By: Esther Jamison
The threat posed by fracking to the archeological ruins of Chaco Canyon has garnered international attention and nationwide advocacy, resulting in a protective ten-mile buffer zone between fracking activities and the National Heritage Site. Equally deserving of protection, Navajo Nation Council Delegate Daniel Tso gently chides, is the living culture: the Navajo people themselves. Tso is the Council Delegate for the easternmost part of the Navajo Nation, which includes Counselor, NM. He has been conducting what he calls “Fracking Reality Tours” from the Counselor Chapter House for over six years now. The tours give outsiders a small window into the lives of those who live next to fracking operations yet reap little or none of their benefits. Far away from the Navajo Nation’s governmental headquarters in Window Rock, Ariz., Tso feels that sometimes he has to leverage the help of outsiders to gain the attention from his government that such issues warrant.
Tso begins his tour at the Counselor Chapter House with a lecture on the history and leasing practices of the oil and gas industry on the Navajo Nation, and is joined by Samuel Sage, Counselor Chapter Administrator. Tso tells us that many elderly Navajo believed they were signing merely an exploratory agreement for a traditional kind of oil well. While the word “exploratory” may be a term of art in the oil and gas industry, its plain meaning connotes something less than full-scale production. Few Navajo lessors anticipated the level of production they unwittingly permitted, or the invasive techniques of horizontal drilling that modern fracking uses. Many were signed by elders who did not read or write English, who were given leases six pages long with language that was not translated or explained. Tso asserts that lessors had no legal counsel.
According to the Western Landowners Alliance, “[m]ost initial offers to lease by oil companies are of a ‘low ball’ nature with room for negotiation, and contain many onerous terms to the landowner.” The Alliance counsels against the acceptance of “fast money,” which “could result in disastrous consequences for the mineral owner.” They recommend the assistance of specialized oil and gas lawyers, who can recognize and help landowners avoid oil and gas leases such as the “Producer’s 88” form, which is usually “typed in a miniscule and essentially unreadable font” and are “usually drafted much more in favor of the oil company and against the mineral owner.” Oil and gas-authored mineral leases often require riders or addenda to balance out the one-sided nature of the agreement.
Tso tells us that in order to lease a property’s mineral rights, a lessee need only secure the signatures of a majority of the property’s title holders, and this circumstance often bitterly divides families. He shares his personal story of how his siblings sold the mineral lease for their property against his wishes. When a lease is granted, all title-holders benefit, whether they sign the lease or not, and Tso is no exception. At first, he received monthly checks of $500; now, as the wells slowly become less productive, the payment has been reduced to about $100 a month. Tso claims that his family’s land has been degraded environmentally, in some ways permanently, and he says that the oil company’s payments simply cannot compensate for the damage done.
He acknowledges that some Navajo have been lifted out of poverty by royalties and bonuses from their leases with companies such as Enduring Resources, LLC. They now have nice houses and cars and can leave money to their children and grandchildren. But others were left behind, having granted leases they didn’t understand which paid royalties far lower than they expected. Many tribal members who refused to grant leases live in desperate poverty and still suffer the negative health impacts of wells and fracking operations on their neighbors’ lands.
Furthermore, the oil and gas industry leases a significant amount of Bureau of Land Management (BLM) land within the “checkerboard” area of the reservation, increasing the burden of residents who already tolerate pollution from resource extraction on private land. Particularly in the Greater Chaco area and the eastern part of the Navajo Nation, BLM land is interspersed with tribal lands—a legacy of the 1887 Dawes Act. The Bureau’s 2014 estimation that “more than 91 percent of the available land is leased for oil and gas drilling” in the Greater Chaco area is confirmed by Daniel Tso, who claims that now, almost all available BLM-managed land within the Navajo reservation boundaries has been leased to oil and gas.
According to Kyle Tisdel of the Western Environmental Law Center, the “BLM has been approving drilling and fracking permits for years without ever having considered the cumulative impacts to people and the environment.”In 2015, Diné Citizens Against Ruining Our Environment, along with other environment protection groups, filed suit to request an injunction to halt the BLM’s issuance of drilling permits. In May 2019, the Tenth Circuit reversed the approval of 25 drilling permits, but the BLM still continues to issue permits. The BLM considers denying permits to leaseholders a “violation of property rights” and continues to permit thousands of new wells on a case-by-case basis.
Tso tells us that the New Mexico Environmental Department often grants exemptions to Environmental Protection Agency (EPA) restrictions on the amount of methane that can be vented by new fracking sites. New Mexico Democratic state representative Angelica Rubio “characterizes the government’s methane-regulation meetings as packed with gas industry supporters, while officials are ‘tiptoeing around the methane emissions.’”
