Houston Regional Group - News

The U.S. Justice Department, after being advised by the National Park Service (NPS), decided not to appeal the October 25, 2006 ruling of Federal District Court Judge John D. Bates about oil/gas slant drilling in Big Thicket National Preserve (BTNP) in Sierra Club v. Mainella. The lawsuit was brought by Sierra Club and the Texas Committee on Natural Resources (TCONR) due to three decisions made by the NPS to allow slant drilling for oil/gas under BTNP. The concern was that the NPS did not adequately apply the National Environmental Policy Act (NEPA) and the Organic Act to analyze the environmental impacts, including the cumulative impacts, these wells could cause.

In his ruling, Judge Bates said:

1) ". the Court concludes that plaintiffs (Sierra Club and TCONR) have standing to bring their claims because they have demonstrated injury to their members' aesthetic and recreational enjoyment of the Preserve, defendants caused those injuries, and plaintiffs' injuries are redressable by the relief requested."

2) "If anything, the voluntary nature of mitigation measures undermines the reasonableness of NPS's conclusions regarding nonimpairment, because an operator would not be legally bound to implement such measures."

3) "Merely describing an impact and stating a conclusion of nonimpairment is insufficient, for this merely sets forth "the facts found" and "the choice made," without revealing the "rational connection" - the agency's rationale for finding that the impact described in not impairment . But it is just that assessment that is lacking here. Any reasoned explanation must set forth which of those factors were significant in leading NPS to conclude that an impact is not an impairment - or that a group of impacts collectively is not an impairment."

4) "But the records do not explain why those impacts described as potentially long-term - air pollution, noise pollution, disruption of the lightscape from artificial lighting, and contamination of water resources - do not result in impairments."

5) "An unbounded term cannot suffice to support an agency's decision because it provides no objective standard for determining what kind of differential makes one impact more or less significant than another."

6) "The Court can identify no principled basis for calling one "minor" (for air pollution impacts) and one "moderate," or declining to call any given impacts "major" - only the application of a conclusory label."

7) "It is worth noting here that NPS has concluded that a potentially long-term, widespread, moderate adverse impact on water resources is not an impairment. Just why that is so is not clear."

8) "The Court will not defer to the agency's conclusory or unsupported assertions . NPS failed adequately to explain its conclusion that impacts from nearby surface drilling activities would not result in an impairment of park resources and values. Those decisions are therefore arbitrary and capricious . Therefore, the Court will remand the decisions to NPS for further explanation, rather than setting the decisions aside."

9) "The Court concludes, therefore that NEPA requires NPS to evaluate impacts on the Preserve from adjacent surface drilling activities when determining whether NPS action on a directional drilling application . is a major federal action."

10) ". NPS's three finding of no significant impacts (Collins, Black Stone, and Union Gas wells) are, the Court concludes, arbitrary and capricious for many of the same reasons as are the impairment determinations. In each decision, NPS has failed to take a "hard look" at impacts on the Preserve from adjacent surface activities, as evidenced by the lack of explanations supporting its conclusions and, in particular its methodology of describing impacts using conclusory labels and then setting forth a bare conclusion with explanation as to the significance of an impact. NPS also failed to provide adequate cumulative impacts analysis . On remand, then, NPS must prepare a new environment assessment for the Collins, Black Stone, and Union Gas sites that fills in these gaps."

11) However, NPS's ultimate conclusions that the drilling activities would not result in impairment of park resources and values under the Organic Act, or a significant impact on the human environment under NEPA, are not supported by reasoned explanations, and hence are arbitrary and capricious and an abuse of discretion."

Thanks go to TCONR, Sierra Club staff and volunteers, and Meyer and Glitzenstein attorneys Tanya Sanerib and Howard Crystal. In particular, this victory goes to NPS employees who kept the faith and did their job even though they were forced to leave or transfer to other positions. They truly exemplify the title "public servant" and the Sierra Club salutes their dedication and sacrifice.

April 2007

Last updated:  03/31/2007.   Content © 1999-2007 by the Sierra Club.