EPA disputes ‘alternative approach’ that OK’d huge oilfield

The Bureau of Land Management improperly used an “alternative approach” to predicting air pollution from a 5,000-well oilfield, the U.S. Environmental Protection Agency said as it joined a chorus of critics blasting approval of the Delaware-sized development near Douglas.

The federal environmental watchdog filed its objection to the agency’s decision along with 13 stakeholders that either objected to or protested against the final study. Those range from the Wyoming Game and Fish Department to an area rancher, from five drilling companies to the National Audubon Society, nine other conservation groups and numerous Native American tribes.

In addition to pollution worries, critics say the Dec. 23 approval of the Converse County Oil and Gas Project by Secretary of the Interior David Bernhardt will unjustifiably fragment wildlife habitat, doom greater sage grouse breeding leks and use more than twice the amount of water predicted. Development will degrade nesting sites of kestrels, owls and other raptors because the BLM won’t keep construction away during breeding and nesting season, they say.

Approval failed to honor treaty rights, Native American tribes say, as well as requirements to consult with them, thus violating federal laws. The development, which encompasses 2.4% of Wyoming’s landscape, suffers from “legal and technical errors,” critics contend. 

The EPA had urged federal oil and gas regulators for years to hew to its national air quality standards. Proper EPA methods for assessing air quality predict pollutants “higher than those reported” by the BLM, the environmental agency wrote.

But the BLM rebuffed the agency as it crafted its environmental impact statement and approval over six years. It also dismissed alarming comments from the Wyoming Game and Fish Department that the BLM had chosen a plan “most impactful” to wildlife.

“[I]t is unfortunate that the preferred alternative does not emphasize or encourage the reduction or consolidation of surface disturbance,” Game and Fish wrote. “Reducing the overall acreage that is disturbed in the short and long-term is the most reliable means of mitigating impacts to wildlife.” 

The BLM approval “represents a maximum development scenario with anticipated adverse impacts to wildlife resources,” Game and Fish wrote. Neither the EPA nor Game and Fish letter was a challenge that sought to overturn the BLM approval.

The BLM spent $6.5 million on the approval studies. Yet the agency came up short, conservationists contend.

“When you approve an oil and gas development the size of Delaware, you need to take every measure and opportunity you can to reduce its footprint and harm on an ecosystem,” said Nada Culver, National Audubon Society’s vice president for public lands. Her group sought compromise, she said, but BLM “just flat refused to consider that here.”

Politicians, jobs and money

When it rolled out its approval, BLM quoted a variety of state and federal officials who lauded the proposed development and the projected 8,000 jobs and $18 billion to $28 billion in federal revenues.

“We are proud of our state’s fossil fuels,” U.S. Rep Liz Cheney said in a statement. The plan meets one of Gov. Mark Gordon’s goals “to provide actual year round drilling opportunities,” he said in a statement. U.S. Sen. John Barrasso called approval “welcome news for jobs and oil and gas development.”

Glenrock resident James K. Parsons offered a street-level view from the edge of the new field as he backed the development. Approval, he wrote in comments on the final environmental study, “would truly be life changing for my family.” 

The Converse County Oil and Gas Project in east-central Wyoming is about 4.5 times the size of the Moneta Divide field approved last year near Shoshoni.

Development would alter 76,595 acres, just over 5% of the project area, lacing the landscape with 1,500 drill pads averaging three wells per pad. Developers would build roads, pipelines, electric lines, gas processing facilities and wastewater disposal wells. The field would take 10 years to construct and last for another 20, according to approval documents.

In its review, the BLM said authorizing no new development would be the “environmentally preferred” alternative. Even without approval of the operators’ plans, 1,665 new wells, a third of the proposal, still could be drilled, BLM said. 

Seventeen percent of the project area is public land; the other 83% is private. Both the government and private entities own different parts of the underlying oil and gas; the BLM administers about 64% of the minerals.

