350 MONTANA; MONTANA ENVIRONMENTAL INFORMATION CENTER; SIERRA CLUB; WILDEARTH GUARDIANS v. DEBRA HAALAND, Secretary of the Department of the Interior; U.S. OFFICE OF SURFACE MINING; U.S. DEPARTMENT OF THE INTERIOR; MARCELO CALLE; DAVID BERRY; GLENDA OWENS; LAURA DANIEL-DAVIS; MARTHA WILLIAMS; UNITED STATES FISH AND WILDLIFE SERVICE
No. 20-35411
United States Court of Appeals, Ninth Circuit
April 4, 2022
D.C. No. 9:19-cv-00012-DWM
Appeal from the United States District Court for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted June 16, 2021 Anchorage, Alaska
Filed April 4, 2022
Before: Johnnie B. Rawlinson, Morgan Christen, and Ryan D. Nelson, Circuit Judges.
Opinion by Judge Christen;
Dissent by Judge R. Nelson
Mining / Environmental Law
The panel affirmed in part, and reversed in part, the district court‘s summary judgment in favor of the U.S. Department of the Interior (“Interior“) on all but one claim in an action brought by environmental groups challenging Interior‘s Office of Surface Mining Reclamation and Enforcement‘s approval of a proposal to expand a coal mine in south-central Montana.
Signal Peak Energy, LLC, an intervenor-appellee, sought to expand its mining operations. The expansion is expected to result in the emission of 190 million tons of greenhouse gases (GHGs). Interior published an Environmental Assessment (EA) in which it explained that the amount of GHGs emitted over the 11.5 years the Mine is expected to operate would amount to 0.44 percent of the total GHGs emitted globally each year. Based on a 2018 EA, Interior found that the project‘s GHG emissions would have no significant impact on the environment.
The district court granted summary judgment in favor of Interior on all but plaintiffs’ claim that Interior failed to consider the risk of coal train derailments. The district court vacated the 2018 EA, but not Interior‘s approval of the Mine Expansion, and remanded the matter to Interior to consider the risk of train derailment. Interior subsequently published
As a threshold issue, Signal Peak argued that the case was moot because plaintiffs challenged the 2018 EA, but the 2018 EA was superseded by the EA Interior published in 2020 after the district court remanded the case to the agency to consider the risk of train derailments. The panel held that the parties’ dispute was not moot. The 2018 EA pertaining to the Mine Expansion neither disappeared nor was it replaced. The relevant portions of it were expressly incorporated into the 2020 EA and reissued. Accordingly, the panel retained the ability to order relief in this case.
The panel held that Interior violated the National Environmental Policy Act (NEPA) by failing to provide a convincing statement of reasons why the project‘s impacts were insignificant. The 2018 EA failed to articulate any science-based criteria of significance in support of its finding of no significant impact (FONSI), but instead relied on the arbitrary and conclusory determination that the Mine Expansion project‘s emissions would be relatively minor. The panel, however, was not persuaded that Interior was required to use the Social Cost of Carbon metric (a method of quantifying the impacts of GHGs that estimates the harm, in dollars, caused by each incremental ton of carbon dioxide emitted into the atmosphere in a given year) to quantify the environmental harms stemming from the project‘s GHG emissions. The panel further held that it was less clear whether the agency had any other metric available to assess the impact of this project. Because additional factfinding was necessary to decide whether an environmental impact statement (EIS) was required, and the record concerning the
Judge R. Nelson dissented. He would hold that the agency‘s finding – that the incremental effects of 0.04% of annual GHG emissions were “minor” – was not arbitrary or capricious under the Administrative Procedure Act (APA); and the majority‘s contrary holding was wrong given the deferential APA review. Judge Nelson agreed with the majority‘s decision not to vacate Interior‘s approval of the Mine Expansion or direct Interior to prepare an EIS. He would hold that Interior‘s FONSI was neither arbitrary nor capricious under NEPA. Even if it were, the action should be remanded to the agency to compile a new administrative record and final decision, not to the district court.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Shiloh S. Hernandez (argued) and Melissa A. Hornbein Western Environmental Law Center, Helena, Montana; Nathaniel Shoaff, Sierra Club, Oakland, California; for Plaintiffs-Appellants.
Brian C. Toth (argued), Michelle-Ann Williams, and Robert J. Lundman, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Kristen C. Guerriero and Emily D. Morris, Attorneys; Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Defendants-Appellees.
Mark Norman Templeton and Robert Adam Weinstock, Attorneys; Andrew Burchett, Justin Taleisnik, and Daniel Abrams, Clinic Law Students; Abrams Environmental Law Clinic, Chicago, Illinois; for Amicus Curiae Professor Michael Greenstone.
Richard L. Revesz, Max Sarinsky, and Jason A. Schwartz, Institute for Policy Integrity, New York, New York, for Amicus Curiae Institute for Policy Integrity at New York University School of Law.
OPINION
CHRISTEN, Circuit Judge:
In 2018, the Department of the Interior‘s Office of Surface Mining Reclamation and Enforcement (Interior) approved a proposal to expand a coal mine in south-central Montana. The expansion is expected to result in the emission of 190 million tons of greenhouse gases (GHGs). Interior published an Environmental Assessment (EA) in which it explained that the amount of GHGs emitted over the 11.5 years the Mine is expected to operate would amount to 0.44 percent of the total GHGs emitted globally each year.1
We conclude that Interior violated the National Environmental Policy Act (NEPA),
The presumptive remedy for violations of NEPA and the Administrative Procedure Act is vacatur.
I
i
Intervenor-Appellee Signal Peak Energy, LLC operates Bull Mountains Mine No. 1 (the Mine), which is located approximately thirty miles north of Billings, Montana. In 2008, Signal Peak applied to the Bureau of Land Management (BLM) to lease approximately 2,679.76 acres of federal coal. See Mont. Env‘t. Info. Ctr. v. U.S. Off. of Surface Mining, 274 F. Supp. 3d 1074, 1083 (D. Mont. 2017).
In 2012, Signal Peak applied to the Montana Department of Environmental Quality (Montana DEQ) to amend its mining permit. Specifically, Signal Peak sought to expand its mining operation by 7,161 acres, “adding 176 million tons of coal to its permitted mineable reserves.” Mont. Env‘t Info. Ctr., 274 F. Supp. 3d at 1084. The Montana DEQ approved Signal Peak‘s application. Id.
In 2013, Signal Peak requested approval of a mining plan modification for its federal coal lease from OSMRE. Id. The 2013 modification request sought to expand coal development and mining operations into 2,539.76 acres of the remaining federal coal lands. Id. Signal Peak describes the area as “a ‘checkerboard’ of federal minerals interspersed with privately-owned and state-owned minerals.” Interior prepared a second EA, issued a FONSI, and approved the mining plan modification in 2015.
