Thursday, June 28, 2018

Shale Law in the Spotlight – Overview of Legal Developments Relating to Shale Gas Development in the Greater Chaco Area of New Mexico

Written by Chloe Marie – Research Fellow

The Greater Chaco Area is located in northwestern New Mexico and is home to the Chaco Culture National Historical Park and modern Navajo tribe living in the surrounding areas. In recent years, oil and gas development has increased significantly in the area with the use of hydraulic fracturing to extract shale gas resources in the San Juan Basin. This increased development has concerned some environmental groups who claim that it compromises major cultural sites and the environment.

This article will provide an overview of a pending lawsuit that began more than three years ago challenging the U.S. Bureau of Land Management (BLM)’s approval of shale wells in the Mancos Shale formation, San Juan Basin. 

Dine Citizens Against Ruining our Environment et al. v. Jewell et al. (U.S. District Court for the District of New Mexico, docket no. 1:15-cv-00209)

On March 11, 2015, Diné Citizens Against Ruining Our Environment, along with other environmental groups, filed a petition for review of agency action challenging 130 approved applications for drilling permits in the Mancos Shale formation of the San Juan Basin, located in the Greater Chaco Area of New Mexico.

Environmental groups asserted that BLM’s “egregious pattern and practice of approving individual drilling permits into the Mancos Shale through piecemeal, boilerplate environmental assessments;” violated the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). Plaintiffs sought declaratory and injunctive relief alleging that BLM failed to identify and analyze the impacts of horizontal drilling and hydraulic fracturing in the Mancos Shale, even though BLM later acknowledged that such impacts had been ignored during the environmental analysis process. In addition, Plaintiffs claimed that horizontal drilling and hydraulic fracturing practices would significantly damage ancient structures that are located in the Chaco Culture National Historical Park, which is considered to be a United Nations World Heritage Site, as well as the area’s cultural and natural heritage.

Just two months later, Plaintiffs asked the U.S. District Court to preliminarily enjoin BLM from issuing any more permits to drill in the Mancos Shale formation or to otherwise pursue current drilling and associated operations, pending resolution of the case. On August 14, 2015, the U.S. District Court denied Plaintiffs’ motion for preliminary injunction stating that the “Plaintiffs have put forth enough evidence to cast some doubt on the thoroughness of the BLM’s decisionmaking, but they have not made the necessary showing that the BLM failed to take a hard look at the environmental impacts of its actions, or that its decisionmaking was arbitrary and capricious.”

Following the rejection of their request for a preliminary injunction, Plaintiffs filed a motion for summary judgment and submitted their Opening Brief on the Merits on April 28, 2017, requesting the U.S. District Court to declare that BLM’s approval of drilling permits in the Mancos Shale formation violated NEPA, the NHPA and their implementing regulations; to vacate and remand BLM’s environmental assessments; and to suspend and enjoin BLM from issuing any more drilling permits pending BLM’s full compliance with NEPA and the NHPA.

In the Opening Brief, Plaintiffs stated that BLM’s 2003 Resource Management Plan/Environmental Impact Statement (RMP/EIS) for the San Juan Basin did not anticipate development of the Mancos Shale using horizontal drilling and hydraulic fracturing and thus did not adequately foresee the environmental consequences of such projects. While acknowledging that BLM later amended the 2003 RMP/EIS, Plaintiffs contended that BLM did not provide relevant environmental analysis regarding prior approval of drilling permits in the Mancos Shale formation based on the 2003 RMP/EIS.

Further, Plaintiffs pled that BLM’s understanding that it was necessary to complete an EIS analyzing the additional impacts of the Mancos Shale development prevented it from issuing any more individual drilling permit approvals. Plaintiffs also claimed that BLM did not comply with NEPA’s public notice and participation requirements when approving “at least 122 [permit applications] authorizing 362 Mancos Shale wells.”

As a final argument, Plaintiffs alleged that BLM, in approving prior permit applications to drill, failed to determine the adverse effects such development would have on the Greater Chaco Area, or more precisely on the Chaco Culture National Historical Park and its numerous satellite tribe villages. BLM, thus, violated Section 106 of the NHPA according to Plaintiffs.

On March 31, 2018, the U.S. District Court granted in part and denied in part Plaintiffs’ requests submitted in their Opening Merits Brief. Less than one month later, however, the U.S. District Court reconsidered its prior decision and dismissed all of Plaintiffs’ claims in an Opinion and Order dated April 23, 2018.

In this April 23, 2018, opinion, the court declared that BLM did not violate NEPA by failing to address the environmental impacts of hydraulic fracturing and horizontal drilling and that it properly complied with NEPA’s public notice and participation requirements. Also, the court concluded that BLM did not violate the NHPA because it adequately considered the adverse effects of the Mancos Shale wells on the Chaco Culture National Historical Park and its satellites.

On June 15, 2018, Plaintiffs appealed to the U.S. Court of Appeals for the Tenth Circuit (docket no. 18-2089) seeking to overturn the U.S. District Court’s final judgment to dismiss all of their claims. 

Stay tuned for further legal developments!


 
This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.

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