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Earthjustice: The Trump Administration Wants to Roll Back Fracking Standards

Fracking has disrupted the landscape and the life of North Dakota. Theodora Bird Bear has lived in the town of Mandaree on the Fort Berthold Indian Reservation for most of her six decades. When the retiree moved into her current home in the ‘80s, she found juneberries, plums, buffalo berries, chokecherries and turnips growing wild on her property.

“These natural foods which our tribe relied on prior to the 1950s are important to me as a tribal member in our original homelands,” Bird Bear wrote last year. “This landscape is the last of our historic pre-treaty lands.”

Now, nearly 1,000 active oil and gas wells have industrialized the delicate, semi-arid ecosystem all around Bird Bear.

“Sadly, there are very few butterflies visible, especially the monarch butterfly, in the past nine years of the intensive mineral extraction all around my home,” says Bird Bear, who is a member of Fort Berthold Protectors of Water and Earth Rights (POWER). “There are also fewer birds around. The continuous jet-like sound from the frack well sites around my home drowns out the bird songs in the spring and early summer.”

“I am worried about the cumulative and adverse impacts to air and water in Mandaree and Fort Berthold,” she adds. “The secret, proprietary nature of fracking means tribal members like myself aren’t able to fully protect our tribal lands in the event of a toxic fracking spill.”

This week, Earthjustice and our clients, including Fort Berthold Protectors of Water and Earth Rights, went to court to push for more information and more protection for Bird Bear and others living amid fracking operations. We challenged a Trump administration effort to roll back common sense standards around fracking.

These standards were adopted in 2015 by the Bureau of Land Management to protect places like Fort Berthold from the chemical contamination and water pollution that can result when fracking goes awry.  The agency crafted this rule after five years of research and conducting public and tribal outreach sessions across the country—including in North Dakota, where Bird Bear testified. It was the first federal effort since the 1980s to update the agency’s standards for the thousands of fracking operations that occur each year on federal and Indian lands.

But the regulation never went into effect. Litigation by industry groups and some states delayed it. And at the end of 2017, under new leadership from the Trump administration, BLM nixed its own rule.

“BLM recognized in 2015 it needed to take these basic safety precautions in order to meet its responsibilities as the steward of public lands,” said Michael Freeman, one of the Earthjustice attorneys bringing the lawsuit.  “By repealing the rule, BLM is abandoning its duties to the American public as well as to native American communities facing the threat of fracking.”

Earthjustice attorney Mike Freeman at an oil rig in Erie, Colorado


The Trump administration justified the repeal in part by arguing that states and tribal are doing an adequate job of managing oil and gas development by themselves.  But the reality is that fracking policies vary widely from state to state, and particularly from tribe to tribe, Freeman says. Many tribes don’t have fully-developed tribal regulatory systems to address oil and gas development, or the resources to hire experts who can assess whether a fracking operation is likely to contaminate groundwater or cause a well blowout.

Bird Bear testified that she does not believe the Fort Berthold Tribal Council has the clout to enforce regulations concerning oil and gas extraction based on her experience with lax enforcement of a tribal regulation governing the wasteful flaring of natural gas produced at oil wells.

“After 10 years of oil and gas revenue received by the tribal council, it’s also unlikely they will have political will to stand up for the health of tribal members on Fort Berthold when it comes to oil and gas pollution,” she said.

Several federal laws—including the Federal Land Policy and Management Act, the Mineral Leasing Act—charge BLM with ensuring that development on federal lands benefits the public welfare and prevents unnecessary degradation of resources like water quality.  And under the Indian Mineral Leasing Act, the Secretary of the Interior also has a trust responsibility to ensure that oil and gas extraction on tribal lands is in the best interest of tribes and individual tribal members like Bird Bear.

The 2015 fracking rule set several commonsense standards to protect groundwater, surface water, wildlife, and public health and safety. It would have required oil and gas companies to disclose the chemicals they used in fracking. Companies would have had to store fracking waste in closed tanks, not pits—the latter method can kill livestock or wildlife that mistake the pit for a convenient water source, Freeman says. And the operators would have had to ensure the structural integrity of their wells, in addition to mapping nearby wells to ensure that they wouldn’t hit them while drilling.

Fracking on BLM land in the Colorado River Valley Field Office of western Colorado


On behalf of our clients—which also include Diné Citizens Against Ruining Our Environment, Center for Biological Diversity, Earthworks, Sierra Club, Southern Utah Wilderness Alliance, The Wilderness Society, and Western Resource Advocates, Earthjustice’s lawsuit asks the court to reinstate the 2015 rule on the grounds that its rollback was arbitrary and capricious.

Thanks to BLM’S abrupt reversal of its own fracking laws, tribal land owners are denied the right to assure protection of their ground and surface water in the semi-arid lands of Fort Berthold.  Bird Bear says BLM’s failure to enforce strong regulatory protections on nearby wells has endangered her health. But she’s not giving up on protecting Fort Berthold.

“We have consistently remained anchored here in our pre-treaty homelands,” she testified. “We stayed true to our land and ourselves – and this is our strength.”

