PLF Position Statement
Implementation of the Energy Policy Act of 2005
Is Critical to Energy Independence
From time to time PLF issues policy papers on current important public land issues. To date we have issued 30 such papers and the following is a new position paper on the Energy Policy Act of 2005. The Act it self is very complex and lengthy and we have only covered those elements of the Act that relate to BLM’s responsibilities in the following paper. All 30 papers can be found on our web site at www.publicland.org. These papers help guide the Foundation, its members, and Board of Directors to present a professional and uniform explanation of the issues to the public. These position papers receive the most hits on our web site.
EXECUTIVE SUMMARY
Implementation of the Energy Policy Act of 2005 can help make the United States energy-independent. Expediting the processing of oil and gas authorizations on federal public lands and establishing a network of transportation and transmission corridors are important components of energy independence. It is equally important that implementation of the Act be accomplished in compliance with the National Environmental Policy Act of 1969 (NEPA) and other environmental laws and in a manner that minimizes impacts on other uses of federal public lands.
The Energy Policy Act has resulted in increased workloads in processing applications, inspecting and enforcing permits, designating corridors and addressing environmental concerns. As it has done historically, the Bureau of Land Management (BLM) has shown that it is up to the challenge and that it is committed to taking on these new responsibilities without reservation. However, the Public Lands Foundation (PLF) considers it extremely important that BLM receive new and additional funding and other resources so that it can carry out all of its mandates and responsibilities in an effective and efficient manner. Additionally, PLF encourages full public and industry participation in the identification of corridors and the development and implementation of land use plans so that the delivery of energy resources can be ensured.
BACKGROUND
The Energy Policy Act of 2005 (Public Law 109-58, 119 STAT. 594) is extremely complex and consists of hundreds of pages and provisions. The Bureau of Land Management has significant responsibilities for interpreting and implementing numerous provisions (at least 38) within the Act, many with Congressionally-mandated deadlines.
Pilot Project Offices
BLM has the responsibility of managing the mineral estate, not only under land where it administers the surface estate, but also millions of acres of federal mineral estate under other federal, state, tribal and private lands. This requires coordination, consultation and cooperation with numerous other governmental agencies.Thus, BLM was given a leading role in the establishment of Pilot Project Offices under the Act.
BLM established Pilot Project Offices in Rawlins, Wyoming; Buffalo, Wyoming; Miles City, Montana; Farmington, New Mexico; Carlsbad, New Mexico; Grand Junction/Glenwood Springs, Colorado; and Vernal, Utah. The U.S. Fish and Wildlife Service, Bureau of Reclamation, Bureau of Indian Affairs, Minerals Management Service, U.S. Forest Service, U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency each provided employees with expertise in their agency’s regulatory procedures to these offices in an effort to improve interagency coordination of oil and gas development on federal lands and interests in lands.
Due to the increasing demand for energy production from federal public lands, the number of Applications for Permits to Drill (APD) submitted for processing has steadily increased over the last few years and it is anticipated that this will continue in 2007 and coming years. Additionally, a backlog of applications persists.
Establishment of the Pilot Project Offices, staffing them, working out new protocols with other federal and state agencies, and making the Offices fully functional have taken time and caused inefficiencies. Furthermore, the energy program has impacted other BLM programs throughout the organization, such as the wildlife and cultural resources programs, by diverting staff to process APDs and provide other support needs. Even so, these seven Offices have processed about 70% of the APDs in the last three years. This, however, means 30% were processed by non-pilot project offices, which are not funded with Mineral Leasing Act revenues.
BLM’s 2007 Budget Justifications request an increase of $9.24 million for energy permitting at non-pilot project offices. BLM believes this, along with the Pilot Project Offices becoming fully functional in 2007, will allow it to reduce or eliminate the APD backlog and perform an additional 1,500 inspections. Unfortunately, because of inaction by Congress, BLM most likely will not receive a budget for Fiscal Year 2007 and will operate under a year-long continuing resolution.
BLM Permit Processing Improvement Fund
Mineral Leasing Act revenue distribution has been changed to deposit the federal share of rentals into a BLM Permit Processing Improvement Fund which for FY2006 through FY2015 is available without further appropriation and without fiscal year limitation, for the coordination and processing of oil and gas use authorizations on onshore federal land under the jurisdiction of the Pilot Project Offices. The fund is not available to non-pilot project offices.
