Energy Policy Act of 2005: BLM's Use of Section 390 Categorical Exclusions for Oil and Gas Development
Published: 2011-09-09T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: The Energy Policy Act of 2005 was enacted in part to expedite domestic oil and gas development. Section 390 of the act authorized the Department of the Interior's Bureau of Land Management (BLM) to use categorical exclusions to streamline the environmental analysis required under the National Environmental Policy Act of 1969 (NEPA) when approving certain oil and gas activities. Numerous questions have been raised about how and when BLM should use these section 390 categorical exclusions. In September 2009, GAO reported on BLM's first 3 years of experience-- fiscal years 2006 through 2008--using section 390 categorical exclusions. This testimony is based on GAO's September 2009 report (GAO-09-872) and updated with information on court decisions that have been reached since the report was issued. The testimony focuses on (1) the extent to which BLM used section 390 categorical exclusions and the benefits, if any, associated with their use; (2) the extent to which BLM complied with the Energy Policy Act of 2005 and agency guidance; (3) key concerns, if any, associated with section 390 categorical exclusions; and (4) how BLM has responded to GAO's recommendations and other recent developments. For its September 2009 report, GAO analyzed a nongeneralizable random sample of 215 section 390 categorical exclusion decision documents from all BLM field offices that used section 390 categorical exclusions and interviewed agency officials and others.
section_title: What GAO Found
paragraphs: GAO's analysis of BLM field office data showed that section 390 categorical exclusions were used to approve almost 6,900 oil-and-gas-related activities from fiscal year 2006 through fiscal year 2008. Nearly 6,100 of these categorical exclusions were used for drilling permits and the rest for other nondrilling activities. Most BLM officials GAO spoke with said that section 390 categorical exclusions increased the efficiency of certain field office operations, but it was not possible to quantify these benefits. GAO reported that BLM's use of section 390 categorical exclusions through fiscal year 2008 often did not comply with either the law or BLM's guidance. First, GAO found several types of violations of the law, including approving projects inconsistent with the law's criteria and drilling a new well after mandated time frames had lapsed. Second, GAO found numerous examples where officials did not correctly follow agency guidance, most often by failing to adequately justify the use of a categorical exclusion. A lack of clear guidance and oversight contributed to the violations and noncompliance. Many instances of noncompliance were technical in nature, whereas others were more significant and may have thwarted NEPA's twin aims of ensuring that BLM and the public are fully informed of the environmental consequences of BLM's actions. In September 2009, GAO reported that a lack of clarity in section 390 and BLM's guidance had caused industry, environmental groups, BLM officials, and others to raise serious concerns about the use of section 390 categorical exclusions. First, fundamental questions about what section 390 categorical exclusions were and how they should be used led to concerns that BLM might have been using these categorical exclusions in too many--or too few--instances. Second, specific concerns were raised about key concepts underlying the law's description of certain section 390 categorical exclusions. Third, vague or nonexistent definitions of key terms in the law and BLM guidance that describe the conditions to be met when using a section 390 categorical exclusion led to varied interpretations among field offices and concerns about misuse and a lack of transparency. As a result, GAO suggested that Congress may want to consider amending the act to clarify section 390, and GAO recommended that BLM clarify its guidance, standardize decision documents, and ensure compliance through more oversight. The Department of the Interior concurred with GAO's recommendations. In May 2010, in response to a court settlement and GAO's recommendations, BLM issued a new instruction memorandum substantially addressing the gaps and shortcomings in BLM's guidance that GAO had identified. In addition, BLM was developing a second instruction memorandum to address GAO's recommendation that it standardize decision documents when, on August 12, 2011, a decision was reached in Western Energy Alliance v. Salazar. The court held that the May 2010 instruction memorandum constituted a regulation that BLM adopted without using proper rule-making procedures and issued a nationwide injunction blocking the memorandum's implementation. According to a BLM official, the ruling has prevented BLM from implementing key parts of the memorandum and called into question the issuance of the second memorandum aimed at further addressing GAO's recommendations.
section_title: What GAO Recommends
paragraphs: GAO is making no new recommendations at this time.

