News Coverage
Potential ESA Listing Could Chill Natural Gas Boom
Law360, Jesse Greenspan
Published September 3, 2008
Natural gas production has exploded across the West since the Bush administration took office nearly eight years ago, but the energy boom is being jeopardized by the decline of the greater sage grouse, a chicken-like bird known for its elaborate courtship displays.
In February, the U.S. Fish and Wildlife Service initiated a status review of the greater sage grouse to determine whether it should be protected under the Endangered Species Act. Since then the agency has received public comments from a variety of interested parties and is expected to make a decision some time this December.
Meanwhile, industry, environmental, private landowner and government
representatives have begun to take some cooperative measures to prevent the need for a listing. On Aug. 1, Wyoming Gov. Dave Freudenthal issued an executive order delineating critical sage grouse habitat areas in the state and offering guidance about how to operate in a manner that does not harm the species.
The executive order noted that an endangered species listing would adversely affect the economy, custom and culture of the state of Wyoming.
"Wyoming's efforts, matched with those of our federal partners and private landowners, will hopefully start us down the road to the point where no one even looks at needing to list the grouse in this state," Freudenthal said at the time.
Paul Ulrich, a representative of natural gas developer EnCana
Corp. who served on a sage grouse task force convened by the governor, said people on all sides of the issue were on the same page about protecting sage grouse populations and avoiding a listing.
"We think that the implementation team's recommendations and the governor's executive order is going to go a long way toward doing that," Ulrich said.
"The voluntary measures that the state and industry and conservation groups have put forward is serious mitigation," he added.
However, most sage grouse habitat is on federal lands, and the Bureau of Land Management is not beholden to the state's wishes. Since the executive order was issued, the BLM has already leased about 150,000 acres of critical sage grouse habitat, according to Steve Belinda, an energy policy manager with the Theodore Roosevelt Conservation Partnership and a former BLM biologist.
"If I was with the state right now I would be extremely offended by the BLM doing this," said Belinda, who also served on the sage grouse task force.
He added that any lands occupied within four miles of sage grouse breeding grounds would adversely affect the species, but that the BLM is in some areas still letting industry build within one-quarter mile of breeding grounds.
Last month, the Theodore Roosevelt Conservation Partnership, a coalition of hunting, fishing and conservation organizations, filed a lawsuit contesting BLM's plans for 2,000 new oil and gas wells in south-central Wyoming.
The suit asserted that BLM had failed to properly analyze the cumulative impacts of both the project and nearby expanded development and ignored new scientific data concerning the effects of energy development on populations of mule deer and sage grouse.
A separate suit was brought in June over the BLM's plans for 4,400 natural gas wells in the Pinedale Anticline in western Wyoming.
Wyoming BLM spokeswoman Teresa Howes said the agency was working with its partners, including the state, to map core sage grouse population areas and to come up with further guidelines and policies.
"We appreciate people's passion when it comes to our public lands and will certainly work to continue to manage those lands in the best way we know how," Howes said.
She said she was not familiar with the lawsuits.
For his part, Ulrich pointed out that development can still take place in the core population areas as long as it's "done right."
"I think we're getting there on what level of disturbance affects the sage grouse," he said.
Brian A. Rutledge, executive director of Audubon Wyoming and a third member of the sage grouse task force, said no one wanted to completely halt natural gas development in Wyoming, but that it was up to industry to be more innovative in how it drilled wells in core population areas.
"Direct overhead drilling isn't always the answer, and in these areas it's almost never the answer," Rutledge said.
He said the sage grouse population has dropped from an estimated 19 million birds in the 1900s to under 200,000 birds today, and that he was not against listing if the population continued to decline.
"We've got an ecosystem here that's under serious threat," he said.
The Fish and Wildlife Service received its first petitions to list the
greater sage grouse in 2002 and 2003. In January 2005, it found that a
listing was not warranted, but that decision was later overturned by Judge Lynn Winmill of the U.S. District Court for the District of Idaho.
In his decision, Judge Winmill said the review was tainted by a political appointee who asserted herself into the scientific process. He then ordered the Fish and Wildlife Service to revisit the issue.
Meanwhile, an explosion of natural gas wells have been popping up across the West. Under President Bush, nearly 8,000 wells were drilled a year, compared to 4,800 wells a year under Ronald Reagan, 3,854 wells a year under George H. W. Bush and 4,461 wells a year under Bill Clinton.
The drilling of wells on critical mule deer, elk, sage grouse and pronghorn antelope habitat has been especially intense, more than doubling from the Clinton administration to the Bush administration, according to a report released last year by the National Wildlife Federation and the Environmental Working Group.
"If you look at the amount of energy that's produced from some of these
areas, it's very small compared to our overall consumption," said Dusty
Horwitt, a public lands analyst for the EWG. "That makes the case for much more careful drilling."
