Federal Appeals Court Prevents Environmental Group from Suing Over Gas Well Estimates

On May 30, 2017, the United States Court of Appeals for the Eighth Circuit dismissed a lawsuit brought by an environmental group accusing the U.S. Forest Service of ignoring the environmental impact of natural gas drilling in the Ozark National Forest that was approximately 860% above what its prior analysis assumed.  Without addressing the merits of the environmental group’s claims, the Eighth Circuit dismissed its appeal, holding that it lacked constitutional standing to bring the suit.  See Ouachita Watch League v. U.S. Forest Serv., No. 16-1952, 2017 WL 2324706 (8th Cir. May 30, 2017).

In 2005, the Forest Service developed a management plan for the Ozark-St. Francis National Forests in Arkansas.  The plan noted 49 natural gas wells in the Ozark National Forest and anticipated 10 to 20 new wells in the next decade.  However, in 2008, with the technological advances for producing shale plays, a drilling boon was sparked in Arkansas’ Fayetteville Shale.  When the government updated its predictions for natural gas development, it estimated that, instead of 10 to 20 new wells, there would be about 1,730.  Despite this dramatic increase, the government decided that the revised projection did not require a new environmental analysis to determine if the drilling activity should continue.  In response, the Ozark Society filed suit.

In its suit, the plaintiff alleged that the Forest Service violated federal environmental laws by not conducting a new impact study, when the original assessment had been based on significantly lower well site estimates.  The plaintiff also contended that the government failed to meaningfully consider the effects of gas leasing and exploration operations in the forest on public health, air quality, and water quality and failed to provide them an opportunity to participate in that decision.  The district court held that the Ozark Society had standing, but denied its request for injunctive relief.  The district court ultimately ruled in favor of the government, holding that it was not required to supplement the 2005 environmental impact statement.  It later granted summary judgment to the government for four reasons: (1) the agency’s 2010 decision not to conduct a new environmental study was not a final agency decision subject to judicial review; (2) the Forest Service was not obligated to supplement the 2005 environmental impact statement; (3) federal agencies do not have to allow public participation when deciding whether to supplement an environmental impact statement; and (4) the Ozark Society’s challenge to one particular drilling permit was moot because the well had already been drilled.

On appeal, the Eighth Circuit first addressed whether the Ozark Society had standing, that is, had the right to sue for this alleged injury.  The court noted that, while harm to recreational or esthetic interests can support standing for organizations like the Ozark Society on behalf of its members, the members must have a specific and concrete plan to enjoy national forests, instead of a mere generalized harm.  In other words, each member must have a specific plan to enjoy that forest.  In analyzing the complaint, the court found that it was insufficient to establish standing.  Specifically, the complaint spoke only to the alleged harm to the society as a whole, not to each of its individual members.  Citing the Supreme Court’s decision in Summers v. Earth Island Inst., 555 U.S. 488 (2009), the Eight Circuit held that the complaint must allege that the challenged activity would affect all members of the group.  The Eight Circuit held that the Ozark Society’s allegations that it regularly uses the Ozark National Forest and that one identified member had used it in the past fell “short of the mark” necessary to establish standing.

Because the Eighth Circuit found that the Ozark Society lacked standing, it never reached the other issues ruled upon by the district court.  In some respects, this appears to be a dodge by the Eighth Circuit, because a simple rewording of the complaint likely would have resolved these semantic standing issues.  It remains unanswered whether it was arbitrary to forgo a new environmental revise based on a new estimate, when the original estimate had been premised upon significantly fewer wells.  Perhaps future environmental groups will draft their complaints more precisely so that these issues can be squarely addressed.

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