Earlier this week, the 10th Circuit Court of Appeals partially reversed a district court decision, and ordered the Bureau of Land Management to vacate the NEPA approvals and permits it had issued authorizing the drilling of a number of fracked wells in the Mancos Shale, near Chaco Canyon in New Mexico. The decision is not earthshattering – pun most definitely intended! – but there are a few features of note. First, the Court actually affirmed most of the permit decisions, as a result of the “dramatic insufficiency of the record” provided by the plaintiffs. Practice tip:
if “we are forced to venture a guess as to the merits of an argument or claim, even ‘an informed guess,’ we will summarily affirm the district court’s judgment.”
On the merits, the most significant point was the court’s rejection of industry arguments that BLM did not need to assess the cumulative impacts of all of the predicted wells, because no operator had actually proposed to drill them all. In response, the Court noted that BLM had concluded in 2014 that it was “reasonably foreseeable” that the wells would be drilled. As a result, BLM had to consider cumulative impacts, even if drilling all the wells was not imminent.
Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. (Emphasis in original.)
Finally, while the Court actually rejected the plaintiffs’ arguments that BLM had violated the National Historic Preservation Act, I was enchanted by the Court’s description of the NHPA as:
requiring government agencies to stop, look, and listen before proceeding when their action will affect national historical assets.
I don’t think I’ve previously had the opportunity to reference Elvis in this space.