section_title: Letter
paragraphs: I am pleased to be here today to participate in your hearing on the  categorical exclusions established by section 390 of the Energy Policy  Act of 2005. As you know, oil and natural gas production from federal  lands is critical to meeting our nation’s energy needs. From fiscal year  2006 through fiscal year 2010, the Department of the Interior’s Bureau of  Land Management (BLM) approved more than 30,600 new oil and gas  drilling permits across 24 states, largely in the mountain West. Like many  projects on federal land with possible environmental impacts, oil and gas  development activities are typically subject to environmental review under  the National Environmental Policy Act of 1969 (NEPA).
Under NEPA, federal agencies evaluate the likely environmental effects  of projects they are proposing by preparing either an environmental  assessment or, if projects are likely to significantly affect the environment,  a more detailed environmental impact statement. If, however, the agency  determines that activities of a proposed project fall within a category of  activities the agency has already determined has no significant  environmental impact—called a categorical exclusion—then the agency  generally need not prepare an environmental assessment or  environmental impact statement. The agency may instead approve  projects that fit within the relevant category by using one of the  predetermined administrative categorical exclusions, rather than carrying  out a project-specific environmental assessment or environmental impact  statement.
To address long-term energy challenges, Congress enacted the Energy  Policy Act of 2005, in part to expedite oil and gas development within the  United States. This law authorizes BLM, for certain oil and gas activities,  to approve projects without preparing the new environmental analyses  that would normally be required by NEPA. Section 390 of the Energy  Policy Act of 2005 established five categorical exclusions specifically for  oil and gas development. These categorical exclusions—referred to in  this testimony as section 390 categorical exclusions—define specific  conditions under which BLM need not prepare any new NEPA analysis,  such as an environmental assessment or environmental impact  statement, which would ordinarily be required for oil and gas projects. For  a project to be approved using an administrative categorical exclusion,  the agency must determine whether any extraordinary circumstances  exist under which a normally excluded action or project may have a  significant effect. As originally implemented, projects approved with  section 390 categorical exclusions were not subject to any screening for  extraordinary circumstances, according to BLM officials.
In September 2009, we reported on BLM’s first 3 years of experience— fiscal years 2006 through 2008—using section 390 categorical  exclusions. My testimony today will summarize the finding of our  September 2009 report, along with some recent updates. Specifically,  I will discuss (1) the extent to which BLM used section 390 categorical  exclusions each fiscal year from 2006 through 2008 and the benefits, if  any, associated with their use; (2) the extent to which BLM used section  390 categorical exclusions in compliance with the Energy Policy Act of  2005 and internal BLM guidance; (3) key concerns, if any, associated with  section 390 categorical exclusions; and (4) how BLM has responded to  the recommendations in our September 2009 report and other recent  developments.
For our report, we reviewed relevant laws, regulations, and Interior and  BLM guidance. We also reviewed BLM headquarters and field office  documents and data for each fiscal year from 2006 through 2008. We  interviewed officials in BLM headquarters and in the 11 BLM field offices  (and their associated state offices) that processed the most applications  for permit to drill (APD) from fiscal year 2006 through fiscal year 2008.  We also interviewed representatives from industry, historic preservation  groups, and environmental groups about benefits and concerns—both  actual and potential—associated with section 390 categorical exclusions.  Other recent developments are based on our review of court decisions  that have been decided since we issued our September 2009 report. The  report was a performance audit conducted in accordance with generally  accepted government auditing standards. A detailed description of our  scope and methodology in presented in appendix I of the September  2009 report.
subsections: section_title: Background
paragraphs: Under the Federal Land Policy and Management Act of 1976, as  amended (FLPMA), BLM manages about 250 million acres of federal  land for multiple uses, including recreation; range; timber; minerals;  watershed; wildlife and fish; and natural scenic, scientific, and historical  values, as well as for the sustained yield of renewable resources. In  addition, the Mineral Leasing Act of 1920 charges Interior with  responsibility for oil and gas leasing on federal and private lands where  the federal government has retained mineral rights. BLM is responsible  for managing approximately 700 million mineral onshore acres, which  include the acreage leased for oil and gas development. To manage its  responsibilities, BLM administers its programs through its headquarters  office in Washington, D.C.; 12 state offices; 45 district offices; and  128 field offices. BLM headquarters develops guidance and regulations  for the agency, while the state, district, and field offices manage and  implement the agency’s programs. Thirty BLM field offices, located  primarily in the mountain West, were involved in oil and gas development.
