738 F.3d 298 (D.C. Cir. 2013), 12-5300, WildEarth Guardians v. Jewell

Docket Nº:12-5300, 12-5312.
Citation:738 F.3d 298
Opinion Judge:KAREN LeCRAFT HENDERSON, Circuit Judge:
Party Name:WILDEARTH GUARDIANS, et al., Appellants v. Sally JEWELL, Secretary, U.S. Department of Interior, et al., Appellees. Powder River Basin Resource Council, CA-11-037, Appellant
Attorney:Samantha Ruscavage-Barz argued the cause for the appellants. Scott Gollwitzer and Matt Kenna were on brief. Michael P. Senatore entered an appearance. J. David Gunter II, Attorney, United States Department of Justice, argued the cause for the appellees. James Kaste, Senior Assistant Attorney Gene...
Judge Panel:Before: HENDERSON and BROWN, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Case Date:December 24, 2013
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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738 F.3d 298 (D.C. Cir. 2013)

WILDEARTH GUARDIANS, et al., Appellants

Powder River Basin Resource Council, CA-11-037, Appellant

v.

Sally JEWELL, Secretary, U.S. Department of Interior, et al., Appellees.

Nos. 12-5300, 12-5312.

United States Court of Appeals, District of Columbia Circuit.

December 24, 2013

Argued Nov. 18, 2013.

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Appeals from the United States District Court for the District of Columbia (No. 1:10-cv-01174).

Samantha Ruscavage-Barz argued the cause for the appellants. Scott Gollwitzer and Matt Kenna were on brief. Michael P. Senatore entered an appearance.

J. David Gunter II, Attorney, United States Department of Justice, argued the cause for the appellees.

James Kaste, Senior Assistant Attorney General, Office of the Attorney General for the State of Wyoming, Creighton R. Magid, Andrew C. Emrich and John A. Bryson were on brief for intervenors Antelope Coal, LLC, et al. in support of the appellees. Michael J. McGrady, Senior Assistant Attorney General, Office of the Attorney General for the State of Wyoming, and Jay C. Johnson entered appearances.

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Before: HENDERSON and BROWN, Circuit Judges, and GINSBURG, Senior Circuit Judge.

OPINION

KAREN LeCRAFT HENDERSON, Circuit Judge:

In April 2005, Antelope Coal LLC (Antelope Coal) filed an application with the Bureau of Land Management (BLM), an agency within the U.S. Department of the Interior (Interior), requesting that a tract of federal land adjacent to Antelope Coal's existing mine in the Wyoming Powder River Basin be offered for competitive lease sale to interested parties. In March 2010 the BLM issued a Record of Decision (ROD), dividing the land into two tracts (the West Antelope II tracts) and offering them for lease through separate competitive bidding processes. WildEarth Guardians, Defenders of Wildlife, the Sierra Club (collectively, WildEarth) and the Powder River Basin Resource Council (PRBRC and, collectively with WildEarth, Appellants) challenge the BLM's decision to approve the West Antelope II tracts for lease. They argue that the Final Environmental Impact Statement (FEIS) supporting the ROD is deficient in several respects. The district court granted summary judgment to the defendants,1 finding that the plaintiffs lacked standing to raise one of their arguments and that their remaining arguments failed on the merits. We conclude that, while they do have standing, their merits arguments fall short. Accordingly, we affirm the judgment of the district court.

I

A

Under the Mineral Leasing Act (MLA), 30 U.S.C. §§ 181 et seq., the Interior Secretary is authorized to offer leases on tracts of federal land suitable for coal mining and to award such leases based on a competitive bidding process. Id. § 201(a)(1). Pursuant to its authority under the MLA, see id. § 189, the BLM has promulgated regulations governing the competitive leasing of rights to extract federal coal. See 43 C.F.R. pt. 3420.

