Dine Citizens Against Ruining Our Env't v. Bernhardt
Decision Date | 07 May 2019 |
Docket Number | No. 18-2089,18-2089 |
Citation | 923 F.3d 831 |
Parties | DINE CITIZENS AGAINST RUINING OUR ENVIRONMENT; San Juan Citizens Alliance; WildEarth Guardians; Natural Resources Defense Council, Plaintiffs-Appellants, v. David BERNHARDT, in His Official Capacity as Acting Secretary of the United States Department of the Interior; United States Bureau of Land Management, an Agency Within the United States Department of the Interior; Neil Kornze, in His Official Capacity as Director of the United States Bureau of Land Management, Defendants-Appellees, and DJR Energy Holdings, LLC; BP America Production Company; American Petroleum Institute; Anschutz Exploration Corporation; Enduring Resources IV, LLC, Intervenor Defendants-Appellees, and ConocoPhillips Company; Burlington Resources Oil & Gas Company LP, Intervenor Defendants. All Pueblo Council of Governors; National Trust for Historic Preservation; Navajo Allottees; Alice Benally; Lilly Comanche; Virginia Harrison ; Samuel Harrison; Dolora Hesuse; Verna Martinez; Loyce Phoenix, Amici Curiae. |
Court | U.S. Court of Appeals — Tenth Circuit |
Samantha Ruscavage-Barz, WildEarth Guardians, Santa Fe, New Mexico (Kyle J. Tisdel, Western Environmental Law Center, Taos, New Mexico, with her on the briefs), appearing for Appellants.
Avi Kupfer, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C. (Michael C. Williams, Of Counsel, Attorney-Advisor, Office of the Solicitor, U.S. Department of the Interior, Clare M. Boronow, and Mark R. Haag, U.S. Department of Justice, Environment & Natural Resources Division, Washington, D.C., on the brief), for the Defendants-Appellees.
Hadassah M. Reimer, Holland & Hart LLP, Jackson, Wyoming (Stephen G. Masciocchi, and John F. Shepherd, Holland & Hart LLP, Denver, Colorado, Bradford Berge, Holland & Hart LLP, Santa Fe, New Mexico, Rebecca W. Watson, Welborn Sullivan Meck & Tooley, P.C., Denver, Colorado, Stephen Rosenbaum, Covington & Burling, LLP, Washington, D.C., and Jon J. Indall, Comeau Maldegen Templeman & Indall LLP, Santa Fe, New Mexico, with her on the brief), appearing for Intervenors-Appellees.
Before BRISCOE, McKAY, and HOLMES, Circuit Judges.
In this case, we are asked to decide whether 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. Appellants1 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. The district court denied Appellants a preliminary injunction, and we affirmed that decision in 2016. After merits briefing, the district court concluded that the BLM had not violated either NHPA or NEPA and dismissed Appellants' claims with prejudice. Appellants now appeal.
We have jurisdiction under 28 U.S.C. § 1291 and affirm in part, reverse in part, and remand with instructions.
We summarized the underlying facts in the prior appeal.
Diné Citizens Against Ruining Our Env't v. Jewell (Diné II ), 839 F.3d 1276, 1279–80 (10th Cir. 2016) (citations omitted).
Although the 2003 EIS analyzed oil and gas drilling in the San Juan Basin generally, operators wanting to drill new wells in the area must seek and receive approval for specific drilling via an application for a permit to drill (APD) submitted to the BLM. When the BLM receives an APD, it prepares an environmental assessment (EA) examining the environmental impacts of the proposed drilling. The EA must include an analysis of the direct, indirect, and cumulative effects of the proposed drilling. See 40 C.F.R. §§ 1508.7, 1508.8. The EA process results in one of three outcomes: (1) a conclusion that the proposed action would result in a significant environmental impact, necessitating an EIS, (2) a conclusion that the proposed action would not result in a significant environmental impact—a "finding of no significant impact" (FONSI), or (3) a conclusion that the proposed action will not go forward. 43 C.F.R. § 46.325. Even if a proposed action will have significant effects, the EA may still result in a FONSI if it is tiered to a broader environmental analysis that fully analyzed those significant effects. Id. § 46.140(c).
Beginning in 2010, the BLM began receiving APDs for drilling in the Mancos Shale. Development interest in the area increased quickly, and between early 2012 and April 2014, seventy new wells were completed in the Mancos Shale area. In 2014, recognizing the potential for additional Mancos Shale development, the BLM had a new RFDS prepared to evaluate the Mancos Shale's potential for oil and gas development. The 2014 RFDS estimates that full development of the Mancos Shale would result in 3,960 new wells.
The 2014 RFDS predicts that new drilling in the Mancos Shale will be done largely, if not entirely, by horizontal drilling and multi-stage hydraulic fracturing. "A horizontally drilled well starts as a vertical or directional well, but then curves and becomes horizontal, or nearly so, allowing the wellbore [i.e., drilled hole] to follow within a rock stratum for significant distances and thus greatly increase the volume of a reservoir opened by the wellbore." Wyoming v. Zinke, 871 F.3d 1133, 1137 (10th Cir. 2017) (alteration in original) (quotations omitted). Hydraulic fracturing is a process designed to "maximize the extraction" of oil and gas resources. JA1912. Fluids, usually water with chemical additives, "are pumped into a geologic formation at high pressure." Id. When the pressure "exceeds the rock strength," it creates or enlarges fractures from which oil and gas can flow more freely. Id. After the fractures are created, a "propping agent (usually sand) is pumped into the fractures to keep them from closing." Id.
Hydraulic fracturing is common in the San Juan Basin and has been used there in some form since the 1950s. Horizontal drilling, however, is relatively new. At the time the 2003 EIS issued, "[h]orizontal drilling [wa]s possible but not [then] applied in the San Juan Basin due to poor cost[-]to[-]benefit ratio." JA746. The environmental impacts considered in the 2003 EIS were therefore based on the impacts associated with vertical drilling, not horizontal drilling. But the 2003 EIS noted that "[i]f horizontal drilling should prove economically and technically feasible in the future, the next advancement in horizontal well technology could be drilling multi-laterals or hydraulic fracturing horizontal wells." Id.
Since the 2003 EIS issued, 3,945 of the 9,942 contemplated...
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