Case 1:22-cv-01716-TSC Document 1 Filed 06/15/22 Page 1 of 254
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Case No. 1:22-cv-1716
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`CENTER FOR BIOLOGICAL DIVERSITY
`1411 K Street NW, Suite 1300
`Washington, D.C. 20005, and
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`WILDEARTH GUARDIANS
`301 N. Guadalupe Street, Suite 201
`Santa Fe, New Mexico 87501,
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`Plaintiffs,
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`v.
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`U.S. DEPARTMENT OF THE INTERIOR
`1849 C Street N.W.
`Washington, D.C. 20240,
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`DEBRA HAALAND, Secretary
`U.S. DEPARTMENT OF THE INTERIOR
`1849 C Street N.W.
`Washington, D.C. 20240,
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`U.S. BUREAU OF LAND MANAGEMENT
`1849 C Street N.W.
`Washington, D.C. 20240, and
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`TRACY STONE-MANNING, Director
`U.S. BUREAU OF LAND MANAGEMENT
`1849 C Street N.W.
`Washington, D.C. 20240,
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`Defendants.
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`COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
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`INTRODUCTION
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`1.
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`Through this lawsuit, Plaintiffs Center for Biological Diversity and WildEarth
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`Guardians (together “Conservation Groups”) challenge the approval by Defendants U.S.
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`Case 1:22-cv-01716-TSC Document 1 Filed 06/15/22 Page 2 of 254
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`Department of the Interior (“Interior”), Interior Secretary Debra Haaland, U.S. Bureau of Land
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`Management (“BLM”), and BLM Director Tracy Stone-Manning (together “Federal
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`Defendants”) of at least 3,535 applications for permit to drill (“APDs”) for oil and gas in New
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`Mexico’s Permian Basin and Wyoming’s Powder River Basin in violation of the National
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`Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370m-11, the Endangered Species Act
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`(“ESA”), 16 U.S.C. §§ 1531-1544, and the Federal Land Policy and Management Act
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`(“FLPMA”), 43 U.S.C. §§ 1701-1787, and those statutes’ implementing regulations. A list of the
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`challenged APDs is provided in Appendix A and Appendix B, attached below.
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`2.
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`Climate change is driven primarily by the burning of fossil fuels for energy and
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`transportation activities. In the United States, almost one quarter of all annual emissions are
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`from fossil fuel resources extracted from public lands. Of that amount, according to the BLM’s
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`own analyses, oil and gas production from public lands emits nine percent of greenhouse gas
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`(“GHG”) emissions in the United States, and slightly over one percent of global emissions.
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`3.
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`During the first sixteen months of the Biden administration, the BLM approved
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`well over 3,500 APDs. The drilling of these oil and gas wells will likely emit 490-600 million
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`metric tons of carbon dioxide equivalent (“CO2e”) greenhouse gas pollution over the course of
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`their lifespans, equivalent to the annual emissions of between 131-161 coal fired power plants.
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`This is both a nationally and globally significant quantity of emissions.
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`4.
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`In approving these APDs, BLM failed to evaluate the cumulative impacts of
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`greenhouse gas emissions that will result from these approvals under NEPA, and failed to
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`consider the impact of these emissions as they relate to BLM’s procedural and substantive
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`obligations under the ESA and FLPMA. Instead, BLM myopically considered the localized
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`impacts of a small subset of APD approvals, failed to take a hard look at cumulative impacts,
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`ignored the effects that additional greenhouse gas pollution would have on climate-imperiled
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`species, and failed to prevent the unnecessary and undue degradation of public lands, as is the
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`agency’s duty.
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`5.
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`An ever-growing body of scientific literature, which BLM acknowledges,
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`demonstrates that increasing greenhouse gas emissions are causing irreparable damage to
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`virtually every ecosystem on the planet. From rising temperatures, increased drought and
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`wildfires, more chaotic and extreme weather, ocean acidification, loss of sea and land ice, to
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`rising sea levels, the impacts of climate change are already being experienced virtually
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`everywhere. By failing to consider and act on these impacts, BLM violated the law in four
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`distinct ways.
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`6.