On remand from the district court, Interior completed a third EA and FONSI and again approved Signal Peak‘s Mine Expansion in 2018. Interior‘s 2018 EA declined to employ the SCC to quantify the costs of the project‘s anticipated GHG emissions for four reasons: (1) the SCC was originally developed for use in rulemakings, not individual adjudications; (2) the technical supporting documents and associated guidance underlying the SCC had been withdrawn; (3) NEPA does not require agencies to perform cost-benefit analyses; and (4) the 2018 EA did not fully quantify the social benefits of “coal-fired energy production,” and therefore using the SCC to quantify the costs of GHG
Plaintiffs returned to district court to challenge Interior‘s 2018 EA, FONSI, and approval of the Mine Expansion. Plaintiffs’ first argument was that Interior violated NEPA again by declining to employ the SCC analysis. 350 Montana v. Bernhardt, 443 F. Supp. 3d 1185, 1197 (D. Mont. 2020). Plaintiffs also argued:
Signal Peak argues the Office acted reasonably when it quantified the greenhouse gas emissions from the mine expansion, calculated what percentage of total annual global emissions the mine‘s emissions represent (0.04%), and determined that the mine expansion‘s contribution would be minor. (Doc. 42 at 16.) The comparison of the mine expansion‘s emissions to global emissions is not reasonable; it is misleading; and it is unlawful. See supra note 10. It is easy, but misleading, to make highly significant effects appear trivial, merely by swelling the denominator, as the EA did. Sw. Elec. Power Co. v. EPA, 920 F.3d 999, 1032-33 (5th Cir. 2019) (a “very small portion” of a “gargantuan source of [harmful]
pollution” may nevertheless “constitute[ ] a gargantuan source of [harmful] pollution on its own terms“); accord Guardians, 2019 WL 2404860, at *9 (dilution misleading).
Pls.’ Response-Reply at 15–16, 350 Montana v. Bernhardt, 443 F. Supp. 3d 1185 (D. Mont. 2020) (No. 9:19-CV-12), 2019 WL 4954687. The district court was persuaded that Interior‘s rationale for not using the SCC was supported by the record and satisfied NEPA. 350 Montana, 443 F. Supp. 3d at 1196. Implicit in the district court‘s ruling was the conclusion that the metric Interior did use constituted the required “hard look” at the Mine Expansion‘s environmental effects and adequately supported Interior‘s FONSI. The district court granted summary judgment in favor of Interior on all but plaintiffs’ claim that Interior failed to consider the risk of coal train derailments along the corridor between the Mine site and the port at Vancouver, British Columbia. Id. at 1202. The district court vacated the 2018 EA, but not Interior‘s approval of the Mine Expansion, and remanded the matter to Interior to consider the risk of train derailments. Interior has since published a fourth EA that incorporates the 2018 EA and considers the risk of train derailments for the first time (the 2020 EA).4
ii
At the outset, we note a stark contrast between this appeal and previous cases, in which the impact of GHGs on global warming, climate change, and the environment was debated. See, e.g., Massachusetts v. E.P.A., 549 U.S. 497, 507–13 (2007) (citation omitted) (discussing the status of the scientific consensus concerning GHGs and climate change and noting EPA‘s determination that regulating GHG emissions would be unwise because “a causal link between [GHGs and climate change] cannot be unequivocally established“). Here, the parties do not dispute that GHGs cause global warming, that global warming causes climate change, or that human activity is likely the primary cause of these phenomena.5 Indeed, Interior‘s 2018 EA includes dozens of sobering and unchallenged observations concerning the effects of global warming and climate change on the environment, including:
- “This period is now the warmest in the history of modern civilization,” and “[b]ased on extensive evidence, it is extremely likely that human activities, especially emissions of GHGs, are the dominant cause
of the observed warming since the mid-20th century.”6 - “Thousands of studies conducted by researchers around the world have documented changes in surface, atmospheric, and oceanic temperatures; melting glaciers; diminishing snow cover; shrinking sea ice; rising sea levels; ocean acidification; and increasing atmospheric water vapor.”7
- “Global sea level rise has already affected the US; the incidence of daily tidal flooding is accelerating in more than 25 Atlantic and Gulf Coast cities.”8
- “Global average sea levels are expected to continue to rise by at least several inches in the next 15 years and by 1 to 4 feet by 2100. A rise of as much as 8 feet by 2100 cannot be ruled out.”9
- “The incidence of large forest fires in the western US and Alaska has increased since the early 1980s and is projected to further increase in those regions as the
climate changes, with profound changes to regional ecosystems.”10 - “It is very likely that heat waves will occur more often and last longer, and that extreme precipitation events will become more intense and frequent in many regions.”11
- “The magnitude of climate change beyond the next few decades will depend primarily on the amount of GHGs (especially CO2) emitted globally.”12
- “Continued emission of GHGs will cause further warming and long-lasting changes in all components of the climate system, increasing the likelihood of severe, pervasive, and irreversible impacts for people and ecosystems.”13
Far from reflecting an ongoing debate, the 2018 EA succinctly depicts the impact of GHGs on the environment in the following graphic illustration: “GHG emissions and other
Against this uncontroverted backdrop, Interior found that the Mine Expansion will have no significant impacts on the climate or the environment relative to cumulative statewide, national, and global GHG emissions. Interior based its FONSI on three simple comparisons: (1) a comparison of the total projected GHG emissions generated by the 11.5 year Mine Expansion project against total annual global GHG emissions; (2) a comparison of the projected GHG emissions from the Mine Expansion‘s activities in the United States against the United States’ annual GHG emissions; and (3) a comparison of the projected GHG emissions from the Mine Expansion‘s activities in the United States against Montana‘s annual GHG emissions. Though Interior asserts it “quantifie[d] the emissions estimated to result from burning the coal . . . [and] analyzes them in the global, national, and regional contexts,” this statement is somewhat misleading. The comparison of the emissions generated by the Mine Expansion‘s activities in the United States against national GHG emissions and Montana‘s emissions did not account for combustion of the coal overseas; the two domestic comparisons only considered emissions generated by mining the coal and transporting it to a port in Vancouver, British Columbia.
II
We review de novo a district court‘s order granting summary judgment. Bark, 958 F.3d at 869. “The Administrative Procedure Act (APA),
III
As a threshold issue, Signal Peak argues this case is moot because plaintiffs challenge the 2018 EA. Signal Peak contends the 2018 EA has been superseded by the EA Interior published in 2020 after the district court remanded the case to the agency to consider the risk of train derailments. Interior takes no position on whether the 2020 EA moots this appeal.
“The doctrine of mootness, which is embedded in Article III‘s case or controversy requirement, requires that an actual, ongoing controversy exist at all stages of federal court proceedings.” Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 862 (9th Cir. 2017) (citation and internal quotation marks omitted). “The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted.” Id. (citation and internal quotation marks omitted). An action “‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.‘” Id. (quoting Chafin v. Chafin, 568 U.S. 165, 172 (2013)).
That the 2018 EA is expressly incorporated into the 2020 EA distinguishes this case from the cases Signal Peak cites. For example, in Wyoming v. U.S. Department of Agriculture, 414 F.3d 1207 (10th Cir. 2005), Wyoming challenged a rule implemented by the U.S. Forest Service. Id. at 1210–11. The rule was enjoined by the district court and, the day after argument in the circuit court, the Forest Service “replac[ed]” the challenged rule with a materially different one. Id. at 1211. Because “[t]he portions of the [original rule] that were substantively challenged by Wyoming no longer exist[ed],” the Tenth Circuit held that the parties’ dispute was moot because the court could not “render a decision on the validity of the now nonexistent [original rule].” Id. at 1212–13. Similarly, in Theodore Roosevelt Conservation Partnership v. Salazar, the plaintiff argued the Bureau of Land Management failed to adhere to the requirements found
The 2018 EA pertaining to the Mine Expansion has neither disappeared nor been replaced. The relevant portions of it were expressly incorporated into the 2020 EA and reissued. Accordingly, we retain the ability to order relief in this case, and the parties’ dispute is not moot.
