Citizens for Clean Energy v. U.S. Department of Interior

The federal district court for the District of Montana vacated and remanded the final environmental assessment and finding of no significant impact that the U.S. Bureau of Land Management (BLM) prepared for former Secretary of the Interior Ryan Zinke’s 2017 order that terminated a NEPA review of the federal coal leasing program ordered by former Secretary of the Interior Sally Jewell and directed BLM to resume issuing coal leases. The court previously ruled that Zinke’s order constituted major federal action requiring NEPA review. At issue in this case was whether BLM’s subsequent review satisfied National Environmental Policy Act (NEPA) requirements. As an initial matter, the court held that Secretary of the Interior Deb Haaland’s order revoking Secretary Zinke’s order did not moot the claims because the coal leasing moratorium put in place by former Secretary Jewell remained revoked. On the merits, the court found that BLM’s environmental assessment did not satisfy NEPA and Administrative Procedure Act requirements because its limited analysis of four leases deemed traceable to the Zinke order failed to consider all direct, indirect, and cumulative impacts of restarting the coal leasing program. The court said BLM should have used a status quo of a moratorium on coal leasing as its baseline alternative and should not have presumed that the moratorium was limited to the three-year period anticipated for completion of the programmatic environmental impact statement for the coal leasing program. The court further found that BLM “arbitrarily curtailed” even its assessment of the four leases’ impacts. The court reinstated the moratorium pending completion of sufficient NEPA review.

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The federal district court for the District of Montana denied federal defendants’ request for a 90-day stay in proceedings challenging the Trump administration’s lifting of the Obama administration’s moratorium on federal coal leasing. Briefing is currently underway on summary judgment motions regarding the adequacy of the U.S. Bureau of Land Management’s (BLM’s) environmental assessment (EA) and finding of no significant impact (FONSI) for the lifting of the moratorium. BLM issued the EA and FONSI in response to the court’s 2019 decision finding that the lifting of the moratorium was a “major federal action” requiring review under the National Environmental Policy Act. In April 2021, Secretary of the Interior Deb Haaland issued Secretarial Order 3398, which revoked former Secretary Ryan Zinke’s order that lifted the moratorium. Secretary Haaland’s order directed agencies to prepare a report with a plan for reversing, amending, or updating the policies implementing the Zinke order. The court found, however, that there was a “fair possibility” that previous and ongoing implementation of the Zinke order’s policies would cause damage to the plaintiffs’ interests in air quality, water quality, wildlife habitat, cultural sites, and mitigation of climate change impacts. The court further found that the federal defendants failed to establish that they would suffer hardship if the case proceeded and that “the orderly course of justice further weighs in favor of the Court maintaining the current schedule” since it “remains doubtful that Federal Defendants can complete their agency review and related policy change within a reasonable time.”

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The federal district court for the District of Montana allowed plaintiffs to supplement their complaints in lawsuits challenging the U.S. Department of the Interior’s failure to comply with the National Environmental Policy Act (NEPA) when it lifted the moratorium on the federal coal leasing program. The plaintiffs sought to challenge the environmental assessment (EA) prepared by the defendants after the court ruled that lifting the moratorium was an action subject to NEPA. The plaintiffs alleged several flaws in the EA, including ignoring cumulative impacts and arbitrarily refusing to use the social cost of carbon or another metric to assess greenhouse gas impacts. The plaintiffs also contended that the absence of consideration in the EA and finding of no significant impact of the long-term public benefits of addressing climate change and other impacts violated the Mineral Leasing Act.

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The federal district court for the District of Montana found that the U.S. Department of the Interior, the Secretary of the Interior, and the U.S. Bureau of Land Management (BLM) had complied with the court’s previous order requiring them to initiate the NEPA process in connection with the Trump administration’s lifting of the moratorium on the federal coal leasing program. Secretary of the Interior Sally Jewell instituted the moratorium in January 2016 and directed BLM to prepare a programmatic environmental impact statement for the federal coal program that addressed climate change, among other issues. After the court’s previous order, BLM in February 2020 issued a final environmental assessment (EA) and finding of no significant impact (FONSI); the court noted that the EA’s analysis was based on analysis of the impacts of resuming coal lease processing 24 months earlier and that the FONSI “relies heavily on the fact that the [moratorium] disrupted a 40-year framework for coal leasing, and the finite nature of the [moratorium], together with the NEPA review of individual leases limited the effects” of lifting the moratorium. The court rejected the plaintiffs’ contention that the final EA and FONSI did not remedy the NEPA violations identified by the court. Although the court declined to engage in a substantive review of the EA and FONSI “without a new complaint and administrative record to review,” it said the plaintiffs “remain free to challenge the sufficiency of the NEPA analysis.”

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Federal defendants notified the federal district court for the District of Montana that they had posted a <a href="https://eplanning.blm.gov/epl-front-office/projects/nepa/122429/20013723/250018743/Lifting_Coal_Pause_FONSI.FINAL_Signed.pdf">finding of no significant impact</a> (FONSI) and final <a href="https://eplanning.blm.gov/epl-front-office/projects/nepa/122429/20013717/250018737/Lifting_the_Pause_for_Coal_Final_EA.pdf">environmental assessment</a> (EA) on the U.S. Bureau of Land Management website to comply with the court’s April 2019 ruling that the lifting of the Obama administration’s moratorium on coal leasing was a “major federal action” triggering obligations under the National Environmental Policy Act (NEPA). The FONSI stated that “[i]n the Department [of the Interior]’s view,” the order lifting the moratorium “does not have environmental effect because it does not, in itself, authorize sale or issuance of any new coal leases.” The FONSI indicated that the Department of the Interior believed that the order did not alter substantive law but merely altered a choice the Obama administration made that the Department believed was inconsistent with existing law. The FONSI said the Final EA “documented the effects and consequences of lifting the [moratorium] and resuming application processing sooner than anticipated.” Because of the “temporary nature” of the Obama administration moratorium, the FONSI concluded that the effects of lifting the moratorium were “limited to the timing of lease issuances” and that resumption of leasing practices, including compliance with NEPA, therefore “created no significant, unstudied impacts.”

