Drilling Down

Injunction against fracking near Chaco moves to higher court

Environmental groups have once again asked a judge to order the US Bureau of Land Management to stop issuing permits for hydraulic fracturing near Chaco Canyon. The Western Environmental Law Center made oral arguments in the case to the 10th Circuit Court of Appeals in Denver on Tuesday.

In August, an Albuquerque district court judge ruled that while the plaintiffs, which include Diné Citizens Against Ruining the Environment, San Juan Citizens Alliance, WildEarth Guardians and the Natural Resources Defense Council, "put forth enough evidence to cast some doubt on the thoroughness of the BLM's decision-making," they had not successfully demonstrated that the BLM "failed to take a hard look at the environmental impacts of its actions."

The judge's opinion agreed with the plaintiffs that environmental harms are often irreparable but said fracking only enhanced the possibility of those injuries, compared to the certain injury that would befall the defendants, which included the secretary of the interior and a long list of oil and gas companies, if deprived of this economic engine.

"While this decision is discouraging, we believe that BLM has failed the public and continues piecemeal approval of new oil development, neglecting cumulative impacts, resulting in significant flaring waste and industrializing the landscape," Mike Eisenfeld, New Mexico coordinator for San Juan Citizens Alliance, said via press release when the judge's decision came down. "This is not over. We will reassess and challenge this injustice."

Drilling has been going on in the San Juan Basin for decades, but the ability to extract the area's oil and gas resources changed shortly after the Bureau of Land Management released its 2003 Resource Management Plan for the northwestern part of New Mexico, which includes the Mancos Shale near Chaco Canyon.

"In 2003, the BLM considered the Mancos Shale formation marginally economic and approaching depletion," says Kyle Tisdel, climate and energy program director for Western Environmental Law Center. "So what actually shifted between 2003 and now is the advent of this new drilling technology, horizontal drilling and multistage fracturing, which has made the Mancos Shale development economic."

The BLM concedes that subsequent innovations in extractive technology have changed the economics of developing oil and gas resources in northwestern New Mexico since that plan.

"With favorable oil prices, the oil play in the southern part of the Farmington Field Office boundary has drawn considerable interest, and several wells are being drilled and planned," reads a statement explaining the agency's intent to amend the plan. But the farther south producers go, the closer they get to the boundaries of Chaco Culture National Historic Park, a UNESCO World Heritage site. As that happens, the BLM document continues, "additional impacts may occur that previously were not anticipated."

As in: This is much bigger than anyone expected, and millions of acres are affected.

A BLM report on "reasonable foreseeable development" for Northern New Mexico issued in October 2014 suggested that the Mancos Shale and Gallup Sandstone reservoirs could see companies potentially go after 3,650 new locations to target oil and gas in the area, with millions of gallons of fresh water required for the thousands of potential horizontal wells.

"So they moved from predicting no development in the Mancos Shale to predicting 4,000 new wells will be drilled," Tisdel says. "I think the fundamental problem in this case is they are approving hundreds of these Mancos Shale oil and gas wells without ever considering the landscape-level impacts of what developing these hundreds of wells means. So they're approving these hundreds of wells, but they've never gone back and considered the cumulative impacts of all these wells to the landscape, and to not only the environment, but resources and outlying sites in Chaco Canyon and ... the people that call this place home and impacts that might occur to their health."

The argument contends it's unlawful for the BLM to issue permits without analyzing their cumulative impacts while continuing to rely on a resource management plan that didn't consider drilling on this scale in this location viable. The case calls for a preliminary injunction to suspend additional development while the BLM does a baseline analysis of the area.

"They've already committed to preparing the resource management plan amendment, they've conceded that an [environmental impact statement] is required here, and simply what we're saying is that you need to allow that process to play out and complete itself before you approve hundreds of wells," Tisdel argues. That analysis would help shape development and mitigation, controlling the time, pace and scale to reduce harm to the environment and people who live in the area. Permitting hundreds of wells now without that analysis, he says, limits the options for what management plans could later require.

"The question of drilling is a subsequent question," Tisdel says. "I think the first question is, what are the impacts of that development across the landscape, and once you analyze and disclose those impacts to the public, then the agency can make an informed decision about whether drilling is an appropriate use of public resources, but you can't answer that question without first doing the analysis."

In May, New Mexico's US Sens. Tom Udall and Martin Heinrich and US Rep. Ben Ray Luján sent a letter to Secretary of the Interior Sally Jewell asking her to consider the impacts and engage in a conversation with constituents in northwest New Mexico as the BLM amends its Resource Management Plan.

"Federal leasing activities should adequately take into consideration the important cultural, historical and ecological value of the area, which also benefits local tourism, along with the immediate economic impacts of development," their letter reads.

The oral argument is set to be followed by deliberation by the court, and a decision is expected in a month or two. Meanwhile, the BLM can continue issuing permits.

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