IV
Plaintiffs argue that Interior violated NEPA by failing to take a “hard look” at the actual environmental effects of the Mine Expansion‘s GHG emissions, and by failing to provide a convincing statement of reasons for its finding that the Mine Expansion will not have a significant effect on the environment. Plaintiffs again press their argument that the agency should have used the Social Cost of Carbon metric, and also argue that the three comparisons the agency did use fall short of the mark:
Without some actual analysis of the incremental impacts “it would be impossible for [an agency] to know whether a change in GHG emissions of 0.2%, or 1% or 5% or 10% will be a significant step toward averting the tipping point and irreversible adverse climate change.” Ctr. For Biological Diversity, 538 F.3d at 1221 (internal quotation marks
and ellipses omitted) (argument of appellant); id. at 1221–23 (accepting argument). . . .
Here, in direct contravention of the teaching of Center for Biological Diversity, OSM‘s analysis of the mine‘s 240 million tons of GHG emissions consisted of nothing more than comparing this figure to total global GHG emissions and then discounting it as less than one percent and therefore “minor” and “insignificant.” ER0135–36. As in Center for Biological Diversity, this unenlightening analysis violated NEPA.”
“We examine the EA with two purposes in mind: to determine whether it has adequately considered and elaborated the possible consequences of the proposed agency action when concluding that it will have no significant impact on the environment, and whether its determination that no EIS is required is a reasonable conclusion.” Ctr. for Biological Diversity v. Nat‘l Highway Traffic Safety Admin., 538 F.3d 1172, 1215 (9th Cir. 2008). “Federal agencies must undertake a ‘full and fair’ analysis of the environmental impacts of their activities,” and “NEPA imposes procedural requirements designed to force agencies to take a ‘hard look’ at environmental consequences” of their proposed actions. League of Wilderness Defs./Blue Mountains Biodiversity Project, 752 F.3d at 762–63 (citation omitted). To satisfy the “hard look” requirement, an agency must provide “a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Ctr. for
“In reviewing an agency‘s decision not to prepare an EIS, the arbitrary and capricious standard under the APA requires this court ‘to determine whether the agency has taken a ‘hard look’ at the consequences of its actions, ‘based [its decision] on a consideration of the relevant factors,’ and provided a ‘convincing statement of reasons to explain why a project‘s impacts are insignificant.‘” Barnes v. U.S. Dep‘t of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011) (quoting Env‘t Prot. Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1009 (9th Cir. 2006)). “The unequivocal intent of NEPA is to require agencies to consider and give effect to the environmental goals set forth in the Act“—informing the public and ensuring agency consideration of the environmental impacts of its actions—“not just to file detailed impact studies which will fill governmental archives.” Ctr. for Biological Diversity, 538 F.3d at 1214–15 (quoting Env‘t Def. Fund, Inc. v. Corps of Eng‘rs of U.S. Army, 470 F.2d 289, 298 (8th Cir. 1972)).
The 2018 EA thoroughly supported the relationship between GHG emissions and climate change and included an unvarnished summary of the broad consensus that has emerged from the scientific community—that climate change
Interior did not cite any scientific evidence supporting the characterization of the project‘s emissions as “minor” compared to global emissions, nor did it identify any science-based criteria the agency used in its determination. “Without some articulated criteria for significance in terms of contribution to global warming that is grounded in the record and available scientific evidence,” id. at 1224–25 (internal quotation marks and citation omitted), Interior‘s conclusion that the Mine Expansion‘s GHG emissions will be “minor” is deeply troubling and insufficient to meet Interior‘s burden.
Counsel for Interior and Signal Peak both directed the court to Appendix D as support for Interior‘s FONSI. Appendix D is included as an addendum to this decision. It reflects the scientific community‘s agreement that GHGs cause global warming and climate change, and identifies consequences of climate change that the agency describes as “profound,” but Appendix D is untethered to the agency‘s conclusion that the Mine Expansion will have no significant impact on the environment. The reader is left with the agency‘s unsupported assertion that the Mine Expansion‘s
The lack of a science-based standard for significance is critical because the record before us reflects no dispute that GHGs cause global warming and have had dramatic effects on the environment. The only question is the extent to which this particular project‘s GHGs will add to the severe impacts of climate change. It is worth repeating that the parties do not dispute the Mine is anticipated to generate more GHGs annually than the “largest single point source of GHG emissions in the United States.” When asked at oral argument, Interior did not dispute that if a project of this scale can be found to have no significant impact, virtually every domestic source of GHGs may be deemed to have no significant impact as long as it is measured against total global emissions. Cf. Sw. Elec. Power Co. v. E.P.A., 920 F.3d 999, 1032 (5th Cir. 2019) (observing, in a Clean
Plaintiffs argue that our opinion in Center for Biological Diversity requires reversal of Interior‘s FONSI determination. In Center for Biological Diversity, a group of states and public interest organizations petitioned for review of a final rule promulgated by the National Highway Traffic Safety Administration (NHTSA). 538 F.3d at 1180. The EA in that case catalogued the total tonnage of CO2 emissions that would result from its final rule and compared that number to the total GHG emissions generated in the United States to forecast that the rule would “result in cumulative reductions . . . ranging from 0.2 to 0.3 percent of U.S. greenhouse gas emissions.” Id. at 1215–16. Petitioners challenged the rule pursuant to the
In Center for Biological Diversity, we agreed that the final rule failed to satisfy NEPA‘s “hard look” and “convincing statement of reasons” requirements. Id. at 1181–82, 1220–21. Though the agency determined the projected 0.2 percent decrease in the rate of GHG emissions would not have a significant impact on the environment, petitioners had argued that other fuel-economy standards would have yielded a significantly greater reduction in GHG emissions and NHTSA‘s conclusion was “unaccompanied by
Interior counters that our opinion in Barnes, 655 F.3d at 1139, requires the conclusion that the FONSI in this case was adequately supported. In Barnes, the Federal Aviation Administration prepared an EA and FONSI concerning a proposal to construct a new runway at Hillsboro Airport in Oregon. 655 F.3d at 1126. Relevant here, the FAA‘s EA estimated that “global aircraft emissions account for about 3.5 percent of the total quantity of greenhouse gas from human activities and that U.S. aviation accounts for about 3 percent of total U.S. [greenhouse] gas emissions from human sources.” Id. at 1140. Because the Hillsboro Airport “represent[ed] less than 1 percent of U.S. aviation activity,” the EA estimated that GHG emissions from existing and future aviation activity at the airport would “represent less than 0.03 percent of U.S.-based greenhouse gases.” Id.
Interior calls our attention to Barnes because that case recognized that the effect of greenhouse gases on climate is
The 2018 EA‘s domestic comparisons also failed to provide a convincing rationale in support of the FONSI, and fell short of NEPA‘s requirement that environmental information be made available to citizens before decisions are made,18 because the U.S.- and Montana-based comparisons do not account for emissions generated by combustion of the project‘s coal. The district court cited the EA‘s domestic comparisons, 350 Montana, 443 F. Supp. 3d at 1198–99, but did not specifically discuss that those calculations only include the emissions generated by mining the coal and transporting it to Vancouver, where it is shipped overseas. As the EA explains, 97 percent of GHGs from the project will
The failure to account for combustion-related emissions in the domestic comparisons cannot be explained as an attempt to measure the Mine Expansion‘s local impact because there is no question that the coal from the Mine Expansion is intended to be sold for combustion.19 The omission of combustion-related emissions also contradicts a key premise of the 2018 EA—that climate change is a global problem. None of the parties argue that the fact the coal will be burned overseas minimizes the significance of the resulting GHGs. Yet when asked at oral argument about the failure to account for combustion-related emissions, counsel demurred. Put simply, there is no cogent rationale that justifies excluding combustion-related emissions from the 2018 EA‘s domestic comparisons. The starting point of the agency‘s analysis was its recognition that GHGs are a global problem. It follows that any meaningful measure of a local point source‘s contribution to global GHGs cannot exclude combustion-related emissions, regardless of where the coal is burned.20
The EA‘s U.S.- and Montana-based comparisons change dramatically if they are modified to account for combustion of the Mine Expansion‘s coal. The estimate of the project‘s domestic emissions jumps from .04 percent of annual U.S.-based GHG emissions to approximately 3.33 percent if combustion-generated emissions are included. And the calculation jumps from 6.43 percent of Montana‘s annual GHG emissions to 519 percent of Montana‘s annual GHG emissions if combustion-related GHG emissions are included.21 We do not specify a particular format for
Our conclusion that the 2018 EA failed to provide a convincing statement of reasons to explain why the Mine Expansion‘s impacts are insignificant begins with Interior‘s
54,000 = annual global Mt-CO2e.
