Matthew’s post on oil and gas leasing reminded me of one of the annoying aspects of being involved in litigation, at least for me. I had been following climate and climate science seriously since the 90’s from the R&D perspective. And I found myself in NEPA, where conceivably we were supposed to use “the best science.”
NEPA asks the USG to look at the environmental impacts of its actions. It does not force the USG to choose the least impactful choice. And I have read many news stories about BLM O&G leasing that simply accept that “the judge said that they did not analyze the impacts correctly.” No one wants to hear the other side, or the details of the analysis. Especially when the impacts are about climate change, which is world-wide, obviously, and shall we say.. speculative, and contested.
This goes back to “what is speculative” and “how far should analyses go?”
You might wonder “how could this (the BLM didn’t analyze it right” happen so often?” “Can’t the BLM folks get it right?” But that raises the question, “is there a “right way”?
You don’t have to have a Ph.D. in energy sciences to think this through. Again, during the Obama Administration, CEQ had a number of listening sessions about analyzing climate change. At the one I attended, all the NEPA people said that analyzing climate impacts of use of fossil fuels is at the power plant permitting or other “use” stage, not the “getting it out of the ground” stage. Of course, there are impacts of “getting it out of the ground” and we have some idea of those, and they can be readily analyzed.
But let’s look at “how much will drilling one lease’s worth of O&G wells here in on the federal lands of the US contribute to climate change, and what will be the effects to the world, say, toad populations in Malaysia?”
Now if we look at demand, (or even our own history with forest trees) we note that substitution occurs when resources are not available from federal lands. As to oil and gas, we know where the other formations are on private land that could be tapped. And due to the vagaries of the investo-econosystem with some international security issues thrown in, we might get them instead from our friends (or not-so-friends) in Saudi Arabia, Venezuela and Iran. (That’s oil, but substitution also works for natural gas).
So do we figure out where substitution might occur from and analyze that? Not really. Of course, any of those countries could become unfriendly at the drop of a hat and your analysis would no longer be accurate (“approved with outdated NEPA”).
The assumption is that the impacts on climate change from this project will occur if the project is approved. And of all the coal and oil and gas being developed around the world, even if we believed this lack of substitution theory, how would we discern impacts from x amount of CO2? X being a tiny amount of the total. And we don’t know the impacts of even large amounts, in reality. Because we don’t know what will happen, and we don’t know how people and organisms will adapt. So we are making policy based on essentially some scientists’ best guesses. So how do you pick the scientists the judge will agree with in advance?
From my perspective, we are making USG employees jump through all kinds of bizarre analytical hoops. and most of us know that it’s all BS. Then there was the social cost of carbon, which is quite a silly number also. But it doesn’t matter which number you pick to analyze, the USG can still decide to go with actions that have some kind of negative impacts on climate change.
The fact is that some groups don’t want oil and gas on federal lands. Some groups don’t want oil and gas on private lands either, but if your favored tool is litigation, then going after private lands won’t work as well. As Chief Jack Ward Thomas said, DOJ settlements can actually be another tool the Admin has to gain their favored goals.
The frustrating part is not that some groups don’t want oil and gas drilling, and use critiques of analysis to get their way. That’s a legitimate policy tool that folks have been able to use to get their way. It was frustrating that most of us at the science end know that the numbers are bogus, and have to use them anyway. I actually think lawyers and judges know they are bogus also. Perhaps we’re all pretending to the citizens of the US that the Emperor is wearing fine clothes.
“(I)s there a “right way”? Here is what the court said in the first (2019) case. The fundamental problem was that the BLM didn’t quantify the effects of leasing, even though there was information in the record that showed they could have done that.
“In determining what effects are ‘reasonably foreseeable,’ an agency must engage in ‘reasonable forecasting and speculation,’ with reasonable being the operative word” (citing the D.C. Circuit Court of Appeals).
“BLM could have expressed the forecasts as ranges, and it could have explained the uncertainties underlying the forecasts, but it was not entitled to simply throw up its hands and ascribe any effort at quantification to “a crystal ball inquiry.”
