(CN) – The 10th circuit blocked oil and gas development slated for New Mexico’s Otero Mesa grasslands, concluding that the Bureau of Land Management failed to conduct a complete environmental analysis.
The appellate panel found “serious flaws” in the bureau’s land planning for the area, which lies on 427,000 acres in Sierra and Otero counties that have been “depleted to scrubland” over the past 150 years, according to the ruling.
Oil companies began vying for federal leases after a natural gas find in 1997, prompting the bureau to auction off 1,600 acres to oil company HEYCO. Development halted when New Mexico stepped in and filed suit for violations of the National Environmental Policy Act. Environmental groups soon followed suit.
The bureau’s first land management plan restricted development to areas within 492 feet of existing roads, but later changed the plan to reflect a “unitization” concept, in which only 5 percent of the land could be in development at any one time, under different developers.
The bureau claimed that because the new plan affected roughly the same surface area, it was not required to perform additional environmental assessment.
However, the federal appeals court in Denver ruled that different development sites would “produce wildly different impacts on plants and wildlife” due to interrupted habitats, the opinion states. While the first plan charted contiguous areas for surface disruption, the new plan “muddied” this continuity, Judge Lucero wrote. Lucero compared the bureau’s logic to building both a dirt road and a four-lane highway across an ecosystem and grouping them under the idea of habitat disturbance. “NEPA does not permit an agency to remain oblivious to differing environmental impacts, or hide these from the public” under the guise of a general environmental impact, the ruling states. The modified plan was qualitatively different and “well outside the spectrum” of what the bureau initially considered, and therefore required additional analysis, the three-judge panel ruled.
The court dismissed as moot the challenge brought by the New Mexico Wilderness Alliance to the bureau’s determination that oil and gas activities would not greatly impact the Northern Aplomado falcon, because the species is no longer considered endangered. The groups and larger public decried the bureau’s “about-face” regarding the project’s impact on the falcon, as the bureau first directed the Fish and Wildlife Service to collect more data on the impact to the falcon and later said it was unnecessary. In summer 2006, the service shifted the falcon’s classification from listed to “proposed to be listed” and reintroduced 100 into the area starting in 2007 as an experimental population. This action does not meet a mootness exemption because the service, and not the bureau, made the decision to change the falcon’s status, the ruling states.
The judges said the bureau’s decision that oil and gas development’s impact on the Salt Basin Aquifer, which lies below the mesa, would be “minimal” was not backed up, as the record suggested a likelihood of groundwater contamination. New Mexico has a history of wells leaking oil into porous rock formations, which then finds its way to sensitive aquifers, according to the ruling. The aquifer contains 15 million acre feet of potable water.