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`First, BLM failed to consult with the U.S. Fish and Wildlife Service (“USFWS”)
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`and the National Marine Fisheries Service (together the “Services”) on the effect that GHG
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`emissions from the challenged wells will have on threatened and endangered species protected
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`under the ESA. The consultation procedures of the ESA are designed to ensure that all federal
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`agencies examine both the direct and indirect effects of their activities, even when those indirect
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`effects are removed from the immediate footprint of the agency action, and minimize the harm
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`to protected species that might result.
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`7.
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`A large and growing number of U.S. endangered species are being pushed
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`towards extinction primarily by climate change. In Plaintiffs’ Notice of Intent to Sue for
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`violations of the ESA, submitted to Federal Defendants prior to bringing this case and
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`incorporated herein by reference, Plaintiffs identified approximately 150 animals and plants for
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`which climate change is a primary driver of their decline. These species include coral reefs,
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`Hawaiian songbirds, desert fish, mountaintop species, ice seals and polar bears, and species
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`found in low-lying areas like the Florida Keys. For biodiversity in the United States, the
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`situation is the most dire in Hawaii. A scientific paper published in the spring of 2022 warns
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`that three Hawaiian songbirds will be extinct in the wild in three to five years due to the uphill
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`spread of mosquitos and avian malaria caused by climate change. At no point has the BLM ever
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`considered the contribution from its fossil fuel program to the decline of these bird species, or
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`for that matter any other climate-imperiled species being driven towards extinction by ever-
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`increasing emissions. This failure violates the ESA.
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`8.
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`Second, BLM violated FLPMA by failing to consider or take action to prevent the
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`unnecessary and undue degradation of public lands resulting from ongoing oil and gas
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`permitting. As the agency acknowledges, almost all ecosystems in the United States are
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`unraveling as a result of climate change. The lands administered by the BLM are found
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`predominantly in the western half of the nation and Alaska. In particular, lands in the western
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`United States are experiencing a climate change-exacerbated megadrought, the likes of which
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`have not been seen in 800 years, and unprecedented and severe wildfires. These and other
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`climate impacts will occur more frequently and grow more severe as additional greenhouse gas
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`pollution occurs, including the pollution from federal oil and gas permitting. Under FLPMA, the
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`BLM has a duty to take action to prevent such unnecessary and undue degradation of the lands
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`it administers. Yet the agency continues to authorize additional oil and gas development,
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`including the over 3,500 oil and gas wells challenged here, without considering or taking action
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`related to this substantive duty. The resulting greenhouse gas emissions exacerbate the climate
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`crisis, causing unnecessary and undue degradation of almost every landscape BLM manages.
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`9.
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`Third, the BLM has failed to take a hard look at cumulative GHG emissions and
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`climate impacts under NEPA. Rather, BLM merely quantified projected GHG emissions from
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`the APD approvals and listed the percent increase or the fraction of regional or national GHG
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`emissions they represent in a table. This does not satisfy BLM’s obligation to take a hard look at
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`cumulative GHG emissions and climate impacts. BLM must analyze and disclose reasonably
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`foreseeable cumulative climate impacts of these GHG emissions, as well as provide some
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`measure of the significance and severity of these emissions, from the challenged APD approvals
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`and aggregated nationwide across the agency’s fossil fuel program.
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`10. Fourth, the BLM has failed to take a hard look at environmental justice under
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`NEPA. There are communities in New Mexico, Wyoming, and nationwide that are likely to
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`experience disproportionate1 and adverse effects from climate change, and from oil and gas
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`development authorized by BLM. Yet nowhere in any of its NEPA documents for the
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`challenged APDs does BLM even mention environmental justice––neither the term itself, nor
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`any potential for disproportionate risks and impacts arising from the challenged APD approvals,
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`BLM’s fossil fuel program, or climate change. Moreover, BLM has failed to assess or
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`acknowledge the contribution of its APD approvals and its fossil fuel program to environmental
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`injustices associated with GHG emissions and climate change. Communities from Alaska to the
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`Gulf of Mexico will see their lands disappear due to rising sea levels and worsening storms.
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`Droughts and wildfires will increasingly displace and destroy communities in the West. People
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`and communities already experiencing environmental, social, and structural inequities and
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`injustices are likely to suffer the worst climate impacts.
