The 10th Circuit Court of Appeals served up a victory to environmentalists fighting global climate change when it ruled Wednesday that the Bureau of Land Management failed to comply with the National Environmental Protection Act by approving 199 drilling applications in the Greater Chaco region of New Mexico.
The area, located between Farmington and Albuquerque in northwestern New Mexico, holds vast cultural significance for many Indigenous people for its rich cultural history and archaeological sites.
Chaco Culture National Historical Park is the epicenter of the struggle for environmental rights in the region.
Diné Citizens Against Ruining our Environment, San Juan Citizens Alliance, Sierra Club and Wildearth Guardians sued the federal government, naming Secretary of the Interior Deb Haaland and the BLM among the defendants alongside an assortment of oil and gas producers.
The ruling remanded the decision of whether to vacate the approved two-year permits to the District Court of New Mexico and barred the BLM from approving any more permits until the lower court “can fashion a remedy.”
Arguably the most noteworthy element of the ruling was that the BLM could, and indeed should have compared the volume of greenhouse gasses emitted by permitted wells to the levels budgeted by the Intergovernmental Panel on Climate Change. The IPCC has set a carbon budget to meet benchmark goals in the fight against climate change.
Under NEPA, the BLM is obligated to assess the direct and indirect impacts of a permit, as well as the cumulative impacts. This means the greenhouse gas emitted by a well must be contextualized by the other drilling occurring.
Nearly 25% of the nation’s greenhouse gas emissions come from fuels extracted on public lands, according to a 2018 report from the U.S. Geologic Survey.
On appeal, the BLM had claimed that “incremental contribution to global (greenhouse gasses) from a proposed land management action cannot be accurately translated into effects on climate change globally or in the area of any site-specific action.”
The court disagreed.
While the BLM is not required to use any particular methodology to consider climate impacts, the agency may not ignore those impacts.
“(The BLM) is not free to omit the analysis of environmental effects entirely when an accepted methodology exists to quantify the impact of GHG emissions from the approved (Applications for Permits to Drill),” the court ruled.
Although the wells would yield fossil fuels that contribute to climate change, plaintiffs were also concerned about the local health impacts they might have. They found victory there too, as the court ruled that the BLM acted with disregard to the environmental and health impacts of air emissions from the wells.
“To actually have the court rule that it was arbitrary and capricious and they didn't do anything with regard to public health – that’s a very important piece that has to be highlighted,” said Mario Atencio, the Greater Chaco energy organizer with Diné Citizens Against Ruining our Environment. “That's gigantic.”
Atencio said the court’s ruling brought environmental justice to the region and made a statement that local health impacts could not be ignored going forward.
According to the ruling, the 199 wells in the Mancos Shale and Gallup Sandstone zones were approved as early as 2015, before a new resource management plan and associated environmental impact assessment had been completed. The BLM began that process in 2014 to incorporate anticipated oil and gas development and finished a draft of that plan and assessment in 2020.
The court did not see this preapproval as an unlawful predetermination, given the BLM’s willingness to revoke permits if the wells were found to violate the final environmental analysis.
However, plaintiffs are still considering the ruling a significant victory.
“This is essential for protecting Indigenous communities and environmental justice communities in the Greater Chaco landscape,” said SJCA Energy and Climate Program Associate Emelie Frojen, in an interview with The Durango Herald.
Kyle Tisdel, the plaintiffs attorney from the Western Environmental Law Center, called the ruling a “really significant precedent.”
“The 10th Circuit has now made it the law of the land that the agency needs to consider the cumulative impacts of its oil and gas decisions,” Tisdel told the Herald. “The other component of that is to mandate the use of applying tools and methodologies to understand the significance of those emissions, in this instance (by) requiring the use of a global carbon budget to do that.”
Tisdel said he was unsure whether the defendants would try to appeal the ruling. He suspected it was unlikely that the 10th Circuit would agree to reconsider the decision, but said he was unsure whether the U.S. Supreme Court would take the case in the event of a request to appeal.
A spokesman for the U.S. Department of Justice said he could not comment on ongoing litigation.
“It's a win for our climate and it's a win for public health and the communities who live in and around this development,” Tisdel said.
rschafir@durangoherald.com
