an opportunity for notice and comment prior to promulgation”) (citation omitted); PPG Indus., Inc. v. Costle, 659 F.2d 1239, 1250 (D.C. Cir. 1981) (finding subsequent publication of guidelines related to “new measurement technique” insufficient to meet notice requirement of Administrative Procedure Act).

Second, reliance on subsequent guidance to define what lands will be excluded from leasing, a clear term of the amended RMPs, is insufficient to meet the requirements of FLPMA. A formal plan amendment is required whenever a proposed action changes a term, condition or decision of a RMP. Douglas Timber Operators v. Salazar, 774 F. Supp. 2d 245, 256-57 (D.D.C. 2011) (citing Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 556-57 (9th Cir. 2006); Seattle Audubon Soc’y v. Robertson, 1991 WL 180099, at *9 (W.D. Wash. 1991)), appeal dismissed, No. 11-5137, 2011 WL 2618209 (D.C. Cir. June 24, 2011). “An amendment shall be initiated by the need to consider monitoring and evaluation findings, new data, new or revised policy, a change in circumstances or a proposed action that may result in a change in the scope of resource uses or a change in the terms, conditions and decisions of the approved plan.” 43 C.F.R. § 1610.5-5. It is clear that, under Alternative 2, the substance of the future guidance would be “new or revised policy,” “a change in circumstances,” or a “change in terms.” BLM has regulations governing the requirements for amending a RMP, 43 C.F.R. Part 1610, which cannot be met through issuance of guidance. Thus, imposing a requirement to comply with future guidance does not meet FLPMA’s requirement to amend the RMP.

Indeed, it is clear that BLM intends for this future guidance to have binding legal effect on parties. “A ‘legislative rule’ is one the agency has duly promulgated in compliance with the procedures laid down in the statute or in the Administrative Procedure Act.” Appalachian Power Co. v. EPA, 208 F.3d 1015, 1021 (D.C. Cir. 2000); see also General Elec. Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002). Here the guidance would not merely give substance to clarify vague or 23 Although the greater sage grouse has been identified as a candidate for listing, it has not yet been listed under the ESA. As a result, no critical habitat has been designated.


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ambiguous language, it would embody the requirements in the RMP, requirements that the public cannot adequately assess based on the 2012 Draft PEIS. Because subsequent agency action must comply with the applicable RMP, under Alternative 2 such “guidance” would have a legally binding effect and must be promulgated appropriately. Simply stating that future guidance would be binding on subsequent development clearly does not meet FLPMA’s requirements for amending an RMP or the requirements of the Administrative Procedure Act for promulgation of rules.

C. BLM has failed to take a “hard look” at the potential impacts of the alternatives in the 2012 Draft PEIS.

An EIS serves two purposes: (1) “[i]t ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts”; and (2) “it ‘guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.’” Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 768 (2004) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)). “The EIS must show that agency officials have ‘[thought] through the consequences of-and alternatives to-their contemplated acts,’ and must ensure that ‘citizens get a chance to hear and consider the rationales the officials offer.’” Habitat Educ. Ctr., Inc., 593 F. Supp. 2d at 1025 (quoting Simmons, 120 F.3d at 666). BLM must demonstrate that it “has taken a ‘hard look’ at environmental consequences.” Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976). It is unclear how BLM can purport to have taken a “hard look” at the potential environmental impacts as NEPA requires without having identified the lands that will, in fact, be defined as “core” or “priority” sage grouse habitat and therefore subject to the restrictions on allocation. By failing to define these lands, BLM has not engaged in “informed decision-making” or, as described above, has not provided for “informed public participation.” Habitat Educ. Ctr., Inc., 593 F. Supp. 2d at 1025 (citation omitted).

Alternative 2 is defined to exclude as of yet undefined “core or priority” sage grouse habitat that is to be based on as of yet issued guidance.24 Yet, BLM estimates the amount of acreage that would be available under this Alternative (and others)25 and, in so doing, it purports to identify various resources that will be impacted by future development. See, e.g., 2012 Draft PEIS at 6-71 (“Of the acreage designated under Alternative 2, a total of 423,292 acres (about 92% of the 461,965 acres that would remain available under Alternative 2) have been identified as overlying geologic formations having a high potential to contain important paleontological resources (Murphey and Daitch 2007).”); 6-74 to 6-75 (“Under Alternative 2, 14 perennial streams and about 41 mi of perennial stream habitat within the Piceance, Uinta, and Washakie Basins are directly overlain by areas that would be potentially available for oil shale development. There are no perennial streams in the Green River Basin that are directly overlain by areas that would be potentially available for oil shale development.”). BLM fails to explain

24 Similarly, Alternative 4 would remove “an undetermined percentage of the LWC and sage-grouse core habitat area.” 2012 Draft PEIS at 6-225. 25 See 2012 Draft PEIS at 6-236.


