Montana Elders for a Livable Tomorrow et al v. U.S. Office of Surface Mining et al
IT IS ORDERED that Montana Elders for a Livable Tomorrow and Montana Chapter of the Sierra Club are DISMISSED FOR LACK OF STANDING-caption amended. ORDER granting in part and denying in part 40 Motion for Summary Judgment; granting in part and de nying in part 48 Motion for Summary Judgment; granting in part and denying in part 51 Motion for Summary Judgment. IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment consistent with this Order and close the case file. Signed by Judge Donald W. Molloy on 8/14/2017. (APP)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
AUG 14 2017
Clerk, U S District Court
D1stnct Of Montana
U.S. OFFICE OF SURFACE
MINING, an agency within the U.S.
Department of the Interior, et al.,
SIGNAL PEAK ENERGY, LLC,
Plaintiffs Montana Elders for a Livable Tomorrow, Montana Environmental
Law Center, and Montana Chapter of the Sierra Club challenge the United States
Office of Surface Mining and Enforcement's ("Enforcement Office") decision to
approve Signal Peak Energy' s ("Signal Peak") application for a federal mining
plan modification. (Doc. 1.) After conducting an Environmental Assessment
("EA"), the Enforcement Office concluded that the modification would not have a
significant impact on the human environment. AR 021642. The plaintiffs think
the EA was deficient in a number of ways, and that the Enforcement Office's
decision not to prepare an Environmental Impact Statement ("EIS") violated the
National Environmental Policy Act ("NEPA"). (Doc. 1.) Signal Peak and the
Enforcement Office (collectively "Defendants") respond that the EA and Finding
of No Significant Impact ("FONSI") were sufficient. (Docs. 6, 13.) The parties
have filed cross-motions for summary judgment and the matter is ripe for ruling.
For the reasons explained below, the Enforcement Office did not violate
NEPA by ignoring its internal guidance (Count I), took a hard look at the potential
impacts of mine dewatering on springs and wetlands (Count V), and relied on an
adequate "purpose and need" statement (Count VI). Consequently, Defendants
prevail as to those counts. The plaintiffs have not argued the Enforcement Office
failed to consider reasonable alternatives (Count VII), which means Defendants
prevail as to that count as well. But those rulings do not put the case to rest. The
Enforcement Office failed to take a hard look at the indirect and cumulative effects
of coal transportation and coal combustion (Count III), it failed to take a hard look
at foreseeable greenhouse gas emissions (Count IV), and it made a decision
without sufficient consideration for the need to produce an EIS despite significant
uncertainty about the critical issues (Count II). The plaintiffs then prevail as to
Pursuant to the Mineral Leasing Act ("Leasing Act"), the Secretary of the
Interior ("Secretary") may dispose of federal coal deposits to U.S. citizens,
associations, or corporations. 30 U.S.C. § 181. The Leasing Act further provides
that the Secretary "shall, in his discretion, upon the request of any qualified
applicant or on his own motion ... offer such lands for leasing and shall award
leases thereon by competitive bidding." 30 U.S.C. § 201(a)(l). It also requires
the Secretary approve of a mining operation and reclamation plan before the
environment is disturbed. 30 U.S.C. § 207(c).
The Surface Mining Control and Reclamation Act (the "Surface Act"), 30
U.S.C. §§ 1201 et seq., is a "comprehensive statute designed to 'establish a
nationwide program to protect society and the environment from the adverse
effects of surface coal mining operations."' Hodel v. Va. Surface Mining &
Reclamation Ass 'n, 452 U.S. 264, 268 (1981) (quoting 30 U.S.C. § 1202(a)). The
Surface Act created the Enforcement Office, 30 U.S.C. § 121 l(a), through which
the Secretary is charged with, inter alia, "administer[ing] the programs for
controlling surface coal mining operations which are required by [the Surface
Act]." 30 U.S.C. § 121 l(c)(l). "Surface coal mining operations" are in tum
defined to include "surface operations and surface impacts incident to an
underground coal mine." 30 U.S.C. § 1291(28). The Surface Act uses
cooperative federalism to regulate coal mining by setting "federal minimum
standards governing surface coal mining which a State may either implement itself
or else yield to a federally administered regulatory program." Hodel, 452 U.S. at
289. To exercise primary jurisdiction, a state must submit a proposed regulatory
program to the Secretary; if the Secretary approves the program, state law and
regulations govern the regulation of surface coal mining in the state and state
officials administer the program. 30 U.S.C. § 1253; In re Permanent Surface
Mining Regulation Litig., 653 F .2d 514, 518 (D.C. Cir. 1981 ). Montana
successfully applied for primary jurisdiction. The State exercises its regulatory
authority through the Montana Department of Environmental Quality ("Montana
DEQ"). 30 C.F .R. § 926.10.
The process of mining federally-leased coal in Montana requires that mine
operators obtain (1) a surface mining permit from the Montana DEQ, 30 U.S.C.
§§ 1253, 1273(c), and (2) the Secretary's approval of a mining plan of operations
under the Leasing Act, 30 U.S.C. § 207(c); 30 C.F.R. § 746.1 l(a). The Secretary's
decision to approve or deny a mining plan or mining plan modification is based on
a recommendation from the Enforcement Office, the operation of which is in turn
governed by the Surface Act. 30 U.S.C. § 1211; 30 C.F.R. § 746.13. The legal
process is not simplistic and it is designed not only to make mining opportunities
available, but also to ensure the environment is protected by considerations of
relevant issues and materials before a permit is issued or modified.
This case concerns the Enforcement Office's decision to approve a Federal
Mining Plan Modification (the "Mining Plan") to the Bull Mountains Mine No. 1
underground coal mine (the "Mine"). The Mine is located in the Bull Mountains
of central Montana, approximately 30 miles north of Billings and 20 miles
southeast of Roundup. AR 004107. As part of the Pine Breaks uplands, the Bull
Mountains are distinguished from the neighboring plains by a relatively abundant
water supply and a more diverse ecology. AR 009440. The topography of the
Bull Mountains "varies from uplands, rock outcrops, and ravines forested with
ponderosa pine and Rocky Mountain juniper at higher elevations, to adjoining
sagebrush and mixed prairie grassland communities on benches, slopes, and
drainages where soils are deeper." AR 015127. The mountains contain a diverse
ecology, ranching operations, and water resources, such as spring fed wetlands,
ponds, and intermittent stream reaches. AR 015121-22, 015128-29, 015132,
The history of coal mining in the Bull Mountains reaches back to 1908. AR
014663. The Mine itself first began sporadic operation in the early 1990s, AR
000006, 001135, while current operations under Intervenor-Defendant Signal Peak
Energy commenced in 2008, AR 021407. As of 2015, the Mine employed 312
people. AR 021303. In 2014, Signal Peak estimated coal production at
approximately 10.5 million tons. Id. Current surface operation includes mine
portals, run of the mine and clean coal stockpiles, coal processing facilities, a coal
loadout facility and railroad loop, waste disposal area, mine shop and offices,
associated water control facilities, and other associated facilities, encompassing
approximately 515 acres of existing disturbance. AR 021304.
Mining takes place via a combination of continuous and longwall mining
techniques. AR 021407. Continuous mining methods are used for development of
production mains and longwall panels, while longwall equipment is used to extract
coal in the panels between the development entries. Id. Continuous mining
involves driving a rotating cutting drum into the coal bed to cut coal from the coal
face, which is then transported out of the mine via a system of conveyor belts and
shuttle cars. AR 021408-09. Longwall mining uses a large shearer to shear coal
from the coal face of the panel. AR 021411. Each of the longwall panels consists
of a large block of coal, approximately 1,250 feet wide by approximately 15,000 to
23,300 feet long, and extraction thickness ranges from 8 to 13 feet. AR 021412.
As the mining operation advances, hydraulic shields are used to support the roof
where coal has been removed. Id. Once the coal has been extracted from the
longwall panel, the shields are removed and the overlying strata collapses, or
subsides, into the void left where coal has been removed. Id. Such subsidence
may cause substantial cracks in the earth's surface. AR 014984, 021443.
Subsidence is currently occurring above mined-out panels. AR 021309. The
maximum elevation change above those panels was 8 to 9 feet, but most areas
subsided less than 6 feet. Id.
After the coal has been extracted, it is crushed, washed, and temporarily
stored onsite. AR 021415-16. Mine development and coal processing wastes are
permanently disposed of at the onsite Waste Disposal Area. AR 021416. A 35mile rail line (the "Broadview Spur") connects the Mine to the Burlington
Northern/Santa Fe ("BNSF") mainline track near Broadview, Montana. AR
021420. In 2014, the majority of the coal (95%) was projected to be shipped
overseas to Korea, Japan, and the Netherlands, with the remaining 5% shipped to
locations in the United States such as Ohio. AR 021304.
Signal Peak owns the Mine and operates it under State of Montana mine
permit C1993017, approved by the Montana DEQ in 1993. AR 021295-96,
021642. The state permit includes federal coal reserves leased to Signal Peak
under Federal Lease MTM 97988. AR 021642.
The Mine has a long regulatory history. In 1990, the Bureau of Land
Management ("BLM") issued an EIS ("1990 EIS") approving a land exchange by
which Meridian Mineral Company, the then-owner of the Mine, consolidated
ownership of coal reserves under the Bull Mountains. AR 001459. The 1990 EIS
assessed a "3.0 million tons of coal per year longwall underground mine" as the
maximum development scenario under the exchange. AR 014594. In 1992, the
Montana Department of State Lands issued an EIS ("1992 EIS") assessing
Meridian's request for a mining permit. AR 015075. The 1992 EIS assessed an
anticipated peak production of "3 .3 million tons of clean coal per year" over the
course of a 44-year mining operation. AR 015078.
In 2008, Signal Peak filed an application with the BLM to lease
approximately 2,679.9 acres of federal coal at the Mine. AR 021295. In response
to Signal Peak's application, in 2011 the BLM prepared an EA (the "Coal Lease
EA") pursuant to the National Environmental Policy Act ("NEPA"). Id. "The
Coal Lease EA analyzed the potential impacts associated with leasing five tracts of
Federal coal totaling 2,679.76 acres that would allow the mine to continue
producing coal at the current rate instead of ceasing production as recoverable
private coal reserves are exhausted." AR 021295. Access to the estimated 61.4
million tons of federal coal included in the lease would also allow Signal Peak to
mine "much more than the federal coal." N. Plains Res. Council Inc. v. US.
