## Facts

- Congress enacted § 390 of the Energy Policy Act of 2005, creating categorical exclusions (CXs) from NEPA review for certain oil-and-gas actions on federal lands.
- In 2010, the Bureau of Land Management issued Instruction Memorandum 2010-118 and the Forest Service issued a guidance letter addressing how § 390 CXs would be applied.
- The 2010 guidance imposed (among other things) an “extraordinary circumstances” screening process and additional limits on the use of certain § 390 CX categories (including CX2 and CX3).
- An industry association and several oil-and-gas companies sued federal officials and agencies, alleging the guidance unlawfully narrowed the statutory CXs and was adopted without Administrative Procedure Act (APA) notice-and-comment procedures.
- The government moved to dismiss, arguing the guidance was nonbinding, and that plaintiffs lacked standing and ripeness.

## Issues

1. Whether the 2010 BLM and Forest Service guidance constituted legislative rules requiring APA notice-and-comment procedures, rather than exempt interpretive rules or policy statements.
2. Whether plaintiffs’ alleged injuries from the guidance were sufficiently concrete to satisfy standing and ripeness.
3. What remedy was proper if the guidance was procedurally invalid under the APA.

## Decision

- The court held the challenged portions of the 2010 guidance functioned as legislative rules that required notice-and-comment rulemaking.
- The court rejected the government’s standing and ripeness arguments, finding plaintiffs’ claimed injuries from the in-effect, nationwide guidance were not merely speculative.
- The court vacated and enjoined the guidance nationwide, but only to the extent it:
  - required an extraordinary-circumstances screening process for any § 390 CX;
  - added a condition to CX2 limiting its use to situations where the specific location and/or well pad had been adequately analyzed in an existing activity-level or project-specific NEPA document; and
  - barred use of CX3 when relying solely on a NEPA document associated with a land-use plan.
- The court left other portions of the guidance in place.
- The court declined to decide the substantive validity of the agencies’ interpretation of § 390 under the Energy Policy Act or NEPA.

## Legal Principles

- Agency pronouncements that impose binding requirements or materially constrain agency discretion may be legislative rules subject to APA notice-and-comment procedures, even if labeled “guidance.”
- When an agency adopts a legislative rule without required notice-and-comment procedures, a court may vacate and enjoin the procedurally invalid portions without reaching the substantive statutory dispute.
- Standing and ripeness can be satisfied where a challenged, operative agency directive applies broadly and alters how regulated parties’ requests will be evaluated, creating present, non-speculative compliance and project impacts.

## Conclusion

The court treated key portions of the agencies’ § 390 CX “guidance” as procedurally invalid legislative rules, rejected justiciability objections, and ordered nationwide vacatur and injunctive relief limited to the specific added screening and conditions, while reserving the underlying statutory and NEPA merits for another day.


W. Energy All. v. Salazar, No. 10-CV-237F, 2011 WL 3737520 (D. Wyo. Aug. 12, 2011)