Judge rejects one claim by environmental groups, affirms another

Federal judge issued order on March 31

Megan Petersen
Farmington Daily Times
A federal judge has issued a mixed ruling regarding the Bureau of Land Management's actions regarding oil and gas drilling near Chaco Culture National Historical Park.
  • A federal judge says using a 2003 resource management plan for modern production does not violation NEPA standards.
  • The BLM follows NHPA requirements for wells with no historical sites in impact areas, but not for ones with sites.
  • A Farmington environmental advocate says the judge's orders suggest a need to "shore up consultation."

FARMINGTON — A federal judge has rejected environmental claims that the Bureau of Land Management is violating the National Environmental Policy Act in opening the Mancos Shale formation to fracking.

However, the judge partially affirmed claims that the BLM is violating the National Historic Preservation Act by failing to consider the direct or indirect effects of wells on historical sites.

U.S. District Judge James Browning issued the order regarding oil and gas development in the greater Chaco area on March 31. A coalition of environmental groups — including Diné Citizens Against Ruining Our Environment and San Juan Citizens Alliance — filed a lawsuit in 2015 claiming that the BLM violated NEPA and NHPA in allowing oil and gas development in the region, which includes the area surrounding Chaco Culture National Historic Park.

Browning rejected claims that the BLM failed to adequately consider the environmental impacts of hydraulic fracturing and horizontal drilling in the area by using a 2003 resource management plan and environmental impact statement to measure potential effects, saying “any difference in environmental impacts between the new technology and the technology used in the 2003 RMP/EIS analyzed are insignificant.”

He also rejected claims that the BLM failed to comply with NEPA’s public involvement requirements, saying the BLM has “wide discretion in deciding how much to involve the public in its decision-making process” and citing BLM’s “problems uploading the documentation to its website” in delaying publication of environmental assessments for applications for permits to drill.

But Browning affirmed a claim that the BLM is not taking adequate action to study the impact of wells near historical sites. He wrote that though the BLM did not violate the NHPA with wells that had no historical sites within their areas of potential effect, it did with wells near historical sites.

“Some of the cultural resource analysis for those wells (with historical sites within their areas of potential effect) were conclusory, contain no finding or are entirely absent from the record,” Browning wrote in the order. “... The analysis either are not ‘supported by sufficient documentation to enable any reviewing parties to understand its basis’ ... or do not ‘describe the potential of the undertaking … to affect’ each of the historical sites within the (area of potential effect).”

The BLM is in the process of amending the 2003 RMP/IES. The BLM’s Farmington District Office Resource Advisory Council heard an update from officials and feedback from the public during a January meeting, including similar criticisms to the lawsuit’s complaints.

BLM Farmington Field Office spokesman Zach Stone said Tuesday the BLM does not comment on pending litigation.

Mike Eisenfeld, the energy and climate program manager for the San Juan Citizens Alliance, said Browning’s order was “a pretty extraordinary decision” that “suggests that there are some processes that are perhaps undefined” in development process, specifically with consultation.

“Consultation seems to be a pretty significant issue hanging out there right now, and certainly when it comes to oil and gas facilities that seem to be popping up in that region on a fairly regular basis,” Eisenfeld said. “(Browning's order) suggests that more is going to need to be done to shore up consultation.”

Megan Petersen covers business and education for The Daily Times. Reach her at 505-564-4621 or mpetersen@daily-times.com.