DINE CITIZENS AGAINST RUINING OUR ENVIRONMENT; SAN JUAN CITIZENS ALLIANCE; SIERRA CLUB; WILDEARTH GUARDIANS v. DEBRA HAALAND, in hеr 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, 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
No. 21-2116
United States Court of Appeals, Tenth Circuit
February 1, 2023
PUBLISH
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,
INSTITUTE FOR POLICY INTEGRITY AT NEW YORK UNIVERSITY SCHOOL OF LAW,
Amicus Curiae.
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 Enеrgy 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.
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.
McHUGH, Circuit Judge.
Diné 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
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 apрrovals 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
I. BACKGROUND
A. Factual History
We begin by reviewing the procedural requirements of NEPA,
1. NEPA
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
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
2. FLPMA
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
3. Oil and Gas Development in the Mancos Shale and Gallup Sandstone Zones
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
4. Prior Lawsuit
In prior litigation, some of the Citizen Groups challenged the site-specific EAs for hundreds of APDs approved in the Mancos Shale and Gallup Sandstone zones from 2012 through 2016. See Diné Citizens Against Ruining Our Environment v. Bernhardt (“Dine I“), 923 F.3d 831 (10th Cir. 2019). The district court in that matter affirmed BLM‘s approval of the APDs. Id. at 836. On appeal, this court affirmed in part and reversed in part. Id. at 859. We affirmed most of the APDs because those Citizen Groups had not prоvided the complete EAs necessary to review BLM‘s actions. Id. at 845 (limiting our NEPA review to only the six complete EAs in the record). However, there was sufficient evidence in the record to review the APDs associated with six of the EAs, and this court held BLM failed to take a hard look at the cumulative impacts to water resources from the reasonably foreseeable wells in five of those six EAs. Id. at 850–51, 856–59. Thus, we remanded to the district court with instructions to vacate the FONSIs and the associated APD approvals for the five wells. Id. at 859.
In accordance with this court‘s decision, BLM prepared supplementary NEPA analysis with the necessary cumulative impacts analysis for the five EAs. In the meantime, Citizen Groups filed this lawsuit challenging thirty-two additional EAs on the same grounds raised against the EAs challenged in the prior lawsuit. In response, BLM issued an EA Addendum that included additional environmental analysis for eighty-one4 EAs for 370 additional wells that may have suffered from the same defects as the five EAs we reviewed in Dine I.
BLM allowed the previously approved APDs to remain in place during the addendum process. According to BLM, the purpose of the EA Addendum was to determine whether the additional environmental analysis would support a FONSI or whether BLM would need to reopen its prior decisions on the APDs. In the EA Addendum, BLM considered how the APDs would affect the environment through air quality, GHG emissions, and groundwater. Based on the conclusions in the EA Addendum, BLM issued an individual Environmental Assessment Addendum and FONSI for each of the eighty-one EAs affected. These documents are nearly identical, stating “[t]his FONSI has been prepared to re-affirm the findings of the original EA and original FONSI for the selected Proposed Action alternative.” Joint App. Vol. 9 at 1923–Vol. 13 at 2489.
In the instant matter, Citizen Groups filed a Petition for Review of Agency Action in the United States District Court for the District of New Mexico challenging thirty-two EAs and FONSIs that preceded the approval of 255 APDs. In the petition, Citizen Groups argued the approvals of the APDs violated NEPA, and they requested that the court vacate BLM‘s approvals of the APDs and enjoin BLM from approving any pending or future APD for horizontal drilling or hydraulic fracturing in the area. Citizens Groups filed this petition before BLM issued the EA Addendum and the subsequent individual Environmental Assessment Addenda and FONSIs.
In response to the EA Addendum, individual addenda, and reaffirmed FONSIs, Citizen Groups filed an Amended and Supplemented Petition for Review of Agency Action challenging all eighty-one EAs and the 370 APD approvals analyzed in the EA Addendum. Citizen Groups specifically argued BLM (1) had improperly predetermined the outcome of the EA Addendum because BLM did not vacate or suspend its approval of the APDs while preparing the EA Addendum, and (2) failed to take a hard look at the direct, indirect, and cumulative environmental effects of approving the APDs as they relate to water resources, air quality and human health impacts, and GHG emissions and climate.
While the matter was pending in the district court, several parties joined as intervenors: American Petroleum Institute (“API“); DJR Energy Holdings, LLC (“DJR“); Navajo citizens with allotment rights in the region (“Navajo Allottees“); Enduring Resources IV, LLC (“Enduring“); and SIMCOE LLC (collectively,
After the matter was fully briefed, the district court issued an order affirming the APD approvals and dismissing Citizens Groups’ claims. First, the court concluded Citizen Groups’ claims were not ripe as to several of the APDs because they had not yet been approved by BLM. The court also concluded the claims were moot as to a few other APDs because either the APDs had expired or the wells had been abandoned. Turning to the merits of Citizen Groups’ challenges to the remaining APDs, the court reasoned that (1) BLM had not improperly predetermined the findings of the EA Addendum because it issued the initial EAs in good faith and retained the power to modify or revoke the approval of the APDs, (2) it was
Citizens Groups timely appeal the district court‘s order and final judgment.
II. DISCUSSION
Citizen Groups challenge the approval or pending approval of 370 APDs in the Mancos Shale area, arguing (1) the EA Addendum was unlawfully predetermined as applied to all APDs that were approved prior to its completion, and (2) BLM failed to take a hard look at the environmental impacts of all 370 APDs. We start by determining which APD approvals are properly before us and then turn to the merits of Citizen Groups’ arguments.
A. Jurisdiction
We begin, as we must, by assessing our jurisdiction over Citizen Groups’ claims. BLM argues that Citizen Groups’ challenges to 161 of the APDs are not ripe because these APDs have not yet been approved.5 We agree.
