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Sierra Club v. Mainella

October 25, 2006


The opinion of the court was delivered by: John D. Bates United States District Judge


The National Park Service ("NPS") regulates private oil and gas drilling operations within units of the National Park System pursuant to the National Park Service Organic Act ("Organic Act"), 16 U.S.C. § 1, et seq., and the regulations set forth at 36 C.F.R. Part 9, Subpart B ("9B Regulations"). Directional drilling -- the practice of drilling at a slant adjacent to and outside of Park boundaries to extract privately owned oil and gas from beneath the park unit surface -- is also covered by the 9B regulations, but may be exempt from NPS oversight pursuant to 36 C.F.R. § 9.32(e) where a regional director determines that the operations within a park unit pose no significant threat of damage to park resources. Plaintiffs challenge the framework for this decisionmaking, as embodied in three site-specific final actions exempting directional drilling activities in and around Big Thicket National Preserve in Texas, alleging that NPS failed to consider environmental impacts from oil and gas operators' surface activities adjacent to and outside park boundaries in violation of the Organic Act, 16 U.S.C. § 1, the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370e.*fn1 Currently pending before the Court are plaintiffs' and defendants' cross-motions for summary judgment. A hearing on the motions was held on September 8, 2006.

Neither the parties nor the Court are writing on a blank slate. The Court previously addressed plaintiffs' standing and the meaning of section 9.32(e) in the context of plaintiff's APA challenge to an NPS guidance document issued in 2003 that allegedly changed a prior NPS interpretation of section 9.32(e). See Sierra Club v. Mainella, No. 04-2012, 2005 WL 3276264 (D.D.C. Sept. 1, 2005) ("Sierra Club I"). The Court concluded that the plain language of section 9.32(e) limits the impacts NPS may consider to those from activities within a park unit, and thus the restatement of that requirement in the later guidance document was not a final agency action subject to judicial review. Id. at *11-12. That decision expressed no opinion on the merits of either the regulation or the three site-specific exemption decisions made by NPS under the Organic Act or NEPA.*fn2 Plaintiffs now argue that NPS's application of section 9.32(e) has resulted in exemption decisions that are contrary to the Organic Act and violate the procedural requirements of NEPA. Defendants once again challenge plaintiffs' standing, and also defend the framework of decisionmaking and the merits of each of the three challenged decisions.


I. Statutory and Regulatory Background

The National Park Service Organic Act of 1916 provides for NPS management of the national park system, and establishes a mandate to regulate the use of parks in a manner that will protect park resources from impairment:

The service . . . shall promote and regulate the use of the . . . national parks . . . by such means and measures as conform to the fundamental purpose of the said parks . . . which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. § 1. This mandate is confirmed by the NPS General Authorities Act of 1970, as amended, 16 U.S.C. § 1a-1, and also is reflected in the legislation establishing the individual parks, including Big Thicket National Preserve. See 16 U.S.C. § 1a-1 ("The authorization of activities shall be construed, and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established," except as otherwise provided by Congress); 16 U.S.C. § 698c(a) ("Such lands [i.e., Big Thicket National Preserve] shall be administered by the Secretary as a unit of the National Park System in a manner which will assure their natural and ecological integrity in perpetuity in accordance with . . . the provisions of . . . sections 1 and 2 to 4 of this title"). NPS has construed the "derogation" standard in the General Authorities Act as a reiteration of the "impairment" standard set forth in the Organic Act -- that is, a duty to prohibit the impairment of the integrity of park resources and values.*fn3 See NPS Management Policies 2001 at 12 (Pls.' Mem., Ex. 1).

