Although the U.S. Fish and Wildlife Service’s (“FWS”) recent decision not to list the greater sage grouse as threatened or endangered avoids some of the more onerous restrictions that could have impacted activities in areas inhabited by the sage grouse, other federal agencies have promulgated plans designed to protect approximately 67 million federal acres of the sage grouse’s habitat. These plans span 10 different western states and impose limitations on various activities—including those associated with energy development, such as new oil and gas projects, wind farms, and certain large transmission line projects. Several lawsuits have since been filed by states, local governments, and industry members challenging the federal sage grouse plans, and the outcome of these lawsuits could impact energy development projects in many western states.
From 1999 to 2005, FWS received eight petitions to list the greater sage grouse, a species whose range spans 11 western states, as threatened or endangered under the Endangered Species Act (“ESA”). Initially, FWS concluded the listing was warranted based on continuing population declines, and noted that the bird’s habitat was being impacted in particular by energy development. In response, and before FWS made a final listing decision, numerous federal and state entities undertook various planning and regulatory measures to conserve the sage grouse and protect its habitat. The Bureau for Land Management (“BLM”) and the U.S. Forest Service (“USFS”) developed federal land use plan amendments in the Rocky Mountain Region and Great Basin Region that designated habitat management areas for the sage grouse, and limited new activities—including energy development activities—within these areas, but left open existing corridors for major transmission lines and pipelines.1 FWS deemed the “[t]he BLM and USFS sage grouse planning effort . . . unprecedented in scope and scale[.]”2 At the same time, 10 of the 11 states in the sage grouse’s range updated their regulations to provide for sage-grouse conservation objectives and measures. Based on the federal and state conservation measures, FWS in Fall 2015 concluded that listing the sage grouse was not warranted at that time.3
Nevertheless, the federal land use plans impose significant restrictions on use of land within the sage grouse’s habitat, precipitating the filing of a number of lawsuits in the last several months challenging the plans. Collectively, the lawsuits filed by industry and governmental entities challenge the federal land use plans for the sage grouse habitat in Idaho,4 Nevada,5 Utah,6 and Wyoming,7 as well as the Rocky Mountain Region,8 which includes Wyoming, northwest Colorado, and parts of North Dakota and South Dakota. Among other allegations, the complaints allege that the plans (1) violate the National Environmental Policy Act (“NEPA”) because no environmental impact study was undertaken prior to their issuance, (2) violate the Federal Land Policy and Management Act (“FLPMA”) in how they designate habitat areas, and (3) unlawfully impose a “net conservation gain” mitigation standard.
At the same time, a coalition of environmental groups have also filed a complaint alleging that the federal land use plan amendments for the greater sage grouse are not protective enough and "will fail to ensure that sage grouse populations and habitats will be protected and restored" as required by various federal laws.9 The environmental groups do not seek for the court to vacate the plans, but request that the court remand the plans for further development by the federal agencies involved. Their complaint alleges that that “[a]ll of the plans – but especially Wyoming’s – are riddled with exceptions and loopholes for fluid mineral and energy development.”10
Due to the significant range of the greater sage grouse, and its presence in areas in which energy development and infrastructure projects have been undertaken, the outcome of these lawsuits may impact a variety of energy projects—including new oil and gas projects, wind farms, and certain large transmission line projects—across the western United States. If the environmental groups succeed, the restrictions placed on land inhabited by the sage grouse could become more onerous. On the other hand, if industry or local government groups succeed, the federal land use plans could be vacated—but FWS might then reconsider its listing decision, which was based in large part on the presence of the land use plans.