Before reviewing the merits with respect to the approved APDs, we set forth the general standard of review governing NEPA claims. Then, we consider the merits of the three main disputes raised in this appeal: (1) whether BLM unlawfully predetermined the outcome of the EA Addendum, (2) whether BLM failed to take a hard look at the environmental impact of the APDs in the initial EAs and the EA Addendum, and, if either of these violations occurred, (3) whether we should vacate the agency action or enjoin the development of the APDs.
NEPA does not create a cause of action, so NEPA challenges are brought under the APA. We review a district court‘s resolution of APA claims de novo, applying the same deferential standard toward the agency‘s decisions that the district court applies. Biodiversity Conserv. All. v. Jiron, 762 F.3d 1036, 1059 (10th Cir. 2014); Utah Env‘t Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006). This means we will not overturn an agency‘s decision “unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.‘” Utah Env‘t Cong., 443 F.3d at 739 (quoting
if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence bеfore the agency, or if the agency action is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.
Wyoming v. U.S. Dep‘t of Agric., 661 F.3d 1209, 1227 (10th Cir. 2011) (internal quotation marks omitted). “[W]e also accord agency action a presumption of validity.” Id. (internal quotation marks omitted). The challenger “bears the burden of persuasion” to show that the agency action is arbitrary and capricious. N.M. Health Connections v. HHS, 946 F.3d 1138, 1162 (10th Cir. 2019). “Our deference to the agency is especially strong where the challenged decisions involve technical or scientific matters within the agency‘s area of expertise.” Dine I, 923 F.3d at 839 (internal quotation marks omitted).
Citizen Groups contend BLM violated NEPA because BLM approved the APDs prior to preparing the EA Addendum and did not vacate, suspend, or withdraw those approvals while gathering additional information about the environmental impact of the actions. In Citizen Groups’ opinion, BLM unlawfully predetermined the outcome of the EA Addendum. BLM argues its supplemental environmental analysis was conducted in good faith, and the agency was prepared to revoke the APD approvals if the supplementary analysis showed that was necessary. We agree with BLM that in this situation—where BLM voluntarily conducted supplementary environmental analysis—BLM‘s choice not to vacate or suspend the underlying APDs pending that supplemental analysis did not render its decision unlawfully predetermined.
Because NEPA is concerned with agency consideration of environmental impacts as part of the decisionmaking process, NEPA “requires federal agencies to prepare an EIS [or EA] prior to taking major federal action.” Utahns for Better Transp. v. U.S. Dep‘t of Transp., 305 F.3d 1152, 1162 (10th Cir. 2002) (citing
A petitioner challenging an agency action must meet a high standard to show the agency engaged in unlawful predetermination. Id. at 714. Specifically, a petitioner must show “that the agency has irreversibly and irretrievably committed itself to a plan of action that is dependent upon the NEPA environmental analysis producing a certain outcome, before the agency has completed that environmental analysis.” Id. at 714–15. An agency does not engage in unlawful predetermination “simply because the agency‘s planning, or internal or external negotiations, seriously contemplated, or took into account, the possibility that a particular environmental outcome would be the result of its NEPA review of environmental effect.” Id. at 715. But if a petitioner meets this high standard to show unlawful predetermination, “the agency likely has failed to take a hard look at the environmental consequences of its actions.” Id. at 713.
The typical predetermination analysis does not fit well with the facts of this case. Normally, this analysis asks whether an agency irreversibly and irretrievably committed itself to a plan of action prior to completing the required analysis under
Citizen Groups point to our decision in New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 718 (10th Cir. 2009), as support for its position that “issuing an oil and gas lease” “constitutes an irretrievable commitment of resources.” But Citizen Groups have not identified any binding authority addressing the unique situation here—where BLM had completed the NEPA process, approved
BLM argues it conducted the supplemental analysis in good faith with this discretion in mind—using the supplemental analysis to determine whether reopening and vacating the underlying APDs was necessary. Citizen Groups and BLM agree that BLM had the option to reopen and vacate the APDs at issue—their dispute is over when this needed to happen. Two sources—(1) regulations about supplementation under NEPA and (2) case law suggesting vacatur is not always necessary to remedy a NEPA violation—support BLM‘s position that conducting supplementary analysis under NEPA does not require BLM to first reverse or vacate prior commitments.
First, BLM argues that NEPA‘s implementing regulations’ silence on vacating agency actions during periods of supplementary environmental analysis demonstrates that conducting supplementary analysis without vacating the underlying action is not unlawful predetermination. BLM is correct that the regulations guiding the NEPA process do not require an agency to suspend agency action while preparing a
(c) Agencies:
(1) Shall prepare supplements to either draft or final environmental impact statements if:
(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or
(ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.
(2) May also prepare supplements when the agency determines that the purposes of the Act will be furthered by doing so.
Second, BLM notes this court has held an agency action violated NEPA without requiring vacatur of the underlying decision, which also suggests vacatur is not required to avoid unlawful predetermination in the context of supplemental environmental analysis. See WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1240 (10th Cir. 2017). In WildEarth Guardians, we held that BLM acted arbitrarily and capriciously by determining that a decision to issue new leases on coal tracts, compared to a no-action alternative, would have no impact on climate change because “the same amount of coal would be sourced from elsewhere.” Id. at 1228. But despite identifying this NEPA violation, we chose not to vacate the impacted leases, instead remanding for the district court to determine if some narrower form of injunctive relief was appropriate. Id. at 1240. By inviting the district court to consider a remedy other than vacatur of the impacted leases, we implicitly recognized that supplementary NEPA analysis is not unlawfully predetermined simply because the previously approved action is not first vacated.