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how it identifies these resources, providing only a map of purported “core or priority” sage grouse habitat.26 See, e.g., id. at 6-108 (Figure 6.1.2-5).27 The cumulative impacts analysis similarly makes only mere conclusory statements regarding habitat fragmentation, but provides no analysis of the cumulative impacts with respect to each alternative. Id. at 6-302. More important, the public cannot identify these lands nor can it fully understand the potential impacts of the alternative.28

Further, BLM states it cannot quantify the impacts without project specific information, but it wholly fails to explain how the more limited amount of land available may affect the type of development or technology required to develop and, thereby, the differences in potential environmental impacts. For land use impacts for Alternative 2 (tar sands), for example, the 2012 Draft PEIS merely states that the land use impacts “would be essentially the same as those listed for Alternative 1 in Section 6.2.1.1, with the following exceptions: … Core or priority sage-grouse habitat, current and recommended ACECs, and about 86,000 acres of land identified as potential ACECs under Alternative C of the 2008 OSTS PEIS would be removed from application for commercial tar sands leasing.” 2012 Draft PEIS at 6-368 to 6-369. While BLM may not be able to identify site-specific impacts at this point, it must define the lands it is excluding and must clearly identify the differences in each. The key distinction among the new alternatives of alleged impacts appears to be the estimated lands that may be disturbed, but merely providing an estimated amount of land, without clearly explaining the data behind it, does not provide the decisionmaker, or the public, with the type of information required under NEPA.

Moreover, BLM fails to take a hard look at the mitigation measures under each alternative with respect to sage grouse, noting only “[f]or Alternatives 1, 3, and 4, however, existing BLM policies regarding protection of sage grouse habitat would be implemented.” 2012 Draft PEIS at 6-237. The Draft PEIS further recognizes that “Local sage grouse working groups 26 Nor is it easy to decipher how to compare this map with the other, various figures purporting to identify “Greater Sage-Grouse Core Habitat.” Compare 2012 Draft PEIS at 6-50 (Figure 6.1.1-5 - Alternative 1), with 6-215 (Figure 6.1.4-5 - Alternative 4). 27 Chapter 6 of the 2012 Draft PEIS states that, under Alternative 2, “oil shale development would be excluded from core or priority habitats for the greater sage-grouse (Centrocercus urophasianus) as defined by the guidance set forth in the BLM’s sage-grouse interim policy (BLM 2005i).” 2012 Draft PEIS at 6-80. But, the reference used for this interim policy is: “BLM, 2005i, Draft Vegetation Treatments Using Herbicides on Bureau of Land Management Lands in 17 Western States Programmatic Environmental Impact Statement, DES 05-56, U.S. Department of the Interior, Reno, Nev., Nov.” This appears to be an error, and, in any event, BLM cannot rely on a draft document as an “interim policy.” To the extent BLM intended to refer to its interim conservation policies and procedures for sage grouse, it addresses “Preliminary Priority Habitat.” In any event, these are only “interim,” and BLM should await the outcome of its ongoing process to assess management of sage grouse prior to making any amendments to RMPs that would unduly close off areas to leasing. 28 This map appears different from the map in the 2008 PEIS regarding overlap of lands made available under the rejected Alternative C “with the Known Distribution of the Greater Sage-Grouse.” 2008 PEIS at 6-101. In that map, leks, brood areas and winter ranges were identified. This can be contrasted with leks and the undefined “Greater Sage-Grouse Core Habitats” in Figure 6.1.2-5 in the 2012 Draft PEIS. “The potential impacts on threatened, endangered, and sensitive species (and their habitats) by commercial oil shale development are directly related to the amount of land disturbance that could occur with a commercial project (including ancillary facilities such as power plants and utility and pipeline ROWs), the duration and timing of construction and operation periods, and the habitats affected by development (i.e., the location of the project).” 2012 Draft PEIS at 6-82.