To drill for oil or natural gas on leased lands, a company must submit an  APD to BLM. APDs are used to approve drilling and all related activities  on land leased by a company, including road building; digging pits to  store drilling effluent; placing pipelines to carry oil and gas to market; and  building roads to transport equipment, personnel, and other production- related materials. After an APD is approved, operators can submit  proposals to BLM, in the form of a sundry notice, for modifications to their  approved APD. Sundry notices may involve activities like changing the  location of a well, adding an additional pipeline, or adding remote  communications equipment.
Interior and BLM have administrative categorical exclusions in place for  numerous types of activities, such as constructing nesting platforms for  wild birds and constructing snow fences for safety. To use such an  administrative categorical exclusion in approving a project on BLM land,  the agency screens each proposed project for extraordinary  circumstances, such as significant impacts to threatened and endangered  species, historic or cultural resources, or human health and safety or  potentially significant cumulative environmental effects when coupled with  other actions. When one or more extraordinary circumstances exist, BLM  guidance precludes staff from using an administrative categorical  exclusion for the project. “(1) Individual surface disturbances of less than 5 acres so long as the total surface  disturbance on the lease is not greater than 150 acres and site-specific analysis in a  document prepared pursuant to NEPA has been previously completed.  (2) Drilling an oil or gas well at a location or well pad site at which drilling has occurred  previously within 5 years prior to the date of spudding the well.  (3) Drilling an oil or gas well within a developed field for which an approved land use plan  or any environmental document prepared pursuant to NEPA analyzed such drilling as a  reasonably foreseeable activity, so long as such plan or document was approved within  5 years prior to the date of spudding the well.  (4) Placement of a pipeline in an approved right-of-way corridor, so long as the corridor  was approved within 5 years prior to the date of placement of the pipeline.  (5) Maintenance of a minor activity, other than any construction or major renovation or  [sic] a building or facility.”
In its process for approving oil or gas projects, BLM’s original guidance  provided that the agency can use a section 390 categorical exclusion  when a project meets the conditions set forth for any of the five types of  section 390 categorical exclusions. BLM guidance still directs staff to  document their decision and rationale for using a specific section 390  categorical exclusion. Furthermore, BLM guidance directed its staff when  using section 390 categorical exclusions to comply with the Endangered  Species Act and the National Historic Preservation Act; to conduct on-site  reviews for all APDs; and to add site-specific restrictions or conditions of  approval if deemed necessary to protect the environment or cultural  resources.
section_title: BLM Field Offices Used Section 390 Categorical Exclusions for More Than One-Quarter of Their APDs, Although Benefits of Use Varied Widely across Field Offices
paragraphs: In September 2009, we reported that 26 of the 30 field offices with oil and  gas activities used almost 6,900 section 390 categorical exclusions to  approve oil-and-gas-related activities from fiscal year 2006 through fiscal  year 2008. Of these, BLM field offices used section 390 categorical  exclusions to approve nearly 6,100 APDs (about 28 percent of  approximately 22,000 federal wells approved by BLM) during this period.  Three BLM field offices (Pinedale, Wyoming; Farmington, New Mexico;  and Vernal, Utah) accounted for almost two-thirds of section 390  categorical exclusions used to approve APDs. Section 390 CX3  accounted for more than 60 percent of the section 390 categorical  exclusions used to approve APDs. BLM also used section 390 categorical  exclusions to approve more than 800 nondrilling projects from fiscal year  2006 through fiscal year 2008. These approvals were for a wide range of  activities, such as changing a well location, adding new pipelines, and  doing road maintenance. The Buffalo, Wyoming, field office was the most  prominent user of section 390 categorical exclusions for these purposes,  approving more than 250 nondrilling projects with section 390 categorical  exclusions.
