A good federal court decision against a coal mining expansion: There are no remedies for failure to consider climate change impacts

Facebooktwittergoogle_plus
Arch Coal leasing area, Colorado (Photo: WildEarth Guardians)

Arch Coal leasing area, Colorado (Photo: WildEarth Guardians)

Confirming and finalizing a preliminary decision made in July, a Colorado judge has killed a federal permit to allow expanded coal mining in the Gunnison National Forest, after Arch Coal’s application had been approved by the Obama Administration. The Bureau of Land Management failed to consider the cost of climate change impacts in granting the permit, U.S. District Judge R. Brooke Jackson had ruled. Now, after considering potential remedies, Judge Jackson has decided not to send the flawed permit back to the government for reconsideration, saying: “This case is more like a Gordian knot that needs cutting than a simple tangle that the government can untie with a little extra time,” Greenwire reported on September 12 (by subscription).

Our earlier report on this case: Federal coal mining permit blocked for failing to consider climate change impacts (July 6)

Text of Judge Jackson’s September 11 ruling here.

From an earlier statement by WildEarth Guardians (Court Decision Protects Colorado Backcountry From Coal Mining, Safeguards Climate):

“BLM’s federal coal leasing program has a massive impact on our climate and public health, affecting the waters we use, the air we breathe, and the wild areas we enjoy. For years, BLM has been telling the public that its individual coal leasing decisions–even those approving hundreds of millions of tons of coal–have no impact on our climate. This decision means that just saying there’s no impact doesn’t mean there’s no impact,” said Roger Singer, Senior Organizing Manager with the Sierra Club in Colorado.

From WildEarth Guardians statement September 12 (Court Strikes Down Loophole Allowing Road Construction for Coal Mines in Colorado Backcountry):

A federal court today overturned a coal mine expansion and eliminated a loophole permitting road construction for coal mining in western Colorado’s roadless public forest lands. …

Earthjustice, a public-interest environmental law firm, represented the High Country Conservation Advocates, WildEarth Guardians and the Sierra Club in the case.

“This is a great day for the Sunset Roadless Area, for the hikers and hunters that use the land, and for the elk, black bear, and lynx that call the area home,” said Earthjustice Attorney Ted Zukoski.

“Today’s ruling makes sure that coal mines can’t build roads in Colorado’s precious national forest roadless areas unless and until the Forest Service makes an honest accounting of the huge amounts of climate pollution that such mining may cause,” said Alli Melton, Public Lands Direction for Crested Butte-based High Country Conservation Advocates.

The court’s June 27 ruling found that the Forest Service failed to disclose the climate change impacts of two previous decisions that allowed coal mining in the Sunset Roadless Area — the mine expansion itself, which allowed the mining of 20 million tons of coal, and the Colorado Roadless Rule, which contained a loophole that allowed road construction for coal mines in roadless forest in a 19,000 acre area in the North Fork Valley near Paonia.  The loophole unlocked 347 million tons of coal for mining and combustion by allowing road construction for coal mines.

Today’s ruling invalidates the coal mining loophole and leaves intact the rest of the Colorado Roadless Rule, which protects more than four million acres of roadless national forest in the state.  The ruling also ensures that Forest Service and BLM will involve the public, and take a “hard look” at the climate pollution impacts of any future decision to approve an expansion of the West Elk Mine into the Sunset Roadless Area.

“Our climate and our Colorado backcountry shouldn’t be sacrificed for coal,” said Jeremy Nichols, program director for WildEarth Guardians’ Climate and Energy.  “Today’s ruling simply reaffirms the importance of our public lands for maintaining healthy ecosystems and for reining in carbon pollution.”

Now, will the Administration accept the court’s decision in the Colorado mining permit case and change its methodology for environmental assessments of proposed fossil fuel development projects? Or will they try to find a way to challenge the court’s ruling – or make only the minimal procedural adjustments needed to establish compliance with the law?

The reasoning in this case should be applied to other federal decisions on permitting fossil fuel leasing, production, pipelines, and export terminals. This would help hold the Obama administration accountable for the current contradictions between its climate change rhetoric and its policy on promoting fossil fuel production.

More broadly, draft White House guidance to federal agencies on environmental impact assessment of proposed federal actions such as energy development permits, which has languished for four years, could move the system toward analyzing specific proposed projects within a larger context of cumulative global warming impacts. The 2010 draft guidance from the Council on Environmental Quality on implementing the National Environmental Policy Act also called for a comparison of the emissions associated with proposed projects with the emissions associated with potential alternatives, such as renewable energy development, and with the alternative of no project development at all. Think of how such a big-picture approach to federal decisions could be applied vis-a-vis the relentless pressure today to step up U.S. permitting of new fossil fuel projects.

Earlier posts:

White House won’t use NEPA effectively on climate and clean energy–Part 1

White House won’t use NEPA effectively on climate and clean energy–Part 2

This entry was posted in Energy, Obama Climate Plan, Science-Policy Interaction. Bookmark the permalink.