7,261 = annual US Mt-CO2e.
46.3 = annual Montana Mt-CO2e (2020 projection).
240.1 = total Mine expansion emissions over the life of the project.
240.1 / 11.5 = 20.9 Mt-CO2e = approximate average annual Mine emissions
240.1 / 7,261 = .033 = 3.33%
240.1 / 46.3 = 5.19 = 519%
Beginning in its first paragraph, the partial dissent attributes findings to the agency that it did not make,24 sets up
At oral argument, the agency did not deny that every domestic project, viewed individually, will generate GHGs that can be described as “minor” when compared to global
V
Plaintiffs also argue that Interior arbitrarily and capriciously failed to use the Social Cost of Carbon metric to quantify the environmental harms that may result from the project‘s GHG emissions. The SCC is “a method of quantifying the impacts of GHGs” that estimates the harm, in dollars, caused by each incremental ton of carbon dioxide emitted into the atmosphere in a given year. The SCC was developed in 2010 by the Interagency Working Group on the Social Cost of Carbon (IWG), which consisted of experts from various federal agencies, including Interior.
Plaintiffs strenuously argue that the SCC is “[r]ooted in extensive, peer-reviewed scientific literature” and has been widely accepted by scientists, agencies, and courts alike. See, e.g., Zero Zone, Inc. v. U.S. Dep‘t of Energy, 832 F.3d 654, 660–61, 677–78 (7th Cir. 2016) (approving the Department of Energy‘s use of the Social Cost of Carbon when considering environmental impacts of two final rules aimed at improving the energy efficiency of commercial refrigeration equipment); High Country Conservation Advocs. v. U.S. Forest Serv., 52 F. Supp. 3d 1174, 1189–93 (D. Colo. 2014) (rejecting Forest Service‘s contention that there is no method to predict the impact of one project‘s GHG emissions on climate change because “a tool is and was available: the social cost of carbon protocol“). Another agency within the Department of Interior, the Bureau of Reclamation, explained
Interior did not use the SCC in its 2015 EA, and plaintiffs argued in the district court that the decision was arbitrary and capricious. The court was persuaded by plaintiffs’ argument and concluded that Interior‘s analysis weighed the economic benefits of the Mine Expansion but failed to use the SCC to quantify the resulting environmental harms. When Interior again declined to employ the SCC in the 2018 EA, it pointed to four reasons:
- [Interior] is not engaged in a rulemaking for which the [SCC] protocol was originally developed;
- the [Interagency Working Group on Social Cost of Greenhouse Gases], technical supporting documents, and associated guidance have been withdrawn;
- NEPA does not require cost-benefit analysis; and
- the full social benefits of coal-fired energy production have not been monetized, and quantifying only the costs of GHG emissions for the project but not other costs and benefits would yield information that is both potentially inaccurate and not useful.
On appeal to our court, plaintiffs argue the district court erred because even the lowest value in the range of estimates generated by the SCC indicates that the environmental damages caused by the Mine Expansion‘s GHG emissions will significantly exceed the total value of the coal, including all economic benefits.26 Plaintiffs also strenuously argue that the SCC analysis applies with equal force—and produces equally valid results—to project-level agency decisions as it does to rulemaking proceedings. But plaintiffs’ arguments overlook that prescribing a specific metric for the agency to use on remand is not our role. See Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 986 (9th Cir. 1985). “NEPA does not require that we decide whether an [EA] is based on the best scientific methodology available, nor does NEPA require us to resolve disagreements among various scientists as to methodology.” Id.; The Lands Council v. McNair, 537 F.3d 981, 1003 (9th Cir. 2008) (en banc).
What NEPA does require is that agencies provide “high quality” information and “[a]ccurate scientific analysis.”
As far as we can tell, Interior resorted to a global comparison of the Mine Expansion‘s GHG emissions because it could not define, with precision, the incremental impacts of this project‘s emissions. Interior suggests that it could do no better, but the authorities cited in the 2018 EA make plain that the scientific community‘s understanding has advanced considerably since we decided Barnes in 2011.27 We are not persuaded by plaintiff‘s argument that Interior was required to use the SCC, but Interior must use some methodology that satisfies NEPA and the APA. At a minimum, this approach requires providing the information that is known, and the
VI
Plaintiffs urge us to vacate Interior‘s approval of the Mine Expansion and direct Interior to prepare an EIS. “[P]reparation of an EIS is not mandated in all cases simply because an agency has prepared a deficient EA or otherwise failed to comply with NEPA,” id. at 1225, but “[p]reparation of an EIS is mandated where uncertainty may be resolved by further collection of data, or where the collection of such data may prevent speculation on potential effects,” Native Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233, 1240 (9th Cir. 2005) (internal quotation marks and alteration omitted) (quoting Nat‘l Parks & Conservation Ass‘n v. Babbitt, 241 F.3d 722, 731–32 (9th Cir. 2001), abrogation on other grounds recognized by Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157–58 (2010)).
Plaintiffs are correct that vacatur is the presumptive remedy under the APA, Alliance for the Wild Rockies v. United States Forest Service, 907 F.3d 1105, 1121–22 (9th Cir. 2018), and “[w]e order remand without vacatur only in ‘limited circumstances,‘” Pollinator Stewardship Council v. U.S. Environmental Protection Agency, 806 F.3d 520, 532 (9th Cir. 2015) (quoting Cal. Cmties. Against Toxics v. EPA, 688 F.3d 989, 994 (9th Cir. 2012)). “Whether agency action should be vacated depends on how serious the agency‘s errors
Plaintiffs strenuously argue that permitting the Mine Expansion to go forward while Interior prepares a new, NEPA-compliant EA or EIS will “frustrate NEPA‘s purpose of requiring agencies to look before they leap.” See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989) (“NEPA ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.“).
Plaintiffs’ argument is well taken, but the record is unclear about the extent to which the agency is capable of resolving uncertainty regarding the magnitude of the project‘s contribution to the environmental harms identified in the EA. Further, there is a dearth of evidence concerning the impact of vacatur, including whether Signal Peak is currently mining federal coal or state coal. See Cal. Cmties. Against Toxics, 688 F.3d at 993–94 (considering environmental, economic, and energy-related consequences of vacatur). Additional factfinding is necessary to determine whether preparation of an EIS and vacatur of the plan approval is warranted at this juncture. See id. We are mindful of the need for prompt reconsideration of the plan‘s approval but must remand to the district court to make that determination as expeditiously as possible.28
This appendix provides additional information related to climate change to supplement descriptions of the existing condition (recent conditions and trends) in Section 3.3 and provides global, national, and regional context (projections) to support impact analysis in Section 4.3.
1.0 Recent Conditions and Trends
As the leading international body for the assessment of climate change, IPCC reviews and assesses the most recent scientific, technical and socio-economic information produced worldwide relevant to the understanding of climate change. IPCC‘s fifth assessment report (IPCC 2014) presents details pertaining to observed climate changes and their causes; future climate changes, risks and impacts; future pathways for adaptation, mitigation and sustainable development; and adaptation and mitigation.