The vast majority of BLM officials we spoke with told us that using section  390 categorical exclusions expedited the application review and approval  process, but the amount of time saved by field offices depended on a  variety of factors and circumstances influencing the extent to which field  offices used the exclusions. A frequently cited factor contributing to these  efficiency gains was the extent to which proposed projects fit the specific  conditions set forth in each section 390 categorical exclusion. BLM  officials also identified other factors that contributed to their ability to use  section 390 categorical exclusions, including the field office resource  specialists’ familiarity with the area of the proposed action, the area’s  environmental sensitivity, the extent of the area’s cultural resources, and  the proposed action’s extent of surface disturbance. Specifically, BLM  officials told us that section 390 categorical exclusions were regularly  used to approve projects in areas where sensitive environmental or  cultural concerns were few (e.g., no threatened or endangered species,  or limited cultural resources in the area), where the resource specialists  were familiar with the location of the proposed action, or where the  proposed project was not unusual or was likely to have minimal impact on  the local environment. Additionally, field office policies could contribute to  how often section 390 categorical exclusions were used. The differences  in office policies result from field office managers’ comfort with the use of  section 390 categorical exclusions and their interpretations of appropriate  use.
Because it is not always clear how oil and gas development would have  proceeded in the absence of section 390 categorical exclusions, BLM  officials told us that estimating the amount of time saved by using the  exclusions was difficult. In field offices where section 390 categorical  exclusions were seldom used to approve APDs or nondrilling actions,  officials told us that a typical section 390 categorical exclusion approval  document saved a few hours of total staff time. In contrast, in field offices  where section 390 categorical exclusions were used more often, the time  savings were cumulatively more significant, although officials could not  quantify them. Officials in these field offices told us that while the savings  for a single APD did not by itself mean that the APD was approved in  fewer calendar days, the total number of APDs processed in the office in  a given period was probably larger because of the cumulative time saved  by using section 390 categorical exclusions.
Industry officials with whom we spoke also agreed that BLM’s use of  section 390 categorical exclusions had generally decreased APD- processing times and that this increased efficiency was more pronounced  in some field offices than in others. Acknowledging that the type of  development and the availability of NEPA documents were both critical  factors, they also stressed that differences in field office policies, field  office operations, and field management personalities generally  influenced how readily a given BLM field office used section 390  categorical exclusions. For example, according to industry officials, some  field offices were conservative and cautious and therefore reluctant to use  section 390 categorical exclusions if even minimal environmental or  cultural resource concerns existed. This tendency ran counter to what  some industry officials told us was their interpretation of the law—namely,  that they believed that section 390 categorical exclusions should be used  whenever a project meets the required conditions. Industry officials told  us that in some cases BLM was overly cautious in applying section 390  categorical exclusions, in part because BLM feared litigation from  environmental groups. Industry officials commented on the lack of  consistency among BLM field offices in how section 390 categorical  exclusions were used but overall told us that section 390 categorical  exclusions were a useful tool and have contributed to expedited  application processing. They applauded the exclusions for reducing  redundant and time-consuming NEPA documentation and making APD  application processing more predictable and flexible.
section_title: BLM’s Use of Section 390 Categorical Exclusions from Fiscal Year 2006 through Fiscal Year 2008 Often Did Not Comply with Either the Implementing Statute or Agency Guidance
paragraphs: In September 2009, we reported that BLM’s field offices used section 390  categorical exclusions to approve oil and gas activities in violation of the  law and also failed to follow agency guidance. Specifically, we found six  types of violations of the Energy Policy Act of 2005 and fives types of  noncompliance with BLM guidance (see table 1).
Overall, we found many more examples of noncompliance with guidance  than violations of the law. We did not find intentional actions on the part of  BLM staff to circumvent the law; rather, our findings reflected what appear  to be honest mistakes stemming from confusion in implementing a new  law with evolving guidance. Nevertheless, even though some of the  violations of law—such as approving multiple wells with one decision  document—were technical in nature, they must be taken seriously. In  some instances, violations we found may have thwarted NEPA’s twin  aims of ensuring that both BLM and the public were fully informed of the  environmental consequences of BLM’s actions. For example, approval of  multiple wells on one or more well pads could have required an  environmental assessment or environmental impact statement, which  would likely have provided additional information on the environmental  impacts of approving multiple wells. According to BLM officials, the  outcome of the NEPA process likely would have yielded the same result.  Nevertheless, the purpose of NEPA is to provide better information for  decision making, not necessarily to alter the decisions ultimately made.  The projects would likely have been approved, but the specific location  and conditions of approval might have differed, and BLM and the public  might have had more detailed information on the environmental impacts  of the approvals.
