Appalachian Basin

Wayne National Forest Fracking Lawsuit a Prime Example of Activists’ “Litigious Battles to Drive Regulation”

EID recently highlighted that national fringe environmental groups have promised “litigious battles, to drive regulation” as part of their goal to ban fracking. That effort is playing out in Ohio, where the Center for Biological Diversity, Ohio Environmental Council, Heartwood and the Sierra Club have an axe to grind with the Bureau of Land Management (BLM) and the U.S. Forest Service (USFS) after their numerous protests against leasing in the Wayne National Forest failed to derail the administrative process within those agencies. With deep pockets and national support, these environmental groups have now decided to sue the BLM and USFS in federal court in hopes of a de facto moratorium on fracking in the Wayne National Forest from the bench.

First, it’s important to note that the author of this lawsuit— Center for Biological Diversity (CBD) — is an extremist “multimillion dollar litigation factory” that brags about ignoring science and the law in pursuit of its agenda. CBD doesn’t particularly care about the outcome of any particular case it files and is the ultimate practitioner of a “throw it against the wall to see if it sticks” legal philosophy. The numerous press releases CBD authors clearly indicate the organization’s core strategy is to pour sugar into the gas tank of the regulatory process in order to disrupt the process as much as possible. At CBD, wasting the time and energy of industry, regulatory agencies and the court system – not to mention taxpayer dollars – is a way of life.  CBD’s Ohio lawsuit is a perfect example.

A close look at CBD’s Ohio lawsuit against the BLM reveals that it is simply a hodgepodge of complaints the groups have litigated in the past, such as the claim USFS should have conducted more environmental reviews when it established its Forest Plan and supplemental review. The suit also takes aim at the BLM’s most recent extensive Wayne National Forest environmental review process, alleging the agency did not go far enough nor include enough public comment opportunities. Lastly, the lawsuit targets a litany of accusations made over alleged violations of the Endangered Species Act. In short, this new suit essentially calls into question a comprehensive environmental impact review process that’s taken place since 2006 and entirely discounts all of the due diligence both agencies have made to fully vet leasing in the Wayne from an environmental perspective. The BLM Environmental Assessment is 209 pages, after all, and the response to the December protest adds another 38 pages of rebuttal.

Here are the three primary complaints against the BLM and USFS in the Center for Biological Diversity lawsuit, and the rebuttal found in the 208-page Environmental Assessment and 38-page decision of protest denial:

Complaint: “BLM and the Forest Service failed to take a ‘hard look’ at how the Wayne National Forest’s many natural values would be impacted by fracking and horizontal drilling, in violation of NEPA’s requirement for federal agencies to disclose significant environmental effects of their proposed action … the failure of the Bureau of Land Management (BLM) and U.S. Forest Service to comply with the National Environmental Policy Act (NEPA) in authorizing oil and gas leasing in Ohio’s Wayne National Forest.”

Fact: Though these environmental groups are suing because they feel the entire five-year process has simply not met their standards, the NEPA standard by which the agency is actually required to comply has been sufficiently satisfied. Page 30 of the BLM Environmental Assessment clearly gets right down to the heart of this issue.

Complaint: “The Forest Service relied on a decade-old Forest Plan that predates the fracking boom, and a 2012 ‘Supplemental Information Report’ that was never subject to public notice and comment, to conclude that fracking involved no greater or more severe effects than conventional oil and gas development. Likewise, BLM rushed the preparation and approval of an Environmental Assessment (EA) and Finding of No Significant Impact.”

Fact: EID has covered the issue of “public comment” time and time again, and the complaint that the agencies “rushed” their decision is hysterical given that the agency took almost five years to allow leasing.  Pages 5 and 6 of the record of decisions debunks this entire claim, and part of the agency’s response can be found here:

EID has covered the history of this five-year process, starting in 2012 when the we highlighted the noteworthy changes that were made to the 2006 Forest Plan to reflect horizontal drilling, such as updated language pursuant to casing and regulation in Ohio, hydraulic fracturing, orphan wells acting as conduit, fluid migration, and forest fragmentation.

Complaint: “Several listed species will be harmed by BLM and Forest Service’s plan to allow new oil and gas development in the Wayne National Forest’s Marietta Unit, including the Indiana bat, Northern long-eared bat, fanshell, pink mucket pearly mussel, sheepnose mussel and snuffbox mussel.”

Fact:  Pages 30 and 31 address all of these endangered and threatened species and these pages reference specific sections of the Environmental Assessment as well. In fact, of the 208 pages of assessment, a significant section is specifically outlined to address the Endangered Species Act, such as found in the section below from Page 48 of the EA.

The only tangible action these anti-fracking activists are accomplishing with this most recent “litigious battle” is an attempt to regulate from the bench, as a last-ditch effort to derail shale development in the Wayne National Forest.  Of course the entire exercise for the government to defend itself, yet again, is a colossal waste of time and taxpayer money. The irony of this is that, simultaneously, the leasing of federal minerals in the Wayne has already brought in $7 million from only two auction sales.  In short, as fringe environmental activists seek to sue the federal government, bog down federal employees with paperwork and waste taxpayer dollars, the oil and natural gas industry — through the very thing activists are trying to stop — is bringing in millions to government coffers.


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