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have been formed across the region to support activities that support sage grouse population recovery. Executive Order (E.O.) 2011-5 for the State of Wyoming (Wyoming Governor’s Office 2011) outlined the identification and protection of ‘core population areas’ for the greater sage-grouse within the State of Wyoming. . . . Similarly, the State of Utah maintains a database of priority habitat areas for the greater sage-grouse. These priority areas were determined by Utah DWR field biologists in 2010. BLM is currently working with the Utah DWR to refine the delineation of priority habitats in the State of Utah.”29 Id. at 3-197 (citation omitted). The 2012 Draft PEIS does not provide an assessment of these state programs in comparison to a prohibition on development in any “core” or “priority” sage grouse habitat as would be provided under Alternative 2. Indeed, as further explained below, BLM is undergoing a separate process that is seeking to make such an assessment, and BLM should not predetermine the outcome of that process.

D. Basing a decision prior to defining the precise parameters of the agency action is arbitrary and capricious.

Without fully understanding the parameters of the sage grouse management decisions currently ongoing, any determination by BLM regarding excluding as yet undefined areas would be arbitrary and capricious. “Reasoned decisionmaking requires an agency to ‘examine the relevant data and articulate a satisfactory explanation for its action[s].’” Portland Cement Ass’n v. EPA, 665 F.3d 177, 187 (D.C. Cir. 2011) (quoting Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). In an analogous situation, the D.C. Circuit found EPA was arbitrary and capricious in setting a standard based on data that was affected by a separate, parallel rulemaking, before the subsequent rulemaking was completed. Id. In Portland Cement Ass’n v. EPA, EPA set a standard for Portland cement kilns, while at the same time undergoing a separate rulemaking to define the sources subject to those standards. Although a number of sources considered in setting the standard may not be covered by the standard, EPA considered them in setting the Portland cement kiln standard “because EPA had not yet decided the precise parameters of its definition.” Id. at 186-87. The court found this to be arbitrary and capricious. “The impending definition of an undeniably related source category is clearly a ‘relevant factor[]’ or an ‘important aspect of the problem’ that must be considered.” Id. at 187 (quoting Motor Vehicles Mfrs. Ass’n, 463 U.S. at 43). The D.C. Circuit found it was inappropriate for EPA to ignore the separate, ongoing rulemaking -- “an eventuality over which EPA had full control.” Id. “It is not absurd to require that an agency’s right hand take account of what its left hand is doing.” Id. Similarly here, BLM has “put the cart before the horse.” Id. at 188. BLM has full control over the timing of its actions with respect to adequately assessing appropriate sage grouse management on public lands. It is arbitrary and capricious to make a decision excluding areas for which BLM “had not yet decided the precise parameters.”

29 On February 10, 2012, BLM issued Instruction Memorandum No. WY-2012-019, entitled “Greater Sage-Grouse Habitat Management Policy on Wyoming Bureau of Land Management (BLM) Administered Public Lands Including the Federal Mineral Estate,” which purports to be consistent with the State Executive Order.


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VI. BLM Should Await Completion of its Ongoing Review of Sage Grouse Management on Public Lands.

Nothing in the 2012 Draft PEIS explains why BLM has identified exclusion of sage grouse “core or priority” habitat from even being considered for leasing. Nor does BLM explain why existing protections and mitigation measures are insufficient. Moreover, BLM utterly fails to explain why it would exclude lands based on guidance that is not yet even completed, when BLM is undergoing an entirely separate process to assess sage grouse management issues.

In December of 2011, BLM and the U.S. Forest Service issued a notice of intent to prepare environmental impact statements and supplemental environmental impact statements to incorporate greater sage-grouse conservation measures into RMPs and land management plans (“LMPs”). 76 Fed. Reg. 77,008 (Dec. 9, 2011). Based on measures identified and assessed by the U.S. Fish & Wildlife service, the BLM and Forest Service propose to incorporate consistent objectives and conservation measures for the protection of greater sage-grouse and its habitat into relevant RMPs and LMPs by September 2014, in order to avoid a potential listing under the ESA. These conservation measures would be incorporated into RMPs and LMPs through the plan amendment and revision processes of the respective agencies. In this notice, BLM identified most of the same RMPs as potentially being amended as in the 2012 Draft PEIS. Under this process, BLM and the Forest Service intend to evaluate the adequacy of sage-grouse conservation measures in RMPs and selected LMPs. BLM Wyoming has already begun a programmatic EIS that will analyze amendments to all of the State’s RMPs not currently being amended or revised to address needed changes to the management and conservation of greater sage-grouse habitats.