The federal district court for the District of Montana postponed its remedies ruling in the case challenging Secretary of the Interior Ryan Zinke’s lifting of the Obama administration’s moratorium on federal coal leasing. In April 2019, the court ruled that the lifting of the moratorium was subject to the National Environmental Policy Act (NEPA), and in May, the federal defendants issued a 35-page draft environmental assessment (EA). Although the plaintiffs argued that the appropriate remedy for the defendants’ failure to comply with NEPA was vacatur and contended that the draft EA did not overcome the deficiencies, the court concluded that it was appropriate to postpone a ruling on remedies to allow the federal defendants to complete their environmental review. The defendants told the court that they anticipated they would reach a determination on whether an environmental impact statement was required by August 5, 2019.

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The federal district court for the District of Montana granted the federal government more time to submit briefing on the appropriate remedies for the government’s failure to comply with the National Environmental Policy Act (NEPA) when Secretary of the Interior Ryan Zinke lifted the Obama administration’s moratorium on the federal coal leasing program. The federal government notified the court on May 22, 2019 that it had published a <a href=https://eplanning.blm.gov/epl-front-office/projects/nepa/122429/173355/210563/Lifting_BLM_Coal_Leasing_Pause_EA.pdf>draft environmental assessment</a> (EA) for the coal program in partial compliance with the court’s April 2019 order that found violations of NEPA and the Administrative Procedure Act. The plaintiffs countered that remedies briefing was still necessary despite publication of the draft EA. The court directed that the parties submit remedy briefs by the earlier of (1) 14 days after the defendants determine whether to issue a finding of no significant impact or to prepare an environmental impact statement or (2) July 22, 2019. The public comment period on the draft EA ended on June 10.

The Northern Cheyenne Tribe and conservation groups subsequently filed a response indicating that they did not view publication of the draft EA as “partial compliance” with the court’s April 2019 order finding that the lifting of the moratorium required compliance with NEPA. The Tribe and conservation groups said they would therefore submit a brief regarding appropriate remedies for the federal defendants’ NEPA violations.

The federal defendants filed a notice of partial compliance with the federal district court for the District of Montana to inform the court that it had published a draft environmental assessment (EA) that considers the environmental impacts of former Secretary of the Interior Ryan Zinke’s lifting of the moratorium on the federal coal program.

The federal district court for the District of Montana ruled that the Trump administration’s lifting of a moratorium on coal leasing triggered the need to comply with the National Environmental Policy Act (NEPA). Secretary of the Interior Sally Jewell issued an order in January 2016 directing the U.S. Bureau of Land Management (BLM) to prepare a programmatic environmental impact statement (PEIS) for the federal coal leasing program. The order also imposed a moratorium on coal leasing until the PEIS was completed. In March 2017, Secretary of the Interior Ryan Zinke issued an order determining that a PEIS was not necessary and lifting the moratorium. The district court found that the Zinke order met the requirements both for “major federal action” triggering obligations under NEPA and also for reviewable final agency action under the Administrative Procedure Act. The court also determined, as threshold matters, that the state and organizational plaintiffs had standing and that their claims were ripe. Although the court concluded that it could not at this point compel the defendants to prepare a PEIS, it ordered the defendants to take the initial step under NEPA of determining the extent of environmental analysis that was necessary. The court also directed the parties to attempt to reach an agreement on potential remedies within 30 days or, alternatively, if they could not reach agreement, to submit briefing on the Monsanto factors for permanent injunctive relief.

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An economist who is a former co-head of the federal Interagency Working Group on Social Cost of Greenhouse Gases submitted an amicus brief to assist the court in determining whether significant new scientific information justifies requiring supplemental environmental review of the coal leasing program and whether the decision to revoke Secretary Jewell’s order was a major federal action that could significantly affect the environment.

States, conservation groups, and the Northern Cheyenne Tribe filed motions for summary judgment in their lawsuits challenging the Trump administration’s resumption of the federal coal leasing program and its termination of the programmatic environmental impact review of the program. In March 2017, Secretary of the Interior Ryan Zinke issued Secretarial Order 3348, which revoked Secretarial Order 3338, issued by former Secretary of the Interior Sally Jewell in January 2016. Secretary Jewell’s order commenced the process for the programmatic review and put in place a moratorium on new federal coal leases. The plaintiffs argued that Secretary Zinke’s order was a “major federal action” that required consideration of potential environmental impacts, including climate impacts, under NEPA. The states also argued that the defendants had violated the Mineral Leasing Act, the Federal Land Policy and Management Act, and the Administrative Procedure Act by failing to provide an reasoned explanation for the reversal of the defendants’ prior position that comprehensive review of the federal program was necessary. The conservation groups and Northern Cheyenne Tribe argued that the order violated NEPA by failing to consider impacts to the Tribe and also argued that the defendants violated their trust obligation to the Tribe. The federal defendants’ response and cross-motion for summary judgment is due on September 7.

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Michael Greenstone, an economist and professor at the University of Chicago and formerly Chief Economist for President Obama's Council of Economic Advisers, requested leave to file an amicus brief to assist the court to make two points: (1) explaining the significance of lifting the coal leasing moratorium without completing an updated environmental review of the federal coal program by demonstrating the societal costs of climate change and air pollution caused by new coal leasing and (2) explaining advances in climate-change economics since the last programmatic review of the coal leasing program in 1979.

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