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`1 As used in Executive Order 12898 on environmental justice, a term used “to describe situations
`of concern where there exists significantly higher and more adverse health and environmental
`effects on minority populations, low-income populations or indigenous peoples.” See U.S.
`Environmental Protection Agency, “EJ 2020 Glossary,” available at:
`https://www.epa.gov/environmentaljustice/ej-2020-glossary.
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`11. Plaintiffs therefore ask this Court to declare BLM’s APD approvals challenged
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`herein to be unlawful, to vacate or set aside all APD approvals, to remand to BLM for further
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`action in accordance with applicable law, and to enjoin Federal Defendants from approving or
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`otherwise taking action to approve any applications for permits to drill on federal public lands
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`and minerals until Federal Defendants have fully complied with NEPA and its implementing
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`regulations, and the substantive provisions of the ESA and FLPMA.
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`JURISDICTION AND VENUE
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`12.
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`This action arises under NEPA, 42 U.S.C. §§ 4321-4370m-11, the ESA, 16
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`U.S.C. §§ 1531-1544, FLPMA, 43 U.S.C. §§ 1701-1787, and the Administrative Procedure Act
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`(“APA”), 5 U.S.C. §§ 701-706.
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`13.
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`Jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §
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`1346 because it arises under the laws of the United States and involves the United States as a
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`defendant. Jurisdiction over Plaintiffs’ ESA claim arises under 16 U.S.C. § 1540(g).
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`14.
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`The requested relief is proper under 28 U.S.C. §§ 2201-2202 and 5 U.S.C. §§
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`705-706, and would redress the actual and imminent, concrete injuries to Conservation Groups
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`caused by Federal Defendants’ failure to comply with duties mandated by NEPA, the ESA and
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`FLPMA, and their implementing regulations. Conservation Groups’ interests will be adversely
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`affected and irreparably injured if Federal Defendants continue to violate NEPA, the ESA, and
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`FLPMA, as alleged herein, and if they affirmatively implement the decisions challenged herein.
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`These injuries are concrete and particularized and fairly traceable to Federal Defendants’
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`challenged decisions, providing the requisite personal stake in the outcome of this controversy
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`necessary for this Court’s jurisdiction.
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`15.
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`The requested relief would redress the actual, concrete injuries to Conservation
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`Groups caused by Federal Defendants’ failure to comply with duties mandated by NEPA, the
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`ESA, and FLPMA and those statutes’ implementing regulations.
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`16.
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`The challenged agency actions are final and subject to judicial review pursuant to
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`5 U.S.C. §§ 702, 704, and 706.
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`17.
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`Conservation Groups have exhausted any and all available and requested
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`administrative remedies.
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`18.
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`The Center for Biological Diversity sent a Notice of Intent to Sue to the Bureau of
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`Land Management, Department of the Interior and U.S. Department of Commerce as required by
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`16 U.S.C. § 1540(g) on February 2, 2022, alleging violations of the Endangered Species Act
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`including the failure to consult on the approval of APDs with respect to climate-imperiled
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`species and the failure to reinitiate consultations regarding the impacts to climate-imperiled
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`species that were never considered at any point in any applicable resource management plans.
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`An updated Notice of Intent to Sue was submitted to the Federal Defendants on March 28, 2022,
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`that included plaintiff WildEarth Guardians.
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`19.
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`Venue in this Court is proper pursuant to 28 U.S.C. § 1391(e)(1) because officers
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`of the United States are named as Defendants in their official capacities and reside in this judicial
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`district; Plaintiff Center for Biological Diversity maintains an office in this judicial district; and a
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`substantial part of the events or omissions giving rise to the claims have occurred in this judicial
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`district, including underlying decision-making and guidance for the U.S. Department of the
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`Interior’s management of federal oil and gas resources, as disseminated to the agency’s field
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`offices.
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`20.