Bureau of Land Mgmt., 2016 WL 1270983, at *3 (D. Mont. March 31, 2016).
"Another 71.6 million tons of coal are contained on state and private property that
would be accessible through the federal lease." Id.
In 2011, the BLM issued a Finding of No Significant Impact ("FONSI"),
determining that the coal lease was not a major federal action significantly
affecting the quality of the human environment. AR 021877. The BLM leased the
federal coal to Signal Peak on June 1, 2012. AR 001378-87. The Enforcement
Office was a cooperating agency for the Coal Lease EA. Id. The Coal Lease EA
adopted prior environmental analyses, including the 1990 EIS and the 1992 EIS.
The Coal Lease EA was subsequently challenged in the United States
District Court for the District of Montana, Billings Division. See N. Plains Res.
Council Inc., 2016 WL 1270983. Judge Watters found the BLM did not act
arbitrarily or capriciously when it opted to forgo an EIS, but found that the Interior
Board of Land Appeals 1 erred by not addressing the plaintiffs argument that the
BLM acted arbitrarily and capriciously by failing to consider an adequate range of
alternative actions in the Coal Lease EA. Id. at *13. Judge Watters remanded the
case to the Interior Board "for consideration of the argument that BLM's
discussion of alternatives in the EA [was] inadequate." Id. at* 14. The Interior
Board subsequently determined the Coal Lease EA considered a reasonable range
of alternatives. N. Plains Res. Council, 188 IBLA 19, 34 (June 14, 2016).
In 2012, Signal Peak applied to the Montana DEQ to amend its mining
permit by expanding mining operation by 7,161 acres, adding 176 million tons of
coal to its permitted mineable reserves. AR 011357, 011359-60. This area
includes both the federal coal from the BLM lease and the adjacent state and
private coal, discussed above, that could not be accessed without mining the
federal coal. AR 021296-021300. After preparing a "Checklist Environmental
Assessment" to supplement the 1992 EIS, AR 0154 72-86, the Montana DEQ
approved Signal Peak's application for the mine expansion. AR 021296.
Finally, in November 2013, Signal Peak requested approval from the
The Interior Board of Land Appeals is an appellate review body that
exercises the delegated authority of the Secretary to issue final decisions for the
Department of the Interior. Its administrative judges decide appeals from BLM
decisions regarding mining, inter alia. See www.doi.gov/oha/organization.ibla.
Enforcement Office of a mining plan modification for its federal coal lease that
would expand coal development and mining operations at the Mine into the
2,539.76 acres of remaining federal coal lands (an initial 140-acre expansion had
already been approved). AR 021299. In response, the Enforcement Office
prepared the Bull Mountains Mine No. 1 Federal Mining Plan Modification
Environmental Assessment (the "Mining Plan EA"), the decision document at
issue here. AR 021292-375. The Enforcement Office determined that approval of
the federal mining plan would not have a significant impact on the quality of the
human environment, and that an EIS was therefore not required. AR 021642. The
plaintiffs filed suit on August 17, 2015, requesting declaratory and injunctive
relief. (Doc. 1.) The suit alleges that the Enforcement Office (1) ignored its own
NEPA guidance in determining that an EIS was not required; (2) was required to
prepare an EIS to consider the mining plan modification; (3) failed to take a "hard
look" at the indirect and cumulative effects of coal transportation, coal exports,
and coal combustion; (4) failed to take a hard look at foreseeable greenhouse gas
emissions; (5) failed to take a hard look at water pollution impacts; (6) unlawfully
narrowed the "purpose and need" statement in the Mining Plan EA; and (7) failed
to consider reasonable alternatives to the proposed action. (Id.) On December 11,
2015, Signal Peak was granted leave to intervene. (Doc. 12.) The parties
subsequently filed cross-motions for summary judgment. (Docs. 40, 48, 51.)
A party is entitled to summary judgment if "there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). Claims under NEPA are reviewed pursuant to the Administrative
Procedures Act ("APA"). 5 U.S.C. § 702; Lujan v. Nat '! Wildlife Fed 'n, 497 U.S.
871 , 882 (1990). Under the APA, a court shall "hold unlawful and set aside
agency action, findings, and conclusions found to be ... arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law." 5 U.S.C.
§ 706(2)(A). An action is arbitrary and capricious "if the agency has relied on
factors which Congress has not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an explanation for its decision that
runs counter to the evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view or the product of agency expertise." Motor
Vehicle Mfrs. Ass 'n of US. , Inc. v. State Farm Mut. Auto Ins. Co. , 463 U.S. 29, 43
(1983). "The scope of review under the 'arbitrary and capricious' standard is
narrow and a court is not to substitute its judgment for that of the agency." Id.
But it is a "foundational principle" that "a court may uphold agency action only on
the grounds that the agency invoked when it took the action." Michigan v. EPA,
135 S. Ct. 2699, 2710 (2015).
NEPA directs federal agencies to consider, "to the fullest extent possible,"
the environmental impacts of"major Federal actions significantly affecting the
quality of the human environment." 42 U.S.C. § 4332(C). NEPA serves the twin
aims of obligating agencies "to consider every significant aspect of the
environmental impact of a proposed action .... [and] ensur[ing] that the agency
will inform the public that it has indeed considered environmental concerns in its
decisionmaking process." Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97
(1983) (internal quotations omitted). NEPA does "not require agencies to elevate
environmental concerns over other appropriate considerations." Id. Instead,
agencies must simply take a "hard look at the environmental consequences before
taking a major action." Id. (internal quotation omitted). That "hard look" may
require the preparation of an EIS. 42 U.S.C. § 4332(C); 40 C.F.R. § 1508.11.
However, not every agency action requires the preparation of an EIS. 40 C.F .R.
§ 1501.4. To determine whether an EIS is necessary, an agency may prepare an
EA. Id. at§§ 1501.4(b),(c), 1508.9. If, after preparing an EA, an agency
concludes the impacts of its action will not be significant, it may issue a Finding
ofNo Significant Impact ("FONSI"). Id. at§§ 1501.4(e), 1508.13. NEPA does
not require an EIS "anytime there is some uncertainty, but only ifthe effects of the
project are 'highly' uncertain." Envtl. Prof. Info. Ctr. v. US. Forest Serv., 451
F.3d 1005, 1011 (9th Cir. 2006) (emphasis in original). "Preparation of an EIS is
mandated where uncertainty may be resolved by further collection of data, or
where the collection of such data may prevent speculation on potential ...
effects." Native Ecosystems Council v. US. Forest Serv., 428 F.3d 1233, 1240
(9th Cir. 2005) (alteration in original).
As a threshold matter, Defendants argue the plaintiffs lack standing to
challenge the approval of the Mining Plan. (Doc. 48 at 13 ; Doc. 52 at 40.)
Specifically, Defendants argue the plaintiffs have failed to show injury in fact
because the declarations of Paul Jensen, a member of the Montana Environmental
Information Center, and Paul Smith, a member of Montana Elders for a Livable
Tomorrow, fail to show either individual will be harmed by approval of the
Mining Plan. (Doc. 48 at 14-15; Doc. 52 at 40-41.) While Jensen alleges
sufficient injury to establish standing, Smith does not.
"To establish standing, a plaintiff must show that '(1) he or she has suffered
an injury in fact that is concrete and particularized, and actual or imminent; (2) the
injury is fairly traceable to the challenged conduct; and (3) the injury is likely to
be redressed by a favorable court decision.'" WildEarth Guardians v. US. Dep 't
ofAgric., 795 F.3d 1148, 1154 (9th Cir. 2015) (quoting Salmon Spawning &
Recovery All. v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir. 2008)). "An association
has standing to bring suit on behalf of its members when its members would
otherwise have standing to sue in their own right, the interests at stake are
germane to the organization's purpose, and neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit."
Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000). The
plaintiff carries the burden of establishing standing. WildEarth Guardians, 795
F .3d at 1154.
Defendants argue the plaintiffs have failed to show injury in fact because
they fail to allege harms with sufficient specificity. (Doc. 48 at 16; Doc. 52 at 40.)
The Supreme Court has "held that environmental plaintiffs adequately allege
injury in fact when they aver that they use the affected area and are persons 'for
whom the aesthetic and recreational values of the area will be lessened' by the
challenged activity." Friends of the Earth, 528 U.S. at 183 (quoting Sierra Club v.
Morton, 405 U.S. 727, 735 (1972)). Here, the plaintiffs submitted declarations
from James D. Jensen, member and Executive Director of the Montana
Environmental Information Center, (Doc. 41-1 ), and Paul Smith, a pediatric
physician and member of Montana Elders for a Livable Tomorrow, (Doc. 41-2).
Jensen states he has "spent significant time in the Bull Mountains," beginning in
1979, that he visits ranches belonging to friends in the mountains "at least once
every two years," and that he "expect[ s] to continue to visit ... at least every other
year for the foreseeable future." (Doc. 41-1 at ,-r 4.) Jensen further avers he
"enjoy[s] the natural beauty" and "vitality" "of the Bull Mountains" which he
experiences when visiting a friend's ranch that "[would] be undermined by the
expansion of the Bull Mountains Mine." (Id. at ,-r,-r 7-8.) Finally, Jensen states his
"aesthetic, personal, and recreational interests in the Bull Mountains [would]
certainly be lessened by the proposed expansion of the mine" because he "could
not bear to see the area destroyed." (Id. at ,-r 11.) Jensen adequately identifies the
areas he visits, the value of those areas to him, and the proximity of those areas to
the mining operation as to establish injury in fact.
Defendants argue Smith's declaration fails to establish injury in fact because
his allegations of injury are geographically distant from the Bull Mountain mine,
(Doc. 48 at 15), and because Smith fails to allege harms to himself, (Doc. 52 at
40). Smith is a pediatric pulmonologist based in Missoula who practices
throughout western Montana. (Doc. 41-2 at ,-r 4.) His declaration outlines injury
flowing from ( 1) particulate matter in diesel emissions from coal trains, (id. at
8, 11 ); (2) coal dust from coal trains which may create risks to public health by
destabilizing tracks and depositing toxic pollutants, (id.
