Diné Citizens Against Ruining Our Env't v. Bernhardt
| Decision Date | 03 August 2021 |
| Docket Number | No. 1:19-CV-00703-WJ-JFR,1:19-CV-00703-WJ-JFR |
| Parties | DINÉ CITIZENS AGAINST RUINING OUR ENVIRONMENT, et al., Plaintiff, v. DAVID LONGLY BERNHARDT, in his official capacity as Secretary of the United States Department of the Interior, et al., Federal Defendants. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER is before the Court upon the conclusion of briefing in the above-captioned case, briefing concerning approval by the Bureau of Land Management ("BLM")1 for oil and gas production in the Mancos Shale/Gallup Sandstone formation (the "Mancos Shale") of the San Juan Basin. This Memorandum Opinion and Order incorporates conclusions of law to support its disposition of the Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction, and is entered after extensive consideration of BLM's National Environmental Policy Act ("NEPA") documentation, the Environmental Assessment Addendum (the "EA Addendum") and briefing by the parties, as well as a full merits analysis of the administrative record. For the reasons stated herein, Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction is hereby DENIED and Plaintiffs' claims are hereby DISMISSED with prejudice.
This case originated from a separate, extensively litigated case brought by many of the same Plaintiffs challenging over 300 applications for permits to drill ("APDs") set for development in the Mancos Shale. That previous litigation began in 2015, when Plaintiffs filed their first Petition for Review of Agency Action with this Court challenging BLM's grant of APDs as violative of NEPA and the National Historic Preservation Act ("NHPA"). Named defendants included the Secretary of the United States Department of the Interior, BLM, and the Director of BLM. See Diné Citizens Against Ruining Our Env't v. Jewell, 2015 U.S. Dist. LEXIS 109986, 2015 WL 4997207 (D.N.M. Aug. 14, 2015) (J. Browning) (herein referred to as "Dine I"). Several oil and gas companies which own leases or drilling permits in the Mancos Shale intervened as defendants. Id. In Dine I, the Court denied Plaintiffs' request for preliminary injunction and the denial of injunctive relief was upheld on appeal. See Diné Citizens Against Ruining Our Environment v. Jewell, 839 F.3d 1276 (10th Cir. 2016). Plaintiffs then amended their petition three times to add additional challenged APDs and alleged (1) a NEPA violation for improperly tiering the environmental assessments ("EAs") to the 2003 environmental impact statement ("EIS"); (2) a NEPA violation for failing to prepare an EIS or supplement an existing EIS; and (3) a NHPA violation for failing to complete 16 USCS § 470f Section 106 consultation. See Dine I, at *2-7. Plaintiffs requested vacatur of all the challenged APDs, as well as an injunction against all future horizontal drilling and hydraulic fracturing in the Mancos Shale. Id. In 2018, the Court dismissed Plaintiffs' claims with prejudice, finding that while Plaintiffs had standing, their claims failed on the merits. Diné Citizens Against Ruining Our Environment v. Jewell, 312 F. Supp. 3d 1031, 1054 (D.N.M. 2018) (J. Browning).
On appeal, the Tenth Circuit held that (1) Plaintiffs failed to establish that BLM violated NHPA, (2) Plaintiffs were incorrect in asserting that the challenged APDs were geographically uncovered by the 2003 EIS, and (3) Plaintiffs failed to demonstrate that BLM violated NEPA with regard to the potential impact on air quality. See Diné Citizens Against Ruining Our Env't v. Bernhardt, 923 F.3d 831, 850-852 (10th Cir. 2019) (). Ultimately, the Tenth Circuit concluded that neither Plaintiffs' arguments nor the record supported any of Plaintiffs' claims except one: BLM failed to adequately consider the cumulative impacts on water resources as to five (5) specific EAs. Id. at 852. The Court's dismissal of Plaintiffs' NEPA claims was therefore reversed, and the Court was instructed to vacate the findings of no significant impact ("FONSI") and APDs associated with EAs 2014-0272, 2015-0036, 2015-0066, 2016-0029 and 2016-0200/2016-0076 and to remand these EAs to BLM to conduct a proper NEPA analysis. Id. at 859.
Both parties interpreted the Tenth Circuit's opinion as a victory, with Federal Defendants ("Defendants") concluding that the Tenth Circuit merely required a subsequent analysis on the cumulative impacts on water resources, and Plaintiffs celebrating the opinion as a new opportunity to relitigate issues relating to a number of APDs which far exceeded the scope of the Tenth Circuit's opinion.
