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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 1:16-cv-01822-LTB
WILDERNESS WORKSHOP,
WESTERN COLORADO CONGRESS,
NATURAL RESOURCES DEFENSE COUNCIL, and
SIERRA CLUB,
Plaintiffs,
v.
UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the U. S.
Department of the Interior,
RYAN ZINKE, in his official capacity as Secretary of the U.S. Department of the
Interior,
BRIAN STEED, in his official capacity as Deputy Director of the U.S. Bureau of
Land Management,
GREG SHOOP, in his official capacity as Acting Colorado State Director of the U.S.
Bureau of Land Management, and
GLORIA TIBBETTS, in her official capacity as Acting Field Manager of the
Colorado River Valley Field Office of the U.S. Bureau of Land Management,
Defendants.
______________________________________________________________________________
Memorandum Opinion and Order
______________________________________________________________________________
Babcock, J.
This matter is before me on Plaintiffs’ Petition for Review of Agency Action.
Plaintiffs seek judicial review of defendant Bureau of Land Management’s (referred
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to as “Defendants” or “BLM”) Resource Management Plan concerning land managed
under BLM’s Colorado River Valley Field Office (see Addendum for a list of
acronyms used in this Opinion). The public officers named as defendants in this
case have been updated pursuant to Fed. R. Civ. P. 25(d). The matter has been fully
briefed (ECF Nos. 24, 27, 28). After carefully analyzing the briefs and the relevant
portions of the record, I GRANT in part and DEFER final ruling pending further
briefing on remedies in accordance with this Order.
I.

BACKGROUND

A. Statutory and regulatory background

1. The National Environmental Policy Act (“NEPA”)
NEPA is the “basic national charter for protection of the environment” and its
“procedures must insure that environmental information is available to public
officials and citizens before decisions are made and before actions are taken.” 40
C.F.R. § 1500.1. Congress enacted NEPA to ensure that all federal agencies
consider the environmental impacts of their actions to prevent or eliminate damage
to the environment. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371
(1989); see 42 U.S.C. § 4321.
Under NEPA, federal agencies must “include in every recommendation or
report on proposals for legislation and other major Federal actions significantly
affecting the quality of the human environment, a detailed statement by the
responsible official on,” in relevant part, the environmental impact of the proposed
action and alternatives to the proposed action. 42 U.S.C. § 4332(C)(i), (iii). An
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agency can choose to perform an Environmental Assessment, or may proceed
directly to preparing an Environmental Impact Statement (“EIS”). New Mexico ex

rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 n.23 (10th Cir. 2009)
(“New Mexico”).
The requirement to complete an EIS aims to ensure “that the agency, in
reaching its decision, will have available, and will carefully consider, detailed
information concerning significant environmental impacts” and 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.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

2. The Administrative Procedure Act (“APA”)
NEPA provides no private cause of action and thus Plaintiffs’ claims arise
under the APA. Pls.’ Compl., ECF No. 1 at 14; see New Mexico, 565 F.3d at 704.
Under the APA, a person who is suffering a “legal wrong because of agency action”
is entitled to judicial review. 5 U.S.C. § 702.
An agency’s NEPA compliance is reviewed to see whether it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” New

Mexico, 565 F.3d at 704 (quoting 5 U.S.C. § 706(2)(a)). The agency action is
arbitrary and capricious if the agency
(1) entirely failed to consider an important aspect of the problem, (2)
offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise, (3) failed to base
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its decision on consideration of the relevant factors, or (4) made a clear
error of judgment.

Id. (quoting Utah Envtl. Cong. v. Troyer, 479 F.3d 1269, 1280 (10th Cir. 2007))
(quotations omitted).
When reviewing factual determinations made by agencies under NEPA, short
of a “clear error of judgment,” an agency is required to take “hard look” at
information relevant to a decision. Id. A court considers only the agency’s reasoning
at the time it made its decision, “excluding post-hoc rationalization concocted by
counsel in briefs or argument.” Id. (citing Utahns for Better Transp. v. U.S. Dep’t of

Transp., 305 F.3d 1152, 1165 (10th Cir. 2002)); see 3 Charles H. Koch, Jr. and
Richard Murphy, Admin. L. & Prac. § 9:26 (3d ed. 2018) (“Without engaging in
review of the actual resolution of factual questions of this variety, courts by using
the hard look standard assure that the agency did a careful job at fact gathering
and otherwise supporting its position.”).
“Deficiencies in an EIS that are mere ‘flyspecks’ and do not defeat NEPA’s
goals of informed decisionmaking and informed public comment will not lead to
reversal.” Id. (citing cases). As such, the agency action is presumed valid and the
burden of proof rests upon those challenging the agency action. Id. (citing Citizens’

Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008)). “So
long as the record demonstrates that the agencies in question followed the NEPA
procedures . . . the court will not second-guess the wisdom of the ultimate decision.”

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Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d at 1163 (quoting
Robertson v. Methow Valley Citizens Council, 490 U.S. at 350).

3. The Federal Land Policy and Management Act (“FLPMA”)
In enacting the FLPMA, Congress aimed to empower the Secretary of the
Interior to manage the United States’ public lands. 43 U.S.C. § 1701. The Secretary,
through BLM, “shall manage the public lands under principles of multiple use and
sustained yield.” 43 U.S.C. § 1732(a). “Multiple use” means “a combination of
balanced and diverse resource uses that takes into account the long-term needs of
future generations for renewable and nonrenewable resources, including, but not
limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and
natural scenic, scientific and historical values . . . .”43 U.S.C. § 1702(c).
In managing public lands, BLM must develop resource management plans
(“RMPs”). BioDiversity Conservation All. v. Bureau of Land Mgmt., 608 F.3d 709,
712 (10th Cir. 2010) (citing 43 U.S.C. § 1712; 43 C.F.R. § 1601.0–5(n)). An RMP is
“designed to guide and control future management actions and the development of
subsequent, more detailed and limited scope plans for resources and uses.”
43 C.F.R. § 1601.0–2; see Norton v. S. Utah Wilderness All., 542 U.S. 55, 59 (2004)
(“Generally, a land use plan describes, for a particular area, allowable uses, goals
for future condition of the land, and specific next steps.”). The approval of an RMP
“is considered a major Federal action significantly affecting the quality of the
human environment” and thus requires an EIS. 43 C.F.R. § 1601.0–6.
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a. Oil and gas development under the FLPMA
On public lands, the FLPMA entrusts BLM with the “orderly and efficient
exploration, development and production of oil and gas.” 43 C.F.R. § 3160.0-4; 43
U.S.C. § 1732(b); see 43 C.F.R. § 3100.0-3. This is done by using a “three-phase
decision-making process.” W. Energy All. v. Zinke, 877 F.3d 1157, 1161 (10th Cir.
2017) (quoting Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d 1147, 1151
(10th Cir. 2004)).
In the first phase, BLM creates RMPs. Id. Part of an RMP indicates the lands
open or closed to the development of oil and gas, and subsequent development must
abide by the terms of the RMP. Id.
In the second phase, through state offices, BLM identifies parcels that it will
offer for lease, responds to potential protests of the suggested parcels, and conducts
“a competitive lease sale auction.” Id. at 1162 (citing 43 C.F.R. Subpart 3120).
During the identification of parcels available for leasing, a 2010 Department of
Interior policy mandates additional review, including: (1) an interdisciplinary team
reviewing the parcels proposed for leasing and conducting site visits; (2) identifying
issues BLM must consider; and (3) obliging BLM to consult other stakeholders. Id.
In the final phase, after the sale of a lease, BLM “decides whether specific
development projects will be permitted on the leased land.” Id.; see 43 C.F.R. §
3162.3-1; 30 U.S.C. § 226. BLM must approve permits to drill after parcels of land
are leased. 30 U.S.C. § 226(g).
B. Factual background
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Within its administrative boundary, BLM’s Colorado River Valley Field
Office (“CRVFO”) has over 2.9 million acres of public and private surface land.
Administrative Record (“AR”) 184599. At issue here is the administration of 505,200
acres of BLM-managed surface lands and 701,200 acres of BLM-managed federal
mineral estate that lie beneath other federal, state, and private surface ownership,
apart from National Forest lands. AR 184647–48. These lands within the purview of
the CRVFO primarily extend across Eagle, Garfield, Mesa, Pitkin, and Routt
counties. AR 184600. Additionally, the Roan Plateau, which is within the purview of
the CRVFO, is exempted from the RMP in question because it is under the
management of a separate RMP. AR 184600–02; see Colorado Envtl. Coal. v.

