Federal Judge Shuts Down Activists’ Obstruction of Oil and Gas Leases

natural gasGuest Commentary

by Taylor Darby, a 2013 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

Methane emissions, and their contribution to climate change, are one of the many reasons environmental activists routinely offer as support for banning oil and gas extraction techniques such as hydraulic fracturing. Several recent developments call into question the viability of this argument.  First, in April, the Environmental Protection Agency reduced its estimate of how much methane is emitted during natural gas production.  Second, on June 14, a federal district court judge rejected activists’ efforts to block oil and gas leases on public land based on alleged harm from methane emissions.

The suit brought by Montana Environmental Information Center, Earthworks Oil and Gas Accountability Project, and WildEarth Guardians has put the pursuit of domestic energy on nearly 80,000 acres of land on hold for over two years.  Their federal environmental law weapon of choice: the National Environmental Policy Act (NEPA), under which the Bureau of Land Management (BLM) must assess the environmental impact of the oil and gas lease sale.  BLM did the assessment, but of course the plaintiffs felt it was inadequate.  The groups alleged that BLM “fail[ed] to adequately consider climate change, global warming, and greenhouse gases before it approved the lease sales.”

Plaintiffs challenging government assessments under NEPA must first, of course, prove they have Article III standing to sue.  The groups asserted that “the release of methane gas being emitted from the oil and gases leases at issue . . .  will cause global warming and climate change, which, in turn, will present a threat of harm to [the environmental groups’] aesthetic and recreational interests in lands near the lease sites by melting glaciers, warming streams and promoting beetle-killed forests.” Continue reading “Federal Judge Shuts Down Activists’ Obstruction of Oil and Gas Leases”

Supreme Court Observations: Koontz v. St. Johns River Water Mngt. District

Horde_RockyClausen_HansGuest Commentary

by G. Wilson (Rocky) Horde III and Hans Clausen, Thompson Hine LLP

Can land-use regulators exact cash from developers to pay for off-site environmental mitigation as a precondition to issuing building permits without triggering the just-compensation requirement of the Takings Clause? Today, the U.S. Supreme Court answered this question in Koontz v. St. Johns River Water Management District. In a 5-4 decision, the Court held that the government’s demand for property, including cash, from developers as a precondition for land-use permits must bear an essential nexus and a rough proportionality with the prospective burden imposed by the development. This holding expands the scope of the Takings Clause, restricts the power of regulators to require the satisfaction of preconditions before permits will issue, and provides important protections to developers.

The case was filed by Coy Koontz, who purchased a 14.9-acre lot in 1972 when no environmental laws prevented development. Florida later enacted numerous environmental statutes to protect wetlands. These laws placed all but 1.4 acres of Koontz’s lot within a protected zone and established a legal presumption that any land use within the zone would be harmful. In 1994, Koontz applied for development permits, seeking to develop only 3.7 acres of his more than 14-acre lot. The St. Johns River Water Management District (District) initially suggested a long list of environmental mitigation options to Koontz, which included reducing his proposed development to only 1 acre or expending his own money to improve 50 acres of wetlands outside his property under a variety of scenarios. Koontz agreed to dedicate the remainder of his land for conservation, but he refused to do anything more. Ultimately, the District denied Koontz’s application solely because he refused to pay for off-site mitigation. Koontz won in a Florida trial court and at the intermediate appellate level, but lost in the Florida Supreme Court. Continue reading “Supreme Court Observations: Koontz v. St. Johns River Water Mngt. District”