(May 8, 2019)—A mixed ruling with good news for protecting the Greater Chaco Landscape came out of the 10th Circuit Court of Appeals in Denver yesterday. The court was ruling on an appeal from district court on a lawsuit filed by environmentalists in New Mexico.
The ruling from the 10th Circuit Court suspending permits to drill and further develop oil-gas resources in several areas across Greater Chaco is very good news and may allow us the time to get additional protections in place.
“The lawsuit alleged that the Bureau of Land Management violated the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) in granting more than 300 applications for permits to drill horizontal, multi-stage hydraulically fracked wells in the Mancos Shale area of the San Juan Basin in northeastern New Mexico. Appellants sued the Secretary of the Department of the Interior, the Bureau of Land Management, and the Secretary of the BLM, alleging that the BLM authorized the drilling without fully considering its indirect and cumulative impacts on the environment or on historic properties.” In 2018, the district court “concluded that the BLM had not violated either NHPA or NEPA and dismissed Appellants’ claims with prejudice” (from page 2 of the ruling).
The 10th Circuit took up the case on appeal and issued a mixed ruling, affirming, in part, the district court’s finding and reversing other findings. In summary, the 10th Circuit agreed with the district court that BLM did not violate the National Historic Preservation Act. However, the court reversed the lower court’s finding on the National Environmental Policy Act, finding violations of NEPA. The court ordered that the permits to drill for wells in 5 different areas be suspended and that BLM must conduct a proper NEPA analysis.
Regarding the National Historic Preservation Act or NHPA, “the appellants contend the BLM violated NHPA in three ways. First, they assert that the BLM arbitrarily defined an area of potential effects (APE) for each APD in a way that excluded cultural sites that might be indirectly affected by Mancos Shale development. This argument is premised on Appellants’ assertion that the 2014 Protocol required the BLM to set a separate APE for indirect effects, which the BLM did not do. Second, Appellants argue that the BLM did not consider the cumulative effects of Mancos Shale development on relevant cultural and historic properties. Finally, Appellants contend that the BLM failed to consult with the State Historic Preservation Office (SHPO) as required by the 2014 Protocol. Each of these arguments fail” (p. 23). The court said that BLM, by virtue of a negotiate Protocol with the NM State Historic Preservation Officer (SHPO), was not in violation of NHPA and did consider cumulative effects.
“Appellants fail to carry their burden of establishing that the BLM violated NHPA. The BLM’s decision is entitled to a presumption of regularity, and it finds support in the record. Accordingly, we affirm the district court’s dismissal of Appellants’ NHPA claim” (p. 32).
Regarding the National Environmental Policy Act or NEPA, the appellants argued that “the environmental impacts of the horizontal Mancos Shale wells are both (1) different in kind from and (2) greater in magnitude than those considered in the 2003 EIS. Because of this, the 2003 EIS did not fully analyze the environmental impacts associated with Horizontal Mancos Shale wells, so the BLM was not authorized to tier the EAs to the 2003 EIS, and the FONSIs the BLM issued were arbitrary and capricious. We conclude that, as to five EAs, Appellants have demonstrated that the BLM needed to—but did not—consider the cumulative impacts of water Resources associated with the 3,960 reasonably foreseeable horizontal Mancos Shale wells. The BLM’s issuance of FONSIs and approval of APDs associated with these EAs was therefore arbitrary and capricious and violated NEPA” (p. 33).
“Appellants also argue that the BLM has never fully analyzed the cumulative environmental impacts of drilling 3,960 horizontal wells in the Mancos Shale because those impacts exceed the environmental impacts evaluated in the 2003 EIS in two specific ways: air pollution and water use. As to air pollution, we conclude that Appellants have not provided us with a record from which we can assess the BLM’s NEPA analysis. As to water use, we conclude that Appellants have shown that the BLM never considered the cumulative impact of the water use associated with the 3,960 reasonably foreseeable horizontal Mancos Shale wells for five specific EAs. We therefore reverse the district court’s dismissal of Appellants’ NEPA claims as to EAs 2014-0272, 2015-0036, 2015-0066, 2016-0029, and 2016-0200/2016-0076.14” (pp. 36–37).
“For the foregoing reasons, we affirm in part and reverse in part the judgment of the district court. We remand to the district court with instructions to vacate the FONSIs and APDs associated with EAs 2014-0272, 2015-0036, 2015-0066, 2016-0029, and 2016-0200/2016-0076, and to remand those EAs to the BLM to conduct a proper NEPA analysis” (p. 37).