Energy Transmission Corridors
Section 368 of the Act requires the designation of corridors for oil, gas and hydrogen pipelines and electricity transmission and distribution facilities on federal land in the eleven contiguous Western States. It also requires them to perform environmental reviews and incorporate the designated corridors into the relevant agency land use and resource management plans or equivalent plans.
BLM is in the process of incorporating public input on where corridors should or should not be located on federal lands in a draft Programmatic Environmental Impact Statement (PEIS). However, the Act does not provide BLM with the authority or mandate to identify corridors on non-federal lands. Thus, designation of corridors under Section 368 of the Act will provide an incomplete picture of existing and proposed corridors and will be of little value unless states and private industry work with BLM on identifying corridors on non-federal lands.
Categorical Exclusions
Section 390 of the Act describes activities which can be presumed to qualify as categorical exclusions (CX) under NEPA if the activity is conducted pursuant to the Mineral Leasing Act for purposes of exploration or development of oil or gas.
On September 30, 2005, BLM issued Instruction Memorandum No. 2005-247, which, among other things, includes interim guidance on the application and use of the statutory NEPA categorical exclusions described in Section 390 of the Act. These instructions state that if a proposed activity fits into one of the categorical exclusions, “the appropriate CX is to be applied, and it may be presumed that no further NEPA analysis is required.” It also states that a brief narrative stating the rationale for making the determination that a categorical exclusion applies must be included in the file.
PLF Annual Meeting- 2006
In September 2006, at its Annual Meeting in Golden, Colorado, the PLF held a panel discussion on the “Implementation and Impacts of the Energy Act of 2005.” Panel members included representatives from BLM, a conservation organization and an electric cooperative, and a scientist from the oil and gas industry. The panel discussion focused on BLM efforts to implement its responsibilities under the Act, including Section 365—Pilot Project to Improve Federal Permit Coordination, Section 368—Energy Right-of-way Corridors on Federal Land, and Section 390—NEPA Review.
At this meeting, panel members expressed concerns about corridor widths and locations, the lack of identified corridors on non-federal lands, inadequate planning by BLM, and inadequate public participation. Concerns also were expressed that BLM, at a minimum, must engage in an analysis of proposed surface-disturbing activities and that some analyses that have been done have been inadequate.
PLF CONCLUSION
Implementation of the Energy Policy Act of 2005 is a critical factor in assuring the Nation’s energy independence. Expediting the processing of oil and gas authorizations on federal land, establishing a network of transmission corridors and complying with NEPA and other environmental laws are essential components of energy independence. Energy resources and the infrastructure to transport them are important and there is a national need and priority.
Historically, BLM has taken on new and additional responsibilities with commitment and determination. On the other hand, funding and staffing always have been in short supply.
This is no exception. BLM has done a remarkable job of taking on the added responsibilities assigned to it under the Act, even with funding and staffing shortfalls.
The Act and BLM’s efforts to implement it focus largely on the permitting system and means to expedite energy development, production and transportation. As a result, thousands of APDs are being approved each year. This coupled with productive wells having a life-span of 20-30 years could result in serious cumulative impacts if there is inadequate monitoring and mitigation. Thus, it is imperative that BLM have the capability and commitment to address cumulative impacts and provide long-term inspection and enforcement, including monitoring and mitigation measures, to ensure the health of the lands is maintained.
BLM is working closely with the Western Governors Association, the Western Utilities Group and the oil and gas and electric transmission industries.
BLM continues to designate rights-of-way and corridors under its existing authorities through its land use planning process. It is important that land use plans give high priority for energy resources and transmission lines.
The Act only authorized the identification of energy corridors on federal lands. This results in an incomplete picture of existing infrastructure as well as potential corridors. States and private industry need to work closely with BLM to identify energy corridors on non-federal lands.
PLF believes the interim guidance developed on the application and use of statutory NEPA categorical exclusions established by Section 390 of the Act and the directions given to Field Offices are reasonable, but caution is needed in exercising this authority. As a minimum, a project environmental analysis should be accomplished to add assurances that the impacts of the project (APD) have been fully considered.
PLF RECOMMENDATIONS
The Public Lands Foundation recommends: