Powder River Basin Resource Council, Appellant v. Sally JEWELL, Secretary, U.S. Department of Interior, et al., Appellees. WILDEARTH GUARDIANS, et al., Appellants
Nos. 12-5300, 12-5312.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 18, 2013. Decided Dec. 24, 2013.
298, 301-312
J. David Gunter II, Attorney, United States Department of Justice, argued the cause for the appellees.
James Kaste, Senior Assistant Attorney General, Office of the Attorney General for the State of Wyoming, Creighton R. Magid, Andrew C. Emrich and John A. Bryson were on brief for intervenors Antelope Coal, LLC, et al. in support of the appellees. Michael J. McGrady, Senior Assistant Attorney General, Office of the Attorney General for the State of Wyoming, and Jay C. Johnson entered appearances.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge:
In April 2005, Antelope Coal LLC (Antelope Coal) filed an application with the Bureau of Land Management (BLM), an agency within the U.S. Department of the Interior (Interior), requesting that a tract of federal land adjacent to Antelope Coal‘s existing mine in the Wyoming Powder River Basin be offered for competitive lease sale to interested parties. In March 2010 the BLM issued a Record of Decision (ROD), dividing the land into two tracts (the West Antelope II tracts) and offering them for lease through separate competitive bidding processes. WildEarth Guardians, Defenders of Wildlife, the Sierra Club (collectively, WildEarth) and the Powder River Basin Resource Council (PRBRC and, collectively with WildEarth, Appellants) challenge the BLM‘s decision to approve the West Antelope II tracts for lease. They argue that the Final Environmental Impact Statement (FEIS) supporting the ROD is deficient in several respects. The district court granted summary judgment to the defendants,1 finding that the plaintiffs lacked standing to raise one of their arguments and that their remaining arguments failed on the merits. We conclude that, while they do have standing, their merits arguments fall short. Accordingly, we affirm the judgment of the district court.
I
A
Under the Mineral Leasing Act (MLA),
The National Environmental Policy Act of 1969 (NEPA),
The BLM is also constrained by the Federal Land Policy and Management Act of 1976 (FLPMA),
B
The Wyoming Powder River Basin is the largest source of coal in the United States. It accounted for more than 33 per cent of all coal mined in the United States in 2003. An increasing percentage of the
Antelope Coal operates a coal mine (Antelope Mine) in the Wyoming Powder River Basin. The Antelope Mine produced 33.9 million tons of coal in 2006, representing 7.9 per cent of the coal produced in the Wyoming Powder River Basin and 1.1 per cent of the estimated carbon dioxide (CO2) emissions in the United States. If production continues at average historical rates, the Antelope Mine‘s coal reserves will be depleted within the decade. In order to extend the life of the mine, Antelope Coal sought to lease the West Antelope II tracts, encompassing 4,100 acres of federal coal reserves on two separate tracts adjacent to the mine.
On April 6, 2005, Antelope Coal applied to the BLM, requesting that the West Antelope II tracts be offered for competitive lease sale. On October 17, 2006, the BLM published a notice of its intent to prepare an EIS for leasing the West Antelope II tracts and announced that it planned to hold a public “scoping” hearing to solicit comments on the issues to be considered in the EIS. On February 8, 2008, the EPA published a notice of the availability of the draft EIS and solicited public comment on it. The BLM received comments on the draft EIS at a public hearing and in writing. On December 19, 2008, the EPA published a notice of the availability of the FEIS. The FEIS spans nearly five hundred pages and includes the BLM‘s responses to public comments on the draft EIS. The BLM solicited further public comment on the FEIS and issued written responses to the comments it received. On March 25, 2010, the BLM issued the ROD, approving Antelope Coal‘s application and dividing the land into two tracts, each to be offered for lease by competitive bidding. Antelope Coal won the bidding for both leases and the leases became effective in 2011.
After the BLM approved the leases, WildEarth and the PRBRC each filed a notice of administrative appeal with the Interior Board of Land Appeals (IBLA). WildEarth sought a stay of the ROD pending appeal but the IBLA did not act on WildEarth‘s motion within 45 days, thus making the ROD the BLM‘s final agency action in WildEarth‘s appeal.
II
A. Standing
We begin with standing. See Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94-95 (1998). The party invoking federal
First, the plaintiff must have suffered an injury in fact - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations, quotation marks and alterations omitted); accord Texas v. EPA, 726 F.3d 180, 198 (D.C. Cir. 2013). “[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization‘s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm‘n, 432 U.S. 333, 343 (1977); accord Am. Trucking Ass‘ns, Inc. v. Fed. Motor Carrier Safety Admin., 724 F.3d 243, 247 (D.C. Cir. 2013), petition for cert. filed, 82 U.S.L.W. 3259 (U.S. Oct. 17, 2013) (13-509). We have little difficulty concluding that the latter two elements of associational standing are met here and focus on whether the members of WildEarth or the PRBRC would otherwise have standing to sue in their own right.
As we discuss in Section II.B, infra, the Appellants claim that the BLM failed to adequately consider several environmental concerns, including the increase in local pollution and global climate change caused by future mining, before authorizing the leasing of the West Antelope II tracts. Their claim describes the “archetypal procedural injury” - an agency‘s failure to prepare (or adequately prepare) an EIS before taking action with adverse environmental consequences. Nat‘l Parks Conservation Ass‘n v. Manson, 414 F.3d 1, 5 (D.C. Cir. 2005); see Defenders of Wildlife, 504 U.S. at 572 & n. 7. Although we relax the redressability and imminence requirements for a plaintiff claiming a procedural injury, “the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute.” Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009); accord Nat‘l Ass‘n of Home Builders v. EPA, 667 F.3d 6, 15 (D.C. Cir. 2011). A procedural injury claim therefore must be tethered to some concrete interest adversely affected by the procedural deprivation: “[A] procedural right in vacuo .... is insufficient to create Article III standing.” Summers, 555 U.S. at 496.
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 (1972)). In support of their summary judgment motion, the Appellants submitted affidavits from several of their members attesting to
As for causation, in a case alleging a procedural deficiency, “an adequate causal chain must contain at least two links: one connecting the omitted EIS to some substantive government decision that may have been wrongly decided because of the lack of an EIS and one connecting that substantive decision to the plaintiff‘s particularized injury.” Fla. Audubon Soc‘y v. Bentsen, 94 F.3d 658, 668 (D.C. Cir. 1996) (en banc); see also Defenders of Wildlife v. Perciasepe, 714 F.3d 1317, 1323 (D.C. Cir. 2013) (causation requirement not relaxed). The first link does not require the plaintiff to show that but for the alleged procedural deficiency the agency would have reached a different substantive result. See City of Dania Beach v. FAA, 485 F.3d 1181, 1186 (D.C. Cir. 2007); Ctr. for Law & Educ. v. Dep‘t of Educ., 396 F.3d 1152, 1160 (D.C. Cir. 2005). “All that is necessary is to show that the procedural step was connected to the substantive result.” Massachusetts v. EPA, 549 U.S. 497, 518 (2007) (quoting Sugar Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94-95 (D.C. Cir. 2002)); accord Defenders of Wildlife, 504 U.S. at 572 n. 7. But a plaintiff “must still demonstrate a causal connection between the agency action and the alleged injury.” City of Dania Beach, 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 relaxed redressability requirement is also satisfied. See Ctr. for Law & Educ., 396 F.3d at 1160 & n. 2 (discussing relationship between causation and redressability); Fla. Audubon Soc‘y, 94 F.3d at 668 (first causal link “foreshadows” redressability). Vacatur of the BLM order would redress the Appellants’ members’ injuries because, if the BLM is required to adequately consider each environmental concern, it could change its mind about authorizing the lease offering. See Lemon v. Geren, 514 F.3d 1312, 1315 (D.C. Cir. 2008); City of Dania Beach, 485 F.3d at 1186. We therefore conclude that the Appellants have standing to challenge the procedural inadequacy of the BLM‘s decision - namely, the alleged deficiencies in the FEIS - based on their members’ aesthetic and recreational injuries caused by local pollution.
The district court used this analysis insofar as it applied to the Appellants’ argument that the BLM failed to adequately address local pollution. WildEarth Guardians, 880 F.Supp.2d at 86-87. The court went on, however, to address separately their standing to argue that the FEIS failed to adequately address the impact of the leasing decision on global climate change.
In Center for Biological Diversity v. U.S. Department of Interior, environmental groups challenged Interior‘s decision to expand leasing areas for oil and gas development off the coast of Alaska. 563 F.3d 466 (D.C. Cir. 2009). We concluded that the petitioners had satisfied neither the injury in fact nor the causation requirements of standing based on their claim that expanded drilling would contribute to global climate change which in turn would threaten their members’ enjoyment of the area and indigenous animal species. Id. at 475-79; see also Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1141-46 (9th Cir. 2013) (finding no causal link between regulatory failure and assumed injury from climate change). We think (and the Appellants do not dispute) that the Appellants likewise cannot establish standing based on the effects of global climate change. But they have established a separate injury in fact not caused by climate change - the harm to their members’ recreational and aesthetic interests from local pollution. In Center for Biological Diversity, we noted that “Interior‘s adoption of an irrationally based Leasing Program could cause a substantial increase in the risk to” the petitioners’ similar aesthetic injury - “their enjoyment of the animals affected by the offshore drilling” - and held that this gave the petitioners standing to challenge the decision to authorize the leasing even though the claimed deficiencies concerned Interior‘s failure to consider greenhouse gas emissions and global climate change. 563 F.3d at 479. The same reasoning applies here. The Appellants’ aesthetic injury follows from an inadequate FEIS whether or not the inadequacy concerns the same environmental issue that causes their injury. If we vacate the BLM order, their injury will be redressed regardless whether the FEIS‘s specific flaw relates to local or global environmental impacts; either way, the remedy is “limited to the inadequacy” - here, a deficient FEIS - “that produced the injury in fact that the plaintiff has established.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006) (quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)).
