An EcoFlight trip above the heart of the Piceance Basin west of the Roaring Fork Valley sought to give various members of Colorado-based media groups perspective into a recently filed lawsuit that challenges 53 energy leases in Mesa and Garfield counties that were awarded by the Bureau of Land Management in 2016 and 2017.
The lawsuit was filed by the Center for Biological Diversity, a Denver nonprofit. There are three co-plaintiffs, one of which is the Carbondale-based nonprofit Wilderness Workshop, which describes itself as “the conservation watchdog of nearly 4 million acres of public lands in western Colorado.” The 53 lease parcels encompass about 45,000 acres in western Colorado, including one parcel that lies within a half-mile of a K-12 public school in the community of De Beque in Mesa County.
Monday’s flight in a single-engine plane passed over some of the areas where the parcels are located, including Vega Reservoir, Soft Shale Ridge, Roan Creek Drainage Area, and the towns of Mesa and De Beque. The plaintiffs say they are concerned about the effects of the controversial practice of “fracking” for natural gas and the potential harm energy production can have on wildlife, water supplies and air quality.
“Fracking” is not an actual word, though it is a common nickname for the energy production term “hydraulic fracturing,” a technique in which rock is fractured by a chemical-infused pressurized liquid. Though the energy industry claims that the vast majority of fracking operations are environmentally sound, the process is considered controversial because it carries a risk of ground and surface water contamination, along with other hazards.
The heart of the lawsuit is BLM’s refusal to accept public input on the 53 parcels and the agency’s decision to use a shortcut called “Determination of NEPA Adequacy,” or what some environmentalists are calling “DNA,” to bypass analysis of fracking harms required under the National Environmental Policy Act, or NEPA. The four plaintiffs are critical of DNA review — and contend it is being used with increasing frequency under the Trump administration.
DNA review, according to the plaintiffs, presumes that leasing complies with aged and broad resource-management plans and delays site-specific review until drilling permits are requested, thereby ignoring NEPA’s requirement to disclose impacts at the earliest possible time. But the plaintiffs contend that BLM routinely bypasses the promised drilling-stage review because the agency is reluctant to block drilling activity once land has already been leased.
Diana Dascalu-Joffe, senior counsel for the Center for Biological Diversity, is lead attorney on the suit. She spoke with reporters during a short break in the trip at a Grand Junction airport facility.
The BLM is not following due process as outlined by NEPA, she said.
“All the reports and information that we have provided to the [BLM] have been flatly ignored. That basically means they are violating federal law by not doing environmental analysis and also by not considering public comment and public input,” Dascalu-Joffe said.
DNA review is a “fiction” that BLM created to sidestep any environmental analysis, she said. “What BLM is saying is that they already did an analysis of the impacts in these 53 parcel areas, at the broader planning stage, three years ago. We’re saying [BLM’s planning document] is not site-specific, it’s a broad, million-acre plan that does not address the particular resource values on these specific parcels.”
A separate lawsuit, Dascalu-Joffe said, is challenging BLM’s reliance on broad resource-management plans. The Center for Biological Diversity is not a party in that suit.
“But we’re connecting the two because we are going to try to prove to a federal judge that this is a dangerous shell game BLM is playing,” she said. “It’s a shell game whereby the analysis never gets done. They’re pointing to an older planning document and then also saying that any site-specific impacts can be addressed at the drilling stage.
“We’re saying by [the drilling stage], you’ve already committed the leasing to the companies,” Dascalu-Joffe continued. “You can’t revoke that. You can’t make any real changes."
Monday’s flights — in which reporters and photographers got an opportunity to view some of the parcel areas — showed that not all of the areas are located in pristine wilderness and forest areas. The flights, arranged by the Wilderness Workshop and piloted by EcoFlight president Bruce Gordon, passed over lands that already have been subjected to oil-and-gas exploration and production, as well as residential development.
“It’s not all undeveloped and pristine area, that’s true,” said Peter Hart, staff attorney and conservation analyst for the Wilderness Workshop. “But the impacts that we are worried about — that we don’t think BLM has adequately considered —are impacts associated with climate change, water depletions and water-quality issues associated with new drilling techniques. [There also are] sensitive plant species that are specifically on these parcels, but which may not exist on parcels that are adjacent. And there are human health impacts.”
Some of the leases lie next to “important public infrastructure that may not have been previously impacted by oil and gas development,” Hart said, one such reference being the De Beque school.
Another lease parcel lies within half a mile of Highline Lake State Park, an important migratory bird habitat in the Grand Valley, which contains two lakes and is popular with birders. Highline Lake State Park is also a popular area for camping and open water swimming, and numerous recreational events are held there every year — including the 18 Hours of Fruita Mountain Bike Race and local triathlon races.
“By and large, we are asking the BLM to consider impacts they haven’t considered before. And some impacts … may have been applicable to prior energy leases, but regardless, the agencies should have considered them again and disclosed those impacts to the public and given the public an opportunity to comment on those impacts prior to issuing these new leases,” he said.
The lawsuit was filed in late April in U.S. District Court in Denver. Officially, it asks the court to invalidate the 53 lease authorizations as NEPA violations.