Salazar, 875 F. Supp. 2d 1233, 1238 (D. Colo. 2012) (concerning challenges to the
RMP of the Roan Plateau).
In 2007, BLM formally initiated a process to revise the 1984 Glenwood
Springs Resource Area RMP. AR 184604, 184644. Pursuant to the FLPMA, BLM
began the revision process: (1) “in response to new issues that have arisen since the
original plan was prepared in 1984 and to higher levels of controversy around
existing issues”; (2) “to allow for updated BLM management direction, guidance,
and policy”; and (3) because “new resource assessments and scientific information
have become available to help the CRVFO revise previous decisions and address
increased uses and demands on BLM lands (such as oil and gas development and
recreation), as well as the protection of natural and cultural resources.” AR 184646.

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The RMP analyzed environmental effects, thus the terms “RMP” and “EIS” are
interchangeable in the context of this case. See AR 184644.
BLM noted a timeline of the revision process as promulgated in 43 C.F.R.
Subpart 1610. AR 184650. This revision process includes: (1) identifying planning
issues; (2) developing planning criteria; (3) collecting data and information
analyzing the management situation; (4) formulating alternatives; (5) assessing and
selecting a preferred alternative; (6) opening the RMP and EIS to public comment
for review; and (7) signing the Record of Decision (“ROD”), marking the approval
from BLM of the RMP. Id.
Of the considered alternatives, Alternative A was classified as the “no action
alternative” meaning that “current management practices, based on existing RMPs
and other management decision documents, would continue.” AR 184606. This
allowed for 672,500 acres of the Federal mineral estate to be open to fluid mineral
leasing, leaving 28,700 acres closed. AR 184683.
Alternative B was the “mixed use” alternative which allocated “public land
resources among competing human interests, land uses, and the conservation of
natural and cultural resources.” AR 184606. This allowed for 603,100 acres of the
Federal mineral estate to be open to fluid mineral leasing, leaving 98,100 acres
closed. AR 184683.
Alternative C was the conservation alternative, which emphasized
“protecting resource values and enhancing or restoring the ecological integrity of
habitats for all priority plant, wildlife, and fish species.” AR 184608. This would
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allow for 521,500 acres of the Federal mineral estate to be open to fluid mineral
leasing, leaving 179,700 acres closed. AR 184683.
Alternative D was the resource use alternative, which emphasized “allowable
uses that maximize resource production in an environmentally responsible
manner.” AR 184608. This would allow for 648,400 acres of the Federal mineral
estate to be open to fluid mineral leasing, leaving 52,800 acres closed. AR 184683.
BLM selected Alternative B as its preferred alternative. AR 184606. BLM
opened the proposed RMP to public comment and found that “[n]o modifications
were necessary as a result of the protests, but some clarifications were made . . . .”
AR 188126. On June 12, 2015, the ROD was signed, marking the approval from
BLM of the RMP and EIS. AR 188163.
II.

ANALYSIS

Plaintiffs are non-profit organizations who focus on environmental issues.
ECF No. 1 at 7–10. The parties agree that this case is currently in the first stage of
the three-stage oil and gas development process under the FLPMA. Pls.’ Opening
Br., ECF No. 24 at 7; Defs.’ Resp., ECF No. 27 at 2. Plaintiffs challenge multiple
aspects of the RMP, alleging generally that BLM “failed to take a hard look at the
direct, indirect, and cumulative impacts to people and environment” and “failed to
consider a reasonable range of alternatives.” ECF No. 24 at 10, 36.
A. Hard look at the direct, indirect, and cumulative impacts to people
and environment

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In approving the RMP, Plaintiffs claim that BLM failed to take a hard look at
the severity and impacts of: (1) greenhouse gas (“GHG”) pollution and climate
change; (2) methane emissions; and (3) oil and gas on human health.
In an EIS, BLM must consider the direct, indirect, and cumulative predicted
impacts of a proposed action. New Mexico, 565 F.3d at 703 (citing 42 U.S.C. §
4332(2)(C); 40 C.F.R. pt. 1502 & §§ 1508.11, 1508.25(c)). “The significance of an
impact is determined by the action’s context and its intensity.” Hillsdale Envtl. Loss

Prevention, Inc. v. U.S. Army Corps of Engineers, 702 F.3d 1156, 1166 (10th Cir.
2012) (citing Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 1224
(10th Cir. 2002)). “Applicable regulations require agencies to consider ten factors
when assessing intensity, including the proposed action’s effects on public health,
the unique characteristics of the geographic area, the uncertainty of potential
effects, and the degree of controversy surrounding the effects on the human
environment.” Id. (citing 40 C.F.R. § 1508.27(b)).

1. GHG pollution and climate change
Plaintiffs contend that BLM: (1) failed to analyze the foreseeable indirect
GHG emissions resulting from combustion or other end uses of the oil and gas
extracted from the planning area; (2) failed to consider the cumulative impacts of
GHG emissions associated with oil and gas production; and (3) failed to analyze the
significance and severity of the volume of emissions.
a. Foreseeable indirect impacts of oil and gas

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Plaintiffs argue that BLM failed to include in the RMP an analysis of the
reasonably foreseeable indirect impacts of oil and gas. ECF No. 24 at 13. They
contend that the “reasonably foreseeable effects of allowing fossil fuel extraction on
public lands include the emissions resulting from eventual combustion of that fuel,”
and that BLM did not include the emissions analysis resulting from combustion. Id.
at 13–14. Plaintiffs state that BLM recognized that decisions made under the RMP
may have indirect effects resulting from activities that release GHG emissions, but
BLM “failed to analyze the foreseeable emissions that will result from the
processing, transmission, storage, distribution, and end use of these hydrocarbons.”