IPCC (2014) findings related to recent global conditions and trends include the following.
- Each of the last three decades has been successively warmer at the Earth‘s surface than any preceding decade since 1850. The period from 1983 to 2012 was likely the warmest 30-year period of the last 1400 years in the Northern Hemisphere, where such assessment is possible.
- The globally averaged combined land and ocean surface temperature data as calculated by a linear trend show a warming of 0.85 [0.65 to 1.06] °C 2 over the period 1880 to 2012, when multiple independently produced datasets exist. It is extremely likely that more than half of the observed increase in global average surface temperature from 1951 to 2010 was caused by the anthropogenic increase in GHG concentrations and other anthropogenic factors together.
- In recent decades, changes in climate have caused impacts on natural and human systems on all continents and across the oceans. Impacts are due to observed climate change, irrespective of its cause, indicating the sensitivity of natural and human systems to changing climate.
- Changes in many extreme weather and climate events have been observed since about 1950. Some of these changes have been linked to human influences, including a decrease in cold temperature extremes, an increase in warm temperature extremes, an increase in extreme high sea levels and an increase in the number of heavy precipitation events in a number of regions.
- In many regions, changing precipitation or melting snow and ice are altering hydrological systems, affecting water resources in terms of quantity and quality.
- Many terrestrial, freshwater and marine species have shifted their geographic ranges, seasonal activities, migration patterns, abundances and species interactions in response to ongoing climate change.
- Studies covering a wide range of regions and crops show that negative impacts of climate change on crop yields have been more common than positive impacts.
Cascading impacts of climate change can now be attributed along chains of evidence from physical climate through to intermediate systems and then to people. - At present the worldwide burden of human ill-health from climate change is relatively small compared with effects of other stressors and is not well quantified.
As a key part of the Fourth National Climate Assessment, the US Global Change Research Program (USGCRP) oversaw production of a report describing the state of science relating to climate change and its physical impacts. USGCRP (2017) concluded that the climate of the US is strongly connected to the changing global climate and provided the following statements highlighting past and recent conditions related to climate change in the US and the globe.
- Global annually averaged surface air temperature has increased by about 1.8°F (1.0°C) over the last 115 years (1901–2016). This period is now the warmest in the history of modern civilization. The last few years have also seen record-breaking, climate-related weather extremes, and the last three years have been the warmest years on record for the globe. These trends are expected to continue over climate timescales.
- Based on extensive evidence, it is extremely likely that human activities, especially emissions of GHGs, are the dominant cause of the observed warming since the mid-20th century. For the warming over the last century, there is no convincing alternative explanation supported by the extent of the observational evidence.
- In addition to warming, many other aspects of global climate are changing, primarily in response to human activities. Thousands of studies conducted by researchers around the world have documented changes in surface, atmospheric, and oceanic temperatures; melting glaciers; diminishing snow cover; shrinking sea ice; rising sea levels; ocean acidification; and increasing atmospheric water vapor.
- For example, global average sea level has risen by about 7–8 inches since 1900, with almost half (about 3 inches) of that rise occurring since 1993. Human-caused climate change has made a substantial contribution to this rise since 1900, contributing to a rate of rise that is greater than during any preceding century in at least 2,800 years. Global sea level rise has already affected the US; the incidence of daily tidal flooding is accelerating in more than 25 Atlantic and Gulf Coast cities.
- Changes in the characteristics of extreme events are particularly important for human safety, infrastructure, agriculture, water quality and quantity, and natural ecosystems. Heavy rainfall is increasing in intensity and frequency across the US and globally and is expected to continue to increase. The largest observed changes in the US have occurred in the Northeast.
- Heatwaves have become more frequent in the US since the 1960s, while extreme cold temperatures and cold waves are less frequent. Recent record-setting hot years are projected to become common in the near future for the US, as annual average temperatures continue to rise. Annual average temperature over the contiguous US has increased by 1.8°F (1.0°C) for the period 1901–2016.
- The incidence of large forest fires in the western US and Alaska has increased since the early 1980s and is projected to further increase in those regions as the climate changes, with profound changes to regional ecosystems.
Annual trends toward earlier spring melt and reduced snowpack are already affecting water resources in the western US and these trends are expected to continue. - The global atmospheric carbon dioxide (CO2) concentration has now passed 400 parts per million (ppm), a level that last occurred about 3 million years ago, when both global average temperature and sea level were significantly higher than today.
- The observed increase in carbon emissions over the past 15-20 years has been consistent with higher emissions pathways. In 2014 and 2015, emission growth rates slowed as economic growth became less carbon-intensive. Even if this slowing trend continues, however, it is not yet at a rate that would limit global average temperature change to well below 3.6°F (2°C) above preindustrial levels.
The Montana Climate Assessment (Whitlock et al. 2017) identified the following key messages about recent trends related to regional climate change in Montana.
- Annual average temperatures, including daily minimums, maximums, and averages, have risen across Montana between 1950 and 2015. The increases range between 2.0-3.0°F (1.1-1.7°C) during this period.
- Winter and spring in Montana have experienced the most warming. Average temperatures during these seasons have risen by 3.9°F (2.2°C) between 1950 and 2015.
- Montana’s growing season length is increasing due to the earlier onset of spring and more extended summers, and there are more warm days and fewer cool nights. From 1951-2010, the growing season increased by 12 days. In addition, the annual number of warm days has increased by 2.0 percent, and the annual number of cool nights has decreased by 4.6 percent over this period.
- Despite no historical changes in average annual precipitation between 1950 and 2015, there have been changes in average seasonal precipitation over the same period. Average winter precipitation has decreased by 0.9 inches (2.3 cm), which can mostly be attributed to natural variability and an increase in El Niño events, especially in the western and central parts of the state. A significant increase in spring precipitation (1.3-2.0 inches [3.3-5.1 cm]) has also occurred during this period for the eastern portion of the state.
The Montana Climate Assessment (Whitlock et al. 2017) also provided findings related climate change to effects on water, forests, and agriculture, which have been and will continue to be affected by changes in climate.
2.0 Projected Climate Conditions and Effects
The most recent findings and predictions about climate change and its effects are presented in IPCC’s report titled Climate Change 2014: Synthesis Report, the Fourth National Climate Assessment (USGCRP 2017), and Montana Climate Assessment (Whitlock et al 2017). Recent conditions and trends discussed in Section 1 are expected to continue. Projected effects of climate change are discussed in each of these documents at varying scales covering a variety of
2.1 Global Projections
Projected global climate conditions and effects identified by IPCC (2014) include the following.
- Cumulative emissions of CO2 largely determine global mean surface warming by the late 21st century and beyond. Projections of GHG emissions vary over a wide range, depending on both socio-economic development and climate policy.
- Continued emission of GHGs will cause further warming and long-lasting changes in all components of the climate system, increasing the likelihood of severe, pervasive, and irreversible impacts for people and ecosystems.
- Surface temperature is projected to rise over the 21st century under all assessed emission scenarios. It is very likely that heat waves will occur more often and last longer, and that extreme precipitation events will become more intense and frequent in many regions. The ocean will continue to warm and acidify, and global mean sea level to rise.
- Climate change will amplify existing risks and create new risks for natural and human systems. Risks are unevenly distributed and are generally greater for disadvantaged people and communities in countries at all levels of development. Increasing magnitudes of warming increase the likelihood of severe, pervasive and irreversible impacts for people, species and ecosystems. Continued high emissions (globally) would lead to mostly negative impacts for biodiversity, ecosystem services and economic development and amplify risks for livelihoods and for food and human security.