The NPS promulgated the 9B Regulations in 1978 to control activities within the National Park System with respect to the exercise of rights to oil and gas owned by private entities where access is on, across, or through federally owned or controlled land or waters. See 36 C.F.R. § 9.30(a). Such rights arise most frequently where the land within a park unit is owned in fee by a private party, including the right to oil and gas, or, most relevant here, "[w]hen in a transfer of the surface estate to the United States, the grantor reserved the rights to the oil and gas." Id. The regulations generally prohibit the granting of access through federal lands or waters unless the operator has an approved "plan of operations," which "serves as the operator's access permit" and sets forth information regarding, inter alia, the various "environments to be affected by operations" and "steps to be taken . . . to mitigate any adverse environmental effects." Id. §§ 9.32(a), 9.36(a)(16). Operators subject to the 9B Regulations also must take "all technologically feasible precautions" to prevent a well from blowing open or becoming wild and to prevent accidents and fires. Id. §§ 9.44, 9.46. Any operator outside the boundaries of a park unit must comply with these requirements if he is using directional drilling techniques that result in the drill hole crossing into the unit and passing under any federal land or water. Id. § 9.32(e). However, an exemption is available where "the Regional Director is able to determine from available data, that such operations pose no significant threat of damage to park resources, both surface and subsurface, resulting from surface subsidence, fracture of geological formations with resultant fresh water acquifer contamination, or natural gas escape, or the like." Id.

NPS issued a guidance document in 2003 that states, in relevant part: "The potential impacts considered in the § 9.32(e) exemption process relate only to effects on park resources from downhole activities occurring within the boundary of the park, not threats to park resources associated with the operation outside park boundaries." See Final Guidance on Implementing the Directional Drilling Provision of the Service's Nonfederal Oil and Gas Regulations at 36 CFR 9B ("Guidance") at 2 (emphasis added) (Defs.' Mot. to Dismiss, Ex. 4A-4B). In Sierra Club I, the Court concluded that the Guidance only repeated the requirements of the regulation, and thus did not require notice and comment. 2005 WL 3276264 at *12, *16 (holding that the Guidance reiteration of regulatory requirements "does not give rise to new legal obligations or legal consequences," that the Guidance is "a statement of the plain meaning of the 9B regulations," and thus the Guidance "is not final agency action requiring notice and public comment or subject to judicial review"). This holding was based primarily on the geographical limitation imposed on the key term "operations" as defined by the 9B Regulations -- that is, limiting "operations" to "[a]ll functions, work and activities within a unit in connection with exploration for and development of oil and gas resources" -- a limitation repeated in other parts of the 9B regulations. Sierra Club I, 2005 WL 3276264 at *10 (quoting 36 C.F.R. § 9.31(c)) (emphasis added). As this Court explained:

Reading § 9.32(e) with the definition of "operations" substituted in place of that term in brackets, § 9.32(e) provides for an exemption where "the Regional Director is able to determine from available data, that such [functions, work and activities within a unit in connection with exploration for and development of oil and gas resources, the right to which is not owned by the United States, including . . . all activities and uses reasonably incident thereto performed within a unit] pose no significant threat of damage to park resources . . ."

Sierra Club I, 2005 WL 3276264 at *11.

The NPS, like other federal agencies, also is subject to the procedural requirements of the National Environmental Policy Act. NEPA requires a federal agency to prepare an environmental impact statement ("EIS") for all "proposals for . . . major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The EIS must include, among other things, "a detailed statement describing the reasonably foreseeable environmental impact both of the proposed federal action and of any feasible alternative(s) to the proposed federal action." Wyoming Outdoor Council v. U.S. Forest Service, 165 F.3d 43, 49 (D.C. Cir. 1999) (internal quotations omitted). An EIS is not required if the agency makes a determination based on a more limited document, an "environmental assessment" ("EA") that the proposed action would not have a significant impact on the environment. 40 C.F.R. §§ 1501.4, 1508.13. "The EA is to be a 'concise public document' that '[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS]." Dep't of Transp. v. Public Citizen, 541 U.S. 752, 757 (2004) (quoting 40 C.F.R. § 1508.9(a)). The agency must consider, among other things, "cumulative impacts" -- that is, "other past, present, and reasonably foreseeable future actions regardless of what agency . . . or person undertakes such other actions" -- as well as impacts from "connected actions" (that is, closely related actions). 40 C.F.R. §§ 1508.7, 1508.25(a)(1)-(2); 1508.27(b)(7). If an agency determines that an EIS is not required, it must issue a "finding of no significant impact" ("FONSI"), which briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment. Public Citizen, 541 U.S. at 757-58 (citing 40 C.F.R. §§ 1501.4(e), 1508.13). The Supreme Court has explained that "it is now well-settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). Thus, "NEPA merely prohibits uninformed -- rather than unwise -- agency action." Id. at 351.

