On October 1, 2008, a 25-year ban on drilling in federal waters (the Outer Continental Shelf) will expire, not with a bang but a whimper, as congressional opponents to drilling for oil on American soil admit that Americans are fed up with bans on doing the one thing likely to produce oil and gas—drilling for it. That is not to say, however, that environmental groups now must stand on the sidelines as the Nation searches for energy since they possess a host of tools to frustrate that effort, including the National Environmental Policy Act (NEPA), which enshrined the phrase “paralysis by analysis.”
Take, for example, the plan, in 2003, by Savoy Energy of Traverse City, Michigan, to drill on three state and three federal leases in Crawford County, Michigan, 136 miles north of Lansing. Savoy proposed to use lands within the Huron-Manistee National Forest—managed by the U.S. Forest Service—to drill directionally beneath State of Michigan lands known as the “Mason Tract,” a 4,679-acre parcel, which includes 11 miles of the Au Sable River, donated in part by a former auto executive and fly-fisherman on condition that it remain undeveloped.
Savoy’s proposal was approved by the Michigan Department of Environmental Quality, whereupon the Forest Service undertook to comply with NEPA’s requirements for a study of “major federal action” that “significantly affects the quality of the human environment.” In 2004, the Forest Service issued an Environmental Assessment (EA) and then, in January 2005, issued a Decision Notice and a Finding of No Significant Impact (FONSI) that approved Savoy’s proposal but with additional mitigation measures.
One legal observer wrote that the federal district court’s “decision seemed predetermined against the Forest Service,” that the judge had “set impossible standards,” and that he had improperly "substitute[d] his own judgment for that of the Forest Service." A career attorney with the U.S. Department of the Justice declared it to be “the worst NEPA ruling I have seen in 19 years of litigating these issues.”
One expects such nonsense from environmental groups; however, it is jarring to hear it from a federal judge. Nonetheless, that is the history of NEPA. No word yet on whether the federal government plans to fight back. If it is serious about finding oil and gas, it will!