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.”

Sounds ominous, but Montana District Court Judge Sam Haddon properly kept his eye on the prevailing legal principles in his Memorandum and Order.  Drilling down (no pun intended) on the “threat of harm to concrete interests” prong of analyzing plaintiffs’ alleged injury, Judge Haddon wrote that there was a “fundamental disconnect between Plaintiffs’ assertions and the proof necessary.”  The disconnect: “Plaintiffs’ recreational and aesthetic interests are uniformly local.  The effects of GHG emissions are diffuse and unpredictable.”

Plaintiffs also needed to prove a causal link between the lease awards and their alleged harm.  Judge Haddon could not see how methane emissions would make the legally required “meaningful contribution” to global climate change:

[t]he required causal link cannot be established by merely showing that methane emissions from lease sites will make an infinitesimal contribution to global GHG levels, as ‘anyone could be liable for the most innocuous of facts – driving to work, watching the television or [turning] on a light’ – as all contribute to global warming and climate change.

What Judge Haddon saw was no more than a teardrop in the ocean.  As he related in his ruling, the estimated future GHG emissions on the land covered by these oil and gas leases would account for only 0.000015 percent of the GHGs emitted worldwide each year– a fraction of 1% from Montana’s total GHG emissions.

This ruling is a positive rejection of activist groups’ continued campaign to obstruct domestic energy development. Prior to Judge Haddon’s decision, Kathleen Sgamma, Vice President of Government and Public Affairs for The Western Energy Alliance, noted “[t]hese environmental groups continue a counterproductive lawsuit that curtails economic activity and job creation in Montana, while opposing the one energy source, natural gas, that has provided a real, meaningful solution for climate change.”