According to Citizen Groups, BLM violated NEPA in a similar way because its initial EAs supporting the APD approvals were likely deficient, and BLM added more analysis after the fact without first vacating and reconsidering its decisions. Protect Key West is easily distinguishable from this case. There, the Navy conducted almost no environmental analysis and essentially used a bare bones EA as a
BLM did not engage in unlawful predetermination by conducting the supplementary analysis in the EA Addendum without first vacating the underlying APD approvals because BLM did not “irreversibly and irretrievably commit[] itself to a plan of action that [wa]s dependent upon the NEPA environmental analysis producing a certain outcome.” Forest Guardians, 611 F.3d at 715. While working on the EA Addendum, BLM stated the APD “approvals remain[ed] in place” and explained it would “review the [81] EAs and the associated 370 APDs and determine whether to affirm BLM‘s original decision finding no significant impact and approving the APD or whether to reconsider that decision.” Joint App. Vol. 9 at 1853. Although BLM may have had the preferred outcome of not having to reopen the underlying APDs, it conducted the supplementary analysis in good faith to determine whether it could affirm the underlying FONSI and APD approvals. See Forest Guardians, 611 F.3d at 714 (“Predetermination is different in kind from mere subjective impartiality.” (internal quotation marks omitted)). Just as Citizen Groups argue BLM could have vacated the APD approvals prior to working on the EA Addendum, BLM maintained the discretion to reopen its original decision and vacate
3. Hard Look
In addition to their predetermination argument, Citizen Groups argue BLM acted arbitrarily and capriciously by failing to take a hard look at the environmental impacts of the APD approvals. During agencies’ decisionmaking processes, NEPA specifically requires agencies to “take a hard look at environmental consequences” of a proposed action.7 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976)). In doing so, the agencies must consider the direct, indirect, and cumulative environmental impacts of the proposed action.
When “considering whether the agency took a ‘hard look,’ we consider only the agency‘s reasoning at the time of decisionmaking, excluding post-hoc rationalization concocted by counsel in briefs or argument.” Richardson, 565 F.3d at 704 (citation omitted). We may also consider non-NEPA documents that have been incorporated by reference into the NEPA documents. See
In our review, we apply “[a] presumption of validity [] to the agency action[,] and the burden of proof rests with the appellants who challenge such action.” Richardson, 565 F.3d at 704 (quotation marks omitted). Moreover, we do not “decide the propriety of competing methodologies“; we “determine simply whether the challenged method had a rational basis and took into consideration the relevant factors.” Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 782 (10th Cir. 2006) (quotation marks omitted). “Deficiencies in an EIS that are mere ‘flyspecks’ and do not defeat NEPA‘s goals of informed decisionmaking and informed public comment will not lead to reversal.” Richardson, 565 F.3d at 704.
a. Impacts of GHG emissions from the APDs
“The impact of [GHG] emissions on climate change is precisely the kind of [] impacts analysis that NEPA requires agencies to conduct.” Ctr. for Biological Diversity v. Nat‘l Highway Traffic Safety Admin., 538 F.3d 1172, 1217 (9th Cir. 2008). Accordingly, BLM considered the impact of GHG emissions in both the initial EAs and the EA Addendum. Citizen Groups argue that despite this analysis, BLM failed to take a hard look at (1) the direct and indirect effects of the GHG emissions and (2) the cumulative impact of the GHG emissions of the APDs in the initial EAs and the EA Addendum. We address each argument in turn.
i. Direct and indirect emissions
Citizen Groups raise two challenges to BLM‘s methodologies for analyzing the direct and indirect effects of the GHG emissions. First, they argue BLM erred in calculating the amount of direct and indirect emissions. Second, they argue BLM used a low value for the global warming potential of methane. In these ways, Citizen
1) Calculating direct and indirect GHG emissions
First, Citizen Groups argue BLM improperly quantified the total direct emissions of the gas and oil wells because it included only the annual GHG emissions from operating the wells, even though BLM assumed the wells would each have a twenty-year life span. After Citizen Groups commented about this alleged deficiency, BLM replied that it had “included a direct and cumulative impact analysis which includes lifetime emissions from both construction and operation for the APDs at hand” in the EA Addendum. Joint App. Vol. 9 at 1909. But BLM is mistaken. BLM calculated only the annual GHG emissions from the wells and used this same number to represent the total emissions for the twenty-year life span of the wells in the EA Addendum. See infra. In its response brief on appeal, BLM changes course and points to its 2018 Air Resources Technical Report (“2018 ARTR“) that was incorporated by reference into the EA Addendum. In the 2018 ARTR, BLM explained that it used annual estimates of GHG emissions for operating the wells because “[i]t is not possible to estimate the lifespan of an individual well” or “to incorporate the decline curve into results” from declining production over time. Joint App. Vol. 4 at 946; see also Joint App. Vol. 9 at 1866 (incorporating by reference the 2018 ARTR into the EA Addendum).
In reply, Citizen Groups note that despite the alleged infeasibility of estimating the lifespan of an oil or gas well, BLM nevertheless assumed a twenty-
Table 14. Estimated Combined Downstream/End-Use GHG Emissions from the 370 subject wells over the predicted 20-year well life.
| Product Category | Emission Factors | Estimated Production | Estimated GHG Emissions |
|---|---|---|---|
| Crude Oil (BBL) | 0.43 MT CO2/bbl | 4,778,169 bbls | 2,054,613 MT CO2e |
| Natural Gas (mcf) | 0.055 MT CO2/Mcf | 526,077,824 Mcf | 28,934,280 MT CO2e |
| Construction and Operations of 370 wells. (See Table 12) | N/A | N/A | 498,182.8 MT CO2e |
| Total (for all 370 wells) | 31,487,075.8 MT CO2e |
Source: EPA (2018)
Joint App. Vol. 9 at 1877. This table estimates the total emissions from the crude oil and natural gas production of the 370 wells over twenty years based on the “decline curves representative of wells within the San Juan Basin.” Id. at 1876–77. But the value for the estimated emissions for constructing and operating the wells in Table 14—498,182.8 MT CO2e—is the same value given for the estimated annual emissions for constructing and operating the wells in Table 12. See below.
| Annual GHG Emission | Metric Tons (CO2e) |
|---|---|
| **Highest Potential GHG emissions from well construction (370 wells, if all wells were constructed in year 1 only, all gas wells). | 377,988.3 |
| **Highest Potential GHG emissions from operations phase (370 wells, if all wells operations impacts happened in yеar 1 only, all oil wells) | 120,194.5 |
| Total from all 370 wells | 498,182.8 |
Id. at 1874. Table 14 then adds this annual value to the estimated downstream end-use GHG emissions from crude oil and natural gas to show the total estimated lifetime GHG emissions for all 370 wells. Id. at 1877.
