Breaking: It is Reasonably Foreseeable that Mined Coal Will be Burned

The consequences of 12M tons worth being burned are harder to predict.

Besides skiing, endangered species habitat, and the rain shadow giving Boulder, Denver, and other parts of the Front Range their sunshine and abundant water, Colorado’s West Slope also secures its title of seventh largest coal producer in the Union.  Two of Colorado’s three surface coal mines have made the news lately for big NEPA failures, at least as judged by U.S. District Judge R. Brooke Jackson earlier this month.  Under the law, the Secretary of the Interior, in tandem with the Office of Surface Mining (OSM), control the mining of federal coal.  OSM shares power with state authorities, but the final decision on any permit amendment (especially an expansion) involving federal coal is a federal one—indeed, a Secretarial one under Section 2 of the Mineral Leasing Act of 1920.

A suit by WildEarth Guardians and other nonprofits alleged that OSM and the Secretary failed to conduct an adequate NEPA review of the mines’ mining plan amendments proposing to expand both mines.  They alleged that the defendants failed adequately to consider the potential impacts of the mines’ expanding.  The Judge found fault not just in the defendants’ conclusion that the impact of expanding the mines couldn’t be “significant” in north-central Colorado.  See, e.g., Slip Opinion at 18-20, 24-25.  That would’ve been enough of a failure to take the required “hard look” by itself.

Expected Consequence 1.) Mined Coal Will be Burned

He found a similar failure to take the needed “hard look” at the proposal, its plausible alternatives, and the environmental impacts thereof because OSM’s NEPA review ignored the “indirect” effects expected from this mine expansion.

Colowyo Mine (Patrick Kelly)

And by “indirect” effects, the judge meant the actual combustion of the coal to be mined—an obvious, economically necessary, and practically immediate consequence of coal being mined.  See id. at 27-28.  Nobody mines coal to look at it.  And it’s not as if the intervenor-defendants and the Department’s arguments weren’t valiant efforts to deny that coal combustion is a result of coal mining.  They were.  It’s just that the judge wasn’t buying it.  In a pretty stern reiteration of a similar holding not too long ago, Judge Jackson made plain his intention that the practically simple not be made to appear impossible for purposes of NEPA analyses:

[T]he defendants argue that OSM could not take into account the effects of coal combustion because it is purely speculative when the coal will be burned, at what rate it will be used, and what emissions-control technology might be applied at the combustion stage. The Court is not convinced. Agencies need not have perfect foresight when considering indirect effects, effects which by definition are later in time or farther removed in distance than direct ones. “[W]hen the nature of the effect is reasonably foreseeable but its extent is not . . . the agency may not simply ignore the effect.”

Slip Opinion at 29 (quoting Mid-States Coal. for Progress v. Surface Transp. Bd., 345 F.3d 520, 549 (8th Cir. 2003)).

By using historical rates of combustion-to-output at the mines and their sole deliveree—the local generating station in Craig—OSM’s claims of complete ignorance seem more like farce than NEPA compliance.  “If OSM can predict how much coal will be produced, it can likewise attempt to predict the environmental effects of its combustion. Just because it does not possess perfect foresight as to the timing or rate of combustion or as to the state of future emissions technology does not mean that it can ignore the effects completely.”  Id. at 29-30.

Expected Consequence 2.)  ?

The farce may have been more than litigation-born absurdity, though.  Here, long after state authorities had decided to approve the mines’ expansion and referred the matter to OSM, OSM simply dropped the ball.  It apparently conducted no NEPA “process” at all, failing to involve interested others in its environmental assessment (and subsequent finding of no significant impact) to any meaningful degree.  Indeed, the EA/FONSI was virtually sealed within OSM as it was being composed according to the judge, Slip Op at 18-20, by itself a material violation of NEPA.

But the lack of any agency “hard look” at the consequences of the mines’ expansion was a big no-no. With 12 million tons of coal still to be mined, our calculations put that somewhere around 68 trillion pounds of CO2 to be emitted—as a consequence of one OSM permit!  Judge Jackson was right to hold that that big a slug of carbon emissions ought not to be taken so lightly.  Indeed, the Tenth Circuit’s admonition to this effect framed the judge’s whole introduction of the controversy:

NEPA places upon federal agencies the obligation to consider every significant aspect of the environmental impact of a proposed action. It also ensures that an agency will inform the public that it has considered environmental concerns in its decision-making process.