Under the Trump administration, however, EPA oversight has been reduced so severely that no state-level exemptions are even necessary because federal restrictions on leaking methane essentially no longer exist. In 2017, the Trump administration put a two-year stay on Obama-era regulations that imposed fines on oil and gas operations producing more than 350,000 metric tons of “fugitive methane” (leaks) per year. After an Executive Order from Trump in August 2019, the EPA proposed rescinding fugitive methane emissions limits altogether. A 2018 study in Science Magazine found that 2.3 percent of methane extracted from the ground through drilling and fracking in the United States leaks into the atmosphere, a figure 60 percent higher than the EPA’s estimate, and significantly higher than targets set by the oil and gas companies for themselves.
In 2014, scientists working on a NASA study discovered a 2,500-square-mile cloud of methane hovering over the Four Corners region of New Mexico, the largest concentration of methane anywhere in the nation. Three years later, a study in the journal Environmental Science and Technology confirmed that the oil and gas extracting industry around Four Corners was responsible for the large volume of methane.
Health problems caused by methane emissions from fracking operations are now well-documented.Scientists have found a causal connection between fracking and “preterm births, high-risk pregnancies, asthma, migraine headaches, fatigue, nasal and sinus symptoms, and skin disorders.” The Oxford Research Encyclopedia of Global Public Health conducted a preliminary epidemiological study outlining the many different ways in which potentially long-term community and individual health impacts result from oil and gas extraction, especially fracking. Additionally, Tso and Sage believe the air and water pollution that comes with fracking has been responsible for elevated cancer rates on the Navajo Nation. Despite their awareness-raising work on the health impact of fracking, there has been no state- or federally-backed health impact study on the Navajo Nation. It has been left to the Counselor Chapter to study and publish its own health impact study.
In addition to the environmental and health impacts caused by methane emissions, the heavy traffic associated with fracking has taken a substantial toll on dirt roads that were never designed for such use. The consequences of road erosion and hazards have real-life consequences for Navajo residents who rely on those roads for daily transport. Tso described people whose cars were damaged by debris on the roads left by fracking trucks, and whose access to their home was impeded by impassable stretches of road that had been rutted out in the rainy season.
Oil and gas companies, Tso asserts, develop infrastructure for their own drilling and fracking operations—such as building roads and creating man-made lakes to hold water needed for fracking—which permanently alters what used to be communal land, sometimes in areas that Navajos hold sacred. And yet, no money is ear-marked for the development of civic and community infrastructure in towns and communities affected by these processes within the Nation. The State of New Mexico does not stipulate the need for oil and gas companies to contribute to civic infrastructure in the communities where they operate. Daniel Tso and the Counselor Chapter opposed H.B. 2181—the Chaco Cultural Heritage Area Protection Act of 2019—precisely because it failed to stipulate benefits such as providing running water and electricity to homes in the area.
About 40% of residents on the Navajo Nation do not have running water, and approximately 1/3 residents of the Navajo Nation live without electricity. Efforts to bring electricity to residents of the Navajo Nation have not come from the oil and gas industry, but from volunteers and nonprofits. 
As heavily dependent as New Mexico is on tax revenue from the oil and gas industry, it is easy to see why Tso and many Navajos feel that their land and health has been sacrificed so that others may thrive: he says, “next time you see a nice street in Rio Rancho, Cuba, Albuquerque, or Taos…remember where that money came from—it came from here.”
Last year, scientists working within the Environmental Protection Agency under President Trump acknowledged that “non-Whites tend to be burdened disproportionately to Whites” when it comes to breathing polluted air.Although Delegate Tso did not use the phrase “environmental racism,” the disproportionate burden that fracking places on residents of the Navajo Nation inevitably brings it to mind.
Esther Jamison is a second-year law student at the University of New Mexico and is on the staff of the Tribal Law Journal.
 Dan C. Perry, A Primer on Oil and Gas Leases and Surface Use Agreements for Members of the Western Landowners Alliance 2 (Western Landowner Alliance, 2017), https://westernlandowners.org/wp-content/uploads/2017/09/Oil-and-Gas-Guide.pdf.
 John B. McFarland, Checklist for Negotiating an Oil and Gas Lease 4-5, Oil and Gas Lawyers Blog (Dec. 14, 2017), https://www.oilandgaslawyerblog.com/files/2017/12/Checklist-for-Negotiating-an-Oil-and-Gas-Lease.pdf.
 Kendra Milligan, Touring the fracking wells at Chaco Canyon, N.M. Political Report (Sept. 26, 2019), https://nmpoliticalreport.com/2019/09/26/touring-the-fracking-wells-at-chaco-canyon/. Milligan also attended the tour and wrote about it.
 See Chaco Cultural Heritage Withdrawal Area Map, BLM New Mexico State Office Geospatial Support Team (May 14, 2018), https://www.tomudall.senate.gov/imo/media/doc/ChacoCulturealHeritageWithdrawalArea_Map_5_14_18_Surface.pdf.
 Protecting Chaco Canyon From Fracking, Greater Chaco region wins reprieve from fracking, W. Envtl. Law Ctr. (May 7, 2019), https://westernlaw.org/greater-chaco-region-wins-reprieve-fracking/.
