Energy Policy Act of 2005: Greater Clarity needed to Address Concerns with Categorical Exclusions for Oil and Gas Development Under Section 390

This Government Accountability Office Report (GAO-09-872) dated, September 2009, finds that Section 390 categorical exclusions were used to approve approximately 6,100 of 22,000 applications for drilling permits (about 28 percent) and about 800 other actions—mostly modifications to existing permits—from fiscal years 2006 to 2008.

GAO is reporting about 1,150 more instances in which BLM approved section 390 categorical exclusions than had been reported by BLM headquarters, largely because many field offices erroneously used single decision documents to approve multiple oil and gas wells. While section 390 categorical exclusions increased the efficiency of certain operations, some BLM field offices benefited more than others. The differences in benefits stem from a variety of factors and circumstances, such as whether an office had recent and site-specific National Environmental Policy Act (NEPA) documentation.

BLM’s use of section 390 categorical exclusions has frequently been out of compliance with both the law and BLM’s guidance. First, GAO found several types of violations of the law, including approving more than one oil or gas well under a single decision document, approving projects inconsistent with the law’s criteria, and drilling a new well after time frames had lapsed. Second, GAO found numerous examples—in 85 percent of the field offices sampled—where officials did not correctly follow guidance, most often by failing to adequately justify the use of a categorical exclusion. A lack of clear guidance and oversight contributed to the violations and noncompliance. While many of these are technical in nature, others are more significant and may have thwarted NEPA’s twin aims of ensuring that BLM and the public are fully informed of the environmental consequences of BLM’s actions.