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`Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (“the Center”) is a non-
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`PARTIES
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`profit conservation organization headquartered in Tucson, Arizona, with offices in Washington,
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`D.C., a number of states, and Mexico. The Center uses science, policy, and law to advocate for
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`the conservation and recovery of species on the brink of extinction and the habitats they need to
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`survive. The Center has and continues to advocate actively for increased protections for species
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`and their habitats across the United States. The Center has more than 81,000 members and 1.7
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`million online members and activists. The Center’s board, staff, and members observe wildlife
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`for recreation, scientific research, aesthetic pursuits, and spiritual renewal, including climate-
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`imperiled species harmed by greenhouse gas emissions caused by oil and gas development on
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`BLM lands, and recreate on public lands across the United States as well as public lands in New
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`Mexico and Wyoming that will be affected by the drilling permits challenged herein. The Center
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`brings this action on its own behalf and on behalf of its adversely affected members.
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`21.
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`Plaintiff WILDEARTH GUARDIANS (“Guardians”) is a non-profit membership
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`organization based in Santa Fe, New Mexico, with offices throughout the West. Guardians has
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`more than 187,000 members and activists, some of whom live, work, or recreate on public lands
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`across the West and on and near the drilling permits in New Mexico and Wyoming challenged
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`herein. Guardians and its members are dedicated to protecting and restoring the wildlife, wild
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`places, wild rivers, and health of the American West. Toward this end, Guardians and its
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`members work to replace fossil fuels with clean, renewable energy in order to safeguard public
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`health, the environment, and the Earth’s climate.
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`22.
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`Conservation Groups’ members use and enjoy the cultural resources, wildlands,
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`wildlife habitat, rivers, streams, and healthy environment on BLM and other public lands across
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`the nation, including BLM lands and other public lands in New Mexico and Wyoming that are in
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`and adjacent to the oil and gas well sites that are the subject of this Complaint. Conservation
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`Groups’ members use and enjoy these public lands across the nation for hiking, fishing, hunting,
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`camping, photographing scenery and wildlife, wildlife viewing, aesthetic enjoyment, and
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`engaging in other vocational, scientific, and recreational activities.
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`23. Conservation Groups, their members, and supporters include individuals who
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`enjoy observing, photographing, filming, and otherwise appreciating threatened and endangered
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`species, as well as their habitats. In particular, these individuals enjoy and appreciate observing
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`climate-imperiled species, and derive professional, scientific, educational, recreational,
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`aesthetic, moral, spiritual, and other benefits from seeing these species and their habitat in the
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`wild. Plaintiffs have members who have visited and have concrete plans to again visit these
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`species and their habitat.
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`24. For example, Center member Robin Silver routinely travels to Mt. Graham,
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`Arizona to observe and photograph the Mt. Graham red squirrel, whose remaining cold
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`mountaintop, microclimate continued to shrink and degrade as temperatures warm and wildfires
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`become more intense and more frequent. Center member Chris Nagano, a former U.S. Fish and
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`Wildlife Service biologist and entomologist, routinely travels and intends to visit again areas
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`that are home to the Miami blue butterfly, Quino checkerspot butterfly and Schaus swallowtail
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`butterfly, all of which are threatened by warming temperatures. Center member Brett Hartl has
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`traveled extensively across the United States to view whooping cranes, Hawaiian songbirds,
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`piping plover, and eastern black rail. These species are threatened by sea level rise and
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`degradation of their habitats as temperature rise due to climate change. Center member Jenny
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`Ross is a freelance photographer and writer who has traveled numerous times to photograph
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`polar bears in the Arctic and she intends to do so again in the future. Center member Abel
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`Valdivia is a professional marine biologist whose research focuses on coral species, and has
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`observed elkhorn and staghorn coral on many occasions, and travels internationally for work
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`and for personal enjoyment to view coral reefs, all of which are threatened by ocean
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`acidification and warming temperatures. The concrete interests of these and other Center
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`members in observing, studying, and otherwise benefitting from these and other climate-
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`imperiled species throughout the United States (and the world) are imperiled by Defendants’
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`failure to engage in ESA Section 7 consultation regarding the federal agency actions at issue.
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`25.