12-15); and (3) coal
combustion, including its contribution to climate change and heavy metal
16-19). The bulk of his declaration focuses on injury that may
impact his patients and those living in western Montana towns through which
trains transporting Bull Mountain coal would likely pass, with only a brief
assertion that "any additional particulate matter from additional trains could
directly harm [his] respiratory health." (Id.
11.) The harm Smith alleges is too
attenuated to support standing here, and Montana Elders for a Livable Tomorrow
is dismissed from the case. 2
Finally, though Defendants do not raise the issue, Plaintiff Sierra Club of
Montana is also dismissed for lack of standing. Neither Jensen nor Smith state
they are members of the Club, and the broad assertion of standing laid out in the
Complaint, (Doc. 1 at ~ 17), does not provide the "concrete and particularized"
injury in fact required under Article III. WildEarth Guardians, 795 F.3d at 1154.
Because Plaintiff Montana Environmental Information Center ("Plaintiff')
The finding as to Smith's standing is consonant with the determination,
explained below, that the Enforcement Office's decision not to consider the
impacts of coal trains violated NEPA, as the latter holding is based the
reasonableness of conducting such an evaluation and not on what such an
evaluation might determine.
has sufficiently shown standing, Defendants' request that their case be dismissed
Purpose and Need Statement (Count VI)
Plaintiff argues Section 1.2 of the EA, the "Purpose and Need Statement"
("Section 1.2") is arbitrary and capricious because it contains only Signal Peak's
private goals of extracting Bull Mine coal while omitting congressional energy
goals that were included in the draft Mining Plan EA. (Doc. 41at10.) "Courts
review purpose and need statements for reasonableness, giving the agency
considerable discretion to define a project's purpose and need. A purpose and
need statement will fail if it unreasonably narrows the agency's consideration of
alternatives so that the outcome is preordained." Alaska Survival v. Surface
Transp. Bd., 705 F.3d 1073, 1084 (9th Cir. 2013) (citations omitted). Here, the
reasonableness of Section 1.2 falls within the considerable discretion agencies are
afforded to define a project's purpose and need.
As an initial matter (and as Defendants point out, (Doc. 52 at 13; Doc. 58 at
4) ), Plaintiff conflates the "purpose and need" requirements of an EA with those of
an EIS. 3 "Purpose and need" statements in an EA and an EIS are governed by
different regulations, which outline different requirements. An EA "shall include
[a] brief discussion of the need for the proposal." 40 C.F.R. § 1508.9(b). An
EIS, on the other hand, "shall briefly specify the underlying purpose and need to
which the agency is responding in proposing the alternatives including the
proposed action." Id. at§ 1502.13. Even so, district courts in the Ninth Circuit
have imported the "purpose and need" analysis from an EIS to EA context, and
doing so is appropriate here. See Pac. Coast Fed. ofFishermen's Ass 'ns v. US.
Dep 't of Int., 996 F. Supp. 2d 887, 906 (E.D. Cal. 2014), remanded on other
grounds; Wild Wilderness v. Allen, 12 F. Supp. 3d 1309, 1326 (D. Or. 2014).
"Courts review purpose and need statements for reasonableness giving the
agency considerable discretion to define a project's purpose and need." Alaska
Survival, 705 F .3d at 1084 (quotation omitted) (discussing EIS). "However, an
agency cannot define its objectives in unreasonably narrow terms." Nat'l Parks &
Cons. Ass 'n v. Bureau ofLand Mgmt., 606 F.3d 1058, 1070 (9th Cir. 2010)
(quotations and citations omitted) (discussing EIS). "[A]n agency must consider
the statutory context of the proposed action and any other congressional directives
But Federal Defendants initially accepted Plaintiffs underlying assertion
that the purpose and need statement requirements are the same for an EA and EIS.
(Doc. 48 at 18.)
in addition to a private applicant's objectives .... But when granting a license or
permit, the agency has discretion to determine the best way to implement its
statutory objectives in light of the goals stated by the applicant." Alaska Survival,
705 F.3d at 1085. A purpose and need statement is not arbitrary and capricious
merely because it "does not follow the letter of the statutes." West/ands Water
Dist. v. US. Dep 't ofInterior, 376 F.3d 853, 866 (9th Cir. 2004).
The purpose and need statement from the Mining Plan EA states:
1.2 Purpose and Need
On November 22, 2013, following approval of Amendment 3 to the
State Permit Area, [Signal Peak] submitted the mining plan modification
to the [Enforcement Office], for review and approval (Proposed Action).
The purpose of the Proposed Action is to recommend approval,
disapproval, or approval with conditions of the proposed mining plan
modification to the [Assistant Secretary, Lands and Mineral
Management]. If approved, the Mining Plan will allow [Signal Peak]
to conduct coal mining and reclamation operations within the coal lease
and economically recover Federal, state, and private coal reserves
through a logical mining unit.
The proposed mining sequence includes a combination of Federal coal
lands and state and private coal reserves. Longwall panel development
mining (room and pillar) must be completed well in advance oflongwall
mining and would cease within approximately six months ifthe Federal
mining plan modification is not approved. Furthermore, underground
mining would cease completely within approximately 2.5 years upon
completion of Longwall Panel 6 and the Life of Mine plan could not be
implemented in its entirety. The state and private coal reserves to the
south and east would not be accessible by the proposed longwall mining
plan (described in Chapter 2 of this EA). It may appear that a portion of
these state and private reserves could be reached by reorientation of the
mining plan; however, the accessible coal would not be economically
mineable by longwall methods.
Several connected actions are included in the Proposed Action and are
discussed in Chapter 2 of this EA including facilities for waste disposal;
construction of roads, boreholes and powerlines, installation of
ventilation fans, and other disturbances. The Proposed Action is needed
to allow the lessee to exercise their right to mine leased Federal coal
resources and would extend the life of the mine by 9 years.
AR 021300 (emphasis in original).
Plaintiff points out that the purpose and need statement in the draft Mining
Plan EA included (1) language referring to the National Energy Policy Act goal of
adding "energy supplies from diverse sources, including ... coal"; (2) reference
to the Enforcement Office's recognition "that the continued extraction of coal is
essential to meet the nation's future energy needs"; and (3) the statement that "as a
result of mining leased Federal coal from the Mine, the public receives lease bonus
payments, lease royalty payments, and a reliable supply of low sulfur coal for
power generation." (Doc. 42-1 at 9.) 4 In its response to comments following
preliminary publication of the Draft Mining Plan EA, the Enforcement Office
stated that it deleted "the sentences discussing the National Energy Policy Act"
The Draft EA is not included in the Administrative Record, but is attached
to Plaintiffs Statement of Undisputed Facts. (Doc. 42.) Plaintiff states the Draft
EA was inadvertently omitted from the Administrative Record, and that
Defendants do not object to its consideration here.
and the policy of promoting domestic energy security "due to the percentage of the
Bull Mountains No. 1 Mine coal that is exported," AR 021622, and that the public
revenue discussion was removed because it was "more applicable to the leasing
process than the mining plan review," AR 021622-23. 5 Plaintiff contends that
those deletions improperly narrowed the EA analysis, impermissibly making
approval a foreordained formality, Alaska Survival, 705 F .3d at 1084, by ignoring
the congressional policy "that coal mining should further national energy security"
set forth in the Surface Act, 30 U.S.C. § 1202(f), and the Energy Policy Act of
2005, 42 U.S.C. § 13571(1). (Doc. 55 at 14.)
Defendants respond that Section 1.2 "clearly defines a valid purpose" as
required by Enforcement Office regulations, and further that it "clearly considers
not only Signal Peak's private objectives, but also the substantial public interest in
the continued development of the Mine." (Doc. 52 at 13-14.) The first argument
is convincing. The pertinent regulation provides that the Enforcement Office
"shall prepare and submit to the Secretary a decision document recommending
approval, disapproval or conditional approval of the mining plan." 30 C.F.R.
§ 746.13. Section 1.2 states "[t]he purpose of the Proposed Action is to
The response cites 40 C.F.R. § 1502.13, the EIS "purpose and need"
regulation, instead of§ 1508.9, the EA regulation. AR 021622.
recommend approval, disapproval, or approval with conditions of the proposed
mining plan modification," AR 021300 (emphasis in original), reflecting the
regulatory requirement that it do so. Thus, Section 1.2 states a reasonable, albeit
limited, purpose for the Mining Plan EA.
Whether Section 1.2 articulates "a substantial public interest in the
continued development of the Mine" is a closer question. Defendants argue that,
by recognizing that the Mine will close sooner if the modification is not approved,
Section 1.2 takes into account the public interest in continuing operations at the
Mine, specifically in public employment and the injection of millions of dollars
into federal, state, and local economies. (Doc. 48 at 19-20; Doc. 52 at 14.)
Section 1.2, however, is silent as to jobs and the local economy, AR 021300, as is
the Enforcement Office's response to Comment 1, which criticized the draft
purpose and need statement as too narrow, AR 021622. Instead, Section 1.2
speaks simply to extending the life of the mine, and Defendants' argument is a
post-hoc justification for agency decisionmaking.
To further support reasonableness, Defendants insist that "neither NEPA nor
the [Surface Act] prohibit the export of coal," arguing that, had Congress intended
to prohibit the export of coal, it could easily have done so. (Doc. 52 at 15.) That
argument misses the point, which asks whether the agency reasonably articulated
the need for the proposed action in the EA. Finally, to the extent that Defendants
now point to other parts of the Surface Act to show Section 1.2 suitably addresses
relevant congressional purpose, it again offers a post-hoc justification not apparent
from the record. (Doc. 52 at 15.)
Defendants further argue that, because the Leasing Act and not the Surface
Act governs the Mining Plan, the congressional goal of national energy security is
irrelevant. (Doc. 48 at 20.) However, as Plaintiff points out, the Enforcement
Office's regulations governing review of mining plan modifications were
promulgated under the authority of the Surface Act. (Doc. 55 at 15); 48 Fed. Reg.
