A federal court in Wyoming has vacated the U.S. Department of Interior’s (DOI ’s) Bureau of Land Management (BLM ) and Forest Service (FS ) internal guidance documents that limited the use of “categorical exclusions” exempting certain actions of oil and gas developers from NEPA. W. Energy Alliance v. Salazar, No. 10-237 (D. Wyo. 8/12/11). At issue was section 390 of the Energy Policy Act of 2005 (EPA), which established a “rebuttable presumption” that a categorical exclusion from review under NE PA would apply to oil and gas development activities on federal oil and gas leases.

On May 17, 2010, BLM issued BLM Instruction Memorandum No. 2010-118, and on June 9, the FS issued a 2010 FS Letter, which interpreted the EPA by introducing a screening process that could lead to further environmental oversight if certain criteria were met. The letters were issued without public notice and comment procedures. Plaintiffs alleged that the letters were not “policy statements,” but rules that “bind the agencies and impose or affect individual rights and duties,” and therefore violate the Administrative Procedure Act (APA).  

The court agreed, finding that the letters amounted to rules that should have complied with APA’s notice and comment requirements. According to the court, the 2010 letters were a complete “about-face” by the agencies compared to their previous requirements. The court therefore vacated and enjoined the 2010 letters.