- Many aspects of climate change and its associated impacts will continue for centuries, even if anthropogenic emissions of GHGs are stopped. The risks of abrupt or irreversible changes increase as the magnitude of the warming increases.
2.2 National Projections
The Fourth National Climate Assessment (USGCRP 2017) projects changes in temperature and precipitation, increased frequency of droughts, floods, wildfires, and extreme storms, changes in land cover and terrestrial biogeochemistry, changes in arctic conditions, sea level rise, and ocean acidification (and other ocean changes). EPA (2016a) identifies potential subsequent effects to health and society and ecosystems such as heat-related deaths and illness, disease spread, changes in growing seasons. Examples of projected effects identified by USGCRP (2017) include the following.
- Over the next few decades (2021–2050), annual average temperatures are expected to rise by about 2.5°F for the US, relative to the recent past (average from 1976-2005), under all plausible future climate scenarios.
- Global average sea levels are expected to continue to rise by at least several inches in the next 15 years and by 1 to 4 feet by 2100. A rise of as much as 8 feet by 2100 cannot be ruled out. Sea level rise will be higher than the global average on the East and Gulf Coasts of the US.
The magnitude of climate change beyond the next few decades will depend primarily on the amount of GHGs (especially CO2) emitted globally. Without major reductions in emissions, the increase in annual average global temperature relative to preindustrial times could reach 9°F (5°C) or more by the end of this century. With significant reductions in emissions, the increase in annual average global temperature could be limited to 3.6°F (2°C) or less. - Under higher scenarios, and assuming no change to current water resources management, chronic, long-duration hydrological drought is increasingly possible before the end of this century.
- Continued growth in CO2 emissions over this century and beyond would lead to an atmospheric concentration not experienced in tens to hundreds of millions of years. There is broad consensus that the further and the faster the Earth system is pushed towards warming, the greater the risk of unanticipated changes and impacts, some of which are potentially large and irreversible.
2.3 Montana Projections
Key projections (effects) identified in the Montana Climate Assessment (Whitlock et al. 2017) include the following.
- The state of Montana is projected to continue to warm in all geographic locations, seasons, and under all emission scenarios throughout the 21st century. By mid-century, Montana temperatures are projected to increase by approximately 4.5-6.0°F (2.5-3.3°C) depending on the emission scenario. By the end-of-century, Montana temperatures are projected to increase 5.6- 9.8°F (3.1-5.4°C) depending on the emission scenario. These state-level changes are larger than the average changes projected globally and nationally.
- The number of days in a year when daily temperature exceeds 90°F (32°C) and the number of frost-free days is expected to increase across the state and in both emission scenarios studied. Increases in the number of days above 90°F (32°C) are expected to be greatest in the eastern part of the state. Increases in the number of frost-free days are expected to be greatest in the western part of the state.
- Across the state, precipitation is projected to increase in winter, spring, and fall; precipitation is projected to decrease in summer. The largest increases are expected to occur during spring in the southern part of the state. The largest decreases are expected to occur during summer in the central and southern parts of the state.
- Hydrologic impacts may include reduced snowpack; changes in runoff timing, streamflows and resultant water availability; and increased drought severity and duration.
- Forest impacts may include: variable impacts to forest-wide processes, but negative effects of extreme heat; increased forest mortality and net loss of forested areas; altered forest disturbance regimes; increase in fire risk; increase in bark beetle survival; and reduction in the amount of carbon stored in forests.
- Agricultural impacts may include both favorable and disruptive effects on crop and forage; production; less reliable irrigation water; changes to commodity prices; increases
in native plains vegetation, but declines in forage quality; and an overall increase in the need for innovation and adaptation to address climate change effects.
2.4 Social Cost of Carbon
A protocol to estimate what is referenced as the “social cost of carbon” (SCC) associated with GHG emissions was developed by a IWG, to assist agencies in addressing EO 12866, which requires Federal agencies to assess the domestic costs and the benefits of proposed regulations as part of their regulatory impact analyses. The SCC is an estimate of the economic damages associated with an increase in carbon dioxide emissions internationally and is intended to be used as part of a cost-benefit analysis for proposed rules. As explained in the Executive Summary of the 2010 SCC Technical Support Document “the purpose of the [SCC] estimates…is to allow agencies to incorporate the social benefits of reducing carbon dioxide (CO2) emissions into cost-benefit analyses of regulatory actions that have small, or ‘marginal,’ impacts on cumulative global emissions.” Technical Support Document: Social Cost of Carbon for Regulatory Impact Analysis under EO 12866 February 2010 (withdrawn by EO13783). While the SCC protocol was created for regulatory impact analyses during rulemakings, there have been requests by public commenters or project applicants to expand the use of SCC estimates to project-level NEPA analyses. These requests are not appropriate for project-level NEPA analyses for a number of reasons.
First, NEPA does not require a cost-benefit analysis (
Further, the decision not to expand the use of the SCC protocol for this EA is supported by the fact that this action is not a rulemaking for which the SCC protocol was originally developed. On March 28, 2017, the President issued EO 13783 which, among other actions, withdrew the Technical Support Documents upon which the protocol was based and disbanded the earlier Interagency Working Group on Social Cost of Greenhouse Gases. The Order further directed agencies to ensure that estimates of the social cost of GHGs used in regulatory analyses “are based on the best available science and economics” and are consistent with the guidance contained in [Office of Management and Budget (OMB)] Circular A-4, “including with respect to the consideration of domestic versus international impacts and the consideration of appropriate discount rates” (E.O. 13783, Section 5(c)). In compliance with OMB Circular A-4, interim protocols have been developed for use in the rulemaking context. However, the Circular does not apply to project decisions, and there is no other requirement to apply the SCC protocol to project decisions.
Although NEPA does require consideration of “effects” that include “economic” and “social” effects (
Finally, the SCC, protocol does not measure the actual incremental impacts at the project-level on the environment and does not include all costs or benefits from carbon emissions. The SCC protocol estimates economic damages associated with an increase in CO2 emissions—typically expressed as a one metric ton increase in a single year—and includes, but is not limited to, potential changes in net agricultural productivity, human health, and property damages from increased flood risk over hundreds of years. The estimate is developed by aggregating results “across models, over time, across regions and impact categories, and across 150,000 scenarios” (Rose et al. 2014). The dollar cost figure arrived at based on the SCC calculation represents the value of damages avoided if, ultimately, there is no increase in carbon emissions. But the dollar cost figure is generated in a range and provides little benefit in assisting the authorized officer’s decision for project level analyses. For example, in a recent EIS, OSMRE estimated that the selected alternative had a cumulative SCC ranging from approximately $4.2 billion to $22.1 billion depending on dollar value and the discount rate used. The cumulative SCC for the no action alternative ranged from $2.0 billion to $10.7 billion. Given the uncertainties associated with assigning a specific and accurate SCC resulting from 9 additional years of operation under the mining plan modification, and that the SCC protocol and similar models were developed to estimate impacts of regulations over long time frames, OSMRE’s ability to evaluate these impacts on a project-level would be doubtful.9 This EA does, nonetheless, quantify direct and indirect GHG emissions and evaluate these emissions in the context of global emissions as discussed in Section 4.3.1 of the EA.
