ELR Citation: ELR 20206
No(s). 90-8036 (10th Cir. Jul 23, 1992)

The court upholds the Bureau of Land Management's (BLM's) decision to issue a right-of-way across federal land in Wyoming for a corporation's carbon dioxide pipeline pursuant to the Mineral Leasing Act (MLA), rather than the Federal Land Policy and Management Act (FLPMA). Applying the holding of the U.S. Supreme Court on deference to an agency's statutory interpretation set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 14 ELR 20507, the court holds that the term "natural gas" used in the MLA and FLPMA is ambiguous and that therefore Congress has not spoken directly to the question at issue. The court next holds that the legislative history of the MLA does not establish Congress' intention with requisite clarity. Addressing the plaintiff's argument that Congress used the term "natural gas" in the MLA to mean fuel, the court notes that although fuel was a primary concern behind the MLA that does not settle the question of statutory scope. The court further holds that no reason exists not to accord the agency deference even though the BLM has previously issued a right-of-way pursuant to FLPMA, because that decision was made by a BLM regional office and this case marks the first declaration of national policy by the U.S. Department of the Interior's Solicitor's Office. The court holds that the BLM's resolution of the problem presented by carrying naturally occurring carbon dioxide gives effect to the central purposes of both statutes and is permissible. The court notes that addressing whether the MLA's common carrier requirement will unduly burden the carbon dioxide industry and create perverse incentives to produce artificial carbon dioxide, as the plaintiff argues, is more appropriately left to the agency. Finally, the court notes that because its conclusion that the agency's interpretation of "natural gas" is sustainable, it need not reach the question whether the MLA's "refined product" language provides independent authority for the right-of-way under the MLA, which was the basis for the district court's decision.

Counsel for Plaintiff-Appellant
Marcelle Shoop
Holland & Hart
2020 Carey Ave., Ste. 500, P.O. Box 1347
Cheyenne WY 82003
(307) 632-2160

Counsel for Defendants-Appellees
William B. Lazarus
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before SEYMOUR, HOLLOWAY, and BARRETT, Circuit Judges.