While we are deferential to the agency when it comes to the methodology the agency chooses to use, the agency‘s methodology must be rational—and not arbitrary or capricious. See Silverton Snowmobile Club, 433 F.3d at 782. Citizen Groups contend it was unreasonable for BLM to use annual estimates to represent the direct emissions of GHGs. That decision may not be scientifically inaccurate or unreasonable in some contexts, but here, BLM used the estimated annual GHG emissions from the construction and operation of the wells to calculate the total estimated emissions for all 370 wells over twenty years.8 We agree with Citizen
BLM contends it limited the estimate for direct emissions to annual emissions for the operation of the wells because it could not estimate the lifespan or the decline curve of emissions from the wells. Yet, in the EA Addendum, BLM was able to use data from wells in the area to estimate a probable lifespan of twenty years and to estimate the decline curves when it calculated downstream emissions. See Joint App. Vol. 9 at 1876 (stating the production values “were calculated using decline curves representative of wells within the San Juan Basin“). BLM has not explained why these assumptions would be applicable to calculate the estimated downstream emissions but not the direct emissions from operating the wells.
In sum, BLM‘s justificаtion for not calculating the direct GHG emissions over the lifetime of the wells is inconsistent with the record, and BLM unreasonably used one year of direct emissions to represent twenty years’ worth of total emissions. BLM did not have to use one specific methodology to calculate the twenty-year emissions total, but the methodology selected must be reasonable. Here, it was not. Thus, BLM arbitrarily and capriciously calculated the GHG emissions and failed to take a hard look at the direct and indirect impacts of GHG emissions from the APDs.
2) Global warming potential of methane
Second, Citizen Groups challenge BLM‘s method for calculating the warming potential for methane and BLM‘s failure to consider the short-term effects of
In the EA Addendum, BLM noted that methane “has a [GWP] that is 21 to 28 times greater than the warming potential” of carbon dioxide. Joint App. Vol. 9 at 1872. This range for the GWP factor comes from an evaluation of the one hundred-year warming potential of methane compared to carbon dioxide. But Citizen Groups note that BLM‘s reports show methane has greater near-term climate impacts and argue BLM should have used a shorter, twenty-year time horizon to calculate the GWP. In the twenty-year warming potential, methane‘s GWP is eighty-four—significantly higher than the twenty-one to twenty-eight GWP value BLM used based on the one hundred-year warming potential. Citizen Groups argue BLM should have considered the twenty-year warming potential values because they are more accurate, and BLM acted arbitrarily and capriciously by using the one hundred-year warming potential because it did not explain its decision to do so. For the first time on appeal, Citizen Groups also argue BLM acted arbitrarily and capriciously by using an outdated GWP range as reported in the Intergovernmental Panel on Climate Change‘s
In response, BLM argues it considered the twenty-year warming potential compared to the one hundred-year warming potential of methane in the 2018 ARTR and the 2019 white paper on GHG emissions. BLM points to the 2019 white paper as providing its rationale for using the one hundred-year timeline and thus the twenty-one to twenty-eight GWP range in the EA Addendum. That 2019 white paper states
BLM uses the 100-year time horizon since most of the climate change impacts derived from climate models are expressed toward the end of the century. Also, in accordance with international GHG reporting standards under the United Nations Framework Convention on Climate Change (UNFCCC) and in order to maintain consistent comparisons over the years, official GHG emission estimates for the United States are reported based on the GWP values given in the Fourth Assessment Report (AR4) of the IPCC (IPCC 2007).
Joint App. Vol. 4 at 950. In response to Citizen Groups’ comment raising its concern with use of the one hundred-year time horizon, BLM explained that it applied the one hundred-year timeline “since most of the climate change impacts derived from climate models are expressed toward the end of the century” and “to maintain consistent comparisons over the years.” Joint App. Vol. 9 at 1910. Addressing
Citizen Groups maintain that BLM‘s justification for using the one hundred-year time horizon for the GWP is not sufficient. They support their argument by citing to a District of Montana case that held “BLM violated NEPA where it failed to justify its use of GWPs based on a 100-year time horizon rather than the 20-year time horizon of the RMPs.” W. Org. of Res. Councils v. BLM, No. CV 16-21-GF-BMM, 2018 WL 1475470, at *18 (D. Mont. Mar. 26, 2018). In that case, BLM chose to use the “100-year time horizon based on an agreement made by the parties to the United Nations Framework Convention on Climate Change.” Id. at *15. That is, BLM used the one hundred-year time horizon because of “a political agreement between nations rather than [] science.” Id. That, according to the District of Montana, was arbitrary and capricious and violated NEPA, which requires “accurate scientific analysis.” See id. (quoting
NEPA‘s implementing regulations require the information in an environmental analysis to “be of high quality” and supported by “[a]ccurate scientific analysis.”
Further, BLM did not discuss the GWP for only the one hundred-year time horizon. Rather, it discussed the different GWPs for methane based on twenty-year time horizons and one hundred-year time horizons in its documents supporting the EA Addendum. BLM then explained that it used the GWP for the one hundred-year time horizon to support consistent reporting standards. Citizen Groups have not argued the one hundred-year time horizon for calculating methane‘s warming potential is an inaccurate scientific analysis. They argue instead that a twenty-year time horizon for calculating warming potential would more accurately represent the short-term effect of the methane emissions on the climate. According to the record, BLM‘s scientific analysis was accurate and reliable based on the IPCC‘s GWP calculations. And because BLM discussed both the one hundred-year and twenty-year time horizons in the supporting documents, it appears BLM did consider the short- and long-term effects of the GHG emissions. Thus, BLM did not act arbitrarily and capriciously by using the one hundred-year time horizons in the EA Addendum.
