Save Our Cumberland Mountains v. Kempthorne

• Decision Date: 29 June 2006
• Docket Number: No. 05-5663.,05-5663.
• Citation: 453 F.3d 334
• Parties: SAVE OUR CUMBERLAND MOUNTAINS, Appalachian Voices, The Sierra Club and Southern Appalachian Biodiversity Project, Plaintiffs-Appellants, v. Dirk KEMPTHORNE, Secretary of the United States Department of the Interior, in his official capacity; Jeffrey Jarrett, Director of the United States Office of Surface Mining Reclamation and Enforcement, in his official capacity; and Tim Dieringer, Director of the Knoxville Field Office of Surface Mining Reclamation and Enforcement, in his official capacity, Defendants-Appellees, National Coal Corporation, Intervenor-Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 334

453 F.3d 334

SAVE OUR CUMBERLAND MOUNTAINS, Appalachian Voices, The Sierra Club and Southern Appalachian Biodiversity Project, Plaintiffs-Appellants, v. Dirk KEMPTHORNE, Secretary of the United States Department of the Interior, in his official capacity; Jeffrey Jarrett, Director of the United States Office of Surface Mining Reclamation and Enforcement, in his official capacity; and Tim Dieringer, Director of the Knoxville Field Office of Surface Mining Reclamation and Enforcement, in his official capacity, Defendants-Appellees National Coal Corporation, Intervenor-Defendant-Appellee.

No. 05-5663.

United States Court of Appeals, Sixth Circuit.

Argued: March 6, 2006.

Decided and Filed: June 29, 2006.

ARGUED:

Scott A. Gollwitzer, Appalachian Voices, Asheville, North Carolina, for Appellants. Suzanne H. Bauknight, Assistant United States Attorney, Knoxville, Tennessee, Garry K. Grooms, Stites & Harbison, Nashville, Tennessee, for Appellees.

ON BRIEF:

Scott A. Gollwitzer, Appalachian Voices, Asheville, North Carolina, Stephen A. Sanders, Appalachian Citizens Law Center, Prestonsburg, Kentucky, Mary M. Mastin, Paddock & Mastin, Cookeville, Tennessee, for Appellants. Suzanne H. Bauknight, Pamela Steele, Assistant United States Attorneys, Knoxville, Tennessee, Garry K. Grooms, Stites & Harbison, Nashville, Tennessee, Charles P. Gault, United States Department of Interior, Knoxville, Tennessee, for Appellees.

Before: SUTTON and GRIFFIN, Circuit Judges; OBERDORFER, District Judge.^*

OPINION

SUTTON, Circuit Judge.

Four environmental groups filed this action contending that the Office of Surface Mining and Reclamation, an office of the Department of the Interior, abused its discretion (1) in conducting an environmental assessment of an application by the National Coal Corporation to mine roughly 1,100 acres in the Cumberland River watershed of northeastern Tennessee and (2) in issuing a finding of no significant environmental impact with respect to the application. Among other things, plaintiffs argued that the agency's environmental assessment did not take a sufficiently "hard look" at the consequences of the application, see Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory Agency Procedures, 422 U.S. 289, 322, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975), as mandated by the National Environmental Policy Act of 1969, Pub.L. No. 91-190, 83 Stat. 852 (codified as amended at 42 U.S.C. § 4321 et seq.), and that the agency arbitrarily concluded that the proposed mining would have no significant impact on the region's environment. The extensive record compiled by the agency, the many modifications made to the mining application by the coal company in response to concerns raised by the agency and the minimal long-term effects of the mining proposal on the environment all convinced the district court that the agency did not abuse its discretion.

While we affirm, we express one caveat in doing so. Throughout the environmental-assessment process and throughout this litigation, the Office of Surface Mining has taken the position that it need only consider three alternatives to the mining application—grant the license, deny the license or take no action. That approach, in our view, unduly circumscribes the scope of alternatives that the statute and regulations require federal agencies to consider. Nonetheless, because the administrative record shows that the agency in effect did consider other options to the coal company's license request (primarily modifications to the application that would diminish the environmental consequences of the mining) and because plaintiffs on appeal have not identified any concrete alternatives that the agency should have considered (but did not), we affirm.

I.

