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Clean Air, Hazy Law: The Emerging Interplay Between NEPA, FLPMA, and the Clean Air Act

Jennifer L. Biever, Kathleen C. Schroder, Proceedings of 55th Annual Rocky Mountain Mineral Law Institute (2009)

Air quality has emerged as a prominent issue associated with oil and gas development on federal lands. In the rural West, where oil and gas development is prevalent, the U.S. Environmental Protection Agency's (EPA) tightening of air quality standards for fine particles (PM2.5) and ozone has focused much attention on these pollutants. As a result, the Bureau of Land Management (BLM) faces questions about its duties to protect air quality when approving projects on public lands.
Activities associated with oil and gas development emit PM2.5 and pollutants that can form ground-level ozone. The Clean Air Act (CAA)1 vests EPA and states with authority to regulate the emission of, and enforce air quality standards for, these pollutants. The CAA does not vest BLM with similar authority. Rather, BLM's obligations to protect air quality and regulate emissions of these pollutants when authorizing oil and gas development on federal lands remain largely undefined. Nongovernmental organizations (NGOs) maintain that the National Environmental Policy Act of 1969 (NEPA)2 requires BLM to rigorously analyze impacts to air quality in NEPA processes at each of the various stages of oil and gas development--the land use planning process, oil and gas leasing, and oil and gas development. Moreover, NGOs and EPA are urging BLM to analyze air impacts through modeling, which can be expensive, time-co