“In sum, given the mix of information available to BLM at the leasing stage, NEPA
required that BLM reasonably quantify the GHG emissions resulting from oil and gas
development on the leased parcels in the aggregate.”
“The EAs’ sparse discussions of downstream GHG emissions are insufficient under NEPA, given BLM’s ability to forecast oil and gas production and given that the entire purpose of oil and gas leasing is to generate a greater supply of oil and gas for downstream use.”
(Cumulative effects analysis) “does, however, require that BLM quantify the emissions from each leasing decision—past, present, or reasonably foreseeable—and compare those emissions to regional and national emissions, setting forth with reasonable specificity the cumulative effect of the leasing decision at issue.”
These quantitative analyses, combined with a robust qualitative discussion of local, regional, and national climate change, would satisfy NEPA’s hard look requirement.”
“BLM could have expressed the forecasts as ranges, and it could have explained the uncertainties underlying the forecasts, but it was not entitled to simply throw up its hands and ascribe any effort at quantification to “a crystal ball inquiry.”
t seems to me that reasonable people can disagree on what is “reasonable and foreseeable”..
Here’s how I look at it. 1. We can estimate how much oil and gas will come from a field.
2. It is reasonable to think it will be used.
3. If it were not used, other O&G from the Saudis or elsewhere will be substituted. Depending on the end product, there will also be transportation fuel differences. And national security implications which aren’t covered by NEPA (and yet hopefully make it into government decisions, otherwise the military would disavow fossil fuels).
4. As we see today, substitution is a reasonable projection since that’s what actually is happening. It appears that judges are asking the BLM to project impacts of use without substitution. Which is not realistic. It seems to me that it places BLM in a difficult position. While the court decision says that “the point of leasing is to generate a greater supply of oil and gas for downstream use” perhaps “the point of leasing is to substitute domestically produced oil and gas for imports to supply domestic demand”. I wonder which branch of the USG gets to determine that? I would guess the Congress.
Yes. the BLM could quantify emissions from a given lease.. but what is “reasonably foreseeable”? Was it reasonable to assume that given Prez Biden’s pledge to stop oil and gas leasing, that there would be no more? How on earth could anyone project court decisions about the legality of delaying leases, or the fact that so many fewer leases were allowed in this Admin? What if the Admin were to change?
It’s not the current, but the future that is hard to predict. Certainly the BLM could compare the past and present of this lease to past and present regional and national.
And what on earth is a “robust qualitative discussion” of “local regional and national climate change”. Conceivably the BLM could do this once for all leases. But this has a great deal of “bring me a rock” ish ness… as in “Bring me a rock”, “no, not that rock.”
If say a group could be empaneled of judges and others to say exactly what they wanted, and give an imprimatur to a specific level of analysis, that would be different. Because all this is is a certain level of GHG’s which would have identical effects (in terms of AGW) no matter where the production is done.
What we learned in management was to be clear about direction.. of course, this can demoralizing because it is exactly the opposite. The court’s decisions are fairly vague, e.g. “robust qualitative discussion”. Clearly judges can and will differ in exactly what that looks like. And a good convo might be if there were a panel of judges to which you could send a draft and they could review it (again, you’d really only have to do this once as GHG impacts are not local). Then everyone could go on about their business.
“It appears that judges are asking the BLM to project impacts of use without substitution.” I don’t think so. The court said BLM omitted the direct effects. They also have to look at the reasonably foreseeable indirect and cumulative effects, and if this doesn’t get to substitution, the court is not saying they can’t consider that in their decision.
what is “reasonably foreseeable”? That is based on the proposed action if it is implemented. The likelihood of the proposed action actually being implemented isn’t relevant to the NEPA requirements.
And what on earth is a “robust qualitative discussion” of “local regional and national climate change”. I think this is a reference to the qualitative discussion the BLM had already done, and put forward in its defense, which the court determined was inadequate by itself.