Court vacates 287 oil and gas leases in Montana over BLM failure to assess for groundwater and climate impacts

Monday, May 4, 2020  

Bonnie Martinell, a farmer near Bridger, knows how valuable water is. She uses water from a ditch on her 350 fruit and nut trees, and she knows a warming climate could help dry it up. Already, some of her neighbors’ wells are running dry. Towns to the south, where aquifers have been contaminated by oil rigs, have to drill down thousands of feet to find clean water. 

That’s why Martinell, along with Montana farmer David Katz, WildEarth Guardians and the Montana Environmental Information Center, filed a lawsuit alleging the Bureau of Land Management failed to properly consider the groundwater impacts and climate change consequences of oil and gas lease sales across Montana, including some as close as a mile from Martinell’s rural Carbon County farm.

“We don’t live without water,” she said. “None of us do.”

On Friday, a federal judge vacated 287 oil and gas leases in Montana, ruling that the Bureau of Land Management’s 2017 and 2018 sales did not properly assess the leases’ threat to groundwater and impacts on climate change. The leases, on public land totaling 150,000 acres, were statewide, from the Upper Missouri River Breaks National Monument area to the Beartooth Mountains to eastern Montana. 

BREAKING VICTORY!

Federal judge overturns sale of nearly 150,000 acres of #publiclands for #fracking in #Montana.

Ruling a BIG WIN for Big Sky State's clean water, #climate, health!@WildEarthGuard, @MTEIC, represented by @westernlaw, @earthjustice,https://t.co/2Sar8V5VsI pic.twitter.com/1fD1eNAvu4

— WildEarth Guardians' Climate and Energy Program (@ClimateWest) May 1, 2020

“Well, it does help me breathe a lot,” Martinell said of the decision. “I’m not going to have to wonder when they will decide to decimate this area.”

The BLM said it disagrees with the decision.

“With all due respect, we disagree with the Court’s conclusion, and the B.L.M. stands by its analysis in following the letter of the law to issue oil and gas leases in Montana,” BLM spokesman Derrick Henry wrote in an email to the New York Times. “Regardless of the ultimate outcome of this dispute and despite the attempts of radical, special interest groups, the Department and the B.L.M. will continue to work toward ensuring America’s energy independence while preserving a healthy environment.”

U.S. District Court Judge Brian Morris, of Great Falls, found the BLM leases violated the National Environmental Policy Act. Under NEPA, federal agencies must evaluate the environmental consequences of their proposed actions.

“The problems with BLM’s [environmental assessments] largely relate to the absence of analysis rather than to a flawed analysis,” Morris wrote. “In other words, the Court does not fault BLM for providing a faulty analysis of cumulative impacts or impacts to groundwater, it largely faults BLM for failing to provide any analysis.”

The legal nonprofit Earthjustice argued on behalf of the plaintiffs that BLM failed to comprehensively consider the groundwater quality impacts of the leases. Morris agreed, saying the agency analyzed quantity, but not quality.

“A weatherman proves unhelpful if he says ‘it’s going to be windy tomorrow’ when asked if it will rain. BLM proves just as unresponsive here,” Morris wrote.

Earthjustice also argued that BLM should have looked at how the greenhouse gas emissions resulting from the oil and gas obtained via the leases would impact climate change globally. Morris agreed.

“Thus, if BLM ever hopes to determine the true impact of its projects on climate change, it can do so only by looking at projects in combination with each other, not simply in the context of state and nation-wide emissions,” Morris wrote.

The Trump administration has proposed a new interpretation of NEPA that would free federal agencies from the directive to consider the “cumulative impacts” of their decisions, such as climate change. This is at least the third BLM lease sale under the Trump administration that a federal judge has determined failed to consider effects on global climate change.

“It’s heartening to see that, once again, the courts have struck down the Trump Administration’s shortsighted rush to frack our public lands to fuel the climate crisis,” said Rebecca Fischer, climate and energy program attorney with WildEarth Guardians, in a statement.

About 25% of U.S. emissions result from drilling on federal lands, according to a recent analysis by the U.S. Department of the Interior.

Martinell knows what it’s like to live near oil and gas development. In 2011, an ExxonMobil pipeline burst and spilled oil into the Yellowstone River. Tanker trucks drove past her farm, kicking up dust on her chemical-free orchard, which she said led to the orchard going unpollinated by bees. She also worries about drilling bringing up salt water in the case of a flash flood.

“It’s been chemical-free for 20-plus years,” she said of her farm, which supplies fruit, vegetables and nuts to wholesalers across Wyoming, Montana and Idaho and provides fresh produce to schools in Red Lodge, Belfry and Cody. “It’s pretty decimating to have [oil development] come to what you’ve worked so hard to keep clean.” 

Climate change, too, is going to alter Martinell’s farm. The Montana Climate Assessment has found that agriculture across the state will be significantly impacted by changing temperatures. Meanwhile, trade policies and commodity prices are in flux. Questions abound about the future of pollinators and pests. The water may not flow. To Martinell, it doesn’t make sense to add oil development to the list of uncertainties.

“There’s not a lot of oil around here. They’re going down not to get a huge amount, and contaminating everything along the way,” she said. “It’s not a rational thing.”

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Johnathan Hettinger is a journalist based in Livingston. Originally from Central Illinois and a graduate of the University of Illinois, he has worked at the Midwest Center for Investigative Reporting, the Livingston Enterprise and the (Champaign-Urbana) News-Gazette. Contact Johnathan at jhett93@gmail.com and follow him on Twitter @jhett93.

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Note: This story originally appeared on Montana Free Press. It is published under a Creative Commons license.