Wild Earth Guardians v. U.S. Forest Serv., Case No. 12-CV-85-ABJ
| Decision Date | 14 August 2015 |
| Docket Number | Case No. 12-CV-85-ABJ, Case No. 13-CV-42-ABJ, Case No. 13-CV-90-ABJ |
| Citation | 120 F.Supp.3d 1237 |
| Parties | Wild Earth Guardians, Powder River Basin Resource Council, and Sierra Club, Petitioners, v. United States Forest Service, United States Forest Service Chief, in his official capacity also known as Tom Tidwell, United States Forest Service Acting Region II Forester, in her official capacity also known as Maribeth Gustafson, United States Forest Service Acting Region II Deputy Forester, in his official capacity also known as Glenn Casamassa, Respondent. State of Wyoming, BTU Western Resources, Inc., National Mining Association, Wyoming Mining Association, Respondents-Intervenors. WildEarth Guardians and Sierra Club, Petitioners, v. United States Bureau of Land Management, Respondent. State of Wyoming, BTU Western Resources, Inc., National Mining Association, and Wyoming Mining Association, Respondents-Intervenors. Powder River Basin Resource Council, Petitioner, v. United States Bureau of Land Management, a federal agency within the United States Department of Interior, Sally Jewell, in her official capacity as United States Secretary of the Interior, Respondents. State of Wyoming, BTU Western Resources, Inc., National Mining Association, and Wyoming Mining Association, Respondents-Intervenors. |
| Court | U.S. District Court — District of Wyoming |
Jon D. Lavallee, Shannon Anderson, Powder River Basin Resource Council, Sheridan, WY, Michael Christopher Soules, EarthJustice Washington, DC, Nathan Maxon, Maxon Law Office, Lander, WY, Nathaniel Wallshein, University of Colorado Law School, Boulder, CO, for Petitioners.
John S. Most, Marissa A. Piropato, Department of Justice, Environment & Natural Resources Division, Washington, DC, Nicholas Vassallo, US Attorney's Office, Cheyenne, WY, for Respondent.
James C. Kaste, Michael James McGrady, Wyoming Attorney General's Office, Richard A. Mincer, Thomas A. Nicholas, III, Hirst Applegate, LLP, Beau Bryan Bump, Holland & Hart, Cheyenne, WY, Merril Hirsh, Peter S. Glaser, Troutman Sanders LLP, Washington, DC, Michael R. Drysdale, Dorsey & Whitney LLP, Minneapolis, MN, William B. Prince, Dorsey & Whitney, Salt Lake City, UT, Andrew C. Emrich, Holland & Hart, Greenwood Village, CO, for Respondents-Intervenors.
This matter comes before the Court for decision upon the merits of these three administrative appeals. The Court previously consolidated the cases for purposes of review. Case No. 12-CV-85-ABJ has been designated as the lead case. The petitioners have filed three separate opening briefs for consideration. The federal respondents (collectively identified as ‘United States‘ unless otherwise specifically stated) have filed a single opposition brief to the petitioners' three opening briefs; the respondents-intervenors (collectively ‘interveners‘) have filed a single joint response to these three briefs; petitioners have filed three separate replies. All submissions will be considered in this Opinion and Order, with distinctions made between the three separate appeals as required by context and necessity for clarity. The Court has reviewed the administrative record, the parties' written submissions, and applicable law. In these administrative appeals, review is confined to the administrative record.
The three cases identified in the caption above have been consolidated for review. These cases all concern approval of issuance of two large coal leases within the Powder River Basin in Wyoming, portions of which are located within the Thunder Basin National Grassland. The Bureau of Land Management (‘BLM ‘) authorized coal leases in areas identified as the North Hilight (‘NH ‘), South Hilight (‘SH‘), North Porcupine (‘NP‘), and South Porcupine (‘SP ‘) coal lease tracts (sometimes ‘the leases‘), which would expand the North Antelope Rochelle and Black Thunder mines in the Powder River Basin.
In Case No. 13-CV-42-ABJ, petitioners WildEarth Guardians (‘WEG‘) and Sierra Club challenge the BLM decisions approving the leasing of these tracts, asserting they do not comply with the requirements of federal law protecting air quality and climate. The Wright Area Final Environmental Impact Statement (‘FEIS‘)1 was issued July 2010 approving six coal leases including NH and SH, which will expand the Black Thunder Mine, and the NP and SP leases, expanding the North Antelope Rochelle Mine.2 AR 179. The petitioners assert violations of the National Environmental Policy Act (‘NEPA‘), 42 U.S.C. § 4321 et seq., and the Federal Land Policy and Management Act (‘FLPMA ‘), 43 U.S.C. § 1701 et seq. They seek review of the BLM's actions under the arbitrary and capricious standard of the Administrative Procedure Act (‘APA ‘), 5 U.S.C. § 706.