Slightly more than half the area is subject to divided property ownership of mineral and surface rights known as a split estate.

The interwoven interests may create friction among users, including with the WI Moore Ranch Co. Inc., which wrote that BLM underestimated the amount of water needed for drilling by 1.5 billion barrels — some 63 billion gallons. “[A]ny analysis done on the numbers provided by the Operators in regards to water use is not valid and should be rejected as wholly insufficient,” a ranch representative wrote.

BLM can’t say how many wells might be drilled on public versus private land, BLM spokeswoman Courtney Whitman said, “since we don’t regulate or have decision making authority on this aspect.” Landowners should be able to authorize access, she said, a position Powder River Basin Resource Council attorney Shannon Anderson contested. On split-estate land, owners “have very limited ability to say no,” Anderson said.

Raptor nests, grouse leks 

Environmental critics are particularly worried about the effect of development on raptors and migratory birds. BLM removed protections of breeding and nesting sites for nine species of non-eagle raptors.

Development rules usually prevent construction near those sites during certain periods. “When they’re nesting and breeding you’re not supposed to drill,” Anderson said. 

The BLM will scrap those restrictions at 98 sites for a year each, then consider allowing further disturbance at other sites.

The move will affect species such as burrowing owls, considered by the U.S. Fish and Wildlife Service as birds of concern. Kestrels, owls, hawks and others that rank as species of greatest conservation need by Wyoming Game and Fish also will be harmed, conservation groups say.

The project area contains an Audubon Important Bird Area and an American Bird Conservancy Globally Important Bird Area, critics say. One raptor that won’t be protected, the Swainson’s hawk, migrates as far as Argentina.

All told, critics contend there are 481 non-eagle raptor nests in the area. Removal of the protections could set a precedent, they say.  Operators say intrusion on raptor breeding and nesting areas will “facilitate more consistent operations” — the year-round drilling and construction that Gov. Gordon hailed.

BLM worked on a migratory bird conservation plan for the development, Audubon’s Culver said, but never used it. The oilfield approval came as the Trump administration fought in court to weaken the Migratory Bird Treaty Act and its implementing rules.

The administration has lost legal arguments, Culver said yet forges ahead, saying “we don’t agree with the judge … we’ll keep on going.’”

Critics worry about greater sage grouse too, charging that the amount of landscape the BLM allows the developers to disturb exceeds limits set by state conservation rules.

Three of five areas inside the development — the Douglas, North Glenrock and Thunder Basin areas — already exceed a 5% landscape development-disturbance cap contained in Gordon’s executive order protecting greater sage grouse, Western Watersheds Project wrote the BLM. Yet more disturbance is on the way and “we’re scratching our heads, how BLM can do that?” said Kelly Fuller, energy and mining campaign director at Western Watersheds.

New development will likely lead to the abandonment of all 54 leks — greater sage grouse breeding grounds — that have been identified in the project area, Audubon wrote.

Changed players

The energy scene and players have changed significantly since five companies initially sought approval of the field in 2014. Anadarko Petroleum Company, Chesapeake Energy Corporation, EOG Resources, Inc., Devon Energy and SM Energy applied for the development. Only one of those companies survived the intervening turmoil in the fossil fuel marketplace in its previous form.

Two have been sold, one filed for bankruptcy and one merged. Anadarko and SM sold to Occidental Petroleum and Northwoods Operating LLC, respectively. Devon completed an all-stock merger with WPX energy, which now expects layoffs. Chesapeake Energy filed for Chapter 11 bankruptcy in 2020, stating it could not manage its $9 billion debt.

Original applicant SM had characterized itself as a “premiere operator of top tier assets” while new owner Northwoods is “a portfolio company of funds” affiliated with Apollo Global Management.

Occidental values its “highly prospective” Powder River Basin holdings, according to the company, and retained them when it recently sold much of its Wyoming land-grant assets. EOG, the largest oil and gas producer in Wyoming, remains the sole original applicant.