Citizen Groups and amicus curiae, the Institute for Policy Integrity at New York University School of Law (the “Institute“) also argue BLM failed to take a hard look at the cumulative impact analysis of the GHG emissions from the APD approvals. They argue BLM‘s analysis was inadequate because it discussed only the quantity of emissions in comparison to the state аnd national emissions but did not discuss the severity of impacts of the GHG emissions more locally.
A cumulative impact is “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.”
[a] meaningful cumulative impact analysis must identify five things: (1) the area in which the effects of the proposed project will be felt; (2) the impacts that are expected in that area from the proposed project; (3) other actions—past, present, and proposed, and reasonably foreseeable that have had or are expected to have impacts in the same area; (4) the impacts or expected impacts from these other actions; and (5) the overall impact that can be expected if the individual impacts are allowed to accumulate.
San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1056 (10th Cir. 2011) (quoting TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 864 (D.C. Cir. 2006)).
Citizen Groups contend “BLM‘s comparison of project emissions to total emissions is, in effect, no analysis at all” because it does not say anything about how the emissions will impact the environment. Appellants’ Br. at 33. According to
BLM argues it conducted a thorough analysis of the cumulative impacts of the GHG emissions because it considered the emissions estimated from the project as well as local, national, and global emissions and generally explained the impact of GHGs on the global and regional climate. According to BLM, this general analysis was sufficient to satisfy its requirement because it explained that “global climate models are unable to forecast local or regional effects on resources.” BLM Br. at 33 (quoting Joint App. Vol. 9 at 1871). Indeed, BLM contends there is no method for determining the cumulative impacts of GHG emissions. But we agree with Citizen Groups that BLM could have used at least one method for making that determination.
Courts have disagreed about whether BLM‘s method for analyzing the cumulative impacts of emissions satisfies this standard. See WildEarth Guardians v. Bernhardt, 501 F. Supp. 3d 1192, 1208–09 (D.N.M. 2020) (“[C]ourts both in and out of the Tenth Circuit have offered mixed messaging on using climate change-based data in decisions.“). Some cases have held that the general description of climate change together with the comparison between the estimated emissions of an agency action сompared to the regional, state, and national emissions is sufficient where the science cannot identify the specific impacts that certain GHGs will have on the climate. See id. at 1211; Citizens for a Healthy Cmty. v. BLM, 377 F. Supp. 3d 1223, 1238–41 (D. Colo. 2019); WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 77 (D. Colo. 2019); WildEarth Guardians v. Jewell, 738 F.3d 298, 309 (D.C. Cir. 2013). Other courts, however, recognize the deficiencies in the comparative method BLM implemented here.
Just this year, the Ninth Circuit considered an agency‘s decision to expand a mine, which the agency estimated would emit 240 million tons of GHGs. 350 Montana v. Haaland, 50 F.4th 1254, 1273 (9th Cir. 2022). The agency determined these emissions “would total approximately 0.44 percent of annual (single year) global GHG emissions” and thus concluded the mine expansion‘s GHG contribution would be minor “relative to other global sources [of GHGs].” Id. at 1266. To reach this conclusion, the agency “did not cite any scientific evidence supporting the characterization of the project‘s emissions as ‘minor’ nor did it identify any science-based criteria the agency used in its determination.” Id. It seems the agency relied on the sub-one percent value as compared to other global sources to conclude the effect was minor, despite the fact the mine expansion was expected to emit more
In 350 Montana, the plaintiffs argued the Department of Interior acted arbitrarily and capriciously by “fail[ing] to use the Social Cost of Carbon metric to quantify the environmental harms that may result from the project‘s GHG emissions.” Id. at 1270. Rather than direct the Department of Interior to use a specific methodology, however, the Ninth Circuit concluded “that prescribing a specific metric for the agency to use on remand is not our role.” Id. at 1271. The Ninth Circuit concluded the Department of Interior must use “some methodology that satisfies NEPA and the APA,” which means at minimum contextualizing the significance of the project‘s GHG emissions by providing “additional information concerning the Mine Expansion‘s scale and scope relative to the industry and commodity.” Id. at 1272.
Here, BLM analyzed the past, present, and reasonably foreseeable cumulative GHG emissions expected in the United States and New Mexico. BLM also explained that the GHG emissions from New Mexico were expected to increase for numerous reasons. Then, BLM listed the past GHG emissions in the Mancos San Juan Basin area and the reasonably foreseeable emissions in the area based on the RMP and determined the percentage of those emissions that would come from the 370 wells analyzed in the EA Addendum. In other portions of the EA Addendum, BLM stated that “[t]he incremental contribution to global GHGs from a proposed land management action cannot be accurately translated into effects on climate change globally or in the area of any site-specific action.” Joint App. Vol. 9 at 1871. BLM noted the emissions from well construction and operations, excluding the downstream emissions, would increase the annual national GHG emissions by
As in 350 Montana, it is not clear how BLM concluded the GHG emissions from the 370 oil and gas wells would contribute to climate change only in a de minimis way based on this analysis. To be sure, BLM adequately supported its conclusion that the emissions from these wells would be only a small portion of the emissions from all wells anticipated in the RMP, and would add only a small percentage to the annual GHG emissions in the nation and the state. However, this comparative analysis proves only that there are other, larger sources of GHGs. It does not show that this source, which is anticipated to emit more than 31 million metric tons of carbon dioxide equivalents,10 will not have a signifiсant impact on the environment. Indeed, BLM‘s analysis is an example of the concerns Citizen Groups, the Institute, and the Ninth Circuit identified regarding this comparative analysis.
