August 2013 - Parks & Recreation - 35

Conclusion
As a result, the federal district court
held the BLM had " violated NEPA in
its environment assessment of the leases by unreasonably relying on an earlier single-well development scenario. "
That scenario did not adequately
consider the development impact of
hydraulic fracturing techniques popularly known as " fracking " when
used in combination with technologies such as horizontal drilling. Not
only was the environment assessment erroneous as a matter of law,
the BLM's finding of no significant
impact based on the assessment and
resulting decision not to prepare an
environmental impact statement also
was erroneous as a matter of law.
The federal district court, therefore, granted plaintiffs' motion for
summary judgment as to the NEPA
claims. According to the court,
" [p]ossible avenues of relief include
enjoining further surface-disturbing
activity pending EIS analysis, or in-

validating the improperly-granted
leases. " Instead, for the time being,
the court ordered " the parties to meet
and confer and submit an appropriate judgment " within two weeks for
the court's consideration.

James C. Kozlowski, J.D., Ph.D., is an
attorney and associate professor in the
School of Recreation, Health and Tourism at
George Mason University. Email: jkozlows@
gmu.edu. Webpage with link to Law Review
articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

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health risks or hazardous air pollutants. These risks, combined with
the parcels' proximity to certain important water resources, should have
been properly considered.
In the opinion of the federal district
court, BLM had " erroneously discounted the uncertainty from fracking that
may be resolved by further data collection. " According to the court, " the
government's inability to fully ascertain
the precise extent of the effects of the
activity is not...a justification for failing
to estimate what those effects might be
before irrevocably committing to the activity. " On the contrary, the court found
preparation of an EIS is " mandated
where uncertainty may be resolved by
further collection of data, or where collection of such data may prevent speculation on potential effects. "

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Parks & Recreation

August 2013 - Parks & Recreation

Table of Contents for the Digital Edition of August 2013 - Parks & Recreation