II. Factual Background

The Big Thicket National Preserve ("BTNP" or "Preserve"), established in 1974, is comprised of 15 "units" covering over 88,000 acres of land. See AR-C 0466.*fn4 The United States holds fee simple title to the surface estate of these lands. Id. Oil and gas deposits underlying the Preserve are owned by nonfederal entities. Id. at 0474. NPS estimates that there are 1.21 million barrels of oil, 70.11 billion cubic feet of natural gas, and 1.02 million barrels of natural gas liquids underlying the Preserve, and projects that 29 wells are reasonably anticipated to be drilled over the next 15 to 20 years, of which 19 would be commercially successful. Id. From 1999 through 2004, nineteen directional wells were drilled from surface locations outside of the Preserve to reach bottomholes inside the Preserve, excluding the wells at issue in this case. Id.

The three decisions under review concern directional drilling where the operator's surface activities (that is, the production pad, wellhead, and associated activities) are located approximately 100 to 500 feet outside of the Preserve boundary. AR-C 0004; AR-B 0003; AR-U 0007. In September 2004, NPS took final action on the application of Comstock Oil & Gas, Inc. ("Comstock") to directionally drill one well (the "Collins" well) to access oil and gas below the Preserve's Big Sandy Creek Unit. Collins FONSI (AR-C 0002-0017). This final action Consisted of (1) a determination that the directional well qualified for an exemption from the 9B regulations pursuant to section 9.32(e), (2) a determination that the well (including connected activities adjacent to the Preserve) would not result in an "impairment" to the integrity of park resources or values under the Organic Act, and (3) a finding of no significant impact under NEPA. AR-C 0002-0008. In November 2004, NPS took final action on Comstock's application to drill two other wells -- the Black Stone B1 and D1 wells -- to access oil and gas below the same Unit, again issuing an exemption determination under section 9.32(e), a nonimpairment determination under the Organic Act, and a finding of no significant impact. Black Stone FONSI (AR-B 0002-0008). Finally, in June 2005, NPS granted the application of Union Gas Operating Company ("Union Gas") to drill four wells -- the Nelson well and the BP Rafferty A-45 #1, 2, and 3 wells ("the Rafferty wells") -- to access oil and gas beneath the Preserve's Neches Bottom/Jack Gore Baygall Unit, based once again on an exemption determination under section 9.32(e), a non-impairment determination, and a finding of no significant impact. Union Gas FONSI (AR-U at 0006-0014).

Each of the three actions was preceded by an environmental assessment that was the subject of public notice. See Collins EA (AR-C 0456-0512); Black Stone EA (AR-B at 0197-0265); Union Gas EA (AR-U 0418-0497). All three environmental assessments followed the same template. Section One acknowledges NPS's statutory and regulatory obligations, including its duties under the 9B regulations and its broader duties under the nonimpairment mandate of the Organic Act and NEPA. See Collins EA at 3-8 (AR-C 0465-0470); Black Stone EA at 4-10 (AR-B at 0207-0213); Union Gas EA at 4-11 (AR-U 0427-0434). NPS then describes its "scoping" process -- a process used to identify environmental impact topics and narrow the issues to be "carried forward" for a more fulsome impairment analysis by the agency.*fn5 See Collins EA at 9-21 (AR-C 0471-0483); Black Stone EA at 10-25 (AR-B at 0213-0228); Union Gas EA at 11-24 (AR-U 0434-0447). The scoping analysis is, in substance, an abbreviated assessment of environmental impacts to screen out insubstantial topics from the impairment analysis. NPS separated "impacts from in-park operations" and "impacts from connected actions" taking place outside the park boundaries in order to segregate the information to be used in making an exemption determination under section 9.32(e) (that is, impacts from activities "within a unit"), from the broader array of impacts on the human environment examined under the Organic Act and NEPA. See Collins EA at 11-12 (AR-C at 473-74); Black Stone EA at 13 (AR-B 0216); Union Gas EA at 17, 21 (AR-U 0440, 0444). NPS defines "connected actions" for directional drilling operations as actions "occurring outside of the park related to the directional drilling operation inside the park includ[ing] the construction of the well/production pad(s), gas sales/transportation line, and access road; drilling and completion; hydrocarbon production and transportation; and well plugging and surface reclamation." E.g., Collins EA at 8 (AR-C 470); Black Stone EA at 9 (AR-B 0212); Union Gas EA at 10 (AR-U 0433).