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`In addition, Guardians member Jeremy Nichols regularly travels to recreate on
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`public lands in the Powder River Basin, including areas directly impacted by development of
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`many of the challenged APDs. Mr. Nichols uses BLM and other public lands for hiking,
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`searching for wildlife, searching for other unique natural artifacts, and enjoying the feeling of
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`being away from it all. Oil and gas development has a negative impact on the relatively
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`undeveloped landscapes particularly enjoyed by Mr. Nichols, through drilling, fracking, flaring,
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`truck traffic, construction of pipelines, installation of tanks and compressor stations,
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`development of processing facilities, and overall leading to an enormous influx of industrial
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`development and traffic. The development leads to air pollution, both directly from engines,
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`flaring, and other sources, but also through the creation of haze and smog. Oil and gas
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`development inevitably has a negative impact on Mr. Nichols' recreational and aesthetic
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`pursuits. BLM's unlawful approval of the APDs – without complying with NEPA, the ESA, and
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`FLPMA – will lead to additional oil and gas development across the Powder River Basin and
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`will exacerbate these and other harms. Nichols also enjoys searching for wildlife, including
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`various species threatened by catastrophic climate change. Mr. Nichols' ability to observe
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`wildlife, including wolverine, Canada lynx, Bull trout and other imperiled fish species, is
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`imperiled by increased temperatures resulting from climate change. Defendants' approvals of
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`the challenged APDs will lead to additional GHG emissions and exacerbate the increased
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`temperatures and other negative impacts of climate change, thereby harming Mr. Nichols'
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`ability to observe and enjoy these and other climate-imperiled species
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`26.
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`Conservation Groups’ members intend to continue to use and enjoy BLM lands
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`and other public lands around the nation, including in New Mexico and Wyoming, that include
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`or are adjacent to the well sites for the oil and gas drilling permits challenged herein and lands
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`that are around or within view of lands affected by the drilling permits challenged herein, to
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`enjoy cultural resources, wildlands, wildlife habitat, rivers, streams, and healthy environments
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`frequently and on an ongoing basis long into the future, including this summer, fall, and winter.
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`27.
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`Conservation Groups’ members’ enjoyment of public lands will be adversely
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`affected and diminished as a result of Federal Defendants’ APD approvals. Conservation
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`Groups’ members recreate on and enjoy public lands that include and are near the well sites for
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`the oil and gas drilling permits that are the subject of this lawsuit. Development of oil and gas
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`wells resulting from these drilling permits stands to directly alter the natural state of public lands
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`within these areas, emit greenhouse gases and exacerbate climate change, produce air pollution
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`that is offensive and dangerous, and cause further unnecessary and undue degradation and
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`otherwise adversely impact public lands, communities, climate-threatened species and their
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`habitats, and environmental justice.
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`28.
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`The development of the oil and gas drilling permits challenged herein will bring
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`not only new industrial activity, but also noise, destruction of wildlife habitat, surface
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`disturbance, air pollution, and water contamination. These impacts can be far-reaching. For
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`example, air pollution from oil and gas development can create extensive visible emissions that
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`create haze and smog in large regions.
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`29.
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`A favorable ruling in this case would redress the harms that Conservation Groups
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`and their members stand to suffer as a result of Federal Defendants’ actions. If Federal
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`Defendants had properly taken into account the climate and environmental justice impacts of
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`their actions, as NEPA requires, they may have rejected or otherwise conditioned the issuance of
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`the challenged drilling permits. If Federal Defendants had consulted with the U.S. Fish and
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`Wildlife Service and National Marine Fisheries Service to ensure the challenged actions would
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`not jeopardize the continued existence of climate-imperiled listed species and their habitats, as is
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`their duty under the ESA, they may have rejected or otherwise conditioned the issuance of the
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`challenged drilling permits. And if Federal Defendants had defined and taken action to avoid the
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`unnecessary and undue degradation of public lands, as is their substantive duty under FLPMA,
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`they may have rejected or otherwise conditioned the issuance of the challenged drilling permits.
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`Such actions would have mitigated or eliminated the threat of reasonably foreseeable oil and gas
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`development, preventing the diminishment of the enjoyment of public lands used by
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`Conservation Groups’ members. A favorable ruling would ensure that as Conservation Groups’
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`members continue to use and enjoy public lands affected by Federal Defendants’ actions, their
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`harms would be reduced, if not eliminated.
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`30.
