Court Stalls Fracking Leases in Ohio’s Only National Forest
Ruling: Feds Overlooked Danger to Air, Wildlife, Watersheds
COLUMBUS, Ohio? A federal judge today stalled oil and gas leasing in Ohio’s Wayne National Forest, ruling** that the Trump administration failed to consider threats to public health, endangered species and watersheds before opening more than 40,000 acres of the forest for fracking.
U.S. District Judge Michael Watson said the U.S. Forest Service and U.S. Bureau of Land Management “demonstrated a disregard for the different types of impacts caused by fracking in the Forest. The agencies made decisions premised on a faulty foundation.” Watson’s ruling requires the agencies to redo their environmental analysis of the potential harms from fracking in the Wayne.
“We’re thrilled the court is requiring the Trump administration to examine fracking’s serious threats to our air, water and forest wildlife,” said Wendy Park, an attorney at the Center for Biological Diversity. “Fracking is a dirty, dangerous business. This ruling helps ensure the health of this spectacular forest and its endangered animals and protects the water source for millions of people.”
In May 2017 conservation groups sued the Forest Service and the BLM over plans to permit fracking in the Wayne, saying federal officials had relied on an outdated plan and ignored significant environmental threats before approving fracking in the forest. The lawsuit also aimed to void two BLM lease sales. The court will decide later whether to void those existing leases, but a planned March sale will likely be postponed.
In today’s ruling, the judge said the agencies ignored potential harm from fracking to endangered Indiana bats, the waters of the Little Muskingum River and the region’s air quality.
“This is a huge win for people, for wildlife and for the forest,” said Nathan Johnson, attorney and public lands director for the Ohio Environmental Council. “This effort dates back to at least 2011, when southeast Ohio communities came together to oppose fracking in the Wayne. Today’s ruling is a culmination of citizen effort and it reaffirms that federal agencies must consider the environmental impacts of oil and gas development.”
The BLM’s leasing plan would industrialize Ohio’s only national forest with roads, well pads and gas lines, the lawsuit asserts. This would destroy Indiana bat habitat, pollute watersheds and water supplies that support millions of people, and would endanger other federally protected species in the area.
“Today’s victory is a result of the tireless efforts from communities across southeast Ohio,” said Elly Benson, attorney for the Sierra Club. “We applaud this decision that will help protect the Wayne National Forest from fracking, allowing Ohioans ? and people from all over ? to continue to enjoy and explore the forest.”
The Center for Biological Diversity is a national, nonprofit conservation organization with more than 1.7 million members and online activists dedicated to the protection of endangered species and wild places.
Here are some gems from the Court order:
A USFS Regional Office review of an internal draft of the 2012 SIR’s water source review is rife with comments pointing out how flimsy the 2012 SIR’s and in turn the 2006 EIS’s water resource review was. For example, when explaining that the Forest Hydrologist considered a “vast amount of information related to oil and gas fracturing activities,” the reviewer noted that “Sounds like the analysis of it the Plan EIS was not adequate…[t]he fact that the hydrologist had to consider vast amounts of information leads to the conclusion that the 2006 Forest Plan and EIS did not sufficiently account for the issue of fracking”…But instead of addressing the potential flaws raised by the comments, USFS removed the paragraphs at issue from the final 2012 SIR and replaced them with general language indicating that Ohio’s laws adequately protect water usage….Indeed, as the USFS commentator point out, “a lot of the material in the groundwater and surface water effects section is a restatement of standards, regulations, etc. rather than an actual effects analysis.” The Court could not have said it better. As is highlighted by the USFS reviewer’s comments, what is lacking from USFS’s review are the actual effects of the increased water needs for fracking in the Forest. What we have is basically a regurgitation of the 2006 EIS’s water plan discussion for conventional drilling, but there is no analysis or reasoned discussion of how, or whether, the vast amounts of water needed for fracking will pose different environmental risks. The Court finds that the 2006 Forest Plan and EIS did not sufficiently address the new and different impacts of fracking on water usage, particularly how fracking would affect the Little Muskingum River. The 2012 SIR’s cursory and conclusory review of the cumulative impacts on water depletion in the Forest from fracking did not cure the deficiency. (pp. 56-57)
…conclusory justifications…are meaningless when the record is devoid of any analysis or discussion of how the Little Muskingum River would be impacted by fracking activities in the WNF. (p. 59)
The Court cannot conclude that impacts of fracking on the Indiana Bat were reasonably considered when the only supporting document – the 2005 BIOp – did not consider it at all, and the total surface disturbance, which impacts their habitats, was not adequately addressed. (p. 61)
USFS cannot tier its review [of air quality impacts] to the 2006 EIS if the air quality impacts of oil and gas leasing were not analyzed in that document. p. 65
NEPA is not designed to postpone analysis of an environmental consequence to the last possible moment. Rather, it is designed to require such analysis as soon as it can reasonably be done.
Federal agencies must comply with the requirements of NEPA and reach reasoned decisions on issues of environmental concern. Disclosure of information critical to decision-making is a primary function of NEPA. [T]he Court finds that USFS’s and BLMs failure to analyze the foreseeable impacts on the air quality from fracking activities was arbitrary and capricious.
The agencies made decisions based on a faulty foundation that the 2006 Forest Plan’s and 2006 EIS’s consideration of vertical drilling sufficiently accounted for the impacts of fracking. Each iteration of agency review built upon that faulty foundation – the 2016 EA relied on the 2012 SIR, which relied on the 2012 BLM letter, which relied on the 2006 Forest Plan and 2006 EIS – but neither USFS nor BLM stopped to take that ‘hard look’ that was required of them. Specifically, the Court finds that at the decision-to-lease phase, USFS and BLM failed to take a hard look at the impacts of fracking in WNF, including 1) surface area disturbance, 2) cumulative impacts on the Indiana Bat and the Little Muskingum River, and 3) impacts on air quality.
The Court agrees that additional briefing on remedies is the most prudent course of action to take.