A lack of definitive and clear guidance from BLM, as well as lack of  oversight of field offices’ actions, contributed to the violations of law and  noncompliance with BLM’s existing guidance. At the time of our report,  BLM had provided several key guidance documents; we found, however,  that this guidance did not contain the specificity and examples needed to  clearly direct staff in the appropriate use and limits of section 390  categorical exclusions. Specifically, BLM’s guidance at the time said little,  if anything, about (1) the documentation needed to support a decision to  use a section 390 categorical exclusion or (2) the proper circumstances  for using section 390 categorical exclusions to approve modifications to  existing APDs through “sundry notices.” Furthermore, BLM headquarters  and state offices we spoke with had generally not provided any oversight  or review of the field offices’ actions in using section 390 categorical  exclusions that could have ensured compliance with the law or BLM  guidance.
section_title: Lack of Clarity in the Law and in BLM Guidance Raised Serious Concerns about Section 390 Categorical Exclusions
paragraphs: We reported in September 2009 that the lack of clarity in section 390 of  the Energy Policy Act of 2005 and in BLM’s implementing guidance led to  serious concerns on the part of industry, environmental groups, BLM  officials, and others about when and how section 390 categorical  exclusions should be used to approve oil and gas development.  Specifically, these concerns included the following:    Key elements of section 390 of the Energy Policy Act of 2005 were  undefined, leading to fundamental questions about what section 390  categorical exclusions were and how they should be used. This lack  of direction left these elements open to differing interpretations,  debate, and litigation, leading to serious concerns that BLM was using  section 390 categorical exclusions in too many—or too few— instances. BLM officials, environmental groups, industry groups, and  others raised serious concerns with the law as a whole. These  concerns related to four key elements: (1) the definition of “categorical  exclusion” and whether the screening for extraordinary circumstances  was required, (2) whether the use of section 390 categorical  exclusions was mandatory or discretionary, (3) the meaning of the  phrase “rebuttable presumption,” and (4) the level of public disclosure  required for section 390 categorical exclusions.   The law’s descriptions of the five types of section 390 categorical  exclusions prompted more specific concerns about how to  appropriately use one or more of the five types of section 390  categorical exclusions. These concerns related to (1) the adequacy of  NEPA documents supporting the use of a particular section 390  categorical exclusion, (2) consistency with existing NEPA documents,  (3) the rationale for the 5-year time frame used in some but not all  types of section 390 categorical exclusions, and (4) the piecemeal  approach to development fostered by using section 390 categorical  exclusions.   Concerns about how to interpret and apply key terms that describe  the conditions that must be met when using a section 390 categorical  exclusion. In particular, each of the five types of section 390  categorical exclusions contain terminology that is undefined in the law  and for which BLM had not provided clear or complete guidance.  Specifically, the ambiguous terms included (1) “individual surface  disturbances” under section 390 CX1, (2) “maintenance of a minor  activity” under section 390 CX5, (3) “construction or major renovation  or [sic] a building or facility” under section 390 CX5, (4) “location”  under section 390 CX2, and (5) “right-of-way corridor” under section  390 CX4. Vague or nonexistent definitions of key terms in the law and  BLM guidance led to varied interpretations among field offices and  concerns about misuse and a lack of transparency.
In September 2009, we reported that the failure of both the law and BLM  guidance to clearly define key conditions that projects must meet to be  eligible for approval with a section 390 categorical exclusion caused  confusion among BLM officials, industry, and the public over what  activities qualified for section 390 categorical exclusions. As a result, we  suggested that Congress consider amending section 390 to clarify and  resolve some of the key issues that we identified, including but not limited  to (1) clearly specifying whether section 390 categorical exclusions apply  even in the presence of extraordinary circumstances and (2) clarifying  what the phrase “rebuttable presumption” means and how BLM must  implement it in the context of section 390. In addition, to improve BLM  field offices’ implementation of section 390 categorical exclusions, we  recommended that BLM take the following three actions:  issue detailed and explicit guidance addressing the gaps and  shortcomings in its guidance;   provide standardized templates or checklists for each of the five types  of section 390 categorical exclusions, which would specify, at  minimum, what documentation is required to justify their use; and   develop and implement a plan for overseeing the use of section 390  categorical exclusions to ensure compliance with both law and  guidance.