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A World Without NEPA: Uranium Mining in Utah

The National Environmental Policy Act (NEPA) was passed in 1969. NEPA requires government agencies to assess significant environmental and public health impacts of major federal actions before the decisions are finalized, to inform the public of those impacts and to solicit input on the proposal and reasonable alternatives. NEPA accounts for the fact that while corporations may profit from major project approvals, it’s the public, and the environment, that must live with the consequences. It is the law that ensures that informed decision-making, public engagement and accountability are components of a huge range of federal actions from managing our public lands and approving massive projects like dams and logging operations to insecticide and chemical permitting. These types of decisions often dramatically impact the health and resilience of human communities as well as threatened and endangered species and other wildlife.
But NEPA’s requirement for transparency, for consideration of public input and project alternatives doesn’t sit well with everyone. Over the last several years, hundreds of pieces of legislation have been introduced that would weaken NEPA or waive it entirely. The 115th Congress alone has already been the source of over 40 such proposals that would waive NEPA or limit the scope of its analyses. The bills have attacked NEPA in different realms — sometimes for highway projects and dams, other times for logging projects. The strategy of slowly eroding the core provisions of NEPA is troubling. Now, under the guise of “modernizing NEPA” the Chairman of the House Natural Resources Committee, Rep Rob Bishop of Utah — an avid opponent of NEPA and the Endangered Species Act — is holding a hearing targeting the NEPA as a whole.
If this agenda succeeds, millions of Americans and scores of local governments could lose notice about impacts that projects will have on their communities and lose their voice in federal decisions.
The Cautionary Tale of Uranium Mining in Utah

If there is one example that clearly illustrates the value of subjecting agency decision-making to public scrutiny, it is the impact and clean-up of the Atlas Uranium Mill tailings, a waste by-product of uranium mining, on the banks of the Colorado River in Chairman Bishop’s home state of Utah.

The United States’ first commercially operated uranium mill was built on the bank of the Colorado River near Moab, Utah in 1956 and expanded by the Atlas Minerals Corporation beginning in 1961. This facility extracted yellowcake uranium for nuclear bombs and reactors from ores trucked from over 300 mines on the Colorado Plateau.
Without the National Environmental Policy Act (NEPA) and its mandated review process, the mine’s potential impacts on the environment and community health were not made public when the government approved the project, and the public was given no opportunity to weigh in on alternatives or propose mitigation options.
Since then, the slime-like wastes from the mill, laced with radium, uranium, thorium, polonium, ammonia, molybdenum, selenium and nitrates, were slurried into an unlined pond in the floodplain of the river. As the need for a larger waste site grew, contaminated soils were bulldozed up to raise the sides of the tailings impoundment. By 1984, when the mill was finally put on standby, the pile of radioactive wastes had grown to 12 million tons, covering 130 acres to a depth of 110 feet.

The Atlas site is the fifth largest uranium tailings pile in the United States and by far the most dangerously polluted. Today’s discharge of contaminated groundwater into the river is estimated at 110,000 gallons per day.
The removal of the radioactive waste from Moab is expected to take in excess of 10 years to complete. The cost of the relocation was originally estimated to be $300 million, but 2008 Department of Energy estimates are in excess of $720 million. Groundwater treatment will continue for approximately 75 years to the cost of $70 million. Atlas Corporation, the former owner, left behind a painfully underestimated reclamation bond of $4.5 million.

While the mill’s initial approval was not subject to NEPA, thankfully, the decision of what to do with the contamination was. On April 6, 2005, Energy Secretary Spencer Abraham announced that the Final Environmental Impact Statement (FEIS) for the Moab mill site recommended moving the 12 million tons of radioactive waste by train to a new site in Crescent Junction thirty miles north of the Colorado River — finally limiting further damage to the environment and public health.
This victory was made possible through NEPA and the forum it provided for the remarkable outpour of public comments during the draft Environmental Impact Assessment (EIS) stage to be heard. This public involvement included comments from a bipartisan coalition of western Governors from Arizona, California, New Mexico, Nevada and Utah, who together sent a strongly worded letter to the Department of Energy stating that the only solution acceptable to them was the removal of the wastes to a safe location. A bipartisan western congressional coalition, which included members of the House Resources Committee, also participated in the NEPA process by submitting similarly strong letters, as did several major downstream water districts.
The successful use of NEPA in facilitating the Atlas mill cleanup, is a great example, but it is hardly unique. Examples from across the country show that when NEPA is adequately employed, it faithfully protects our health, our homes, our treasured public lands and wildlife and our environment generally.
So why should we care if NEPA is under attack?
We should care what happens to NEPA because our right to be informed of significant impacts to the environment and to our communities is on the line, along with our ability to have a say and hold the government accountable for major federal decisions. In short, we should care because the health and safety of our communities, our air and water, our public lands and wildlife and our environment are on the line. The National Environmental Policy Act may be a law you have never heard of, but it makes a big difference in keeping our communities and our environment safe.

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The Partnership Project's NEPA campaign is a registered 501 (c) (3) non-profit organization.