BLM’s Flat Canyon Mistake

When will the federal agencies throwing life lines to the coal industry get a sense of urgency?

WildEarth Guardians announced last week that they’re headed to court to stop a lease sale of coal underlying the Manti-La Sal National Forest in Utah.  A lot of coal.  Estimates have long put the “recoverable” coal in this prospect north of 42M tons.  The problem is that the Bureau of Land Management, which administers such sales for the Forest Service, took this decision on the basis of a 13 year-old EIS—which itself had been tiered to a 29 year-old EIS—and paid zero attention to the present-day context of deciding whether mining said coal is even worthwhile.  BLM:

The Flat Canyon Coal Tract . . . will be offered for lease to the qualified high bidder of the highest cash amount.  The high bid must meet or exceed the BLM’s fair market value estimate for the tract; the minimum bid for the tract is $100 per acre.  This coal lease sale is being held in response to a lease by application submitted to the BLM by Canyon Fuel Company, LLC, on March 18, 1998.

The Final EIS on this lease was prepared in 2002, four years after Canyon Fuel’s inquiry. In announcing the availability of the 2002 FEIS, BLM noted these origins of its decision.

The FEIS specifically addresses the consequences of implementing four alternatives, including the Proposed Action and “No Action” Alternative that involves taking no further action to evaluate or offer the tract for leasing. The analysis was initiated by the agencies in response to an application to lease the Flat Canyon Tract by Canyon Fuel Company, LLC, submitted to the BLM, Utah State Office on March 18, 1998.

For some sense of perspective on just how economically dated BLM’s analysis has become, “Canyon Fuel Company,” the Arch Coal subsidiary that first pressed the matter, was long ago sold off to Bowie Resource Partners, a Kentucky-based coal supplier.  Coal prices have continued to slide ever since.  Bowie recently announced it was scaling back operations at its other mines in Colorado and Utah given the coal market’s continuing decline and late cessation of its deal with the Tennessee Valley Authority.

Indeed, demand for coal is so slack that this mine, 1,700 feet below Manti-La Sal, is intended to supply others abroad.  The Salt Lake Tribune reported earlier this year that the State and four southern counties were putting $50M into a port upgrade in Oakland, California!

And then there’s Utah’s emergence within the recreation economy of the region as a—some say the—keystone state.  Federal land managers may be facing renewed rumblings from state officials to “turn over” their lands to state control (rumblings that are without legal merit, as this analysis from the University of Utah’s law school makes clear).  But only a twisted analyst would respond to such pressure by preferring a future of coal mining over one of catering to high-dollar recreationists as superior economic development.

Alternative Thinking: Why CEQ’s Proposed Guidance Would Fail in Flat Canyon, too

Ultimately, WildEarth Guardians’ lawsuit raises a question of priorities.  Even under recent guidance proposed by the Council on Environmental Quality on the consideration of greenhouse gas emissions in EISs, the Flat Canyon leasing decision would probably have come out the same.  While this lease probably trips the immense GHG volume threshold CEQ set, an EIS in this case which simply added the tonnage of GHGs to be emitted and talked up the risks of global climate disruption would most likely have changed nothing.

The incremental addition of those GHG emissions to projected future emissions globally and the marginal difference(s) they might make would be imponderables to any BLM “responsible official.”  In short, so long as the duty to put GHGs into the decisional calculus stems from NEPA § 102(2)(C), the analysis will remain one of cause-to-effect and the causal “significance” of the relevant emissions will either be relatively minor, unknown, or both.  This kind of thinking about the marginal additions GHG emissions made by any given project, plan, or program necessarily renders those effects of infinitesimal significance.  They become functionally irrelevant, in other words.

It wasn’t always thus and it still might be otherwise.  Before CEQ’s 1978 rules, several courts had noticed that NEPA § 102(2) includes a duty to develop and consider “alternatives” even in the absence of any “detailed statement” required by § 102(2)(C).  Here’s the text in full:

[A]ll agencies of the Federal Government shall . . . study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.

42 U.S.C. § 4332(2)(E).  In short, it has nothing to do with any single proposal’s likely “impact” in the environment.  This is about “courses of action.”

Why did those 1970s decisions fail to launch this completely separate, independent duty in NEPA § 102 from within the CEQ’s 1978 rules (which have since become the authoritative construction of Section 102)?

In Trinity Episcopal Sch. Corp. v. Romney, 523 F.2d 88, 93 (2d Cir. 1975), EDF v. Corps of Eng’rs., 492 F.2d 1123, 1135 (5th Cir. 1974), and EDF v. Corps of Eng’rs., 470 F.2d 289, 296 (8th Cir. 1972), the courts concluded that the duty was distinct from the ‘detailed statement’ duty of § 102(2)(C).  But they never really hashed out what the duty is, exactly.

Even after CEQ’s 1978 rules were adopted, the court in Aertsen v. Landrieu, 637 F.2d 12 (1st Cir.1980), weighed an argument under § 102(2)(E) apart from the detailed statement requirement.  That court held that while the “obligation extends only to a proposal that has a certain magnitude,” id. at 20 (for the results could be absurd if it didn’t), the provision’s notion of “resources” was that of the environment more generally and the trade-offs its governance inevitably entails.  Id. at 20 & n.11.

All of this stands to reason.  The alternatives requirement in present-day § 102(2)(E) attends any “course[] of action” involving unresolved conflicts about what society should do.  This is subtly but critically different from the composition and circulation of a detailed statement on the trade-offs involved in some discrete project, plan, or program.  But what to make of the “alternatives development” notion?

Unresolved Conflicts? Available Resources?

What are these “unresolved conflicts” and the “alternative uses of available resources” to which the provision points?  As we’ve argued here before (and to CEQ in comments on their proposed guidance), this provision may be uniquely fit to the problem of GHGs and continued fossil fuel development.  For if the atmosphere’s “sink services,” rightly understood, are a resource, then their finitude is becoming clearer and clearer.  {As this Perspectives piece in Science shows, continuing business-as-usual right now as fossil fuel prices everywhere keep sinking, only serves to lock in with infrastructural investments what we could be avoiding at relatively low cost.} Manti La Sal

Indeed, if this part of the Manti-La Sal National Forest is a resource, then its development as a coal mine rather than its continued “development” as a cyclist’s, camper’s, trekker’s, and climbers’ paradise is a choice—and not a particularly wise choice, either.  Hipcamp gave Flat Canyon camping area a “great,” a mark underscoring what a “resource” southern Utah business boosters already have.

Any court hearing this case will do well to remember the earliest SCOTUS admonition on NEPA’s notion of alternatives. That analysis, often overlooked, is as follows:

[A]s should be obvious even upon a moment’s reflection, the term “alternatives” is not self-defining. . . . [T]he concept of “alternatives” is an evolving one, requiring the agency to explore more or fewer alternatives as they become better known and understood.

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 551-53 (1978).

The subsidies that have long flowed to big coal shouldn’t be continued in an unthinking fashion.    And we can’t keep putting off the hard questions about “unresolved conflicts” over the use of the atmosphere’s sinking services where GHGs are concerned.   For the BLM, all of this may soon come to a head in Flat Canyon.

{Image: Electric Lake in Manti-La Sal National Forest, copyright Spoiler_3 on Flickr}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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