Diné Citizens Against Ruining Our Environment v. Bernhardt

On April 23, 2018, the federal district court for the District of New Mexico dismissed all claims in a lawsuit challenging the U.S. Bureau of Land Management’s (BLM’s) approval of more than 300 applications for permit to drill (APDs) wells in the Mancos Shale in the San Juan Basin. The court found that that BLM had not violated either the National Environmental Policy Act (NEPA) or the National Historic Preservation Act (NHPA). (The NHPA holding reversed the court’s initial conclusion in a March 31 order that BLM had violated NHPA for some wells for which the areas of potential effect contained historic sites.) With respect to NEPA, the court found that BLM had “properly tiered” its environmental assessments (EAs) for the APDs to a resource management plan and environmental impact statement from 2003 and had determined that new developments since 2003 in horizontal drilling and fracking technology would not have significant environmental effects. The court noted, for instance, that an EA had indicated that carbon dioxide emissions from a horizontal well would represent only a 0.0008% increase in New Mexico carbon dioxide emissions.

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The Tenth Circuit Court of Appeals ruled that the U.S. Bureau of Land Management (BLM) had violated the National Environmental Policy Act (NEPA) by failing to consider cumulative water impacts associated with 3,960 reasonably foreseeable horizontal wells in the Mancos Shale in the San Juan Basin in New Mexico. The Tenth Circuit directed that the environmental assessments for those wells be remanded for BLM to conduct proper NEPA analysis. The Tenth Circuit’s decision did not address issues raised in the district court concerning greenhouse gas emissions. In addition, although the Tenth Circuit concluded that BLM was required to consider the cumulative impacts, including air pollution impacts, for all reasonably foreseeable wells, the court concluded that the appellants had not provided a record from which the court could assess BLM’s air analysis. The Tenth Circuit also did not reverse the district court’s conclusions that BLM had not violated the National Historic Preservation Act.