6912, 6912 (Feb. 16, 1983) ("Section 523(a) of the [Surface Act], 30 U.S.C. 1201
et seq., requires the Secretary to promulgate and implement a Federal lands
program applicable to all surface coal mining and reclamation operations taking
place pursuant to Federal law on Federal lands.").
That said, given the Enforcement Office's "considerable discretion to define
a project's purpose and need," Alaska Survival, 705 F.3d at 1084, the agency did
not violate NEPA. Although a close question because the Enforcement Office
framed Section 1.2 primarily in terms of Signal Peak's goal of extracting the Bull
Mountain coal, it did not "entirely fail to consider an important aspect of the
problem," Motor Vehicle Mfrs., 463 U.S. at 43, that being consideration of "the
views of Congress, expressed, to the extent that the agency can determine them, in
the agency's statutory authorization to act, as well as in other congressional
directives," Nat 'l. Parks & Conserv. Ass 'n, 606 F.3d at 1070 (quotation omitted).
The differences between Section 1.2 in the draft and final Mining Plan EAs
indicate the Enforcement Office considered the scope of Section 1.2 in terms of
congressional policy. The Enforcement Office is also responsible for approving or
disapproving the proposed action, a purpose that, if tautological, was nevertheless
articulated in Section 1.2. 30 C.F.R. §§ 746.13, 746.14. In light of the
considerable deference the Enforcement Office is owed here, Section 1.2 is not
arbitrary and capricious.
Indirect and Cumulative Effects of Coal Transportation and
Combustion (Counts III & IV)
Plaintiff next claims that the Enforcement Office failed to take a hard look
at the indirect and cumulative effects of coal transportation and coal combustion.
(Doc. 41 at 13.) Because the Enforcement Office ignored an important aspect of
the problem by unreasonably limiting the scope of its analysis, Plaintiffs
As to coal transportation, Plaintiff argues the Enforcement Office acted
arbitrarily and capriciously when it "failed entirely to assess [indirect effects] such
as the health impacts of diesel emissions, coal dust, noise, and vibrations; the
economic impacts of rail congestion; and the environmental effects of coal dust
polluting waterways that the trains cross," (id. at 15), and by "entirely fail[ing] to
assess the potential cumulative impacts," (id. at 18). As to coal combustion,
Plaintiff argues the Enforcement Office acted arbitrarily and capriciously by
failing to address "any non-greenhouse gas pollution impacts that would result"
from coal combustion and "failing to adequately assess the indirect and cumulative
impacts of greenhouse gas emissions from the mine expansion." (Id. at 20, 21 ).
Defendants see it differently and respond that the Enforcement Office
adequately considered both indirect and cumulative effects of coal transportation
because it calculated rail miles and resulting greenhouse emissions and
incorporated the 2011 Coal Lease EA assessment of the impact of expanding
mining operations on coal transportation. (Doc. 48 at 22.) They further insist that
the Enforcement Office was not required to consider the indirect or cumulative
effects of non-greenhouse gas emissions from coal combustion because such
consideration falls outside the scope of the Secretary's authority and would be
speculative, (id. at 27-28), and, in any event, that the assessment of the impact of
greenhouse gas emissions from coal combustion was reasonable, (id. at 30).
Defendants finally assert that the Mining Plan EA incorporates the cumulative
effects analysis from the 1992 EIS, and that even if the number of coal trains were
to change, assessing those impacts would be speculative. (Doc. 52 at 18.)
Under the NEPA requirement that agencies evaluate "any adverse
environmental effects which cannot be avoided should the proposal be
implemented," 42 U.S.C. § 4332(C)(ii), an EA must address "the environmental
impacts of the proposed action and alternatives," 40 C.F.R. § 1508.9(b). These
include indirect and cumulative effects. Center for Env 'tl Law & Policy v. US.
Bureau ofReclamation, 655 F.3d 1000, 1006 (9th Cir. 2011). A cumulative
impact "is the impact on the environment which results from the incremental
impact of the action when added to other past, present, and reasonably foreseeable
future actions regardless of what agency ... or person undertakes such other
actions." 40 C.F.R. § 1508.7. "Cumulative impacts can result from individually
minor but collectively significant actions take place over a period of time." Id.
Indirect effects are those "caused by the action and are later in time or farther
removed in distance, but are still reasonably foreseeable." 40 C.F.R. § 1508.8(b).
"Indirect effects may include ... related effects on air and water and other natural
systems, including ecosystems." Id.
Plaintiff claims that the Mining Plan EA is arbitrary and capricious because,
while it calculated the rail miles that coal extracted from the Mine would travel
beyond the Broadview Spur-and the greenhouse gas emissions that would
result-it did not assess a number of other indirect effects from coal trains,
including the health, economic, and environmental impacts of diesel emissions,
noise, vibrations, rail congestion, and coal dust. (Doc. 41 at 15.) Plaintiff again
insists the EA failed to address the cumulative impacts of coal trains, without
explanation. (Id. at 18.) In its response to comments, the Enforcement Office
stated that " [ 1]uncertainty regarding future combustion locations and
transportation routes and an  absence of methods to reasonably evaluate
specific impacts associated with the Proposed Action, ma[ d]e analysis of train
traffic beyond Broadview speculative." AR 021626. Defendants make the same
argument in their briefing here. (Doc. 48 at 23; Doc. 52 at 18). Plaintiff has the
better reasoned argument.
"Agencies must consider only those indirect effects that are reasonably
foreseeable. They need not consider potential effects that are highly speculative or
indefinite." Presidio Golf Club v. Nat'! Park Serv., 155 F.3d 1153, 1163 (9th
Cir. 1998). However, "[w ]hile effects which are not reasonably foreseeable may
be disregarded, an agency should not attempt to travel the easy path and hastily
label the impact of the [action] as too speculative and not worthy of agency
review." Col. River Indian Tribes v. Marsh, 605 F. Supp. 1425, 1434 (C.D. Cal.
Defendants insist that, because coal trains are discussed in the prior analyses
that were tiered to the 2015 EA, including the 1990 EIS, 1992 EIS, and the 2011
Coal Lease EA, the Enforcement Office was not required to re-analyze the impacts
of rail transport since the number of trains per day would not increase from the
current condition and the duration of the Mine would be less than the 30 year
duration identified in the 1992 EIS. (Doc. 52 at 17-18.) But, as Plaintiff points
out, the 1992 EIS was premised on a 3 .3 million ton annual coal production,
resulting in one loaded train per day. (Doc. 55 at 19); AR 021625. The 1990 EIS
was also more limited, "evaluat[ing] impacts of mining up to 3.0 million tons per
year and transporting coal at a rate as high as one train per day." AR 021625. The
Coal Lease EA considered the then-current 5 million tons-per-year production
amount, stating "[t]he level of production from the mine results in three coal trains
per day from the mine to Broadview and then on mainline railroads to the eastern
United States and possibly to the west coast." AR 021513. While Defendants are
correct that the Enforcement Office's analysis "need not discuss the environmental
effects of mere continued operation of a facility," Upper Snake River Chapter of
Trout Unlimitedv. Hodel, 921F.2d232, 235 (9th Cir. 2001), such is not case here,
where the 2015 EA stated Signal Peak "anticipate[ d] mining up to 12 million tons
annually," the Montana Air Quality Permit allows for mining up to 15 million tons
annually, and the 2014 production estimate was approximately 10.5 million tons.
AR 021303. These amounts are between two to five times greater than those
contemplated by the 1990 EIS, the 1992 EIS, and the 2011 Coal Lease EA. With
that substantial difference in mind, it cannot be said that the Enforcement Office
took a hard look at the effects of transporting the coal.
Defendants also argue that analysis of coal train effects would be highly
speculative because the travel routes, and associated effects, of the Bull Mine coal
cannot reasonably be predicted beyond the Broadview Spur. (Doc. 52 at 18; Doc.
48 at 23.) While agencies are not "required ... to do the impractical, if not
enough information is available to permit meaningful consideration," Envtl. Prat.
Info. Ctr. , 451 F .3d at 1014 (quotations omitted), because "the basic thrust of an
agency's responsibilities under NEPA is to predict the environmental effects of
proposed action before the action is taken and those effects fully known ....
[r]easonable forecasting and speculation is ... implicit in NEPA." City ofDavis v.
Coleman, 521 F.2d 661, 676 (9th Cir. 1975).
Defendants' argument is undercut by the Mining Plan EA's analysis of
greenhouse gas emissions from Bull Mountain coal transportation. The Mining
Plan EA states that "in 2014, the majority of coal will be shipped to destinations in
the United States (e.g., Ohio), Korea, Japan, and the Netherlands; approximately
5% will be used domestically and 95% will be sent overseas." AR 021304. "In
2014, [Signal Peak] expects that coal will be sold and transported to purchasers in
South Korea (3.1 million tons) and Japan (2.5 million tons) via the Robert Banks
Terminal in British Columbia, Canada; the Netherlands (2.5 million tons) via
Duluth, Minnesota and Quebec City, Canada; Ohio (0.4 million tons)." AR
021319-20. It notes that the numbers are "an estimate because [Signal Peak] does
not own or control the coal commodity once it leaves the mine site." Id.
However, it apparently used these estimates to calculate the greenhouse gas
emissions likely to occur from coal transportation at an annual mining rate of 12
million tons of raw coal (8.5 million tons clean coal). 6 AR 021320, Table 3.1-6.
The Enforcement Office therefore found at least some degree of reasonable
foreseeability with regard to the impacts of coal transportation.
In addition, there are only a limited number of rail routes for coal
transportation to the east and west available for Bull Mountain coal, and the bulk
For instance, the Mining Plan EA's calculation of greenhouse gas
emissions from transporting coal by sea was "based on shipping from Puget Sound
to Beijing using large diesel-powered ships." AR 011020.
of the west-bound traffic travels the southern line, passing through Bozeman,
Helena, and Missoula. (Doc. 41at16); AR 011947-56. A degree of reasonable
foreseeability exists, and the Enforcement Office failed to take a hard look at the
mining plan modification in this regard because it did not consider either indirect
or cumulative effects of coal trains beyond the Broadview Spur. (Doc. 41 at 18.)