Of course, “NEPA ‘does not require the impossible.‘” Utah Physicians for a Healthy Env‘t, 528 F. Supp. 3d at 1234 (quoting WildEarth Guardians v. Zinke, 368 F. Supp. 3d at 77). Nor does NEPA require an agency to employ a specific method for determining the effects of an agency action. WildEarth Guardians, 501 F. Supp. 3d at 1200. But NEPA does require agencies to consider whether the proposed agency action will have a significant impact on the environment and to use accurate science to do so.
Here, BLM claimed “[t]he incremental contribution to global GHGs from a proposed land management action cannot be accurately translated into effects on climate change globally or in the area of any site-specific action.” Joint App. Vol. 9 at 1871. Instead, BLM described the general projections of environmental impacts that may be related to climate change. Citizen Groups, however, propose another way BLM could have determined the environmental impact of the emissions—by comparing the emissions to the carbon budget.11
The carbon budget derives from science suggesting the total amount of GHGs that are emitted is the key factor to determine how much global warming occurs. The carbon budget is a finite amount of total GHGs that may be emitted worldwide, without exceeding acceptable levels of global warming. According to the IPCC, the Institute, the quantity of emissions estimated in the EA Addendum would result in a social cost of more than $1.6 billion.
This suggestion was raised only in the amicus curiae brief and was not raised by Citizen Groups on appeal. This court has discretion to consider arguments raised solely in an amicus brief, but it should do so only “in exceptional circumstances.” Tyler v. City of Manhattan, 118 F.3d 1400, 1404 (10th Cir. 1997). For instance, the court may exercise its discretion when “(1) a party attempts to raise the issue by reference to the amicus brief; or (2) the issue ‘involves a jurisdictional question or touches upon an issue of federalism or comity that could be considered sua sponte.’” Id. (quoting Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir. 1993)).
Citizen Groups did not raise the issue of the social cost of carbon directly or by referencing the amicus brief. Moreover, the argument that BLM should have considered the social cost of carbon is not a jurisdictional issue that could be considered sua sponte. And Citizen Groups have not identified any other exceptional circumstance that would justify considering an argument raised solely by amicus curiae. Accordingly, we do not address this argument. However, BLM may consider the social cost of carbon as a potential method for addressing cumulative impacts of GHG emissions on remand.
According to Citizen Groups, BLM could have compared the expected emissions from the APDs to the remaining carbon budget to determine the cumulative impact of the expected emissions. And Citizen Groups argue their comments requesting BLM to apply the carbon budget analysis required BLM to either apply the analysis or explain why doing so would not contribute to informed decisionmaking. Appellants’ Br. at 39 (citing WildEarth Guardians, 502 F. Supp. 3d at 255–56). In response to the comments, BLM explained only that “BLM is not required to use any specific protocols or methodologies . . . to determine the impact of the APDs on climate change.” Joint App. Vol. 9 at 1911–12.
It is indeed true that NEPA does not require BLM to use any particular methodologies. WildEarth Guardians, 501 F. Supp. 3d at 1209. Importantly, however, NEPA does not give BLM the discretion to ignore the impacts to the environment when there are methods for analyzing those impacts. So, while it is correct that BLM need not use any specific methodology, it is not free to omit the analysis of environmental effects entirely when an accepted methodology exists to quantify the impact of GHG emissions from the approved APDs. Simply stating what percentage the emissions will make up of regional, national, and global emissions
In summation, BLM acted arbitrarily and capriciously in its analysis of GHG emissions by failing to take a hard look at the (1) direct and indirect impacts of GHG emissions by using an annual total of emissions to represent emissions for a twenty-year period, and (2) cumulative impacts of GHG emissions by relying solely on percentage comparisons where at least one more precise method was available.
b. Impacts of the approved APDs on water resources
Citizen Groups next argue BLM failed to take a hard look at the cumulative impacts of the APDs to water resources in the area. This is the issue that caused us to vacate and remand the five EAs we considered in Dine I, 923 F.3d at 853–54. There, we concluded BLM arbitrarily and capriciously violated NEPA because it failed to consider the impacts to water from the 3,960 wells predicted in the 2014 reasonably foreseeable development scenario (“RFDS”). Id. at 859. We reversed and remanded with instructions to vacate the five EAs for further consideration under NEPA. Id. In the EA Addendum, BLM considered the cumulative impacts to water resources
Citizen Groups assert that while BLM quantified the cumulative amount of water the wells would use, it did not say anything about the impact the water consumption would have on the environment or specific groundwater sources. Citizen Groups contend BLM should have included the current or projected groundwater conditions and information about how the use of that water would affect nearby groundwater. Citizen Groups specifically note that BLM should have considered the groundwater levels in the context of the ongoing drought in New Mexico аnd the anticipated decrease in water from climate change. Citizen Groups also suggest that BLM should consider how the water use may impact the Navajo Nation where 40% of households currently lack water.
BLM argues it took a hard look with its cumulative impact analysis because it considered how much water was likely to be used, including if all the wells employed the most water-intensive methods. It then compared that water consumption to the total amount of water projected to be used in the region, concluding the water for the APDs would represent a small amount of the total water use in the San Juan Basin (0.12% to 1.3%). The EA Addendum also incorporated the 2019 BLM New Mexico Water Support Document, which analyzed the state of the groundwater wells and their existing supply of water. BLM also noted some mitigating factors, including that the oil and gas wells could use non-potable groundwater, recycled flowback
In response to comments suggesting it should consider the impact to water in the context of the drought, BLM stated it considered the available water resources in the affected area, so the analysis is “already in the ‘drought context’ . . . if indeed the counties are in a state of drought.” Joint App. Vol. 9 at 1914. This is supported by the record, which considered the existing state of the potential groundwater wells. BLM did not consider the impact of climate change on the water supply in the EA Addendum even though it previously recognized that climate modeling suggests climate change will result in “decreases in overall water availability by one quarter to one third” in the local region. Joint App. Vol. 9 at 1872. But in the 2019 Water Support Document, BLM noted that it is in the process of developing a model to simulate water availability based on various scenarios.