Accordingly, three months following the Tenth's Circuits decision in Dine II, Plaintiffs filed the above-captioned case challenging the APDs covered by another 32 EAs in the Mancos Shale. See Doc. 1. Again, Plaintiffs motioned the Court for a temporary restraining order ("TRO") and preliminary injunction enjoining oil and gas development in the Marcos Shale. See Doc. 5. This motion and Plaintiffs' subsequent merits briefs and declarant affidavits together constitute the subject "Motion."
In Defendants' response to the Motion, they explain that BLM was already in the process of reviewing the EAs challenged by Plaintiffs in light of the guidance provided by the Tenth Circuit in Dine II. Doc. 44 at 1. In November of 2019, BLM provided an addendum (the "EA Addendum") to supplement the NEPA analysis for the original EAs, and provided a 30-day public comment period consistent with the requirements of NEPA, during which BLM received only two comments, one of which came from Plaintiffs. Doc. 111 at 16. On motion by both parties, the Court stayed the case pending BLM's finalization of the EA Addendum. Doc. 90; Doc. 91.
In February of 2020, BLM issued a finalized EA Addendum,2 supplementing a total of 81 EAs covering 370 APDs which had been initially approved between 2014 and 2019. Doc. 111 at 17. In preparing the EA Addendum, BLM analyzed recent data, including the revised projection of 3,200 total new wells over a 20-year period as set forth in the 2018 reasonably foreseeable development scenario ("RFDS"). Id. Additionally, BLM reanalyzed water support data, air resources technical data, and the cumulative effects of "greenhouse gas" emissions, though the Tenth Circuit did not explicitly require it to do so. Id. For all of the 370 APDs, BLM concluded that the additional analysis, in conjunction with its earlier analysis, did not caution against reaffirming the APDs, as such research and analysis did not demonstrate that the APDs in question would affect the human environment or result in cumulative impacts not already disclosed. Id. Accordingly, BLM issued FONSIs to this effect for each of the relevant APDs. Id. It was then thatthe Plaintiffs amended their petition, challenging all of the APDs and EAs covered in the EA Addendum, Doc. 95, but base their entire argument against the APDs and EAs on a theory that the EA Addendum should be excluded from the administrative record before the Court.
This litigation is centered around oil and gas drilling in the Mancos Shale of the San Juan Basin, one of the most prolific sources of natural gas in the country. See Dine II, 923 F.3d at 836. In the course of over 60 years, nearly 40,000 oil and gas wells have been drilled in the San Juan Basin, of which around 23,000 remain active. AR-002567; AR-008132; AR-045052. Horizontal drilling,3 though dating back as far as the 1980's in this area, has recently supplanted traditional oil and gas drilling techniques as it allows operators to better access the Mancos Shale.4 See AR-003560; AR-003800; AR-008133. While horizontal wells use more water than traditional drilling techniques, they reduce surface disturbance by allowing one well to access oil and gas resources that would otherwise require several vertical wellbores. AR-045055.
Hydraulic fracturing5 has been employed in the San Juan Basin since the late 1940s. AR-045680. In 2015, operators began to use "slick water stimulation," which uses non-potable waterwith high levels of dissolved solids. Many of the proposed APDs in this litigation are expected to utilize horizontal drilling and multistage hydraulic fracturing. AR-009428-29.
NEPA is a procedural act requiring agencies to "pause before committing resources to a project and consider the likely environmental impacts of the preferred course of action as well as reasonable alternatives." N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 703 (10th Cir. 2008). This process serves to inform agency decisionmakers of the environmental consequences of proposed federal actions, as well as to ensure that information pertaining to such action is available to the public. See 42 U.S.C. § 4321; Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Notably, § 4321 imposes only procedural, rather than substantive, requirements. See Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng'rs, 702 F.3d 1156, 1166 (10th Cir. 2012). Accordingly, a federal agency is not required under NEPA to follow substantive measures in the approval of federal actions—such as taking what environmental scholars believe to be the most environmentally sound course of action—but rather such agency is only required to take a "hard look" at the environmental impacts of federal decisions. Robertson, 490 U.S. at 350.
In accordance with NEPA's procedural requirements, an agency must prepare an EIS for federal actions significantly affecting the quality of the human environment. 42 U.S.C. § 4332(C). Agencies are not, however, required to prepare a full-scale EIS if they initially prepare an EA and, consistent with the findings of such EA, issue a FONSI concluding that...
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