Methods for Assessment
Defendants also assert that the Enforcement Office did not act arbitrarily or
capriciously when it chose not to evaluate the social and environmental impacts of
coal trains because no methods exist to do so. (Doc. 48 at 24.) However, the
record contains a number of studies on the current and potential impacts of coal
trains, undercutting the argument that no suitable methods exist. For instance, the
record contains an academic study of diesel particulate matter emissions and air
quality from trains, AR 012028, a BNSF document discussing coal dust emissions
(and noting that "from 500 lbs to a ton of coal can escape from a single loaded
coal car"), AR 012078, and two reports from the Western Organization of
Resource Councils assessing the potential effects of coal train traffic in the Pacific
Northwest, AR 01833-96, 011897-978. While these documents do not focus
specifically on Bull Mountain coal, they show that such analysis is possible and
not merely speculative.
Because the Mining Plan EA failed to take a hard look at either the indirect
or cumulative effects of the transportation of Bull Mountain coal beyond the
Broadview Spur, it failed to consider an important aspect of the problem and is
therefore arbitrary and capricious. Plaintiffs motion for summary judgment as to
the direct and indirect effects of coal transportation is granted.
Plaintiff also argues the Enforcement Office's analysis of the "combustionrelated impacts" of coal was arbitrary and capricious because ( 1) "[d]espite
admitting the foreseeability of coal combustion and the potentially significant
impacts, the Mining Plan EA failed entirely to assess any non-greenhouse gas
pollution impacts that would result," and (2) the EA, despite quantifying
greenhouse gas emissions, "failed to adequately assess the indirect and cumulative
impacts of greenhouse gas emissions." (Doc. 41 at 20.) Plaintiff is correct.
Non-Greenhouse Gas Emissions
The Mining Plan EA addresses at length the local impact of non-greenhouse
gas emissions. AR 021314-17. However, it does not address the non-local
impacts of non-greennhouse gas emissions. In its response to comments, the
Enforcement Office stated that "[e]valuating non-local effects of non-[greenhouse
gas] emissions from transport and combustion would be speculative due to the
uncertainty regarding combustion locations, transport routes, and emissions
controls and an absence of methods to reasonably evaluate specific impacts
associated with the Proposed Action." AR 021626. Defendants reassert this
argument in their briefing here. (Doc. 52 at 20, Doc. 48 at 25.)
As discussed above, "[a]gencies must consider only those indirect effects
that are reasonably foreseeable. They need not consider potential effects that are
highly speculative or indefinite." Presidio Golf Club, 155 F.3d at 1163.
However, "[w ]hile effects which are not reasonably foreseeable may be
disregarded, an agency should not attempt to travel the easy path and hastily label
the impact of the [action] as too speculative and not worthy of agency review."
Col. River Indian Tribes, 605 F. Supp. at 1434. This is because NEPA requires
agencies to evaluate "any adverse environmental effects which cannot be avoided
should the proposal be implemented." 42 U.S.C. § 4332(C)(ii).
The issue here is whether the impacts of non-local non-greenhouse gas
emissions from coal combustion are "reasonably foreseeable," and thus require
examination, or whether they are "highly speculative or indefinite" such that the
Enforcement Office was not required by NEPA to consider them. This situation is
more akin to the former. That the coal extracted from the mine will be combusted
is not so "highly speculative" that any analysis of non-greenhouse gas emissions
would be impractical, even if the precise locations of combustion are uncertain.
By failing to address those impacts, the Enforcement Office arbitrarily and
capriciously ignored an important aspect of the problem they are required to
Greenhouse Gas Emissions
Plaintiff argues the Mining Plan EA "failed to adequately assess the indirect
and cumulative impacts of greenhouse gas emissions from the mine expansion."
(Doc. 41at21.) They note that, while the Mining Plan EA calculated that
approval of the modification would result in 23 .16 million metric tons of
greenhouse gas emissions for an additional nine years beyond what is provided for
in the existing mining plan, AR 021338, it did not adequately evaluate the impact
of those emissions. (Doc. 41 at 22.) Specifically, Plaintiff argues that the Social
Cost of Carbon Protocol (the "Protocol") was an available tool with which the
Enforcement Office could, and should, have tied its greenhouse gas emissions
calculation to the effects of those emissions, and that the Enforcement Office acted
arbitrarily and capriciously by quantifying the benefits of the mine expansion
while failing to account for the costs, even though a tool was available to do so.
(Id.) Plaintiff's arguments are again more persuasive than the arguments of
In its response to comments, the Enforcement Office supported its decision
not to use the Protocol by noting that ( 1) the Protocol was developed pursuant to
Executive Order 12866, which requires agencies conduct cost-benefit analysis
when developing regulations, not issuing permits, AR 021639; (2) it was not
required to conduct a cost-benefit analysis under NEPA, AR 021640; and (3) by
asserting it had sufficiently considered greenhouse gas emissions by calculating
how much would be emitted and comparing that amount to the whole of U.S.
greenhouse gas emissions, id. 7 Defendants reassert these three arguments in their
briefing. (Doc. 48 at 28-32; Doc. 52 at 21-27.)
As part of its assessment of the effects of the proposed mine expansion, the
Mining Plan EA states that, "[a]lthough total emissions resulting from mining,
processing, transporting and burning are quantifiable, it is not possible to
accurately assess the effects of a specific amount of C02-equivalent emissions on
global warming and climate change." AR 021339. It continues by comparing the
estimated yearly amount of greenhouse gas emissions from the Mine (23 .16
million metric tons) to the estimated total amount of greenhouse gas emissions in
the United States (6,526 million metric tons in 2012), concluding that "it is
The Enforcement Office also noted that both the Coal Lease EA and the
Mining Plan EA "evaluated the climate change impacts of the proposed action in
qualitative terms." See AR 021318-21, 021338-39, 021358-59, 021362-66.
reasonable to assume that the impact of C02-equivalent emissions from annual
operation of the [Mine] on climate change would be approximately 0.35 percent of
the total U.S. emissions." Id. (italics omitted).
The EA then discusses climate change at length in its Cumulative Impact
analysis, stating that "[t]he impacts of mining, processing, shipping, and
combusting the coal are considered ... because it [sic] is a logical consequence of
approving a mining plan for an existing mine." AR 021362. It notes that coal
from Montana and Wyoming has historically been burned for electricity in U.S.
power plants, and that "[ c]oal-fired power plant emissions include carbon dioxide
(C02), which has been identified as a principal anthropogenic [greenhouse gas]."
AR 021362. It further notes that "[c]oal from the Powder River Basin is also
being exported to Asia and Europe." Id. The Mining Plan EA then summarizes a
number of findings of the Intergovernmental Panel on Climate Change's Fifth
Assessment Report, 8 noting that anthropogenic greenhouse gas emissions have
The Intergovernmental Panel on Climate Change "is the international
body for assessing the science related to climate change." It was established in
1988 by the World Meteorological Organization and the United Nations
Environment Programme "to provide policy makers with regular assessments of
the scientific basis of climate change, its impacts and future risks, and options for
adaptation and mitigation." "IPCC Factsheet: What is the IPCC?" available at
www.ipc.ch. The Mining Plan EA refers to the Panel as the "International Panel
of Climate Change." AR 021362.
"led to atmospheric concentrations of carbon dioxide, methane and nitrous oxide
that are unprecedented in at least the last 800,000 years," and "are extremely likely
to have been the dominant cause of the observed warming since the mid-20th
century." AR 021362-63. It quotes the Coal Lease EA's conclusion that "[the
coal used by the target power plants could be provided by Powder River Basin
mines rather than the Bull Mountains Mine No. 1," but that Bull Mountain coal
would be 1Oo/o more efficient, and accordingly "decrease [greenhouse gas]
emissions by burning less coal to produce the same amount of electricity." AR
021365. It states that "[t]echnologies and emission control systems are reducing
emissions and increased regulation would likely reduce emissions in the future,"
concluding that "[t]he cumulative impact would be negligible and reduced by
these measures." Id. It also notes that "[t]he level and duration of emissions from
the Proposed Action ha[ve] been quantified, but the state of climate change
science does not allow any given level of emissions to be tied back to a
quantifiable effect on climate change." AR 021366.
Pursuant to Executive Order 12866, which requires agencies conduct costbenefit analyses when developing regulations, the Protocol was "developed by an
Interagency Working Group, including the [EPA] and others, for use in costbenefit analyses of proposed regulations that could impact cumulative global
emissions." AR 021639. The Protocol "is used to monetize damages associated
with an incremental increase in carbon emissions in a given year." Id. Because
the Protocol was developed to assist in cost-benefit analysis in agency rulemaking,
Defendants argue its use is not required here, where the Enforcement Office has
prepared an EA to inform its decision on Signal Peak's application for a mining
plan modification. (Doc. 48 at 31.) While Defendants are correct that the Protocol
was developed to support cost-benefit analysis, that argument does not answer
Plaintiffs insistence that the Enforcement Office acted arbitrarily and capriciously
by failing to adequately consider the costs of greenhouse gas emissions.
Defendants correctly note that NEPA does not require a cost-benefit
analysis be conducted in course of an EIS. (Doc. 48 at 31 ); AR 021640. The
NEPA implementing regulations provide that, "[i]f a cost-benefit analysis relevant
to the choice among environmentally different alternatives is being considered for
the proposed action, it shall be incorporated" into the analysis, but that "[fJor
purposes of complying with the Act, the weighing of the merits and drawbacks of
the various alternatives need not be displayed in a monetary cost-benefit analysis
and should not be when there are more important qualitative considerations." 40
C.F.R. § 1502.23. The Enforcement Office was thus under no obligation to
incorporate a cost-benefit analysis into the Mining Plan EA, a point Plaintiff
concedes. (Doc. 41 at 23.) Again, however, this argument does not address the
main point Plaintiff asserts-that it was arbitrary and capricious to quantify the
benefits of an action while failing to quantify the costs of the action even though
such an analysis was possible. (Doc. 41 at 23.)