Slip Opinion at 3 (quoting Citizens’ Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1177–78 (10th Cir. 2008)) (internal quotation and citations omitted).

But to What Ultimate Effect?: Judicial Relief

We here at the Lab pay close attention to the judicial relief afforded (and denied) in NEPA cases.  WildEarth Guardians had sought the following (in addition to their fees):

(1) a declaration that the government defendants violated NEPA and the APA; (2) an order vacating and remanding the approval of both mining  plan modifications; (3) an order enjoining the government defendants from reissuing the mining  plan modification approvals until such time as they have demonstrated compliance with NEPA and the APA; (4) an order requiring the government defendants to inform the intervenor- defendants that their mining plan authorizations have been vacated, and that new operations at the mines are prohibited until the government defendants have demonstrated compliance with  NEPA and the APA . . . .

Slip Opinion at 8-9.  From that request, the Judge ruled that vacating the approval with respect to one of the mines was improper because most of the coal had already been mined.  But with respect to the other mine, where the federal coal is still in the ground, the focus turned to a “balancing” of hardships.  As the local paper loudly opined in chastising Judge Jackson’s ruling, the mines don’t just supply Colorado’s largest coal-fired generating station in Craig.  They also employ a lot of people and add a lot of revenue to the regional economy.

So Judge Jackson stayed his order vacating the permit approval for 120 days while OSM fixes its NEPA violations.  The question may now be: which “indirect” effects from the 12 million tons of Colorado coal at issue here ought to factor into a proper NEPA analysis?  The Tenth Circuit’s jurisprudence on “indirect” effects is an interesting contrast to the Ninth Circuit’s, but it by no means guarantees that this new EA/FONSI—assuming the Department doesn’t appeal the district court’s order—will lightly dismiss the greenhouse gas implications of the permit.  The lawsuits like this one OSM has been defending lately have been aiming to force climate change onto its agenda.  {See High Country News’ story here.} Will the Department dig in its heels?  The House Committee on Natural Resources and others in Congress are watching.

In the case Judge Jackson cites, Mid-States Coalition, the court construed the basic “reasonably foreseeable” standard for indirect effects quite shrewdly.

[W]hen the nature of the effect is reasonably foreseeable but its extent is not, we think that the agency may not simply ignore the effect. The CEQ has devised a specific procedure for ‘evaluating reasonably foreseeable significant adverse effects on the human environment’ when ‘there is incomplete or unavailable information.’  First, ‘the agency shall always make clear that such information is lacking.’ Id. Then, ‘[i]f the information relevant to reasonably foreseeable significant adverse impacts cannot be obtained because the overall costs of obtaining it are exorbitant or the means to obtain it are not known,’ the agency must include in the environmental impact statement:

(1) A statement that such information is incomplete or unavailable; (2) a statement of the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment; (3) a summary of existing credible scientific evidence which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human environment, and (4) the agency’s evaluation of such impacts based upon theoretical approaches or research methods generally accepted in the scientific community.

Mid-States Coalition, 345 F.3d at 549-50 (quoting 40 C.F.R. § 1502.22(b)) (internal citations omitted).

Mid-States wasn’t unique for its attention to CEQ’s disclosure rules.  But it was a bit uncommon for doing so.  The court even drew attention to the help that the agency’s opponents were offering. According to the Eighth Circuit, uncertainties that commenting parties offer to alleviate stand in a different relation to the NEPA document than other, more generalized data deficits.  The court noted there that commenting

parties even identified computer models that are widely used in the electric power industry to simulate the dispatch of generating resources to meet customer loads over a particular study period. According to the commenting parties, these programs could be used to forecast the effects of this project on the consumption of coal.

Id. at 550.  In short, that court concluded, “ignor[ing] the effects of increased coal consumption” and making “no attempt to fulfill the requirements laid out in the CEQ regulations” is not NEPA compliance.  Id.  The clock is ticking in Colorado and four months isn’t much time.  We will be watching to see how the Department responds.

UPDATE: Well ahead of schedule, OSMRE released its EA/FONSI on the permit renewal in early September here.  OSMRE considered the proposal, a no action alternative, and one alternate version of the proposed permit.

{Image: Colorado’s Front Range}

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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