section_title: BLM Took Actions in Response to Litigation and Our Report, but These Actions Have Been Affected by a Recent Court Decision
paragraphs: While we were working on our September 2009 report, the exact meaning  of the phrase “shall be subject to a rebuttable presumption that the use of  a categorical exclusion under the National Environmental Policy Act of  1969 (NEPA) would apply” was in dispute in a lawsuit in federal court.  In Nine Mile Coalition v. Stiewig, environmental groups sued BLM,  alleging that the phrase meant that BLM was required to avoid using a  section 390 categorical exclusion in approving a project where  extraordinary circumstances were present. BLM settled the case in  March 2010, agreeing, among other things, to issue a new instruction  memorandum stating that the agency would not use section 390  categorical exclusions where extraordinary circumstances were present.
In May 2010, BLM issued “Instruction Memorandum No. 2010-118,”  which was the first in a series of guidance documents BLM planned to  issue to address the recommendations in our September 2009 report.  BLM’s May 2010 instruction memorandum announced several key  reforms to the way BLM staff can use section 390 categorical exclusions.  These reforms substantially addressed the gaps and shortcomings in  BLM’s guidance that we identified in our report, directing that, for  example, section 390 CX2 or CX3 no longer be used to approve drilling  wells after the law’s allowed 5-year time frame or that section 390 CX3  not be used to approve drilling a well without sufficient supporting NEPA  documentation. The memorandum explicitly identified the types of NEPA  documents needed to adequately support the use of section 390  categorical exclusions to approve new wells and directed that any  supporting NEPA analysis must be specific to the proposed drilling site.  The memorandum also directs BLM field offices to ensure that all oil and  gas development approved with a section 390 categorical exclusion  conform to the analysis conducted in the supporting land use plan and  come within the range of environmental effects analyzed in the plan and  associated NEPA documents. In addition, the May 2010 instruction  memorandum implemented the settlement in Nine Mile Coalition v.  Stiewig by requiring BLM field offices to screen for the presence of  extraordinary circumstances—such as for cumulative impacts on air  quality or critical habitat—whenever considering the use of a section 390  categorical exclusion.
According to BLM officials, the agency developed a second instruction  memorandum in 2011 to address our recommendation that it standardize  templates and checklists its field offices use in approving each of the five  types of section 390 categorical exclusions to specify, at a minimum, the  documentation required to justify their use. This draft second instruction  memorandum was undergoing review by the department when, on  August 12, 2011, a decision was reached in Western Energy Alliance v.  Salazar. In this case, an oil and gas trade association sued BLM,  alleging, among others, that the agency issued its May 2010 instruction  memorandum without following proper rule-making procedures and that  the instruction memorandum’s provision concerning extraordinary  circumstances violated section 390. The court held that the instruction  memorandum constituted a regulation that BLM adopted without following  proper rule-making procedures, and the court issued a nationwide  injunction blocking implementation of the memorandum. The court did not  address whether the instruction memorandum was consistent with  section 390; neither did it address the meaning of the phrase “rebuttable  presumption” in section 390. According to a BLM official, the ruling has  prevented BLM from implementing the parts of the May 2010 instruction  memorandum directly related to extraordinary circumstances and the use  of section 390 CX2 and CX3 and also called into question the issuance of  the second instruction memorandum aimed at further addressing our  recommendations.
In conclusion, it is now uncertain what actions BLM may take in response  to the most recent court decision. These actions could include, but are not  limited to, moving forward and issuing the May 2010 instruction  memorandum as a regulation or possibly appealing the decision.
Chairman Lamborn, Ranking Member Holt, and Members of the  Subcommittee, this completes my prepared statement. I would be  pleased to answer any questions that you may have at this time.
section_title: GAO Contacts and Staff Acknowledgments
paragraphs: For further information about this testimony, please contact Mark Gaffigan  or Anu K. Mittal at (202) 512-3841 or gaffiganm@gao.gov and  mittala@gao.gov, respectively. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this testimony. In addition to the contact named above, Jeffery D.  Malcolm (Assistant Director), Mark A. Braza, Ellen W. Chu, Heather E.  Dowey, Richard P. Johnson, Michael L. Krafve, and Tama R. Weinberg  made key contributions to this testimony.
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