Finally, Defendants argue that the Mining Plan EA reasonably considered
the impact of greenhouse gas emissions by quantifying the emissions which would
be released if the mine expansion is approved, and comparing that amount to the
net emissions of the United States. (Doc. 52 at 14; Doc. 48 at 29); AR 021339,
021366. Plaintiff disagrees, pointing out that the Mining Plan EA adopted the
socioeconomic analysis of the Coal Lease EA, AR 021302, which concluded the
Mine "generates a monthly payroll in Montana of over $400,000, adding much
needed revenue and employment to the local economy," and that "[b]ased on the
estimated annual production of up to 10 million tons [of] clean coal and the 2007
annual average open sales price of $11. 79 per short ton of coal produced in
Montana, the proposed project could contribute $23,816,000 million [sic] annually
in tax revenues to the states." AR 021573. 9 Plaintiff further notes that the
In its response to comments on the draft Mining Plan EA, the
Enforcement Office asserted that these numbers are "an economic impact
assessment, to be distinguished from a cost-benefit analysis." AR 021640. This is
a distinction without a difference where, as here, the economic benefits of the
action were quantified while the costs were not.
assessment of the "no action" alternative in the Coal Lease EA stated these
economic benefits would disappear ifthe lease were not approved. AR 021524.
The 2015 FONSI also noted that the "[b]enefits of the project would be
continuation of gainful employment at the mine, royalty and tax revenues." AR
021645. Plaintiff argues it was arbitrary and capricious for the Mining Plan EA to
adopt a quantitative analysis of benefits of the proposed action without
considering the costs when a tool was available to do so. 10
Plaintiff relies on High Country Conservation Advocates v. United States
Forest Service, in which the United States District Court for the District of
Colorado identified the Protocol as an available tool for quantifying the costs of
greenhouse gas emissions. 52 F. Supp. 3d 1174, 1190 (D. Col. 2014). In High
Country, the court considered, inter alia, a NEPA challenge to a BLM-issued
Final EIS approving a coal lease modification. Id. at 1184, 1189. The court noted
that "[b]eyond quantifying the amount of emissions relative to state and national
emissions and giving general discussion to the impacts of global climate change,
The Mining Plan EA concluded that "[t]he cumulative impact [of
greenhouse gas emissions] [from the mine expansion] would be negligible." AR
021365. It based this conclusion on the supposition that "[t]echnologies and
emission control systems are reducing emissions and increased regulation would
likely reduce emissions in the future" and the calculation that total greenhouse gas
emissions from the Mine would constitute only 0.35% of total U.S. greenhouse
gas emissions. Id.
[the FEIS] did not discuss the impacts caused by [greenhouse gas emissions].
Instead, [it] offered a categorical explanation that such an analysis is impossible."
Id. at 1190 (citations omitted). However, the FEIS did include a dollar-value
quantification of the economic benefits of the proposed lease modification. Id. at
1188, 1191. The court concluded that, "[e]ven though NEPA does not require a
cost-benefit analysis, it was nonetheless arbitrary and capricious to quantify the
benefits of the lease modifications and then explain that a similar analysis of the
costs was impossible when such an analysis was in fact possible and was included
in an earlier draft EIS." 11 Id. at 1191 (emphasis in original). The High Country
court was guided by the Ninth Circuit's decision in Center for Biological Diversity
v. National Highway Traffic Safety Administration, where the Circuit held it was
arbitrary and capricious for the National Highway Traffic Safety Administration to
fail to monetize the benefits of greenhouse gas emissions reduction when setting
corporate average fuel economy standards (a regulation). 538 F.3d 1172, 1198
(9th Cir. 2008) ("Even if [the Agency] may use a cost-benefit analysis to
The BLM had initially included quantitative analysis using the Protocol,
but that analysis was removed when the BLM seemingly concluded that "[p]lacing
quantitative values on greenhouse gas emissions [was] still controversial" because
"estimates for a ton of carbon dioxide emitted range from $5 to over $800,"
meaning cost estimates for the lease modification could vary significantly. High
Country, 52 F. Supp. 3d at 1191.
determine the 'maximum feasible' fuel economy standard, it cannot put a thumb
on the scale by undervaluing the benefits and overvaluing the costs of more
The Enforcement Office addressed High Country in its response to
comments, pointing to a decision from the District of Oregon which rejected a
claim that the Forest Service should have used the Protocol to disclose negative
short term impacts associated with a logging project. AR 021640. That case,
League of Wilderness Defenders/Blue Mountains Biodiversity Project v.
Connaughton, concerned a NEPA challenge arguing the Forest Service failed to
provide a "full and fair discussion" of the effect of a commercial thinning project
on a forest's carbon stores by disclosing only the beneficial impact of the project
"without considering the [p]roject's short-term negative impact of removing 48
million board feet of trees." 2014 WL 6977611, at *25 (D. Or. Dec. 9, 2014).
However, Connaughton did not involve a quantitative analysis of either the
benefits or the costs, id. at *26, and so is distinguishable from this case, which
involves quantified benefits and un-analyzed costs.
The cases cited by Defendants do not provide support for their contention
that it was reasonable for the Enforcement Office to quantify benefits but not
costs. (Doc. 52 at 22-23.) Instead, those cases show that the parties' arguments
are like two ships passing in the night. Plaintiff argues it was arbitrary and
capricious not to quantify the cost of those emissions, while Defendants argue it
was reasonable for the Enforcement Office to qualitatively discuss climate change,
to quantify the amount of emissions, but to refrain from drawing a specific causal
link between those emissions and climate change.
The cases Defendants cite illustrate this divide. In Wild Earth Guardians v.
United States Forest Service, the District of Wyoming, considering issuance of
coal leases, found sufficient agency consideration under NEPA "to demonstrate
that [greenhouse gas] emissions were evaluated and attempts to quantify as a
percentage of state and nationwide emissions were made," but distinguished High
Country because there "the district court was critical of the agencies' failures to
quantify costs." 120 F. Supp. 3d 1237, 1271 (D. Wyo. 2015). Other cases are
similar. See WildEarth Guardians v. Bureau of Land Mgmt., 8 F. Supp. 3d 17, 3 5
(D.D.C. 2014) (citing scientific uncertainty entailed in specifically linking
particular greenhouse gas emissions and particular climate impacts in finding
reasonable the BLM' s calculation of greenhouse gas emissions as a percentage of
state-wide and nation-wide emissions in decision to approve coal lease);
WildEarth Guardian v. Jewell, 738 F.3d 298, 309 (D.C. Cir. 2013) (citing
scientific uncertainty in not requiring BLM to "identify specific effects on the
climate in order to prepare an adequate EIS," and noting that future approval of
Enforcement Office was required before mining would occur, thereby providing
for further analysis); Barnes v. US. Dep 't ofTransp., 655 F.3d 1124, 1139 (9th
Cir. 2011) (finding, in evaluation of whether "context" and "intensity" required
Federal Aviation Administration to conduct EIS for runway construction project,
that because climate change is a global phenomenon, assessment of projected
project greenhouse gas emissions in terms of percentages was adequate).
Defendants' contention that the Enforcement Office "conducted a full and
thorough analysis of the greenhouse gas emissions from the Mine" may be sound
as far as it goes. (Doc. 52 at 23.) But it sidesteps Plaintiffs argument, that it was
arbitrary and capricious for the Enforcement Office to quantify socioeconomic
benefits while failing to quantify costs. (Doc. 41 at 22.) As such, Defendants'
assertion that the Enforcement Office took a "hard look" that ensured both the
agency and the public were well-informed is not persuasive.
The Enforcement Office's failure to take a hard look at the costs of
greenhouse gas emissions is highlighted by the Mining Plan EA's discussion of
the No Action Alternative:
The No Action Alternative would not likely result in a decrease ofC02
emissions attributable to coal-burning power plants in the long term.
There are multiple other sources of coal that could supply the demand
for coal beyond the time that the Bull Mountains Mine No. 1 completes
recovery of all coal proposed for mining. Without continued coal export
from the Bull Mountains Mine No. 1 after the remaining 35 million tons
is mined, it is reasonable to expect that power plant( s) would obtain coal
from alternative sources on the spot market and coal combustion
emissions would be comparable to the Proposed Action, depending on
the coal quality and associated efficiency. Negligible impacts to climate
change are expected under the No Action Alternative.
AR 021359. In other words, the Mining Plan EA concluded not that the specific
effects of greenhouse gas emissions from the expansion would be too uncertain to
predict, but that there would in fact be no effects from those emissions, because
other coal would be burned in its stead. This conclusion is illogical, and places
the Enforcement Office's thumb on the scale by inflating the benefits of the action
while minimizing its impacts. It is the kind of "[i]naccurate economic
information" that "may defeat the purpose of [NEPA analysis] by impairing the
agency's consideration of the adverse environmental effects and by skewing the
public's evaluation of the proposed agency action." NRDC v. US. Forest Serv.,
421 F.3d 797, 811 (9th Cir. 2005) (quotations omitted) (finding Forest Service's
reliance on mistaken market demand projections that inflated the economic
benefits and discounted the environmental impacts of revision of the Tongass
Land Management Plan violated NEPA).
Defendants cannot persuasively justify the Enforcement Office's failure to
consider the cost of greenhouse gas emissions from coal combustion. The Mining
Plan EA failed to adequately address the indirect and cumulative impacts of
greenhouse gas emissions from expansion of the Mine.
Decision Not to Prepare an EIS (Counts I & II)
Plaintiff argues the Enforcement Office's decision not to prepare an EIS was
arbitrary and capricious because the Enforcement Office failed to follow its own
NEPA guidance and failed to adequately analyze the context and intensity of the
mmmg expans10n. (Doc. 41 at 27.) While the latter argument is persuasive, the
former is not.
NEPA requires federal agencies to prepare an EIS for any "major Federal
actions significantly affecting the quality of the human environment." 42 U.S.C.
