Jobs v. Wilderness? NEPA’s Role in Enforcing (Other) Environmental Laws

The Montanore mine was a done deal. The hiring had started. Then a federal district judge dug into the environmental impact statement and found the parties involved all too eager to ignore its serious environmental risks.

The proposed Montanore mine in northwest Montana is a combined copper/silver behemoth, aimed at extracting some 12½ thousand tons of ore per day—virtually all of it from beneath the Cabinet Mountains Wilderness (CMW). This sort of mining is a dirty affair and the tailings and other wastes are a major concern in this project. (See this National Geographic piece on the legacy of hard rock mining in the West.) Equally troubling was how much water the operation would need.  This post describes and situates U.S. District Judge D.W. Molloy’s remand of the decisions back to the federal agencies in charge and takes stock of NEPA’s (vital) role in the case.

Mining in a Wilderness Area: Do it Laterally

The proposed mining operations are ostensibly to be footed immediately adjacent to the CMW—a 35-mile long range of glaciated peaks and valleys with two main ridges trending north and south and one of the original wilderness designations of 1964. Montanore will follow the ore deposit underground to areas well inside CMW’s proclamation boundary.

The US Forest Service administers the CMW as part of its Kootenai National Forest and USFS rules strictly control operations of the sort—backed up like it is to a statutorily protected area.  See 36 C.F.R. § 228.15(b) (requiring minimization of any impairment for future use and enjoyment as wilderness).

Animas River, Following Gold King spill

This underground trajectory’s a sure thing because, when it last shut down in 1994 thanks to low copper and silver prices, the mining operations had already tunneled right through the Cabinet Mountains in pursuit of ore! {See this story in The Western News.}

All the same, it was the water needed for a mine this large that became the focus of litigation challenging USFS, the Bonneville Power Administration, the Montana Dept. of Envtl. Quality (MDEQ), and the Army Corps of Engineers in their permitting decisions for new mining. To run a mine like this, substantial water withdrawals are typically permitted from local surface waters. And, as the nation learned most recently in the 2015 Gold King Mine disaster, process water and mine drainage tends to hang around—until it doesn’t!

The plaintiffs maintained that the withdrawals would cause a violation of Montana’s water quality standards—standards required by and backed up with the force of the federal Clean Water Act (CWA). The “anti-degradation” standard in those rules requires that “existing uses” of waters like the relevant reaches of the Bull River, Libby Creek, and others “and the level of water quality necessary to protect those uses must be maintained and protected.”  Mont. Code Ann. § 75-5-303.  This means Montana law, and also federal law, allowed essentially no added sediments to the water and no more than a 1° max increase above natural temperatures.  See Admin. R. Mont. 17.30.623(2)(e).  It also prohibited altering stream flows by more than 10% based on a seven-day, ten-year low flow (known as a “7Q10”). Id. at 17.30.715(3).

Of course, it defies all reason and the record facts about hard rock mining of this scale to predict that Montanore and its aftermath wouldn’t do any of those things to the surrounding surface waters. Indeed, no one did say that, exactly.  What MDEQ said was that the first “evaluation” phase of mining to determine how and where to commence “operational” mining probably wouldn’t cause a violation of the water quality standards. Of course, MDEQ also did some 7Q10 modeling of the likely effects of the operational phases and found that water quality standard violations might well occur. Perhaps that’s why they expressly withheld their approval of the operational phase.

Nonetheless and inexplicably, USFS, Bonneville Power and the Army Corps were only too happy to take MDEQ’s evaluation phase conclusions as a warrant for granting their own permissions, rolling everything up into one omnibus environmental impact statement (EIS) and employing an all-too-familiar ‘salami-slicing’ approach to impact assessment in multi-phase, extractive projects like this one.

Phased Approaches to Massive Extractive Projects—A Common Route Around NEPA’s “Hard Look”

This is a difficult problem and it has been treated by many courts before, most especially by the Ninth Circuit (which includes Montana). NEPA agencies are, under the CEQ’s 1978 rules, permitted to defer their analyses of later phases or steps in a project—which can make sense, especially given the propensity such projects have to shift in shape or scope as market realities change—so long as the discretion to terminate or amend those later phases or steps is preserved.  See, e.g., Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1304-06 (9th Cir. 2003); Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1115-19 (9th Cir. 2000); Idaho Sporting Cong. v. Thomas, 137 F.3d 1146, 1150-52 (9th Cir. 1998).