Section Two of the EAs sets forth the two alternatives that were evaluated by NPS, and also describes alternatives that were dismissed. Alternative A in each decision is the "No Action" alternative, an alternative that NEPA requires and that establishes a baseline for comparing the environmental consequences of the action alternative. Collins EA at 23 (AR-C 0485); Black Stone EA at 27 (AR-B 0230); Union Gas EA at 25 (AR-U 0448). Alternative B in each decision is permitting the operator to directionally drill the well as proposed in each application. Collins EA at 23 (AR-C 0485); Black Stone EA at 27 (AR-B 0230); Union Gas EA at 25 (AR-U 0448). Two other alternatives were considered but dismissed from further analysis. Drilling from a surface location inside the park unit, which would have required a 9B plan of operations, was rejected as "unreasonable in terms of economics, logistics, degree of environmental impact, and time required to implement the project." Collins EA at 28-29 (AR-C 0490-0491); Black Stone EA at 37 (AR-B 0240); Union Gas EA at 31 (AR-U 0454). The second dismissed alternative, NPS acquisition of the mineral rights at issue, was rejected because NPS concluded the mitigation measures identified and applied by each operator had substantially reduced the potential for adverse impacts to park resources and values. Collins EA at 29 (AR-C 0491); Black Stone EA at 37 (AR-B 0240); Union Gas EA at 32 (AR-U 0455).

Section Three, entitled "Affected Environment and Environmental Consequences," sets forth NPS's analysis for each of the environmental impacts carried forward from the Section One scoping process, including NPS's "impairment analysis" pursuant to its mandate to prevent impairment of park resources and values under the Organic Act. Collins EA at 33 (AR-C 0495); Black Stone EA at 43 (AR-B 0246); Union Gas EA at 39 (AR-U 0462). This analysis considered both in-park activities and impacts from connected actions. Collins EA at 33-41 (AR-C 0495- 503); Black Stone EA at 43-53 (AR-B 0246-0256); Union Gas EA at 39-65 (AR-U 0462-0488). The analyses described the impacts in terms of the area affected ("localized" to the project area, or "widespread" to other Preserve areas) and duration ("short-term," defined as up to three years, and "long-term," defined as extending up to 20 years or longer). NPS also used descriptors for the intensity of the impact with regard to park resources or values -- negligible, minor, moderate, or major -- noting that numerical data were presented "[w]here the intensity of the impact can be described quantitatively," but that "most impact analyses are qualitative." Collins EA at 33 (ARC 0495); Black Stone EA at 43 (AR-B 0246); Union Gas EA at 39-40 (AR-U 0462-0463) .

