62 F. Supp. 3d 7
D.D.C.2014Background
- NPCA challenges the 2008 Rule governing excess spoil, coal mine waste, and stream buffers enacted by OSM under SMCRA; the 2008 Rule revised the 1983 stream buffer zone rule and adopted new waiver criteria.
- NPCA also seeks to invalidate the 1996 Fish and Wildlife Service Biological Opinion and to require reinitiation of formal ESA consultation.
- OSM concluded the 2008 Rule would have no effect on listed species or critical habitat and did not initiate consultation, relying on the 1996 Biological Opinion.
- The 1996 Biological Opinion concluded no jeopardy from mining operations under SMCRA’s implementing regulations that existed at that time (including the 1983 buffer rule).
- The 2008 Rule changed the stream buffer standards and allowed certain diversions and excess spoil placements, potentially affecting listed species and habitat; evidence in EIS and final rule indicated changes could have environmental effects.
- Judicial posture: both sides cross-move for summary judgment; court evaluates ESA, APA, and SMCRA challenges, with focus on ESA §7(a)(2) compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did OSM violate ESA §7(a)(2) by failing to initiate formal consultation on the 2008 Rule? | NPCA asserts no consultation occurred despite potential effects on listed species. | OSM relied on no-effect rationale based on 1996 Opinion; informal steps insufficient. | Yes; failure to consult was arbitrary and capricious. |
| Was OSM’s reliance on the 1996 Biological Opinion to avoid consultation arbitrary and capricious? | NPCA contends reliance ignores new data post-1996 showing impacts on streams and aquatic life. | OSM reasonably relied on existing regulations and prior opinion to avoid new consultation. | Arbitrary and capricious; cannot justify no consultation. |
| What remedy is appropriate for the ESA violation? | Vacate or remand to ensure ESA obligations are satisfied. | Remand without vacatur may suffice; vacatur could disrupt regulated community but needed to correct error. | Vacate the 2008 Rule and remand for further proceedings. |
Key Cases Cited
- Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm, 463 U.S. 29 (U.S. 1983) (arbitrary and capricious review standard; reasoned decision required)
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (U.S. 1978) (highest priority to endangered species in statutory schemes)
- County of Los Angeles v. Shalala, 192 F.3d 1005 (D.C.Cir. 1999) (record must support agency’s no-effect conclusions; vacatur where not)
- Defenders of Wildlife v. Jackson, 791 F.Supp.2d 96 (D.D.C. 2011) (ESA consultation duties; structural considerations in challenges)
- Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136 (D.C.Cir. 2005) (remand vs. vacatur balancing factors for agency remedies)
- Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n., 988 F.2d 146 (D.C.Cir. 1993) (remand/ vacatur considerations in agency decision)