350 Mont. v. Haaland
| Decision Date | 10 February 2023 |
| Docket Number | CV 19-12-M-DWM |
| Parties | 350 MONTANA, et al., Plaintiffs, v. DEB HAALAND, et al., Defendants, and SIGNAL PEAK ENERGY, LLC, Defendant-Intervenor. |
| Court | U.S. District Court — District of Montana |
On October 14, 2022, the Ninth Circuit Court of Appeals affirmed in part and reversed in part the Court's March 09, 2020 Order, (Doc. 59), and remanded the matter for further proceedings, 350 Mont. v. Haaland, 50 F.4th 1254 1273 (9th Cir. 2022); (see also Docs. 68, 69). On December 2, 2022, a status hearing was held on the record to consider how the parties wished to proceed in light of the Circuit's order; specifically, whether remand to the agency, vacatur, and/or additional factfinding were needed. (See Doc. 83 (Min. Entry); see also Doc. 92 (Trans.).) Subsequently, the parties were ordered to brief the issue of vacatur.
(Doc. 84.) Having considered their responses, (see Docs. 94, 95, 96), vacatur is warranted.
The Bull Mountains Mine No. 1 (the “Mine”) is an underground coal mine in central Montana, located approximately 30 miles north of Billings, and operated by Defendant-Intervenor Signal Peak Energy, LLC (“Signal Peak”). A detailed accounting of the Mine's history and the regulatory framework in which it operates can be found in the March 2020 Opinion and Order. (See Doc 59 at 2-3.) Relevant here, the Court previously vacated and set aside the United States Office of Surface Mining Reclamation and Enforcement's (“Enforcement Office”) 2015 environmental assessment (“2015 EA”), assessing a proposed expansion of mining on Signal Peak-leased federal land at the Mine (“Mine Expansion”) and enjoined mining federal coal within the expansion boundary pending compliance with the National Environmental Policy Act (“NEPA”). Mont Envtl. Info. Ctr. v. U.S. Off. of Surface Mining, 274 F.Supp.3d 1074, 1105 (D. Mont. 2017). The Enforcement Office then published another EA in 2018 (“2018 EA”) again approving the Mine Expansion. (See Doc. 59 at 2.) Plaintiffs in this case challenged the 2018 EA. (See generally Doc. 1.) After considering the parties' cross motions for summary judgment, the Court vacated the 2018 EA and remanded the matter to the Enforcement Office for further action. (Doc. 59 at 31-32.) Federal Defendants and Plaintiffs promptly appealed. (Docs. 61, 62.)[1]
On appeal, the Ninth Circuit held that the Enforcement Office violated NEPA by “failing to provide a convincing statement of reasons why the [Mine Expansion]'s impacts are insignificant.” 350 Mont., 50 F.4th at 1259 (internal quotation marks omitted). The matter was remanded to this Court “to determine whether vacatur of the plan approval is warranted at this juncture.” Id. at 1273. The Circuit also instructed that the Court “may reconsider, based on the existing record, whether to order an EIS, or remand to the agency to determine where to prepare a new EA or an EIS.” Id. The Circuit further explained that “there is a dearth of evidence concerning the impact of vacatur, including whether Signal Peak is currently mining federal coal or state coal” and that “[a]dditional factfinding is necessary to determine whether vacatur of the plan approval is warranted at this juncture. Id.
Most recently, the Enforcement Office “has decided to prepare an environmental impact statement (“EIS”) regarding Signal Peak's proposed Mine Expansion to address the concerns raised by the court in its order.” (Doc. 94-1 at ¶ 5.) The agency expects the EIS process to take 20 months. (Id. at ¶ 7.)
Based on the factual record, an evidentiary hearing regarding the impact of vacatur is not required. While the agency record has remained static, the postremand record is now sufficient to make a determination about vacatur.
Because the Enforcement Office has already decided to prepare an EIS, only the question of vacatur remains. “Although not without exception, vacatur of an unlawful agency action normally accompanies a remand.” All. for the Wild Rockies v. U.S. Forest Serv., 907 F.3d 1105, 1121 (9th Cir. 2018) (emphasis omitted). But a district court “is not required to set aside every unlawful agency action,” Nat'l Wildlife Fed. v. Espy, 45 F.3d 1337, 1343 (9th Cir. 1995), and may “leave invalid agency action in place when equity demands,” Ctr. for Food Safety v. Regan, 56 F.4th 648, 663 (9th Cir. 2022) (internal quotation marks omitted). To determine whether an agency's action should remain in effect on remand, courts must weigh “the seriousness of the agency's errors against the disruptive consequences of an interim change that may itself be changed.” Id. (internal quotation marks omitted). Because vacatur is the default remedy, the party opposing it has the burden to show that it is unnecessary. Friends of the Earth v. Haaland, 583 F.Supp.3d 113, 157 (D.D.C. 2022).