The projected environmental consequences set forth in the scoping analyses and impairment determinations are in many respects similar because the projects examined all involve the same kind of activity -- directional drilling -- near the border of the Preserve and close to water resources. NPS did not anticipate any adverse impacts as a result of the downhole activities that would occur within the Preserve, noting that the wellbore would cross into the Preserve at depths too far below the surface to give rise to environmental impacts.*fn6 No one has contested that finding in the record or in this litigation. NPS acknowledged a range of impacts from the surface activities near the Preserve, but as to Collins and Black Stone, dismissed most of the impacts as not warranting a detailed analysis. For example, NPS projected increased air pollution from construction activities, vehicle use, and large gasoline and diesel engines used to power drilling equipment, which would be greatest during the drilling phase (45 days for the Collins well, 80 days for each Black Stone well) and would continue at an unspecified reduced level after drilling, and then concluded that these impacts should be dismissed from further analysis because they would be "at low intensity levels, with localized, short- to long-term, negligible to minor, adverse impacts." Collins EA at 14 (AR-C 0476); Black Stone EA at 15-16 (AR-B 0218-0219). As to impacts from artificial lighting, NPS noted that there were no overnight camping facilities or visitor use development in the Collins area, and only a few in the Black Stone area, and then concluded that these impacts should be dismissed from further analysis because they were "low intensity" and would be "localized, short- to long-term, resulting in a negligible to minor, adverse impact." Collins EA at 14-15 (AR-C 0476-0477); see also Black Stone EA at 16-17 (AR-B 0219-0220) (dismissing lightscape impacts because of their "low intensity").

Impacts on water resources also were dismissed from further analysis. NPS observed that both the Collins and Black Stone wellpads were located in areas that would drain in the direction of water resources located within the Preserve, and for the Black Stone wells, there were floodplains, probable wetlands, and "other waters of the United States" in the analysis area, which was a concern because of the potential for release of contaminants -- oil or gas, brine water, and hazardous substances. Collins EA at 15-17 (AR-C 0477-0479); Black Stone EA at 18-20 (0221-0223). However, for the Collins well, NPS concluded that, in light of Comstock's "proposed surface casing and cementing program, site location, site design, and mitigation measures," impacts would be confined to the wellsite, and the potential for release was "unlikely." Collins EA at 16 (AR-C 0478). As to the Black Stone D1 well, the concerns appeared more significant. NPS noted the "potential for negligible to minor, adverse impacts to water resources, floodplains and wetlands in the Unit due to sheet flow drainage from the [D1] site," but concluded that "[a]pplication of erosion control and operational mitigation measures identified in Table 2 are expected to be adequate to protect these resources within the Unit." Black Stone EA at 19 (AR-B 0222). NPS further noted that in the event of a spill, "there should be ample time and space to respond to even a major release before there would be impacts on the Unit." Id.

For both the Collins and Black Stone wells, NPS decided to carry forward for further analysis impacts on the natural soundscape within the Preserve.*fn7 NPS noted that elevated noise would be greatest during the short-term drilling of the wells -- 45 days for the Collins well, 80 days for each of the Black Stone wells -- reaching 90 decibels on the drill rig (a sound level equivalent to freeway traffic), which would dissipate with distance, approaching natural background levels (40 decibels) at 1,500 feet from the drill rig. Collins EA at 37 (AR-C 0499); Black Stone EA at 47 (AR-B 0250). NPS estimated that elevated noise would extend up to 1,200 feet into the Unit for the Collins and Black Stone wells, and also noted other localized less intense increases in noise associated with heavy traffic, heavy equipment and ground disturbing activities, as well as noise from day-to-day production operations and "workover" operations at five-to-ten year intervals. Collins EA at 37 (AR-C 0499); Black Stone EA at 47 (AR-B 0250). NPS characterized these impacts as "short- to long-term, negligible to moderate, adverse impacts" localized around the sources.*fn8 Collins EA at 37 (AR-C 0499); Black Stone EA at 48 (AR-B 0251). These impacts are in the nature of displacement of wildlife, increase of wildlife competition in adjacent areas, and interference with the visitor experience. Collins EA at 10, 17-18 (AR-C 0472, 0479-80); Black Stone EA at 11, 22 (AR-B 0214, 0225). NPS found that cumulative impacts in and contiguous to the Big Sandy Creek Unit would be similar to existing noise levels without the drilling, referring to noise from existing vehicle traffic, occasional NPS-prescribed fires, commercial timber activities, and other unspecified oil and gas activities near the Unit, and thus concluded that neither the Collins nor Black Stone drilling activities would result in impairment of the natural soundscape. Collins EA at 37 (AR-C 0499); Black Stone EA at 48 (AR-B 0251).

