Sunset Roadless Area Remanded to Study Impact On Resources

A group of environmental organizations sought to protect public lands and the environment by seeking judicial review of a decision by the Dept. of Interior's (DOI) Office of Surface Mining Reclamation and Enforcement (OSMRE). The decision recommended the approval of a mining plan that authorizes the mining of federally owned coal on public lands by Mountain Coal Company (MCC). The plaintiffs, WildEarth Guardians, High Country Conservation, The Center for Biological Diversity, and the Sierra Club, argued the decision must be set aside because it did not comply with the National Environmental Policy Act (NEPA).

National Environmental Policy Act Impact

NEPA requires federal agencies to assess the environmental effects of their proposed actions before making major decisions. Title I of NEPA contains a policy that requires the federal government to use all practicable means where man and nature can exist in productive harmony. Federal agencies do this by preparing Environmental Impact Statements (EIS) to evaluate the potential impacts the agency’s proposed action may have on the environment. An EIS is supposed to explore all reasonable alternatives to a proposed federal action. Reasonable alternatives are options “bounded by some notion of feasibility.” Alternatives that are too “remote, speculative, impractical, or ineffective” do not need to be considered.

Mineral Leasing Act and Surface Mining Reclamation

The Mineral Leasing Act (MLA) authorizes the DOI Secretary  to lease federal coal resources for mining operations. However, the operator is required to submit a plan for the Secretary’s approval if such operations “might cause significant disturbance of the environment.” The OSMRE prepares and submits a decision to the Secretary recommending its approval or disapproval of the mining plan. OSMRE is required to base its recommendation on information prepared for NEPA compliance, and recommendations of federal agencies and the public.

Mine Location and Plan

The West Elk coal mine, near Paonia, Colorado,  is an underground mine located beneath public lands managed by the United States . Forest Service (USFS). The mine sits adjacent to the Sunset roadless Area, bordering a federally protected wilderness area. The area sits within the Gunnison National Forest, containing 5,800 acres of undeveloped forest and scrub land. The mine first began operating in 1981. Coal operation activities began in 2018. A new mining plan would expand Mountain Coal Company (MCC), a subsidiary of Arch Coal, into the Sunset Roadless Area. The plan would build 8.4 miles of new roads and install 43 methane drainage wells that would release an estimated 11.91 million tons of methane.

Legislative History

The USFS and Bureau of Land Management (BLM) issued NEPA decisions in 2012 and 2013 allowing MCC to expand the West Elk Mine. The expansion was challenged in 2014 in High Country Conservation Advocates v. United States Forest Serv., 67 F. Supp. 3d 1262 (D. Colo. 2014), where the United States District Court for the District of Colorado concluded MCC violated NEPA by not taking into account the environmental costs in the cost/benefit analysis. The Court vacated the exploration plan and MCC was enjoined from its proposed expansion. In 2017, the BLM and USFS reinstated the coal mine exception to the Colorado Roadless Rule and began proceedings to lease part of the Sunset roadless area to MCC once again. A Supplemental and Final Environmental Impact Statement (SFEIS) was issued to comply with NEPA.

Environmental advocacy groups challenged the plan in High Country Conservation Advocates v. United States Forest Serv., 333 F. Supp. 3d 1107 (D. Colo. 2018) but were unsuccessful. Mining was scheduled to begin at the beginning of 2020 when WildEarth Guardians sought judicial review of the decision by the OSMRE in the present case.  Oral arguments were made in October 2019, and the U.S. District Court delivered its decision a month later.

Climate Change Impacts

The United States District Court for Colorado found that the environmental conservation groups waived their argument regarding the cumulative impact of the mining expansion on climate change. The Court relied on the holding from Forest Guardians v. U.S. Forest Serv., 641 F.3d 423, 430 (10th Cir. 2011), that “plaintiffs must exhaust available administrative remedies before the USFS prior to bringing their grievances to federal court.” Claims that were not before an agency are waived, unless the claims are ‘obvious.’ The environmental groups did not present the argument of the mining expansion’s impact on climate change during the leasing stage administrative process. This allowed the agency to “reasonably conclude” the new information did not significantly alter the analysis. The court stated the SFEIS sufficiently weighed the threat of federal coal program on climate. It added, “neither I nor conservation groups can substitute our judgment for the agencies.’” It found the agency did not act arbitrarily with respect to the expansion’s impact on climate change.

Impact on Water and Fish

The Court concluded the agencies violated NEPA by failing to conduct additional studies on perennial streams findings in the SFEIS. The SFEIS contained contradicting statements. The impact statement indicated that “two short perennial stream reaches exists within the modification area.” Its analysis however relied on the statement that “there are no known perennial springs in the lease modification area” in the SFEIS. The use of information favorable to mining expansion was also shown in the SFEIS. It stated the impact on local fish species is not expected “due to lack of perennial water.” The SFEIS also failed to include valuable information from the NEPA Adequacy Review Form (NARF) as well. Unlike the SFEIS, OSMRE included information from the 2016 Annual Hydrology Report and stated in the NARF  that perennial streams existed and would be affected by the mine expansion.

U.S. District Court Holding

The mining plan record of decision (ROD) was remanded by the Court for further consideration of the methane flaring alternative and its potential impact on the water and fish resources. The other agency actions were vacated, and the defendants were enjoined from proceeding with the mining plan.

Mining expansion may have brought more jobs to Colorado. However, some locals feared that it would have done so at the cost of the surrounding environment and contributing further to the problem of climate change. If you would like more information on this case, contact Whitcomb Selinsky PC.

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