Montana Environmental Information Center v. Haaland

The Ninth Circuit Court of Appeals concluded in an unpublished memorandum that it lacked appellate jurisdiction to review a decision by the federal district court for the District of Montana remanding an environmental impact statement (EIS) for a coal mine expansion to the Office of Surface Mining for additional analysis, including quantification of the socioeconomic costs of the expansion’s greenhouse gas emissions. The Ninth Circuit cited the general rule that administrative remand orders are not “final” and found that the exception to this rule did not apply because an immediate appeal was not necessary for the appellant coal company and union to obtain the relief they sought, given that the district court’s decision did not foreclose the possibility of the agency reapproving the project and since the appellants could challenge any decision by the agency to block the expansion on remand.

The federal district court for the District of Montana granted in part federal defendants’ motion to extend the deadline for revising a final environmental impact statement and issuing a final decision regarding the expansion of the Rosebud coal mine. The court issued a decision in September 2022 finding that the defendants’ review of the expansion did not satisfy NEPA requirements, including because the defendants failed to take a hard look at greenhouse gas emissions and their costs. The September 2022 decision deferred vacatur of the approval of the proposed expansion until April 30, 2024. In response to the defendants’ request for a 14-month extension, the court found that relief from the deadline was warranted because the “the novelty of the greenhouse gas analysis” and Council on Environmental Quality guidance concerning greenhouse gases and climate change that was published after the September 2022 decision qualified as “unforeseen circumstances.” The court concluded, however, that a 14-month extension would be “disproportionate to the reasons for the modification of the deadline” and instead granted a nine-month extension.

The federal district court for the District of Montana adopted a magistrate judge’s recommendation that the court find that the Office of Surface Mining Reclamation and Enforcement (OSM) must quantify the socioeconomic costs of the greenhouse gas emissions of a coal mine expansion because OSM had quantified the expansion’s economic benefits. The court rejected, however, the magistrate judge’s conclusion that OSM was required to use the social cost of carbon to quantify those costs. The court cited the Ninth Circuit’s April 2022 decision in <a href="https://climatecasechart.com/case/350-montana-v-bernhardt/">350 Montana v. Haaland</a> holding that use of the social cost of carbon was not required. In this case, the district court found that OSM provided an acceptable rationale for not using the social cost of carbon—that it was too uncertain to provide value and was not designed for project-level analysis. The court reminded OSM, however, “of its obligation to provide high quality, accurate scientific analysis on the economic costs” of greenhouse gases from the expansion on remand. Regarding other environmental review issues, the court agreed with the magistrate judge that OSM failed to take the required hard look at cumulative impacts to surface water and indirect effects on water withdrawals from the Yellowstone River and that OSM’s alternatives analysis violated the National Environmental Policy Act.