The four Union Gas wells in the Gore/Baygall Unit of the Preserve were recognized as involving similar environmental impacts. However, several of the impacts dismissed for the other wells were carried forward for further evaluation in the Union Gas impairment analysis, apparently due to the different attributes of the location. NPS reached the same conclusion -- no impairment within the meaning of the Organic Act -- but its analyses of these impacts -- air quality, lightscape, and water resources -- were more detailed, having survived the scoping process. Thus, for example, for air quality, NPS estimated that emissions of total organic compounds for each well would be 2.6 tons over a standard 30-day drilling period, and that total estimated emissions would be 10.4 tons over a 90- to 120-day period. Union Gas EA at 43 (ARU 0466). NPS also noted that emissions of particulate matter, nitrogen oxides, carbon monoxide, and sulfur dioxide would be greatest during the short-term drilling/completion of the wells and workover activities (one to two weeks) due to increased use of vehicles and gasoline diesel engines, but that there would be no exceedance of federal Clean Air Act standards. Id. If a well becomes a producing well, emissions would continue, but at unspecified lower levels. Id. Moreover, prevailing winds were expected to dissipate emissions from the area. Id. NPS then characterized the impacts from the connected surface activities as "short- to long-term, localized to widespread, negligible to moderate, and adverse,"*fn9 and concluded there would be no "impairment" of air quality in the Unit because "there would be no major adverse impacts" to park resources or values whose conservation had been identified by NPS as key to the integrity of the Preserve or otherwise significant.*fn10 Id. at 43-44 (emphasis added).

NPS also concluded that the lightscape of the Preserve would not be impaired, providing the following additional details. Elevated light levels would be greatest during the 30-day drilling/completion period for each well because of lighting required for 24-hour operations. Union Gas EA at 51 (AR-U 0474). There would be "smaller" artificial lighting during the long-term production life of the wells and during workover periods at five- to ten-year intervals. Id.

A heavily vegetated area would block "some" of the light, but the blocking effect would be limited because of the short distance between the well pads and the Preserve. Id. NPS then concluded that the surface activities would "cause short- to long-term, localized to widespread, negligible to moderate, adverse impacts to the lightscape in the analysis area," but noted "similar" impacts from nearby existing activities.*fn11 Id. It then concluded there would be no "impairment" of air quality in the Unit because "there would be no major adverse impacts" to park resources or values whose conservation had been identified by NPS as key to the integrity of the Preserve or otherwise significant. Id. at 51-52. The Preserve's natural soundscape was found to be similarly impacted in intensity and duration based on the same pattern of activity, with the soundscape analysis largely reflecting that set forth in the Collins and Black Stone EAs, and with NPS thus reaching the same nonimpairment conclusion. See Union Gas EA at 48-49 (AR-U 0471-72) (surface activities would have "short- to long-term, localized, negligible to moderate, adverse impacts on natural soundscapes in the Unit").

The site of the Union Gas wells gave rise to special concerns for water resources because the surface activities were located within the 100-year floodplain of the Neches River and drainage from the well pad would, for one site (Bertrand-Nelson), flow in the direction of Black Creek and then the Neches River, and for the other (the Rafferty sites), flow in the direction of a large forested wetland complex just inside the edge of the Preserve. Mem. from Carol McCoy, Chief, Planning, Evaluation and Permitting Branch, to Dusty Pate, Superintendent, BTNP, Mar. 18, 2005 (AR-U 1041-42); Union Gas EA 54-57 (AR-U 0477-0480). NPS recognized the risk of spills of raw petroleum product and other chemicals (motor oil, coolant, and lubricants), the potential for pipelines to leak or rupture, and the more typical discharges of sediment and pollutants from day-to-day construction, maintenance, and production activities. Union Gas EA at 55-56 (AR-U 0479-0480). NPS noted, however, that there was no practicable alternative of siting the operations outside of the 100-year floodplain because of the location of the subsurface targets and the broad nature of the Neches River floodplain. Id. at 53. It stated that the operator had proposed several mitigation measures: "In general, they include strategies to prevent and respond to accidental spills, manage storm water runoff from the disturbed sites, arrange certain components of the drilling and production facilities that have greater potential for impacts (i.e., pits and tank batteries) as far from the Unit boundary as possible, and comply with all applicable Statewide Rules regulating surface and groundwater protection." Union Gas EA at 56-57 (AR-U 0479-80). NPS then characterized the impacts on water resources as "short- to long-term, localized to widespread, negligible to moderate, adverse impacts," and concluded there would be no "impairment" because "there would be no major adverse impacts" on park resources or values whose conservation had been identified by NPS as key to the integrity of the Preserve or otherwise significant. Union Gas EA at 57 (AR-U at 0480).

