Native communities often face the degradation of their sacred land. This is unsurprising, as there is a long history of American state and federal governments refusing to give Native American tribes the right to self-determination and depleting the political power of Tribal governments. This power imbalance manifests itself in oil and gas transactions because parties who seek to profit off of oil and gas production on Native land can negotiate directly with state governments or federal agencies, rather than the tribes themselves. A community-based organization, Diné Citizens Against Ruining our Environment, is working diligently to stop outside developers from disrupting Native communities with these kinds of transactions.
Courts have the power to act as a backstop by vacating agency decisions that would otherwise promulgate these injustices. In Diné Citizens v. Haaland, groups representing the Navajo Nation alleged that the Bureau of Land Management (BLM) violated the National Environmental Policy Act (NEPA) in its assignment of applications for permits to drill (APDs) into oil and gas wells in the San Juan basin and requested that the court vacate these APDs. The court reviewed the environmental assessments (EAs) that BLM drafted about the impacts that the APDs would have on greenhouse gas (GHG) emissions, water resources, and air quality and ultimately decided that BLM acted arbitrarily and capriciously in some of their environmental impact calculations. Instead of vacating BLM’s APDs, the court remanded back to the district court for review.
While the Tenth Circuit properly applied NEPA, it fashioned the wrong remedy. Failing to vacate the APDs was a missed opportunity to operate an effective check on agencies taking advantage of NEPA’s broad language. NEPA and the standard of judicial review associated with NEPA challenges do not adequately protect natural lands, meaning that appellate courts should vacate decisions that clearly violate NEPA.