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`Defendant U.S. DEPARTMENT OF THE INTERIOR is an executive department
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`of the United States government that is responsible for the conservation and management of the
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`nation’s natural resources, including its public lands, wildlife and endangered species, resources,
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`mineral estates, and cultural heritage. In this managerial capacity, the U.S. Department of the
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`Interior is responsible for implementing and complying with federal law, including the federal
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`laws under which this action is brought.
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`31.
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`Defendant DEBRA HAALAND is sued in her official capacity as the Secretary of
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`the U.S. Department of the Interior and is responsible for conserving endangered species and
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`managing federal public lands and resources, including in New Mexico and Wyoming, and, in
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`that official capacity, is responsible for implementing and complying with federal law, including
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`the federal laws under which this action is brought.
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`32.
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`Defendant U.S. BUREAU OF LAND MANAGEMENT is an agency within the
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`U.S. Department of the Interior and is responsible for managing federal public lands and
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`resources, including federal onshore oil and gas resources and the development of those
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`resources. In this managerial capacity, BLM is responsible for implementing and complying with
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`federal law, including the federal laws under which this action is brought.
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`33.
`Defendant TRACY STONE-MANNING is Director of the Bureau of Land
`Management, an agency within the U.S. Department of the Interior, and is responsible for
`managing the public lands, wildlife resources, and public mineral estate of the United States. In
`her official capacity, Director Stone-Manning is responsible for implementing and complying
`with federal law, including the federal laws under which this action is brought.
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`I.
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`LEGAL AND POLICY BACKGROUND
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`National Environmental Policy Act
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`A.
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`34.
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`General NEPA Framework and Greenhouse Gas Analysis
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`Recognizing “the profound impact of man’s activity on the interrelations of all
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`components of the natural environment,” Congress enacted NEPA in 1970 “to use all practicable
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`means and measures . . . to create and maintain conditions under which man and nature can exist
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`in productive harmony . . . .” 42 U.S.C. § 4331(a). The act declares that “each person should
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`enjoy a healthful environment”—to ensure that the federal government uses all practicable
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`means to “assure for all Americans safe, healthful, productive, and esthetically and culturally
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`pleasing surroundings,” and to “attain the widest range of beneficial uses of the environment
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`without degradation, risk to health or safety, or other undesirable and unintended consequences,”
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`among other policies. Id. § 4331(b).
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`35.
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`According to the White House Council on Environmental Quality (“CEQ”), the
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`federal agency responsible for implementing NEPA:
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`. . . NEPA was a statute ahead of its time, and it remains relevant and vital today.
`It codifies the common-sense and fundamental idea of “look before you leap” to
`guide agency decision making, particularly in complex and consequential areas,
`because conducting sound environmental analysis before actions are taken
`reduces conflict and waste in the long run by avoiding unnecessary harms and
`uninformed decisions. It establishes a framework for agencies to ground decisions
`in sound science and recognizes that the public may have important ideas and
`information on how Federal actions can occur in a manner that reduces potential
`harms and enhances ecological, social, and economic well-being.
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`87 Fed. Reg. 23,453 (April 20, 2022).
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`36.
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`NEPA achieves its purpose through “action forcing procedures. . . requir[ing] that
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`agencies take a hard look at environmental consequences.” Robertson v. Methow Valley Citizens
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`Council, 490 U.S. 332, 350 (1989) (citations omitted) (emphasis added).
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`37.
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`NEPA's purpose is “to provide for informed decision making and foster excellent
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`action.” 40 C.F.R. § 1500.1(a). NEPA regulations “are intended to ensure that relevant
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`environmental information is identified and considered early in the process in order to ensure
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`informed decision making by Federal agencies. Id. § 1500.1(b).
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`Case 1:22-cv-01716-TSC Document 1 Filed 06/15/22 Page 15 of 254
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`38.
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`Federal agencies must comply with NEPA before there are “any irreversible and
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`irretrievable commitments of resources which would be involved in the proposed action should it
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`be implemented.” 42 U.S.C. § 4332(2)(C)(v).
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`39.
