Dine Citizens Against Ruining our Env't v. Haaland
| Decision Date | 01 February 2023 |
| Docket Number | 21-2116 |
| Parties | DINE CITIZENS AGAINST RUINING OUR ENVIRONMENT; SAN JUAN CITIZENS ALLIANCE; SIERRA CLUB; WILDEARTH GUARDIANS, Plaintiffs - Appellants, v. DEBRA HAALAND, in her official capacity as 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; TIM SPISAK, in his official capacity as Acting New Mexico State Director of the United States Bureau of Land Management; RICK FIELDS, in his official capacity as Field Manager of the United States Bureau of Land Management Farmington Field Office, Defendants - Appellees, and DJR ENERGY HOLDINGS, LLC; SIMCOE, LLC; AMERICAN PETROLEUM INSTITUTE; ALICE BENALLY; LILLY COMANCHE; VIRGINIA HARRISON; SAMUEL HARRISON; DELORA HESUSE; VERNA MARTINEZ; LOIS PHOENIX; MABEL C. SENGER; ENDURING RESOURCES IV, LLC, Intervenor Defendants - Appellees. INSTITUTE FOR POLICY INTEGRITY AT NEW YORK UNIVERSITY SCHOOL OF LAW, Amicus Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:19-CV-00703-WJ-JFR) Kyle J. Tisdel, Western Environmental Law Center, Taos, New Mexico (Allyson A. Beasley, Western Environmental Law Center, Taos New Mexico; Daniel L. Timmons and Samantha Ruscavage-Barz WildEarth Guardians, Santa Fe, New Mexico, with him on the briefs), for Plaintiffs - Appellants.
Bridget Kennedy McNeil, Environment and Natural Resources Division, U.S. Department of Justice (Michael C. Williams, Of Counsel, Attorney-Adviser, Office of the Solicitor, U.S. Department of the Interior; Todd Kim, Assistant Attorney General, and Clare Boronow, Environment and Natural Resources Division, U.S. Department of Justice, with her on the briefs), Denver, Colorado, for Defendants - Appellees.
Steven Rosenbaum, Covington &Burling LLP (Bradley K. Ervin with him on the brief), Washington, D.C., for Intervenor Defendant - Appellee American Petroleum Institute.
Hadassah M. Reimer, Holland &Hart LLP, Jackson, Wyoming; John F. Shepherd and Tina R. Van Bockern, Holland &Hart LLP, Denver, Colorado; and Robert J. Sutphin, Holland &Hart LLP, Santa Fe, New Mexico, filed a brief for Intervenor Defendants -Appellees DJR Energy Holdings, LLC and SIMCOE LLC.
Jennifer H. Weddle, Troy A. Eid, and Harriet M. Retford, Greenberg Traurig LLP, Denver, Colorado, filed a brief for Intervenor Defendants - Appellees Alice Benally, Lilly Comanche, Virginia Harrison, Samuel Harrison, Dolora Hesuse, Verna Martinez, Lois Phoenix, and Mabel C. Senger.
Jens Jensen, Keith D. Tooley, and Rebecca W. Watson, Welborn Sullivan Meck &Tooley, P.C., Denver, Colorado, filed a brief for Intervenor Defendant - Appellee Enduring Resources IV, LLC.
Max Sarinsky, Institute for Policy Integrity, New York, New York, filed an amicus brief for the Institute for Policy Integrity at New York University School of Law.
Before McHUGH, EBEL, and MURPHY, Circuit Judges.
Dine Citizens Against Ruining Our Environment, San Juan Citizens Alliance, Sierra Club, and WildEarth Guardians (together, the "Citizen Groups") challenge the Bureau of Land Management's ("BLM")[1] environmental assessments ("EAs") and environmental assessment addendum ("EA Addendum") analyzing the environmental impact of 370 applications for permits to drill ("APDs") for oil and gas in the Mancos Shale and Gallup Sandstone formations in the San Juan Basin of New Mexico. Importantly, these challenges come after a separate but related case in which this court remanded to the district court with instructions to vacate five EAs analyzing the impacts of APDs in the area because BLM had failed to consider the cumulative environmental impacts as required by the National Environmental Policy Act ("NEPA"). After that decision, BLM prepared an EA Addendum to remedy the defects in those five EAs, as well as potential defects in eighty-one other EAs that also supported approvals of APDs in the area.