Petitioners contend that the BLM failed to comply with NEPA when it did not take a hard look at local air quality impacts resulting from coal mining, including direct and cumulative air quality impacts of ozone, direct effects of 24-hour PM10emissions and 24-hour and annual PM2.5emissions, and direct and cumulative effects of short-term nitrogen dioxide (NO2) emissions on air quality. Further, petitioners contend the BLM failed to take a hard look at climate impacts, including direct, indirect and cumulative impacts to climate caused by carbon dioxide (CO2) emissions from coal mining and combustion. They assert that climate impacts will not change under the No Action Alternative. They further contend that the agency failed to address a reasonable range of alternatives with respect to emissions and climate change.
In Case No. 13-CV-90-ABJ, petitioner Powder River Basin Resource Council (‘PRBRC‘) similarly challenges BLM decisions to approve the BLM's NP and SP Lease(s) by Application (‘LBAs‘), sought by BTU, a subsidiary of Peabody Energy Corporation, for the 9,607 acre expansion of the North Antelope Rochelle Mine. PRBRC also challenges the BLM's NH LBA, applied for by Ark Land Company, a wholly owned subsidiary of Arch Coal, Inc., for a 4,530 acre expansion of the Black Thunder Mine. These particular leasing decisions were analyzed as part of the BLM Environmental Impact Statement for the Wright Area FEIS, and approved by three separate Records of Decision (‘RODs‘). PRBRC asserts the BLM violated NEPA, by failing to take a hard look at critical reclamation reports from cooperating agencies on the FEIS, relying on inaccurate or misleading reclamation data, failing to take a hard look at contemporaneous reclamation at the Black Thunder and North Antelope Rochelle Mines and in the Powder River Basin, and by failing to include in the NEPA analysis compliance with Mineral Leasing Act (‘MLA‘) requirements that no corporation may hold or control at one time coal leases on an aggregate of more than 75,000 acres in any one state and no greater than an aggregate of 150,000 acres in the United States.
In Case No. 12-CV-85-ABJ, petitioners WEG, PRBRC, and Sierra Club challenge the United States Forest Service's (‘USFS‘) approval of two coal leases within the Thunder Basin National Grassland (‘Grassland‘), a unit of the National Forest System,3 including the NP and SP coal leases. Because the two tracts are partially located on Grassland, USFS must consent to the leases before the BLM can approve leasing of the tracts. The petitioners argue that as the agency charged with protecting land and resources in the Grassland, USFS was required to take a hard look at environmental consequences of the leases before consenting to approval of issuance of the leases by the BLM and did not do so. USFS relied heavily on the BLM's Wright Area EIS in issuing its RODs approving the leases. Petitioners claim the Wright Area FEIS and USFS RODs are deficient, in that USFS failed to consider reasonable alternatives to the leases, failed to consider measures to mitigate the effects of the mines on the area's groundwater supply, and failed to analyze an array of air quality impacts likely to result from the leases.
As to all three cases, the United States disagrees and in turn asserts the actions of the BLM and USFS satisfied requirements of NEPA. It argues that the climate change claims lack merit. The BLM took the required hard look at climate change impacts and the FEIS analysis of all alternatives, including the No Action Alternative was reasonable. Further, the FEIS properly considered direct and indirect air quality impacts of leasing, including those affecting ozone, particulate matter, nitrogen dioxide, as well as the impacts of coal combustion. As to groundwater and reclamation, the United States says the FEIS properly addressed these considerations. It further asserts the FLPMA, NFMA, and MLA claims lack merit.
The interveners suggest the petitioners do not have standing to bring this action. They contend that petitioners have not carried the NEPA burden of showing the BLM did not take a hard look at potential impacts. Flowing from that discussion, the intervenors further contend that petitioners have failed to show that the USFS violated the NFMA or NEPA. Their contentions essentially echo those set forth by the United States.
NEPA is a declaration of a ‘broad national commitment to protecting and promoting environmental quality. ‘ Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 347, 109 S.Ct. 1835,1844, 104 L.Ed.2d 351 (1989). ‘To ensure that this commitment is 'infused into the ongoing programs and actions of the Federal Government, the act also establishes some important 'action-forcing’ procedures.‘ Id. The statutory scheme directs federal agencies to prepare an Environmental Impact Statement, which must take a ‘hard look‘ at the potential impacts of the agency's proposed action. Id. at 350, 109 S.Ct. 1835,1844 ; 42 U.S.C. § 4332(2)(C). See also High Country Conservation Advocates v. United States Forest Service , 52...
To continue reading
Request your trial
-
Mont. Envtl. Info. Ctr. v. U.S. Office of Surface Mining, CV 15–106–M–DWM
...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, 35 (D.D.C. 2014) (citing scientific......
-
Zeroing Out Climate Change: A 'Hard Look' at Trump's Social Cost of Carbon
...Mary Beck Bris- 106. Southeast Market Pipeline , 2017 U.S. App. LEXIS 15911, at *27. 107. WildEarth Guardians v. U.S. Forest Serv., 120 F. Supp. 3d 1237, 1271 (D. Wyo. 2015). 108. Id . at 1272. 109. Id . at 1273. 110. Burger & Wentz, supra note 14, at 150. 111. Id . at 152 & nn.204, 207. 11......