§ 4332(C). "An EIS must be prepared if substantial questions are raised as to
whether a project may cause significant degradation of some human environmental
factor. To trigger this requirement a plaintiff need not show that significant
effects will in fact occur, but raising substantial questions whether a project may
have a significant effect is sufficient." Ocean Advocates v. US. Army Corps of
Eng'rs, 402 F.3d 846, 864-65 (9th Cir. 2005) (internal quotations, citations,
brackets, and emphasis omitted). "In reviewing an agency's decision not to
prepare an EIS, the arbitrary and capricious standard under the AP A requires a
court 'to determine whether the agency has taken a 'hard look' at the
consequences of its actions, based [its decision] on a consideration of the relevant
factors,' and provided a 'convincing statement of reasons to explain why a
project's impacts are insignificant."' Barnes v. US. Dept. ofTransp., 655 F.3d
1124, 1132 (9th Cir. 2011) (quoting Envtl. Prat. Info. Ctr, 451 F .3d at 1009). That
statement of reasons must address significance in terms of "context" and
"intensity" of the proposed action. 40 C.F.R. § 1508.27. Context "means that the
significance of an action must be analyzed in several contexts such as society as a
whole (human, national), the affected region, the affected interests, and the
locality." Id. at§ 1508.27(a). Intensity "refers to the severity of impact," and
involves an analysis of ten significance factors. Id. at§ 1508.27(b). 12
Failure to Consider Enforcement Office Guidelines
Plaintiff first argues the Enforcement Office failed to follow its own
guidelines when it concluded that preparation of an EIS was unnecessary, and that
those guidelines would have required an EIS. (Doc. 41 at 28-29.) Defendants
"Major federal action" is understood as a component part of the
significance finding: "[m]ajor federal action includes actions with effects that may
be major and which are potentially subject to Federal control and responsibility.
Major reinforces but does not have a meaning independent of significantly
(§ 1508.27)." 40 C.F.R. § 1508.18 (Defining "major federal action").
insist that agency guidelines do not have the force of law, and that even if they
did, they were met here. (Doc. 48 at 34; Doc. 52 at 32.) Because internal agency
guidelines lack the force of law, and the Enforcement Office indicates in any event
that it considered those guidelines, Defendants have the better argument.
NEPA regulation provides that "[i]n determining whether to prepare an
[EIS] [a] Federal agency shall [d]etermine under its procedures supplementing
these regulations ... whether the proposal is one which [n]ormally requires an
[EIS], or [n]ormally does not require either an [EIS] or an [EA] (categorical
exclusion)." 40 C.F.R. § 1501.4(a). To determine whether agency guidelines
have the independent force and effect oflaw: the agency pronouncement
must (1) prescribe substantive rules-not interpretive rules, general
statements of policy or rules of agency organization, procedure or
practice-and (2) conform to certain procedural requirements. To
satisfy the first requirement the rule must be legislative in nature
affecting individual rights and obligations; to satisfy the second, it must
have been promulgated pursuant to a specific statutory grant of authority
and in conformance with the procedural requirements imposed by
W Radio Servs. Co., Inc. v. Espy, 79 F .3d 896, 901 (9th Cir. 1996) (citation
The Enforcement Office Department Manual provides, in pertinent part:
A. The following [Enforcement Office] actions will normally require
the preparation of an EIS:
(4) Approval of a proposed mining and reclamation plan for a surface
mining operation that meets the following:
(a) The environmental impacts of the proposed mining operation are
not adequately analyzed in an earlier environmental document
covering the specific leases or mining activity; and
(b) The area to be mined is 1280 acres or more, or the annual full
production level is 5 million tons or more; and
(c) Mining and reclamation operations will occur for 15 years or
516 DM 13.4(A)(4). "[S]urface mining operations" include "surface impacts
incident to an underground coal mine," and "the areas upon which such activities
occur or where such activities disturb the natural land surface." 30 U.S.C.
§ 1291(28)(A), (B).
Defendants claim that the Departmental Manual does not have the effect and
force of law because it was prepared as an internal procedure for managing the
NEPA process, was not subject to notice-and-comment rulemaking, and was not
published in the Federal Register. (Doc. 48 at 34; Doc. 52 at 32.) As Plaintiff
points out, the guidelines do appear to have been subject to notice-and-comment,
as they were published as an Appendix to existing Enforcement Office guidance in
the Federal Register after a notice period in which one comment was received. 46
Fed. Reg. 7487; (Doc. 55 at 34-35.) However, that publication states the appendix
"provides more specific NEPA compliance guidance to the Office of Surface
Mining," including that pertaining to "actions normally requiring the preparation
of an EIS." 46 Fed. Reg. 7487. By its terms, therefore, it does not "prescribe
substantive rules," but instead lays out "general statements of policy or rules of
agency organization, procedure or practice." W Radio, 79 F .3d at 901. Nor are
the guidelines published in the Code of Federal Regulations.
Plaintiffs better argument is that the Enforcement Office violated NEPA
regulations by failing to determine, under Enforcement Office procedures, whether
the action was one normally requiring an EIS. 40 C.F.R. § 1501.4(a). The
Western Environmental Law Center raised the issue of the Department Manual in
comments to the draft Mining Plan EA, stating that the Enforcement Office's
"internal rules also normally require an EIS prior to approving of a mine operation
of this size." AR 011300. The Enforcement Office stated in its FONSI that "this
EA follows the [Enforcement Office's] 516 DM 13, which is the departmental
manual guiding the [Enforcement Office]'s implementation of the NEPA process."
AR 021643. It did not address Western Environmental Law Center's comment in
its response to comments. AR 021621-41. Defendants offer a post-hoc argument
that, even were the guideline binding, would not require an EIS here, where the
Mining Plan EA is tiered to the 2011 Coal Lease EA, the 1992 EIS, and the 1990
EIS. (Doc. 52 at 33.) Neither the FONSI nor the Response to Comments presents
this argument, so it is not considered here. However, the existence of the Mining
Plan EA itself indicates consideration of whether an EIS was appropriate, and the
FONSI affirms that the Enforcement Office followed its guidelines in preparing
the Mining Plan EA. As such, Plaintiff's argument that the Enforcement Office
should be required to prepare an EIS based on its internal guidelines is a nonstarter.
Failure to Present a Convincing Statement of Reasons
Plaintiff insists the Enforcement Office's decision not to issue an EIS failed
to adequately analyze both the context and intensity of the Mining Plan and is
therefore arbitrary and capricious. (Doc. 41at30-31.) Plaintiff is right on this
Plaintiff argues the Enforcement Office was arbitrary and capricious in its
context analysis because it ignored the "regional and global impacts from the
multiple coal trains traveling each day from the mine to ports in Canada and on the
Great Lakes and thence to power plants in Asia and Europe," an argument that
essentially boils down to Plaintiff's earlier assertion that the Enforcement Office
acted arbitrarily and capriciously by failing evaluate the indirect and cumulative
impacts of coal trains. (Doc. 41 at 30.) Plaintiff also argues the FONSI failed to
consider the size of the Mine and harmful long-term impacts, including that the
eventual exhaustion of the coal resource will cause negative long term financial
impacts to Musselshell County. (Id.)
In its discussion of context, the FONSI states that "approval of the Federal
mining plan modification is a site-specific action involving lands that are entirely
within the boundaries of the Bull Mountains Mine No. 1 [Montana DEQ] State
mine permit," and that "[t]he effects of the action have been analyzed at the local
and regional scale." AR 021644. Defendants argue that the Enforcement Office
"adequately analyzed the effects of the action at the local and regional scale," and
assert that "its conclusion to do so was reasonable," (Doc. 48 at 35), and that the
Court should defer to the Enforcement Office's expertise, (Doc. 52 at 35).
The issue served up by this contention is whether it was arbitrary and
capricious for the Enforcement Office to limit its context analysis to the local and
regional level. As an initial matter, the fact that the Enforcement Office compared
the amount of greenhouse gas emissions the mine expansion would create to U.S.
greenhouse gas emissions as a whole, AR 021339, undercuts the argument that a
local and regional context analysis was sufficient. Indeed, that analysis indicates
the Enforcement Office at least considered that the mine expansion might have a
broader foreseeable impact (and, Plaintiff asserts, to the extent that percentage is
used to minimize the effects of the expansion, to reach a potentially misleading
conclusion). (Doc. 55 at 28.)
Ultimately, the sufficiency of the Enforcement Office's context conclusion
hinges on whether it was appropriate to omit consideration of the indirect and
cumulative effects of greenhouse and non-greenhouse gas emissions, and of the
indirect and cumulative effects of coal transportation, discussed above. Because
that omission shows the Enforcement Office acted arbitrarily and capriciously by
ignoring an important aspect of the problem, the FONS!' s evaluation of context is
arbitrary and capricious as well. Although the Mining Plan EA sufficiently
evaluates the local and arguably regional impacts of the mine expansion, it does
not address foreseeable impacts beyond the region. 40 C.F.R. § 1508.27(a)
("[ c]ontext ... means that the significance of an action must be analyzed in several
contexts such as society as a whole ... the affected region, the affected interests,
and the locality"). While "in the case of a site-specific action, significance would
usually depend upon the effects in the locale rather than in the world as a whole,"
id., here the Enforcement Office's misstep was in concluding that all analysis,
outside of the greenhouse gas emissions national percentage calculation, was
speculative beyond the Broadview Spur.
NEPA's governing regulations lay out ten factors that "should be considered
in evaluating intensity." 40 C.F.R. § 1508.27(b). As to coal transportation,
Plaintiff challenges the Enforcement Office's intensity finding regarding the
(2) The degree to which the proposed action affects public health or
(4) The degree to which the effects on the quality of the human
environment are likely to be highly controversial.
( 5) The degree to which the possible effects on the human environment
are highly uncertain or involve unique or unknown risks.
(7) Whether the action is related to other actions with individually
insignificant but cumulatively significant impacts. Significance exists
if it is reasonable to anticipate a cumulatively significant impact on the
environment. Significance cannot be avoided by terming an action
temporary or by breaking it down into smaller component parts.
(9) The degree to which the action may adversely affect an endangered
or threatened species or its habitat that has been determined to be critical
under the Endangered Species Act of 1973.
Plaintiff argues the impact of coal train traffic is highly controversial, and that the
Enforcement Office's failure to examine those impacts beyond the Broadview
Spur was arbitrary and capricious. (Doc. 41 at 31.) The FONSI does not discuss
coal trains in its analysis of this factor at all. AR 021646. Because the
Enforcement Office did not consider the non-local effects of coal trains, Plaintiffs
argument is well-taken.