Id. at 14.
BLM responds that it provided sufficient information on the indirect effects
“while candidly discussing the limitations in BLM’s ability to assess such impacts
based on the information available at the planning stage.” ECF No. 27 at 18. It adds
that even though it estimated the total number of wells that would be drilled over
the life of the RMP, it additionally noted the speculative nature of forecasting oil
and gas production and was thus justified to provide a qualitative analysis. Id. at
19. Further, BLM points to reasoning in the RMP that because natural gas
produces fewer GHG emissions, if it were to displace coal and oil, it could in fact
reduce GHG emissions. Id. BLM surmises that this potential outcome means that
quantifying GHG emissions would be potentially misleading and thus it was not
arbitrary or capricious in leaving it out. Id.

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Plaintiffs reply that BLM agrees that it must consider the indirect effects of
burning the natural gas under the RMP and states it does so by focusing on a
qualitative analysis. Pls.’ Reply, ECF No. 28 at 3. Plaintiffs continue that this is
flawed because it is not sufficient for BLM to claim as its qualitative analysis that
an effect is unforeseeable and merely speculate without supplying what information
is missing and why it could not be obtained. Id. at 4.
“Indirect impacts are defined as being caused by the action and are later in
time or farther removed in distance but still reasonably foreseeable.” Utahns for

Better Transp. v. U.S. Dep’t of Transp., 305 F.3d at 1177 (citing 40 C.F.R. §
1508.8(b)). An effect is considered reasonably foreseeable if it is “sufficiently likely
to occur that a person of ordinary prudence would take it into account in reaching a
decision.” Colorado Envtl. Coal. v. Salazar, 875 F. Supp. 2d at 1251 (citing cases).
Courts have found that combustion emissions are an indirect effect of an
agency’s decision to extract those natural resources. See San Juan Citizens All. v.

U.S. Bureau of Land Mgmt., No. 16-CV-376-MCA-JHR, 2018 WL 2994406, at *10
(D.N.M. June 14, 2018) (collecting cases).
While San Juan Citizens Alliance concerned protests to oil and gas leasing,
which occurs at a later stage of the oil and gas development process than what
Plaintiffs are protesting here, another court has ruled that BLM needed to consider
indirect effects of combustion of fossil fuels in an RMP. W. Org. of Res. Councils v.

U.S. Bureau of Land Mgmt., No. CV 16-21-GF-BMM, 2018 WL 1475470, at *13 (D.
Mont. Mar. 26, 2018), appeal docketed, No. 18-35849 (9th Cir. Oct. 12, 2018) (“In
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light of the degree of foreseeability and specificity of information available to the
agency while completing the EIS, NEPA requires BLM to consider in the EIS the
environmental consequences of the downstream combustion of the coal, oil and gas
resources potentially open to development under these RMPs.”).
In High Country Conservation Advocates v. United States Forest Service, the
defendant argued that it was too speculative to know how much coal would be
mined from then-unbuilt mines and it could not provide analysis of the potential
combustion. 52 F. Supp. 3d 1174, 1196 (D. Colo. 2014) (“High Country”). That
argument failed though, as the court found that
[t]he agency cannot—in the same [final] EIS—provide detailed
estimates of the amount of coal to be mined [] and simultaneously
claim that it would be too speculative to estimate emissions from “coal
that may or may not be produced” from “mines that may or may not be
developed.” The two positions are nearly impossible to reconcile.

Id. at 1196–97.
It is arbitrary and capricious for a government agency to use estimates of
energy output for one portion of an EIS, but then state that it is too speculative to
forecast effects based on those very outputs. Cf. WildEarth Guardians v. U.S.

Bureau of Land Mgmt., 870 F.3d 1222, 1234 (10th Cir. 2017) (holding that BLM
erred by relying on some portions of a government report, but not acknowledging
other portions).
Even though in High Country the challenged analysis regarding GHG
emissions was of only three mines and here BLM estimates over 4,000 new wells
will be drilled, the reasoning remains analogous. 52 F. Supp. 3d at 1198; AR
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185778. BLM had data projecting outputs of natural gas under each alternative. AR
185947. Additionally, BLM had data comparing resultant GHG emissions from the
combustion of different fossil fuels, including natural gas. AR 185232. BLM had the
ability to provide more specific estimations than it did and BLM’s reasoning that it
was merely too speculative to provide the estimations is belied by its own analysis
in the RMP. See Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1072 (9th Cir.
2002) (“An agency may not avoid an obligation to analyze in an EIS environmental
consequences that foreseeably arise from an RMP merely by saying that the
consequences are unclear or will be analyzed later when an [Environmental
Assessment] is prepared for a site-specific program proposed pursuant to the
RMP.”).
Therefore, BLM acted in an arbitrary and capricious manner and violated
NEPA by not taking a hard look at the indirect effects resulting from the
combustion of oil and gas in the planning area under the RMP. BLM must quantify
and reanalyze the indirect effects that emissions resulting from combustion of oil
and gas in the plan area may have on GHG emissions.
b. Cumulative impacts of GHG and climate change
Plaintiffs argue that BLM failed to analyze the cumulative climate change
impacts in its RMP at a regional, national, and global scale. ECF No. 24 at 14–15.
Plaintiffs contend that BLM “should have included CRVFO GHG emissions
increases, added to other past, present, and reasonably foreseeable BLM-managed
fossil fuel extraction emissions on a regional and national scale.” ECF No. 24 at 15
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(emphasis in original). Plaintiffs continue that since BLM did not sufficiently
consider the effects of GHG emissions on the CRVFO’s lands, it violated NEPA, as a
court cannot “defer to a void.” Id. at 16 (quoting High Country, 52 F. Supp 3d at
1186).
In response, BLM argues that Plaintiffs merely disagree with BLM’s
methodology, and it is a court’s task to simply decide whether BLM’s actions had a
rational basis and took into consideration the relevant factors. ECF No. 27 at 21.
BLM points to parts of the RMP to show that it provided a qualitative assessment of
cumulative climate change impacts and such an approach was reasonable under
NEPA. Id. at 21–22 (citing AR 185240–42). It elaborated that this approach
sufficiently provided information on all the relevant geographic scales. Id. at 22.
Plaintiffs reply that BLM is incorrect to characterize its analysis as qualitive
because it merely provided data that climate impacts from resource use on the
CRVFO’s land were comparatively small compared to state, regional, and global
totals. ECF No. 28 at 6–7.
The parties appear to agree that BLM contained its analysis in the RMP
concerning cumulative impacts of climate change to AR 185240–42. ECF Nos. 24 at
15–16; 27 at 21–22. In the EIS, BLM wrote that
Cumulative climate change impacts are caused by CRVFO GHG
emissions and increases in regional, national, and global GHG
emissions. GHG emissions increase with increased population growth,
industrial activity, transportation use, energy production, and fossil
fuel energy use. As mentioned earlier, CRVFO emissions may or may
not increase state, national, or global GHG emissions due to regulatory
and market forces.
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AR 185240. BLM summarized potential impacts, stating that “[c]umulative GHG
emissions may increase if project GHG emissions add to global GHG emissions” and
that cumulative GHG emissions may not increase if oil and gas is produced in other
basins or if natural gas is used. Id.
BLM explained that “[q]uantification of cumulative climate change impacts,
such as changes in temperature, precipitation, and surface albedo, is beyond the
scope of this analysis” and that potential increase in emissions and carbon
sequestration could not be predicted with accuracy. Id. The remaining section of the
cumulative climate change impact analysis read that climate change predictions for
the region of western Colorado are “based on global GHG emission inventory
projections and global climate change modeling.” AR 185240–42.
“Cumulative impact is the impact on the environment which results from the
incremental impact of the action when added to other past, present, and reasonably
foreseeable future actions regardless of what agency (Federal or non-Federal) or
person undertakes such other actions.” 40 C.F.R. § 1508.7. “Cumulative impacts can
result from individually minor but collectively significant actions taking place over
a period of time.” Id.
The impacts to consider include ecological, aesthetic, historic, cultural,
economic, social, or health considerations. Wyoming v. U.S. Dep’t of Agric., 661 F.3d
1209, 1251 (10th Cir. 2011) (explaining that the scope of an EIS includes cumulative
impacts, and thus the considerations of direct and indirect effects apply similarly to
cumulative effects); see 40 C.F.R. §§ 1508.7, 1508.8, 1508.25. However, agencies
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must only discuss those impacts which are reasonably foreseeable. Id. (quoting

