Bloomberg Law
May 29, 2020, 10:01 AM

Gas, Oil Drilling in National Forests May Expand Under Rule Plan

Bobby Magill
Bobby Magill

A proposed U.S. Forest Service rule stands to weaken a check on oil and gas development in national forests and possibly give the Interior Department more sway over land leasing decisions, legal analysts and conservationists say.

The rulemaking, announced in 2018, aims to align the Forest Service’s leasing practices with those of the Bureau of Land Management to speed up fossil fuel development in national forests and grasslands nationwide, including oil and gas-rich forests in Ohio, Mississippi, and Colorado.

The White House is reviewing a draft of the proposed rule, which will be published in June or July, Tracy Parker, Forest Service acting director of minerals and geology management, said in an interview.

The BLM, part of the Interior Department, is in charge of oil and gas leasing on all federal lands, including those managed by the Forest Service—which is part of the Agriculture Department. Federal law prohibits BLM from leasing in national forests without Forest Service consent, Parker said.

The Forest Service is remaking its oil and gas regulations at a time when it is weakening environmental checks and balances under the National Environmental Policy Act and joining with the BLM in prioritizing logging and fossil fuels development on federal public lands, said Hana Vizcarra, staff attorney at the Harvard Law School Environmental and Energy Law Program.

Threat to Water?

The Forest Service, which last updated its oil and gas rules in 1990, wants to make quick oil and gas leasing decisions, “streamline” the approval process, and remove roadblocks to oil and gas development, according to the rulemaking announcement.

The Forest Service and BLM have to deliver oil and gas to the public, and “there’s a need there that our regulations are consistent and are working well together,” Parker said.

But any Trump administration push to expedite oil and gas development in national forests affects climate change and threatens drinking water in cities nationwide, said Randi Spivak, public lands director for the Center for Biological Diversity.

Forest Service data shows drinking water for 180 million people in 68,000 communities nationwide originates in national forests, some of which are being drilled for oil and gas.

“Fracking can pollute surface and groundwater,” Spivak said. “The Trump administration wants to put polluters over the interests of people, water, climate and wildlife.”

Guide Future Leasing

The Forest Service manages 193 million acres of public land nationwide—an area greater than California and Montana combined. Of the 174 national forests and grasslands nationwide, 44 have oil and gas operations or interests today.

The proposed rule will guide potential future oil and gas leasing and development in any national forest nationwide.

Those include national forests where fossil fuels development is widespread already: in southeast Ohio, the Ozark Mountains of Arkansas, the Piceance Basin of western Colorado, the Pawnee National Grasslands northeast of Denver and the Green River Basin south of Wyoming’s Grand Teton National Park.

The service is also working on an update to its mining rules that would expedite mining permit applications with minimal environmental review by aligning the rules with those of the BLM.

“When you look at this administration’s track record of pursuing revisions to rules, policies, and practices that favor oil and gas production over resource and ecosystem protection, it implies we’re going to see more of the same here,” Vizcarra said, referring to the Forest Service’s oil and gas rulemaking.

Both the BLM and the Forest Service are required to manage their lands for multiple uses, but BLM is required by law to consider mineral development on its land. The Forest Service does not have the same imperative and can veto drilling and leasing proposals if it deems other uses to be of higher priority.

‘All About Good Government’

In Ohio, where energy companies have been drilling the Utica shale in and around the eastern part of the Wayne National Forest, drillers are seeking long-term access to the the entire forest in case higher oil and gas prices make it profitable to explore more widely, said Mike Chadsey, spokesman for the Ohio Oil and Gas Association.

“We believe at a very high level that it’s very important that these types of rules be considered and put into place,” he said.

The American Petroleum Institute and the Independent Petroleum Association of America have asked the Forest Service, BLM, and other federal agencies to use the same environmental analyses when making decisions about oil and gas projects, and to “speak with a coordinated voice,” according to a joint letter the groups sent to the Forest Service about the rulemaking in 2018.

“It’s all about good government, which is essential to the advancement of domestic energy production on federal lands,” API Vice President Lem Smith said in a statement.

But calls for a unified voice among federal agencies sounds like a suggestion to cut one agency out of the decision-making process, said Michael Freeman, staff attorney for EarthJustice.

“BLM doesn’t have specific knowledge of forest lands. They’re not as intimately familiar with a national forest as the agency that’s responsible for managing that forest,” Freeman said. “It’s critical that at every stage, the Forest Service analyze the lands that are proposed for drilling.”

A ‘Second Look’

Conservation groups say they’re watching whether the Forest Service will propose a rule that reflects what they characterize as BLM’s imperative to prioritize energy development.

National forest land use plans, often updated every few decades, determine where most oil and gas development should occur, but existing regulations require the Forest Service to take a second look at whether leasing is appropriate in given areas after an environmental review is completed under NEPA.

It’s essential that the Forest Service maintain its willingness to complete a new environmental review of BLM oil and gas proposals if needed, said Nada Culver, senior policy counsel for the National Audubon Society.

“Forest Service regulations require the Forest Service to look at the original leasing decision and only authorize it after they look at the NEPA document,” Culver said. “They actually step back and raise important points about why the land may be used for better things.”

Willing to Ban Drilling

The Forest Service is known for occasionally banning oil and gas leasing in broad swathes of forests that the BLM targeted for fossil fuels development, she said.

For example, the Forest Service in May 2019 scrapped plans for oil and gas leasing across 52,000 acres of Nevada’s remote Ruby Mountains near Elko after completing a environmental assessment at the request of the BLM.

“The Forest Service will convey this decision to the BLM to not consent to oil and gas leasing for any lands within the analysis area,” William Dunkelberger, Humboldt-Toiyabe National Forest supervisor, wrote in his decision to ban drilling in the Ruby Mountains.

The mountains’ scenery, biodiversity, and grazing resources were too valuable to be damaged by oil drilling there, and are best protected, Dunkelberger wrote.

“The Forest Service really takes seriously the fact that these are lands managed by the Forest Service and that’s different than lands managed by BLM,” Culver said. “If changes to regulations undermine that and send the message of, yes, you have this authority but you better not use it, then that’s significant.”

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