WildEarth Guardians v. Bernhardt

–

The federal district court for the District of Colorado enjoined a coal mining company from proceeding with a mining plan in Colorado until further analysis was conducted regarding a methane flaring alternative and potential impacts to perennial streams. The court found that the Office of Surface Mining Reclamation and Enforcement (OSM) acted arbitrarily and capriciously in recommending approval of the mining plan based on other agencies’ environmental analysis documents. First, the court found that methane flaring was a reasonable alternative and that the federal agencies were required to consider it since no agency reasonably concluded it was infeasible. (The court also concluded as a threshold matter that the plaintiffs were not precluded based on litigation challenging other agency approvals related to the mine from making their argument regarding the methane flaring alternative. The court noted that the earlier <a href="https://climatecasechart.com/case/high-country-conservation-advocates-v-us-forest-service/">litigation</a> concerned actions involving different agencies that took place years before the actions at issue in this case. The court further noted that the court in the earlier case did not find that the plaintiffs failed to demonstrate that the methane flaring analysis was insufficient but only that the analysis had been reasonably postponed.) Second, the court rejected the plaintiffs’ argument that the defendants failed to consider the project’s cumulative climate change impacts in conjunction with past, present, and reasonably foreseeable future actions. The court said the plaintiffs waived this argument at the leasing stage and found that OSM could have reasonably concluded that the new information since the leasing stage did not significantly alter the analysis. Third, the court found that OSM should have given additional attention to impacts on perennial streams based on new information that “serves to completely reverse” the agency’s previous conclusions. The court noted that the mining company had recently filed information about a potential methane flaring system for which it was seeking Mine Safety and Health Administration approval and that OSM had thereafter sought voluntary remand without vacatur so that it could prepare an environmental assessment to consider the methane flaring proposal. The court concluded, however, that it was necessary to enjoin further work pursuant to the mining plan because “remand without vacatur or injunction would incentivize agencies to rubber stamp a new approval, rather than take a true and informed hard look.”

–

In a case involving a challenge to the Office of Surface Mining Reclamation and Enforcement’s (OSM’s) environmental review of a mining plan modification for an active coal mine in a national forest in Colorado, the federal government moved to dismiss with prejudice its appeal of a District of Colorado order that enjoined a mining plan modification for the mine until further analysis was conducted regarding a methane flaring alternative and other issues. The Tenth Circuit dismissed the appeal on February 27. On December 13, 2019, OSM published a draft <a href="https://www.wrcc.osmre.gov/initiatives/westElkMine/westElkMine/documents/20191210_West_Elk_Mine_EA.pdf">environmental assessment</a> and <a href="https://www.wrcc.osmre.gov/initiatives/westElkMine/westElkMine/documents/20191210_West_Elk_Mine_Unsigned_FONSI.pdf">finding of no significant impact</a> (FONSI) in response to the district court’s order. The FONSI concluded that the mining plan modification—which would allow continuation of mining operations for approximately 10 million tons of recoverable coal and include a voluntary methane flaring measure—would not have a significant impact. The comment period closed on December 23. Editor’s note: this coal mine is part of the joint venture between Arch Coal and Peabody that the Federal Trade Commission <a href="https://www.ftc.gov/enforcement/cases-proceedings/1910154/peabody-energy-arch-coal-federal">challenged</a> on February 27.