BLM took a sufficiently hard look at the APDs’ expected impact on the water resources in the region. While BLM relied primarily on a quantitative-comparative analysis as it did with the GHG analysis, the effect of the analysis is different. With GHGs, unlike groundwater resources, BLM is not limited to a finite amount of emissions. And because of the global nature of climate change, BLM can compare GHG emissions on any large scale that shows the emissions from the APDs are small without determining the effect those emissions will have on the local environment. With water, however, there is a finite amount of water supporting the various water uses in a specific region. BLM calculated that the APD activities would account for
Moreover, Citizen Groups’ implication that the water usage related to the APDs will exacerbate any water insecurity in the region is not supported by the record. BLM listed several mitigating factors affecting water usage, including the fact that the wells can use water that is not suitable for other purposes. Thus, the decision not to consider further the impact on human water availability was not arbitrary or capricious. In sum, we hold that BLM did not arbitrarily or capriciously conclude that the APD-related water use would not signifiсantly impact the environment.
c. Impacts of the APDs to air quality and human health
Citizen Groups next argue BLM violated NEPA because it did not take a hard look at the impact of the APD approvals on air quality and health. Relatedly, Citizen Groups challenge BLM‘s analysis of the environmental impact from hazardous air pollutant emissions. We discuss each argument in turn.
Citizen Groups claim BLM largely failed to consider the information in the record showing the harmful effects of oil and gas drilling to air quality and health. Citizen Groups first suggest BLM inadequately considered the negative health impacts from the increased emissions from the wells. Second, Citizen Groups
i. Air quality and health
BLM explains that the EA Addendum incorporates the National Ambient Air Quality Standards (“NAAQS”) and New Mexico Ambient Air Quality Standards (“NMAAQS”) and associated Air Quality Index (“AQI”) set by the Environment Protection Agency (“EPA”) and New Mexico to protect human health. In the EA Addendum, BLM noted that the region is in attainment with NAAQS although the ozone pollutant levels have come close to exceeding those standards. BLM then presumed that all 370 wells would be drilled at the same time, which would be an unlikely scenario, and found the maximum increase in annual emissions in the area would be 0.46% to 3.16% depending on the pollutant. Even with these increases, BLM found the air quality would not exceed the NAAQS or the NMAAQS or increase the number of days categorized as “unhealthy” pursuant to the AQI. BLM conducted the same analysis regarding the cumulative impacts of all 3,200 wells anticipated in the region and concluded the annual emissions would increase by 0.20% to 1.41% depending on the pollutant. According to BLM, these increases would also not exceed the NAAQS or NMAAQS or increase the number of days
While Citizen Groups take issue with the EA Addendum‘s suggestion that the increase in ozone pollutant levels would create a “temporary nuisance” for individuals living in the area, Appellants’ Br. at 47–51 (citing Joint App. Vol. 9 at 1868), BLM‘s analysis was sufficient to satisfy NEPA. After considering the quantity of direct emissions of the 370 wells at issue and the cumulative emissions of the other wells anticipated in the area, BLM concluded that “development of the RFD scenario,” including by approving the 370 APDs at issue, “would not be expected to result in any exceedances of the NAAQS or NMAAQS for any criteria pollutants in the analysis area,” including ozone pollutants, or “to increase the number of days” classified as unhealthy pursuant to the Air Quality Index. Joint App. Vol. 9 at 1870. Accordingly, BLM considered the criteria pollutants, the criteria pollutant at highest risk in the area, and the health impacts of that pollutant. BLM then analyzed the direct and cumulative impacts of the oil and gas wells anticipated in the area and concluded that the levels for criteria pollutants would not exceed the attainment levels established by the EPA and New Mexico. Comparison to standards set by administrative bodies to determine whether healthy levels of pollutants would be exceeded constitutes a hard look at the health impacts of the drilling. See WildEarth Guardians, 738 F.3d at 311–12; Tinicum Township v. U.S. Dep‘t of Transp., 685 F.3d 288, 296 (3d Cir. 2012); San Juan Citizens All., 326 F. Supp. 3d at 1251–52.
ii. HAPs environmental impact
Citizen Groups also challenge BLM‘s analysis of the environmental impact from HAPs. HAPs are “a class of 187 toxic air pollutants that are known or suspected to cause cancer or other serious health effects.” Joint App. Vol. 9 at 1865. There are National Emission Standards for Hazardous Air Pollutants (“NESHAP”), which “limit the release of specified HAPs from specific industries.” Id.; Joint App. Vol. 4 at 704. NESHAPs that apply to oil and gas development include control of “benzene, toluene, ethylbenzene, mixed xylenes, and n-hexane from major sources, and benzene emissions from triethylene glycol dehydration units as area sources.” Joint App. Vol. 9 at 1865. The EPA publishes the National Air Toxics Assessment (“NATA”), which estimates the exposures and risk of cancer from HAPs in large areas. The most recent NATA shows the risk of cancer from HAPs in the San Juan Basin is lower than national levels, statewide levels, and levels for nearby areas.
In the EA Addendum, BLM also recognized that “HAP emissions [from APDs] would occur largely in phases—primarily during initial construction, then
BLM recognized in the EA Addendum that HAPs can cause health effects, including cancer. BLM also recognized that the level of HAPs in the area would increase during construction and completion activities, but BLM did not determine the quantity of HAPs that would be emitted from the drilling of the oil and gas wells. Rather, BLM stated the HAP “levels would be low relative to the distance from the source and would not pose a risk to human health (including cancer) because there would not be long-term exposure to elevated levels of toxic air pollutants.” Id. at 1868. In the initial EAs, however, BLM determined the “estimated HAP emissions” for each APD. See, e.g., Joint App. Vol. 11 at 2508. For example, in one EA, BLM estimated the HAP emissions of 0.09 tons/year for the APD at issue. Id.
