923 F.3d 831
10th Cir.2019Background
- The Bureau of Land Management (BLM) approved hundreds of APDs for horizontal, multi-stage hydraulically fractured wells in the Mancos Shale (San Juan Basin); appellants challenged those approvals under NEPA and NHPA.
- BLM previously issued a 2003 Resource Management Plan (RMP) and EIS that analyzed ~9,942 new wells using conventional (mostly vertical) techniques; a 2014 RFDS later estimated up to 3,960 reasonably foreseeable horizontal Mancos wells.
- Site-specific Environmental Assessments (EAs) were prepared for individual APDs and often tiered to the 2003 EIS; EAs must consider direct, indirect, and cumulative effects and may result in a FONSI or trigger an EIS.
- Plaintiffs (environmental organizations and members) alleged BLM failed to analyze indirect and cumulative impacts on cultural/historic resources (NHPA Section 106) and on environmental resources, especially water and air (NEPA).
- The district court dismissed the claims; this appeal affirms standing and most NHPA claims, but finds NEPA violations for five EAs that failed to consider cumulative water use from the 3,960 reasonably foreseeable horizontal wells and remands with instructions to vacate associated FONSIs and APDs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Plaintiffs’ members show concrete, geographic injuries from increased drilling impacts (noise, light, air,(visitation)) | BLM: plaintiffs must prove standing for each challenged APD and impacts already covered by 2003 EIS negate injury | Court: organizations have associational standing; member affidavits and proximity satisfy injury, causation, redressability |
| NHPA — Indirect APE & SHPO consultation | BLM had to define a separate indirect-effects APE and consult SHPO where APEs were complicated | BLM: 2014 Protocol permits (does not require) separate indirect APE; standard APEs and limited SHPO consultation are appropriate | Court: 2014 Protocol allows default standard APE; Kimbeto Wash record showed adequate indirect-effect consideration; no NHPA violation on reviewed APD |
| NHPA — Cumulative effects on historic properties | BLM should have analyzed cumulative impacts across Greater Chaco Landscape and Chaco Park | BLM: §800.5 applies to properties within the APE; BLM’s chosen APE did not encompass those broader sites | Court: plaintiffs relied on an APE different from BLM’s; because no historic properties were identified within the defined APE for the APD reviewed, cumulative-effect claim fails |
| NEPA — Cumulative impacts (water and air) and tiering to 2003 EIS | EAs improperly tiered to 2003 EIS; horizontal wells have different/more intensive impacts; BLM failed to analyze cumulative water and air impacts of 3,960 reasonably foreseeable horizontal wells | BLM: 2003 EIS covered basin-wide impacts; RFDS projections are speculative; site EAs sufficient or lacked data to quantify cumulative impacts | Court: 2014 RFDS made 3,960 wells reasonably foreseeable; record insufficient for air analysis but five EAs failed to analyze cumulative water use of those 3,960 wells — FONSIs and APDs for those EAs arbitrary and capricious; vacate and remand |
Key Cases Cited
- Diné Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276 (10th Cir. 2016) (prior appeal and factual background about Mancos development and horizontal drilling)
- Wyoming v. Zinke, 871 F.3d 1133 (10th Cir. 2017) (description and impact of horizontal drilling and hydraulic fracturing)
- Baltimore Gas & Electric Co. v. Natural Resources Defense Council, 462 U.S. 87 (1983) (NEPA’s twin aims and need for agencies to consider every significant environmental aspect)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requirements and affidavit evidence at summary judgment)
- WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222 (10th Cir. 2017) (vacatur/remand principles under the APA and relief for arbitrary or capricious agency action)