Sunset Roadless Area Remanded to Study Impact on Water and Fish Resources

Sunset Roadless Area Remanded to Study Impact on Water and Fish Resources February 24, 2020
Environmental law

U.S. District Court Remands Case Challenging Environmental Impact Statement

A group of environmental organizations sought to protect public lands and the environment by seeking judicial review of a decision by the Department of the Interior, Office of Surface Mining Reclamation and Enforcement (“OSM”). The OSM decision recommended 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, argue the decision must be set aside because it did not comply with the National Environmental Policy Act (“NEPA”).

NEPA

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 to ensure that humans and nature can exist in productive harmony. Federal agencies do so by preparing Environmental Impact Statements (“EIS”) and evaluating the potential impacts the agency’s proposed action may have on the environment, The EIS explores all reasonable alternatives to a proposed action. Reasonable alternatives are options “bounded by some notion of feasibility.” Departments and agencies are not required to consider alternatives that are too “remote, speculative, impractical, or ineffective.”

Mineral Leasing Act (“MLA”) and Surface Mining Reclamation

The MLA allows the Secretary of the Interior 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.” Following consideration of the EIS and other relevant information, the Office of Surface Mining Reclamation and Enforcement (“OSM”) prepares and submits a decision to the Secretary of the Interior, recommending approval or disapproval of the mining plan. OSM 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 is an underground mine located beneath public lands managed by the Forest Service. The mine sits adjacent to the Sunset Roadless 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”) operations 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 United States Forest Service (“USFS”) and Bureau of Land Management (“BLM”) issued 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 Court concluded MCC violated NEPA for not considering 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 OSM in the present case. The court heard oral arguments in October 2019, and the U.S. District Court delivered its decision a month later.

The Court’s Decision: Impacts on Climate Change

The United States District Court found that the environmental conservation groups waived their argument regarding the cumulative impact of the mining expansion on climate change. The case, Forest Guardians v. U.S. Forest Serv., 641 F.3d 423, 430 (10th Cir. 2011), indicated, “plaintiffs must exhaust available administrative remedies before the USFS prior to bringing their grievances to federal court.” Claims that are 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 in the leasing stage. 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.

The Court’s Decision: Impact on Water and Fish

The Court concluded that the agencies violated NEPA by failing to conduct additional studies on perennial streams. The SFEIS contained contradicting statements in this regard. The impact statement said that “two short perennial stream reaches exist within the modification area.” The agencies’ analysis, however, relied on the SFEIS statement that “there are no known perennial springs in the lease modification area.” The SFEIS included, without limitation, information favorable to mining expansion. The SFEIS said that there was no expected impact on local fish “due to lack of perennial water.” The court found that the SFEIS failed to include valuable information from the NEPA Adequacy Review Form (“NARF”). Unlike the SFEIS, the NARF included information from the 2016 Annual Hydrology Report and stated that perennial streams did exist and would be affected by the mine expansion.

U.S. District Court Holding

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

Mining expansion could have brought more jobs to Colorado. However it would have done so at the cost of the surrounding environment and would have contributed to the problem of climate change. If your business has an environmental issue that it needs to resolve, we recommend that you contact Whitcomb, Selinsky PC and speak with one of our attorneys.

Tags: environmental law