Importantly, in the EA Addendum, BLM did not account for the cumulative impact to HAP emissions from the wells. Instead, BLM stated the increase in HAP emissions would be for a short time during the construction and completion of the wells, so it would not cause long-term exposure or health impacts. This may be true
4. Remedy
We conclude BLM acted arbitrarily and capriciously by failing to take a hard look at (1) the direct, indirect, and cumulative environmental impacts of GHG emissions from the APDs; and (2) the cumulative HAP emissions and the associated environmental and health impacts. Therefore, we now consider the appropriate remedy. Citizen Groups ask that this court vacate the APDs or issue an injunction
a. Vacatur
Because Citizen Groups’ NEPA claims are brought as APA claims, we look to the APA to determine the appropriate remedy. The APA states that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
But many courts have held that while remand with vacatur is the preferred remedy under the APA, it is not the only permissible remedy. See Allied-Signal, 988 F.2d at 150–51; see also Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng‘rs, 781 F.3d 1271, 1290 (11th Cir. 2015) (collecting cases that have adopted the
In Regents, the Court concluded that some of the reasoning proffered for rescinding DACA was improper post hoc rationalization because it went beyond the reasons given when DHS made its decision. Id. at 1908. Thus, the Court held that those post-decision justifications could not be reviewed by the Court unless the agency had taken a new action, which it had not. Id. at 1908–09. Because the contemporaneous justification for rescinding DACA was arbitrary and capricious, the Court concluded “the appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.” Id. at 1916.
Citizen Groups argue that after Regents, the only appropriate remedy for an APA violation is vacatur. But this stretches the holding too far. While Regents recognizes the importance of following procedures, it does not suggest that vacatur is
BLM and the Intervenors argue we should consider the practical consequences of vacatur, like the D.C. Circuit did in Allied-Signal, 988 F.2d at 150–51, when determining whether to remand with or without vacatur. We agree that vacatur is not always the appropriate remedy for NEPA violations and now adopt the test set out by the D.C. Circuit in Allied-Signal for determining whether vacatur is necessary. See Id. Under the Allied-Signal test, courts must consider two factors—(1) “the seriousness of the [agency action‘s] deficiencies (and thus the extent of doubt whether the agency chose correctly),” and (2) “the disruptive consequences of an interim change that may itself be changed.” Id. In the context of this case, determining “the extent of doubt whether [BLM] chose correctly” refers to whether BLM chose correctly to reaffirm the FONSIs, not whether it chose correctly to approve the drilling permits. See Standing Rock Sioux Tribe v. U.S. Army Corps of Eng‘rs, 985 F.3d 1032, 1052 (D.C. Cir. 2021), cert. denied sub nom. Dakota Access, LLC v. Standing Rock Sioux Tribe, 142 S. Ct. 1187 (2022)
Application of the Allied-Signal factors requires a fact-intensive inquiry that is typically left to the discretion of the district court. See Black Warrior Riverkeeper, 781 F.3d at 1291. Accordingly, we reverse and remand to the district court with instructions to apply these factors in the first instance to determine the appropriate remedy.
b. Injunctive relief
Citizen Groups also argue that if we choose not to vacate the APD approvals, we should enjoin development of the APDs. BLM argues there is not sufficient evidence in the record to support an injunction, so this court should either deny it or remand to the district court to consider the injunction. To show that injunctive relief is warranted, Citizen Groups must demonstrate (1) that [they] ha[ve] suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of
As with vacatur, whether to issue an injunction is within the discretion of the district court. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). As such, we remand to the district court to apply the test for injunctive relief in the first instance if it determines vacatur is not warranted. Althоugh the APDs that have not been fully approved are not yet ripe for our review, the deficiencies identified in the EAs and EA Addendum necessarily render any new APDs based on those documents invalid. We therefore enjoin the approval of any additional APDs until the district court can fashion a remedy. Finally, we also instruct the district court that time is of the essence.
First, we are limited to reviewing the 199 APDs that have been fully approved because the remaining 161 are not yet ripe for judicial review. Looking only to the 199 APD approvals that are ripe for review, we hold that BLM did not unlawfully predetermine the outcome of the EA Addendum but that BLM violated NEPA because it failed to take a hard look at the direct, indirect, and cumulative impact of GHG emissions and the cumulative impact of HAP emissions of the APD approvals. We REVERSE and REMAND to the district court to apply the Allied-Signal factors and the test for injunctive relief in the first instance. We enjoin any APD approvals based on the deficient EAs and EA Addendum until the district court determines the appropriate remedy on remand.
Notes
It is within this court‘s discretion to take judicial notice of a fact or a document. United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007). “Judicial notice is proper when a fact is beyond debate.” The Estate of Lockett by and through Lockett v. Fallin, 841 F.3d 1098, 1111 (10th Cir. 2016). Typically, we take judicial notice of facts that are a matter of public record. Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). The updated statuses came from BLM‘s official database for maintaining federal well information. Mankiewicz Decl. ¶ 7. Statistics from this database are publicly available. See, e.g., Oil and Gas Statistics, U.S. Dep‘t of the Interior Bureau of Land Management, https://www.blm.gov/programs-energy-and-minerals-oil-and-gas-oil-and-gas-statistics. Thus, it appears this updated information is “beyond debate.” Lockett, 841 F.3d at 1111. Bеcause the motion is not contested, the information is not debatable, and it helps this court determine its jurisdiction, we grant BLM‘s Motion for Judicial Notice and take judicial notice of the Declaration of David Mankiewicz and Exhibit A.1, which includes the spreadsheet noting the current statuses of each of the challenged APDs.
BLM also argues that ten of Citizen Groups’ challenges are moot as to expired APDs or abandoned wells. However, Citizen Groups explicitly state they do not appeal the district court‘s determination that the challenges to these APDs are moot. Appellants’ Br. at 4 n.1; Reply at 1 n.1. Accordingly, we do not review these ten APDs on appeal.