Here, Plaintiffs ask the Court to follow the presumptive remedy for agency error and vacate. (Doc. 95 at 7.) Federal Defendants, on the other hand, request that vacatur be deferred pending the Enforcement Office's preparation of an EIS and the issuance of a new approval decision. (Doc. 94 at 2.) Finally, Signal Peak argues that the equities favor allowing it to mine federal coal in the Mine Expansion area while the Enforcement Office prepares an EIS. (Doc. 96 at 2.) Ultimately, vacatur is appropriate because Federal Defendants and DefendantIntervenor fail to overcome the presumption in favor of vacatur and the equities favor that remedy. For the reasons outlined below, the Enforcement Office's Mine Expansion approval is vacated.
To determine the seriousness of an agency's errors, courts consider “whether the agency would likely be able to offer better reasoning or whether by complying with procedural rules, it could adopt the same rule on remand, or whether such fundamental flaws in the agency's decision make it unlikely that the same rule would be adopted on remand.” Ctr. for Food Safety, 56 F.4th at 663-664 (quoting Pollinator Stewardship Council v EPA, 806 F.3d 520, 532 (9th Cir. 2015)). “[W]here an EIS was required but not prepared, courts should harbor substantial doubt that the agency chose correctly regarding the substantive action at issue.” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, 985 F.3d 1032, 1052 (D.C. Cir. 2021), cert, denied sub nom. Dakota Access, LLC v. Standing Rock Sioux Tribe, 142 S.Ct. 1187 (2022) (internal quotation marks and emphasis omitted).[2]
Plaintiffs argue that the seriousness of the Enforcement Office's NEP A violation is demonstrated by the Circuit's harsh rebuke of their scientific analysis. (Doc. 95 at 14.) Federal Defendants characterize their NEPA violation narrowly and argue that it does not amount to a serious error. (Doc. 95 at 7.) And, while Signal Peak notes that the seriousness of an agency's errors is relevant, it does not substantively argue the issue. Because the Enforcement Office's NEPA violations were central to its 2018 EA, the errors were sufficiently serious to warrant vacatur.
The Circuit held that Enforcement Office violated NEPA in two key ways: (1) “by failing to provide a convincing statement of reasons to explain why [the] project's impacts are insignificant”; and (2) that in comparing Mine Expansion emissions to domestic analogues, the Enforcement Office “did not account for the emissions generated by coal combustion, obscuring and grossly understating the magnitude of the Mine Expansion's emissions relative to other domestic sources of [greenhouse gases].” 350 Mont., 50 F.4th at 1259 (internal quotation marks omitted). These errors were serious.
NEP A requires that a federal agency take a “hard look” at a project's environmental consequences before approval. Id. at 1265. Unless the agency finds that a project's impacts will be insignificant after this review, the agency must prepare an EIS that identifies and rigorously appraises the project's environmental effects. Id. “[The] EIS must be prepared before agency action is taken.” Standing Rock Sioux Tribe, 985 F.3d at 1039 (quoting Grand Canyon Trust v. FAA, 290 F.3d 339, 340 (D.C. Cir. 2002)); see 350 Mont., 50 F.4th at 1273 ().
Based on the 2018 EA, the Enforcement Office determined that the Mine Expansion would not have significant impacts on the environment and therefore an EIS was not necessary. However, the Circuit held that this finding was not properly supported and, subsequently, the Enforcement Office independently decided to prepare an EIS. The Enforcement Office's realization that there is a potential for significant environmental impacts from the Mine Expansion inherently demonstrates the seriousness of the agency's errors. The question here is whether “the agency is capable of resolving uncertainty regarding the magnitude of the project's contribution to the environmental harms identified in the EA.”
350 Mont., 50 F.4th at 1273. Because an EIS is now being conducted for the first time after repeated Mine Expansion approvals based on invalid EAs, and because the EA and the EIS processes involve such drastically different procedural and scientific requitements, Ctr. for Bio. Div. v. Natl Highway Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir. 2008), “on remand, a different result may be reached,” Pollinator Stewardship Council, 806 F.3d at 532. Contrary to Signal Peak's characterization, multiple EAs do not equate to an EIS. It is not a foregone conclusion that the agency will approve the expansion following the Enforcement Office's corrective NEPA process.
The Enforcement Office's errors cast substantial doubt on the agency's decision to approve the Mine...
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