Courts Reviewing Environmental Impact of Natural Gas Drilling

By Kate Winston, Inside EPA, Sept 18, 2009

Key federal courts are backing activists in suits under the National Environmental Policy Act (NEPA) to review the impacts of natural gas drilling fluids on underground aquifers, rulings that activists hope will bolster pending bills to restore EPA’s Safe Drinking Water Act (SDWA) authority to oversee hydraulic fracturing — a controversial gas drilling procedure that requires injection of chemicals into wells.

Activists also say such precedent will likely spur other groups to use NEPA to challenge the use of chemicals in gas drilling, a practice that is expected to increase as more electricity producers switch to the fuel to comply with upcoming climate change regulations.

The U.S. Court of Appeals for the 10th Circuit — which includes key gas drilling states of Oklahoma, Wyoming, Kansas, Colorado, Utah and New Mexico — in April ruled in State of New Mexico ex rel. v. Bureau of Land Management that the bureau must conduct further analysis under NEPA of the drilling activities covered by its resource management plan for the Otera Mesa region, including providing more evidence that drilling would not harm the aquifer.

Meanwhile, a federal district court in Colorado Sept. 3 granted environmentalists’ request for a preliminary injunction to block exploratory oil and gas drilling in the Baca National Wildlife Refuge until the resolution of the case, San Luis Valley Ecosystem Council et al. v. U.S. Fish and Wildlife Service [FWS]. In the ruling, Judge Walker Miller found in favor of activists on a number of issues, including activists’ claims that the FWS’ environmental assessment (EA) for the project likely violated NEPA by failing to analyze potential impacts of drilling and failing to analyze alternatives that would have a smaller environmental impact.

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