High Country Conservation Advocates v. U.S. Forest Service

The federal district court for the District of Colorado declined to vacate mining lease modifications that authorized a coal company to undertake road construction in the Sunset Roadless Area in Colorado. The U.S. Forest Service adopted the North Fork Exception to the Colorado Roadless Rule in 2016, allowing for road construction related to coal mining in the Sunset Roadless Area. In March 2020, the Tenth Circuit vacated the North Fork Exception due to the arbitrary and capricious exclusion of an alternative in the supplemental final environmental impact statement (SFEIS) for the Exception. The Tenth Circuit rejected, however, an argument that the U.S. Bureau of Land Management’s SFEIS for the lease modifications failed to consider a “Methane Flaring Alternative.” The district court concluded that although the Tenth Circuit vacated the North Fork Exception, the appellate court had not expressly or impliedly directed the district court to vacate the lease modifications. The district court further concluded that it could not enjoin the coal company from conducting surface-disturbing activities in the North Fork Exception area because all of the plaintiffs’ challenges to the lease modifications had been resolved in favor of the federal agency defendants and the plaintiffs’ assertions that the coal company’s activities violated the Roadless Rule appeared to raise “an entirely new claim” targeted not at the agencies but at the coal company.

On June 23, 2020, the defendant-intervenor responded that after reviewing the Tenth Circuit decision, it had concluded that it had the right to continue roadbuilding pursuant to a separate exception in the Colorado Roadless Rule that allows roadbuilding when necessary to exercise statutory rights (in this case, rights under the Mineral Leasing Act).

The federal defendants said the environmental groups’ motion should be denied because the activities at issue took place before the Roadless Rule exception was actually vacated and because the requested relief went beyond the Tenth Circuit mandate.

The federal district court for the District of Colorado formally vacated a Colorado Roadless Rule exception for the North Fork Coal Mining Area after the Tenth Circuit ruled that the U.S. Forest Service should have considered an alternative proposed by the plaintiff environmental groups. The court also directed the defendants and defendant-intervenor to respond to the plaintiffs’ emergency motion to enforce the remedy.

In an emergency motion to enjoin the roadbuilding activity, the plaintiffs contended that the defendant-intervenor was illegally bulldozing in the Sunset Roadless Area despite the Tenth Circuit’s ruling, “apparently relying on the fact that this Court had yet to take the non-discretionary step of formally entering the vacatur order.”

Almost four years after a Colorado federal court <a href="https://climatecasechart.com/case/high-country-conservation-advocates-v-us-forest-serv/">vacated</a> federal actions authorizing expansion of an underground coal mine in Colorado because the defendants had failed to adequately consider greenhouse gas impacts, the court rejected challenges to the new supplemental environmental impact reviews conducted by the federal government. The supplemental environmental impact statements (SEISs) addressed an exception to the Colorado Roadless Rule that allowed road construction related to coal mining on previously protected land in the Sunset Roadless Area (the “North Fork Exception”) and lease modifications adding new lands to an existing coal mine. The court rejected the plaintiffs’ contentions that the defendants improperly refused to consider an alternative to the North Fork Exception that protected a particular roadless area and an alternative to the lease modifications requiring methane flaring, which would have reduced greenhouse gas emissions. The court also rejected arguments that the defendants failed to adequately disclose climate change impacts. First, the court found that the defendants had properly considered and provided the basis for its conclusions regarding the effects on demand for electricity of increased supply of a particular type of coal. Second, the court rejected the contention that the SEIS for the lease modifications should have included an updated social cost of carbon analysis reflecting repeal of the Clean Power Plan. The plaintiffs unsuccessfully argued that an updated SEIS was required since EPA proposed to repeal the Clean Power Plan after preparation of the SEIS for the North Fork Exception (on which the SEIS for the lease modifications relied) but prior to the finalization of the lease modifications.

On December 15, 2017, five conservation groups filed a complaint in the federal district court for the District of Colorado alleging that the U.S. Forest Service and BLM violated NEPA when they issued approvals authorizing expansion of an underground coal mine in the Sunset Roadless Area in Colorado. In 2014, a Colorado federal court <a href="https://climatecasechart.com/case/high-country-conservation-advocates-v-us-forest-serv/">vacated</a> earlier approvals of the mine’s expansion on the ground that the agencies had failed to take a hard look at greenhouse gas impacts. In the December 2017 complaint, the conservation groups said that, “despite having the benefit of a second opportunity to fully account for the mine expansions’ harms, the agencies have, among other errors, again underestimated or obscured the climate pollution impacts of the expansion while improperly boosting the purported economic benefits.” The groups alleged the following NEPA violations related to the agencies’ assessment of greenhouse gas impacts: failure to acknowledge and account for the environmental impacts of the increased demand for coal that the mine’s expansion would induce; failure to disclose climate impacts using scientifically valid and available tools such as the social cost of carbon or to provide an explanation for why such an approach was not appropriate (as required by the 2014 decision); and failure to consider a reasonable alternative aimed at mitigating methane pollution.