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Wyoming Coal Mining Leases Survive Challenge

(CN) - The U.S. government properly offered coal-mining leases on a tract of federal land in the Wyoming Powder River Basin, the D.C. Circuit ruled.

The Wyoming Powder River Basin is the country's largest source of coal. It is an increasingly popular mining area because its coal "contains less fly ash when burned" and can be mined with methods safer than underground mining, the ruling states.

One company that operates a mine in the basin, Antelope Coal, will have exhausted its reserves within the decade if it continues production at previous rates.

In 2006, the same year that it produced 33.9 million tons of coal, Antelope applied with the Bureau of Land Management to lease 4,100 acres of land next to its mine.

After preparing and circulating an environmental impact statement, the bureau split the land into two tracts and offered them for sale through two separate bids in March 2010. Antelope won both.

WildEarth Guardians joined Defenders of Wildlife and the Sierra Club in challenging the bureau's approval of the leases, arguing that the final environmental impact statement was deficient. Another group, the Powder River Basin Resource Council, filed a separate but similar complaint that was later consolidated with the WildEarth complaint. Antelope Coal, Wyoming and the National Mining Association meanwhile intervened as defendants.

A federal judge in Washington granted the government summary judgment, finding that the environmentalists lacked standing on one of their arguments and that their remaining arguments failed on the merits.

The D.C. Circuit disagreed as to standing but nevertheless affirmed dismissal Tuesday.

As to standing, the lower court had said the groups could not establish a sufficient link between their members' interests and how Antelope's mining operations affects global climate change.

"In this respect, we think it [the district court] sliced the salami too thin," Judge Karen LeCraft Henderson wrote for a three-judge panel.

Citing the 2009 ruling Center for Biological Diversity v. U.S. Department of Interior, the court said groups that gain standing by arguing injury to their members' aesthetic and recreational interests also have standing to advance claims alleging more global, widespread injury.

"The appellants' aesthetic injury follows from an inadequate FEIS whether or not the inadequacy concerns the same environmental issue that causes their injury," Henderson wrote, abbreviating final environmental impact statement. "If we vacate the BLM order, their injury will be redressed regardless of whether the FEIS's specific flaw relates to the local or global environmental impacts."

Ultimately, however, their groups' arguments lack merit, according to the ruling.

Among other things, the environmentalists had argued the bureau failed to analyze the cumulative impacts of increased emissions on the Antelope tracts with emissions from 11 other pending coal leases in the Powder River Basin.

Henderson tossed these objections as "of the flyspecking variety."

In studying carbon dioxide emissions, the bureau quantified the emissions contribution of Antelope mine on both state and nationwide levels and estimated additional contributions in the future. Though the bureau did not specifically assess the global impacts of Antelope's additional CO2 emissions, linking projects with specific climatological changes is neither possible nor necessary under the National Environmental Policy Act (NEPA), the ruling states.

The groups also failed to prove that approval of the 11 pending leases was reasonably foreseeable. Since the bureau had completed draft environmental impact surveys for only four of the 11 leases when it issued the FEIS for Antelope's lease, it was not unreasonable for the bureau to exclude these potential projects from its analysis of future actions, Henderson wrote.

There is also no basis to argue that the bureau ignored alternatives because WildEarth submitted a list of such alternatives to the FEIS "at the last minute," the court found.

The bureau responded by referring WildEarth to the alternatives discussed in the FEIS and pointing out that WildEarth could suggest alternatives at the permitting stage. Given the "last-ditch, kitchen-sink nature of WildEarth's suggestions," this response fulfills the bureau's duties under NEPA, Henderson wrote.

Arguments concerning the adequacy of the bureau's analysis of local ozone pollution failed for similar reasons.

Essentially, the environmentalists objected to the bureau's analysis and projection of future nitrous oxide levels to predict future ozone levels rather than analyzing the cumulative impacts to ozone levels separately.

To support their claim, they pointed to a report stating that the ratio of nitrous oxide to ozone was not one-to-one, and an email from a bureau air quality specialist questioning the adequacy of how the FEIS treated ozone.

Henderson pointed out, however, that the same report said controlling nitrous oxide emissions can help control ozone. The specialist also admitted in the email that she was not too familiar with the mining project, and she never explicitly stated that using nitrous oxide models to predict impacts to ozone was inadequate, according to the ruling.

"It may have been possible or even prudent for the BLM to separately model future ozone levels but we think that, given the limitations on such modeling and the critical role NOx [nitrous oxide] plays in ozone formation, the BLM's projections and extensive discussion of NOx and NO2 [ozone] emissions suffice," Henderson wrote.

The panel also rejected the groups' other arguments alleging the inadequacy of the FEIS, but declined to discuss them in the ruling. It said the report complies with NEPA, the Mineral Lease Act and other applicable regulations.

Samantha Ruscavage-Barz represented the environmental groups.

Justice Department attorney J. Daivd Gunter III argued for the government, alongside two senior assistant attorneys general for Wyoming, Michael McGrady and James Kaste.

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