Utahns for Better Transp., 305 F.3d at 1176).
As such, “cumulative impacts that are too speculative or hypothetical to
meaningfully contribute to NEPA’s goals of public disclosure and informed
decisionmaking need not be considered.” Wyoming v. U.S. Dep’t of Agric., 661 F.3d
at 1253.
[A] meaningful cumulative impact analysis must identify five things:
(1) the area in which the effects of the proposed project will be felt; (2)
the impacts that are expected in that area from the proposed project;
(3) other actions—past, present, and proposed, and reasonably
foreseeable—that have had or are expected to have impacts in the
same area; (4) the impacts or expected impacts from these other
actions; and (5) the overall impact that can be expected if the
individual impacts are allowed to accumulate.

San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1056 (10th Cir. 2011) (quoting
TOMAC, Taxpayers of Michigan Against Casinos v. Norton, 433 F.3d 852, 864 (D.C.
Cir. 2006)).
The Tenth Circuit has found a district court to err when the district court
held that an agency was “woefully inadequate” in failing to discuss cumulative
impacts when the agency action in the final EIS concerned an initial, “overarching
framework.” Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1253. The court in Wyoming
dealt with an initial plan regarding three government actions that would then
undergo their own NEPA evaluations. Id. It found for the agency because those
“procedural planning rules would not have any concrete, measurable cumulative

impact until the [agency] implemented them in response to specific proposals in the
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future.” Id. (alteration and emphasis added). The court found those impacts as too
speculative and did not “meaningfully contribute to NEPA’s goals of public
disclosure and informed decisionmaking . . . .” Id.
Considering that there necessarily will be more specific regulations regarding
the actual leasing and drilling approvals, the cumulative impacts are undoubtedly
more foreseeable at that time. See 43 C.F.R. Subpart 3120; Diné Citizens Against

Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1289 (10th Cir. 2016) (holding that an
agency did not violate NEPA when it deferred cumulative impacts analysis to an
Environmental Assessment); cf. Theodore Roosevelt Conservation P’ship v. Salazar,
616 F.3d 497, 504 (D.C. Cir. 2010) (holding that an RMP does not “include a
decision whether to undertake or approve any specific action”) (citing 43 C.F.R. §
1601.0–5 (n)).
Therefore, in the RMP, BLM took an appropriately hard look at the
cumulative climate change impacts. See Hillsdale Envtl. Loss Prevention, Inc. v.

U.S. Army Corps of Engineers, 702 F.3d at 1177–78 (explaining that courts are not
in a position to decide the propriety of competing methodologies and must simply
determine whether the agency had a rational basis for employing the challenged
method, especially when the dispute involves a technical judgment within the
agency’s area of expertise) (citing cases).
c. Analysis of the significance and severity of the
volume of emissions

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Plaintiffs claim that BLM violated NEPA by not taking a sufficiently hard
look at the economic downsides regarding GHG emissions contemplated in the
RMP. ECF No. 24 at 17–21. Plaintiffs argue that BLM was wrong to state in the
RMP that tools did not then exist to measure incremental climate impacts of GHG
emissions associated with specific activities. Id. at 18. Plaintiffs reason that BLM
was of aware, and arbitrarily disregarded, the social cost of carbon protocol (the
“Protocol”), which contextualizes the costs associated with climate change. Id. at
18–19. Plaintiffs continue that “BLM was particularly obligated to address the
economic impact of GHG emissions by estimating their social cost because the
agency did provide monetized estimates of the benefits of oil and gas production.”

Id. at 19.
Plaintiffs concede that BLM is not required to conduct a cost-benefit analysis,
but looks to High Country to support the proposition that BLM acted in an
arbitrary and capricious manner by choosing to quantify the benefits of an action,
but then incorrectly claimed that it could not analyze the related costs. Id. (quoting
52 F.Supp.3d at 1191). Specifically, Plaintiffs argue that BLM presented benefits
concerning economic, revenue, and employment data across the studied
alternatives, but then did not quantify the economic costs related to those benefits.

Id. at 20.
BLM responds that its chosen method to analyze climate change impacts is
entitled to deference and sufficiently complies with NEPA. ECF No. 27 at 23. BLM
confirms that it need not perform a cost-benefit analysis and that the Protocol was
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meant to be employed in agency rulemakings, which this RMP was not. Id. at 23–
24. Further, BLM argues that the Protocol was issued a year after the air quality
modeling and calculations in the RMP were completed and revised. Id at 24.
Finally, BLM strongly disputes that its analysis of economic impacts constitutes a
cost-benefit analysis. Thus, it argues that it does not fall within the reasoning of

High Country, because benefits were never actually presented. Id. at 24–27 (citing
52 F. Supp. 3d 1174).
The Protocol is an estimate of the “monetized damages associated with an
incremental increase in carbon emissions in a given year. It is intended to include
(but is not limited to) changes in net agricultural productivity, human health,
property damages from increased flood risk, and the value of ecosystem services due
to climate change.” AR 201225. The Protocol was “designed to quantify a project’s
contribution to costs associated with global climate change.” High Country, 52 F.
Supp. 3d at 1190.
As the parties agree, a cost-benefit analysis is not required in an EIS. The
regulations concerning an EIS read that “the weighing of the merits and drawbacks
of the various alternatives need not be displayed in a monetary cost-benefit analysis
and should not be when there are important qualitative considerations.” 40 C.F.R. §
1502.23. However, if an agency chooses to conduct a cost-benefit analysis in an EIS,
that analysis should not be misleading. High Country, 52 F. Supp. 3d at 1182 (citing
cases).