Citizen Groups now argue these eighty-one EAs and the EA Addendum violate NEPA because BLM (1) improperly predetermined the outcome of the EA Addendum and (2) failed to take a hard look at the environmental impacts of the APD approvals related to greenhouse gas ("GHG") emissions, water resources, and air quality. BLM disagrees with Citizen Groups' arguments and contends the challenges to some of the APDs were not justiciable because the APDs had not yet been approved. The district court affirmed the agency action, determining (1) Citizen Groups' claims based on APD's that had not been approved were not ripe for judicial review, (2) BLM did not unlawfully predetermine the outcome of the EA Addendum, and (3) BLM took a hard look at the environmental impacts of the APD approvals.
We agree with BLM and the district court that the unapproved APDs are not ripe and accordingly, limit our review to the APDs that have been approved. Turning to Citizen Groups' two primary arguments on the merits, we hold that (1) BLM did not improperly predetermine the outcome of the EA Addendum, but, even considering that addendum, (2) BLM's analysis was arbitrary and capricious because it failed to take a hard look at the environmental impacts from GHG emissions and hazardous air pollutant emissions. However, we conclude that BLM's analysis of the cumulative impacts to water resources was sufficient under NEPA.
We reverse and remand so that the district court may consider the appropriate remedy for the NEPA violations we identify. To assist with that reconsideration, we adopt the test set out by the D.C. Circuit in Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm'n, 988 F.2d 146, 153 (D.C. Cir. 1993). In the event the district court concludes vacatur is not appropriate under that test, it should determine whether injunctive relief is warranted. Pending the district court's decision on remand, which should be rendered expeditiously, we enjoin the approval of any additional APDs based on the existing EAs and EA Addendum.
A. Factual History
We begin by reviewing the procedural requirements of NEPA, 42 U.S.C. §§ 4321 et seq, and for managing oil and gas development in accordance with the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. §§ 1701 et seq. We then provide the factual and procedural background of this appeal before turning to the legal analysis.
NEPA is a federal environmental law that requires agencies to consider the environmental impact of their actions as part of the decisionmaking process and to inform the public about these impacts. Citizens' Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1021 (10th Cir. 2002). NEPA does not command agencies to reach any particular outcome, and it does not direct agencies to give special weight to environmental concerns. Id. at 1022. "[I]t requires only that the agency take a 'hard look' at the environmental consequences before taking a major action." Id. (quotation marks omitted). To that end, NEPA directs agencies to prepare an Environmental Impact Statement ("EIS") for "proposals for . . . major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C); see also 40 C.F.R. §§ 1502.1-1502.24 (1978)[2] (relating to the EIS requirement).
If an agency is unsure whether an action will significantly affect the environment, the agency may prepare an EA to determine whether an EIS is necessary. See 40 C.F.R. § 1501.5. If an agency completes an EA and determines that a proposed project will not significantly impact the human environment, the agency issues a Finding of No Significant Impact ("FONSI"), and the action may proceed without an EIS. Id.; see also Citizens' Comm. to Save Our Canyons, 297 F.3d at 1022-23.
BLM manages oil and gas development on federal land pursuant to FLPMA and in compliance with NEPA. BLM does so through a three-step process. First, BLM prepares a land use plan known as a Resource Management Plan ("RMP") for oil and gas leasing in an area. See 43 C.F.R. § 1601.0-5(n) (defining "resource management plan"). After an RMP is approved, future agency actions must conform to the RMP. Id. § 1610.5-3. Second, BLM identifies the lands it will lease for oil and gas development and proceeds to sell and execute leases for those lands. Id. § 3120.1 et seq.
Third, the lessee submits an APD for oil or gas. Id. § 3162.3-1(c). BLM must approve the APD before the lessee may begin drilling. Id. Prior to approving an APD, BLM will typically conduct a site-specific EA to determine whether the APD approval will significantly impact the environment. See, e.g., New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 716-17 (10th Cir. 2009) ().
There are approximately 23,000 active oil and gas wells in the San Juan Basin of northern New Mexico. Approximately twenty years ago, BLM issued an RMP/EIS that considered the Mancos Shale and Gallup Sandstone zones in the San Juan Basin to be "a fully developed oil and gas play." 79 Fed.Reg 10548, 10548 (Feb. 25, 2014). Since then, improvements to technologies known as horizontal drilling and hydraulic fracturing have made it economical to conduct further drilling for oil and gas in the area. Id. In 2014, BLM published a Notice of Intent to Prepare a Resource Management Plan Amendment and an Associated Environmental Impact Statement that would account for the newly anticipated oil and gas development in the area. Id. Before it finalized the new RMP/EIS,[3] BLM began approving APDs in the Mancos Shale and...
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