59 F.4th 1016
10th Cir.2023Background
- Plaintiffs (Citizen Groups) challenged BLM site-specific Environmental Assessments (EAs) and an EA Addendum addressing 370 APDs for horizontal drilling/fracking in the Mancos Shale/Gallup Sandstone, San Juan Basin, NM.
- This litigation followed a prior Tenth Circuit decision (Diné I) that vacated five EAs for failing to analyze cumulative water impacts; BLM then prepared an EA Addendum covering those five and 81 other EAs (370 wells) but left previously approved APDs in place while supplementing the record.
- Plaintiffs alleged (1) unlawful predetermination because BLM did not suspend/void approvals while supplementing and (2) failure to take a "hard look" under NEPA at GHG emissions, water-resource impacts, and air/HAP-related health impacts.
- The district court held unapproved APDs not ripe, rejected predetermination claims, and found BLM’s supplemental analysis adequate; plaintiffs appealed.
- The Tenth Circuit limited review to approved APDs (199 ripe), held no unlawful predetermination, but found BLM’s GHG analysis (annual emissions used as lifetime totals; choice of 100-year GWP without adequate accounting for short-term effects; failure to use/meaningfully address carbon-budget or other methods) and BLM’s treatment of cumulative HAP emissions arbitrary and capricious; the court upheld BLM’s water-impact analysis as sufficient.
- The court reversed and remanded for remedy, adopting the Allied-Signal vacatur test and enjoining approval of further APDs based on the deficient EAs/EA Addendum pending district-court consideration of vacatur or injunctive relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Predetermination of EA Addendum | BLM violated NEPA by approving APDs and leaving them in effect while preparing supplemental analysis, thereby predetermining outcomes | BLM voluntarily supplemented in good faith, retained authority to reopen/vacate APDs, and regulations do not require vacatur during supplementation | No unlawful predetermination: supplementing without vacating was not per se predetermination where agency retained discretion to reconsider approvals |
| Direct/indirect GHG quantification | BLM improperly used one year of operational emissions to represent 20-year lifetime emissions; methodology irrational | BLM used annual estimates because individual well lifespans/decline curves are uncertain; lifetime downstream emissions modeled elsewhere | Arbitrary and capricious: using annual operational emissions as the 20-year total was inconsistent with record and unreasonable |
| Methane GWP and short-term impacts | BLM should have used 20-year GWP (captures stronger near-term methane forcing) or explained why 100-year GWP sufficed | BLM relied on IPCC AR4 100-year GWP for consistency with reporting standards and because many climate-model impacts are expressed long-term | Use of 100-year GWP was not arbitrary given explanation and accepted practice; court accepted BLM’s rationale on timeframe but faulted other GHG analysis failures |
| Cumulative GHG-significance methodology | BLM’s percentage comparisons to state/national/global totals are inadequate; BLM should have used available methods (e.g., carbon budget or social cost of carbon) or explained why not | BLM contended that translating incremental GHGs into specific climate effects is infeasible and no single method is required by NEPA | Arbitrary and capricious: BLM could not rely solely on comparative percentages after commenters requested carbon-budget-type analysis and BLM failed to explain why such methods were not used |
| Cumulative water-resource impacts | Plaintiffs: EA Addendum still failed to analyze local groundwater depletion, drought/climate-change impacts, and effects on communities | BLM quantified water use, compared it to regional totals, incorporated a Water Support Document, and identified mitigation/reuse options | Held sufficient: water is a finite local resource and BLM’s quantitative-comparative analysis, plus supporting documents, satisfied NEPA here |
| HAPs and air-quality/health impacts | BLM failed to model cumulative HAP emissions over multi-year construction/completion phases; dismissing HAPs as temporary ignored likely sustained exposure from many wells | BLM analyzed criteria pollutants against NAAQS/NMAAQS/AQI and concluded exceedances unlikely; treated HAPs as short-term, low-risk | Arbitrary and capricious: BLM failed to analyze cumulative HAP emissions and potential long-term exposure/health effects from thousands of sequentially built wells |
Key Cases Cited
- Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm’n, 988 F.2d 146 (D.C. Cir. 1993) (articulates the vacatur/remedy test balancing seriousness of defects against disruptive consequences)
- Diné Citizens Against Ruining Our Environment v. Bernhardt, 923 F.3d 831 (10th Cir. 2019) (prior appeal remanding and vacating certain EAs for inadequate cumulative water analysis)
- Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692 (10th Cir. 2010) (NEPA allows agencies to have preferred alternatives but requires timely, objective, good-faith analysis)
- New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009) (standards for NEPA "hard look" and administrative record review)
- WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222 (10th Cir. 2017) (agency arbitrary where it dismissed climate impacts by assuming sourcing elsewhere; remedy need not always be vacatur)
- San Juan Citizens Alliance v. Stiles, 654 F.3d 1038 (10th Cir. 2011) (identifies five elements of a meaningful cumulative-impact analysis)
- 350 Montana v. Haaland, 50 F.4th 1254 (9th Cir. 2022) (criticizes reliance on percentage-of-global-emissions comparisons and emphasizes need for a science-based contextualization of GHG significance)
- Dept. of Homeland Security v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020) (agency must supply contemporaneous, not post hoc, rationales; remand may allow agency to supply fuller explanation)