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In High Country, the court found the analysis misleading because the
agencies “expressly relied on the anticipated economic benefits of [lease
modifications] in justifying their approval,” but the agencies then explained “that a
similar analysis of the costs was impossible when such an analysis was in fact
possible and was included in an earlier draft EIS.” Id. at 1191.
I agree with two arguments by BLM that makes High Country not analogous
this context: (1) the economic impact analysis was not necessarily the “benefit” side
of a cost-benefit analysis; and (2) BLM did not expressly rely on anticipated
economic benefits in its RMP. ECF No. 27 at 25–26.
The disputed economic projections concern average annual labor income and
estimated payments to counties from mineral royalty distributions. AR 185950–51.
The estimations of the proposed alternative were less than those of two other
proposed alternatives. Id. BLM noted that “[w]hile the alternatives have the
potential to affect local businesses and individuals, the relative contribution of BLM
activities to the local economy. . . and the relative differences between the
alternatives would not be large enough to have any measurable effect on economic
diversity or dependency.” AR 185949. BLM added that “[u]nder all the alternatives,
all BLM-related contributions—jobs and labor income—would continue to support
less than 1 percent of totals within the impact area economy, but could be more
important for smaller communities within the planning area.” Id.
An important aspect of High Country was the fact that the agencies had
attempted to quantify contributions to the costs of global climate change in drafts of
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their EIS, but then removed that portion “in part it seems, in response to an email
from one of the BLM’s economists that pointed out that the social cost of carbon
protocol is ‘controversial.’” 52 F.Supp. 3d at 1191. Plaintiffs do not posit that a
similar action occurred here.
This does not speak to the potential effectiveness of the Protocol, nor when
BLM may have been aware of its existence. Simply put, under 40 C.F.R. § 1502.23,
BLM was not required to perform a cost-benefit analysis. It chose not to do so,
provided sufficient support in the record to show this, and thus satisfied NEPA in
this respect.

2. Methane emissions
Plaintiffs argue that BLM failed to take a hard look at methane emissions
associated with the RMP. ECF No. 24 at 21. In particular, Plaintiffs maintain that:
(1) BLM arbitrarily ignored generally accepted science regarding methane’s
potency; and (2) BLM relied on underestimated methane emissions data.
a. Science concerning methane’s potency
Plaintiffs claim that BLM used both an improper timeframe and outdated
science when it considered methane emissions. ECF No. 24 at 21–26.
As part of the RMP, BLM estimated GHG emissions in assessing climate
change impacts related to the plan area across the studied alternatives. AR 184835,
184842–43. In doing so, BLM used data it collects to estimate those emissions. AR
223675, 223681. A “GHG’s ability to contribute to global warming is based on its
longevity in the atmosphere and its heat-trapping capacity.” AR 184840. In order to
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aggregate GHG emissions and assess their contribution to global warming, BLM
uses a method from the Environmental Protection Agency (“EPA”) to assign each
GHG a global warming potential unit (“GWP”), which is the emission’s equivalent
output of carbon dioxide. Id. BLM assigned methane a GWP factor of 21 and
considered its effects on a 100-year timeframe. Id. Plaintiffs dispute both aspects of
this analysis.
First, Plaintiffs argue that the GWP should be analyzed using a 20-year
timeframe. Plaintiffs point to the record to posit that methane’s properties make it
such that its effect on the climate is much greater in the short-term and that by
using the 100-year timeframe, BLM significantly understates methane’s impact on
the climate. ECF No. 24 at 21–22. Plaintiffs highlight the data used by the
Intergovernmental Panel on Climate Change. Id. at 22.
In response, BLM explains that it was reasonable to use a 100-year
timeframe because this is what EPA used in rules and regulations that BLM
explicitly relied upon in the RMP. ECF No. 27 at 31. BLM claims it adopted a 100year timeframe to keep consistent with nationwide sectoral emissions, which
allowed for a more complete look at past and future GHG emissions. Id. BLM
acknowledges that methane has a greater GWP over a 20-year timeframe, but that
it acted reasonably in using a timeframe consistent in addressing all GHG
emissions. Id. at 32.
Concerning the second issue—whether BLM improperly assigned methane a
GWP of 21—Plaintiffs argue that the source relied upon by BLM had been revised,
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but BLM did not reflect this in the RMP. ECF No. 24 at 22. Plaintiffs continue that
if the updated GWP was used, the assumptions BLM would use for methane
emissions would substantially increase. Id. at 23.
BLM contends that the GWP factor it used “was accepted and supported at
the time the analysis was prepared and the agency explained why it had selected
that factor.” ECF No. 27 at 28. BLM clarifies that it acknowledged the updated
GWP factor, but reasonably explained why it kept with its original option. Id. at 29.
It maintains that it should not be required to redo analyses each time updated
information enters the scientific sphere, because it would lead to a potentially
endless process of re-analyzing its data. Id at 28–30.
Accurate scientific analysis is essential to implementing NEPA. 40 C.F.R. §
1500.1. In an EIS, an agency must “insure the professional integrity, including
scientific integrity, of the discussions and analyses . . . .” 40 C.F.R. § 1502.24. In
reviewing this, as discussed supra, courts are not in the position to decide the
propriety of competing methodologies, especially when the issue involves a technical
judgment within an agency’s expertise. Hillsdale Envtl. Loss Prevention, Inc. v.

U.S. Army Corps of Engineers, 702 F.3d at 1177–78; see Baltimore Gas & Elec. Co.
v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103 (1983) (holding that when
examining an agency’s prediction, “within its area of special expertise, at the
frontiers of science,” a reviewing court must generally be at its most deferential).
Here, BLM pointed to two EPA decisions to explain its choice to use the GWP
factor of 21 in a 100-year timeframe. AR 223677, 223853. In one of these decisions,
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EPA used a GWP factor of 21 with a 100-year timeframe. Mandatory Reporting of
Greenhouse Gases, 74 Fed. Reg. 56,260, 56,395 (Oct. 30, 2009). In a technical
support document prepared for BLM, it was noted that the Intergovernmental
Panel on Climate Change, “the international scientific body created by the United
Nations to evaluate the risk of climate change, has published more recent GWPs in
its Fourth Assessment Report.” AR 223840. This report included a GWP factor for
methane of 25. Id. However, BLM chose keeps its numbers consistent with those of
EPA.
It explained that while the GWPs from the Intergovernmental Panel on
Climate Change
[A]re more universal and more recent than [EPA]-published GWPs, the
[EPA]-published numbers are being used by companies that must
report GHG emissions to [EPA], including certain sectors of the oil and
gas industry. Because many U.S. companies are using [EPA]-published
GWPs, and for consistency in sectoral comparisons, BLM Colorado has
chosen to use [EPA] GWPs. In the event that [EPA] revises their
published GWPs, BLM Colorado will follow suit.