R. NELSON, Circuit Judge, dissenting:
The agency’s finding that the incremental effects of 0.04% of annual global greenhouse gas (“GHG”) emissions were “minor” was not arbitrary or capricious under the Administrative Procedure Act (“APA”). This argument was barely raised, and the majority’s contrary holding is wrong given our deferential APA review. I therefore respectfully dissent.1
The environmental effects of GHG emissions have been hotly contested publicly and in the courts, particularly in the last three decades. Because neither political branch has provided any specific direction on how to address the environmental effects of GHG emissions, the courts are forced to confront this global environmental issue with outdated laws and regulations. The National Environmental Policy Act (“NEPA”)—the relevant law here—was passed over 50 years ago. And NEPA’s implementing regulations were first adopted more than 40 years ago, long before the current scientific debate over GHG emissions materialized.
The courts are ill-equipped to step into highly politicized scientific debates like this, particularly with so little direction from either the legislative or executive branch. Indeed, we risk exceeding our own judicial authority in doing so. See generally Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020) (plaintiffs’ relief sought was not within the power of an Article III court). Rather than properly deferring to the other two branches of government—which have evaded the
As the majority notes, the Department of the Interior’s Office of Surface Mining Reclamation and Enforcement (“Interior”) has compiled a breathtaking record of the potential environmental impacts of GHG emissions. That follows NEPA’s direction to consider potential environmental impacts. But as Interior explains, these potential environmental impacts are based on global GHG emissions. No scientific evidence identified by Interior, the Plaintiffs, or the majority quantifies the incremental environmental effect caused by GHG emissions of a single project. The best potential evidence of incremental impact, the Social Cost of Carbon (“SCC”), was rejected by Interior, and both a skeptical district court and this panel unanimously have affirmed that conclusion.
There is good reason for the courts to wade cautiously in this area. As Interior noted, the science of climate change is complex. So complex that the last several Administrations have failed to provide a consistent way for agencies to analyze the incremental effects of a single project’s GHG emissions on climate change under NEPA. No other environmental concern is so intertwined with assumptions of the behavior of 200 other sovereign nations, the supply and demand projections of global energy models, or the personal energy usage decisions of 7 billion people worldwide. It strains credibility to assume that such targeted issues can be adequately analyzed under NEPA with any scientific consensus.
The majority errs by concluding that Interior must compare the project’s GHG emissions to state and national emissions and create science to show the incremental environmental effect caused by 0.04% of annual global GHG emissions. Yet GHG emissions from coal combustion from foreign sources in Asia over an 11.5-year period are not relevant to a NEPA analysis of significant environmental effect. Moreover, local and domestic emissions are not appropriate metrics when analyzing the effects of global warming, which by all accounts (as the majority agrees) can only be evaluated—if at all—by global GHG emissions.
This case is not about the project’s effect on air quality or some other localized environmental harm, but Interior’s NEPA analysis of the project’s contribution to global GHG emissions. We review an agency’s decision under NEPA under the APA and may “set aside an agency action only if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011) (quoting
A
Congress created an extensive regulatory structure for the leasing of federal lands for coal production to, among other things, “assure that the coal supply essential to the Nation’s energy requirements, and to its economic and social well-being is provided”; to “strike a balance between protection of the environment and agricultural productivity and the Nation’s need for coal as an essential source of energy”; and to “encourage the full utilization of coal resources through the development and application of underground extraction technologies.”
Once land is classified and divided for coal leasing, contemplated leases must meet several requirements that protect the environment. For example, “[n]o lease sale shall be held unless the lands containing the coal deposits have been included in a comprehensive land-use plan and such sale is compatible with such plan,” subject to minor exceptions.
The Secretary must also consider the “impacts on the environment” of the lease and “determine which method or methods or sequence of methods [of mining] achieves the maximum economic recovery of the coal within the proposed leasing tract.”
B
As with all agency action, Interior must also conduct a NEPA analysis. NEPA is remarkably light on substance. Adopted in 1970, the statute requires agencies to “utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision-making which may have an impact on man’s environment” and “insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations.”
- the environmental impact of the proposed action,
- any adverse environmental effects which cannot be avoided should the proposal be implemented,
- alternatives to the proposed action,
- the relationship between local short-term uses of man’s environment and the maintenance
and enhancement of long-term productivity, and - any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
The implementing regulations in effect when the environmental assessment (“EA”) in this case was finalized were first adopted in 1978 and provide marginally more detail. NEPA “does not mandate particular results,” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989), but “insure[s] that environmental information is available to public officials and citizens before decisions are made and before actions are taken,”
After considering all the potential environmental effects, along with existing science, Interior decided here that an EA was adequate. An EA provides “sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact; . . . discuss[es] the . . . need for the proposal[;] alternatives[;] . . . [and] the environmental impacts of the proposed action and
When deciding whether the project substantially affects the environment, Interior is required only to consider effects from the project that are “reasonably foreseeable,”
In addition, “a but for causal relationship is insufficient to make an agency responsible for a particular effect under NEPA.” Pub. Citizen, 541 U.S. at 767 (internal quotation marks omitted). Instead, there must be “a reasonably close causal relationship between the environmental effect and the alleged cause,” much like the “familiar doctrine of proximate cause from tort law.” Id. (internal quotation marks omitted). “In particular, courts must look to the underlying polices or legislative intent in order to draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not.” Id. (internal quotation marks omitted). The analysis should not include effects that the
C
The Council on Environmental Quality (“CEQ”) has issued guidance to agencies in conducting NEPA analyses on the effects of GHG emissions. Although none of the relevant guidance was in effect when Interior issued the EA here, they provide helpful context. See Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1351 (2015) (“‘the rulings, interpretations and opinions’ of an agency charged with the mission of enforcing a particular statute, ‘while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance’”) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
CEQ issued a final guidance document in 2016. This document recognized that “[c]limate change is a fundamental
This guidance was withdrawn in 2017. See Withdrawal of Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews, 82 Fed. Reg. 16,576 (Apr. 5, 2017), https://www.govinfo.gov/content/pkg/FR-2017-04-05/pdf/2017-06770.pdf. New draft guidance was released in 2019. See Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions, 84 Fed. Reg. 30,097 (June 26, 2019), https://perma.cc/H7Q6-
The 2019 Draft Guidance was withdrawn in early 2021. See National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions, 86 Fed. Reg. 10,252 (Feb. 19, 2021), https://www.govinfo.gov/content/pkg/FR-2021-02-19/pdf/2021-03355.pdf. CEQ stated its intention to “address in a separate notice its review of and any appropriate revisions and updates to the 2016 GHG Guidance. In the interim, agencies should consider all available tools and resources in assessing GHG emissions and climate change effects of their proposed actions, including, as appropriate and relevant, the 2016 GHG Guidance.” Id.
D
In recognition of the various guidance and regulations dealing with GHG emissions in NEPA analyses, Interior’s EA for this project extensively details the effects of GHG emissions on global warming and climate change. The EA acknowledges that “[t]hrough complex interactions on a global scale, the emissions of GHGs, along with other climate-influencing environmental factors, cause a net warming of the atmosphere.” This global warming then “contribute[s] to climate change . . . [which then] contributes to environmental effects around the globe.”