But it can’t be a calculated effort to obscure the likely future consequences of the agency action—a way around taking NEPA’s required “hard look.” And as several ‘friends of the court’ argued, the February 2016 approvals of Montanore just seemed to ignore both common sense and the predictive modeling that was done showing significant temperature, sediment and low flow changes in the affected surface waters should this mine be greenlit.

The powerful role served by the “Joint Final EIS” tying all of the considerations, estimative analyses, and future information needs together in a single, omnibus document cannot be ignored here.  Judge Molloy’s opinion cites the JFEIS no fewer than 95 times and is, at turns, completely motivated by it. Where previous Ninth Circuit cases have involved administrative records lacking any information about a phased project’s potential future impacts, this case included plausible 7Q10 modeling of what Libby Creek and other streams would look like when Montanore scaled up. And where that information is part of the record, it must be weighed by the NEPA agency. The potential violation of Montana water quality standards then cascaded through the entirety of the complaint.  Judge Molloy’s opinion is worth quoting:

The [agencies] argue that the modeled baseflow data cannot and should not be relied upon to reach a degradation conclusion because the model is conservative, more data will be collected during the Evaluation Phase, and the model will be updated before the Project proceeds. They ignore the fact the Forest Service determined the current data was “sufficient” “to make a reasoned choice among alternatives and to evaluate the reasonably foreseeable significant adverse effects on groundwater and groundwater dependent ecosystems.”

Save Our Cabinets v. U.S. Dept. of Agric., 2017 WL 2345667 at *19 (D. Mont. 2017).

The water quality standards problem then created issues with the Forest Service’s authorizing legislation, the Clean Water Act and NEPA. So the court remanded the determinations and the JFEIS for corrections and reconsideration.  So is this just another ornamental sacrifice of jobs to the environment?

Mining, Tourism and Timing

The election of Trump, Brexit and other symptoms have all highlighted the stalling of the progressive agenda of transitioning from “old” economic growth based on extraction and dirty industrial production to “new” economic growth rooted in creativity, knowledge, and minimizing the consumption of natural capital. Places like Montana have experienced this stalled transition as intensely as anywhere. Montanore’s nearest town, Libby, Montana, is known for the W.R. Grace vermiculite mine that gave a shockingly high proportion of its residents asbestosis and other health problems.

In the 2007 documentary of the same name, Libby is held up as a poster-sized victim of a mining conglomerate hell-bent on making a profit in the face of tightening commodity markets and the partisan strife this kind of struggle engenders everywhere.

Montanore’s copper and silver ore processing wouldn’t mean asbestosis.  But they certainly might mean centuries of acid mine drainage, tailings pond contaminants, fish kills, and worse. Judge Molloy is known to be hard-working, independent and a Montanan to the core.  He is less well known for having presided in the criminal trial against W.R. Grace for Libby’s asbestosis epidemic (a trial some think he steered in Grace’s favor) or for having invalidated the federal government’s (first) attempt to delist the grizzly from the list of threatened and endangered species in the contiguous United States.

But the judge’s career bears recounting in today’s political climate. Precious few holdings of this kind penetrate the left/right political cauldron which environmental protection as descended into. When interviewed about how he got his start in the law and on the bench, Judge Molloy talked about being a Montanan and meeting political people. In a telling passage, quoting now from the Bozeman Daily Chronicle story, he recounted the following memory:

[H]e told a story of visiting Democratic Sen. Mike Mansfield in Washington, D.C., after Molloy left the Navy. Mansfield invited Molloy to join him and Republican Sen. George Aiken of Vermont. Molloy learned that Mansfield and Aiken, both powerful members of the Senate, had breakfast together three to four times a week. “I challenge you to find that anywhere,” Molloy said . . . . “The incivility, the tone, the lack of the ability to listen really has an impact on all of us.” “I think the hostility, if you go to Washington, you can almost feel it in the air,” he continued. “If you read the national news, listen to the news on NPR, I just wonder where the common ground is, the common good. “How are we going to continue to survive as a nation?”

How, indeed? This most recent NEPA case against a Montana mine—a mine that is sure to face, should it reopen, the same fickle commodity markets it did decades ago—isn’t just a case of jobs versus the environment. It’s about our capacity to govern and comport ourselves as a nation. On the rare occasion that estimative techniques actually show real cause for concern, dismissing them as unimportant because ordinary precautions will be taken and because those precautions should be trusted—especially with so profound a legacy of cases where standard precautions didn’t work—shouldn’t any longer be ‘business as usual.’  It should be un-American.

{Image: native copper, © wikimedia} 

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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