National Environmental Policy Act Compliance for Applications for Permit to Drill where the National Environmental Policy Act prepared to support the authorizing lease is under review related to litigation

When reviewing an APD, the BLM’s practice has included tiering the environmental analysis for the APD or MDP to the environmental analysis that supports the leasing decision. When BLM reassesses the environmental analysis for the leasing decision absent court-ordered vacatur or other action cancelling or terminating the lease, the leases themselves remain in effect while BLM reviews and/or reworks the environmental analysis. In its reassessment of the pre-existing environmental analysis for the leasing decision, BLM in coordination with their regional solicitor may find that portions of the environmental analysis are outdated or otherwise in need of revision, in which case BLM should not rely on those portions of environmental analysis when approving an APD or MDP. Instead, BLM should ensure that any decision to approve the APD is supported by adequate supplemental or additional analysis.

As a general matter, therefore:

1. BLM offices should take particular care when processing APDs on leases for which the underlying environmental analysis is under further review, and coordinate closely with the personnel conducting the additional environmental review, as that review is ongoing, to identify areas where the environmental analysis for the underlying leasing decision requires replacement, modification, or supplementation to address any weaknesses in the leasing analysis that need to be addressed in order to support a decision on an APD or MDP.
2. When BLM is revisiting any cumulative effects analysis for the underlying leasing decision (and/or re-evaluating effects of the leasing decision that are later in time or farther removed in distance from the APD) to inform the NEPA analysis for an APD or MDP, and BLM finds that the cumulative impacts analysis for the lease sale has weaknesses that require supplementation, modification, or replacement, the BLM staff reviewing an APD on a lease that was issued based on that lease decision should ensure that the analysis for the individual APD—including, as appropriate and/or required by law, analysis of greenhouse gas emissions, air quality, and impacts to lands with wilderness characteristics, special designations, cultural resources and special status species (including related habitat) etc.,—is reflected in the supplemental or additional environmental analysis for that APD or MDP.
3. In deciding whether a categorical exclusion (CX) applies to BLM’s consideration of an APD, including the CXs provided for in Section 390 of the Energy Policy Act of 2005, BLM’s further review of the NEPA document(s) underlying the lease may raise a question as to whether those document(s) “analyzed . . . drilling” and therefore qualify for a categorical exclusion. 42 U.S.C. § 15942(b)(3). Accordingly, the BLM should not presume that the mere existence of underlying NEPA documentation is a sufficient basis for BLM to rely on a CX.
4. Where an APD or MDP is tied to a lease that is under review, BLM offices will publish the document containing BLM’s NEPA analysis for the APD or MDP for a minimum 30-day comment period. If after the 30-day comment period, the BLM determines that the environmental analysis for the APD or MDP needs revision, it should follow the process in Onshore Order No. 1, III.E.2(b) and 43 C.F.R. § 3162.3-1(h)(3) to notify the applicant that further processing of the APD or MDP is deferred pending additional NEPA analysis. Upon completion of the additional NEPA analysis, the BLM should consider republishing the NEPA documentation for additional public review and comment. Providing the 30-day comment period on documents prepared pursuant to NEPA does not affect the requirement to provide notice of APDs, MDPs, and Notices of Staking upon receipt, in accordance with 43 C.F.R. § 3162.3-1(g).^[2]
5. The relevant office should elevate APDs that raise potentially significant impacts or unique or controversial issues to HQ-310, Division Chief, before completing the environmental analysis.