The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321 et seq., requires federal agencies, including the BLM, to consider and report on the environmental effect of their proposed actions. See Theodore Roosevelt Conservation P'ship v. Salazar (Theodore Roosevelt I), 616 F.3d 497, 503 (D.C.Cir.2010). " NEPA is an ‘ essentially procedural’ statute intended to ensure ‘ fully informed and well-considered’ decisionmaking...." New York v. NRC, 681 F.3d 471, 476 (D.C.Cir.2012) (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978)). " NEPA has twin aims. First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process." Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (citation and quotation

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marks omitted); accord Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 768, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). To meet these aims, NEPA requires an agency to prepare, and solicit public comment on, an environmental impact statement (EIS) whenever it proposes a " major Federal action[ ] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The EIS must consider, inter alia, " the environmental impact of the proposed action," id. § 4332(2)(C)(i); " any adverse environmental effects which cannot be avoided," id. § 4332(2)(C)(ii); see Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-52, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); and any " alternatives to the proposed action," 42 U.S.C. § 4332(2)(C)(iii); see Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 194-95 (D.C.Cir.1991) (noting that " alternatives" is not self-defining and " must be moored to ‘ some notion of feasibility’ " (quoting Vt. Yankee, 435 U.S. at 551, 98 S.Ct. 1197)). The EIS is to be prepared in consultation with any federal agency with special expertise relating to the environmental impact involved, 42 U.S.C. § 4332(2)(C) (flush language), and the Environmental Protection Agency (EPA) must review it and submit written comments, see id. § 7609(a). The EIS also must include a " cumulative impact" analysis addressing " the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions" of any agency or individual. 40 C.F.R. § 1508.7; see 40 C.F.R. § 1508.25; TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 864 (D.C.Cir.2006). NEPA does not, however, " require agencies to elevate environmental concerns over other appropriate considerations.... [I]t require[s] only that the agency take a ‘ hard look’ at the environmental consequences before taking a major action." Balt. Gas & Elec., 462 U.S. at 97, 103 S.Ct. 2246 (citation omitted) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976)). It requires informed decisionmaking " but not necessarily the best decision." New York, 681 F.3d at 476; see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 23, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (" NEPA itself does not mandate particular results." (quoting Robertson, 490 U.S. at 350, 109 S.Ct. 1835)).

The BLM is also constrained by the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. §§ 1701 et seq., which requires it to " manage the public lands under principles of multiple use and sustained yield," id. § 1732(a). Multiple use requires balancing the competing uses of land, id. § 1702(c); sustained yield requires the BLM to control depleting uses over time, id. § 1702(h). See also Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). The BLM does so by using a " multi-step planning and decisionmaking process" that begins with the formation of a land use plan for a geographic region called a resource management plan. Theodore Roosevelt I, 616 F.3d at 504; see 43 C.F.R. § 1601.0-5(n) (describing contents of resource management plan). The resource management plan " does not, however, include a decision whether to undertake or approve any specific action. Specific projects are reviewed and approved separately, but must conform to the relevant [plan]." Theodore Roosevelt I, 616 F.3d at 504 (citing 43 C.F.R. §§ 1601.0-5(n), 1610.5-3(a)); see also Norton, 542 U.S. at 59-60, 124 S.Ct. 2373.

B

The Wyoming Powder River Basin is the largest source of coal in the United States. It accounted for more than 33 per cent of all coal mined in the United States in 2003. An increasing percentage of the

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coal mined in the United States in recent years comes from the Powder River Basin because its coal is lower in sulfur than most coal, contains less fly ash when burned and can be mined using surface mining methods that are generally safer and less labor intensive than underground mining.

Antelope Coal operates a coal mine (Antelope Mine) in the Wyoming Powder River Basin. The Antelope Mine produced 33.9 million tons of coal in 2006, representing 7.9 per cent of the coal produced in the Wyoming Powder River Basin and 1.1 per cent of the estimated carbon dioxide (CO2) emissions in the United States. If production continues at average historical rates, the Antelope Mine's coal reserves will be depleted within the decade. In order to extend the life of the mine, Antelope Coal sought to lease the West Antelope II tracts, encompassing 4,100 acres of federal coal reserves on two separate tracts adjacent to the mine.

On April 6, 2005, Antelope Coal applied to the BLM, requesting that the West Antelope II tracts be offered for competitive lease sale. On October 17, 2006, the BLM published a notice of its intent to prepare an EIS for leasing the West Antelope II tracts and announced that it planned to hold a public " scoping" hearing to solicit comments on the issues to be considered in the EIS. On February 8, 2008, the EPA published a notice of the availability of the draft EIS and solicited public comment on it. The BLM received comments on the draft EIS at a public hearing and in writing. On December 19, 2008, the EPA published a notice of the availability of the FEIS. The FEIS spans nearly five hundred pages and includes the BLM's responses to public comments on the draft EIS. The BLM solicited further public comment on the FEIS and issued written responses to the comments it received. On March 25, 2010, the BLM issued the ROD, approving Antelope Coal's application and...

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