Native Sun News Today: Tribal precedents bring halt to fracking on public lands

Monday, April 1, 2019  

WASHINGTON, D.C. -- A federal judge here relied on precedents set by the Oglala and Standing Rock Sioux tribes when he handed down a “landmark” ruling March 19 to suspend Wyoming oil and gas fracking until the agency completes a review of climate change impacts.

U.S. District Court Judge Rudolph Contreras ordered the Bureau of Land Management, or BLM, to halt oil and gas activities on more than 300,000 acres of public land until its staff can “provide the information necessary” to “adequately quantify the climate change impacts” that would result from fracking there.

The decision comes a year after the Oglala Sioux Tribe called for other tribes to rally behind its demand for government-to-government consultation on the proposed hydraulic fracturing for oil and gas in the Wyoming portion of unceded 1851 Ft. Laramie Treaty territory.

Plaintiffs in this case, the non-profit organizations WildEarth Guardians and Physicians for Social Responsibility, filed their complaint in 2016, asking the judge to “vacate,” or nullify, the leasing for the oil and gas sales.

They sought to “void the issued leases and suspend and enjoin BLM from any further leasing authorizations pending BLM’s full compliance with NEPA,” which is the National Environmental Protection Act.

The judge stated that the BLM broke that law by omitting required data on the effect of burning the oil and gas that would be fracked. He stipulated that the “agency must consider the cumulative impact of GHG [greenhouse gas] emissions generated by past, present, or reasonably foreseeable BLM lease sales in the region and nation.”

However, he refrained from determining that the agency must reverse its decision. Instead, he is relying on BLM staff members to return to the proverbial drawing board and choose for themselves whether to change their minds on the matter, based upon the inclusion of the mandated information.

In his opinion, he wrote that this approach was the way other judges in his district had handled situations when the tribes won complaints about federal agencies violating the environmental protection act.

He cited the 2017 case of the Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, in which the court agreed with the tribe that the agency broke the law in permitting the Dakota Access Pipeline crossing of the Missouri River yet allowed the Corps to attempt a fix.

In that case, the pipeline was built across the river and pressed into service while the agency remains in court as the tribe and others that joined its suit are seeking to stop the oil flow.

Judge Contreras also cited the 2018 D.C. Circuit Court precedent in Oglala Sioux Tribe v. U.S. Nuclear Regulatory Commission, in which the court agreed with the tribe that the agency defied NEPA in licensing a uranium mine without carrying out the requisite historical preservation survey.

In that case, the decision leaves the license in effect pending further proceedings before the agency’s oversight panel, the Atomic Safety and Licensing Board. The panel seeks a remedy satisfactory to the staff, tribe and mining company, Azarga Uranium Corp., represented by Powertech (USA) Inc. at the 10,000-acre Dewey Burdock proposed mine site in the southern Black Hills.

In opting to let BLM keep the oil and gas lease sale possibilities on the table, Contreras duly noted arguments of intervenors on behalf of the defendant BLM, which were the Western Energy Alliance and Petroleum Association of Wyoming and the American Petroleum Association of Wyoming.

Intervenors submitted an American Petroleum Industry memo that claims revocation of the offering would “significantly disrupt both public and private economic interests” because oil and gas leasing generates revenues for state and local governments “through the bonus bids paid at lease auctions and annual rents collected on leased parcels.”

The industry representatives argued that, in reliance on BLM’s leasing decisions, private oil and gas companies bought at least some of the Wyoming leases and have spent money exploring them, so, if the court were to vacate them, Wyoming and its local governments would be deprived of revenue streams from resource development, and the private leaseholders would “lose the opportunity to seek BLM approval to explore for, and eventually produce, valuable mineral deposits.”

However, Contreras said, the defendants provided “no empirical bases for their assertions that vacatur would cause significant economic disruption.”

Contact Talli Nauman at talli.nauman@gmail.com

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