274 F. Supp. 3d 1074
D. Mont.2017Background
- The Office of Surface Mining Reclamation and Enforcement (Enforcement Office) approved Signal Peak Energy’s federal mining plan modification for the Bull Mountains Mine No. 1 after preparing an Environmental Assessment (EA) and issuing a Finding of No Significant Impact (FONSI). Plaintiffs challenged that decision under NEPA.
- The Mine is an existing longwall/underground coal operation in central Montana; production estimates and permits have varied over time, and coal is largely exported. Prior NEPA analyses (1990 EIS, 1992 EIS, 2011 Coal Lease EA) were tiered to in the Mining Plan EA.
- Plaintiffs alleged multiple NEPA violations: failure to follow internal guidance; failure to prepare an EIS; inadequate consideration of indirect and cumulative impacts of coal transport and combustion (including GHGs); inadequate analysis of water/wetlands impacts; improperly narrow purpose-and-need; and failure to analyze reasonable alternatives.
- District court found (1) plaintiffs Montana Elders and Montana Sierra Club lacked standing and were dismissed; Montana Environmental Information Center retained standing; (2) Enforcement Office erred by not taking a hard look at indirect and cumulative impacts of coal transportation and coal combustion (GHG and non-GHG impacts) and therefore violated NEPA; (3) Enforcement Office did not violate NEPA by failing to follow its internal guidance and did not err on wetlands or purpose-and-need; (4) Mining Plan EA was vacated and remanded; mining of federal coal in the amendment boundary enjoined pending NEPA compliance.
- Court remanded without mandating an EIS but noted an EIS may be required given the identified deficiencies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Jensen and organizational plaintiffs alleged concrete recreational/aesthetic and health injuries from expansion and associated coal transport/combustion. | Defendants said declarations insufficiently tied harms to plaintiffs, especially for distant health impacts. | Jensen’s declaration sufficient; Montana Elders and Sierra Club dismissed for lack of standing. |
| Purpose & Need (Count VI) | EA unreasonably narrowed purpose to Signal Peak’s private objectives and omitted congressional energy-policy context, skewing alternatives. | Agency has discretion to define purpose; purpose tracked regulatory task (recommend approval/denial) and EA need not recite broader statutes. | Purpose-and-need was within agency discretion and not arbitrary/capricious. |
| Indirect & Cumulative Impacts — Coal Transportation (Count III) | EA ignored reasonably foreseeable non-local effects of increased rail traffic (diesel emissions, coal dust, noise, congestion) despite data and prior shipment estimates. | Defendants: routes/combustion locations speculative; prior EAs analyzed rail impacts and number of trains would not meaningfully increase. | EA failed to take a hard look at indirect and cumulative impacts of coal transport beyond the Broadview Spur; Plaintiff wins. |
| Indirect & Cumulative Impacts — Coal Combustion / GHGs (Count IV) | EA quantified emissions but refused to monetize climate costs (Social Cost of Carbon/Protocol) while quantifying economic benefits, producing a biased analysis; non-local non-GHG impacts also ignored. | Defendants: Protocol is for rulemaking cost-benefit analyses, not permits; linking specific emissions to specific climate impacts is scientifically uncertain. | EA arbitrarily failed to assess non-local non-GHG combustion impacts and failed to adequately analyze/cost greenhouse-gas impacts; Plaintiff wins. |
| Decision Not to Prepare an EIS (Counts I & II) | Agency ignored its own guidance and failed to present a convincing context/intensity analysis given controversial, uncertain, and cumulatively significant effects. | Agency said internal guidance lacks binding force, was considered, and EA qualitatively addressed impacts; further analysis would be speculative. | Agency did not violate NEPA by failing to follow internal guidance (nonbinding) but its FONSI failed to provide a convincing statement of reasons on context/intensity; remand required and EIS may be needed. |
| Wetlands / Water Impacts (part of Count V) | Mining may dewater spring-fed wetlands; mitigation constrained by state water law; EA insufficient. | EA tiered to prior analyses, updated monitoring/modeling, and includes mitigation/monitoring plans under state permit structure. | Court found Enforcement Office took a hard look at wetlands impacts; denial of relief on this claim. |
Key Cases Cited
- Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (Supreme Court) (describing Surface Mining Control and Reclamation Act’s objectives and federal/state program structure)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (Supreme Court) (arbitrary-and-capricious review standard)
- Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87 (Supreme Court) (NEPA requires a ‘‘hard look’’ but does not elevate environmental concerns over other factors)
- Friends of the Earth v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (Supreme Court) (standing for environmental plaintiffs based on recreational/aesthetic injuries)
- Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846 (9th Cir.) (substantial questions standard for when an EIS is required)
- Center for Biological Diversity v. National Highway Traffic Safety Admin., 538 F.3d 1172 (9th Cir.) (agency may not quantify benefits while ignoring quantifiable costs; relevance to greenhouse-gas valuation)
- Nat'l Parks & Conserv. Ass'n v. Babbitt, 241 F.3d 722 (9th Cir.) (agency must consider conflicting expert evidence and take a hard look)
- Presidio Golf Club v. National Park Serv., 155 F.3d 1153 (9th Cir.) (agencies must consider only reasonably foreseeable indirect effects; not required to consider highly speculative impacts)
- High Country Conservation Advocates v. U.S. Forest Serv., 52 F. Supp. 3d 1174 (D. Colo.) (agency arbitrary to quantify economic benefits while declining to monetize greenhouse-gas costs using available protocol)