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Impacts on Climate Change and Local Pollution Not Sufficiently Demonstrated to Block Coal Mining Lease

In a Christmas Eve decision, the D.C. Circuit Court rejected a challenge to the granting of a lease by the Bureau of Land Management to mine coal on public lands in Wyoming. In WildEarth Guardians, et. al. v. Jewell, two groups challenged the determination to lease certain public lands for coal mining, claiming that the environmental review under NEPA failed to adequately address issues related to increased local pollution and impacts on climate change from the activities to be conducted on the leased lands.

The Court found that the entities, as a result of the purposes of the entities and the underlying interests of their members had standing to bring the action:

“The procedural injury the Appellants claim-the allegedly deficient FEIS-is tied to their respective members’ concrete aesthetic and recreational interests. “[E]nvironmental 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, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (quoting Sierra Club v. Morton, 405 U.S. 727, 735)… plaintiff “must still demonstrate a causal connection between the agency action and the alleged injury.” City of Dania Beach, Fla., 485 F.3d at 1186; accord Ctr. for Law & Educ., 396 F.3d at 1160; see also Fla. Audubon Soc’y, 94 F.3d at 664–65 (“[A] procedural-rights plaintiff must show not only that the defendant’s acts omitted some procedural requirement, but also that it is substantially probable that the procedural breach will cause the essential injury to the plaintiff’s own interest.”). We think the Appellants have done so here because the local pollution that causes their members’ aesthetic and recreational injuries follows inexorably from the decision to authorize leasing on the West Antelope II tracts. ,,, The Appellants may challenge each of the alleged inadequacies in the FEIS because each constitutes a procedural injury connected to their members’ recreational and aesthetic injuries: Their members’ injuries are caused by the allegedly unlawful ROD and would be redressed by vacatur of the ROD on the basis of any of the procedural defects identified in the FEIS.”

In determining the merits, the Court noted that it must decide whether the actions were arbitrary or capricious. In undertaking that analysis, the Court noted its task was not to “fly speck” the record but merely to determine if the agency took a “hard look” at the issues. Analyzing the merits the Court determined there was no basis for overturning the determination and rejected all but two of the claims without discussion. Rejecting the claims that there was a failure to consider the impacts of the anticipated release from the coal on global warming the court held “current science does not allow for the specificity demanded by the Appellants, the BLM was not required to identify specific effects on the climate in order to prepare an adequate EIS.” The Court likewise rejected claims that there was a failure to consider the cumulative impacts of 11 other pending lease applications, noting whether those lease would ever be issued was speculative.

The Court further rejected the claim that there was a failure to address reasonable alternatives. In noting that WildEarth claimed a number of other alternatives should have been considered the Court stated:

“We sense a bit of sandbagging here. The PRBRC participated in the scoping hearing that preceded the draft EIS and submitted written comments on the draft EIS and WildEarth submitted written comments on the draft EIS that specifically addressed the draft’s discussion of reasonable alternatives. At no point did either WildEarth or the PRBRC mention the list of alternatives WildEarth raised at the last minute. To be sure, the BLM invited written comments on the FEIS, see 40 C.F.R. § 1503.1(b), and it had the opportunity to respond before it issued the ROD. But WildEarth’s final comments did not really respond to the FEIS; instead, they raised new issues.”

The remaining claim related to the impacts of pollution on the local ozone levels. The Court again rejected this claim finding that the analysis in the FEIS was adequate.

“The Appellants’ objections to the BLM’s analysis boil down to a dispute about the adequacy of using projected emissions of ozone precursors-like NOx and NO2-as proxies by which to analyze the impact of future ozone levels. They point to one report in the record observing that there is not a one-to-one correlation between NOx and ozone levels because ozone produced per molecule of NOx emissions varies considerably depending on local conditions….’The NEPA process involves an almost endless series of judgment calls,’ and ‘the line-drawing decisions necessitated by the NEPA process are vested in the agencies, not the courts.’ ” Duncan’s Point Lot Owners Ass’n, Inc. v. FERC522 F.3d 371, 376 (D.C. Cir. 2008) (quoting Coal. On Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C. Cir. 1987)) (alterations omitted). It may have been possible or even prudent for the BLM to separately model future ozone levels but we think that, given the limitations on such modeling and the critical role NOx plays in ozone formation, the BLM’s projections and extensive discussion of NOx and NO2 emissions suffice.”

-Steven Silverberg

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