Nepa and the Energy Policy Act of 2005 Statutory Categorical Exclusions: What Are the Environmental Costs of Expedited Oil and Gas Development?

A decade ago, concerned that National Environmental Policy Act (“NEPA”) compliance caused delays in permitting oil and gas (“O&G”) development on federal land, Congress enacted Section 390 of the Energy Policy Act (“EPAct”) of 2005. Section 390 is intended to expedite the environmental review of O&G development projects on federal lands. To effectuate that end Congress created several statutory categorical exclusions (“CEs”) to NEPA that apply to O&G development. Prior to the EPAct, the Bureau of Land Management (“BLM”) would permit new O&G development after conducting an Environmental Impact Statement (“EIS”) or Environmental Assessment (“EA”). EISs and EAs were the only NEPA compliance option available to the BLM because the agency had not promulgated regulations creating CEs for O&G projects. After the EPAct was passed, the BLM began permitting a substantial number of wells using the less rigorous CEs provided in Section 390. In fiscal years 2006 through 2008, the BLM used Section 390 CEs to permit approximately 28 percent of all wells nationally. States, members of Congress, and environmental groups have expressed concerns that the Section 390 CEs would lead to otherwise avoidable environmental impacts by circumventing conventional NEPA review. This article reviews 189 NEPA decisions and assesses whether the EPAct’s CEs result in more environmental harm then would occur had the projects undergone EA or EIS review.