A wide-reaching legal effort to use permits issued for oil and gas wells in Wyoming and New Mexico to wage a broader battle against climate change hit a significant roadblock Tuesday when a federal appeals court unanimously ruled against a coalition of conservation groups.
The U.S. Court of Appeals for the D.C. Circuit dismissed the case brought by the Center for Biological Diversity and other environmental organizations that challenged more than 4,000 individual drilling permits across Wyoming's Powder River Basin and New Mexico's Permian Basin.
The groups had argued the permits would contribute to climate change impacts affecting species and habitats spanning from coral reefs in Fiji to polar bears in the Arctic.
“Federal courts really aren't the place to sort of launch and recalibrate broad, public policy disputes,” said Andrew Emrich, a Denver attorney with Holland & Hart who was involved with the litigation. “Those should be brought to the political branches. Courts are really supposed to be used to address individual grievances for specific plaintiffs."
The environmental groups presented declarations from members observing climate-threatened species across vast geographic distances.
Brett Hartl regularly visits Hawaiian islands to observe rare birds threatened by climate-change induced spread of mosquitos that transmit avian malaria.
Robin Silver frequently visits Mount Graham in Arizona to photograph the Mount Graham Red Squirrel, whose remaining habitat faces threats from drought and wildfires exacerbated by climate change.
Steven Amstrup researches polar bears who face potential extinction due to climate change's degradation of their Arctic habitats.
The court acknowledged these declarations "likely suffice to allege the particularized interest in individual species and habitats required for standing," but found the connection between Wyoming and New Mexico drilling permits and these far-flung impacts too tenuous.
Standing Required
The court's decision centered on the legal concept of "standing" — whether the environmental groups could demonstrate those they represent had been specifically harmed by each individual permit.
The three-judge panel found that while the plaintiffs had identified potential harms from oil and gas development, they failed to link those injuries to the specific permits they sought to challenge.
The environmental groups attempted to challenge every permit approved between January 2021 and August 2022 by four Bureau of Land Management field offices.
Their legal theory created what they called "APD Areas.” boundary lines encompassing all challenged permits in each state, and argued their members suffered harm from air pollution, traffic, noise and landscape degradation within these designated regions.
These more localized claims for damages joined the far-flung claims from Fiji and the Arctic, and the appellate judges found all the claims to be unsupported by current law.
"Plaintiffs cannot rely on allegations of the kinds of concrete harms generally associated with oil and gas extraction to challenge permits for oil and gas extraction across thousands of square miles of New Mexico and Wyoming without linking their experience of those harms to the challenged permits," the court wrote.
Environmental Perspective
Jason Rylander, an attorney with the Center for Biological Diversity, said the decision leaves room for future challenges.
"Obviously, we're disappointed by the outcome,” he said. “But it is also a fairly narrow and fact specific decision that lays out multiple avenues for sustainable pleadings in the future.”
Rylander wondered if the case was too ambitious in scope.
"I think it may just be that this case was too big. A smaller subset of wells, with a slightly more precise, description of the geographic nexus of harms, would still be possible to bring in court," he said.
The environmental attorney criticized what he sees as courts' difficulty in grappling with complex, cumulative environmental problems.
"It should not be the case that the bigger a problem is, the more people are affected by it, the fewer remedies are available to address it," Rylander said. "If you want to take the position that no amount matters in the global context of greenhouse gas emissions, I don't know how you ever address that problem through litigation.
"There will always be cases and there will continue to be cases where you will see individual wells in somebody's neighborhood and someone will be able to challenge them directly.”
Industry’s Take
Emrich with Holland & Hart represented Peak Powder River Resources LLC, one of several intervenors in the case, which also included the state of Wyoming and the Petroleum Association of Wyoming.
The Denver-based attorney said the case started out as a push back against the Biden administration’s decision to issue permits in the Powder River Basin.
"I think, according to the complaint, they were basically trying to challenge all of the oil and gas leases that were issued in the first 19 or 20 months of the Biden administration,” said Emrich. “I think it was sort of a shot across the bow to the Biden administration that they were unhappy, probably that they were issuing this many permits.”
Emrich added, “It seemed to me that there was a little bit of a political feel to it, but also clearly an effort to in sort of one lawsuit, stop oil and gas drilling on federal lands."
He noted the practical challenges facing environmental groups attempting such broad programmatic challenges.
“They were trying to use these older environmental laws passed in the ’60s and ’70s to deal with an issue that has sort of gained a lot more prominence over the last couple of decades,” Emrich said.
Legal Precedent
The court noted that environmental plaintiffs in Wyoming provided declarations about specific locations where they experienced oil and gas development harms, including portions of Thunder Basin National Grassland.
Similarly, New Mexico declarants identified impacts at places like Carlsbad Caverns National Park. However, the court found these declarations failed to demonstrate which specific challenged permits would cause or contribute to specific harms at those locations.
The ruling also addresses attempts to establish standing based on global climate change impacts.
The court rejected this approach, noting how based on precedent, the groups lacked “standing on their substantive climate change theory because 'climate change is a harm that is shared by humanity at large,' and a desire to 'prevent an increase in global temperature' is 'too generalized to establish standing' even when plaintiffs have a particularized interest in vulnerable species and ecosystems.”
The Petroleum Association of Wyoming hailed the decision.
"This is a major victory for Wyoming's oil and natural gas industry — not only in securing the 1,000 permits affected in Wyoming but also in setting an important precedent," said PAW President Pete Obermueller. "Future challenges to development must demonstrate actual harm tied to specific projects, not rely on vague or generalized claims — as it should be."
Gov. Mark Gordon, who worked in oil and gas, also chimed in about Tuesday’s ruling.
“It is gratifying to see the Court of Appeals clearly saw through these fabricated arguments,” said Gordon in a statement. “Fringe environmental groups like the Center for Biological Diversity tried a shotgun approach to challenge thousands of legitimate oil and gas leases on Federal land.
“The court saw this veiled attempt to stop oil and gas development through this scattershot approach, one that would have had significant impacts to energy production in Wyoming.”
David Madison can be reached at david@cowboystatedaily.com.
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