The EA thoroughly summarizes that GHG emissions, as a whole, could cause climate change globally, nationally, and in Montana. Possible global effects include “heat waves [that] will occur more often and last longer[;] . . . extreme precipitation events [that] will become more intense and frequent in many regions[;] . . . warm[ing] and acidif[ication]” of oceans; sea level rise; and “mostly negative impacts [on] biodiversity, ecosystem services and economic development and amplify[ied] risks for livelihoods and for food and human security.” National projections include “changes in temperature and precipitation, increased frequency of droughts, floods, wildfires, and extreme storms[;] changes in land cover and terrestrial biogeochemistry[;] changes in arctic conditions[;] sea level rise[;] and ocean acidification (and other ocean changes)”; and “potential subsequent effects to health and society and ecosystems such as heat-related deaths and illness, disease spread, [and] changes in growing seasons.” Finally, the “state of Montana is projected to continue to warm in all geographic locations”; experience increased precipitation “in winter,
After detailing the possible effects on climate change from continued and increasing GHG emissions, the EA analyzed the suitability of quantifying project-specific effects using SCC. Interior found SCC “not appropriate for project-level NEPA analyses for a number of reasons. First, NEPA does not require a cost-benefit analysis. (
E
Reviewing Interior’s EA, the district court recognized that it “previously held that the [prior] EA failed to adequately assess the impacts of [GHG emissions] from the combustion of coal mined,” because it failed “to quantify the costs of [GHG] emissions . . . [when SCC] protocol was an available tool to measure the costs.” 350 Montana v. Bernhardt, 443 F. Supp. 3d 1185, 1195–96 (D. Mont. 2020). The new EA
II
A
The majority concludes Interior’s actions were arbitrary or capricious because, in its view, Interior did not adequately explain its evaluation that the project’s contribution to climate change would be “minor.” Majority at 21–23. But the EA quantifies the project’s GHG emissions from coal combustion and details the possible harm caused by climate change. The EA also details that there are no scientific standards by which to measure the project’s incremental contributions to climate change. The majority ignores the fact that federal laws and regulations direct Interior not to consider effects that it “has no ability to prevent . . . due to its limited statutory authority over the relevant actions.” Pub. Citizen, 541 U.S. at 770.
The majority’s rationale is based on faulty calculations and legally irrelevant assumptions. First, although the
Second, the EA notes “[n]early all (99 percent) of GHGs [from the project] are emitted outside of the US and 97 percent are a result of coal combustion” that will occur in Japan or Korea. But the majority would require Interior to explicitly compare emissions from this foreign combustion to annual emissions in Montana and the United States, noting that the 2018 EA did not include these calculations while the 2015 EA did. Not only did the 2018 EA provide all the data to make this comparison, neither NEPA nor its implementing regulations impose any such requirement in the first place. There is no requirement that an agency cannot remove irrelevant and unhelpful calculations from later EA iterations, especially when any concerned citizen with a basic calculator or pencil and paper can instantly make the same comparison with the provided data.
Third, it is not obvious that the coal from the project will be used within the life of the project, and such emissions from foreign sovereign’s decision to use coal almost certainly
Even more inexplicable is what is omitted from the majority’s comparison to the United States’ and Montana’s annual emissions. Although the majority insists that the project’s emissions must include the GHG emissions created by the combustion of coal in Japan or Korea, the emission values from the United States and Montana do not include emissions from fuel mined from those locations and combusted elsewhere. See Ctr. for Climate Strategies, Montana Greenhouse Gas Inventory and Reference Case Projects 1990–2020, Table ES-1 (2007), https://perma.cc/X9CY-8FC9. Again, the majority compares apples to oranges.
B
Even if these statewide and nationwide comparisons were helpful, they are not legally relevant to the sole question before us: whether there are significant environmental impacts that prohibit a FONSI under NEPA. To the contrary, opinions from our court and Executive Branch guidance make clear that global warming is not a localized problem, but a global problem that requires a global analysis. See, e.g., Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1143 (9th Cir. 2013) (“there is limited scientific capability in assessing,
The real question is whether the project’s share of global GHG emissions can be shown to significantly affect the environment and whether the EA provided “a reasonably thorough discussion of the significant aspects of the probable environmental consequences” of these emissions. Ctr. for Biological Diversity, 538 F.3d at 1194 (internal quotation marks omitted). To satisfy these requirements, Interior must “provide sufficient evidence and analysis for” a FONSI and briefly discuss “the environmental impacts of the proposed action and alternatives.”
The asserted flaws with Interior’s EA are not grounded in any NEPA requirement. Plaintiffs provided no scientific evidence that an incremental increase of 0.04% of global GHG emissions (if that were the worst-case result) would cause a significant impact. They argued almost exclusively that Interior should have used a SCC analysis in this case. The majority correctly disposed of this argument as not required for a NEPA analysis, as it is not the court’s role to “prescrib[e] a specific metric for the agency to use.” See Majority at 34. And Interior went to great lengths to fulfill its
It is incongruent for the majority to disregard SCC but insist that an even less reliable scientific theory, which has no scientific support in the record, can serve as the basis for finding an agency action arbitrary or capricious. In doing so, the majority essentially requires Interior to use and analyze “a specific metric,” i.e., compare the project’s GHG emissions from foreign coal combustion to local and domestic emissions. But no one, not even Plaintiffs, has proposed any sort of method outside of SCC (which the majority rejected) to calculate incremental environmental harms from GHG emissions. Rather than provide any argument about how to calculate these harms, Plaintiffs and their experts just conclude that “GHG levels . . . already exceed scientifically recognized safety thresholds” and projects such as this are “incompatible with the restoration of our planet’s energy balance.” That statement is so generic it lacks any real meaning and is certainly not the type of scientific evidence or argument relevant to an agency’s NEPA analysis. Neither the majority nor Plaintiffs point to any evidence in the record to suggest that science delineates any specific environmental
III
So what happens next? I agree with the majority not to vacate Interior’s approval of the Mine Expansion or direct Interior to prepare an EIS. As the majority recognizes, “the record is unclear about the extent to which the agency is capable of resolving uncertainty regarding the magnitude of the project’s contribution to the environmental harms identified in the EA.” Majority at 37. Given this, however, the proper remedy would be to remand to Interior without vacatur. See, e.g., Nat’l Family Farm Coal. v. EPA, 966 F.3d 893, 929 (9th Cir. 2020). Instead, the majority remands to the district court to determine whether an EIS is appropriate and the consequences that could follow a possible vacatur.
Remand to the district court, rather than directly to the agency, is questionable at best. It would be improper for the district court to engage in factfinding to determine the core issue the majority is concerned about: whether Interior can resolve the pending scientific uncertainty about the incremental effects of a 0.04% increase in annual GHG gas emissions. Indeed, district court factfinding on this issue would conflict with the APA, which contemplates federal court review of the administrative record prepared by the agency. See Ramos v. Wolf, 975 F.3d 872, 900 (9th Cir. 2020) (R. Nelson, J., concurring) (The APA’s “record-review requirement is not just a meaningless procedural hurdle to overcome, but a fundamental constitutional protection to government agency action.”). That is why we normally remand the matter directly to the agency. Any other course risks violating the separation of powers principle underlying
Another factor favors remand directly to Interior, whether by this court or the district court on remand. Because of the 2020 overhaul of NEPA regulations, Interior’s NEPA obligations on remand may differ greatly from those that controlled the current EA. For instance, those new regulations clarify that environmental effects are generally not relevant to a NEPA analysis “if they are remote in time, geographically remote, or the product of a lengthy causal chain.”
It is difficult to see why an EIS would be necessary absent some new scientific evidence detailing the possible incremental environmental effects of a single project’s GHG emissions. Indeed, an EIS would probably not provide any more information than was already included in the EA, especially with the questionable foreseeability of foreign coal combustion and no scientific way to measure the incremental impact of GHG emissions. At any rate, that analysis is properly addressed by Interior on remand, not through an ambiguous endeavor by the district court. Given these considerations, it is hard to see how a vacatur or an EIS should be ordered pending further action by Interior on remand.
For these reasons, Interior’s FONSI was neither arbitrary nor capricious under NEPA. And even if it were, the action should be remanded to the agency to compile a new administrative record and final decision, not to the district court. I respectfully dissent.