"The existence of a public controversy over the effect of an agency action is
one factor in determining whether the agency should prepare [an EIS]. A federal
action is controversial if a substantial dispute exists as to [its] size, nature, or
effect." N. W. Env. Defense Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1536
(9th Cir. 1997) (citations omitted) (emphasis and brackets original). "A
substantial dispute exists when evidence, raised prior to the preparation of an EIS
or FONSI ... casts serious doubt upon the reasonableness of an agency's
conclusions." Nat 'l Parks & Cons. Ass 'n v. Babbitt, 241 F.3d 722, 736 (9th Cir.
2001). "Although a court should not take sides in a battle of the experts, it must
decide whether the agency considered conflicting expert testimony in preparing its
FONSI, and whether the agency's methodology indicates that it took a hard look at
the proposed action by reasonably and fully informing itself of the appropriate
facts." Id. at 736 n.14 (citations omitted). However, mere public opposition to a
proposed action does not render that action controversial under NEPA, even if that
opposition is vigorous. Fund/or Animals v. Williams, 246 F. Supp. 2d 27, 44-45
Here, vigorous public opposition to coal trains exists. (Doc. 42
97.) That is not enough, however, as courts must defer to agency expertise so long
as the agency "took a hard look at the proposed action by reasonably and fully
informing itself of the appropriate facts." Nat'l Parks, 241 F.3d at 736 n.14. As
discussed above, the Mining Plan EA incorporated the 1992 EIS, which analyzed
the effects of "one train every 1-2 days (11,500 tons per train) at a peak annual
production of 3.3 million tons per year during a 30-year mining period." AR
021625. The Montana DEQ's 2006 EA (prepared to assess an application for state
permit revision, AR 021400) analyzed the effects of mining 39.5 million tons "at a
rate up to 11 million tons per year, effectively increasing the rate of coal shipment
on the rail spur although the impacts to train traffic were not specified." Id.
Finally, the 2011 Coal Lease EA stated "[t]here would be approximately three
trains a day carrying coal from the mine," and that "[ r]ailroad traffic levels would
continue at the existing rate for an additional seven years as a result of the
availability of coal from the coal lease area." AR 021570, 021625. The coal train
analysis was restricted to the Broadview Spur. AR 021625-26.
The Enforcement Office thus considered the local effects of coal trains, but
failed, outside of quantifying greenhouse gas emissions, to consider the non-local
effects of coal trains. Considering at least some of those non-local effects would
not be speculative, as, again, the Mining Plan EA appears to rely on the projected
2014 coal shipments to calculate those greenhouse gas emissions. (Doc. 42 at ,-r,-r
75-76); AR 021320. 13 Based on this analysis, the Enforcement Office did not
consider an important effect of the mine expansion, and therefore failed to
adequately consider "the degree to which the effects on the human environment
are likely to be highly controversial." 40 C.F.R. § 1508.27(b)(4).
Plaintiff also briefly asserts the Enforcement Office failed to consider
substantial questions about impacts to public health, uncertain or unknown risks,
potential cumulatively significant impacts, and potential adverse effect to
endangered species. (Doc. 41 at 25.) Because it was arbitrary and capricious for
the Enforcement Office not to consider the impacts of coal trains beyond the
Broadview Spur, Plaintiff prevails as to these intensity factors as well.
Finding that the Mining Plan EA failed to consider whether the impact of
the action would be "controversial" does not contradict Judge Watters' finding
that the BLM' s 2011 Coal Lease EA adequately considered the effects of
continued mining on subsidence. N. Plains. Res. Council, 2016 WL 1270983, at
Plaintiff argues the impacts of the mine expansion's life-cycle air pollution
emissions, including greenhouse and non-greenhouse gas emissions from coal
combustion, (Doc. 41 at 33), are also uncertain and controversial, 40 C.F.R.
§ 1508.27(4),(5). Plaintiff's argument relies largely on the Enforcement Office's
decision not to use the Protocol to evaluate the effects of greenhouse gas
emissions resulting from the mine expansion. Using the Protocol, Plaintiff
calculates the cost of greenhouse gas emissions associated with the Mine at
between $277 million to $2.5 billion annually at the projected emissions rate of
23.16 million metric tons per year, ifthe expansion is approved. (Doc. 42 at
Defendants deem such a calculation speculative because of the uncertainty
regarding combustion locations, transport routes, and emissions controls and an
absence of methods to reasonably evaluate specific impacts associated with the
mine expansion. (Doc. 48 at 38-39; Doc. 52 at 38-39.) However, as discussed
above, the level of uncertainty concerning the potential impacts of the mine
expansion does not rise to speculation, and such uncertainty militates in favor of
an EIS, not against it.
Further, by concluding that different coal will be burned in place of Bull
Mountain coal if the Mining Plan is not approved, the Enforcement Office
essentially zeroed the climate change impacts scale. AR 021359. "General
statements about possible effects and some risk do not constitute a hard look
absent a justification regarding why more definitive information could not be
provided." Neighbors of Cuddy Mountain v. US. Forest Serv., 137 F.3d 1372,
13 80 (9th Cir. 1998). The illogical conclusion that the expansion would cause no
net greenhouse-gas impacts, and that analysis of other coal emissions would be
speculative, did not resolve the uncertainty of air pollution impacts of burning
Bull Mountain coal. The Enforcement Office did not take a hard look at the
Mining Plan's effects on air pollution in its intensity evaluation.
Wetlands (Count V)
Plaintiff finally argues the Enforcement Office arbitrarily and capriciously
failed to consider impacts to wetlands from the mine expansion in making its
significance determination, even though the Mining Plan EA determined that mine
expansion may dewater some spring-fed wetlands, and that mitigation of that
dewatering would be precluded by legal limitations on the availability of
replacement water. (Doc. 41 at 34-35.) Because the Enforcement Office took a
hard look at the impacts of mine expansion on wetlands, Plaintiff's argument fails.
The Mining Plan EA adopts the Coal Lease EA's analysis of impacts to
water resources, and contains additional analysis "updat[ing] expected impacts to
water quantity and quality based on monitoring and modeling completed since the
Coal Lease EA was prepared." AR 021339. It notes that "[m]ost observations to
date yield results that are in reasonable conformance to projections made in
Section 4.2.4 of the Coal Lease EA," but goes on to analyze "projected drawdown
in the Mammoth coal and upper underburden from mine dewatering," superseding
the Coal Lease EA analysis in that regard. Id. The Coal Lease EA in tum states
"[a]ll wells, springs, and seeps in the [Mine] area would be monitored throughout
the pre-mining and post-mining stages," and that "[i]f flow or supply is affected,
approved mitigation measures would be implemented in consultation with
[Montana DEQ]." AR 021422. "Surface water impacts would need to be
evaluated and site-specific replacement or mitigation plans developed by [Signal
Peak], in cooperation with the landowner, to ensure adequate long-term
replacement of the surface water source." Id.
As to springs, the Mining Plan EA notes some "may ... be adversely
affected by mining and the subsequent mining subsidence," but that "[t]he mine
permit ... includes plans for spring impact analysis, impact detection and
mitigation in accordance with regulatory requirements." AR 021349. It provides
that if springs "cannot meet the use that existed prior to mining, mitigation would
be implemented" via either spring redevelopment or construction of a replacement
water source. Id. It also discusses intermittent stream reach flows dependent upon
spring flow sources, which "may be affected by mining and may require repair or
Plaintiff points out that the Mining Plan EA states "[t]he rate of flow from
such a water supply well( s) would be constrained by State law pertaining to water
rights, likely precluding pumping for direct discharge down channel in the manner
comparable to spring discharge." Id. Indeed, the Mining Plan EA notes that the
Musselshell River Basin, where the Mine is located, "is closed to new
appropriations (MCA 85-2-343)." Id. However, it also notes that "[o]ther
methods described in the Coal Lease EA would remain available for mitigation of
spring impacts." Id.
Considering the above, the Enforcement Office took a hard look at the
impact of the mine expansion on wetlands. Because NEPA mandates outcomes,
not process, the Enforcement Office is entitled to deference on this issue.
Unaddressed Claims (Counts V &VII)
The Complaint alleges the Enforcement Office violated NEPA by failing to
consider reasonable alternatives (Count VII), (Doc. 1 at~~ 160-65), but Plaintiff
has not made that argument in the briefing. Beyond arguing that the Mining Plan
EA failed to adequately address impacts to wetlands, Plaintiff has not argued the
Enforcement Office violated NEPA by failing to take a hard look at water
pollution impacts (Count V). (Id.
147-53.) Because they have not been
argued, those claims are dismissed.
IT IS ORDERED that Montana Elders for a Livable Tomorrow and
Montana Chapter of the Sierra Club are DISMISSED FOR LACK OF
STANDING. IT IS FURTHER ORDERED that the caption is AMENDED as
IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment
(Doc. 40) is GRANTED IN PART and DENIED IN PART as follows:
1. The motion is DENIED as to Count I of the Complaint.
2. The motion is GRANTED as to Count II of the Complaint.
3. The motion is GRANTED as to Count III of the Complaint.
4. The motion is GRANTED as to Count IV of the Complaint.
5. The motion is DENIED as to Count V of the Complaint.
6. The motion is DENIED as to Count VI of the Complaint.
7. The motion is DENIED as to Count VII of the Complaint.
Defendants' Motions for Summary Judgment (Docs. 48, 51) are
correspondingly GRANTED and DENIED.
IT IS FURTHER ORDERED that the Mining Plan EA is VACATED and
SET ASIDE, and this matter is REMANDED to the Enforcement Office for
further action consistent with this Order. Although this Order does not mandate
the preparation of an EIS, an EIS may be required under NEPA.
IT IS FURTHER ORDERED that mining of the federal coal within the
Amendment 3 permit boundary, see AR 021298-99, is ENJOINED pending
compliance with NEPA.
IT IS FURTHER ORDERED that the Clerk of Court is directed to enter
judgment consistent with this Order and close the case file.
J!i day of August, 2017.
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