On June 28, 2002, the National Coal Corporation applied to the Office of Surface Mining for a permit to "conduct contour cross-ridge[ ] and auger coal mining operations on Zeb Mountain in Campbell and Scott Counties, Tennessee." D. Ct. Op. at 2. Commonly known as strip mining, cross-ridge mining removes surrounding rock with explosives to expose a seam of coal, which permits miners to excavate the coal with heavy mining equipment (and often with the use of additional explosives). Once a mining company has removed the surrounding rock, it also can remove the coal through auger mining, which accesses the coal with a large drill.

The coal company sought a permit to mine and build support structures on 1,148.7 acres of a 2,107 acre area. According to its application, the mining project would last about ten years and in the end would return all but a small portion of the affected land to its natural contours, including 412 acres of previously mined, unreclaimed land. Consistent with the requirements of the Surface Mining Control and Reclamation Act of 1977, Pub.L. No. 95-87, 91 Stat. 447 (codified as amended at 30 U.S.C. § 1201 et seq.), the coal company published its application in the local newspapers. And consistent with the Act, the Office of Surface Mining, which administers the Act on behalf of the Department of the Interior, solicited comments from "various federal, state[ ] and local governmental agencies and environmental organizations" about the application. D. Ct. Op. at 3. The United States Fish and Wildlife Service, the Tennessee Wildlife Resources Agency, the Division of Natural Heritage of the Tennessee Department of the Environment and Conservation, one of the plaintiffs and several other environmental organizations provided comments. The agency also held an informal conference about the application on October 17, 2002, which attracted 13 registered speakers and prompted 19 letters from interested parties.

As a result of this discourse and as a result of its own inquiry, the Office of Surface Mining issued seven notices of deficiency to the coal company. In response, the company revised and republished its proposed mining plan several times, making changes that affected nearly all areas of interest under the National Environmental Policy Act, including providing (1) greater protection for various animal species threatened by the mining, (2) improved contingencies for the treatment of potentially contaminated water, (3) a revised drainage-control plan, (4) a revised topsoil-handling plan, (5) improved land-reclamation standards, (6) a revised revegetation plan that included the use of hardwood trees, (7) a plan to reestablish the habitats of certain at-risk species and (8) a plan to protect local residents from the noise and dust caused by blasting.

The agency also conducted an environmental assessment of the plan, which examined the effects of the proposed mining on topography, geology, soils, vegetation, land use, aesthetics, hydrology, fish and wildlife, cultural and historic resources, air quality and socioeconomics. On June 30, 2003, the agency published this environmental assessment as well as a finding of no significant impact, and—upon the posting by the coal company of a $3.8 million bond designed to ensure that it meets its reclamation responsibilities—issued a permit for the company to begin mining.

On September 4, 2003, four environmental groups—Save Our Cumberland Mountains, Appalachian Voices, the Sierra Club and the Southern Appalachian Biodiversity Project—filed this lawsuit. They moved for a preliminary injunction, arguing that the federal agency had failed to comply with the National Environmental Policy Act because it drafted an incomplete environmental assessment and arbitrarily issued a finding of no significant impact. The district court denied the requested injunction on October 31, 2003, after which it granted the motion of the coal company to intervene as a defendant in the case. On February 23, 2005, the court granted the agency's motion for summary judgment, concluding that plaintiffs had failed to show that the agency's environmental assessment and its decision to issue a finding of no significant impact were "arbitrary, capricious or [abuses] of discretion." D. Ct. Op. at 21.

II.

Congress enacted the National Environmental Policy Act "[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment [and] to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man . . . ." 42 U.S.C. § 4321. To the ends of advancing this purpose, § 102 of the Act mandates that "all agencies of the Federal Government shall . . . include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment[ ] a detailed statement by the responsible official on"—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2)(C).

As suggested by the requirements of this "detailed statement"—what the regulations refer to as an "environmental impact statement," 40 C.F.R. § 1502.1—the Act serves procedural rather than substantive goals. It does not require agencies to "achieve particular substantive environmental results," Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), but requires them to "collect and disseminate information about the environmental consequences of proposed actions that fall under their respective jurisdictions," Sw. Williamson County Cmty. Ass'n v. Slater, 243 F.3d 270, 278 (6th Cir.2001); cf. Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1273-74 (10th Cir.2004) (contrasting the ...