Western Organization of Resource Councils v. Jewell

The D.C. Circuit Court of Appeals affirmed dismissal of a lawsuit seeking to compel an update of the programmatic environmental impact statement (PEIS) for the federal coal leasing program. The U.S. Bureau of Land Management (BLM) completed the PEIS in 1979; plaintiffs argued that BLM was required to update the environmental review due to the availability of tens of thousands of scientific studies on climate change and coal combustion’s contributions to climate change. The D.C. Circuit held that the National Environmental Policy Act (NEPA) did not require BLM to update the environmental review because the relevant “major Federal action” (establishment of the federal coal program) was completed in 1979 and no new action had been proposed. The D.C. Circuit said the plaintiffs raised “a compelling argument” that BLM “should now revisit the issue” of climate change and “adopt a new program or supplement its PEIS analysis,” but concluded that the plaintiffs would have to pursue other avenues to raise this claim—either via a rulemaking petition or through challenges to specific licensing decisions (which “might challenge any attempt by BLM to rely on (or tier to) the 1979 PEIS on the ground that it is too outdated to support new federal action”). The D.C. Circuit also rejected the plaintiffs’ contention that statements in the 1979 regulatory materials created an obligation for BLM to update the PEIS even if NEPA did not require it. The D.C. Circuit said that while the statements “might have created a binding duty … at one point,” BLM’s amendments to the coal leasing rules in 1982 freed it from any supplementation duty beyond that imposed by NEPA.

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Western Organization of Resource Councils and Friends of the Earth asked the D.C. Circuit Court of Appeals to reactivate their appeal of a district court August 2015 decision dismissing their action alleging that federal agencies failed to conduct an adequate analysis of the environmental effects—including climate change-related effects—of the federal coal leasing program. In January 2016, Secretary of the Interior Sally Jewell directed the U.S. Bureau of Land Management to prepare a programmatic environmental impact statement (PEIS) and paused issuance of new coal leases until the PEIS was completed. In June 2016, the D.C. Circuit granted a joint request by the two conservation groups and the federal defendants to hold the groups’ appeal in abeyance while the PEIS was prepared. On March 29, 2017, Secretary of the Interior Ryan Zinke revoked Secretary Jewell’s order. The conservation groups said that Secretary Zinke’s action restored the federal coal leasing program to its status at the time of the district court decision and their noticing of the appeal. They therefore asked the D.C. Circuit to end the abeyance, establish a briefing schedule, and calendar the case for oral argument.

The federal district court for the District of Columbia dismissed the action. The court determined that it had no authority to compel BLM to supplement its 1979 review because there was no ongoing major federal action that could trigger supplemental review. The court said any coal leasing decisions “are made pursuant to a pre-approved and EIS-supported program."