Environmentalists Win a Victory, of Sorts, Over Coal Leases

CHEYENNE, Wyo. (CN) — Environmentalists won a victory of sorts Friday when the 10th Circuit found that the U.S. Bureau of Land Management has “acknowledged that climate change is a scientifically verified reality,” and ordered the BLM to revisit its environmental impact statement on four coal leases in Wyoming’s Powder River Basin — but refused to vacate the leases.

The Powder River Basin in northeastern Wyoming is the country’s largest source of coal, producing 38.5 percent of the nation’s coal in 2008.

Four coal leases which extend the life of two surface mines near Wright, Wyo., and partially intrude on Thunder Basin National Grassland, form the center of the challenge from WildEarth Guardians and the Sierra Club. The mines produce 19.7 percent of U.S. coal, and hold an estimated 2 billion tons of it. Three of the four extension leases already have been sold.

When the BLM prepared a draft environmental impact statement for the leases, it said there would be no appreciable difference in U.S. carbon dioxide emissions whether the coal mines remained in operation or were shut down.

The BLM’s reasoning, 10th Circuit Judge Mary Beck Briscoe wrote for the panel on Friday, was that “even if it did not approve the proposed leases, the same amount of coal would be sourced from elsewhere, and thus there was no difference between the proposed action and the no action alternative in this respect.”

WildEarth Guardians called that assessment by the BLM “at best a gross oversimplification, and at worst entirely impossible.”

It argued that if the tracts were not leased it would be very difficult for domestic or international coal mines to produce so much coal at the same price, which would make other sources of electricity with lower carbon dioxide emissions “more competitive with coal.”

WildEarth Guardians and the Sierra Club said authorization of the leases would have a significant effect on national carbon dioxide emissions, and the BLM failed to adequately compare the alternatives.

After the BLM issued its final environmental impact statement, the leases were sold.

WildEarth Guardians challenged the four Records of Decision and the final environmental impact statement in 2012 in three consolidated federal cases, objecting to the BLM carbon dioxide impact analysis, among other issues, but the district court upheld the BLM actions as reasonable. WildEarth Guardians appealed.

The 10th Circuit panel on Friday found that “BLM’s assumption that there was no real world difference between issuing the Wright area leases and declining to issue them because third party sources of coal would perfectly substitute for any volume lost on the open market should the BLM decline to issue the leases was arbitrary and capricious.”

Beck Briscoe wrote that the BLM’s conclusions were based in part on the U.S. Energy Information Administration’s 2008 Energy Outlook, but that BLM disregarded portions of the Energy Outlook that contradicted its conclusions of no carbon dioxide impact.

Because of these inconsistencies, and others, the 10th Circuit reversed and remanded, ordering that the BLM revise its environmental impact statement and Records of Decision. But because the carbon dioxide impact is a “fairly narrow issue, the district court may vacate the entire FEIS [final environmental impact statement] and RODs, or it might fashion some narrower form of injunctive relief based on equitable arguments.” Because there remains a question of whether the leases should be addressed individually or collectively, the panel declined to vacate the leases that already have been sold.

Senior 10th Circuit Judge Bobby Baldock wrote in a partial concurrence: “Because the question before us is an economic one, and because in resolving that question we dispose of this appeal, I see no need to comment on matters of climate science … . The assertion that climate science is settled science is, in my view, both unnecessary to this appeal and questionable as a factual matter. Such an assertion is not necessary to this appeal because there is no disputed issue of climate science before us and thus no question of climate science we must decide whether to defer to the BLM on.”

Baldock concluded: “In commenting on the merits of climate science, I fear the Court suggests we have adjudicated the BLM’s concession about climate change as a dispositive matter, when the validity of such concession was never before us on this appeal. The oft-cited axiom that we decide only the matters before us counsels us to be more prudent with our choice of commentary. See, e.g., Johnson v. United States, 559 U.S. 133, 144 (2010) (‘The issue is not before us, so we do not decide it.’) Accordingly, I concur with the Court’s analysis of the BLM’s economic assumption and disposition of this appeal on that basis, without joining its conclusion about climate science.”

Tenth Circuit Judge Monroe McKay rounded out the panel.

Respondents/intervenors in the case were the Wyoming Mining Association, BTU Western Resources Inc., the State of Wyoming and the National Mining Association.

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