 Id. (citing Diné Citizens Against Ruining Our Env’t v. Bernhardt, 923 F.3d 831 (10th Cir. 2019)).
 Jonathan Thompson, Court Throws Book at BLM over Fracking Chaco, High Country News (June 3, 2019), https://www.hcn.org/articles/water-court-throws-book-at-blm-over-fracking-chaco.
 Jonathan Thompson, Resistance to drilling grows on the Navajo Nation, High Country News (Mar. 2, 2018), https://www.hcn.org/issues/50.4/tribal-affairs-resistance-to-drilling-grows-on-the-navajo-nation.
 Tim Vanderpool, New Mexico Has a Methane Cloud Visible by Satellite. It Also Has Bold Climate Plans, Nat. Res. Def. Council (Oct. 2, 2019), https://www.nrdc.org/stories/new-mexico-has-methane-cloud-visible-satellite-it-also-has-bold-climate-plans.
 Ned Harvey, Penny-Wise and Pound-Foolish: The Problem with the EPA’s Proposed Changes to Current Methane Regulations, Rocky Mountain Inst. (Dec. 3, 2018), https://rmi.org/epas-proposed-changes-to-methane-regulations.
 U.S. Environment Protection Agency, EPA Proposes Updates to Air Regulations for Oil and Gas to Remove Redundant Requirements and Reduce Burden, U.S. Envtl. Prot. Agency (Aug. 29, 2019),
 Ramón A. Alvarez, et al, Assessment of methane emissions from the U.S. oil and gas supply chain, Sci. Magazine (July 13, 2018), https://science.sciencemag.org/content/361/6398/186.
 See Harvey, supra note 14. The Oil & Gas Climate Initiative, a coalition of 13 international oil and gas companies, set a target for its members of 0.37 percent.
 See Renee McVay et al., Oil and Gas Methane Emissions in New Mexico 4-5, Envtl. Def. Fund, https://www.edf.org/sites/default/files/new-mexico-methane-analysis.pdf.
 Mackenzie L. Smith, et al., Airborne Quantification of Methane Emissions over the Four Corners Region, Am. Chem. Soc’y (Apr. 18, 2017),https://pubs.acs.org/doi/abs/10.1021/acs.est.6b06107.
 See, e.g., Kristina Marusic, After a decade of research, here’s what scientists know about the health impacts of fracking, Envtl. Health News(Apr. 15, 2019), https://www.ehn.org/health-impacts-of-fracking-2634432607.html; Irena Gorski and Brian S. Schwartz, Environmental Health Concerns From Unconventional Natural Gas Development, Oxford Research Encyclopedias (Feb. 2019), https://oxfordre.com/publichealth/view/10.1093/acrefore/9780190632366.001.0001/acrefore-9780190632366-e-44?print=pdf.
 See Irena Gorski and Brian S. Schwartz, Fig. 4 at 12, supra note 21.
 Counselor Health Impact Assessment Committee, Health Impact Reports Summary Oil & Gas Well Exposure: 2015 – 2017, Counselor Chapter, New Mexico, New Mexico Legislature (Oct. 04, 2017), https://nmlegis.gov/handouts/IAC%20100417%20Item%208%20Drilling%20on%20and%20Near%20Sacred%20Sites%203.pdf.
 Navajo Water Project, About the Project (2019), https://www.navajowaterproject.org/project-specifics.
 Associated Press, After Years in the Dark, Navajo Nation Homes Get Electricity, N.Y. Post (May 20, 2019), https://nypost.com/2019/05/20/after-years-in-the-dark-navajo-nation-homes-get-electricity.
 See, e.g., American Public Power Association, Light Up Navajo II, Am. Pub. Power Ass’n, https://www.publicpower.org/LightUpNavajo. In spring 2019, volunteer crews helped run electricity to homes through the Light Up Navajo Project, a partnership between the American Public Power Association and the Navajo Tribal Utility Authority.
 In 2018, taxes from the oil and gas industry amounted to $2.2 billion—around a third—of the state’s budget. See Ron Davis, State Breaks Oil and Gas Revenue Record in FY 2018, Albuquerque Bus. First (Feb. 13 2019), https://www.bizjournals.com/albuquerque/news/2019/02/13/state-breaks-oil-and-gas-revenue-record-in-fy-2018.html.
 Vann R. Newkirk II, Trump’s EPA Concludes Environmental Racism Is Real, The Atlantic (Feb. 28, 2019),
https://www.theatlantic.com/politics/archive/2018/02/the-trump-administration-finds-that-environmental-racism-is-real/554315/ (referencing Ihab Mikati, et al., Disparities in Distribution of Particulate Matter Emission Sources by Race and Poverty Status, Am. J. Pub. Health 108(4), 480-485 (2018), https://www.ncbi.nlm.nih.gov/pubmed/29470121)).