This Court once held that “having established standing to challenge the adequacy of the FEIS on at least one ground, [plaintiffs] are entitled to raise other inadequacies in the FEIS.” Sierra Club v. Adams, 578 F.2d 389, 392 (D.C. Cir. 1978). We rested this statement on the premise that a plaintiff may invoke “the ‘public interest’ in requiring government officials to discharge faithfully their statutory duties under NEPA.” Id. at 392; see also Morton, 405 U.S. at 737. We express no opinion on whether the “public interest” rationale remains cognizable in light of subsequent Supreme Court precedent. See, e.g., DaimlerChrysler, 547 U.S. at 351-53 (rejecting “commutative” theory of standing whereby standing as to one claim would suffice for all claims arising from same nucleus of operative fact); see also id. at 353 n. 5 (distinguishing Adams from
B. The Merits
We apply the arbitrary and capricious standard of the Administrative Procedure Act,
1. Global Climate Change
We turn first to the Appellants’ argument that the BLM did not take a hard look at the effect of its leasing decision on global climate change.4 In the FEIS, the BLM discussed at length the
The Appellants allege several inadequacies in the BLM analysis but they are of the flyspecking variety. First, they contend that the BLM‘s estimate of Antelope Mine‘s contribution to state-wide emissions failed to incorporate an analysis of the impact of these emissions, particularly their cumulative impact together with emissions from eleven other pending lease applications in the Powder River Basin. We think the BLM satisfied its obligation to consider “the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions.”
The Appellants also argue that the BLM failed to analyze a reasonable range of alternatives to address GHG emissions and climate change. The BLM discussed five separate alternatives in the FEIS at length, however, and analyzed the environmental impact of each. The Appellants nevertheless protest that the FEIS did not adequately consider a list of alternative ideas that WildEarth submitted in a single paragraph in response to the FEIS. 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
2. Local Pollution
Next we consider the Appellants’ argument that the BLM failed to take a hard look at the effect the lease developments would have on local ozone levels. Ground level ozone is a pollutant that forms when emissions of nitrogen oxides (NOx) and volatile organic compounds react to sunlight. There are several types of NOx, the most toxic being nitrogen dioxide (NO2). Inhalation of ground level ozone is associated with several health risks, which the FEIS discussed. While the EPA has established National Ambient Air Quality Standards (NAAQS) for ozone and NO2, see Coal. for Responsible Regulation, Inc. v. EPA, 684 F.3d 102, 132 (D.C. Cir. 2012), cert. granted in part, 134 S.Ct. 418 (2013), there is no corresponding NAAQS for NOx.
In the FEIS, the BLM noted that the area around the West Antelope II tracts is in attainment - i.e., in compliance with NAAQS - for all pollutants. JA 496, 789; see
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 con-
The Appellants also rely on an email from a BLM air quality specialist opining on the adequacy of the FEIS. We are dubious of the email‘s value, particularly because the BLM specialist began the email by noting that she had conducted “a very cursory review of the ROD” and was “not very familiar with the project and ha[d] not read the FEIS.” JA 1348; see WildEarth Guardians v. Nat‘l Park Serv., 703 F.3d 1178, 1186-87 (10th Cir. 2013) (emails from local or lower-level agency representatives expressing diversity of opinion “will not preclude the agency from reaching a contrary decision, so long as the decision is not arbitrary and capricious and is otherwise supported by the record“); cf. Nat‘l Ass‘n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658-59 (2007) (inconsistent statements by agencies’ regional offices during early stages of review do not render decisionmaking process arbitrary and capricious where proper procedures are followed). In any event, the email did not suggest that it was inappropriate to rely on NOx models instead of modeling ozone separately. It merely stated that the reasons for the lack of ozone modeling should have been articulated better. JA 1348 (“[T]he response should include a concise explanation of ozone modeling and its limitations ... and why this pollutant was not modeled.“). The Appellants do not question the adequacy of the explanation for the absence of ozone modeling, however, only the use of NOx as a proxy.
We conclude that the BLM satisfied its obligations under NEPA. “‘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. FERC, 522 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.
We have considered - and rejected - the Appellants’ other arguments challenging the sufficiency of the FEIS and conclude that the FEIS complies with NEPA, the FLPMA and the MLA. We therefore affirm the district court‘s grant of summary judgment to the defendants.
So ordered.