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`To accomplish these purposes, NEPA requires that all federal agencies prepare a
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`“detailed statement” regarding all “major federal actions significantly affecting the quality of the
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`human environment.” Id. § 4332(C). This statement, known as an Environmental Impact
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`Statement (“EIS”), must among other things ensure that agencies consider the environmental
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`impacts of their actions in decision-making; provide full and fair discussion of significant
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`environmental impacts; and inform decision makers and the public of reasonable alternatives that
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`would avoid or minimize adverse impacts or enhance the quality of the human environment. 40
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`C.F.R. § 1502.1. An EIS must describe the environment of the area or areas to be affected,
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`including the reasonably foreseeable environmental trends in the areas and the environmental
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`impacts of the proposed action; reasonable alternatives to the proposed action and the
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`significance of those impacts; and the means to mitigate adverse environmental impacts. 40
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`C.F.R. §§ 1502.15, 1502.16(a)(1)-(9).
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`40.
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`BLM’s analysis must do more than merely identify impacts; it must also “evaluate
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`the severity” of effects. Robertson v. Methow Valley Citizens Council, 490 U.S. at 352.
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`An agency may also prepare an environmental assessment (“EA”) if it has determined not to
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`prepare an EIS. 40 C.F.R. § 1501.5(a).
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`41. An EA must include discussion of sufficient evidence and analysis to determine
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`whether to prepare an EIS or a finding of no significant impact (“FONSI”); the environmental
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`impacts of the proposed action; and alternatives to the proposed action. Id. § 1501.5(c).
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`Case 1:22-cv-01716-TSC Document 1 Filed 06/15/22 Page 16 of 254
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`42.
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` To implement NEPA’s requirement to evaluate the effects of greenhouse gas
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`emissions, the CEQ has directed federal agencies to “consider all available tools and resources in
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`assessing GHG emissions and climate change effects of their proposed actions, including, as
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`appropriate and relevant, the 2016 GHG Guidance.” 86 Fed. Reg. 10,252 (Feb. 21, 2021). The
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`“2016 GHG Guidance” refers to the Final Guidance for Federal Departments and Agencies on
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`Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National
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`Environmental Policy Reviews issued August 2, 2016. 81 Fed. Reg. 51,866 (Aug. 5, 2016).2
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`43.
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`The 2016 GHG Guidance advises federal agencies to:
`
`•
`
`•
`
`
`•
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`
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`quantify a proposed agency action’s projected direct and indirect GHG emissions,
`taking into account available data and GHG quantification tools that are suitable
`for the proposed agency action;
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`sets forth methods to appropriately analyze reasonably foreseeable direct, indirect,
`and cumulative GHG emissions and climate effects;
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`use appropriate tools and methodologies for quantifying GHG emissions and
`comparing GHG quantities across alternative scenarios;
`
`
`2 The 2016 GHG Guidance is available at: https://ceq.doe.gov/docs/ceq-regulations-and-
`guidance/nepa_final_ghg_guidance.pdf.
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`In 2017, President Trump withdrew the 2016 GHG Guidance, 82 Fed. Reg. 16,093, 16,094 (Mar.
`28, 2017). In 2019, the Trump administration issued draft guidance on analysis of GHGs under
`NEPA. See “Draft National Environmental Policy Act Guidance on Consideration of Greenhouse
`Gas Emissions,” 84 Fed. Reg. 30,097 (June 26, 2019) (“Draft 2019 GHG Guidance”). However,
`that draft guidance was never finalized. See 86 Fed. Reg. 10,252 (Feb. 19, 2021).
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`At the beginning of his administration, President Biden issued Executive Order 13990 directing
`CEQ among other things to rescind the Draft 2019 GHG Guidance and update the 2016 GHG
`Guidance. 86 Fed. Reg. 7037, 7042 (Jan. 25, 2021). CEQ has since rescinded the Draft 2019
`GHG Guidance, is conducting a review and update of the 2016 GHG Guidance, and advised all
`federal agencies to use the guidance as appropriate and relevant. 86 Fed. Reg. 10,252 (Feb. 19,
`2021); see also San Juan Citizens All. v. U.S. Bureau of Land Mgmt., 326 F. Supp. 3d 1227,
`1243 and n. 5 (D.N.M. 2018) (court cited and relied on withdrawn 2016 GHG Guidance as
`persuasive and worthy of citation to the extent reasoning is logically sound and co