Id.
BLM notes that EPA changed its methane GWP factor to 25 in 2014, while
still using the 100-year timeframe. ECF No. 27 at 29, n.10 (citing 2013 Revisions to
the Greenhouse Gas Reporting Rule and Final Confidentiality Determinations for
New or Substantially Revised Data Elements, 78 Fed. Reg. 71,904, 71,909 (Nov. 29,
2013) (“Reporting Rule Revision”)). However, BLM adds that this decision postdated
the revised EIS analysis. Id. The pertinent analysis concerning air quality modeling

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and calculations was published in May 2011 and was revised in August 2012. AR
223657.
Plaintiffs take issue with BLM’s commitment that if EPA revised their
published GWPs, BLM would follow suit. ECF No. 28 at 12. Plaintiffs claim that
EPA did not update its GWP “prior to BLM’s decision” which was in 2015. Id.; AR
188163. However, the Reporting Rule Revision noted that “the GWPs finalized in
this rulemaking are only applied prospectively, and do not affect the applicability
for reporters that was determined for prior years.” 78 Fed. Reg 71,904, 71,938.
Therefore, BLM need not reach back and re-calculate its prior analyses based on the
new GWP. BLM took a sufficient hard look at methane’s potency based on the
applicable regulations in force at the time of its analysis and decision.
b. Estimations of methane emissions data
Plaintiffs argue that BLM made improper assumptions about the magnitude
of methane emissions, which thereby undermined the validity of BLM’s findings in
the RMP. Plaintiffs claim that three incorrect assumptions were made when BLM
estimated the planning area’s methane emissions. ECF No. 24 at 24. First,
Plaintiffs note that the modeling data came solely from survey responses of oil gas
operators without being confirmed by BLM. Id. Second, Plaintiffs argue that the
data was not based on current or historic emissions rates, but on forecast emissions
in 2028. Id. Third, Plaintiffs claim BLM improperly adjusted these emissions rates
on a faulty assumption about the implementation of control technologies on oil and
gas emission sources. Id.
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Plaintiffs request that the court follows their calculations of an assumed
leakage rate. ECF No. 24 at 24–25. However, neither in their Opening Brief nor
their Reply do Plaintiffs provide support by cites to the record from where they get
certain numbers for their conversions. See ECF Nos. 24 at 25, n.19; 28 at 14, n.8.
This leaves the court with no reliable way to sufficiently judge Plaintiffs’ analysis
on the issue. Further, Plaintiffs reference BLM rulemakings that occurred after the
ROD was signed. ECF No. 24 at 25.
Plaintiffs do not persuasively explain how using industry assumptions
necessarily leads to faulty data, nor do they fully develop an argument regarding
the issue concerning adjusting emissions on a faulty assumption about control
technologies on oil and gas emission sources in 2028. As such, I must afford the
deference due to BLM on this issue and find against Plaintiffs.

3. Oil and gas effects on human health
Plaintiffs argue that BLM failed to provide a meaningful analysis of the
potential health impacts related to the oil and gas development projected in the
RMP. ECF No. 24 at 26. Plaintiffs allege that: (1) BLM improperly dismisses the
harm to humans from oil and gas development in the planning area; (2) the RMP
provides insufficient information to the public regarding potential health impacts;
and (3) BLM’s deference in the RMP to future adaptive management and
compliance with legal requirements does not substitute for a proper analysis in the
RMP itself. Id. at 26–36. Plaintiffs add that BLM’s deferral to later stages was

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inappropriate because Plaintiffs are faulting it for failing to disclose general health
risks, not site-specific information. ECF No. 28 at 21.
a. BLM’s discussion of site-specific human health
effects of oil and gas development in the planning
area
Plaintiffs provided a voluminous submission in the record of studies, reports,
and firsthand accounts which they argue paint a significantly more severe picture of
the environmental impacts of oil and gas than which BLM considered. See generally
AR 203304–217808; ECF No. 24 at 27–34. Plaintiffs dispute BLM’s assertion that
“no studies have documented significant cancer-based or noncancer-based health
risks from oil and gas operations using emissions rates and operational practices
typical of current development in the CRVFO.” ECF No. 24 at 28 (quoting AR
185943). Plaintiffs cite the United States Census to show that people live physically
close to the wells. Id. They further point to studies showing that there were adverse
health effects regarding proximity to oil and gas that was more severe than what
was stated in the RMP. Id. at 28–29. They add that BLM failed to take a hard look
at the firsthand reports of area residents. Id. at 29–30.
BLM states that its RMP complies with the scope of the analysis required by
NEPA. As discussed supra, this RMP is the first of a three-stage process concerning
oil and gas development on public land. BLM argues that “it appropriately deferred
greater and more localized detail to the implementation stages, when substantially
more will be known about the specifics of development.” Id. at 36–37.

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BLM stated in its response to comments in the RMP that “new oil and gas
leases must undergo an Environmental Assessment under NEPA.” AR 223553.
BLM argues that it is following NEPA and related regulations by deferring more
detailed analysis in a process named “tiering.” ECF No. 27 at 36–37.
“Tiering refers to the coverage of general matters in broader environmental
impact statements . . . with subsequent narrower statements or environmental
analyses (such as regional or basinwide program statements or ultimately sitespecific statements) incorporating by reference the general discussions and
concentrating solely on the issues specific to the statement subsequently prepared.”
40 C.F.R. 1508.28.
Tiering allows for subsequent, more narrow assessments to follow broader
EISs. San Juan Citizens All. v. Stiles, 654 F.3d at 1054 (quoting 40 C.F.R. §
1508.28). “Tiering can ‘eliminate repetitive discussions of the same issues and
allows the agency to focus on the actual issues ripe for decision at each level of
environmental review,[] while excluding from consideration issues already decided
or not yet ripe.’” Id. (quoting 40 C.F.R. §§ 1502.20, 1508.28(b)) (alterations omitted).
Site-specific impacts must be analyzed under NEPA “only when a ‘critical
decision’ has been made to act on site development—i.e., when ‘the agency proposes
to make an irreversible and irretrievable commitment of the availability of
resources to project at a particular site.’” Friends of Yosemite Valley v. Norton, 348
F.3d 789, 801 (9th Cir. 2003), opinion clarified, 366 F.3d 731 (9th Cir. 2004)
(quoting State of Cal. v. Block, 690 F.2d 753, 761 (9th Cir. 1982)).
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In the context of oil and gas leasing, the site-specific impacts occur in the
later stages of leasing and development. See Pennaco Energy, Inc. v. U.S. Dep’t of

Interior, 377 F.3d at 1151–52 (“BLM is initially charged with determining whether
the issuance of a particular oil and gas lease is consistent with the RMP. The lessee
must obtain BLM approval of an Application for Permit to Drill (APD) before
commencing any ‘drilling operations’ or ‘surface disturbance preliminary thereto.’”)
(quoting 43 C.F.R. § 3162.3-1(c)).
NEPA requires agencies to consider context and intensity when considering if
an action significantly affects the environment. 40 C.F.R. § 1508.27. When
considering site-specific action, “significance would usually depend upon the effects
in the locale rather than in the world as a whole.” Id.
Therefore, it was appropriate for BLM to defer site-specific health analysis to
later assessments or reports. BLM appropriately noted that it would provide more
localized details when it knew more about the specifics of development. This is not
to question the veracity or importance of the firsthand accounts and reports
Plaintiffs note; this is merely the improper procedural stage to raise such issues.
b. BLM’s discussion of general human health effects
of oil and gas development in the planning area
Plaintiffs argue that BLM has not sufficiently informed the public of health
impacts in the RMP. They claim that BLM only provides vague, unhelpful
assessments concerning risks to health including air quality, water resources
management, and chemicals associated with oil and gas production. Plaintiffs also
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argue that BLM’s plan in the RMP to provide for adaptive management or legal
compliance that would occur after the RMP was too subjective and did not assure
any health outcomes. ECF No. 24 at 34–36.
The RMP contained a sufficient discussion of how it describes air quality. AR
184826–34. This section contained substantive discussion of: the regulatory
structure for air quality; the current conditions, including ambient air pollution
concentrations, particulate matter, ozone, hazardous air pollutants, and visibility;
and characterization of air quality. Id. The RMP contained an additional discussion
on the impacts of air quality on physical, biological, and cultural resources. AR
185201–29. In part, this section discussed the environmental consequences of the
impacts on air quality based on each alternative and cumulative air quality
impacts. Id.
BLM provided a similar analysis concerning water quality. It discussed how
the RMP would affect water resources. AR 184849–57. It discussed the impacts of
fluid minerals, including oil and gas, on water resources. See e.g. AR 185276–78,
185280–82, 185764, 185769. It discussed the potential risks of hydraulic fracturing
and included in that discussion “public concern about contamination of freshwater
aquifers and water wells” and accordant studies. AR 185040–44.
Additionally, BLM instituted a Comprehensive Air Resources Protection
Protocol, which “describes the process and strategies the BLM will use when
authorizing activities that have the potential to adversely impact air quality within
the state of Colorado.” AR 188793. BLM responded to public comment to add that
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the RMP will incorporate additional analyses and monitoring of water quality. AR
223500. In response to comments, BLM also updated the RMP “to include more
comprehensive definitions and protections to municipal watersheds and public
water supplies.” AR 223501.
Plaintiffs argue in their Reply that BLM omitted from its analysis certain
powerful pollutants that were routinely detected in air monitors in the plan area.
ECF No. 28 at 18. However, as BLM noted, it is under no obligation to respond to
each study cited by Plaintiffs in their brief “or to provide an encyclopedic discussion
of potential health effects.” ECF No. 27 at 41.
In accordance with the discussion concerning tiering, BLM’s comments to
provide greater context and analysis in site-specific situations in the future, and the
deference I must give in situations of technical analysis, I find that BLM took a
sufficiently hard look in the RMP of human health impacts of oil and gas.
B. Consideration of alternatives
Plaintiffs argue that BLM’s range of alternatives violates NEPA by omitting
any option that would meaningfully limit oil and gas leasing and development
within the planning area. ECF No. 24 at 36. Plaintiffs note that “[o]f the 701,200acre mineral estate to be managed through the RMP, no alternative closes more
than 179,700 acres (or 25.7 percent) to future leasing—even though, in each
alternative, a significant portion of the areas left open to development have a low
potential for development.” Id. at 38–39.

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BLM explained its need to revise the then-enacted RMP by listing seven
major issues contributing to the revision. AR 184603. These issues included
managing recreation, protection of natural and cultural resources, managing
vegetation, and managing surface water and groundwater. Id. Also included was
“[m]anaging energy development, particularly regarding the designation of lands
available for fluid minerals leasing and the application of lease stipulations, to
protect cultural and natural resources and to minimize user conflicts.” Id.
These lease stipulations included no surface occupancy (“NSO”) and
controlled surface use (“CSU”). The NSO stipulation prohibits surface-disturbing
activities, thus “[a]ccess to fluid minerals resources would require horizontal and/or
directional drilling from outside the boundaries of the area with the NSO
stipulation.” AR 188349. The CSU stipulation “is a category of moderate constraint
stipulations that allows some use and occupancy of surface lands while protecting
identified resources or values.” AR 188350. A CSU stipulation allows “BLM to
require special operational constraints, including special design or relocating the
surface-disturbing activity . . . .” Id. In the RMP, the studied alternatives projected
between 239,400 to 356,700 acres covered under NSO stipulations and between
423,300 to 616,800 acres covered under CSU stipulations. AR 184620.
These stipulations interplay with the way development land is categorized for
its potential. BLM classified development areas as high, medium, low, and no
known potential. AR 185778. Within the defined areas, BLM found 20 percent of the
land rated as having high potential, 12 percent with medium potential, 46 percent
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with low potential, and 22 percent with no known potential. Id. BLM estimated that
99 percent of future wells would be drilled within high potential areas—totaling
127,300 acres—with the remaining one percent of future wells on areas with
medium or low potential. AR 185190, 185778. It added that “approximately 88
percent of the federal mineral estate in the planning area with high potential for oil
and gas ha[d] been leased.” AR 185762.
BLM noted that it did a cursory analysis of a no leasing alternative, but it
reasonably rejected calls to further explore a no leasing alternative when it
explained that because most of the high potential areas are already leased, “the
majority of future leasing would take place in lands adjacent to existing leases.” AR
223539. It added that, “[c]urrently there is no interest in leasing in areas outside
high potential areas.” Id. BLM stated that because “FLPMA mandates the BLM to
manage its lands for multiple uses and sustained yield,” BLM “eliminated such
alternatives as closing all BLM lands to oil and gas leasing, or managing all lands
for particular natural resource value to the exclusion of other resource use
considerations.” AR 184701.
Because of the low projected percentage of development on anything other
than high potential lands, BLM argues that a no leasing alternative was not
practically different than the studied alternatives, and thus BLM was not required
to consider an alternative where low and medium potential lands were closed for
leasing. ECF No. 27 at 14.

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Plaintiffs dispute this reasoning, claiming that those areas with low and
medium potential should be closed for leasing—especially if the potential for
development is so low—because BLM could then use that land more productively in
accordance with other values. ECF No. 24 at 39.
The NEPA framework concerning alternatives in a case such as this is well
explained by the Tenth Circuit, who wrote that
The “heart” of an EIS is its exploration of possible alternatives to the
action an agency wishes to pursue. 40 C.F.R. § 1502.14. Every EIS
must “[r]igorously explore and objectively evaluate all reasonable
alternatives.” 40 C.F.R. § 1502.14(a). Without substantive,
comparative environmental impact information regarding other
possible courses of action, the ability of an EIS to inform agency
deliberation and facilitate public involvement would be greatly
degraded. See Baltimore Gas & Elec. Co., 462 U.S. at 97, 103 S.Ct.
2246. While NEPA “does not require agencies to analyze the
environmental consequences of alternatives it has in good faith
rejected as too remote, speculative, or impractical or ineffective,” it
does require the development of “information sufficient to permit a
reasoned choice of alternatives as far as environmental aspects are
concerned.” [Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174 (10th
Cir.1999)] (quotations and alteration omitted). It follows that an
agency need not consider an alternative unless it is significantly
distinguishable from the alternatives already considered. Westlands
Water Dist. v. U.S. Dep’t of the Interior, 376 F.3d 853, 868 (9th
Cir.2004).
We apply the “rule of reason” to determine whether an EIS analyzed
sufficient alternatives to allow BLM to take a hard look at the
available options. Id. The reasonableness of the alternatives considered
is measured against two guideposts. First, when considering agency
actions taken pursuant to a statute, an alternative is reasonable only if
it falls within the agency’s statutory mandate. Westlands, 376 F.3d at
866. Second, reasonableness is judged with reference to an agency’s
objectives for a particular project. 30 See Dombeck, 185 F.3d at 1174–
75; Simmons v. U.S. Army Corps of Eng’rs, 120 F.3d 664, 668–69 (7th
Cir.1997); Idaho Conservation League v. Mumma, 956 F.2d 1508, 1520
(9th Cir.1992).
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New Mexico, 565 F.3d at 708–09.
In relevant part, the court in New Mexico found that the defendant should
have analyzed a management alternative that closed more than 17% of a certain
portion of the plan area to leasing. Id. at 709. The court found that the defendant’s
justification—that it reasonably had analyzed an alternative of no development in
the plan area as a whole—was in fact different than analyzing an alternative of no
development for the specific portion of land at issue. Id. (“While agencies are
excused from analyzing alternatives that are not ‘significantly distinguishable’ from
those already analyzed, [] the alternative of closing only the Mesa—which
represents a small portion of the overall plan area—differs significantly from full
closure.”).
The court reasoned that having considered an option of no development in the
planning area at whole did not relieve the defendant of the duty to consider any
other alternative along the spectrum between complete closure and the studied
alternative which provided for the greatest closure. Id. at 711, n.32. “Otherwise, an
agency could exclude any alternative it wished by considering (and rejecting) an
extreme.” Id. (citing Dombeck, 185 F.3d at 1175 (agencies must “take responsibility
for defining the objectives of an action and then provide legitimate consideration to
alternatives that fall between the obvious extremes.”)).
Here, the same issue is at play. BLM argues it reasonably considered a no
development scenario, yet that scenario considers the plan area at whole and is
succinctly discarded. AR 184701, 223539. However, Plaintiffs argue that BLM
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should have considered “an alternative eliminating oil and gas leasing in areas
determined to have only moderate or low potential for oil and gas development.”
ECF No. 24 at 37. This would be an alternative within the spectrum mentioned by
the court in New Mexico. 565 F.3d at 711, n.33.
I disagree with BLM’s argument that there is no substantive difference
between an alternative that opens low and medium potential areas for leasing and
one that does not. The basis of BLM’s argument here is that it was not required to
consider the latter option because such a low percentage of the low and medium
potential areas were projected to be developed. ECF No. 27 at 14–15. But if those
areas were open for leasing, even if there is a minimal chance for development, it
would detract from BLM designating that land for other uses.
As such, “the principle of multiple use does not require BLM to prioritize
development over other uses.” New Mexico, 565 F.3d at 710. Since a “parcel of land
cannot both be preserved in its natural character and mined” it seems a reasonable
alternative would be to consider what else may be done with the low and medium
potential lands if they are not held open for leasing. Id. (quoting Rocky Mtn. Oil &

Gas Ass’n v. Watt, 696 F.2d 734, 738 n.4 (10th Cir. 1982)).
BLM points to its field guidance, which reads that it should “close lands to
mineral development only when ‘other land or resource values cannot be adequately
protected with even the most restrictive lease stipulations.’” ECF No. 27 at 13–14.
However, this does not excuse the fact that BLM did not closely study an
alternative that closes low and medium potential lands when it admits there is an
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exceedingly small chance of them being leased. This alternative would be
“significantly distinguishable” because it would allow BLM to consider other uses
for that land. See New Mexico, 565 F.3d at 708–09. Therefore, BLM’s failure to
consider reasonable alternatives violates NEPA.

III.

CONCLUSION

I find the following regarding Plaintiffs’ Petition for Review of Agency Action:
Cause of action one: BLM failed, in part, to take a hard look at the severity
and impacts of GHG pollution. Namely, it failed to take a hard look at the
reasonably foreseeable indirect impacts of oil and gas.
Cause of action two: BLM took a sufficiently hard look at methane emissions.
Cause of action three: BLM took a sufficiently hard look at the impacts of oil
and gas on human health.
Cause of action four: BLM failed to consider reasonable alternatives to oil
and gas leasing and development.
Pursuant to the Order Granting Joint Motion for Procedural Order on
Parties’ Merits Briefing, the parties shall address remedies accordant with the
present Order in separate briefing. ECF No. 23.
It is ORDERED that counsel confer and attempt in good faith to reach
agreement as to remedies. If an agreement is not reached, the parties may submit
briefs. This briefing will consist of one brief from each party, not exceeding 4,000
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words, including everything from the caption to the certificate of service. It shall be
filed with the Court on or before December 3, 2018.
The Court DEFERS a final ruling on the remedies until further briefing is
received.

Dated: October 17, 2018 in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock__________
LEWIS T. BABCOCK, JUDGE

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Addendum
APA

Administrative Procedure Act

BLM

Bureau of Land Management

CRVFO

Colorado River Valley Field Office

CSU

Controlled surface use

EIS

Environmental Impact Statement

EPA

Environmental Protection Agency

FLPMA

Federal Land Policy and Management Act

GHG

Greenhouse gas

GWP

Global warming potential

NEPA

National Environmental Protection Act

NSO

No surface occupancy

RMP

Resource Management Plan

ROD

Record of Decision

40