American Oil and Gas Reporter - November 2019 - 80

Two ESA Rulings Present Roadblocks
Roadblocks to oil and gas development
under the guise of protecting endangered
species continued to arise in October as
conservation groups sued the U.S. Fish
& Wildlife Service to extend federal protections to the dunes sagebrush lizard,
and an Idaho judge stayed the Trump administration's revisions to Obama-era
greater sage grouse habitat protection
plans in seven western states.
On Oct. 1, the Texas Independent Producers & Royalty Owners Association
reports, Defenders of Wildlife and the
Center for Biological Diversity filed a
lawsuit in the U.S. District Court for the
District of Columbia to force USFWS to
determine whether the dunes sagebrush
lizard deserved protection under the Endangered Species Act. The lawsuit also
names Interior Secretary David Bernhardt
and Principal Deputy Director Margaret
Everson as defendants.
In their lawsuit, the two point out that
CBD first petitioned USFWS to list the
lizard in 2002. In 2010, the service issued
a proposed rule to list the lizard, but
withdrew that proposal in 2012, citing
both the Texas Conservation Plan, which
it had approved in February of that year,
as well as New Mexico conservation
agreements (AOGR, July 2012, pg. 31).
Texas Comptroller Glenn Hegar withdrew the state's first conservation plan
last year and, in its place, submitted an
updated Candidate Conservation Agreement with Assurances, which TIPRO says
still is awaiting federal approval.
CBD and the Defenders again petitioned USFWS in May 2018 to list the
dunes sagebrush lizard, contending the
confidentiality of voluntary habitat-protection plans prevented USFWS from
knowing how much habitat was being
protected, and that Texas' original plan
failed to address fracture-sand mining
(AOGR, June 2018, pg. 17).
TIPRO President Ed Longanecker
calls the lawsuit "another unwarranted
attack against the industry and the development of fossil fuels. As oil and gas
companies expand drilling in the Permian
Basin and elsewhere, they remain conscious of the impact to the surrounding
environment, and that includes sensitivity
to the species and plants that are native
to the surrounding areas.
"As seen through participation the last
seven years in the state's landmark conservation plan, Texas producers are committed to voluntarily taking steps to protect
species such as the dunes sagebrush lizard
and their habitats," Longanecker says. "Although activists may not want to acknowl80 THE AMERICAN OIL & GAS REPORTER

edge it, our industry has spent millions of
dollars on efforts to protect the lizard."
Adds the Independent Petroleum Association of America, "Voluntary conservation efforts, led by the oil and natural
gas industry, have evolved in the past
decade in a way that emphasizes measurable protections of imperiled species
and ecosystems that allows for responsible
development to coexist. IPAA member
companies remain committed partners in
species and habit conservation across
Texas and New Mexico."
The Permian Basin Petroleum Association is disappointed, although not surprised by the lawsuit, President Ben Shepperd is quoted in an article appearing in
the Midland Reporter-Telegram.
"We are not discouraged by these lawsuits," Shepperd states. "The industry
will continue to do the right thing, which
is to protect the environment and protect
species. We hope our actions will lead to
preventing the lizard's listing again."
Enjoin Sage Grouse Plans
On Oct. 16, Judge B. Lynn Winmill in
the U.S. District Court for the District of
Idaho, granted four plaintiffs' request to
enjoin the U.S. Bureau of Land Management from implementing the sage grouse
resource management plan amendments
for Idaho, Wyoming, Colorado, Utah,
Oregon and Nevada/northeastern California
that it approved in March this year.
IPAA mentions that earlier in October,
Winmill also denied a motion by BLM
and the U.S. Forest Service to split the
lawsuit among the various states involved.
The 2019 plan amendments replaced
2015 RMPs issued during the Obama
administration that utilized a tiered approach of increasing restrictions in areas
identified as General Habitat Management
Areas (GHMA), Priority Habitat Management Areas (PHMA) and Sagebrush
Focal Areas (SFA) that industry calculated
placed some sort of development limitation
or restriction on 66 million acres (AOGR,
July 2015, pg. 167).
Judge Winmill's injunction leaves the
2015 RMPs in place.
The 2019 amendments retain the PHMA
designation for more than 29 million acres
of sagebrush steppe, where the management
priority is to exclude or avoid disturbance
and minimize effects where impacts can't
be avoided (AOGR, April 2019, pg. 18).
They also keep the GHMA designation
for 23 million acres, in which avoidance
and minimization are applied flexibly,
in line with local conditions and states'
species management objectives. The 2019

amendments remove all but 1.8 million
acres of the 10.7 million acres the 2015
RMPs designated as SFAs, in which oil
and gas drilling either is banned or severely limited.
The lawsuit was filed by the Western
Watersheds Project, WildEarth Guardians,
CBD and the Prairie Hills Audubon Society. It names BLM, the USFS and Assistant Secretary of the Interior Janice
Schneider as defendants.
Court documents point out that the
plaintiffs originally challenged the 2015
RMPs, contending BLM and USFS artificially minimized harms to sage grouse
by segmenting their analyses into 15 subregions without conducting a rangewide
evaluation. After BLM released its 2019
amendments, the court documents note,
the plaintiffs amended their complaint to
also accuse the federal agencies of:
· Failing to evaluate climate change
impacts; and
· Generally removing sage grouse
protections that were unjustified by science
or conditions on the ground.
Best Available Science
In his ruling, Judge Winmill determines
that the "best available science concerning
the sage grouse" is contained in the
Report on National Greater Sage Grouse
Conservation Measures, which was released in December 2011 by "a national
technical team of sage grouse experts."
One conclusion of that report, Winmill
observes, is that "There is strong evidence
. . . that surface-disturbing energy or
mineral development within priority sage
grouse habitats is not consistent with the
goal to maintain or increase populations
or distribution."
In agreeing with the plaintiffs' contentions, Winmill writes, "The stated purpose of the 2019 plan amendments was
to enhance cooperation between BLM
and the states by modifying BLM's (sage
grouse) protections to better align with
plans developed by the states. While this
is well within the agency's discretion,
the effect on the ground was to substantially reduce protections for sage grouse
without any explanation that the reductions
were justified by, say, changes in habitat,
improvement in population numbers, or
revisions to the best science.
"There is a serious issue in this case
whether the BLM neglected to evaluate
a serious environmental consequence or
failed to consider an important factor-
that is, whether the BLM based its reductions on protections for the sage grouse
on something other than merely a desire

American Oil and Gas Reporter - November 2019

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