Those changes and the incoming Biden administration’s energy priorities raise questions regarding the pace of development and ultimate value of the field. “There’s a lot of uncertainty,” Anderson said.

The operators see “many benefits to the State of Wyoming” from the development, Creighton Welch, a spokesman for EOG and its fellow operators, wrote in an email. The operators’ group also believe the approved plan provides “ample protection for wildlife, habitat and other resources,” he said. 

BLM’s approval of the operators’ plan delays many thorny decisions until the companies apply to drill. Some wells can be approved without further significant review, Fuller said, while involvement in the approval of others is hard to participate in.

“That means the public gets cut out,” Fuller said of the deferred analysis of impacts. “They make it as difficult as they possibly can once they’ve made this overall approval,” she charged. “Nobody has the staff to be able to track 5,000 [well drilling] applications.”

The BLM received 14 letters challenging its final plan, rejecting four “protests” and dismissing the rest as invalid filings or simple comments. National Audubon protested the approval along with the Wyoming Outdoor Council, Powder River Basin Resource Council, National Parks Conservation Association, The Wilderness Society, Audubon Rockies and the Natural Resources Defense Council. Western Watersheds Project filed a protest along with American Bird Conservancy and Center for Biological Diversity.

The Oglala Sioux Tribe and Great Plains Tribal Water Alliance, tribes that signed the 1851 Treaty of Fort Laramie and 1868 Fort Laramie Treaty, also saw their protests rejected. The treaties gave tribes water, hunting and gathering rights, among others, the tribes said. 

Operators and the BLM accounted for tribes’ worries, EOG’s Welch said.

“EOG takes its commitment to our communities seriously, and that includes respecting tribal resources and honoring the cultural, social and religious beliefs and traditions of others…” he wrote. “Our goal in these efforts is to address site-specific concerns based on stakeholder input, local knowledge and cultural preservation best practices.”

“This isn’t the end of the process,” BLM’s Whitman said. “We’re required to do that tribal consultation, as well as a more site-specific round of [National Environmental Policy Act analysis],” she said. That will happen before individual construction projects begin, she said.

A complete review?

The BLM rushed the analysis in the waning days of the Trump administration, Culver said. She pointed to a “glossing over” of greater sage grouse conservation and no BLM response to sharp questions about the bird’s future. “They just didn’t respond at all,” she said.

“I know they’re in a rush,” Culver said. “How else do you explain that sage grouse response?”

If BLM ignored Audubon on grouse, it did provide the EPA with its reasoning for allowing more air pollution. EPA engaged the land and minerals agency from the start of the analysis providing a “detailed explanation” of why the BLM should use EPA methodologies in predicting whether air pollution will violate federal standards.

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BLM first said EPA, which sets National Ambient Air Quality Standards, employed an inaccurate approach to gauge impact. EPA’s estimates are based on “impacts for stationary sources that remain in a given location for multiple years,” BLM contended. Instead, drill rigs and such usually don’t operate in a single location permanently.

EPA countered, saying that while a rig might move, it could, essentially, continue working all year. BLM’s “alternative approach” to predicting air pollution “did not align with EPA’s methods,” EPA wrote. That departure from standards makes it impossible to compare model results to the air standards, EPA said.

Operators sided with the land and minerals agency, which said it, the BLM, lacked authority “to require application of the air quality mitigation measures.”

BLM had the final word. It  “may rely,” on Wyoming’s DEQ “to ensure permitted activities do not exceed or violate any state or federal air quality standards under the Clean Air Act,” the agency said.

Wyoming’s DEQ, would be the agency that would patrol for any violations, BLM said. That state agency, BLM said, “is subject to oversight by the EPA.”

We added a sentence to this story Jan. 15 to clarify that neither the EPA nor Game and Fish letter was a challenge that sought to overturn the BLM approval — Ed.