BLM should await the completion of this NEPA process, the sole purpose of which is to develop appropriate sage grouse conservation measures, before impermissibly imposing restrictions relating only to oil shale and tar sands.30 There is no reason for BLM to pre-judge the outcome of the sage grouse conservation NEPA process in the context of the PEIS. Experience with conventional oil and gas operations indicates that there are lands that currently have stipulations for no surface disturbance or seasonal limitations that can be leased and developed to recover the mineral potential without adversely affecting protected surface uses. This includes sage grouse habitat. BLM does not identify any different impacts on sage grouse resulting from oil shale or tar sands development to justify exclusion of large areas from consideration for leasing. Moreover, because as BLM concedes additional NEPA analyses will be required before any oil shale or tar sands resources can be developed, there is adequate time to complete the sage grouse conservation process and no need to impermissibly foreclose areas for potential development before that occurs.

30 Indeed, BLM’s “fresh look” is limited to the potential use of lands for oil shale and tar sands development. Other potential uses of the same lands could cause conflicts for eventual oil shale and tar sands developments. Applying restrictions to the lands available for potential oil shale and tar sands leasing favors other land uses without considering the overall benefit to society that multiple uses could generate.


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Thus, withdrawing lands from potential oil shale leasing due to sage grouse habitat protection appears to be premature given that no specific federal regulatory or administrative actions have occurred with respect to managing core or priority sage-grouse habitat. ExxonMobil supports development of multi-stakeholder conservation plans to protect and restore threatened and endangered species rather than simply instituting avoidance areas. In addition, the use of suggested management practices may make it possible to site future oil shale and oil sands projects without causing unacceptable impacts to the greater sage-grouse. ExxonMobil believes that there are compatible opportunities to further develop oil shale energy resources while simultaneously protecting the greater sage-grouse. As such, ExxonMobil believes that broad scale greater sage-grouse habitat mapping should not be the basis for eliminating large areas of important energy resources from future consideration. Adhering to the project-specific NEPA process where the scale of the evaluation is more granular with site-specific greater wildlife data is the best means to evaluate potential impacts and develop proper mitigation measures.

Again, this would not leave sage grouse unprotected. As BLM recognizes, there are already numerous existing stipulations and state policies aimed at avoiding the listing of greater sage grouse. Each of the three states has established and implemented a greater sage grouse management plan in coordination with the U.S. Fish & Wildlife Service, which include conservation measures for the sage grouse. These policies can be utilized to develop leasing or project specific mitigation measures until BLM has completed its review.31

VII. Other Technical Comments

A. Oil Shale development and water usage

Any leasing or project development would be subject to existing laws, including state water appropriation laws. ExxonMobil, therefore, expects no significant adverse impacts from oil shale development, as water usage in these areas is already regulated and any usage must be consistent with those requirements.

In any event, ExxonMobil believes that responsible, low-impact, and sustainable water usage is both technically and economically feasible for the oil shale industry. We are committing significant capital and research toward developing technologies and processes to reduce energy usage in our project while protecting ground and surface water resources. We are also seeking an RD&D lease to successfully verify that our technology is viable, environmentally acceptable, and sustainable in order to proceed to commercial scale implementation. Although some uncertainty remains regarding the potential water use requirements for oil shale 31 BLM has issued two instruction memoranda regarding interim conservation policies and consideration of the recommendations of the Sage Grouse National Technical Team (“NTT”). Under this interim policy, the conservation measures developed by the NTT must be considered and analyzed, as appropriate, through the land use planning process by all BLM State and Field Offices that contain occupied greater sage grouse habitat. BLM is to “refine” the habitat data through the land use planning process. It does not appear that BLM followed even this interim policy in identifying conservation measures or priority habitat. Nonetheless, these are “interim” policies that are only intended to guide action until the BLM and Forest Service review is completed.


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development technology, continued research and technology development will validate the environmental and economic viability prior to proceeding to commercial application. Water use requirements will continue to be evaluated in subsequent NEPA reviews where potential impacts will be assessed on a site and project-specific basis. These future detailed reviews will provide project, technology, and site-specific information on water use to BLM decision makers.

B. Multi-Mineral Leasing

Oil shale development can be compatible with the development of other mineral resources, especially conventional oil and gas and nahcolite resources, on the same lands. Industry is currently developing technology to enhance this type of multimineral development, and we encourage the BLM to develop leasing programs that accommodate multimineral leasing. The use of such compatible technologies can be considered during site-specific analyses.

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