Earlier this week, U.S. District Judge Brian Morris halted a slew of coal leases in the so-called Powder River Basin (PRB) district of southern Montana and north-central Wyoming. See Western Org. of Resource Councils v. U.S. Bureau of Land Management, 2018 WL 1456624 (D. Mont.2018). PRB coal, for those in the know, is synonymous with the kind of low-sulfur, low-energy fossil fuel reserves that were never really grid competitive until certain Clean Air Act regulations came along. As America’s coal habit has lingered into the Twenty-first century, this concentration coal in the PRB district has made it a center of contention—over the applicable public lands law and environmental controls, the leasing and pricing principles therein, and the greenhouse gas implications involved. You’ll get different estimates and things change year-over-year, but the PRB represents as much as 80% of all the federal coal produced and that accounts for about 40% of total US coal production.
The reason the judge held these leases up? Because—again—the BLM failed to prepare adequate analyses under the National Environmental Policy Act. NEPA analyses are part and parcel of the “resource management planning” BLM does in offering up the public domain for private mining like that at issue here. BLM has had many years to hone its NEPA routines and procedures. It has ample personnel and other resources to prepare these analyses. The expectations it places on field and regional personnel (should) come from years of experience with the federal courts of that region and their (now voluminous) interpretive record where NEPA’s pivotal concepts are concerned. Which is what makes this latest engagement in the PRB coal wars so mind-boggling. Really, BLM: what were you thinking?
Alternatives, Emissions Mitigation & Cumulative Effects: ‘Sticking Your Head in the Sand’
The plaintiffs in the case, a collection of regional and national environmental nonprofits, alleged three sets of shortcomings in the Final Environmental Impact Statement (FEIS) prepared in connection with the PRB resource management plans: a failure to develop reasonable alternatives, a failure to explore the means of mitigating methane emissions incident to coal mining, and a failure to assess indirect and cumulative effects of all the leasing.
It isn’t much of an alternatives analysis when weighing the leasing of coalfields to exclude any alternative where less coal would be put out for lease. This is so basic it barely merits analysis. But the judge did do just that, making it painfully obvious that BLM had no argument whatsoever for “carr[ying] forward” various assumptions made in resource management plans from 1985 as to how much coal to lease here. Make some other assumptions and at least consider transferring less coal.
A second defect, the lack of any planning for or consideration of alternatives designed to mitigate the methane releases this coal mining would entail, was arguably even more pronounced. Coal in this region is especially methane-heavy. Because methane is a powerful greenhouse gas, that is notable in itself. Methane is also a valuable fuel in its own right, though. So why wouldn’t BLM consider imposing requirements that methane emissions be contained or even that certain methane-heavier areas be omitted from leasing?
Finally, BLM’s FEIS excluded the climate change implications of these resource management plans completely. It included no consideration of the cumulative or indirect effects of leasing all of this coal—a mistake that BLM keeps repeating in this program over and over. For example, when the plan is to mine 10+ billion tons of coal over a 20-year period, stopping to analyze only the roughly 10+ million tons of CO2 equivalent (CO2e) emitted within the mining/production/transport operations while ignoring the emissions entailed in burning the coal is really more akin to willful blindness than to a “hard look” at an action’s environmental consequences.
Importantly, the court held that BLM had essentially all of the information it would need to estimate these “downstream” emissions and that the Government’s protests to the contrary were without merit.
As climate hawks have learned (if nowhere else then here at the Lab), cases like these increasingly come down to the relief the court grants after finding defects in the required NEPA documents. This ruling places the onus on the parties to either start bargaining or to expect another ruling from the court on the appropriate remedy.
For now, it seems, BLM had better get to analyzing non-development alternatives, mitigation, and the cumulative effects of federal coal production in an amended FEIS. The Justice Department is no doubt weighing an appeal to the Ninth Circuit—but that’s likely be a waste of time. If anything, Judge Morris probably undersold the Ninth Circuit precedents applicable here—and the Government would have to have all three of the adjudged insufficiencies overturned for its leasing to be cleared.
Longer-Term NEPA Implications?
The PRB fossil fuel program is no stranger to NEPA, or NEPA litigation. Just the reported cases would fill a small(ish) volume. See, e.g., WildEarth Guardians et al. v. U.S. BLM, 870 F.3d 1222 (10th Cir. 2017); WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013); Theo. Roosevelt Conserv. P’ship v. Salazar, 661 F.3d 66 (D.C. Cir. 2011); Northern Plains v. Surface Transp. Bd., 668 F.3d 1067 (9th Cir. 2011); Theo. Roosevelt Conserv. P’ship v. Salazar, 616 F.3d 497 (D.C. Cir. 2010); Pennaco Energy v. Dept. of Interior, 377 F.3d 1147 (10th Cir. 2004).
But with this familiarity has come an obvious contempt. BLM’s offices throughout that region have proven remarkably obstinate in their approach to NEPA compliance. Indeed, it is no exaggeration to say that they have distinguished themselves as perhaps the most hostile of all federal employees to the full and fair airing of the environmental consequences of their actions. And that is hardly a distinction for which your average federal employee strives.
As this piece in High Country News in November 2015 detailed, the BLM has had personnel who have prepared analyses like the ones missing here before, only to excise those estimates from final documents and leave those personnel wondering what they did wrong.
The Natural Resources Defense Council presser called this a wake-up call to the BLM. Time will tell.