None of the decision documents relating to the three sites discuss the risk of catastrophic incidents, such as fire, well blow-outs, or major spills, although the Union Gas EA touches upon spills as noted above. Other record documents -- mainly memoranda from Carol McCoy, Chief of Planning, Evaluation and Permitting Branch in the Geologic Resources Division ("GRD") to the Preserve Superintendent -- acknowledge those risks, but conclude that the risks are "low" or "very low" considering industry's diligence in using proper controls or that the risks can be addressed with additional mitigation measures. See Mem. from McCoy to Pate, Apr. 22, 2004 (AR-C 1066) ("The 'threat of damage' to park resources from a well blowout [is] characterized as low even though 'actual damage' from a blowout could be great," noting industry's diligence in well control and available knowledge about formations.); id. at 1067 ("low probability of fire at the facility and measures in place to contain events that do occur"); Mem. from McCoy to Pate, Aug. 26, 2004 (AR-B 0519-20) ("[T]here is a potential that unplanned events, specifically releases of contaminants, will occur over the life of the operation. . . . Given the pathway of migration, sound spill prevention features, and effective spill response protocol, the Division concludes that there is a very low probability that contaminants would reach the park in any appreciable amount."); Mem. from McCoy to Pate, Mar. 18, 2005 (AR-U 1043) ("Union Gas provides a good general Spill Prevention, Control, and Countermeasure plan, but does not provide information related to flood mitigation.").

The FONSIs did not depart from the EAs in any significant respect, largely repeating the conclusions stated in the EAs, and relying heavily on the EA analyses to support those conclusions. Collins FONSI at 1-6 (AR-C 0003-0008); Black Stone FONSI at 1-7 (AR-B 0002-0008); Union Gas FONSI at 1-9 (AR-U 0006-0014). The response to comments attached to each FONSI reiterated that impacts from surface activities were excluded from NPS's decision to grant an exemption from the 9B regulations pursuant to 36 C.F.R. § 9.32(e), but were considered to determine the impact on the "human environment" under NEPA:

The NPS has intentionally presented the potential impacts inside the preserve associated with the downhole activities separately from the impacts from the connected actions outside of the Preserve in the EA. The downhole activities are analyzed to determine whether there is a significant threat to park resources and if a § 9.32(e) exemption should be granted, whereas the analysis of the impacts from the connected actions are presented in addition to the downhole operations to disclose to the public all of the potential impacts on the human environment as required under NEPA. Cumulative impacts are presented for the analysis area which includes areas inside and outside of the preserve.

Collins FONSI at 12 (AR-C 0014); Black Stone FONSI at 23-24 (AR-B 0024-25); Union Gas FONSI at 24-25 (AR-U 0029-30). The Organic Act impairment determination, like the NEPA significance determination, also was not limited to downhole activities. Collins FONSI at 6 (ARC 0008); Black Stone FONSI at 6-7 (AR-B 0007-08); Union Gas FONSI at 8-9 (AR-U 0013-14).

Defendants report that the Collins well and one of the Union Gas wells have hit commercial pay zones -- hydrocarbons in profitable quantities -- and are presently in active production. Decl. of Haigler Pate ¶¶ 7, 13 (Defs.' Mem. Ex. 2). The Black Stone B1 well has been plugged and abandoned because drilling yielded no commercial pay zones, and Comstock is reconsidering whether to drill the D1 well in light of those results. Id. ¶¶ 9, 12. Counsel reported ...

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