Ninth Circuit ends injunction on federal coal leasing

(CN) — A national injunction on federal coal leasing ended Wednesday when a Ninth Circuit panel vacated a federal judge’s order for the U.S. Interior Department to reevaluate a Trump administration’s elimination of Obama-era coal leasing restrictions.

“This is a victory for American-mined energy and we are pleased with the court’s recognition of the need to dismiss this irreparably flawed ruling,” said Rich Nolan, president and CEO of the National Mining Association, in a statement.

The unpublished opinion arrives two weeks after the association joined the states of Wyoming and Montana in challenging a 2022 ruling that reinstituted a nationwide moratorium on new federal coal leasing on public lands. That ruling — handed down by U.S. Chief District Judge Brian Morris — involved two consolidated lawsuits that sought to revive environmental safeguards issued by the Obama administration’s Interior Department Secretary Sally Jewell in 2016.

The Jewell order instructed the U.S. Bureau of Land Management to prepare a new programmatic environmental impact statement to identify and evaluate potential reforms to the federal coal-leasing program in 2016 in response to concerns the program might not be in the public’s best interest and might not provide fair market value to the public for the coal sales.

By early 2017, the bureau completed its scoping process and determined that an updated review was warranted. The federal agency — consistent with its practice during reviews dating back to the 1970s — placed a moratorium on new coal leasing until the review was completed in early 2019.

But shortly after the bureau’s determination, the Trump administration’s newly appointed Interior Department secretary Ryan Zinke overhauled Jewell’s “burdensome” environmental protections and restarted the federal coal leasing program.

This prompted eight environmental groups to sue the federal government, and they were soon joined by the attorneys general for the states of California, Washington, New Mexico and New York, claiming that the final analysis violated several environmental laws and the federal government’s trust obligation to the Northern Cheyenne Tribe in southeast Montana.

Morris found in 2022 that analysis conducted by the bureau in 2020 that determined Zinke’s lift of the moratorium would not change the total levels of greenhouse gas emissions from coal leasing or alter water resources beyond those identified in its prior reviews of four coal leases violated the National Environmental Policy Act and that —pending a sufficient analysis — it would be necessary to reinstate Jewell’s moratorium without mandating the resumption of a programmatic environmental impact statement.

In 2021, however, current Interior Secretary Deb Haaland revoked policies created to implement Zinke’s order. That outcome should have mooted the consolidated lawsuit, association attorney James Auslander told Ninth Circuit judges on Feb. 6.

During the appeal hearing, Auslander argued that the federal court rewrote the Jewell order to convert its environmental review and moratorium from voluntary to mandatory while indefinitely preventing leasing until an acceptable review “passes muster.”

The judge panel ultimately sided with the mining association on Wednesday, reasoning that Haaland revoked the Zinke order and that nothing within the Zinke order is amendable through further review when it is legally nonexistent.

“The district court reasoned that the Haaland order’s failure to reinstate the coal leasing moratorium from the Jewell order meant that ‘the Zinke order still remains in partial effect.’  That is incorrect,” the panel wrote in the unpublished opinion.

The panel included U.S. Circuit Judges Daniel Bress, Ronald Gould and U.S. Senior Circuit Judge Jay Bybee, appointed by former U.S. presidents Donald Trump, George W. Bush and Bill Clinton, respectively.

The judges wrote that while the appellees might dislike that Haaland did not revive Jewell’s moratorium, it does not support the conclusion that Zinke’s order is ongoing. They also noted that any purported injury from a lack of an official moratorium is irrelevant to the lawsuit.

“Any injury that appellees claim to suffer relating to the lack of a formal coal leasing moratorium is not fairly traceable to the defunct Zinke order and cannot be remedied through relief relating to that order, which has been revoked,” the panel added before rendering Morris’ order moot and ending the moratorium.

The panel’s order to vacate was met with solemn responses from environmental groups involved with the underlying lawsuits, including Defenders of Wildlife, the Montana Environmental Information Center and the Northern Cheyenne Tribe.

“The tribe is disappointed in the court’s ruling, but we will fight tirelessly to protect our reservation and its air and waters and the Cheyenne way of life,” said Northern Cheyenne Tribal Administrator William Walksalong in a statement. “Now that the court has ruled that the Trump administration decision to restart coal leasing was revoked, we need the Biden administration to step up and live up to its promises to protect our climate, conduct a long overdue review of the federal coal leasing program and make thoughtful plans for the future of public lands.”

In another statement, Earthjustice attorney Jenny Harbine — who represented the environmental groups on appeal — stated that the “disappointing decision only highlights the need for decisive federal action to end coal leasing and phase out coal mining on federal lands.”

“While this ruling could allow leasing to resume, the Department of the Interior should take immediate steps not just to end new leasing, but also to address the ongoing harm to our climate, health and communities from irresponsible coal mining on federal lands,” Harbine added.

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