Drilling Resumes In Allegheny National Forest

Drilling never stopped in the Allegheny National For­est.  This is lazy report­ing by the Pitts­burgh Tribune-Review (owned by Richard Mel­lon Scaife).  Here’s what really happened.

In 2008, three envi­ron­men­tal groups (Allegheny Defense Project, Sierra Club, and For­est Ser­vice Employ­ees for Envi­ron­men­tal Ethics) sued the For­est Ser­vice for its fail­ure to com­ply with the National Envi­ron­men­tal Pol­icy Act (NEPA) prior to approv­ing oil and gas drilling in the Allegheny National Forest. 

In April 2009, the For­est Ser­vice agreed to set­tle that law­suit and to com­ply with NEPA, which meant that the agency would pre­pare an envi­ron­men­tal analy­sis and release it for pub­lic com­ment before drilling could occur.  As part of that set­tle­ment, the envi­ron­men­tal groups agreed to let nearly 600 oil and gas wells to be drilled with­out any NEPA analysis.

In June 2009, the oil and gas indus­try sued both the For­est Ser­vice and the envi­ron­men­tal groups over the set­tle­ment agree­ment.  The indus­try claimed that, because the For­est Ser­vice does not own the min­eral rights under­neath 93% of the national for­est, it is not a “fed­eral action” that trig­gers NEPA oblig­a­tions when pri­vate oil and gas com­pa­nies pro­pose to drill in the national forest. 

In Decem­ber 2009, the Dis­trict Court in Erie agreed with the indus­try and struck down the set­tle­ment agree­ment.  In 2010, both the For­est Ser­vice and the envi­ron­men­tal groups appealed the Dis­trict Court’s order to the Third Cir­cuit Court of Appeals, claim­ing that, despite the fact that the For­est Ser­vice does not own the min­eral rights, it still has dis­cre­tion to reg­u­late where and how the com­pa­nies access the pub­lic land (i.e., where roads are con­structed, how well sites are con­structed, etc.)  That is what trig­gers NEPA and the need for an envi­ron­men­tal analy­sis and pub­lic comment.

In Sep­tem­ber 2011, the Third Cir­cuit dis­agreed and upheld the Dis­trict Court.  Essen­tially, the Third Cir­cuit adopted the Dis­trict Court’s order in full and said the For­est Ser­vice has no author­ity to reg­u­late at all and, there­fore, no author­ity to pre­pare a NEPA analy­sis.  The result: oil and gas com­pa­nies can drill in the Allegheny National For­est with no com­pre­hen­sive envi­ron­men­tal review and no pub­lic comment.

Keep in mind that dur­ing all of this time, oil and gas drilling NEVER stopped.  So to say that oil and gas drilling “has resumed” is cat­e­gor­i­cally false. 

And the law­suit is not over.  The appeal was just on the Dis­trict Court’s order on a pre­lim­i­nary injunc­tion.  The case now goes back to the Dis­trict Court for fur­ther brief­ing on the merits.