by Ellen M. Gilmer, E&E reporter – Published: Friday, October 28, 2016

Chaco Canyon is home to ancient tribal artifacts, while the surrounding area includes oil and gas wells, ranches and Navajo communities.

Environmentalists say they’re not backing down after a federal court yesterday denied their request to halt oil and gas permitting in New Mexico’s Chaco Canyon area. Though the 10th U.S. Circuit Court of Appeals denied environmental groups’ bid for a preliminary injunction on federal oil and gas permitting in the area, the groups say they are confident they will win their original lawsuit over leasing plans. In the meantime, they say, they will continue to pressure the Obama administration to rethink development in the area.

“In spite of the setback, we’re certainly not going to be letting up in pressing the Interior Department to exercise restraint in this region,” WildEarth Guardians Climate and Energy Program Director Jeremy Nichols said in an email yesterday.

The 10th Circuit decision is the latest in a legal saga that began in early 2015, when a coalition of environmental groups sued Interior and the Bureau of Land Management for approving oil and gas development that the groups say will disturb 1,000-year-old tribal artifacts and harm modern Navajo communities. The groups say BLM is relying on an outdated resource management plan (RMP) from 2003 that does not consider the effects of horizontal drilling and high-volume hydraulic fracturing.

The region is home to Chaco Culture National Historical Park. While drilling is off-limits within park boundaries, improvements in technology have led to an uptick in leasing on federal lands near the park.

The U.S. District Court for the District of New Mexico denied the groups’ request for a preliminary injunction on leasing last year, and the appeals court upheld that decision yesterday. The court found that the groups had not met several legal standards for a preliminary injunction, including a likelihood of winning the underlying lawsuit, a “balance of harms” weighing in their favor and a demonstration that an injunction would be in the public interest (Greenwire <http://www.eenews.net/greenwire/2016/10/27/stories/1060044927>, Oct. 27).

In particular, the court took issue with the groups’ argument that they were likely to win the case, noting that oil and gas development has not yet reached the levels considered in the 2003 RMP.

“Thus, even with increased drilling in the Mancos Shale formation and the switch to horizontal drilling and multi-stage fracturing, the overall amount of drilling and related surface impacts are still well within the anticipated level,” Judge Monroe McKay, a Carter appointee, wrote in the decision.

Judge Paul Kelly, a George H.W. Bush appointee, joined in the decision, and Judge Carlos Lucero, a Clinton appointee, dissented in part of the court’s analysis but agreed with the conclusion.

Western Environmental Law Center attorney Kyle Tisdel, who is representing the environmental groups, argued that the issue is the impact of modern oil and gas production techniques, not the number of wells.

“The court agreed with BLM’s ‘magic numbers’ argument that the total number of wells drilled haven’t exceeded what was generally predicted in the 2003 RMP — despite the fact that the impacts of modern fracking has never been studied,” Tisdel said in an email. “The reality is, new fracking technology has [led] to landscape level impacts that were never analyzed, to say nothing of the daily harm local residents are forced to endure, including well explosions and the largest methane hot spot in the nation which continue to plague Greater Chaco.”

According to the judges, the groups did not support that argument in court. “Plaintiffs have likewise failed to present us with any argument or evidence to support their contention that horizontal drilling and multi-stage fracturing may give rise to different types — rather than just different levels — of environmental harms when compared to the traditional vertical drilling and hydraulic fracturing techniques that have historically been used in the San Juan Basin,” the decision said.

The decision comes just a week after the Obama administration announced it would broaden its current efforts to update the RMP for the area, teaming up with the Bureau of Indian Affairs to include tribal lands in the review (Greenwire <http://www.eenews.net/greenwire/stories/1060044602>, Oct. 20).  

“Especially with their announcement last week acknowledging the need to address the concerns of Navajo community members and Chapters in the face of this unprecedented oil and gas development, there is every reason for Interior to call a time out on new leasing and fracking approvals,” Nichols said, adding later: “They may have won this court ruling, but if they’re interested in winning integrity and public trust, and demonstrating genuine care and consideration over the impacts of fracking to Tribal interests, clean air, and climate in the region, they need to step up.”

BLM does not comment on pending litigation. A spokesman for Encana Oil & Gas Inc., a major operator in the area, declined to comment.