(CN) — A Montana coal mining company accused environmentalists of manufacturing standing during a Ninth Circuit hearing Monday, arguing the panel should dismiss an underlying challenge to its expanded mine operations in lieu of a remedied environmental analysis from the state and federal government.
The interlocutory appeal led by Westmoreland Rosebud Mining arrives roughly a year after U.S. District Judge Susan P. Watters ordered the Montana Department of Environmental Quality and Office of Surface Mining Reclamation and Enforcement to remedy a deficient environmental analysis concerning Westmoreland’s expansion of its Rosebud Mine in Colstrip, Montana.
The area at issue has produced coal since the 1920s, though the Rosebud Mine specifically has supplied coal to the Colstrip Power Plant since the mid-1970s. Court records indicate the plant — initially expected to close after 30 years — is now the second largest coal plant west of the Mississippi River and “one of the single largest sources of air pollution in the United States," according to five groups' complaint.
Expanding Westmoreland’s mine by 6,500 acres in “Area F” is expected to produce 70.8 million tons of recoverable coal and extend the operational life of the mine by eight years. It is also expected to create over 100 million tons of carbon dioxide emissions over 19 years and billions of dollars in climate change damages, exceeding the value of coal, according to opponents.
In November 2019, the Montana Environmental Information Center joined four other nonprofits in suing the government agencies for approving the expansion in 2018. The groups argued that the agencies’ environmental impact statement failed to disclose the extent of the expansion’s harmful impacts, including those to surface waters, greenhouse gas emissions or the significant water withdrawals from the Yellowstone River that are necessary to burn the mine’s coal.
Moreover, the plaintiffs contend the analysis ignored how coal production would kill the region’s electricity market and several indicators that the power plant would close before the mining operations were extended to end in 2040 — increasing “the likelihood of an unplanned, abrupt and painful end to the coal economy in Colstrip.”
Judge Watters agreed with the groups’ National Environmental Policy Act claims in September 2022 — including those regarding the agencies’ lack of reasonable alternatives — and ordered the federal government to remedy its impact analysis under threat of vacatur. As an intervening defendant, however, Westmoreland argues Watters erred by not dismissing the case for a lack of standing, using a “lesser, clear error standard” to waive its discovery motion and objections to an earlier recommendation from U.S. Magistrate Judge Timothy J. Cavan.
Westmoreland’s objections involved Cavan’s determination that some plaintiffs, but not all, had manufactured standing by traveling far distances to find pollution and claim personal connections to the mining site. Westmoreland attorney Hadassah Reimer of Holland and Hart LLP touched on this argument on appeal, stating that Montana Environmental board member Steve Gilbert provided a declaration that conflicts with a separate, undisclosed case deposition regarding his travel to the mining area in the last 40 years.
Sitting by designation from the U.S. Court of International Trade, Judge Maurice Miller Baker — a Donald Trump appointee — agreed that the court may need to send the case back so that Gilbert can be further deposed for a final decision on standing.
“But we can’t do that if we don’t really have appellate jurisdiction,” said Senior U.S. Circuit Judge Margaret M. McKeown — a Bill Clinton appointee — touching on the judges’ concerns that a remand is unnecessary because the order never vacated the expansion that is currently underway.
But before the panel reaches that issue, Reimer asked the judges to consider whether driving by an activity on private land is in the nature of a generalized grievance, undermining the plaintiffs’ personalized interest in the geographical area.
Plaintiff attorney Shiloh Hernandez of Earthjustice pushed back on Reimer’s point, stating Westmoreland is “confusing the idea between the permit area and the affected area, and this is critical and fatal to their case.”
Hernandez argued the government found that the cumulative effects of the expansion will lead to major impacts on surface and groundwater throughout the Armells Creek Basin, including areas that Gilbert has visited annually for 40 years. The attorney added that by burning 70 million tons of coal at Colstrip’s power plant, the expansion will generate tens of thousands of tons of harmful pollution annually that will be visible within a 186-mile radius.
Citing Friends of Earth Inc. v. Laidlaw Environmental Services Inc., Hernandez also reminded the judges that the U.S. Supreme Court ruled that someone visiting an area 40 miles downstream of a polluter has a reasonable concern that the pollution will affect their enjoyment of that downstream area.
In this appeal, Hernandez said, Westmoreland’s efforts to question the validity of trips to the area with the interest of protecting it doesn’t change standing analyses under case law, which includes Federal Election Commission v. Cruz in 2022.
After a brief rebuttal from Reimer, the judges took the appeal under consideration without indicating how they would rule. U.S. Circuit Judge Ronald M. Gould — another Clinton appointee — rounded out Monday’s panel.
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